Tourism Bill [B44-2012]: Deliberations


14 March 2013
Chairperson: Mr D Gumede (ANC)
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Meeting Summary

The Committee had held public hearings on the Tourism Bill and now met to deliberate on the submissions made. A query was raised on the continued existence of the South African Tourism Board (SATB), whether it would continue to function under the new Act (once passed) and regulations. It was clarified that although this body was established as a legal entity under the former 1993 Act, it would continue to function, under the transitional provisions and that its decisions would continue to be valid when that Act was repealed. In relation to the definitions, there had been a suggestion that “tourism”  and “tourist” needed to be defined in the Bill, and the World Tourism Organisation definitions were proposed. However, the State Law Advisors believed these words had an ordinary and well-established definition and cautioned against attempting to assign a specific meaning. The Department of Tourism also was not in favour of a definition, and it was agreed that this should not be inserted. No changes were made to the other definitions.

Members had extensive debates upon whether the word “may” or “must” should be used in clauses 4, 5 and 6 (and the point would be raised again in other clauses). Members initially felt that the Minister should be placed under an obligation to create a National Tourism Sector Strategy and to review it regularly. A five year period was suggested (linked to five-year plans), whilst a Member thought it would be preferable for the Committee to see annual reviews. The legal advisors noted that the word “may” was intended not so much to allow a discretion to the Minister as actually to empower the Minister to act. They stressed that the Committee always had the power to call a Minister to account if it felt that the economic climate demanded a review, and said that imposing other limits in addition to the 2020 strategy may be counter-productive. Members decided not to change the wording of clause 4. However, for clause 5, Members thought that the wording should be “must” because it related to setting up a structure and a system, and because the collaborative processes set up by this clause must be made to work. The Department of Tourism pointed out that there was a link to clause 6, and Members debated whether this clause was intending to empower the Minister, or create obligations on the part of the Minister or other entities. One Member said that if the Minister was obliged to set up systems, then s/he must also be given the wherewithal to collect the data needed for the systems. The legal advisors added that if obligations were imposed, then a corresponding penalty should be included for non-compliance. Another point was also raised that businesses may be reluctant to release information that could affect their competitiveness in the sector. Members debated whether ability to get information “from any other source” was sufficient and agreed that it was not necessary to amend clause 6(5). They also agreed to leave the word “may” in clauses 6(1) to (5). Clarity was provided on why other state entities were mentioned in clause 6(2)(d). Members then discussed clause 13 and agreed that a reference to geographic spread should be one of the factors to be considered when appointing the board, but that it should be inserted under clause 13(4). They confirmed that the reference to between nine and thirteen members was not intended to imply that there must be one representative per province. They agreed that in principle the Minister should report to this Committee about board nominations before appointments were made. Finally, Members debated clause 28, agreed that the grading system should remain voluntary, in light of the fact that mandatory grading did not find general support in the industry, and again decided that the word “may” would be retained in this clause.

Meeting report


Tourism Bill: Deliberations
The Chairperson read out the long title of the Bill and suggested that the Committee should go through the Bill clause by clause.

The Committee Secretary noted that after the second day of the public hearings, a summary had been drawn (see attached document, referred to as “the Committee document”) of the main suggestions and he thought that Members should comment, firstly, on whether this report correctly captured the points raised, and make any other comments. The purpose of this would be so that the printers could be asked to produce the A-list and a B-version, ready for deliberations in the following week.

Ms M Njobe (COPE) suggested that the usual procedure should be followed by the Committee. She had thought that on this day the Committee should go through the clauses one by one. The document prepared by the Committee Secretary was good, but some other Members may want to add other comments.

The Chairperson thought that there was no difference essentially in the two procedures. The Committee would examine each clause of the Bill.

Mr R Shah (DA) said that there had been public hearings on the Bill, that all Members had made their own notes, and some of the essential points had been captured in the Committee document. He agreed with the Chairperson that a chapter by chapter progression would be acceptable, checking back against that Committee document.

