Safety at Sports and Recreational Events Bill [B7-2009]: deliberations

Sports, Arts and Culture

20 October 2009
Chairperson: Mr B Komphela (ANC)
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Meeting Summary

The Committees, sitting jointly, received a briefing from the Department of Sport and Recreation, who presented a further draft of the Safety at Sport and Recreational Events Bill (the Bill). SAPS had previously raised concerns about the lines of responsibility in the original draft, as it was felt that the National Commissioner should not be reporting to the Minister of Sport and Recreation on those functions assigned to the South African Police Service (SAPS) under the Bill. SAPS had proposed some possible solutions. The first was to remove the clauses dealing with the police functions, and place them either under the Regulation of Gatherings Act, or the South African Police Service Act. The Department did not believe that this was feasible, firstly because it would mean that not all the relevant provisions in relation to these events would be found in one place, which would detract from the aim to provide easily-readable and accessible legislation. Secondly, it thought that the Regulation of Gatherings Act was not the appropriate place, as this dealt with entirely different types of gatherings, and did not have the same emphasis on safety, and this would involve quite substantial amendments, including amendments of various definitions. Thirdly, removing some of the provisions from the Bill would render it “a legislative nullity”.

SAPS and the Department had therefore now agreed, with the concurrence of the State Law Advisors, that the Bill should be reorganised, so that functions assigned to the Minister and the National Commissioner should be stated separately, that both the Minister of Sport and Recreation and the Minister of Police would be mandated, in separate provisions, to make regulations relevant to their areas, and that all references to consultation by the Minister of Sport had been removed, so that the reporting lines remained clear and unfettered.

The Department then took the Committees through the major changes. The definition of “steward” needed attention, to address concerns raised by the Private Security Industry Regulatory Authority, and it was possible that the definitions contained in that body’s legislation could be incorporated, with provisions around exemption. Members agreed that this would be preferable to inserting a definition that would require that other legislation be amended. The wording in respect of certificates for high risk events had been amended.  Clause 6 now required provisional risk categorisations to be submitted to the National Commissioner and the reference to consultation between the Minister and the National Commissioner had been removed. Clause 11 also required applications for safety certificates for high-risk events to be sent to the National Commissioner. Clause 15 reflected the unfettered discretion of the National Commissioner in relation to the Security Planning Committee. Clauses 21 and 22 now made reference only to the National Commissioner. Clause 45 had been amended by insertion of a new subclause that stated that in respect of safety and security matters, the Minister of Police would make regulations. Clause 47 had been amended to limit the liability of the various functionaries.

The legal advisers then indicated that some further changes had been made and outlined the revisions in respect of the definition of essential services, the wording in relation to the events safety and security planning committee, event ticketing, exclusion notices, the definition of stadium and venue safety, grading certificates, the high risk event safety certificates, a new definition of peace officer, the expansion of the definition of prohibition notice, and a new definition of registered person.

The Committee would continue with deliberations on the Bill at another meeting.

Meeting report

Safety at Sport and Recreational Events Bill (The Bill): Further deliberations
The Chairperson provided background on the matter to be dealt with in the meeting. The Safety at Sport and Recreational Events Bill had cast certain duties on the South African Police Service (SAPS) but the Minister responsible for the Bill was throughout mentioned as the Minister for Sport and Recreation, and SAPS had therefore made a submission that outlined the potential difficulties in the lines of reporting. The Committee had thereafter decided that wherever the Bill made reference to the Minister of Sport and Recreation giving directives to the National Commissioner, this should be removed.

Mr Patrick Roman, Specialist Advisor on Legislation, Department of Sport and Recreation, explained that the nature and purpose of this presentation was to provide a response to the SAPS’s proposal to effectively split the Bill, to respond to the oral and written submission of the National Commissioner of Police, and to set out some points relating to the implementation of the Safety at Sport and Recreation Events Bill (the Bill), in order that Members could assess whether the proposals were feasible, technically sound and would not disrupt the legislative processes and time lines indicated by the Chairperson of the Committee. He suggested that he would also give an overview of the formal consultative process between the Department of Sports and Recreation (SRSA) and all relevant role players.

