The Romans used to ask “Quis custodiet ipsos custodies?” Who watches the watchmen?
In our case who guards us against the guards?
We’ve been asked many times by a variety of readers what powers security guards have. Can they, for instance, ask to search our bags as we enter or leave the store they’re guarding? Can they insist on doing so? Can they detain us if we don’t want to let them search us? What exactly can they do?
Our advice has always been simple. Security guards aren’t police officers, they’re just normal civilians like the rest of us. They don’t have any powers that we don’t have.
“private person, in whose presence anyone commits or attempts to commit [a serious offence] or who has knowledge that any such offence has been recently committed, is authorized to arrest without warrant or forthwith to pursue the offender; every other private person to whom the purpose of the pursuit has been made known is authorized to join and assist therein.”This doesn’t permit mob justice but it is clear that any of us can legally arrest someone if we think they’ve committed a serious crime. It’s what’s often called a “citizen’s arrest”. But that’s all we can do. We can’t search anyone, we can’t punish them, all we can do is detain them until the police turn up and take over. That’s all. Security guards have no powers other than that.
On the other hand you have to remember that stores are private property, just like our homes. You have the right to prevent me from entering your house as well as from entering your store if you don’t want me there. In exactly the same way the owner of a store can refuse you entry unless you play according to his or her rules, so long as they’re legal ones. A store is entitled to refuse you admission unless you volunteer to leave your bags at the counter or volunteer to be searched. But how many stores are really prepared to do that? How many are really ready to turn away people with the money they so desperately want?
But why do security guards behave this way? Why do they exceed their legal powers? The answer is simple. It’s because they think they’re cops and they think this because they’ve been told this by their managers.
In May 2011 a woman went shopping in Pick N Pay at Riverwalk with her three daughters and some of their friends. As they were leaving the store a security guard from Scorpion Security blocked her way and demanded to search through her handbag. Rather than asking nicely he just grabbed the bag from her in a manner she described as “violent and physical”, searched through it and, finding nothing, handed it back to her. She claims that she felt “belittled and humiliated” by his treatment of her in front of her children and their friends but being a strong character she decided not to take this lying down. Her later complaint to the security company about the way their guard had treated her was met with a promise of an apology but this was a promise that never came.
So she got angry and started legal action against Scorpion Security.
When the case was heard in the High Court in Francistown in August this year the Managing Director of Scorpion Security gave evidence in defence. He explained that he saw their job as looking after their client’s goods but then went on to embarrass himself in front of the judge by having no idea what powers his guards had. In his ruling, the judge said that the MD “did not know circumstances when a legal search could be made.” He told the judge “that security guards could search. That they had the authority to do similar to that of Police Officers.”
In his judgment the judge said that:
“I find that indeed the Defendants searched the Plantiff without her consent and it was unlawful. […] The Plaintiff has proved her case on a balance of probabilities and I accordingly grant judgment in her favour.”It gets better. He continued:
“On the issue of damages, considering the humiliation embarrassment and impairment of her dignity as an honest member of society I have considered that P60,000 would be sufficient solatium for her dented image in society.”Last week my hero was Dr Seipone from the Ministry of Health for telling certain private health facilities to stop ignoring basic medical ethics by refusing to treat people in emergencies unless they coughed up cash first.
This week my hero is Judge Solo at the High Court for showing that our laws protect the individual against jumped up civilians who think they have special powers just because they have a uniform and against their bosses who tell them that.
It’s worth looking at the words Judge Solo used. He said that her “dignity as an honest member of society” had been undermined by the guard. We mustn’t forget that we all have that right, to be seen as honest members of society until there is evidence to the contrary. We have a right to go about our business without being humiliated and embarrassed by thugs in uniform.
Next time a guard tries to search you or anything you’re carrying I suggest you just remind them that Judge Solo says they can’t and do they really want to get on his wrong side? Can their MD afford another P60,000 in damages?