Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC) ;2009 (10) BCLR 978 (CC) (7 May 2009)

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[2009] ZACC 11
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Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC) ;2009 (10) BCLR 978 (CC) (7 May 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 77/08
[2009] ZACC 11
BERTIE VAN ZYL (PTY) LTD
First Applicant
MONTINA BOERDERY (PTY) LTD
Second Applicant
versus
MINISTER FOR SAFETY AND SECURITY
First Respondent
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE
Second Respondent
PROVINCIAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE:
LIMPOPO PROVINCE
Third Respondent
CAPTAIN MALAPO
Fourth Respondent
THE PRIVATE SECURITY INDUSTRY REGULATORY AUTHORITY
Fifth Respondent
Heard on: 4 November 2008
Decided on: 7 May 2009
JUDGMENT
MOKGORO J:
This matter has been referred to this Court by
the North Gauteng High Court (the High Court), previously known as
the Pretoria
High Court. It concerns the interpretation of
sections 20(1)(a) and 28 of the Private Security Industry
Regulation Act (the
Act)
1
as it relates to employers using their own staff as private
security service providers to protect the employers and their
property and premises. Specifically, the declaration of invalidity
of certain parts of section 28 has been referred to this
Court for
confirmation. Additionally, the applicants appeal directly against
the High Court’s interpretation of section
20(1)(a) of the Act
and its consequent refusal to declare section 20(1)(a)
unconstitutional and invalid.
2
The parties
The first applicant is Bertie Van Zyl (Pty) Ltd, a large farming
company that grows approximately 30% of the tomatoes marketed
in
the country. The company employs over 6000 employees across a
number of farms in the Limpopo Province, with some of these
farms
up to 250km apart. The second applicant is Montina Boerdery (Pty)
Ltd, also operating a farming enterprise in the Province
of
Limpopo, and employing about 2000 workers.
The first respondent is the Minister for Safety and Security, the
Minister responsible for the impugned legislation. The second
to
fourth respondents are the National Commissioner of the South
African Police Service (the SAPS), the Limpopo Provincial

Commissioner of the SAPS, and Captain Malapo of the Monitoring and
Auditing Team of the SAPS, respectively. The fifth respondent
is
the Private Security Industry Regulatory Authority (the Authority),
a statutory body established by section 2 of the Act
to regulate
the private security industry.
Only the first and fifth respondents are
involved in the appeal against the order of constitutional
invalidity and the costs
order of the High Court.
Facts
The applicants run significant farming enterprises in the Limpopo
Province. Given their sizeable assets and the extent of
their
operations, they have been the target of criminals. Theft of motor
vehicles, other equipment and cash have been most
common.
As a result, the applicants employed some of their general
workforce as security personnel. These employees work as security

guards from time to time when needed, and their work includes
operating access-control booms and patrolling the premises.
The
security guards of the first applicant are uniformed, and although
the guards of the second applicant are not, they are
known on its
premises as security guards. These security guards are unarmed and
the SAPS are contacted in cases of emergency.
The High Court noted
as common cause that—
“
included in the duties of some
of the applicants’ employees is the specific (as opposed to an
inherent and general) responsibility
to safeguard the applicants’
premises, property, operations and even to protect their fellow
employees.”
3
(Footnote omitted.)
In terms of section 20(1)(a) of the Act, only registered security
service providers may perform security services.
4
The second to fourth respondents, viewing the security guards of
the applicants as well as the managers in charge of supervising

security for the applicants as unregistered security officers under
the Act, arrested some of them.
After their release on bail, the fourth respondent, Captain Malapo,
continued to harass and repeatedly threaten the applicants
with
further arrests of all their directors and or partners, including
the farm workers employed by them as security guards.
After the
first applicant had successfully interdicted the respondents
against further arrests, the second applicant continued
to be
subjected to similar treatment by Captain Malapo. This
incorrigible conduct created particular operational difficulties

for the applicants and their employees.
5
Discussions between the applicants and Captain
Malapo failed to resolve these difficulties. Consequently, the
applicants launched
proceedings in the High Court seeking a
declaration that the Act is not applicable to them and their farm
workers. Alternatively,
they sought a declaration that the Act or
its relevant provisions in so far as they were applicable to them,
were overbroad
and therefore unconstitutional and invalid.
The High Court, per Satchwell J, held that section 20(1)(a), if
read contextually and restrictively, was not unconstitutionally

overbroad. However, she also held that the provisions of section
28, which extend the Code to cover in-house security personnel
and
their employers, were an unnecessary and unconstitutional
expansion.
6
She severed from the section all reference to in-house security
personnel and employers, and ordered costs against the respondents.
The first and second applicants filed an application seeking
confirmation of the order of the High Court declaring portions
of
section 28(2) and section 28(3)(b) of the Act unconstitutional and
invalid. The first and fifth respondents filed an appeal
against
this order of constitutional invalidity and the costs order made in
the High Court.
The first applicant filed an application seeking leave to appeal
directly to this Court against the High Court’s ruling on
section
20(1)(a) of the Act, and condonation for late filing of this
application. A similar application was filed by the second

applicant. In these applications, the applicants sought to
challenge the constitutionality of section 20(1)(a) of the Act
on
the same basis as they had in the High Court.
Condonation
The application for condonation relates only to the applicants’
application for leave to appeal against the High Court’s
order
regarding section 20(1)(a). The first applicant lodged its
condonation application about one month late. The second

applicant, who filed its application for leave to appeal even
later, gives no reasons for the delay other than that it was

“unfortunately impossible” for it to attend the consultation
with the applicants’ counsel on 17 October 2008.
7
This despite, the second applicant’s submission that it has
“always been unhappy with the finding of the High Court.”

There is no explanation for why there was no attempt at an earlier
filing. The limited justifications for late filing offered
by the
applicants are inadequate and, generally, would militate against
granting condonation.
However, in determining whether condonation
may be granted, lateness is not the only consideration. The test
for condonation
is whether it is in the interests of justice to
grant condonation.
8
In this case, the interpretation of section 28 is already before
us for confirmation. The questions relating to section 20(1)(a)

raise similar interpretative questions. Furthermore, the lateness
of the applications does not appear to have caused substantial

prejudice to the respondents, who do not oppose the condonation
application. The respondents are already familiar with the
issues
articulated in the court a quo. More importantly, for purposes of
legal certainty it is opportune to resolve the question
of the
proper construction of section 20(1)(a) with a view to settling the
dispute between the parties. For these reasons,
condonation is
granted in the interests of justice.
The issues
There are two major issues to resolve. First is the
constitutionality of section 20(1)(a) of the Act. I refer to this

as the “section 20(1)(a) issue”. Second is the
constitutionality of section 28 of the Act, and in that regard,
determining
whether the High Court was correct in finding that the
regulation of employers of in-house security is not rationally
related
to a legitimate government purpose. I refer to this issue
as the “section 28 issue”.
9
The section 20(1)(a) issue
The applicants’ contention is that the definition of “security
service” in the Act is overbroad in that it encompasses
almost all employees in almost all industries, requiring them to
register,
and therefore be regulated under the Act, as security
service providers.
10
The High Court’s interpretation of section 20(1)(a), they
submit, is also impractical in that it brings countless other

people who do not in the true sense provide security services into
the ambit of the Act, including for example childminders
who
protect and safeguard their wards, requiring them to register as
security service providers.
11
They contend that section 20(1)(a) is therefore overbroad and
irrational, violating the rule of law enshrined in section 1
of the
Constitution. It must thus be declared unconstitutional and
invalid, and be set aside.
In the alternative the applicants argue that, assuming that the
High Court was correct in its construction of section 20(1)(a),

that interpretation is not obvious from the plain reading of the
Act. The meaning given by the High Court, they conclude,
violates
the rule of law, which requires that legislation be stated in
reasonably clear terms. This, they argue, is particularly
true
when the provision in question creates a criminal offence.
Relying on the preamble and other relevant provisions of the Act to
provide legislative context, the High Court read section
20(1)(a)
as applying only to people in the private security industry, and
excluded in-house security from the reach of the
Act. The
respondents supported the decision of the High Court, contending
that that interpretation would indeed restrict the
application of
the Act and save it from overbreadth.
The question facing this Court is whether, properly construed,
section 20(1)(a) passes constitutional muster. The appropriate

place to begin is with the constitutional and jurisprudential
principles that govern the task of statutory interpretation before

us.
The relevant statutory interpretation principles
The Constitution requires courts deciding constitutional matters to
declare any law that is inconsistent with the Constitution
invalid
to the extent of its inconsistency.
12
However, the Constitution in section 39(2) also provides that:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights.”
This Court has interpreted this provision to mean,
inter alia, that:
“
The Constitution requires that
judicial officers read legislation, where possible, in ways which
give effect to its fundamental
values. Consistently with this,
when the constitutionality of legislation is in issue, they are
under a duty to examine the
objects and purport of an Act and to
read the provisions of the legislation, so far as is possible, in
conformity with the
Constitution.”
13
Thus when the constitutionality of legislation is
challenged, a court ought first to determine whether, through “the
application
of all legitimate interpretive aids”,
14
the impugned legislation is capable of being read in a manner that
is constitutionally compliant.
Our Constitution requires a purposive approach
to statutory interpretation.
15
In
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism and Others
,
16
Ngcobo J stated:
“
The technique of paying
attention to context in statutory construction is now required by
the Constitution, in particular, s
39(2). As pointed out above,
that provision introduces a mandatory requirement to construe every
piece of legislation in a
manner that promotes the ‘spirit,
purport and objects of the Bill of Rights.’”
17
Indeed this approach is one that has been applied
to varying degrees by our courts under the common law.
18
The purpose of a statute plays an important role in
establishing a context that clarifies the scope and intended effect
of a
law.
19
The often quoted dissenting judgment of Schreiner JA in
Jaga v
Dönges, NO and Another
,
20
also cited approvingly by Ngcobo J in
Bato Star
,
21
eloquently articulates the importance of context in statutory
interpretation:
“
Certainly no less important
than the oft repeated statement that the words and expressions used
in a statute must be interpreted
according to their ordinary
meaning is the statement that they must be interpreted in the light
of their context. But it may
be useful to stress two points in
relation to the application of this principle. The first is that
‘the context’, as here
used, is not limited to the language of
the rest of the statute regarded as throwing light of a dictionary
kind on the part
to be interpreted. Often of more importance is
the matter of the statute, its apparent scope and purpose, and
within limits,
its background.”
22
A contextual or purposive reading of a statute must of course
remain faithful to the actual wording of the statute. When
confronted with legislation which includes wording not capable of
sustaining an interpretation that would render it constitutionally