The primary thrust of the SAPS’s submission entailed a proposed splitting of the current responsibility of the National Commissioner, and his or her authorised members, in terms of the Bill. SAPS had suggested that one option would be to take the provisions of the Bill and put them into two separate amending pieces of legislation; one to incorporate new clauses into the South African Police Service Act, and the other to amend the Regulation of Gatherings Act (RGA). Alternatively, SAPS had suggested that the SAPS aspects in the current Bill should be separated out, and stated separately from the other provisions of the Bill. The first part of the Bill dealt with the Department of Sport and Recreation’s responsibilities, while the second part of the Bill dealt with the SAPS responsibilities.

Mr Roman referred back to the reasoning that originally underpinned the Bill. Parliament, and therefore the drafters that produced a Bill for Parliament to consider, had to create legislation that was stakeholder-friendly, easy to read and understand, and easily referenced, in order to promote an integrated stakeholder approach to safety and security provisions at public events. All the guiding principles and considerations should be able to be found in one place. There was a need to examine whether the proposals made by SAPS were aligned to this approach. The SRSA felt that the first proposal by SAPS would undermine the original drafting objectives and methodologies of the Bill, because it would materially disrupt the flow of information and intention to find all the provisions in one, easily referenced, place. It would also shorten the current Bill to the point where it was not covering the situation, and would become “a legislative nullity”. The Bill was intended to protect the safety of the public and participants at local sporting and recreational events, and it was important that it achieved this aim, which he felt the first proposal would not allow.

SRSA also believed that the SAPS proposal contained some technical flaws. It was never the intention of the drafters of the Regulation of Gatherings Act that it should be used for provision of safety and security at recreational events. This Act was specifically aimed at political or labour action, or their associated pressure groups’ gatherings and marches (as outlined in Section 1 of the RGA). SAPS had acknowledged that fact in paragraph ten of its submission to the Portfolio Committee. SAPS also acknowledged that if it did follow the route of amending the RGA, it would also need to be amend the definitions clause of the RGA because it appeared to exclude sport and recreational events. This would therefore involve a totally new legislative process that would also disrupt the flow of the current Bill. He reiterated that it would not be user-friendly as the principles around sport and recreational events would then also be spread across different pieces of legislation.

Mr Roman said that if sport and recreational events were to be treated from the perspective of public gatherings, rather than from the perspective of promotion of safety, this could lead to a flurry of litigation and could be misinterpreted to the extent that the safety provisions would not be addressed.

The other proposal was to amend the SAPS Act by including in it all the provisions of the Bill that related to the SAPS. Once again, this would defeat the entire purpose of creating one piece of legislation that would deal with public safety at an event. The hosting of sport and recreational events involved a number of stakeholders, not only police, and they must be taken into account. This aligned with international best practice. Once again, this would undermine the original drafting methodology, would create delays in the passing of this Bill and would be a waste of public resources not sanctioned by the Public Finance Management Act.

Mr Roman noted that the SRSA, and the State Law Advisors, did not support the SAPS’s contentions that dual administration by different departments should not be included in the Bill, as it was contrary to current legislative drafting practice.

Mr Roman added that it must also be borne in mind that the draft of the Bill presented to the Committee was also a draft that had been approved by Cabinet.

SRSA and SAPS had reached a consensus on the version that was now before the Committee. In which the Department had taken out all references of “in consultation with” as related to the Minister of Sport and Recreation and the Minister of Police.  He noted specifically that there was no evidence that would support the contentions made by some people within SAPS that Mr Bertus van der Walt had been acting on his own accord. He said that it seemed that some senior members of the legal services at SAPS had actually known of or actively participated in the drafting processes of the Bill before it was presented to Parliament.

SRSA therefore formally proposed that the Committees should not entertain the submission by SAPS on 8 September in regard to the splitting of the Bill and incorporation of clauses into the RGA or the SAPS Act. He furthermore suggested that the Committee should now endorse the changes now being presented to the Bill. SAPS, SRSA and the State Law Advisers had agreed that the National Commissioner’s role should be clearly defined and his responsibilities unfettered. The State Law Advisers had specifically given their opinion that there was nothing unusual, nor was it out of line with current legislative practices, to include provisions in one Bill that provided for administration by more than one Minister.

Discussion
Ms A van Wyk (ANC) said that the Committee needed to put things into perspective. She said that while the presentation now given by SRSA reflected the presentation given earlier to the Portfolio Committee on Police by SARS, it had not been clearly stated that the Police Portfolio Committee had also not been in favour of the splitting of the Bill, and had suggested that the National Commissioner should be reporting to the Minister of Police.