Ms Njobe thought the Department should also be making input at this stage.

Long Title
Ms Njobe said that the Long Title and Objects provided for the continued existence of the South African Tourism Board (SATB). She noted that the Bill sought to repeal the 1993 Act in its entirety, yet was also looking to ensure the continuation of the Board. She asked if the Board would continue operating in terms of regulations established by the old Act, or under this Bill.

Mr Shah agreed that this Bill was repealing that Act, but it also provided for the existence of the Board despite the repeal of the Act, under a new dispensation.

Mr Sibusiso Khuzwayo, Content Advisor, Parliament, noted that transitional provisions appeared on page 22, and that answered how the Board would be governed. The provisions of the old Act would prevail until the new Act came into effect, and any decisions made by the Board during that period would be valid.

Mr Herman Smuts, Principal State Law Advisor, Office of the Chief State Law Advisor, agreed that in future the Board would be regulated under the new Act. Clause 9 dealt with the continued existence of the entity or legal person of the SATB. The SATB was established as a juristic person under the old Act but this Bill said it would continue to exist, and the Board members would be continuing in office until the Minister determined otherwise. Once the new Act was passed, they would take their mandate from that.

No members had any difficulty with the Preamble

Clause 1: Definitions
The Chairperson noted that it was suggested that a definition was needed for “tourism” and “tourists”. The words proposed in the Committee document were taken from the World Tourism Organisation (WTO) definition.

Mr Smuts said the Committee would need to consider what mischief the Committee may wish to address by having a definition. In the absence of one, the ordinary dictionary meaning would prevail. Defining a word that was not necessary might bring its own problems. He felt that “tourist” and “tourism” were well-known words with an accepted legal meaning and suggested that it was not necessary to have a definition.

Mr Shah said that the objective of defining was to ensure that there were not loopholes. He personally did not believe that either definition was needed. He cautioned that unintended consequences might follow from defining something not necessary.

Mr Khuzwayo said that categories may need to be defined for certain purposes; for instance, the Department of Tourism and Statistics South Africa may wish to have a set of indicators which might not fall within the ordinary definition. Also a “tourist guide” was defined, but the tourists they were guiding were not. Technically there were implications to the definitions but he also thought that from a legal point of view no definitions were needed.

The Chairperson asked if the lack of a definition would affect the database. He also asked if there was any difference between a tourist, a traveller and a visitor.

Ms Mmaditonki Setwasa, Chief Director: Legal Services, Department of Tourism cautioned that if there was a definition, there was also a danger that if it fell short in any way it may actually hinder the Department of Tourism (DOT or the Department) from fulfilling the mandate. Clause 6(2) said that the Minister could, for the purposes of (1), determine the categories of tourism businesses that must provide information. The businesses would therefore be defined, and there would not be a blanket cover. The UN WTO had its own specifics, but these did not satisfy the requirements for a legal definition. Statistics SA also had its own requirements. The DOT did not think there was any need to lock itself into any definition.

Ms J Ntuli, Research Unit, Parliament, said that the disparity in definitions came about in part because South Africa had not defined what a “tourist” would be, although she did not see that there would be any problem defining it from the world perspective. There was a possibility that “tourism services” may not be limited to business in the hospitality industry, as these could, for instance, extend to trip advisors. If there  was no definition of “tourism” in the sector it could be difficult to get information.

Mr Gary Rhoda, Parliamentary Legal Advisor, said that he was worried about the limitations in the suggested definitions, which referred to “ outside the usual environment” and “for not more than one consecutive year “ There were disparities, but it was possible to find other ways of defining too, from the statistical purposes viewpoint.

Mr Shah suggested that a possible solution might be to define a tourist as a person who was a visitor from abroad or a person who travels within the country. He agreed that it would not be necessary to specify anything about the environment or time frames.