compliant, courts are required, as discussed above, to declare the
legislation unconstitutional and invalid.
23
As was noted by the minority judgment in
Case and Another v
Minister of Safety and Security and Others
;
Curtis v
Minister of Safety and Security and Others
24
—
“
[t]here is a real danger that,
in [reading down] an overbroad statute, we will simply substitute
for the vice of overbreadth
the equally fatal infirmity of
vagueness.”
25
(Footnote omitted.)
It is indeed an important principle of the rule of
law, which is a foundational value of our Constitution,
26
that rules be articulated clearly and in a manner accessible to
those governed by the rules.
27
A contextual interpretation of a statute, therefore, must be
sufficiently clear to accord with the rule of law.
28
This Court has recognised that the process of
determining the constitutionality of legislation requires a
resolution of the
following inherent tension:
“
On the one hand, it is the
duty of a judicial officer to interpret legislation in conformity
with the Constitution so far as
this is reasonably possible. On
the other hand, the legislature is under a duty to pass legislation
that is reasonably clear
and precise, enabling citizens and
officials to understand what is expected of them. A balance will
have to be struck as to
how this tension is to be resolved when
considering the constitutionality of legislation. There will be
occasions when a judicial
officer will find that the legislation,
though open to a meaning which would be unconstitutional, is
reasonably capable of
being read ‘in conformity with the
Constitution’. Such an interpretation should not, however, be
unduly strained.”
29
(Footnote omitted.)
Mindful of the
imperative to read legislation in conformity with the Constitution,
but only to do so when that reading would
not unduly strain the
legislation, I turn to an analysis of the constitutionality of
sections 20(1)(a), 28(2) and 28(3)(b)
of the Act. I find below
that these provisions can be read in a manner consistent with the
Constitution, and that to do so
does not result in a far-fetched
interpretation of these provisions.
Constitutionality of section 20(1)(a)
Section 20(1)(a) provides:
“
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.”
30
Although the applicants challenge the
constitutionality of section 20(1)(a), a proper interpretation of
this provision hinges
on how the Act defines a security service.
The definition of the term “security service” is therefore
critical to determining
the ambit and rationality of section
20(1)(a) as it is only persons rendering those services for reward,
remuneration, fee
or benefit, who are required by the Act to
register as security service providers.
31
According to the definition in section 1 of the Act—
“‘
security service’ means
one or more of the following services or activities:
protecting or safeguarding a
person or property in any manner;
giving advice on the protection or safeguarding of a
person or property, on any other type of security service as
defined in
this section, or on the use of security equipment;
providing a reactive or response service in connection
with the safeguarding of a person or property in any manner;
providing a service aimed at ensuring order and safety
on the premises used for sporting, recreational, entertainment or
similar
purposes;
manufacturing, importing, distributing or advertising
of monitoring devices contemplated in section 1 of the Interception
and
Monitoring Prohibition Act, 1992 (Act No. 127 of 1992);
performing the functions of a private investigator;
providing security training or instruction to a
security service provider or prospective security service provider;
installing, servicing or repairing security equipment;
monitoring signals or transmissions from electronic
security equipment;
performing the functions of a locksmith;
making a person or the services of a person available,
whether directly or indirectly, for the rendering of any service
referred
to in paragraphs (
a
) to (
j
) and (
l
),
to another person;
managing, controlling or supervising the rendering of
any of the services referred to in paragraphs (
a
) to (
j
);
creating the impression, in any manner, that one or
more of the services in paragraphs (
a
) to (
l
) are
rendered[.]”
Each service or activity enumerated in the list above on its own
qualifies as a security service. On the text of this definition,
a
person need only engage in one of these services or activities to
be required by the Act to register as a security service
provider.
The locus of the interpretive dispute between the applicants and
the respondents is paragraph (a) of the definition,
which
designates the protection or safeguarding of a person or property
in
any
manner as a security service.
It may be that, based on a purely textual
reading of paragraph (a) of the definition, any act of protecting
or safeguarding
a person or property, rendered in any manner for
remuneration, reward, fee or benefit, would require registration as
a security
service provider. As the applicants argued, the service
may be of a part-time or full-time nature; permanent or temporary;

and continuous or ad hoc. Important for the purposes of this case,
is that the protection or safeguarding may be provided exclusively

or simultaneously with any other service and the remuneration may
be direct or indirect.
When the text of paragraph (a) of the definition is considered in
isolation and interpreted literally, it seems, as the applicants

contend, that section 20(1)(a) applies to
all
workers in
all
industries who in their line of employment simply happen to protect
or safeguard the person or property of others in any particular

circumstance that may arise. This is so irrespective of the
methods used, the nature of the protection rendered or the object

against which protection is provided.
On this interpretation, section 20(1)(a) would bring within the
ambit of the Act people such as childminders, teachers and
doctors
— all of whom may protect or safeguard people and property in one
way or another in the regular course of their work.
They would be
required to register with the Authority and comply with all the
subsequent regulations governing the private
security industry. As
noted by the High Court:
“
On the face of it, [the Act]
could apply to protection carried out through the placement of
scarecrows in a field, pelting baboons
with stones, admonishment of
bullying schoolchildren with words, restraint of demented patients
with straitjackets or medication,
verbal tips from a bookmaker to
gambler.”
32
If the applicants’ contentions were correct, the scope of the Act
would be immensely alarming, and might border on absurdity.
It
would include within its scope almost all persons who exercise
control over people or the property of another. Certainly
one
would struggle to be employed, as it is essential for an employment
relationship that an employee should act in good faith
and be
trusted with the property of an employer. Almost
all
employment would then be prohibited unless an employee were
registered as a security service provider and fulfilled the

requirements of section 23, which include among others, that a
person must be at least 18 years of age, and be a citizen or

permanent resident of South Africa in order to register.
33
Thus, the applicants’ construction of the section would not only
require vast swathes of society to register before they
could be
employed, but would also effectively disbar sizeable communities or
groups of people from most occupations or activities.
That is a
purely literal interpretation of the definition of “security
service” and will render section 20(1)(a) of the
Act overbroad.
As discussed above:
“
[J]udicial officers must
prefer interpretations of legislation that fall within
constitutional bounds over those that do not,
provided that such an
interpretation can be reasonably ascribed to the section.”
34
In line with a purposive approach to statutory interpretation, it
is appropriate to proceed in the manner that this Court has
laid
out in
Hyundai
:
“
It follows that where a
legislative provision is reasonably capable of a meaning that
places it within constitutional bounds,
it should be preserved.
Only if this is not possible should one resort to the remedy of
reading in or notional severance
.
”
35
But, can paragraph
(a) of the definition of “security service” be reasonably
construed in a manner that renders section 20(1)(a)
constitutionally
viable,
in line
with the injunction in section 39(2) of the Constitution
?
36
I find that when the definition is read in light of the purpose of
the Act and its context as a whole, the section attains
a much
narrower meaning than that contended for by the applicants. That
construction which renders section 20(1)(a) consistent
with the
Constitution irresistibly comes to the fore.
Contextual interpretation of section 20(1)(a)
A contextual interpretation of paragraph (a) of the definition of
“security service” is capable of restricting the literal

meaning of section 20(1)(a) without straining the wording of the
provision. The idea is not to read in or sever words or phrases

from the text. That can only occur upon declaration of
invalidity.
37
The text must be interpreted in the context of the Act as a whole,
taking into account whether the preamble and the other
relevant
provisions in the Act support the envisaged construction.
38
When this Court considered relevant provisions of the Act in
Union
of Refugee Women and Others v Director, Private Security Industry
Regulatory Authority and Others
39
it noted the importance of considering those provisions in the
proper context of the Act and stated:
“
The private security industry
is a very particular environment. At stake is the safety and
security of the public at large.
Section 12 of the Constitution
guarantees everyone the right to freedom and security of the
person, which includes the right
to be free from all forms of
violence from either public or private sources. In a society
marred by violent crime, the importance
of protecting this right
cannot be overstated.”
40
This is equally important to the determination of whether section
20(1)(a) can be interpreted in a manner that is consistent
with the
Constitution.
The private security industry in South Africa is large and
powerful. Although it is not a substitute for state security

services, it plays a vital role in complementing those services.
According to the Authority, the industry “consists of more
than
310 000 active individual security service providers and
approximately 5000 active security businesses” and grows at
a
rate of between 12 to 15% each year. Its members “by far
outnumber the combined number of members of the South African

Police Service and the National Defence Force”.
The sheer size of the private security
industry, as well as the coercive power it wields during the
regular conduct of its business,
underscore the need for regulation
and adherence to appropriate standards. Close control and
management of this massive industry
is imperative. This ensures a
sound balance between complying with the rule of law on the one
hand, and exercising their coercive
power in protecting the safety
and security rights of the public, as well as those of members of
the private security industry
itself on the other. As
Maya
JA observed in
Private Security
Industry Regulatory Authority and
Another v Anglo Platinum Management Services
Ltd and Others
:
“
It is so
that there is a legitimate and compelling public interest in the
control of the large and enormously powerful private
security
industry.
This is to ensure, for
example, that security officers have no links to criminal
activities, are properly trained and are subject
to proper
disciplinary and regulatory standards and avoid any abuses which
might be perpetrated by security officers against
the vulnerable
public. There is therefore a compelling need for vigilance on the
[Private Security Industry Regulatory] Authority’s
part to ensure
that the objects of the Act are not undermined.”
41
(Footnotes omitted.)
In
Private Security Industry Regulatory
Authority and Another v Association of Independent Contractors and
Another
42
Howie P provided a crisp and illuminating account of the background
to the Act:
“
[The Act’s] forerunner was
the Security Officers Act of 1987. It was aimed at regulating
security officers who were employees
of the person or entity that
made their services available. It did not deal with security
officers who stood to the provider
in an independent contractor
relationship. Attempts to evade the provisions of that Act centred
on using security officers
who were independent contractors. In
that way minimum wage legislation and other material statutory
provisions could be avoided
by the entities that made the security
officers available. The disadvantages to the latter, or at least
the potential disadvantages,
are obvious.
The Act has the object of
overcoming that problem. Its ambit is very much wider than that of
its predecessor. It uses provisions
and particularly definitions
which substantially extend its scope and operation.”
43
Under the repealed legislation individuals and
businesses could operate by taking advantage of loopholes in the
Security Officers
Act
44
avoiding registration and regulation which required adherence to
minimum standards, including minimum wages, absent in that

