Workshop on the Tourism Bill [B44-2012]: briefing by Minister, Department & Office of the Chief State Law Adviser

Meeting report

Opening Remarks by the Minister of Tourism
Honourable Marthinus van Schalkwyk, Minister of Tourism, provided a very brief overview of the Bill. He noted that the Bill replaced non legislative tools that were prevalent in the sector and that it set up rules that were applicable to all. Tourism legislation needed to reflect the current policy of government. The tourism sector was currently covered by the Tourism Act 72 of 1993. That Act had been amended three times, namely in 1996, 2000 and 2002. The Act however did not support the aims of the White Paper on the Development and Promotion of Tourism in South Africa, 1996. In 2009 government identified tourism as one of South Africa’s growth sectors. The National Department of Tourism (NDT) was guided by the National Tourism Sector Strategy (NTSS). The Tourism Bill would repeal Act 72 of 1993.

Minister van Schalkwyk referred to the presentation document and highlighted the objectives and the gaps addressed by the Bill. He pointed out that the White Paper and the NTSS recognised that there was a lack of understanding and knowledge in the tourism sector and hence the Bill tried to address the issue.
He also added that the Bill also made provision for tourism protection in that complaints could be heard. Essentially there would be a “Tourism Protector” in place to listen to complaints. The term “Tourism Protector” was by no means considered a final term to be used in the Bill and he and the NDT welcomed feedback from the Committee on its acceptability of use. He felt perhaps the term “Tourism Protector” might raise expectations on what the NDT was able to do. The Bill essentially contained provisions which were necessary to the tourism sector.

Tourism Bill: The Policy Framework
Mr Kingsley Makhubela, Director-General, NDT, continued with the overview on the Bill and on page 7 of the presentation document spoke to the purpose of the Bill, the legislative review process, the consultation process, key areas of discussion and lastly implementation plans. The purpose of the Bill was to provide for an enabling legal framework for the development and management of tourism. The review process of the Tourism Act, 1993 started in earnest in 2009. Consultation on the Bill had taken place and more than 450 comments had been received and dealt with. The Tourism Bill was introduced to Parliament on 4 December 2012. The issue of the “Tourism Protector” and norms and standards for the industry were some of the issues which had been discussed during consultations. Some of the implementation plans for the Bill included the Cabinet approval of the NTSS in 2011, the re-organisation of the NDT which was completed in 2012 and also the establishment of the Conventions Bureau within South African Tourism.

Ms Mmamodonki Setswabe Chief Director: Legal Services, NDT, referred to page 11 of the presentation document and proceeded to provide the Committee with brief summaries of what each chapter of the Bill entailed.
●Chapter 1 set out definitions and the objects of the Bill.
●Chapter 2 spoke to the NTSS and allowed for the provision of norms and standards and codes of good practice to be set up. 
●Chapter 3 provided for the continued existence of the South African Tourism Board and covered detail such as its functions.
●Chapter 4 authorised the Minister to develop a national grading system for tourism. A Tourism Grading Council would also be established to implement and manage the national grading system.
●Chapter 5 covered tourism protection and provided for the designation of an official of the NDT as the “Tourism Protector”. The functions of the “Tourism Protector” included recommending to the Minister the accreditation of a scheme or arrangement established by or for a particular tourism sector to resolve tourist complaints, and to monitor the effectiveness of accredited schemes.
●Chapter 6 seeked to regulate the practice of the tourist guide profession. This was in keeping with section 22 of the Constitution which protected the right of every citizen to choose a trade, occupation or profession freely and that the practice of a trade, occupation or profession may be regulated by law.
●Chapter 7 covered general provisions such as for example offences and penalties; regulations by the Minister; the repeal of laws and transitional arrangements.

Discussion
The Chairperson thanked the presenters for their inputs and highlighted some of his concerns. Firstly, he pointed out that there were some incompetent persons found in statutory bodies and that competent persons needed to be appointed to the Board. Perhaps stating it in law would be a bit drastic. Secondly, he stated that the issue of a “Tourism Protector” would be discussed as the process on the Bill unfolds. Thirdly, the debate as to whether grading should be voluntary or mandatory would continued. Fourthly, the issue of tourist guides and their qualifications would be further discussed. Finally, the issue of first aid courses being mandatory for tourist guides also needed to be looked into. 