Mr Khuzwayo responded that the Act was talking about “tourist” and to start defining “visits” might be difficult.

The Chairperson said that on Mr Shah’s suggested definition, every MP could be regarded as a tourist. He fully understood why the Department was reluctant to define. He thought, on consideration, that there was actually no need to define the terms at all.

Mr S Farrow (DA) agreed that no definitions should be given. He suggested that a “site guide” should be defined as this term was raised during the public hearings. He asked what a site guide was.

Mr Khuzwayo said that this was a specific and well known term in the sector, and explained that a person would be issued with a certificate to guide at specific sites or attractions.

Mr Smuts reported that from the technical drafting perspective, a definition of “site guide” was not needed because there was no reference to this in the Bill. Only expressions used in the Bill would ever be defined.

Members had a brief discussion about the procedure. Mr Shah said that it might be useful, for each Chapter, to comment on whether anything needed to be changed, based on the public hearings.

Members agreed that they did not want to insert definitions for “tourism” or “tourist”.

There were no comments raised on the rest of the definitions.

Clause 4: National Tourism Sector Strategy
Mr Khuzwayo noted that comments had been raised about the National Tourism Sector Strategy (NTSS), but most could not be legislated for. The Committee would need to decide whether to extract some of the key issues that might warrant legislation, to try to ensure compliance and growth of the industry.

He added that the Minister could be required to establish a process. Presently, clause 4(4) referred to the fact that the Minister “may review” and adjust the NTSS, but it was suggested that the “may” be changed to “must” and that a five year time frame be inserted.

Mr Shah recalled that during the public hearings, people were concerned that the Minister should do a review. However, he asked on what basis a five-year period was chosen. He also noted that the new wording made no mention of a consultative process, as set out in clause 4(4)(b). He thought it was important to include both aspects.

Mr Khuzwayo clarified that the suggested wording related only to subclause 4(4)(a). In regard to the timeframe, he pointed out that this period was chosen to fit in with the fact that all strategy documents were based on a five-year process. It was thought that this was clearer than the original wording of “if necessary”.

The Chairperson added that ministers could also change.

Mr Farrow believed it was important to hold the Minister to a time-frame, whether this was three or five years. He also wanted to see a report tabled at this Committee so that it could check whether there was progress on the strategy. The NTSS held a whole series of players also to account, which was important, because other departments had the potential for holding back tourism if, for instance, they failed to put infrastructure in place.

Ms Njobe asked how the Sector Strategy would differ from the Annual Reports. She also asked if a Minister would have to wait for the end of a five-year period, or if a new Minister could review it immediately upon taking office.

The Chairperson clarified that the NTSS involved all role-players and it did also include private stakeholders.

Ms X Makasi (ANC) agreed that five-years was appropriate. She thought the five years should be clarified with wording such as “if necessary”.

Mr Shah said that whilst it was important to ensure accountability, it was necessary to be careful. Even if the environment demanded change in the sector strategy, a Minister might decide not to do another review, on the basis that one had been done less than five years previously. He suggested that perhaps wording could be used to the effect that the Minister must periodically review. The nub of the issue was that the changes should be made when required so wording such as “if necessary make adjustments” could be added.

The Chairperson explained again that it was not one person who might be involved and a stronger accountability mechanism was needed. This Committee wanted to see the best-performing models in place.

Mr Farrow said that it must be appreciated that this was intended to ensure a dynamic approach. He cited the example of a recession affecting tourism, and said that shorter time frames would be appropriate and that it could perhaps be linked to an annual fiscal cycle. He shared the concerns about the five-year framework, and when the commitment would start and end. He wondered if the review should not perhaps rather be linked in to the Annual Report cycle..