legislation. It is not surprising that the legislature deemed fit
to broaden the ambit of the Act to avoid this type of evasion.
A
contextual reading of the Act as a whole, therefore, makes clear
that its reach does not extend to cover the likes of childminders

and teachers in their respective capacities of safeguarding their
wards, but instead confines itself to protection from the
sort of
criminal activity that has fuelled the expansion of the private
security industry itself.
The need for private security services arises
at once from the pervasive crime that targets people and property,
and the necessity
to enhance state security services. Private
security services, which by their very nature impose upon others,
bear the duty
of providing safety and protection from criminal
threats and actions and responding to those threats and actions.
It must
be borne in mind that, by its very nature, a service is not
a once-off action taken out of necessity, for example, but instead

connotes an element of repeated performance of a duty, however
frequent or infrequent.
That duty is therefore not incidental to the role of a security
service provider. It lies at its core. Given the context
of the
Act and its express objective of regulating the private security
industry, the plain meaning of a security service cannot
extend to
a security activity that is merely a by-product or once-off
incident of the core activity. Teachers, nurses and
shop tellers
might all, in the regular course of their duties, protect people
and property. But that protection is merely
incidental to those
duties. Conversely, a security service provider will direct his or
her attention and expertise towards
the security duties with which
he or she has been specifically tasked for some form of
remuneration at that time.
That interpretation is supported by the preamble of the Act which
reads:
“
WHEREAS the adequate
protection of fundamental rights to life and security of the person
as well as the right not to be deprived
of property, is fundamental
to the well-being and to the social and economic development of
every person;
AND WHEREAS security service
providers and the private security industry in general play an
important role in protecting and
safeguarding the aforesaid rights;
AND WHEREAS it is necessary to
achieve and maintain a trustworthy and legitimate private security
industry which acts in terms
of the principles contained in the
Constitution and other applicable law, and is capable of ensuring
that there is greater
safety and security in the country[.]”
The preamble reflects that a fundamental purpose
of the Act is to achieve and maintain a trustworthy and legitimate
private
security industry, in order to ensure that there is greater
safety and security in the country.
A “security service”, defined as the protection or safeguarding
of a person or property in any manner, must be interpreted
to mean
the protection or safeguarding of persons or property from unlawful
physical harm, including injury, physical damage,
theft, or
kidnapping caused by another person. This must be so because the
security of person and property is central to what
the Act aims to
protect. It regulates private security service providers in
significant part to ensure that the rights of
those they come into
contact with during the course of their operations are protected
against the unlawful conduct of others.
As the High Court found,
the Act is not intended to regulate the response to hazards from
nature or harm from animals for
the following reasons:
“
Rights exist in relation to
actors who are themselves capable of appreciating the existence and
ambit of such rights and acting
in accordance therewith. Rights
are affirmed against other holders of rights and obligations.
Rights cannot be affirmed against
the forces of nature or wild
animals. . . . The Private Security Act regulates the industry
which developed in order to protect
and safeguard rights of actors
against other actors. The ‘safety and security’ of which the
Preamble speaks can only be
in the context of controllable human
behaviour.”
45
People like childminders and teachers might engage in some form of
protection or safeguarding of their wards and learners
respectively, but that protection is not aimed against the kinds of
dangers to which the private security industry is placed
to
respond. It is not, for example, at the core of the childminder’s
duty in the ordinary terms of her or his employment,
to fight off
armed attackers who break into a home and attack his or her ward.
The protective responses ordinarily required
of a childminder or a
teacher will be limited. It could hardly be required that he or
she provide protection or take action
against unlawful acts against
persons or property over whom or which he or she has charge. This
would instead be the duty
of a bodyguard or other security
professional, who would properly be required to register with the
Authority in terms of section
20(1)(a) of the Act.
The long title
46
of the Act identifies its objective as follows:
“
To provide for the regulation
of the private security industry; for that purpose to establish a
regulatory authority; and to
provide for matters connected
therewith.”
Thus paragraph (a) of the definition of security
service must be interpreted restrictively and within its
appropriate context.
“Protecting” and “safeguarding” must
be understood within the context of the dangers sought to be
combated by the
private security industry.
It is an accepted canon of statutory
interpretation that terms with a wide meaning may be restricted by
terms with a narrower
meaning with which they are connected.
47
Indeed paragraphs (b) to (m) of the definition of security
services
48
support the restrictive interpretation advanced in this judgment.
49
These paragraphs list aspects which have far more restrictive
connotations of security services. They include “providing
a
reactive or response service”, “performing the functions of a
private investigator”, and “monitoring signals or transmission

from electronic security equipment”. These terms relate to
special performances by security protection services, none of
which
are ordinarily associated with services provided by, for example,
nurses, childminders or teachers.
It is unlikely that the Legislature intended
to juxtapose terms which, according to the applicants, have such a
vast scope,
with terms that are as narrow as those in paragraphs
(b) to (m). It is far more likely that the wide terminology of
paragraph
(a) placed at the beginning of the definition of security
services is intended to be a “catch-all” provision. It is
intended
to prevent activities from slipping through the gaps of
the other more specific and restrictive provisions of the Act.
In statutory interpretation, it is
important that Courts strike an appropriate
balance
between the text and its context. Indeed, if one has regard to the
nature and role of the private security industry,
and to the stated
objectives of the Act, section 20(1)(a) is open to an
interpretation that promotes the spirit, purport and
objects of the
Bill of Rights.
50
That reading favours a common-sense meaning, discernable from the
context of section 1(b) to (m) and the Act as a whole.
Therefore,
only those whose duty it is to protect against the dangers with
which the private security industry concerns itself
– criminal
acts against persons or property – are security service providers
who provide security services and must be
regulated under the Act.
That interpretation is not unduly strained and gives effect to the
purpose of the Act.
An important concern raised by the applicants is that, particularly
where a criminal penalty is imposed for the violation of
a
statutory provision, it is critical that the scope of the provision
be clear so that those bound by it understand what their
rights and
obligations are. That is indeed an important rule of law concern.
However, as Ngcobo J held in
Affordable Medicines Trust and
Others v Minister of Health and
Another
:
51
“
The doctrine of vagueness is
founded on the rule of law, which, as pointed out earlier, is a
foundational value of our constitutional
democracy. It requires
that laws must be written in a clear and accessible manner. What
is required is reasonable certainty
and not perfect lucidity. The
doctrine of vagueness does not require absolute certainty of laws.
The law must indicate with
reasonable certainty to those who are
bound by it what is required of them so that they may regulate
their conduct accordingly.”
52
(Footnotes omitted.)
Read in the context of the Act as a whole and in the context of the
nature and role of the private security industry, as this
judgment
shows, the Act binds those who provide protective services against
unlawful injury or theft of persons or property
and requires them
to register as security service providers and be regulated by the
Act.
Are the applicants’ employees required to register under the
Act?
The applicants submitted that in the face of recurring crime such
as theft of motor vehicles, equipment and cash, they sought
to
remedy the problem by employing members of their general force of
farm workers “specifically to enhance security.”
They do so by
requiring farm workers to perform specific security duties, and
within the companies these farm workers are known
as security
guards. They perform duties such as controlling the access booms
and patrolling the applicant’s premises, and
the first
applicant’s security guards wear uniforms that identify them as
such. They do not carry weapons and the SAPS are
regularly
contacted in cases of emergency.
Considering the large numbers of people and
vast property they protect, these individuals effectively perform
services which
would otherwise be provided by an externally
contracted security service provider, who would be required to
register under
the Act. Although they do not carry weapons, they
are the first line of defence in the event of a security breach and
face
the same dangers as their counterparts in the general private
security industry. It is in my view, therefore, imperative that

they are appropriately trained and skilled, empowering them to
perform their duties in terms of the set norms and standards.
As a
result, these individuals must be brought within the ambit of the
Act.
The High Court concluded that on the facts before it, it was unable
to determine which individual employees were or were not
security
service providers. Similarly, this Court lacks the necessary
details to make that determination on a case-by-case
basis.
However, based on the reasoning in this
judgment and the adopted interpretation of “security services”,
I conclude that
farm workers who are used by their employers to
provide private security services for remuneration, reward, fee or
benefit,
are security service providers.
53
They must, therefore, register accordingly in terms of section
20(1)(a) of the Act. Simply stated, absent registration, farm

workers may not be used as security guards by their employers.
The provisions of the Act themselves might not provide absolute
clarity, in that there may be cases on the margins where it
may not
immediately be determined whether or not registration is required
under the Act. That, however, is the inevitability
of broadly
stated legislation. The Act is a regulatory statute aimed at
bringing about the necessary order and regulation
of a powerful
safety and security industry. As shown above, the previous statute
fell foul of the creativity of evaders who
relied on its technical
loopholes to escape regulation.
54
The element of generality and the relative breadth of the current
provisions may indeed be necessary for the state to bring
about
effective regulation so as to combat the social concerns discussed
above. As was held in
R v Nova Scotia Pharmaceutical Society
:
55
“
Indeed . . . laws that are
framed in general terms may be better suited to the achievement of
their objectives, inasmuch as
in fields governed by public policy
circumstances may vary widely in time and from one case to the
other. A very detailed
enactment would not provide the required
flexibility, and it might furthermore obscure its purposes behind a
veil of detailed
provisions. The modern state intervenes today in
fields where some generality in the enactments is inevitable. The
substance
of these enactments remains nonetheless intelligible.
One must be wary of using the doctrine of vagueness to prevent or
impede
state action in furtherance of valid social objectives, by
requiring the law to achieve a degree of precision to which the

subject-matter does not lend itself. A delicate balance must be
maintained between societal interests and individual rights.
A
measure of generality also sometimes allows for greater respect for
fundamental rights, since circumstances that would not
justify the
invalidation of a more precise enactment may be accommodated
through the application of a more general one.”
56
(Footnotes omitted.)
Paragraph (a) of the definition of security services and section
20(1)(a) can indeed be read to afford reasonable clarity of

