The Department of Sport and Recreation South Africa (SRSA) briefed the Select Committee on the Safety at Sport and Recreational Events Bill, B7-2009 (the Bill). The Senior Legal Advisor and Project Manager of SRSA, discussed the objectives of the Bill, the current status of the Bill, and the rationale behind the Bill, which was primarily risk management delivery at events. It aimed to avoid recurrence of disasters such as those at Ellis Park and the Oppenheimer Stadium Orkney. The SRSA stressed that this Bill was far more reasonable and less stringent than comparative legislation in other countries, and this had to do with the balancing of Constitutional rights. It aimed to address the current challenges where event organisers were reluctant to accept responsibility to provide adequate safety measures or to put public liability insurance in place. In terms of the Bill, the proper event safety and security measures would rest with the controlling body, event organiser, or stadium or event owner, who, if a natural person, must be at least 21 years of age. Cooperation and assistance was to be provided to the South African Police Service in relation to security aspects. The key aspects of the bill were outlined. The prohibitions, risk profiling and the possibility of application for exemptions were explained.
Members at the outset discussed the role of this Committee. The Chairperson noted that the NCOP was not a mere “rubber-stamp” of the passing of the Bill by the National Assembly. She wished to make that point quite strongly since some Members who also served on other Committees had not attended the briefing session for this Bill, which detracted from their ability to consider it properly. The Deputy Minister confirmed that the Ministry and Department fully understood and agreed with the vital role that the NCOP played in the consideration of legislation. Members asked why the Bill had sought to adopt a “reasonable” approach, wondering if it was not perhaps being too lenient to sports hooligans, and the Department stressed that there were sufficiently strong provisions to deal with such events. Members questioned why this Committee was given a relatively short time to consider the Bill, particularly since it had already been presented to the National Assembly last November. They questioned why the age limit of 21 years had been fixed in respect of stadium owners and organisers, questioned the requirements of public liability insurance, and whether this might not hinder some communities from holding events, asked about age profiles of attendees, particularly since children and small babies might attend events with their parents. Members also asked about appeals, the references to “natural persons”, inspections of stadiums and the safety and rating certificates, evacuation processes, whether events such as cycling races, that were not held in stadiums, were still covered by the legislation, and what events could be exempted. Members also discussed how this legislation would impact upon, or exist alongside, the Regulation of Gatherings Act. Members questioned how enforcement would work, the distinction between the high, medium and low risk categories, whether the Bill applied to all, and whether late arrangements of safety and security could cause problems.
Safety at Sport and Recreational Events Bill [B 7-2009]
The Chairperson welcomed the Deputy Minister of Sport and Recreation to the meeting, and noted that during this meeting the Department of Sport and Recreation (SRSA) would brief the Committee on the Bill, whilst a further meeting would cater for discussion and possible amendments.
Department of Sport and Recreation (SRSA) briefing
Mr Gideon Boshoff, Senior Legal Advisor and Project Manager, Department of Sport and Recreation (SRSA), started his presentation by listing some of its key objectives of the Safety at Sport and Recreational Events Bill (the Bill). He noted that he would provide a strategic overview of the legislative developments and implications of the Bill, and give some insight into the reasoning which underpinned the Bill, from the point of view of safety and security planning, and delivery at domestic sport and recreational events (see document).
Mr Boshoff said that the legislation was focused on risk management delivery at events. One reason for this was that South Africa was increasingly becoming a desired destination for major international sporting, recreational, political and social economic events. It was Government’s policy to attract and support the hosting of such major events in the country. The Bill aimed to protect the primary stakeholder at such events – namely the general public – who attended the thousands of sporting and recreational events held across the country each year.
He then outlined the reasons for the Bill that were linked to the FIFA World Soccer Cup. Although the FIFA World Cup South Africa Special Measures Act, No 11 of 2006, had been passed, and regulations were issued under it, this Act dealt with specific issues only. This Act did not deal with key safety and security areas such as ticketing matters, minimum measures to ensure the safety, as opposed to security, of the general public, and the establishment of offences and penalties for anti-social behaviour inside and immediately in the vicinity of the 2010 stadiums.
Mr Boshoff then compared this Bill to others in the world. South Africa had, he believed, drafted a reasonable piece of legislation, as opposed to what the United Kingdom (UK) had in place. The UK system was over-reaching and intrusive. In contrast, the South African Bill had adopted a more reasonable “middle of the road” approach, which incorporated the necessary Constitutional safeguards.