Ms L Chikunga (ANC), Chairperson of the Portfolio Committee on Police, said that the purpose of the meeting was not that the Department could make submissions on the Bill. SRSA had drafted the Bill and was responsible for presenting it. The purpose of this meeting was rather that the SRSA should brief Members on the implementation plan. She confirmed that her Portfolio Committee had been firmly of the view that the Bill should not be split. However, it was prepared to speak to any issues of the Bill that needed to be dealt with.

Mr Roman said that the revised draft now before the Committee reflected the directives given by the two committees. It reflected the unfettered discretion of the National Commissioner in respect of security issues.

The Chairperson said that the Committees would then turn their attention to the provisions of the Bill.

Mr Roman then presented the latest revised draft.

Clause 1: Definitions
Steward
Mr Roman explained that the definition of a ‘steward’ in the first draft of the Bill had included a safety steward. This meant a person who was appointed in terms of Clause 4(4)(b) to be responsible for the marshalling and overseeing of the safe and general flow of spectators, the provision of event information, including safety and security information to spectators, the provision of ushering services and the provision of assistance with emergency and evacuation procedures to persons within a stadium or venue or the precincts. In essence, the function of a security officer had been defined.

The Chairperson said that this had been one of the matters of contention during the public hearings. The definition was very wide, whereas submissions had suggested that people who were liable to be mingling with VIPs should be registered.

Mr Roman explained that the reason that this had been called into question by the Private Security Industry Regulatory Authority was that certain event organizers and stadium owners attempted to circumvent the legislation by simply calling anyone a steward, and asking that person to undertake searches. One anomaly that would need to be addressed was that a person who provided a safety function or an ushering function would need to be registered as well.

Ms Chikunga noted that if the situation were to arise where stewards were trained just for the sake of training, and not to meet standards set by a particular body, then it would have became a problem. The definition actually implied that there should be amendment of the Private Security Industry Regulatory Authority Act (PSIRA Act). She indicated that in an event such as the Soccer World Cup, if a steward was not to be registered, then there was a question around accountability. She did not think that a provision should be included that would effectively force the Committee to amend other legislation.

Ms D Kohler- Barnard (DA) agreed. She warned that it would be undesirable if, at the time of the World Cup, a large number of prospective job applicants would find themselves sidelined because there was something in this Bill that required them to have a certain period of training.

Ms D Schafer (DA) asked whether there was a definition in the PSIRA Act of a safety function, which could assist the Committee.

Mr Roman said that there was such a definition in the PSIRA Act, but unfortunately the definition was very wide and that it even included a marshalling service.

Mr Bertus van der Walt, Legal Adviser, SAPS, noted that at present the PSIRA Act was administered by the Minister of Police. There were many requests for exemption in respect of individuals who were not South African citizens. He believed that it would theoretically be possible to lodge such an application for exemption of those stewards who were not performing a real security function. Any applications were directed first to the Minister, then were referred to PSIRA for comment, and then back to the Minister for a final decision.

The Chairperson asked whether that could assist the Committee with a definition.

Mr van der Walt replied that it would.

The Chairperson said that he believed the Committee should redraft that clause in line with the suggestions made.

High risk event safety certificates
It was noted that the reference in the latest draft had been changed from “high risk event safety certificate” to “a certificate, which may contain specific conditions, issued by the National Commissioner in terms of section 7(3), in respect of an event that has been categorised as high-risk” (see document).

Clause 6 Provisional risk categorisation of events
Mr Roman noted that this clause had originally been one of those requiring the consultation by the Minister for Sport and Recreation (the Minister) with the National Commissioner. The provisional risk categorization of events was now no longer to be submitted to the Minister, who must consult with the National Commissioner, as the draft now reflected that the schedule must be submitted to the National Commissioner.

referred to the issues in connection with the National Commissioner- he said that the first one was the categorisation of section s of the Bill. Under the provisional risk categorisation of events (original draft) it stated that those schedule of events be submitted to the Minister for Sport and Recreation and that the National Commissioner would be consulted.  In the latest revised draft states that it be submitted to the National Commissioner and not to the Minister of Sport and Recreation (see document).

Clause 11 High risk event
Mr Roman noted that the latest revised draft required safety certificates where an event had been categorised as a high risk event in terms of Section 6. The event organizer, at least be 60 days before the event, must apply in the prescribed manner to the National Commissioner for a high risk event safety certificate (see document).

Clause 15 Security Planning Committee
Mr Roman noted that in this Clause the National Commissioner was always responsible for the security planning committee. The National Commissioner had unfettered discretion in terms of the establishment of the Committee, the chairing of the Committee and appointments to the Committee, as more fully set out in the attached draft.