meaning. The flexibility of these provisions, based on their
generality, does not render them unconstitutionally vague. For
the
reasons stated in this judgment, section 20(1)(a) is therefore
neither overbroad nor vague. In that regard, I agree with
the
conclusion of the High Court that section 20(1)(a) is not
unconstitutional. It is therefore not invalid. In the result,
the
appeal must fail.
The section 28 issue
Section 28(2) of the Act provides:
“
The code of conduct is legally
binding on all security service providers, irrespective of whether
they are registered with the
Authority or not and, to the extent
provided for in this Act, on every person using his or her own
employees to protect or
safeguard merely his or her own property or
other interests, or persons or property on his or her premises or
under his or
her control.”
Section 28(3)(b) of the Act provides:
“
The code of conduct must
contain rules—
to ensure the payment of minimum wages and compliance
with standards aimed at preventing exploitation or abuse of
employees
in the private security industry, including employees
used to protect or safeguard merely the employer’s own property
or
other interests, or persons or property on the premises of, or
under the control of the employer.”
The High Court declared unconstitutional and
struck out parts of sections 28(2) and 28(3)(b) which extend the
binding ambit
of the Code to include employers of in-house
security. It is this issue which has been referred to this Court
for confirmation.
57
Further, the question of whether or not the
High Court was correct in holding that in-house security personnel
are not members
of the private security services industry for the
purposes of the Code and are therefore not bound by it, is also
before us
on appeal. The court distinguished between security
service providers, whom it held were part of the private security
services
industry, and in-house security personnel, who are
employees used by their employers to protect their interests on
their own
premises, including people and property under the
employer’s control. The applicants’ employees belong to the
latter category.
The High Court decision, based on that distinction, is supported by
the applicants. They also contend that sections 28(2)
and 28(3)(b)
are inconsistent with the Constitution in that these provisions are
not rationally related to any legitimate government
purpose. The
provisions, they aver, are too wide and vague for employers to know
what tasks they can entrust to their employees.
The respondents, basing their argument on the
broad definition of a security service provider in the Act, contend
that the High
Court erred in its construction of the provisions.
They submit that in-house security personnel are security service
providers.
Their approach is that section 28 does not distinguish
between regular security service providers and in-house security as

the High Court did. Instead the section merely includes
employers
of in-house security who would otherwise not be covered by the
Act, except for the limited purpose of preventing the exploitation

of in-house security employees in the manner described in section
28(3)(b).
In determining whether or not the Code applies
to in-house security, the first question is whether or not farm
workers used
by their employers specifically to protect or
safeguard their property, or people on their premises or under
their control,
are security service providers under the Act. In
particular, it is questioned whether the High Court was correct in
finding
that in-house security personnel are not part of the
private security industry for purposes of the Code and therefore
not security
service providers as defined by the Act. The second
question is whether or not there is a rational connection between a
legitimate
objective of the Act and the inclusion of employers of
in-house security within the ambit of the Code.
The High Court found that the impugned
provisions of section 28 expand the ambit of the Act to include
in-house security personnel,
who are not security service
providers. That expansion, the court held, has no rational
connection with a legitimate government
purpose. The court also
found that nothing in the Act indicates that it was ever the
intention of the Minister for Safety
and Security or the Authority
to regulate employers or employees operating outside of the private
security industry.
Are in-house security personnel part of the
private security industry?
Section 28(2) makes the Code legally binding on all security
service providers. Under section 28(3)(b), and according to the

definitions of “security service” and “security service
provider” in section 1, the Act recognises in-house security
as
part of the security services industry. As first and fifth
respondents contend, the word “including” in section 28(3)(b)

does not expand the meaning of “employees in the private security
industry”, nor does it draw a distinction between the
private
security industry and in-house security in other industries.
Section 28(3)(b) merely makes clear that in-house security

personnel are included in the private security industry, to which
section 28(3)(b) applies. The Code is therefore legally
binding on
those who operate in-house security services in any other industry,
including, as in this case, the farming industry.
Section 1 of the Act defines “private security industry” as the
industry conducted by security service providers. Security
service
providers are in turn defined as persons who render a security
service for remuneration, a reward, fee or benefit.
58
This returns us to the definition of “security service”
discussed in detail above.
59
Although in-house security personnel may be primarily employed in
services other than security services, they provide the
security
services in the particular operation, whether on a part-time or
full-time basis. They provide their services as part
of their
employment and are remunerated, directly or indirectly. As pointed
out earlier, in-house security is used in place
of external private
security service providers and serves the same purpose.
60
As shown above, once employees are used by their employers to
provide private security services on their premises, and they
are
remunerated, they are required to register as security service
providers under section 20(1)(a) of the Act, regardless
of whether
they are remunerated directly or indirectly or employed on a
full-time or part-time basis. As with any other private
security
service provider, their services are covered by the definition of
“security service” in section 1(a) of the Act,
making them part
of the private security services industry.
Having concluded that in-house security employees are part of the
private security industry, it follows that section 28(2)
of the Act
is applicable to them, bringing them within the ambit of the Code.
An important purpose of the Act is that private security services,
including in-house security, act in terms of the relevant
law and
norms and standards in the Code.
61
Whether they carry arms or not, private security service providers
exercise coercive power, authority and control. To ensure
that the
public is safeguarded against undue exercise of authority and abuse
of power, it is important that the private security
industry be
regulated and subjected to the discipline and standards of the
Code. As security service providers, in-house security
personnel
are no different. They too exercise authority, control and
coercive power. The need for scrutiny invariably arises
to ensure
that in-house security personnel observe the law and act in a
manner consistent with related rights. Against the
backdrop
sketched above, it is necessary and therefore reasonable that
in-house security personnel be subject to the Code.
In that
regard, the ambit of the Code is not too wide and the inclusion of
in-house security for regulation has a rational
connection with the
legitimate purpose of the Act.
To what extent are employers of in-house security personnel
bound by the Code?
The text of section 28(2) is explicit. It makes the Code binding
on employers of in-house security personnel to the extent
provided
in the Act. Section 28(3)(b) compels the Minister to include in
the Code rules that ensure compliance with standards
aimed at
preventing exploitation and abuse of employees and payment of a
minimum wage.
In section 33 of the Act provision is made for “the inspection of
the affairs of any . . . person who employs a security
officer”.
62
I find that in-house security personnel, based on the security
services they perform, are security officers in terms of section

1(a)(i) of the Act.
63
It follows that employers of in-house security personnel are also
subject to inspection under the Act and, for reasons which
follow,
that inclusion is reasonable.
Although the working conditions of farm workers have transformed
progressively in recent years,
64
pockets of concern persist. The Minister of Labour has observed
that “[f]arm workers are isolated and often at the mercy
of their
employers” and that “on some farms conditions are still those
of our lamentable past where workers are subjected
to appalling
wages and enjoy no rights”.
65
The South African Human Rights Commission (SAHRC) reports
that:
“
[Farm workers] are not only in
an employment relationship with the farmer. Instead they live in .
. . a community in which
the farmer has extensive control over
virtually every aspect of the farm worker’s life.”
66
It also reports that:
“
The power of farm owners
extends to ownership of land, employment and access to economic and
social needs. Farm [workers] are
dependent on employers for
employment and tenure security, and in some cases, for their basic
economic and social rights. This
pervades all aspects of [their
lives], resulting in gross power imbalances between [the employer
and farm worker.]”
67
The payment of a minimum wage and the prohibition on the
exploitation of workers are integral to the right to fair labour
practices guaranteed and protected in the Constitution.
68
This right is also regulated by the relevant laws, including
labour legislation.
69
However, in view of their general isolation from the rest of the
private security industry and the general absence of organised

labour protections in the context of their general social
conditions described above,
70
farm workers who are employed as in-house security are particularly
vulnerable to exploitation.
71
Including their employers within the purview of the Code is
reasonable, if not necessary.
Unlike their counterparts in the general private security industry,
in-house security might not possess the force of great
numbers to
organise powerful labour formations. Generally, they lack the
clout to advocate effectively for their rights in
the context of
existing labour laws. Bringing employers of in-house security
personnel into the fold of the inspection imperatives
of the Code
serves to prevent the exploitation and abuse of their employees.
72
The legislature consciously took these steps to provide in-house
security officers whose lives are constantly at risk in the
course
of their work, with the necessary protections. A requirement that
employers of in-house security subscribe to a code
which gives
effect to the protection of fair labour rights practices for the
benefit of vulnerable workers is clearly a reasonable
one. So too
is the inspection of the affairs of employers of in-house security.
Through the binding operation of the Code,
the state therefore has
a legitimate interest in ensuring that employers of in-house
security personnel abide by the law in
general and the Act in
particular.
For the above reasons, the application of
section 28 to employers of in-house security, to the extent shown
in this judgment,
is not in conflict with the Constitution, nor is
it invalid. In the result, the order of unconstitutionality of
section 28(2)
and section 28(3)(b) by the High Court is not
confirmed.
Are the applicants’ in-house security guards
entitled to the minimum wages applicable to the Private Security
Industry?
Section 28(3)(b) of the Act provides that the Code must contain
rules to ensure the payment of minimum wages in the private

security industry. Section 23(f) of the Code provides :
“
An employer of in-house
security officers –
must, in respect of all employees used, permitted
or directed to render a security service as contemplated in
paragraph
(a), comply with the relevant provisions of the Levies
Act as well as all applicable laws and measures promulgated in
terms
of law regarding minimum wages and standards aimed at
preventing exploitation or abuse of employees in the private
security
industry.”
Farm workers who are used by their employers as
security guards are, for purposes of the Act, security officers who
provide
security services. They are part of the private security
services industry, as shown in this judgment. In terms of section
23(f) of the Code their employers are therefore included within the
binding ambit of the minimum wages provisions.
Section 28(3)(b) provides that the Code must contain rules to
ensure the payment of minimum wages, among others, aimed at
preventing exploitation or abuse of employees in the private
security industry, including employees used to protect or safeguard

merely the employer’s own property or other interests, or persons
or property on the premises of, or under control of the
employer.
So far, employers of in-house security
personnel are bound by the rules envisaged under section 28(3)(b).
Section 28(3)(b) makes provision for an important consideration: a
minimum wage for security officers operating in the private