Some of the current challenges included the failure or resistance of event organisers to accept their responsibility to provide adequate security at events. Another challenge was the hosting of events without proper and sufficient public liability insurance being in place.
The primary responsibility, in terms of the Bill, to ensure that the proper event safety and security measures were in place would rest jointly and severally with the controlling body, event organiser or stadium or venue owner. Those persons or bodies must co-operate with and assist the South African Police Service (SAPS). An event organiser must (if he or she was a natural person) be at least 21 years of age, and have the necessary capacity, resources and experience to organise an event.
Mr Boshoff’s presentation listed some of the key aspects of the Bill (see attached document for details). The prohibitions were listed, followed by the categorisation of sport and recreational events. Mr Boshoff also discussed the risk profiling of events. The Bill provided for 21 risk profiling criteria in the categorisation process. These included the certified safe capacity of stadiums, and the sport event factors that needed to be taken into consideration, such as any known rivalry between teams, or any historic fan behaviour.
The Chairperson said that before allowing Members to interact, she wanted to deal with procedural matters. There was sometimes a perception that if the Bill was passed by the National Assembly (NA), it was a mere formality for it to be considered by the National Council of Provinces (NCOP) and its Committee. That was incorrect. The NCOP’s job was to represent the provinces, and in order for Members to do so, they needed a good understanding of the Bill, so that they could in turn explain to their legislatures what the implications of the Bill would be.
Hon Gert Oosthuizen, Deputy Minister of Sport and Recreation, said that he would like to respond to the observation made by the Chairperson. He said that it was correct that the NCOP should scrutinise the Bill and make amendments to it where it felt that this was necessary. He agreed that the perception was quite wrong, and this was certainly not the view held by the Ministry or Department; people would not have travelled from Pretoria to Cape Town if it was seen as a mere formality. He requested that Members interrogate the Bill thoroughly. However, he urged that they bear in mind that the legislation was intended to cater for events held at a modern stadium in a modern country. South Africa was a step ahead of other countries, and he was proud of this Bill, on which the Department had consulted and which had been benchmarked.
The Chairperson said that one of the reasons why she wanted to clarify that perception was the fact that some Members, who were also Members of other committees, had not been able to obtain permission from the other Committees to be released of their duties to attend this meeting.
Ms M Boroto (ANC, Mpumalanga) said that Mr Boshoff had spoken of “reasonable legislation”, and South Africa was compared to the United Kingdom. The document also spoke of activities such as spectator banning orders prohibiting cross-border travel, on mere suspicion of hooligan behaviour. Members were aware, from tournaments around the world, that hooliganism could not be taken lightly. It was certainly happening, and there were groups who attended events simply in order to create trouble. She questioned why, then, this Bill should not be more extreme, so that there was absolutely no space permitted in which such hooliganism could occur, especially during the Soccer World Cup. She wondered if, by being reasonable, the Bill was also being too reasonable towards the hooligans.
Mr Boshoff answered by saying that the Department had needed to weigh up the provisions of this Bill also against the Constitution. In order to capture all the rights enshrined in the Constitution, an “omnibus” piece of legislation had been created, and it catered specifically for the needs of South Africa and its Constitutional principles. It was consumer friendly from a South African perspective. The Department did not feel that over reaching legislations or regulation should be drafted.
Mr Patrick Rowland, Specialist Legislation Consultant: Safety and Security for sporting events, SRSA, clarified that although this was a reasonable piece of legislation, it still had “teeth”. For instance, there were exclusion notices able to be issued, to deal with hooliganism. There were provisions for SAPS prohibition notices. There were also heavy penalties provided in respect of non-compliance. He reiterated that this Bill was tailored for South African needs and conditions.
Mr M De Villiers (DA, Western Cape) said that his first question related to the position of the NCOP and the National Assembly. He had noted that, already in November 2009, the NA’s Portfolio Committee on Sport and Recreation had been given a chance to hear the presentation from the Department. He questioned why the NCOP Committee was only hearing about it as late as March 2010. He suggested that, in future, when the Department gave a presentation to the Portfolio Committee, it should also try to ensure that members of the Select Committee were also present, so that one presentation was given, and so that there was enough time to interrogate the legislation thoroughly.
