With home robberies on the rise, increasing by 69.8 percent in the past nine years according to the South African Police Service’s latest crime statistics, residential security is a growing concern for most South Africans.
While the body corporate does not need to be registered with the Private Security Industry Regulatory Authority (PSIRA), it is legally obliged to ensure that its security provider or security guards are registered and PSIRA compliant.Pierre van Wyk, managing director of Kallvest Security, says while estates and complexes appear to offer a solution, they present their own security challenges, and homeowners should look further than the development’s high walls when they assess their risk.
He says although complexes have traditionally been perceived as more secure, offering residents greater peace of mind, this is changing, and home robberies in complexes are increasing. He says homeowners in complexes and estates are often complacent, relying on the trustees or estate directors, who are not necessarily experienced in this area, to take care of security. But be warned, if your trustees are employing and managing their own security guards, this can be a recipe for disaster, he says.
Van Wykcites his company’s experience with a complex in Johannesburg’s southern suburbs, which unknowingly employed a security guard with a criminal record. In another instance, he reveals that Kallvest Security was contracted by a complex that ran into financial difficulty because their guard passed away, and when his wife sought a provident fund payout, it came to light that the trustees had not been contributing. He says it is also worth noting that if a security guard dies or is injured as a result of the scope of his employment, there would be a Workmen's Compensation claim to add to the administrative burden of trustees.
Van Wyk notes that there are numerous statutory allowances that must be paid to security guards, for example, a washing allowance. He says if these are not paid correctly, the guards are entitled to seek assistance from the CCMA, which is a time consuming exercise for trustees, as a complex in Midrand discovered when one of its trustees had to spend two full days at the CCMA offices.
According to Van Wyk, a complex in Pretoria did not budget for the fact that replacement guards would be required when its security staff took their annual leave. He says this also applies to sick leave, family responsibility leave and study leave - when temporary guards would need to be found and paid.
Marina Constas, a specialist sectional title attorney and a director at BBM Attorneys, says in addition to compromising the secure lifestyle that residents buy into and incurring unnecessary expenses, trustees employing security guards may also be breaking the law.
She says the Sectional Titles Act 95 of 1986, the Private Security Industry Regulatory Authority Act 56 of 2001 and the Code of Conduct for Security Service Providers 2003 are the three pieces of legislation that need to be considered.
She says trustees have a fiduciary duty in terms of the Sectional Titles Act to act in the best interests of the complex - with care, skill and diligence. She says they must bear these obligations in mind when employing security guards or a security provider.
“While the body corporate does not need to be registered with the Private Security Industry Regulatory Authority (PSIRA), it is legally obliged to ensure that its security provider or security guards are registered and PSIRA compliant. Trustees should be aware of the legalities and high risks in hiring non-compliant estate security. They could be held personally liable for making use of illegal security services.”
Adding to the complexity of security in a complex, Constas says a body corporate that opts to employ its own guards must comply with the Code of Conduct for Security Providers. She says in terms of Regulation 27 of the Code, an employer of an in-house security officer who fails to comply with its provisions may be fined or even convicted, depending on the contravention.
Van Wyk says in a nutshell, security can be a minefield for the body corporate and trustees, and there are many advantages to using contract guards. He says they needn’t place adverts and interview applicants, do background checks and train guards. They don’t have to worry about pay or provident fund issues or handle HR problems, and they needn’t buy uniforms, radios or other equipment; deal with union issues or find temps when a guard is off sick, he says.
Trustees and bodies corporate that employ in-house security guards are taking a risk, and could end up on the wrong side of the law, he says.