Mr Makhubela responded to the appointment of qualified persons to the SA Tourism Board and noted that the best efforts were made to appoint qualified and competent persons. He pointed out that managing competence was subjective but that systems in place required competence.
He stated that international examples on the concept of a “Tourism Protector” had been considered and looked at. Qualified tourist guides were important. Tourist guiding should not only be a job but a profession.

Ms Setswabe explained that in most legislations abroad tourism was covered by consumer protection. South Africa was one of a few countries which dealt with tourism complaints on its own. Tourism protection mirrored the Consumer Protection Act. In coming up with the term “Tourism Protector” many jurisdictions were looked at as to what terms they used. The discussion over the use of the term “Tourism Protector” would continue with the Ministry and the Office of the Chief State Law Adviser.

The Chairperson asked Advocate Herman Smuts from the Chief State Law Advisers Office to address the Committee over the constitutionality of the Bill.  

Office of the Chief State Law Adviser: Constitutionality of the Tourism Bill, 2012
Advocate Smuts noted that there were at least four matters which needed to be addressed:
●To what extent the national legislature may legislate on a matter in respect of which it had concurrent legislative powers with provincial legislatures, viz.tourism.
●As far as the Bill was concerned, whether there was a rational connection between the Bill and a legitimate government purpose.
●Whether the regulation of the tourist guide profession, as contemplated in the Bill was constitutional when measured against section 22 of the Constitution
●The extent of public involvement in the finalisation of the Bill.

He provided the following four responses to the four matters mentioned above:
In terms of section 44 of the Constitution the National Assembly had the power to pass legislation             with regard to any matter, including a matter within a functional area listed in Schedule 4(section 44(1)(a)).The National Council of Provinces also had the power to pass in accordance with section 76 legislation with regard to any matter within a functional area listed in Schedule 4 (section 44(1)(b)). The Constitution thus authorised the national legislature to legislate on matters relating to tourism as well as matters reasonably necessary for, or incidental to, the effective exercise of a power concerning tourism. The Bill was such legislation.
The promotion of tourism was a legitimate governmental purpose. There was thus a rational connection between the scheme which the Bill sought to adopt and the achievement of a legitimate governmental purpose and, consequently, that in this respect the Bill was constitutional.
Given that the tourism industry was of major importance to the economy of South Africa and was a valuable asset, the government had a duty to ensure that the profession of tourist guiding was properly regulated and that tourist guides should practice their professions in accordance with acceptable standards. The requirement that a person who wished to be registered as a tourist guide had to show proof of competence in accordance with the National Qualification Framework (NQF) could impact negatively on the choice of profession or limit the right of a person to become a tourist guide, the view was taken that the requirement was proportional to the right in question. The requirement was also a reasonable and justifiable limitation as contemplated in section 36 of the Constitution.
In terms of section 59(1)(a) of the Constitution the National Assembly must facilitate public involvement in the legislative and other processes of the National Assembly and its committees. Section 72(1)(a) of the Constitution contained a similar provision in respect of the National Council of Provinces. The Constitutional Court had made several pronouncements on the constitutional requirement of facilitating public involvement. It was important that the legislature took steps to afford the public a reasonable opportunity to participate effectively in the law making process. There were at least two aspects of duty to facilitate public involvement. The first was the duty to provide meaningful opportunities for public participation in the law making process. The second was the duty to take measures to ensure that people had the ability to take advantage of the opportunities provided. Thus in complying with sections 59(1)(a) and 72(1)(a) of the Constitution, parliament would have to perform its functions with due regard to the pronouncements made by the Constitutional Court.

Mr Thulani Nzima Chief Executive Officer South African Tourism apologised for Ms Thembi Kunene Chief Quality Assurance Officer Tourism Grading Council of South Africa (TGSA) not being able to attend the workshop due to medical reasons.
He explained that the TGCSA was a going concern which was assisted by independent industry players. The TGCSA had reviewed its systems to become automated. Manual systems had been eliminated. He informed the Committee that more stringent standards were also being upheld. Hence going forward the TGCSA had solid systems in place. In order to improve efficiency fewer meetings were held as a result of the automation. Meetings were only held on a quarterly basis. As more bed and breakfasts were entering the tourism sector the TGCSA had improved many of its processes. The National Convention Bureau was already up and running. Various convention bureaus and centres had been equipped and there had also been successful roadshow consultations.

Discussion
Ms C Zikalala (IFP) noted that issues like grading and tourist guides needed to be handled with care. How could bed and breakfasts be encouraged to get graded?

