The Committee continued with deliberations on the Tourism Bill. Members dealt with the Bill clause by clause and were guided by inputs that had been received during public hearings.
An issue emanating from the public hearings was that the powers of the Tourism Protector were too limited. The Tourism Protector only had the power to refer complaints to other bodies to investigate. Members felt that the powers of the Tourism Protector needed to be extended. The Committee section suggested that an inspectorate of tourism inspectors should be created within the Tourism Protector’s Office that would perform inspections and spot checks. This provision would be included under clause 47 of the Bill, which dealt with the duties of the Tourism Protector in respect of tourism complaints. A Member of the opposition informed the Committee that there was no need for this provision as that Clause 43(2)(b) dealt with the appointment of staff in the Tourism Grading Council of South Africa (TGCSA), which essentially covered the appointment of inspectors within the TGCSA. The Committee deliberated on the matter, discussing the cost implications of both options, and decided that legal drafters should come up with options pertaining to the contemplated Inspectorate.
After a brief discussion, the Committee deleted Clause 50(3)(d), which dealt with procedures relating to the registration of tour guides because it was felt that the clause contradicted Clauses 50(1)(a) and 50(1)(b) and was confusing. It was agreed that clause 50(7)(b) would be replaced with a new clause that would confine tourist guides to the conditions of registration. Members wondered if it was wise for tourist guides registered as national guides to be allowed to be a guide in any part of the country. They worried about whether these guides had sufficient knowledge about the country. The Committee noted that guides were registered provincially. To become a national guide, a guide had to be registered in all the provinces. This seemed impractical. Furthermore it was difficult to create boundaries for tour guides as often tourists travelling across borders stuck with one guide. The State Law Advisers Office however seemed to appease everyone with a new formulation of Clause 50(7)(b).
Tourism Bill [B44-2012]
The Chairperson placed the Bill before Members, who deliberated on it clause by clause. He encouraged members to comment on clauses if they wished to do so. The Committee used inputs made on specific clauses of the Bill during public hearings as the basis of its discussions. He proceeded with Clause 32 through to Clause 43 to which no comments were made.
Chapter 4: Grading System
Clause 44: Assignment of oversight and functions of Council
Ms M Njobe(COPE) asked under what circumstances the Minister could perform oversight.
Ms Mmamodonki Setswabe, Chief Director: Legal Services in the National Department of Tourism (NDT), explained that the oversight function by the Minister was added whilst the Bill was part of the National Economic Development and Labor Council (NEDLAC) process. NEDLAC felt it important to have accountability in the management of the Tourism Grading Council of SA (TGCSA). For example, the South African Bureau of Standards’ work was overlapping with what the TGCSA was doing. There had to be accountability flowing from the Public Finance Management Act.
Mr S Farrow (DA) responded that the Auditor-General or even the Special Investigations Unit could perform the oversight function. He felt that there were many bodies that could perform the oversight function.
Ms Njobe was not sure what the term “suitable body” in Clause 44(1) (c) meant.
Chapter 5: Tourism Protection
There were no comments on Clauses 45 and 46.
Clause 47: Duties of Tourism Protector in respect of tourists’ complaints
Mr Farrow pointed out that the Office of the Tourism Protector sat with the NDT. The Tourism Protector had the power to refer a matter to various bodies. It could be the South African Police Services (SAPS) or even the Equality Court. The Minister placed the Tourism Protector within the NDT. If the Committee brought in another role there would be duplication. If the Committee created another role then they had to elaborate on what the role entailed. The Tourism Protector did not deal with issues himself but he had a delegating function. Another body to which he could refer matters to was the Consumer Protection Council.
The Chairperson added that the Tourism Protector was not an additional structure but simply a function within the NDT with NDT staff.
Mr Farrow said that the motivation of his argument was not to create another role or person to do essentially what the Tourism Protector was doing. The Tourism Protector’s Office was gazetted. The question was whether the Committee should put in place another inspectorate to assist the Tourism Protector. He was not sure about this.
Mr Sibusiso Khuzwayo, Committee Content Adviser, said that the document containing suggestions resulted from inputs that were made during the public hearings process on the Bill. Issues had been raised that the Tourism’s Protector’s powers were only limited to referral powers. It was felt that his powers should be extended, as there were individuals that were illegally abusing the system. The Committee Section and legal drafters hence drafted additions to Clause 47. The first addition was Clause 47(2), which created an Inspectorate compromised of tourism inspectors who would do routine inspections to graded establishments and carry out spot checks on illegal tourist guide activities. Clause 47(3) was the second addition, which spoke to the three forms of inspections i.e. regular systematic inspections, advance notice inspections and emergency inspections.
Mr Farrow pointed out that Clause 43(2)(b) which dealt with the appointment of staff in the TGCSA already provided for the appointment of staff to do inspections.
Ms Joyce Ntuli, Committee Researcher, responded that the inspections to be done went beyond inspections relating to grading.
Mr Farrow noted that there were also registrars in place. Inspection tasks should be done through the TGCSA and the Inspectorate. The Inspectorate needed to report to the Tourism Protector.