The Deputy Minister said that that was not a question which should be addressed to the Department, as such matters were not in the Department’s hands. He said he was not shifting blame, but he felt that it was important to outline the events. The Bill had come a long way, and it was unfortunate that the completion stages were only being reached now. He apologised for the fact that the NCOP had been somewhat “taken over” by the sequence of events. He added that nobody was insisting that the NCOP must finalise the Bill today. However, he did need to draw attention to the fact that the Bill was very important and it was quite urgently needed, and therefore should be passed soon.
Mr De Villiers asked about the 21-years of age limit which was referred to in respect of stadium or event owners, and questioned why this figure had been chosen, in view of the fact that a person of 18 years old was legally regarded as an adult in South Africa. He wondered whether there was a particular reason for the departure from the normal age references.
Mr Boshoff said that he agreed that in terms of the Constitution 18 years was regarded as the “coming of age” when a person would obtain legal majority. However, during various consultations on age in the provinces, the point was made several times that 18 years was considered too young. The three years between the ages of 18 to 21 years greatly assisted a person to develop his or her maturity. From a sourcing and experience point of view, it was decided that a 21 year old was in a better position to qualify as an event organiser than an 18-year old.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, said that when considering the impact of legislation against the Constitution, the principle was that no other legislation should result in “unfair” discrimination. Whatever measures were included in the legislation should be rational, when tested against what the legislation was seeking to achieve. It was considered that requiring a person to be 21 years of age was in keeping with, and therefore rational in relation to the requirement for safe event organisation.
Mr De Villiers also asked about the public liability insurance. He understood that one of the senior federations could perhaps pay the fees for the insurance. He had a problem with that. He wanted to know whether the Department could specify whether there were one or more companies which handled the insurance, and certified about their affordability. He was worried that there could be negative effects on the federations if they were to organise this for themselves. It was very important that the communities be able to attend the events, particularly the youth, who were probably also the most interested in attending such events.
Mr Rowland replied that the public liability insurance was definitely the cheapest insurance that money could buy. For the Ellis Park Stadium, the public current liability insurance bill, per year, for 450 events, was R190 000. If that got divided up per event, it was only R3 800 for insurance for each event. For small events in a small venue, the bill would be about R1 000 per event. He stressed that this was not a great deal. He also stressed that it was necessary to avoid the situation where a member of the public might be injured during an event, and where the responsibility for that would lie with the event organiser or the State, instead of being properly covered by insurance.
Mr De Villiers asked about the age profile of the attendees at the events. He was aware that sometimes very small babies might go with their parents to events. He wondered if the age profile included that.
Mr Rowland said that Mr de Villiers’ point was correct. That was one of the reasons why the drafting team had included age as one of the risk-profiling criteria that had to be considered when assessing whether an event was a high risk, a medium risk or a low risk event. There may even be rules that stated that there may only be one spectator per seat.
Mr De Villiers asked about the appeals and the time of response. If someone was prevented from attending, or was arrested at an event, and then it was decided that that person could not attend a future event, he asked what time period was allowed for that person to appeal against the decision.
Mr Boshoff said that the Bill provided for this in Clause 42. A person who was restricted could, within forty days, lodge an appeal with the appeal board. That appeal must set out the grounds as captured in sub-clause (2). Sub-clause (3) said that until the appeal was finalised, the decision must be regarded as having been validly made, so the prohibition would stand until overturned. Sub-clause (4) said that the prosecution of an appeal in terms of this Clause must follow the prescribed procedures. The appeal board must, however, apply its mind swiftly to the facts. The Regulations would definitely be structured carefully, and would set out the time limits within which any appeal should be finalised.
Mr W Faber (DA, Northern Cape) wanted to know what was meant by a “natural person”. He asked whether a natural person was one of 21 years or older.
The Deputy Minister replied that every person was regarded as a “natural person”, but other entities, such as companies and corporations, were regarded as “(juristic) persons” who were given a similar status for purposes of the law.
Mr Faber asked about the inspection of the stadium structures. He wanted to know who was responsible for the inspections on the strength of the stadiums, and whether they could hold a certain number of people. He wondered whether this would fall under the safety certificate, or the rating certificate.
Mr Rowland said that there was indeed inspection of the concrete and structure of the stadium. This fell under the provision that dealt with the safety certification. Independent engineers would have to give the necessary structural safety certification before the stadium was opened for use. The safety inspection, and the giving of the safety certificate, was an annual process. It would then also be tied to a grading certificate to determine whether the event would be a low, medium or high risk event.
