Author: Gary Moore

Date: 15 August 2017

The National Key Points Act, 1980[1] provides for the declaration and safeguarding[2] of national key points.[3] The Minister[4] may declare any place[5] (or area[6]) a key point—

If it appears to him at any time that the place is so important that its loss, damage, disruption or immobilisation may prejudice the Republic; or

whenever he considers it necessary or expedient for the safety of the Republic or in the public interest.[7]

The owner of the place must[8] be notified[9] of its declaration as a key point.[10] The owner must then,[11] at his own expense, after consultation with the Minister, take steps regarding the security of the key point to the Minister’s satisfaction.[12]

If the owner fails to take those steps, the Minister may[13] order him to take, within a period specified[14] and at his own expense, such steps as may be specified[15] for the security of the key point.[16] If the owner fails[17] to take the specified steps in the specified period without reasonable cause, he commits an offence.[18]

If the owner fails[19] to take the steps in that period, the Minister may take[20] those steps (whether the failure[21] took place with or without reasonable cause, and whether the owner was charged or convicted for the failure[22] or not) and recover the cost[23] from the owner.[24]

The Minister may declare two or more key points to be a “key points complex,”[25] when in his opinion it will contribute to the safeguarding of those key points if steps for their security are taken jointly by their owners, whether the steps will be taken at any of the key points or not.[26] The Minister may, after consultation with the owners of key points included in the complex, order them[27] to take[28] at their expense such joint steps for the security of the complex as may be specified,[29] and order them to determine[30] on the proportion in which each will be responsible for the cost of those steps.[31] If the owners are unable to determine that proportion,[32] the Minister may determine the proportion.[33]

If an owner of a key point in the complex fails without reasonable cause [34] to take the steps for which he is responsible within the period specified[35] (whether any other owner fails[36] with or without reasonable cause to take steps for which he is responsible in that period[37])—

The first-mentioned owner is guilty of an offence;[38] and

the Minister may take[39] those steps, and steps any other owner was unable to take due to the first-mentioned owner’s failure,[40] and recover the cost from all owners concerned in proportion to their responsibility for the cost “or to such extent as he may determine.”[41]

The State[42] is not liable for any loss or damage because of bodily injury, loss of life or damage to property caused by[43] any act performed under the Act.[44]

The Minister may make regulations about employment or hiring of the services of guards by key point owners;[45] and powers of guards regarding the searching of persons, seizure of articles in the possession of persons, arrest of persons, and application of[46] force to persons,[47] including use of firearms, in connection with such persons’ presence at or in the vicinity of key points.[48]

The Minister[49] may enter any place to exercise any power granted to him by the Act, gather information or check steps to be taken in terms of the Act.[50]

The provision that the Minister may declare a place to be a key point “whenever he considers it necessary or expedient…in the public interest” (whereupon its owner must at his own expense take steps for security of the key point to the Minister’s satisfaction) confers a discretion on the Minister that violates the Rule of Law. Questions of legal right and liability should be resolved by application of law, not by exercise of discretion.[51]

The provision that, if an owner of a key point in a key-points complex fails without cause to take steps for which he is responsible, then the Minister may take those steps and any steps other owners were unable to take due to the first-mentioned owner’s failure, and recover the cost from all owners concerned proportionate to their responsibility “or to such extent as he may determine,” violates the Rule of Law for the same reason, that liabilities should not be resolved by exercise of ministerial discretion.[52]

The provision that the State is not liable for loss or damage because of bodily injury, loss of life or damage to property caused by anything done under the Act violates the Rule of law, in that laws should afford adequate protection of fundamental human rights.[53]

The provisions that the Minister may make regulations about the employing or hiring of guards by key point owners, and about guards’ powers regarding searching of persons, seizure of articles in the possession of persons, arrest of persons, and application of force to persons, including use of firearms, violate the Rule of Law: A power to appoint persons vested with powers to search, seize, arrest and use firearms should derive from original legislative authority,[54] not from a discretionary regulatory power delegated to the executive.[55]

Apart from that, the provision that the Minister may make regulations about guards’ powers of search, seizure, arrest and use of force, in connection with persons at “or in the vicinity of” key points violates the Rule of Law, in being vague about the degree of proximity required for a person to be “in the vicinity of” a key point.[56]

The provision that the Minister may enter any place to exercise powers granted to him by the Act, gather information or check steps to be taken in terms of the Act, inhibits the Rule of Law in that laws should afford adequate protection of fundamental rights.[57]

[1] National Key Points Act 102 of 1980.

[2] National Key Points Act, Long title read with ss 2 and 3.

[3] Hereinafter “key points”.

[4] Minister of Defence.

[5] Any premises, building, installation or industrial complex. National Key Points Act s 1 sv “place.”

[6] Any soil or water surface (whether with a building, installation or structure on it or not). National Key Points Act s 1 sv “area.” (In this document, a “place” includes an “area.”)

[7] National Key Points Act s 2(1).

[8] Forthwith.

[9] In writing.

[10] National Key Points Act s 2(2).

[11] On receipt of the notice.

[12] National Key Points Act s 3(1).

[13] By written notice.

[14] In the notice.

[15] In the notice.

[16] National Key Points Act s 3(2).

[17] Or refuses.

[18] And liable to a R20,000 fine or five years’ imprisonment, or both. National Key Points Act s 3(3)(a).

[19] Or refuses.

[20] Or cause to be taken.

[21] Or refusal.

[22] Or refusal.

[23] To such extent as the Minister may determine.

[24] National Key Points Act s 3(3)(b).

[25] Hereinafter a “key-points complex.”

[26] And irrespective of whether one of the key points adjoins any other. National Key Points Act s 2A(1).

The owner of a key point included in a key points complex must be notified of the name and address of each of the other owners of key points included in the complex. National Key Points Act s 2A(2).

[27] By written notice.

[28] Within a period specified in the notice.

[29] In the notice.

[30] Within a period specified in the notice.

[31] National Key Points Act s 3(4)(a).

[32] In that period.

[33] National Key Points Act s 3(4)(b).

[34] Or refuses.

[35] Or delays, frustrates or renders them impossible.

[36] Or refuses.

[37] Or delays, frustrates or renders them impossible.

[38] And liable to a R20,000 fine or five years’ imprisonment, or both. National Key Points Act s 3(5)(a).

[39] Or cause to be taken.

[40] And whether the owner was charged or convicted for the failure or not.

[41] National Key Points Act s 3(5)(b).

[42] And the Minister and any person in the service of the State.

[43] Or arising out of or in connection with.

[44] National Key Points Act s 7.

[45] And requirements to be complied with by guards, and the nature and duration of their training or further training. National Key Points Act s 11(1)(a).

[46] Reasonable.

[47]

[48] National Key Points Act s 11(1)(b).

[49] Or any person authorized by him.

[50] National Key Points Act s 12(a), (c) and (d).

[51] Lord Bingham, “The Rule of Law.” Sixth Sir David Williams Lecture, 2006. Centre for Public Law, University of Cambridge: second sub-rule.

[52] See fn 49 above.

[53] Bingham, “The Rule of Law” supra: fourth sub-rule.

[54] I.e., from the Act itself.

[55] See text at fn 51.

[56] The law should be sufficiently clear that a course of action can be based on it. Bingham, “The Rule of Law” supra: first sub-rule; President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC) para [102].

A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. Sunday Times v United Kingdom 26 Apr 1979 EHRR (plenary) §49.

[57] Laws should protect the security of persons and property. World Justice Project: “What is the Rule of Law?” Universal Principle 2.

See also text at fn 53.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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