security industry, including in-house security. The need for this
protection arises in the context of the working conditions
of farm
workers which tend to render them particularly vulnerable.
73
It is imperative therefore that, for purposes of ensuring the
minimum wage, in-house security personnel and their employers
are
bound by the Code.
Ultra vires
A concern that arose during oral argument is whether the Code
itself might be
ultra vires
. In particular, the question
raised was whether, by requiring employers to ensure the proper
registration and training of
their employees, the Code goes beyond
its powers. The
ultra vires
issue was not dealt with on the
papers, nor was it sufficiently argued or canvassed before this
Court. It is therefore best
left for another day and is not
decided in this judgment.
Costs
The respondents seek costs if they are successful. Counsel,
however, conceded that the questions raised by this matter are
in
the public interest. The respondents nonetheless aver that the
charges against the applicants had been withdrawn earlier,
so that
they need not have instituted these proceedings. Counsel also
submit that the fifth respondent only became involved
much later in
the proceedings and should not be targeted in a costs order based
on wrongful arrests.
On the contrary, the issue of the applicants’ arrests led by the
fourth respondent, is a cause for concern.
74
I have outlined the fourth respondent’s deplorable conduct
earlier in this judgment.
75
This sort of conduct is reminiscent of the abuse of power and
police harassment of people and communities which were rife in
our
past. In a constitutional democracy, based on the values of
equality, human dignity and freedom, the harassment to which
the
applicants were subjected was most regrettable. In public service
where policing must have regard to the values of ubuntu,
76
the conduct of the police was indeed disappointing, and, frankly
sanctionable.
Although the applicants have not been successful, costs should not
be ordered against them. They have raised an important

constitutional issue which required to be resolved in the public
interest. The respondents conceded as much. Besides, the
question
regarding the constitutionality of sections 28(2) and 28(3)(b) of
the Act was already before this Court for confirmation.
In the result, there is no order as to costs.
Because we come to a different conclusion than that of the High
Court, the costs order there must be set aside.
Order
In the result, the following order is made:
The applications for condonation are
granted.
The applicants’ application for leave to appeal against the
decision of the North Gauteng High Court in respect of section

20(1)(a) of the Private Security Industry Regulation Act 56 of
2001 is granted.
The applicants’ appeal against the decision of the North
Gauteng High Court in respect of section 20(1)(a) of the Private

Security Industry Regulation Act 56 of 2001 is dismissed.
The respondents’ application for leave to appeal against the
order of constitutional invalidity and costs order by the
North
Gauteng High Court in respect of sections 28(2) and 28(3)(b) of
the Private Security Industry Regulation Act 56 of
2001 is
granted.
The respondents’ appeal against the order of constitutional
invalidity and costs order by the North Gauteng High Court
in
respect of sections 28(2) and 28(3)(b) of the Private Security
Industry Regulation Act 56 of 2001, is upheld.
The order of the North Gauteng High Court, declaring portions of
section 28(2) and section 28(3)(b) of the Private Security

Industry Regulation Act 56 of 2001 to be unconstitutional and
invalid, is not confirmed and is set aside.
The costs order in the North Gauteng High Court is set aside.
There is no order as to costs in the North Gauteng High Court.
There is no order as to costs in this Court.
Langa CJ, Moseneke DCJ, Ngcobo J, Sachs J, Skweyiya J, Van der
Westhuizen J and Yacoob J concur in the judgment of Mokgoro J.
O’REGAN J:
Unfortunately I cannot agree with the
conclusion that my colleague, Mokgoro J, reaches in relation to the
constitutionality
of section 20(1)(a) of the Private Security
Industry Regulation Act 56 of 2001 (the Act). In my view, section
20(1)(a) is
not consistent with the Constitution because it is
impermissibly vague. I do agree with Mokgoro J that section 28(2)
and section
28(3)(b) of the Act are not inconsistent with the
Constitution, but I do so on a somewhat different basis. My
reasons for
these conclusions are set out in this judgment.
I commence by confirming that I agree with Mokgoro J that the
private security industry should be properly regulated by

government. As Mokgoro J points out in her judgment,
1
it is a growing industry employing large numbers of people, many of
whom are armed. Nothing I say in this judgment should
be
understood to detract from this principle.
It will also be helpful to note at the outset that the private
security industry is an industry comprising companies which
– as
the name of the industry suggests – exists to provide personal
and property protection
2
to others for reward. It is called “private” security
primarily to distinguish it from the security provided by the

security services of the state.
3
The industry comprises employers whose primary function is to
provide security services for reward. There are, however, many

employers who employ their own “in-house” security guards.
This case, by and large, is about the manner in which the Act

regulates in-house security guards and their employers, if at all.
The simple difference between Mokgoro J and me turns on the
question whether section 20(1)(a) can, in its context, be construed

to provide a meaning that is not vague while remaining true to the
wording of the section. Section 20(1)(a) provides:
“
No person, except a Security
Service contemplated in section 199 of the Constitution . . . 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.”
4
“Security service provider” is in turn defined as:
“
a person who renders a
security service to another for a remuneration, reward, fee or
benefit and includes such a person who
is not registered as
required in terms of this Act”.
5
“Security service” is defined in section 1 of the Act as
follows:
“‘
security service’ means
one or more of the following services or activities:
protecting or safeguarding a
person or property in any manner;
giving advice on the protection or safeguarding of a
person or property, on any other type of security service as
defined in
this section, or on the use of security equipment;
providing a reactive or response service in connection
with the safeguarding of a person or property in any manner;
providing a service aimed at ensuring order and safety
on the premises used for sporting, recreational, entertainment or
similar
purposes;
manufacturing, importing, distributing or advertising
of monitoring devices contemplated in section 1 of the Interception
and
Monitoring Prohibition Act, 1992 (Act No. 127 of 1992);
performing the functions of a private investigator;
providing security training or instruction to a
security service provider or prospective security service provider;
installing, servicing or repairing security equipment;
monitoring signals or transmissions from electronic
security equipment;
performing the function of a locksmith;
making a person or the services of a person available,
whether directly or indirectly, for the rendering of any service
referred
to in paragraphs (
a
) to (
j
) and (
l
)
,
to another person;
managing, controlling or supervising the rendering of
any of the services referred to in paragraphs (
a
) to (
j
);
creating the impression, in any manner, that one or
more of the services in paragraphs (
a
) to (
l
) are
rendered”.
The difficulty arises from paragraph (a) of the definition which
states that a security service means “protecting or safeguarding

a person or property in any manner”. The phrase “in any
manner” is of broad import, sweeping within it a range of conduct

not ordinarily construed to be the provision of a security service.
As was pointed out in argument, it could include the work
of a
shepherd or cowherd who watches over sheep or cattle; or the task
of a childminder who cares for a child or a self-employed
car guard
in an urban street. The work of all these occupations is primarily
concerned with the protection or safeguarding
of persons or
property. Giving the provision its ordinary meaning would
therefore produce an absurd result. All those engaged
in any
manner with safeguarding people or property would have to register
as security service providers and comply with the
obligations
imposed by the Act. It is, I think, indisputable that the
Legislature did not intend such a result. The question
then is
whether paragraph (a) of the definition of “security service”
can be given a narrower meaning consistent with the
legislation as
a whole.
Mindful of the need to interpret the legislation in a purposive and
narrow manner, Satchwell J in the High Court held that
paragraph
(a) could be read down so that it applies only to those “engaged
in the
occupation
of security service provider within the
private security
industry
” (her emphasis).
6
For the majority in this Court, Mokgoro J also adopts a narrow but
different reading of paragraph (a). After a consideration
of the
context of the Act, she concludes that paragraph (a) should be read
to mean—
“
the protection or safeguarding
of persons or property from unlawful physical harm, including
injury, physical damage, theft,
or kidnapping caused by any other
person. This must be so because the security of person and
property is central to what the
Act aims to protect. . . . [T]he
Act is not intended to regulate the response to hazards from nature
or harm from animals”.
7
I find both readings hard to align with the text of paragraph (a)
which states explicitly that a security service means the

protecting or safeguarding of property or persons
in any manner
.
The interpretation of Mokgoro J requires us to read paragraph (a)
as if it stated “protecting or safeguarding a person
or property
from unlawful physical harm”. And the interpretation of
Satchwell J requires us to read paragraph (a) as if
it read
“protecting or safeguarding a person or property, but only while
engaged in the occupation
of security service provider
within the private security industry”
.
It cannot be said
that either interpretation is the ordinary, or indeed reasonable,
construction of paragraph (a). The words
“in any manner”
import breadth and do not suggest a narrow, purposive meaning such
as those attributed to them (albeit
differently) by Mokgoro J and
Satchwell J.
This Court has repeatedly held that statutes must be construed
contextually and, given section 39(2) of the Constitution,
8
where possible, consistently with the Constitution. In
Hyundai
,
the Court described the proper approach as follows:
“
[J]udicial officers must
prefer interpretations of legislation that fall within
constitutional bounds over those that do not,
provided that such an
interpretation can reasonably be ascribed to the section.”
9
A court may thus avoid unconstitutionality by
ascribing a constitutionally compliant meaning to legislation, as
long as that
meaning can reasonably be ascribed to the provision;
that is, the interpretation must not be “unduly strained.”
10
Is section 20(1)(a) of the Act, read with the
definition of “security service”, capable of a clear meaning
without undue
strain to its text? We need to start with the
relevant text. The language of paragraph (a) of the definition of
“security
service” is broad. Within the provision itself,
there is no clear indication of a narrower purpose. Yet its
ordinary meaning
is so broad as to render an absurd result, as
mentioned above.
Next we need to look at the context in which the provision appears
in order to see if a narrower purpose might be found. In
my view,
an overall reading of the Act does not provide a clear answer as to
how to narrow the textually sweeping terms of
paragraph (a). Both
Mokgoro J and Satchwell J sought a narrower purpose for paragraph
(a) in this statutory context. This
contextual analysis must start
by considering the Preamble to the Act which provides:
“
WHEREAS the adequate
protection of fundamental rights to life and security of the person
as well as the right not to be deprived
of property, is fundamental
to the well-being and to the social and economic development of
every person;
AND WHEREAS security service
providers and the private security industry in general play an
important role in protecting and
safeguarding the aforesaid rights;
AND WHEREAS every citizen has the
right to freely choose an occupation, including the occupation of
security service provider;
AND WHEREAS it is necessary to
achieve and maintain a trustworthy and legitimate private security
industry which acts in terms
of the principles contained in the
Constitution and other applicable law, and is capable of ensuring
that there is greater
safety and security in the country;
BE IT ENACTED THEREFORE, by the
Parliament of the Republic of South Africa, as follows”.
The Preamble makes clear that Parliament’s purpose is to ensure
that the private security industry is “trustworthy and

legitimate” to ensure greater safety and security in the country.
Indeed, the primary purpose of the Act is to regulate
the private
security industry. The title of the Act (the Private Security
Industry Regulation Act) suggests this. So does
the long title
(“To provide for the regulation of the private security industry;
for that purpose to establish a regulatory
authority; and to
provide for matters connected therewith”). And the establishment
of the Private Security Industry Regulatory
Authority in Chapter 2
of the Act
11
further identifies this purpose. Section 3 stipulates that the
primary objects of the Authority are—
“
to regulate the private
security industry and to exercise effective control over the
practice of the occupation of security
service provider in the
public and national interest and the interest of the private
security industry itself”.
It is quite plain that all employees within the private security
industry who perform the tasks listed in the definition of

