17 Aug It’s Raining Pepper Spray
Ever since I was a young boy, Security Services have been the norm in South Africa.
These services are more needed in places where large numbers of people gather, i.e. in shopping centres, and to an extent, Sectional Title Schemes, and where access to, and control of people, in such areas needs to be monitored.
But, what exactly is the Law pertaining to community Schemes such as a Sectional Title Scheme appointing Security Services for their complex?
Section 37(1)(r) of the Sectional Titles Act (“the Act”), provides that the Body Corporate is obligated to control and manage the common property. The procuring of Security Services is within this function.
Section 38(j) of the Act provides that the Body Corporate has the power to do all things reasonably necessary for the enforcement of the Rules and for the control and management of the Common Property. Again, this Section empowers the Body Corporate to procure Security Services for the Complex.
Prescribed Management Rule 26 to the Act, provides that the Trustees have the power to appoint Agents and Employees in connection with the control, management and administration of the Common Property, thus empowering the Body Corporate, to secure Security Services, and if allowed by the Law, to employ individuals to provide Security Services to the Complex.
Prescribed Management Rule 27 to the Act, provides that if an agreement is entered into by the Body Corporate with a Security Company, the Trustees or a Trustee and the Managing Agent must sign the Agreement for it to be valid and binding.
It is therefore clear that the Body Corporate can indeed procure the services of a Security Company, thereby fulfilling its function to control and manage the Common Property.
However, can a Body Corporate Hire employees to act as Security Guards in the Complex?
Section 20 of the Private Security Industry Regulation Act, provides that no person may, in any manner, render a Security Service for remuneration, unless such person is in fact registered as a Security Services Provider, in terms of the Act.
The Definition in the Act of a Security Service is very wide and includes protecting or safeguarding a person or property in any manner.
In terms of Section 21 of the Act, one must apply for Registration as a Security Service Provider to the Private Security Industry Regulatory Authority.
Section 23 of the Act provides that any person may register as a Security Service Provider. In order to do so, amongst other items, they must be a Citizen or Permanent Resident of South Africa and have complied with the relevant prescribed training requirements.
Section 38 of the Act states that any person who contravenes or fails to comply with Section 20(1) is guilty of an offence, and subject to a fine or imprisonment not exceeding 5 years.
There are also some important tips for Trustees to bear in mind when signing contracts procuring the services of Security Companies :
- Enter into the Contract for the shortest possible initial period;
- Do not allow for an automatic renewal period, but for renewal periods to take effect on written instructions by the Trustees and Managing Agent;
- Provide for a short renewal period as opposed to a long period;
- Provide clearly for the obligations of the Security Provider and in the event of any of its obligations not being met, that the Trustees may, if the breach is not rectified within 7 days of written notice given to the Security Company, cancel the Agreement.
Article by ALAN LEVY Alan Levy Attorneys, Notaries & Conveyancers