Mr Faber questioned the evacuation process. He was aware that there was a computer system which was introduced a few years ago on evacuation processes. He wanted to know how any evacuation was going to be handled, and felt that spectators should also take some responsibility on the manner of evacuation.
Mr Rowland said that the detail of the evacuation process would obviously be catered for in the legislation, and that would fall under the provisions of the safety certificate as well. He could assure Members that these matters were covered, in respect of the ten stadiums that were being built and upgraded, in the safety certificates of those stadiums.
Mr Faber enquired, in relation to cycling events, whether these would fall under the legislation as well, although the cycling events did not take place in a stadium. He wondered if there would be liability attaching to the organisers of cycling events.
Mr Rowland said that the short answer to that question was that they were included if the event was organised within a club, and it was a club cycling event. It would be considered a low risk event and there would be minimum safety and security measures that the event organiser would have to put in place.
A Member of the Committee wanted to know about the exemptions. She said she had read that the Minister might declare that certain events could be exempted. She applied her experience as a former trade union leader to her question, and noted that an entity might convene a mass meeting, for instance to finalise and solidify its mandate, which might be to hold a strike, although this would not have been in the annual plans for the Union. She wondered if the Commissioner would not then agree to allow the entity to hold that meeting in a stadium.
She also questioned the age requirement. She said that a rally might be held in a stadium – for instance involving students – and the leaders might not be 21 years of age, which meant that they would be generally disqualified from organising an event in the stadium. She asked whether these two situations were reason enough for exemptions.
Mr Bertus van der Walt, Director: Legal Services, SAPS, said that the age of 18 years applied to the legislation that regulated certain gatherings (Regulation of Gatherings Act). A political gathering, such as a rally by a Union, would fall under that piece of legislation. Here, an organiser may be 18 years old. The same Act also affected unforeseen rallies or meetings of labour unions or political parties. The timelines in this Act were different from the Bill being discussed.
The Member asked how the Bill envisaged enforcement. The example that she gave was that of Ellis Park Stadium, which had its own regulations around what should and should not happen. She asked how the Bill would ensure that those measures in the Stadium would be enforced.
Mr Rowland responded that there was an Inspectorate that would monitor the enforcement of the legislation. There was also an event Safety and Security Committee, and the Chairperson of that Committee must make sure there was consistency of measures being applied. This would be considered for each event.
The Chairperson thought that the Bill seemed to have a bias towards the higher-risk recreational activities. She asked if the lower and medium risk events had to adhere to the Bill as well. She cited, as an example, an event where children might be gathering in a stadium for purely recreational events.
Mr Rowland said that it might appear that the Bill was geared towards high risk events, but that was certainly not the case. The provisions and exemptions in the legislation were proof that there was a distinction made between high risk events and low risk events. All events were covered.
Ms Boroto said that she was worried about the fact that the safety and security at events were left to a very late stage, which could cause problems.
Mr van der Walt said that it could be a major problem for the SAPS to deal with this. However, he was not aware of any major event that South Africa had hosted at the last minute, where there were any substantial problems. An example of such a last-minute event was the Indian Premier League, which South Africa hosted in 2009. The security measures were more than adequate. The formalisation of structures that were already being used by the police would obvious assist the SAPS.
Mr De Villiers said that he was looking into the matter from the perspective of disadvantaged communities, who might well not be able to afford the R1 000 quoted earlier for insurance cover. He questioned if there would be a set minimum cost or a set maximum cost for events. He said that these costs might well prevent any events from being organised.
Mr van der Walt said that it was possible to apply for an exemption from the Minister, as set out in the legislation. If the exemption was granted, then the municipality or local authority or even the provincial authority would then have to assume the risk of public liability.
Mr De Villiers noted that when the Bill became law, it would replace other legislation. He wanted to know whether the Regulation of Gatherings Act would also be replaced.
Mr van der Walt clarified that the Bill would not “replace” any other legislation, but would supercede the provisions of those Acts in the case of any conflict. This Bill, once passed, would effectively exist side by side with the Regulation of Gatherings Act, as the latter was more focused on political gatherings, but the former was more focused on a different type of event.
The Chairperson said again that this meeting was intended simply to introduce the Bill to Members and allow them to clarify points, in preparation for the second meeting on the Bill, which would consider in more detail the content and wording.
The meeting was adjourned.
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