Clauses 21 and 22 Prohibition notices and spectator exclusion notices
Mr Roman noted that the original version of the Bill had set out that both prohibition notices and spectator exclusion notices were issues under the joint responsibility of the National Commissioner and the Minister. The reference to the Minister of Sport and Recreation was now removed in the latest draft. It would be the National Commissioner only who had jurisdiction on those legislative related issues.

Clause 45 Regulations
Mr Roman said that the issue of regulations had been raised in the written submissions to SRSA. Clause 45 (1) would deal with the regulations which the Minister of Sport and Recreation was entitled to make. The new Clause 45(2) now set out the regulations that the Minister of Police would be permitted to make. This effectively delineated the various functions as set out in the Bill under the respective areas of responsibility.

Clause 47 Limitation of Liability
Mr Roman pointed out that new subclauses (a)(b)(c) and (d) were incorporated in the latest draft. The Minister of Police and National Commissioner had wide-ranging responsibilities. Where they acted in good faith, their liability would be limited.

Ms Chikunga said that the Portfolio Committee on Police agreed in principle to the revisions, but would like some time to consider them in detail as a Committee.

The Chairperson agreed.

The Committee then proceeded to examine some other aspects of the new draft, starting with the Definitions clause.

Definition of Essential services
The Chairperson noted the references to ‘institutions or out-sourced entity’, and questioned whether there was the intention to cut across areas that were not necessarily government functions.

Mr Gideon Boshoff, Legal Advisor, SRSA, noted that the point had been made that some of the small local authorities did not provide their own electricity, but outsourced it. That was the reason why outsourcing was originally included. The latest draft had been amended further to include “ ‘including any functionary, institution or external service provider’. This was also more in line with other legislation

Events safety and security planning committee 
Mr Boshoff noted that the original draft had only referred to the proposed Sections 15 and 16. Now the revised draft included the words: ‘responsible for coordinating the functions of the role players that were involved in the provision of safety and security at an event, the safety and security planning for an event, the assignment of safety and security tasks, demarcation of safety and security zones, and to advise the National Commissioner regarding the committee’s assessment of the categorisation of an event’..

The Chairperson stated that that was a perfect definition.

Event Ticketing
The Chairperson said that it was brought to his attention that there were 100 countries who had organised syndicates outside South Africa.  The legislation accommodated the fact that, for the first time, South Africa would, during the World Cup, be able to close all the gaps. In South Africa there was not even any attempt at reselling of tickets. Now that the resale of tickets had been stopped, tickets in South Africa must not go out of the country, but could only be collected in South Africa.

Exclusion Notice
Mr Boshoff noted that the definition for exclusion notices had been amended. The new draft now incorporated the wording:  ‘which may be issued by the authorised member, VOC commander or the National Commissioner to prevent the attendance of a person or group of persons that, based on historical behaviour regarding such person or group of persons, or reliable current information, may result in the disruption of an event or cause injury to a person or damage to property’.

Existing Stadiums or venue safety
Mr Boshoff noted that this definition had been expanded on in the latest revised draft. It now included the phrase ‘the infrastructural safety of an existing stadium or venue’.

Grading certificates
The original draft ended after the words ‘section 7(2)’. The latest revised draft now included the additional words: ‘determining the safe spectator capacity of a stadium or venue and the level of risk of the event that may be hosted at a stadium or venue’.

High risk event safety certificates
Mr Boshoff noted that this definition did not refer to a standard certificate. It would differ from event to event under various conditions. The original definition in the previous draft was not very clear. It had therefore been expanded upon in the latest revised draft. He referred Members to the document for the full wording.

Peace Officer
There was a completely new definition, which was now included in the revised draft.

Prohibition Notice
The original definition of this referred to a notice contemplated in the proposed Section 22. In the latest revised draft, this definition had been expanded, as more fully set out in the attached document.

Registered person
Mr Boshoff indicated that there was a new definition now included in the latest draft for ‘registered person’, who was defined as a person defined in section 1 of the Engineering Profession of South Africa Act, No.46 of 2000, who was registered under the category of professional certificated engineer or professional engineering technologist, in terms of Section 8 of the Engineering Profession Act. The inclusion of such a person had to do with a possible conflict situation, where local authorities might also be the owners of a stadium or of a venue.

The Chairperson said that the Committee would need to consider the Bill more fully at a further meeting.

The meeting was adjourned.

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