Mr Rhoda said that perhaps it was not necessary to force the Minister doing a review. This provision was intended rather to empower the Minister to do a review, and the Committee could always ask him to do this. He pointed out that the NTSS already had a built-in monitoring and evaluating mechanism already. There was a large machinery around reviewing the strategy. It was not necessary to encumber the Minister with doing reviews too regularly. On the one hand, Parliament’s oversight role needed to be strengthened, but on the other the Minister should not be overly burdened.

Mr Shah suggested that in this case perhaps the term “may” should be replaced with “must”. He also indicated that the NTSS had targets up to 2020. It would not make sense now to write other legislation that might upset or run counter to those longer-term targets. If the environment had changed, or legislation was not working, then the Committee always had the power and authority to ask the Minister to do something. He thought that “must” without time frames was sufficient.

Ms Njobe said that there were several instances in the Bill where “may” appeared, and she appreciated the contribution of the legal advisors. If indeed there was a specific interpretation and the reason that  “may” was used was in order to empower the Minister to act, then she had no problem with that term.

Mr Shah quipped that he reserved the right to change his mind and on further reflection he agreed with Ms Njobe. If the word “must” was used, then it implied that time frames were also needed. He reiterated, however, that the word “may”  did not give a Minister authority to sit back and do nothing. This Committee could always instruct the Minister to act and do the review.

Mr Farrow said that the question was really whether the Committee wanted the Minister to do something, or was happy to leave it in the Minister’s discretion. This was a vital part of the Bill, and the public participation in the NTSS was particularly important. People must be given the assurance that their submissions would be taken into account, and the whole process must be done. It went directly to the heart of transformation in the sector, and that was something that could be directly dealt with under this clause. He felt quite strongly that it was necessary to be firm and use “must”.

Mr Shah repeated that if “must” was used, then a time frame must be attached to this. If the Committee did want to use “must”, then at least the word “periodically” could be used.

The Chairperson said that the practicalities must also be taken into consideration and there was also a question of alignment with the National Development Plan (NDP). The essence was that the Committee must be able to, and have enough flexibility to hold the Minister to account. The NTSS could be used as one of the indices for reporting.

Mr Smuts agreed that the use of “may” was in order to authorise the Minister to perform a function. However, it did not mean that the Minister could simply sit back. The Constitution placed clear obligations on the Cabinet, who were accountable to Parliament for the exercise of their powers and functions. The Committee would be able to call on the Minister at any time to account for this function.

The Committee decided to keep clause 4(4)(a) as it was in its original version.

Clause 5: National Tourism Information and Monitoring System
Mr Khuzwayo said that a similar discussion may arise here. The public hearings had suggested that the Minister should have a system for collecting the data.

Mr Shah believed that the “may” could be changed to “must” because this related to setting up a structure and a system. At present there was no proper system in place. He did not think that the Minister needed to have any discretion in this regard.

Mr Farrow agreed.

Ms J Maluleke (ANC) agreed that the emphasis was important and it was necessary to set up systems now for the monitoring.

Mr Rhoda said that this was essentially the same debate. This clause also was inserted to empower the Minister to do things in line with what was already set out in the NTSS. He noted, however, that it was up to the Committee to decide, as a matter of policy, whether it wished to use “may” or “must”.

The Chairperson asked if obliging the Minister to do this was likely to affect the costing and budget.

Mr Farrow noted that a document from the DOT set out that data capturing would have to happen, but this was a collaborative process with the whole industry. The monitoring and evaluation, in his view, was a “must”, because if the Minister did not have that power, there might be problems when the bodies were asked to provide the information. The monitoring depended on the collection of data. He felt that “must” would empower the Minister more effectively to get the information. He did not agree with Mr Rhoda on that point.

The Chairperson and other Members agreed with Mr Farrow.

Ms Setwaba noted that the change of this clause would not directly affect the DOT’s work, but pointed out that clauses 5 and 6 were linked, and clause 6 used the term “may”.