Mr R Shah (DA) asked whether it was necessary to establish an independent statutory body like the “Tourism Protector” when the NDT could have dealt with tourism complaints itself.
He asked whether a curriculum for tourist guide studies was in place. If there was a curriculum was it standardised. He also asked what about persons who did not have access to institutions offering tourist guide studies. For example the SAN had knowledge about their culture but such knowledge was not formalised by a diploma course.

Mr Makhubela responded that the “Tourism Protector” was not a statutory body but a unit within the NDT. The “Tourism Protector” would ensure that complaints raised did not fall in between the cracks. The NDT was attempting to set up institutional capacity to deal with tourism complaints. There was not an independent statutory body.

Mr Victor Tharage Deputy Director-General: Policy and Knowledge Service, NDT, stated that he was the National Tourist Guide Registrar. He referred to the SAN tour guide example and said that the system took prior learning into consideration. For an NQF tour guide level 2 qualification a standard eight pass was required to register for the course. For a level 2 tour guide qualification a matric pass was required in order to register for the course. Those individuals who had not received formal schooling but had inherent knowledge were allowed to take oral tests.

Ms X Makasi (ANC) was pleased that tourism grading was centralised. It would allow for better access to information for persons at grassroots level.

The Chairperson asked how businesses were going to be incentivised in order to get graded given that grading was not yet mandatory.

Mr Makhubela stated that the TGCSA was an existing entity within South African Tourism. The Bill was amending existing legislation. The TGCSA had a board which advised the TGCSA. The idea was to incentivise small businesses to get graded. The NDT had already developed its institutional capacity.

Ms R Lesoma (ANC) asked whether rural communities were involved in the consultation process on the Bill given that the closing date for submissions was the 15 February 2013. She said that it seemed that the NDT was simply going with the flow regarding transformation in the tourism industry. She did not wish to rock the boat but asked why this was so. She also asked how businesses could be encouraged to get graded.
She was not entirely convinced that the office of the “Tourism Protector” would be taken seriously. There was no need to create bodies which would not make a difference.
How could it be ensured that the content of what tour guides were taught was the correct and original information?

Mr Makhubela said that discussions around the issue of “Tourism Protector” had taken place. The NTSS had self regulating mechanisms for the private sector. He noted that strong institutional capacity was needed.

Ms M Njobe (COPE) was pleased that consultations over the Bill had taken place. Referring to the four hundred and fifty submissions that had been received she asked whether the Committee could be provided with a list of the important submissions that had been received. 
She referred to the standardised budget structure for provinces which was approved by National Treasury and asked for clarity on what it was about.

Mr Makhubela responded that the NDT had consulted at length with the private sector on the Bill. Inputs received had been incorporated into the Bill. The list of submissions received would be forwarded to the Committee.

Mr Tharage explained that the standardised budget structure meant to allow provinces to have a common way to bring in the tourism function.

The Chairperson commented that bed and breakfast associations complained that the TGCSA had a one size fits all approach to grading. The complaint was that the different dynamics and needs of businesses were not taken into consideration. He asked whether the monitoring body created by the Minister had separate resources and people or was it manned by NDT employees.

Mr Shah asked if grading was transformed according to international best practice, against what it was benchmarked against given that South Africa was a developing country.  He asked for clarity on how the Minister was to establish norms and standards.

Mr Nzima responded that making grading voluntary or mandatory was a challenge to the TGCSA because of the concurrent powers of provinces. In some provinces grading was voluntary and in others it was mandatory. He said that there was a pool of establishments which applied to obtain grading. Some made it whereas others did not. The cycle to review graded establishments by the TGCSA was twelve months. Twelve months was the international standard. The cost element of being graded was to meet international standards. Tourists wished to have uniform standards across the world. The success of the grading systems lied in the benefits and incentives which establishments received. Grading was not a once off permanent thing. Continuous investment in the establishment was needed in order to maintain a level of service quality. Each province had assessors which performed the grading function. Assessors were not permanent employees of South African Tourism. Assessors were well trained and were incentivised.
He responded that there was not a one size fits all approach at the TGCSA. There were nine categories of establishments and services which were graded. A new tenth category ie lodges was now added.

Mr Dirk van Schalkwyk very briefly recapped what each of the chapters of the Bill entailed.

The Chairperson thanked the presenters for workshopping the Committee and closed the session.

The meeting was adjourned.