Mr Khuzwayo was concerned that the modus operandi of the TGCSA would change. At present the TGCSA did not do inspections themselves. Master assessors who were contracted to the TGCSA did inspections. Inspections were thus an outsourced function.
Ms Njobe cautioned the Committee about placing too many things in legislation that could not be implemented. It made it difficult for the Minister. She asked whether the Inspectorate could not be placed with the TGCSA. The TGCSA could work hand in hand with the Tourism Protector. What about the provinces? Would there be provincial tourism protectors to assist the Tourism Protector?
Mr Khuzwayo reiterated that the TGCSA used master assessors. Master assessors were placed in each province. The master assessor process was a national process. They were contracted persons and not employees of the TGCSA. Grading was an outsourced function. He spoke to Clause 43(2)(b) which Mr Farrow had referred to and asked what type of employee would do the function contemplated. Would it be a contractor or would it be an employee of TGCSA?
Mr Farrow accepted the need for the contemplated inspectorate to do spot-checking. He felt that the TGCSA was at grassroots level and that the function should sit with them. He suggested that Clause 43(2)(b) could be amended to accommodate the contemplated Inspectorate. The Inspectorate could then report directly to the NDT. He did not feel that there was a need for a separate Inspectorate to be created under the Tourism Protector as was being suggested in the suggestions document.
Mr Herman Smuts State Law Advisers Office explained that the TGCSA was a specialist body created to implement and manage the grading system. If the inspectorate were to sit in the TGCSA then they would report to the TGCSA. He suggested that the inspectorate should be within the TGCSA.
Ms Njobe agreed and said that it made sense that the contemplated Inspectorate sat within the TGCSA. It could be provided for under clause 43.
The Chairperson said that the Committee should perhaps hear from the NDT why they had drafted the additions to clause 47, as was contained in the document before Members.
Ms Setswabe said that when the NDT received complaints it needed to be resolved. The Tourism Protector’s Office was about self-regulation. Dispute resolution procedures were needed. She noted that there was ample consumer protection legislation in place. The NDT received a multitude of complaints and currently the NDT referred it to provincial authorities. The Tourism Protector’s Office sat within the NDT. There was a director and two assistant directors in place. The creation of the contemplated inspectorate meant that it had to either sit with the Tourism Protector’s Office or the TGCSA. If the Inspectorate were created in legislation, for example, its powers to enter, and to seize existing would have to be set out. The implications were huge. The Tourism Protector was about regulating dispute resolution. There were enough institutions in place to resolve disputes. The function of the Tourism Protector was not to resolve disputes.
Mr Farrow still felt that the inspectorate should be housed in the TGCSA. It could be accommodated under clause 43.
Ms Njobe said that the functions of the TGCSA needed to be looked at. How the TGCSA would accommodate then inspectorate had to be discussed. She was not sure whether the current functioning of the TGCSA would be able to accommodate the inspectorate. The legal drafters needed to research how this could be accommodated in clause 43.
The Chairperson asked how the inspectorate would affect the TGCSA’s organogram.
Mr Khuzwayo explained that currently the TGCSA did not perform inspections itself. All that the TGCSA did was set the inspection criteria. The decision that the Committee needed to make was whether the contemplated inspectorate was needed. If it were to sit with the TGCSA, the cost implications to the TGCSA would be huge. At present, inspections were an outsourced function of the TGCSA. The Committee had to make a decision.
Mr Farrow said that clause 43 already made provision for the appointment of staff. The Quality Assurance Officer in clause 43(2)(b) could appoint persons. All that the TGCSA had to do was to motivate that it needed an Inspectorate. The Minister could be asked to provide funding. The contemplated Inspectorate was needed and it should sit with the TGCSA.
The Chairperson pointed out that there were also complaints about tour guides.
Mr Farrow said that complaints about tour guides needed to be sorted out by registrars.
Ms X Makasi (ANC) felt that the contemplated Inspectorate was needed. The fact that it would affect the budget of the TGCSA could be an issue. The Inspectorate was needed and should be accommodated for somewhere in the Bill.
The Chairperson suggested that the contemplated function rather be worded as a “monitoring mechanism”. It would be broader and could either sit with the Tourism Protector or the TGCSA.
Mr Farrow said that the Tourism Protector was tasked with a monitoring function and not inspectors.
Ms Makasi said that the contemplated inspectorate could monitor all establishments.
The Chairperson asked whether establishments would be issued licenses. He also asked about establishments who were not graded but used plaques of the TGCSA.
Ms Setswabe said it was a criminal offence in the Bill to use the TGCSA plaques without being graded.
Mr Khuzwayo said that the reality was that grading was not compulsory. The TGCSA inspectors could only monitor those establishments who were part of the grading scheme. Only those establishments that were graded could be monitored.
Mr Farrow said that there were various ways in which establishments could be kept in check. The tourism sector was competitive. Businesses would report each other if one were breaking the rules. For example, with the illegal use of TGCSA plaques, the transgression would be reported to the Tourism Protector who in turn could refer it to the South African Police Services or the Consumer Protection Council.