Clause 6
Mr Khuzwayo noted that during the public hearings points were raised as to whether the process should be compulsory or optional. The Bill provided for regulations on how the system could be developed. If Members felt that the regulations would adequately cover the points, that would be acceptable and nothing more would need to be inserted. If, however, they felt that the process should be mandatory, a new proposal had been made, in the Committee document, for clause 6(5), to allow for collecting of information from tourism businesses themselves and other sections.

Mr Shah agreed with the view expressed by the DOT. If the Minister “must” establish a system, s/he should be empowered to achieve that. If the obligation to establish a system was there, then businesses must be obliged to provide statistics whenever required of them. There was no point in telling a Minister to do something that could not be followed through.

Ms Njobe noted that clauses 6(1) and (2) required a database of information. Clause 6(5) said that the Minister could get the information from another source. If this was done, there could be issues around the accuracy of the information.

Mr Farrow said that his only concern about making something mandatory was that the whole industry was very competitive and businesses may feel compromised by having to give their information to another person. That could also have constitutional implications. He said that the intention was to allow the Minister to get as much information as possible from State bodies. However, he agreed that the Minister needed to be given the power to do so. Clause 6(5) already referred to “any other source”, and perhaps that could be defined in the regulations.

Mr Khuzwayo agreed that Mr Farrow had raised an important point. However, there was another challenge around collecting statistics. The Tourism Economic Account was information gained from Department of Home Affairs, the airlines and so forth. Technically there could be problems with that, because there may not be local and specific information on that.

Mr Farrow noted the suggested wording on the Committee document, which read “ For purposes of a comprehensive database of information, nothing in this section prevents the minister from collecting information about tourism businesses from tourism businesses themselves and other sources”. He felt that this would give more flexibility in the process.

Mr Khuzwayo said that generally the Minister could get the information anyway but the proposed amendment now also allowed the Minister to interact directly with the particular organisation. However, it still did not say that they were obliged to give the information.

Ms Njobe said that if the new clause 6(5) was to be accepted, it still emphasised “from any other source”. She did not think that the proposal made any substantial change.

Mr Farrow asked if “may” was correct in subclause (3).

Ms Setwaba noted that the intention was to empower the Minister to get information. She drew attention to clause 6(2)(f) and added that if this was to change to “must”, then businesses would be under an obligation to provide the information. If they did not, then penalties or consequences had to follow. This raised the question of whether South African Police Force (SAPS) had the capacity to deal with these kinds of matters.

The Chairperson agreed that an obligation could not be created without a consequence for breaching it.

Mr Rhoda said that the purpose of the provision was so that the Minister could grow the industry, which s/he could only do with information provided by the industry. If “must” was used, the question was when the Department would start and stop policing, and what the purpose was of that provision.

Mr Shah thought that the whole clause should be left in its original form.

Mr Farrow made the point that the two “must” statements had to run concurrently. Either no “must” should be included, or, if the Committee decided to use this word, then it also had to decide whether more had to happen. He wondered if it was empowering the Minister.

The Chairperson said that there was a problem with using “must” if there were no consequences. He noted that clause 6(2)(f) provided incentives and recognition, and that would encourage a certain type of behaviour.

Mr Farrow said that this was giving something, and did not apply to the obligation.

Mr Rhoda said that it was clearly in the interests of the industry to give that information.

Mr Shah said that if “must” was used once, it had to follow through. There was no sense in saying that someone “must” do something without the other person linked to that also being obliged to provide information, and that raised the question of consequences for non-conformity.

The Chairperson suggested that the reference to “may” be left in subclauses (1) to (5).

Ms Njobe asked for clarification on clause 6(2)(d).

Mr Khuzwayo gave the example that the Minister may say that all tourism establishments must give him information, and then also to give that information to national departments, or through the tourism associations.

Mr Shah said that this could also refer to the Department of State Security, which may need to monitor the security situation in the run up to a major event.

Mr Khuzwayo said that the intention was actually to allow the Minister to collect information, but Mr Shah was referring to usage of information.