“security service” will be security service providers as
defined; and are therefore required to register in terms of section

20(1)(a) of the Act. The broad ambit of paragraph (a) admits no
confusion in relation to employees within the private security

industry, which no doubt was the contextual basis for Satchwell J’s
narrow reading of paragraph (a) to limit it only to employees
in
the private security industry.
But the approach of Satchwell J cannot be right because, although
the primary purpose of the Act is to regulate the private
security
industry, it is clear from some of the other provisions of the Act
that the regulatory effect of the Act is not limited
to the private
security industry. Section 28(2), for example (a provision to
which I shall turn later in this judgment), stipulates
that the
code of conduct which the Minister for Safety and Security may
prescribe is binding on all “security service providers”
and,
“to the extent provided for in this Act, on every person using
his or her own employees to protect or safeguard his
or her own
property or other interests”.
Moreover, section 33 provides that inspectors may inspect the
premises of any “security service provider” or of “any
other
person who employs a security officer”. These provisions make
plain that the purpose of the Act is to reach beyond
the private
security industry to employers who employ security service
providers even when the business of those employers
does not fall
within the private security industry.
12
Given that the Act seeks to regulate beyond the confines of the
private security industry, I cannot agree with Satchwell J
that the
context of the Act makes it appropriate to read paragraph (a)
narrowly to affect only security service providers within
the
private security industry.
Mokgoro J, on the other hand, adopts a narrow meaning of paragraph
(a) to mean, in effect, “protecting or safeguarding a
person or
property from unlawful physical harm”. I have two difficulties
with the interpretation adopted by Mokgoro J.
The first is that it
is not a meaning suggested anywhere in the Act. The Preamble
speaks only of regulating the private security
industry, as do both
the title and the long title of the Act. Nowhere does the Act
state that it intends to regulate those
outside of the private
security industry to the extent that they are “safeguarding or
protecting people from unlawful physical
harm”. Indeed, the only
provisions of the Act which suggest that it seeks to go beyond
regulating the private security industry
are to be found in section
28(2) and section 33 (to which I have already referred). These
sections do not suggest that the
purpose of the Act is the
comprehensive regulation of those providing protection from
unlawful physical harm outside the private
security industry. My
second difficulty with the formulation proposed by Mokgoro J is
that on its own terms, it is not clear.
It might be very difficult
to identify those people that are protecting property or people
from “unlawful physical harm”
and those that are protecting
property or people from other dangers. It is also not clear what
“physical” harm denotes
in the context of property as opposed
to persons.
It is clear that the purpose of the Act is to spread the net wide
in relation to the private security industry. As Howie P
concluded
in
Private Security Industry Regulatory Authority and Others v
Association of Independent Contractors and Another
:
“
The Act has been framed
broadly with the specific intention to encompass all circumstances
in which private security services
are rendered.”
13
That case was concerned with the question whether
an association, which had as its members independent contractors
who rendered
private security services, was itself a security
service provider within the meaning of the Act. The Court
concluded that
this was put beyond doubt by the broad definition of
“security officer”.
14
The Court concluded that the association assisted its members to
provide security services, received remuneration from them
for so
doing and therefore constituted a security service provider itself.
What is clear from the reasoning of the Court is
that the
legislative intention was to spread the net wide to include all
those engaged in the private security industry. But
it is not
clear just how this wide application should affect those who are
employed as in-house security guards.
The rule of law, a founding value of our
Constitution,
15
requires that the law be formulated in a clear and accessible
manner.
16
A law that is vague will not constitute “law” as contemplated
by the Constitution. Specifically, it should be added that
a vague
law will not constitute a law as contemplated by section 36 of the
Constitution.
17
Section 20(1)(a) of the Act contains a criminal prohibition. Any
person who performs a security service without being registered
is
guilty of an offence.
18
A first offence will render a person liable to a fine or to
imprisonment for not more than five years and a second offence
to a
fine or to imprisonment not exceeding ten years.
19
When we are considering criminal prohibitions, there is all the
more need for reasonable clarity.
Intelligible criminal prohibitions make it possible both for
citizens and law enforcement officers to identify with reasonable

certainty what conduct is prohibited.
20
Where a criminal standard is vague or uncertain, citizens will not
know what they should do to avoid criminal prosecution;
and law
enforcement officers will be given too much discretion to determine
who to prosecute. The risk is that a wide range
of conduct will
potentially fall within the criminal prohibition, and it will be
left to law enforcement officers to determine
who should be
prosecuted. Such a result is undesirable, as Marshall J cogently
reasoned in
Grayned v City of Rockford
:
“
It is a basic principle of due
process that an enactment is void for vagueness if its prohibitions
are not clearly defined.
Vague laws offend several important
values. First, because we assume that man is free to steer between
lawful and unlawful
conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited,
so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second, if arbitrary
and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A vague law

impermissibly delegates basic policy matters to policemen, judges
and juries for resolution on an ad hoc
basis, with the
attendant dangers of arbitrary and discriminatory application.”
21
Such a situation violates “the precept that
individuals should be governed by the rule of law, not the rule of
persons”.
22
Of course, “[w]hat is required is reasonable certainty and not
perfect lucidity.”
23
Language is often imprecise and in many cases it will not be
possible to draw with complete certainty the boundaries of a

legislative prohibition. Setting the test as one of “reasonable
certainty” accepts that some imprecision is unavoidable.
It
recognises that in most criminal provisions there will be a core of
certainty about the meaning of a provision, and a limited
penumbral
sphere of uncertainty. Where the penumbral sphere of uncertainty
is limited, it will not fall foul of the constitutional
standard.
However, where a provision has no certain core meaning at all, or
where it has a significant penumbral scope of
uncertainty, it will
probably be constitutionally impermissible. Thus the larger the
uncertain penumbral scope of a criminal
prohibition, the more
likely it is that it will be held to be vague. The key questions
to determine vagueness will be whether
the provision provides “fair
warning”
24
to citizens of what constitutes unlawful behaviour and whether it
impermissibly delegates the power to determine who should
be
prosecuted to law enforcement officers with the attendant risks of
arbitrary application.
The question which we must answer is whether section 20(1)(a) read
with paragraph (a) of the definition of “security service”
in
the Act is capable of a reasonably clear meaning. As I have noted
above, the ordinary textual meaning of paragraph (a)
would sweep
within the prohibition a range of activities in a fashion that the
Legislature could not have intended. On the
other hand, there is
no guidance within the context of the Act as a whole which can
reasonably be said to limit the scope of
the section in an
intelligible fashion. It is interesting that Satchwell J and
Mokgoro J, in their attempts to narrow the
scope of the section,
have attributed different meanings to the section to do so.
Neither approach seems to me to be interpretively
permissible. The
approach adopted by Satchwell J, although it fits well with the
Preamble to the Act and both its long and
short titles, and could
be said to accord with common sense, collides with provisions in
the Act which make plain that it is
not only those employed within
the private security industry who fall within its terms. The
approach adopted by Mokgoro J
is based on no express provision of
the Act at all and does not provide reasonable certainty as to the
scope of the section.
It cannot, therefore, be considered to be a
meaning that the provision is reasonably capable of bearing.
If we look at section 20(1)(a) read with paragraph (a) of the
definition of security service, it is not possible for a citizen
to
determine from the Act when an occupation which involves protecting
or safeguarding a person or property in any manner will
constitute
a “security service” for the purposes of the Act. Should a
person who is not an employee but who guards cars
on the streets of
Melville register as a security service provider? Should a person
who is employed to watch children swimming
in a municipal swimming
pool register? The Act does not provide a clear answer to these
questions. The result is that both
citizens and law enforcement
officers are left uncertain as to the scope of the Act. Should a
law enforcement officer arrest
a car guard who is unregistered?
The Act does not tell us. Because there are so many people engaged
in work that constitutes
safeguarding of people or property in a
wide range of occupations in our country, the penumbral area of
uncertainty is vast.
Uncertainty of this sort is at odds with the
rule of law. It opens the door to arbitrary and discriminatory law
enforcement,
a spectre of our past to which we should avoid
returning.
I conclude therefore that section 20(1)(a) read with paragraph (a)
of the definition of “security service” is impermissibly
vague.
It is vague because, on its own terms, its meaning is so broad
that it borders the absurd, and yet its context provides
no
definitive limited meaning. In the light of this conclusion, it
seems to me impermissible, as the majority judgment does,
to attach
an interpretation to the section which is not suggested by its
context. To do so is an exercise in drafting, not
interpretation.
25
Drafting should be left to the Legislature. Moreover, in seeking
to ascribe an interpretation to the provision, the majority
leaves
intact a criminal prohibition the meaning of which cannot be
discerned on an ordinary reading of the Act.
Although this is a minority judgment, I should note that in my view
the appropriate order, which would follow from my conclusion
that
section 20(1)(a) is invalid, would be to suspend the order of
invalidity relating to the section for a reasonable period
of time
to afford the Legislature an opportunity to rectify the defect.
This would be a just and equitable order, since section
20(1)(a) is
an important legislative provision that regulates the private
security industry. In order to avoid uncertainty
during the period
of the suspension, I would propose a mandatory order providing that
until legislation rectifying the uncertainty
has been enacted,
section 20(1)(a) should be read to apply only to employees within
the private security industry. In this
manner, the primary purpose
of the legislation would not be undermined.
Section 28(2) and section 28(3)(b)
The second issue that arises in this case relates to the
constitutionality of section 28(2) and section 28(3)(b). Satchwell

