The applicants challenged section 23(1)(a) on the basis that it constitutes a violation of the right to equality, and discriminates against them on the basis that they are not citizens or permanent residents. The respondents (the authorities responsible for the regulation of the private security industry, as well as the Minister of Safety and Security) opposed the application.
The court held that foreign nationals, including refugees, are not inherently less trustworthy than South Africans, but the reality is that citizens and permanent residents will be more easily able to prove their trustworthiness in terms of the Security Act. However, while refugees are fully entitled to work in South Africa, section 22 of the Constitution limits the right to choose a vocation to citizens only. It held that the section is not discriminatory because the trustworthiness of nationals and permanent residents is easier to verify objectively.
Constitutional law; constitutionality of legislation; right to equality; refugee rights; right to work; discrimination; security industry
The Private Security Industry Regulation Act 56 of 2001 (the Security Act) requires security service providers to register with the Private Security Industry Regulatory Authority (the Authority). Section 23(1)(a) of the Security Act lists citizenship or permanent residence as a requirement for registration. Despite the provisions of section 23(1)(a), section 23(6) confers upon the Authority the discretion to register any applicant as a security service provider, on good cause shown and on grounds which are not in conflict with the purpose of the Security Act and the objects of the Authority. The applicants were the Union of Refugee Women, a voluntary association, and
twelve refugees whose registrations as security service providers were withdrawn or whose applications for registration were refused by the Authority.
The right to equality was held not to be violated by section 2 23(1)(a) and the appeal was dismissed.
The Security Act is narrowly tailored to the purpose of screening entrants to the private security industry rather than constituting a blanket ban on the registration of refugees as private security service providers. It in no way prevents them from seeking employment in other industries. In addition, an application for exemption to the Authority is an internal remedy still available to the applicants.