Members agreed not to make changes to this clause.

Clause 13: Composition of the Board
Mr Khuzwayo noted that there had been lengthy submissions on how the Board should be composed, and a suggestion for a geographical spread. The proposal was that the clause 13(1)(a) be amended to say that at least nine, and no more than 13 members should be appointed by the Minister on the basis of their knowledge, experience, qualifications and geographical spread, relating to the functions of the Board.

Mr Shah said that somebody had also raised, during the public hearings, the point that numbers should be representative of the provinces. He seemed also to recall mention of gender, disability and other equity issues. He believed that it should be left as simple and easy as possible.

The Chairperson said that there were suggestions that the SATB had ignored those outside the largest three cities. There had been requests that the composition be broadened to take other provincial interests into account. Equity was not raised as an issue, but this was in any event covered under the Department of Labour.

Mr Farrow supported the addition of a geographical spread. He thought, however, that it should come in under subclause (4), and pointed that already this clause did lay down criteria for race, gender and disability.

Mr Farrow suggested that a similar process be followed as in other committees, where the Minister should at least report to the Committee about the nominations, which would allow the Committee to oversee that the competencies had been properly considered. Members might know the people nominated, might be aware of conflicts and be able to exercise oversight before the appointments were made. He suggested that it should come first to Parliament for a ratification process, and then go public.

Mr S Ntapane (UDM) supported that process as well.

Mr Shah agreed that it would be appropriate. He noted that often the disability sector was not properly taken into account in the tourism sector. However, he questioned if it would be possible to ensure that all of the requirements were met on one Board.

Ms Njobe noted that these kinds of requirements were common. The Minister may need to discard one efficient person in order to balance other requirements. She also noted that “geographic spread” did not mean “one for every province”.

Other Members agreed on this point.

Members agreed that geographical spread should be inserted as a requirement, but it should be moved to clause 13(4).

Clause 28: National Grading System for Tourism
Mr Khuzwayo noted that the issue was again “may” and “must” in relation to clause 28(1).  There was another suggestion under clause 28(4), of whether the grading system would be mandatory or voluntary. If the Committee decided it should be mandatory, then the Committee document set out some proposed wording. There was also a note that the Minister would need to consult. He pointed out that the industry did not generally support mandatory grading.

Ms Makasi thought it should not be mandatory. Many of the businesses in the sector were emerging businesses and could not afford the costs.

Mr Farrow agreed that the position should be retained as it was currently.

Ms Njobe heard their concerns but also stressed that there should not be any suggestion that a business not graded would not be licensed.

Ms Njobe thought that clause 28(1) should read that the Minister “must” develop.

Mr Shah raised the point that if the Minister “must” develop, but the establishment was not obliged to be graded, there would also be discrepancies. Resources would be put to the national grading system.

Mr Khuzwayo noted that there were problems throughout the Bill in determining whether there was to be a discretion or not. The effectiveness of activities could be affected if grading was not mandatory.

The Chairperson said that how the grading system was promoted, and how it was seen by the public, were very important points. If the players and public saw no benefit to a grading system, they would not subscribe to the system, but if there were benefits or perceived benefits, then they would be more likely to grade.

Ms Njobe summarised some of the comments about registration, saying that it was suggested that a balance must be created so as not to isolate upcoming and emerging business people. If there was over-regulation they may be excluded. She believed that, in the future, South African businesses might well reach a level where it would be useful to make grading mandatory, but did not believe this was appropriate now.

Ms J Manganye (ANC) also cautioned that the Committee should not over-regulate, as people should not be put off from venturing into business activities. She also suggested that incentives may be useful, so that people could see the benefits to grading. If an establishment was low-graded, nobody would visit it anyway. Sometimes, word-of-mouth advertising was enough, or other businesses may link up and so the grading itself was not necessarily an incentive.

The meeting was adjourned.


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