J, having concluded that section 20(1)(a) related only to those
employed in the private security industry and not any person

employed outside it, found the two provisions to be irrational to
the extent that they sought to impose obligations upon employers

outside the private security industry. On the basis of this
reasoning, she declared aspects of these two provisions to be

inconsistent with the Constitution. Once her reasoning in relation
to section 20(1)(a) has been rejected, however, her conclusion
in
respect of sections 28(2) and (3)(b) cannot stand. In this I am in
agreement with Mokgoro J.
I also agree with Mokgoro J that section 28(2) empowers the
Minister to make the code of conduct binding upon employers outside

the private security industry who employ security service
providers, only to the extent provided for in the Act.
26
That extent appears from section 28(3)(b)
27
– “to ensure the payment of minimum wages and compliance with
standards aimed at preventing exploitation or abuse of employees”.
The Minister’s power to make the code of conduct binding on those
who employ in-house security guards therefore extends only
to the
limited purpose of ensuring that minimum wages are paid and
employment standards are observed. I should add, however,
that
this does not mean that the employers of in-house security guards
are required to pay the wages determined for the private
security
industry in terms of Sectoral Determination 6.
28
The wages that each employer is obliged to pay will depend on the
industry in which that employer falls in terms of the applicable

labour legislation. Section 28(3)(b) does not affect that matter.
To the extent that the code of conduct purports to impose
obligations upon employers who fall outside the private security

industry beyond the issues contemplated by section 28(3)(b), it may
well be ultra vires. However, this is not an issue that
arises in
this case and it is not necessary to consider it further.
Counsel for the applicants:
Advocate JL van der Merwe SC and Advocate LB van Wyk
instructed by Rooth Wessels Motla Conradie Inc.
Counsel for the first respondent:
Advocate JH Dreyer SC and Advocate BR Tokota SC instructed by
the State Attorney.
Counsel for the fifth respondent:
Advocate JH Dreyer SC and Advocate BR Tokota SC instructed by
Savage Jooste & Adams Inc.
1
Act 56 of 2001.
2
Bertie Van Zyl v Minister for Safety and Security and Others
;
Montina Boerdery (Pty) Ltd v Minister for Safety and Security and
Others
[2008] ZAGPHC 290
;
2008 (6) SA 562
(T). Although the applicants sought
relief in separate applications, the High Court issued a single
consolidated judgment, which
is hereinafter referred to as the High
Court judgment.
3
Id at para 7.
4
Section 20(1)(a) of the Act in relevant part provides:
“
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.”
5
The first applicant submits that arrests of its
directors and farm security guards would have resulted in extreme
disruption of
its farming operations and caused “huge losses”.
6
Section 28(2) of the Act provides:
“
The code of conduct is legally
binding on all security service providers,
irrespective of whether they are registered with the Authority or
not and, to the extent provided for in this Act, on every
person
using his or her own employees to protect or safeguard merely his
or her own property or other interests, or persons
or property on
his or her premises or under his or her control.”
Section 28(3)(b) of the Act provides:
“
The code of conduct
must contain rules
—
to ensure the payment of
minimum wages and compliance with standards aimed at preventing
exploitation or abuse of employees
in the private security
industry, including employees used to protect or safeguard merely
the employer’s own property or other interests, or
persons or
property on the premises of, or under the control of the
employer.”
7
The two applicants filed two separate appeals on 17 and 21 October
2008. The deadline for appeals according to the Rules of
this Court
was 19 September 2008. Although the appeals were filed separately
they are almost identical and will be treated as
a single appeal.
8
See
Van Wyk v Unitas Hospital and
Another (Open Democratic Advice Centre as Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at paras 20,
22, and 30-4;
Mercer v S
[2003] ZACC 22
;
2004 (2) SA
598
(CC);
2004 (2) BCLR 109
(CC) at para 4;
Head of Department,
Department of Education, Limpopo Province v Settlers Agricultural
High School and Others
[2003] ZACC 15
;
2003 (11) BCLR 1212
(CC)
at paras 11-3; and
Brummer v Gorfil Brothers Investments (Pty)
Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5)
BCLR 465
(CC) at para 3, where this Court held that the broad test
for granting condonation of late applications is whether it is in
the
interests of justice.
9
This is the matter before us for confirmation.
10
See [26] for definition of “security service”.
11
Section 20(1)(a) of the Act.
12
Section 172(1)(a) of the Constitution.
13
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors: In Re Hyundai
Motor Distributors
(Pty) Ltd and Others
v Smit NO and Others
[2000] ZACC 12
; 2001(1) SA 545;
2000 (10) BCLR 1079
(CC) at para 22.
14
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para
24.
15
For examples of a purposive approach to statutory
interpretation, see
African Christian
Democratic Party v Electoral Commission and Others
[2006]
ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC); at paras 21,
25, 28 and 31;
Daniels v Campbell NO
and Others
[2004] ZACC 14
;
2004 (5) SA
331
(CC);
2004 (7) BCLR 735
(CC) at paras 22-3;
Stopforth
v Minister of Justice and Others; Veenendaal v Minister of Justice
and Others
[1999] ZASCA 72
;
2000 (1)
SA 113
(SCA) at para 21.
16
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC).
17
Id at para 91.
18
University of Cape Town v Cape Bar Council and
Another
1986 (4) SA 903
(AD). See
also
Jaga v Dönges NO and Another
;
Bhana v Dönges NO and Another
1950 (4) SA 653
(A) at 662-3. For a discussion of
pre-constitutional use of the purposive approach in our courts see
JR de Ville
Constitutional and
Statutory Interpretation
(
Interdoc
Consultants, Cape Town 2000
) at 244-50.
19
Thornton
Legislative
Drafting
4ed (1996) at 155 cited in JR
de Ville above n 18 at 244.
20
Above n 18.
21
A
bove n 16 at para 89.
22
Jaga v Dönges
above n 18 at 662G-H.
23
“[A] construction [of a statute] is not a
reasonable one . . . when it can be reached only by distorting the
meaning of the
expression being considered.” See
National
Coalition for Gay and Lesbian Equality
above
n 14 at para 23.
24
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC).
25
Id at para 79.
26
See s
ection 1(c) of the Constitution.
27
Dawood and Another v Minister for Home Affairs
and Others; Shalabi and Another v Minister for Home Affairs and
Others; Thomas
and Another v Minister for Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) ;
2000 (8) BCLR 837
(CC) at para 47.
28
On this point, in
Case
and Another v Minister of Safety and Security and Others
,
we cited
University of Cape Town and
Another v Ministers of Education and Culture and Others
,
which stated:
“
If it is clear that the widest possible meaning was
not intended, but at the same time, it is not possible to say where
the
intended narrower meaning begins or ends, then no ascertainable
meaning exists.”
Above n 24 at para 79, citing
University of Cape Town and Another v
Ministers of Education and Culture
and
Others
1988 (3) SA 203
(C) at 213.
29
Hyundai
above n
13 at para 24.
30
Section 1 of the Act defines “security service provider” as:
“
a person who renders a security service to another
for a remuneration, reward, fee or benefit and includes such a
person who
is not registered as required in terms of this Act”.
31
The
one exception to the section 20(1)(a) requirement that persons
providing security services for remuneration register as
a security
service provider, is that a “security service” as contemplated
in section 199 of the Constitution need not register
under the Act.
Section 199(1) of the Constitution provides:
“
The security services of the Republic consist of a
single defence force, a single police service and any intelligence
services
established in terms of the Constitution.”
The Security Services are state or public security
forces regulated in terms of their specific legislation, such as
the
South African Police Service Act 68 of 1995
,
and fall outside of the purview of the Act.
32
Above n 2
at para 22.
33
See section 23(1) of the Act
,
which sets out the requirements for registration as a security
service provider. If a person does not meet these requirements,
he
or she cannot register, and thus cannot perform any security
services. These requirements include being a citizen or a permanent

resident, being 18 years or older, having complied with the
prescribed relevant training requirements and not having been
convicted
of an offence.
34
Hyundai
above n 13 at para 23. See also
S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 84.
35
Hyundai
above n
13 at para 26.
36
Compare this with the well-established common law rule that
precedes the injunction in section 39(2) of the Constitution:
“
It appears to me that the principle we should adopt
may be expressed somewhat in this way — that when to give plain
words
of the statute their ordinary meaning would lead to absurdity
so glaring that it could never have been contemplated by the

legislature, or where it could lead to a result contrary to the
intention of the legislature, as shown by the context or by such

