The Private Security Industry is one of the most pervasively regulated industries in South Africa and subject to various regulatory frameworks.
The legislative requirement for registration with PSIRA and concomitant issues such as the registration status of a security firm and the registration and training status of executives are usually clear as far as guarding, armed reaction, etc. is concerned.
The same cannot be said in respect of Private Investigators and Forensic or Commercial investigators such as commercial verification or intelligence operators.
The term “security service” is defined in the Private Security Industry Regulation Act 56 of 2001 to include the performance of the functions of a private investigator.
A Private Investigator is, in turn, defined to mean
“a person who, in a private capacity and for the benefit of another person, investigates the identity, actions, character, background or property of another person, without the consent of such a person, but does not include……….”
This definition appears to be a self-explanatory at first sight. The problem, however, lies in a far too wide application thereof. The legislature endeavoured to remedy this overly wide application by introducing an exclusionary clause, which is quoted below:
- auditors, accountants, attorneys, advocates or forensic scientists conducting investigations which fall within the normal and reasonable course and scope of their professional functions;
(b) internal investigators conducting normal and reasonable investigations into employee misconduct;
(c) internal investigators conducting investigations which a business, other than an investigating business, may undertake in the course and scope of its normal and reasonable endeavours to safeguard its security, strategic, operational or business interests”
The exclusion of Auditors, Accountants, Attorneys, Advocates and Internal Investigators poses no real issue in the interpretation of this Section in as far as commercial forensic, verification, or intelligence operators are concerned.
Their exclusion would apparently be based on the definition of forensic scientist. No such definition is provided in the Act and any attempt at interpreting this phrase would be undertaken at your own peril, specifically if due regard is to be had to possible consequences of conducting such an investigator service without having been properly registered.
Section 38 of the Act not only criminalises conducting such an unregistered business but would also subject the clients of such a business to criminal discourse. Decisions of private investigators and specifically forensic investigators, commercial investigators, verification agencies and business intelligence operators should not be undertaken without proper legal advice.
