We are frequently faced with the question as to whether the lapsing of a PSIRA certificate automatically amount to the deregistration of the Security Service Provider.
The importance of the question stems from the provisions of Sections 20 of the Private Security Industry Regulations Act, which provides that “No person, except a Security Service contemplated in section 199 of the Constitution (Act No. 108 of 1996), may in any manner render a security service for remuneration, reward, a fee or benefit, unless such a person is registered as a security service provider in terms of this Act.” Non-compliance of this provision will be met with both administrative and criminal penalties.
A proper response to the question will require analysis of the Private Security Compliance Framework and more specifically those provisions dealing with deregistration.
Section 26 of the Act deals with the Suspension, withdrawal and lapsing of registration.
Suspension.
Section 26(1) provides that the authority may suspend the registration of a security service provider
(a) pending the conclusion of an investigation or enquiry by the Authority into the alleged improper conduct; or
(b) pending the conclusion of the criminal investigation by the State into the offence in respect of that security service provider, or a determination by the prosecuting authority or the finalisation of criminal proceedings in regard to the offence.
The requirement of an positive action by the Authority is clear and these provisions does not provide for any automatic suspension of registration.
Deregistration
Section 26(4) provides that the Security Service Provider’s registration may be withdrawn by written notice served on the security service provider, if:-
“(a) the security service provider has furnished to the Authority information in or in connection with the application for registration which is false;
(b) there was some material irregularity in the registration of the security service provider concerned;
(c) the registration was granted in error or on the basis of incorrect information furnished by any person, including any department or organ of State, to the Authority;
(d) at any time after registration, the security service provider-
(i) is found guilty of an offence specified in the Schedule; (ii) is found guilty of improper conduct in terms of this Act;
(iii) is no longer a fit and proper person to render a security service; or
(iv) does not comply with one or more of the requirements for registration referred to in section 23(1)(a), (b), (g), (h) and (j), or in section 23(2);
(e) in the case of a security business, the registration of a person referred to in section 20(2) is withdrawn in terms of paragraphs (a), (b), (c) or (d); or in the case of a security business, any of the persons referred to in section 20(2) is for any other reason not registered as a security service provider.
Section 26(4)(e) further provides that the registration of security service provider will lapse if it is not renewed as contemplated in Section 22.
We emphasis that the provisions of section 26(4) are specifically subject to Section 5(3) of the Act, which provides that “ The Authority must be impartial in the performance of its functions and must ensure that in the taking of decisions or other steps, it complies with all legal requirements for just administrative action” . We are of the opinion that these requirements will at least imply that the security service provider is granted the opportunity to put its case before the authority (audi alterem partem)
The withdrawal of a security service provider’s registration is subsequently subject to
1. A discretion by the authority; and
2. Written notification of deregistration served on the service provider; and
3. subject to all legal requirements for administrative action.
Both the suspension and de-registration of a security service provider logically requires some action by the authority subject to certain requirements and cannot affect the registration status of the service provider merely when its certificate of registration expired.
The provisions of Section 26(5) may prove to be different kettle of fish as it specifically provides that “the registration of a security service provider lapses if it is not renewed as contemplated in section 22.”
Section 22, in turn, provides that “The Minister may prescribe procedures and principles in respect of periodic applications for the renewal of registration by registered security service providers and the conditions and requirements for the granting of such applications.”
The minister have not, at this time, published any regulations dealing with the periodic applications for the renewal of registration and can we safely assume that the registration of a security service provider will only come to an end or be suspended in accordance with the remaining provisions of Section 24 or in terms of an court order in terms of Section 27.
The context of expiring registration certificates needs to be properly ventilated in order to understand the context or rationale of the confusion amongst security service providers.
Section 24 of the Act provides that “ The Authority must, in the form prescribed and on such conditions as it may determine, issue a certificate of registration to any person and a certificate of identification to any natural person, registered as a security service provider.”
Due to the ever increasing cases of identity theft in the security industry, PSIRA commenced to issue registration certificates with expiry dates. This mode of operation was later introduced into the compliance framework by the Regulations published in Notice 874 on 11 March 2022, which provides that
“(7) A security officer registered in terms of section 21 (3) and issued with a registration certificate in terms of section 25 of the PSIR Act, must renew such certificate every 24 months from the date of issue.
(8) The provisions of subregulation (7) apply to security service providers registered after 7 April of the year these regulations are published.
(9) The Authority shall from time to time prescribe processes and forms relating to the renewal of registration certificate.
(14) Failure to renew a certificate as contemplated in subregulation (7), a month prior to the anniversary date, will result in the immediate lapsing of the certificate.”
Whether these provisions apply to security officers registered before the publication of these regulations or whether same would apply to security business at all, are highly controversial, but is clear that its reach is limited to the certificate itself and not the registration status of the security provider.
The lapsing of a certificate will subsequently not automatically affect the registration status of a security service provider.