other considerations as this Court is justified in taking into
account, the Court may depart from the ordinary effect of the
words
to the extent necessary to remove the absurdity and to give effect
to the true intention of the legislature.”
Venter v Rex
1907 TS 910
at 914-5.
37
National Coalition for Gay and Lesbian
Equality and Others
above note 14 at
para 24.
38
Bato Star Fishing
above n 16 at paras 89-91. In
Stopforth
Olivier JA provided useful guidelines for the factors
to be considered when conducting a purposive interpretation of a
statutory
provision:
“
In giving effect to this approach, one should, at
least,
(i) look at the preamble of the Act or at the
other express indications in the Act as to the object that has to
be achieved;
(ii) study the various sections wherein the
purpose may be found;
(iii) look at what led to the enactment (not
to show the meaning, but also to show the mischief the enactment
was intended
to deal with);
(iv) draw logical inferences from the context
of the enactment.”
Above n 15 at para 21.
39
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4)
BCLR 339
(CC).
40
Id at para 37.
41
[2006] ZASCA 176
at para 24.
42
[
2005] ZASCA 32
; 2005 (5) SA (SCA) 416.
43
Id at paras 9-10.
44
Act 92 of 1987.
45
Above n 2
at paras 46-7.
46
The long title of an Act has long been held to
form part of an Act. See
Perishable
Products Export Control Board v Molteno Bros
1943 AD 265
at 273-4. In fact, the long title of statutes has
formed part of this Court’s analysis in determining the
constitutional validity
of statutes. See, for example,
African
National Congress and Another v Minister for Local Government and
Housing, KwaZulu-Natal and Others
[1998] ZACC 2
;
1998 (3) SA 1
(CC);
1998 (4) BCLR 399
(CC) at para 9;
and
Prinsloo v Van der Linde and
Another
[1997] ZACC 5
;
1997 (3) SA
1012
(CC);
1997 (6) BCLR 759
(CC) at para 35.
47
The legal maxims are
eiusdem generis
and
noscitur a
sociis
. See JR de Ville n 18 above at 124-5. See on the
operation of
eiusdem generis
rule:
Skotnes v South African
Library
[1997] ZASCA 28
;
1997 (2) SA 770
(SCA) at 775 and
S v
Wood
1976 (1) SA 703
(A) at 707; and on the
noscitur a sociis
rule:
Federated Employers’ Insurance Co Ltd v Magubane
1981
(2) SA 711
(A) at 710;
Ovenstone v Secretary for Inland Revenue
1980 (2) SA 721
(A) at 736; and
Santam Versekeringsmaatskappy Bpk
v Kruger
1978 (3) SA 656
(A) at 664.
48
See [26
] above.
49
See
Hoban v ABSA
Bank Ltd t/a United Bank and Others
[1999]
ZASCA
12
;
1999 (2) SA 1036
(SCA) at 1044, which held that a definition
provided in a statute should prevail, and quoted with approval from
Canca v Mount Frere Municipality
1984 (2) SA 830
(Tk) at 832F the following statement:
“
U
nless
it appears that the Legislature intended otherwise and, in deciding
whether the Legislature so intended, the Court has
generally asked
itself whether the application of the statutory definition would
result in such injustice or incongruity or
absurdity as to lead to
the conclusion that the Legislature could never have intended the
statutory definition to apply.”
50
Section 39 (2) of the Constitution provides:
“
When interpreting any legislation, and when
developing the common law or
customary law,
every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.”
51
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6)
BCLR 529
(CC) at para 108.
52
Id at para 108.
53
See definition of “security service provider”
in section 1 of the Act.
54
See [37] above.
55
10 CRR (2d) 34.
56
Id. Also quoted in
Affordable
Medicines Trust
above n 51 at para
108.
57
Section 172(2)(a) of the Constitution provides:
“
The Supreme Court of Appeal, a High Court or a
court of similar status may make an order concerning the
constitutional validity
of an Act of Parliament, a provincial Act
or any conduct of the President, but an order of constitutional
invalidity has no
force unless it is confirmed by the
Constitutional Court.”
58
See section 1 of the Act.
59
See [26]-[30] above.
60
See [48]-[49] above.
61
See the Preamble of the Act. See also Chapters 2
and 4 of the Code.
62
Section 33(1) provides:
“
An inspector may, subject to any direction of the
director, carry out an inspection of the affairs or any part of the
affairs
of a security service provider, of any other person who
employs a security officer, or of a person whom the director has
reason
to believe is a security service provider or employs a
security officer.”
63
Section 1(a)(i) of the Act provides:
“ ‘
security officer’ means any natural person—
who is employed by another person, including an
organ of State, and who receives or is entitled to receive from
such
other person any remuneration, reward, fee or benefit, for
rendering one or more security services[.]”
64
Historically, farm workers have been the most
marginalised workers in the South African economy. It was only
during the nineties
that they were accorded the same rights as
employees in other sectors of the economy. Farm workers acquired
protection under
the law with the introduction of the
Basic
Conditions of Employment Act 75 of 1997
and the Sectoral
Determination for Agriculture. See South African Human Rights
Commission (2008)
Progress made in
terms of Land Tenure Security, Safety and Labour Relations in
Farming Communities since 2003
(2008
SAHRC Report) at 65.
65
The social relationship between farm worker and employers, in some
cases, still constitutes one of abuse, violence and racism.

Escaping these conditions is difficult. Poor access to education
and information is prominent in farm worker communities and

according to Statistics South Africa, farm workers “are the most
destitute and least educated group in South Africa.”
The SAHRC reports that the main obstacle remains the implementation
of laws which govern farm workers. This, it is reported,
may be
attributed to various factors, including the difficulties relating
to accessing farms; the lack of unionisation
among farm
workers and the fact that workers are reluctant to come forward to
lay complaints against their employers for fear
of being evicted
from their homes. See 2008 SAHRC Report above n 64 at 16, 34-88.
See also W
oolman and Bishop
Down
on the farm and barefoot in the kitchen: farm labour and domestic
labour as forms of servitude
accessed
from
https://www.up.ac.za/dspace/bitstream/2263/4268/1/Woolman_Down%282007%29.pdf
on 5 May 2009.
66
2008 SAHRC Report above n 64 at 15.
67
South African Human Rights Commission (2003)
Final Report on the Inquiry into Human
Rights Violations
in
Farming Communities
(2003 SAHRC
Report) at 172.
68
Section 23(1) of the Constitution provides that
“[e]veryone has the right to fair labour practices.”
69
Section 185
(b) of the
Labour Relations Act 66 of
1995
provides that “[e]very employee has the right not to be
subjected to unfair labour practice.”
70
See [67] above.
71
Id.
72
Section 28(3)(b) of the Act.
73
See [67] above.
74
See [8] above.
75
Id.
76
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras
227, 237, 263, 308 and 374.
1
Above at [34] and [35].
2
Private Security Industry Regulatory Authority and Others v
Association of Independent Contractors and Another
[2005] ZASCA
32
;
2005 (5) SA 416
(SCA) at para 1.
3
Section 199 of the Constitution provides:
“
(1) The security services of the Republic consist
of a single defence force, a single police service and any
intelligence
services established in terms of the Constitution.
(2) The defence force is the only lawful
military force in the Republic.
(3) Other than the security services
established in terms of the Constitution, armed organisations or
services may be established
only in terms of national
legislation.
(4) The security services must be structured
and regulated by national legislation.
(5) The security services must act, and must
teach and require their members to act, in accordance with the
Constitution
and the law, including customary international law
and international agreements binding on the Republic.
(6) No member of any security service may obey
a manifestly illegal order.
(7) Neither the security services, nor any of
their members, may, in the performance of their functions—
(a) prejudice a political party interest that
is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a
political party.
(8) To give effect to the principles of
transparency and accountability, multi-party parliamentary
committees must have
oversight of all security services in a
manner determined by national legislation or the rules and orders
of Parliament.”
4
Section 1 of the Act.
5
Id.
6
Bertie van Zyl (Pty) Ltd v Minister of Safety
and Security and Others; Montina Boerdery (Pty) Ltd v Minister of
Safety and Security
and Others
[2008] ZAGPHC 290
;
2008 (6) SA
562
(T) at para 41. See also para 43 where she states that:
“‘Protecting’ and ‘safeguarding’ must be understood within
the context of the dangers sought to be combated by the private
security industry.”
7
Above at [41].
8
Section 39(2) of the Constitution provides:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal
or forum must
promote the spirit, purport and objects of the Bill
of Rights.”
9
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 23.
10
Id at para 24.
11
Section 2(1) of the Act.
12
See, in this regard,
Private Security
Industry Regulatory Authority v Anglo Platinum Management Services
Ltd and Others
[2006]
ZASCA 176
;
[2007] 1 All SA 154
(SCA) which
dealt with in-house security officers employed by a mining company.
13
Above n 2 at para 29.
14
Id at para 30. The Act defines a “security officer” as
follows:
“‘
security officer’ means any natural person—
(a) (i) who is employed by another person,
including an organ of State, and who receives or is entitled to
receive from
such other person any remuneration, reward, fee or
benefit, for rendering one or more security services; or
(ii) who assists in carrying on or
conducting the affairs of another security service provider,
and who receives or
is entitled to receive from such other
security service provider, any remuneration, reward, fee or
benefit, as regards
one or more security services;
(b) who renders a security service under
the control of another security service provider and who
receives or is entitled
to receive from any other person any
remuneration, reward, fee or benefit for such service; or
(c) who or whose services are directly or
indirectly made available by another security service provider
to any other
person, and who receives or is entitled to receive
from any other person any remuneration, reward, fee or benefit
for
rendering one or more security services”.
15
Section 1 of the Constitution provides:
“
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(a) Human dignity, the achievement of equality and
the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common
voters’ roll, regular elections and a multi-party system of
democratic
government, to ensure accountability, responsiveness
and openness.”
16
South African Liquor Traders Association and Others
v Chairperson, Gauteng Liquor Board and Others
[2006] ZACC 7
;
2006 (8) BCLR 901
(CC) at paras 27-28;
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para
108;
Dawood and Another v Minister of Home
Affairs and Others; Shalabi and Another v Minister of Home Affairs
and Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para
47.
17
In this regard, see the useful summary furnished by Gonthier J, in
the Canadian context, in
R v Nova Scotia Pharmaceutical Society
and Others
[1992] 2 SCR 606
(SCC) at 626f.
18
Section 20(1)(a) read with section 38(3)(a).
19
Section 38(3)(i) and (ii).
20
It is not necessary in this case to determine whether the approach
to vagueness should be different in relation to legislative

provisions that do not create criminal prohibitions.
21
[1972] USSC 158
;
408 US 104
(1971) at 108-9.
22
McLachlin CJ in
Canadian Foundation for Youth, Children and the
Law v Attorney General in Right of Canada
2004 SCC 4
;
[2004] 1 SCR 76
(SCC)
at para 16. See also the dissenting judgment of Arbour J at para
177.
23
Affordable Medicines
above n 16 at para 108, citing with
approval
R v Pretoria Timber Co (Pty) Ltd and Another
1950
(3) SA 163
(A) at 176G.
24
In Marshall J’s formulation in
Grayned
above n 21.
25
See the comment by Arbour J in
Canadian Foundation for Youth,
Children and the Law
above n 22 at para 190.
26
Section 28(2) of the Act provides:
“
The code of conduct is legally binding on all
security service providers, irrespective of whether they are
registered with the
Authority or not and, to the extent provided
for in this Act, on every person using his or her own employees to
protect or
safeguard merely his or her own property or other
interests, or persons or property on his or her premises or under
his or
her control.”
27
Section 28(3)(b) of the Act provides:
“
(3) The code of conduct must contain rules—
(b) to ensure the payment of minimum wages
and compliance with standards aimed at preventing exploitation
or abuse of
employees in the private security industry,
including employees used to protect or safeguard merely the
employer's own
property or other interests, or persons or
property on the premises of, or under the control of the
employer.”
28
See the
Basic Conditions of Employment Act 75 of 1997
and Sectoral
Determination 6: Private Security Sector, South Africa, initially
published under GN R1250 GG 22873 of 30 November
2001, and then
corrected and replaced by GN R879 GG 27992 of 9 September 2005.