Ms Njobe felt that the legal drafters could come up with suggested amendments reflecting the wishes of the Committee. Thereafter the Committee could consider it.
Mr Khuzwayo said that the suggestion by Mr Farrow on clause 43(2)(b) about the appointment of inspectors was noted but the issue was about how one would do enforcement of those establishments, which fell outside the folds of the grading scheme.
The Chairperson referred to clause 43(2)(b) where inspectors were to be appointed under the TGCSA, and suggested the following phrase be added to the Clause - “including that of inspectors”. He asked whether the term “inspectors” was defined.
Mr Farrow stated that there should be a definition.
Ms Njobe said that the legal drafters should come up with suggestions that the Committee could consider.
The Chairperson asked whether the legal drafters could come up with suggestions on the issue of an Inspectorate.
Mr Smuts agreed that formulations could be drafted, which the Committee could consider. If an inspectorate of inspectors was to be set up, the provisions in the Bill would have to cover matters such as duties, powers, whom they reported to and how they were to be funded. He suggested that the NDT deliberate on what the contemplated Inspectorate should be.
The Chairperson said that the issue would be flagged and would be discussed at a later time. He suggested that perhaps a “monitoring” function should be considered.
Ms Setswabe asked the Committee to specify what it wished to be included in the grading system.
The Chairperson pointed out that it seemed that the Tourism Protector would not only deal with accommodation but also tourist shuttles.
Mr Gary Rhoda, Parliamentary Legal Adviser, asked if the Committee wished the drafters to come up with different options of what the powers of the contemplated inspectors should be.
Mr Farrow said that the need needed to be loosely defined. The Minister could set out the job descriptions. The TGCSA was unfortunately not present in the meeting to give inputs on the issue. The contemplated inspectorate had to do checks and balances.
The Chairperson made further suggestions to clause 43(2)(b). He proposed either “and ensure quality in the industry” or “maintain standards in the industry” be added to the clause. He felt it was better to leave it vague.
Ms Njobe agreed that when the Minister developed the grading system it could be further elaborated that standards needed to be kept. A provision could be added in the Bill or the Regulations.
Mr Farrow felt it best to leave it up to the legal drafters to come up with suggestions. He noted that the powers of the inspectors were already covered by the mandate of the Quality Assurance Officer in Clause 43. The Quality Assurance Officer could also appoint staff to perform functions in Clause 43(2)(b).
Mr Rhoda pointed out that the contemplated inspectors would have public powers and as such it had to be provided for in law. The powers needed to be specific and authorised.
Mr Farrow said that the powers were vested in the Tourism Protector. All the inspector had to do was to report the matter to the Tourism Protector. The Tourism Protector would in turn refer the matter to the South African Police Services or the Consumer Council.
The Chairperson suggested that the Committee leave the issue to be dealt with by the legal drafters.
Chapter 6: Tourist Guides
Clause 50: Procedure relating to registration of tourist guides
Mr Khuzwayo referred to the suggestions document and said that it was being suggested that clause 50(3)(d) be deleted as the Bill provided for the registration of tourist guides over three years and all tourist guides had to display competence and submit all relevant documentation on registration. The Clause also contradicted clause 50(1)(a) and (b) and allowed tourist guides to be registered without full competence in the trade. He added that the clause was confusing and should be deleted.
It was also noted that clause 50(7)(b), as it stood in the Bill, allowed a guide who was registered to be a guide in any part of South Africa. In order to confine tourist guides to their conditions of their registration it was proposed that clause 50(7)(b) should read,” in all provinces if the tourist guide is registered as a national guide”.
Ms Njobe found clause 50(3)(d) confusing and asked for clarification. In the proposed clause 50(7)(b) she suggested that the word “if” be replaced by the word, “provided”.
The Committee agreed to the replacement.
Mr Farrow explained to Ms Njobe that the suggestion was to delete clause 50(3)(d).
He agreed with the newly proposed clause 50(7)(b).
Ms Joyce Ntuli Committee Researcher was concerned about the fact that if a guide was registered as a national guide he could be a guide in any part of South Africa. The problem was whether the guide knew the rest of South Africa.
The Chairperson agreed that it could be problematic, as the guide perhaps was not informed about other areas.
Mr Smuts suggested an alternative Clause 50(7)(d), “ valid for the area for which the tourist guide is registered”.
Ms Setswabe said that tourist guides were not registered with national government. Tourist guides were registered provincially. She was worried that boundaries were being created for tourist guides. It would then mean that a guide would have to register in all the provinces.
The Chairperson addressing Ms Setswabe asked whether she understood the premise that guide registration could not be general.
Ms Ntuli explained that the guide needed to have knowledge of the area where he was acting as a guide.
Mr Farrow added that borders could not limit guides. Sometimes a tourist liked a guide and wished to use the guide for the entire time of his stay in South Africa. Which perhaps meant crossing provincial borders. All registered guides provided information that went into a database. The information could be disseminated.
Ms Ntuli asked how one would assure quality assurance.
Mr Khuzwayo referred to clause 48, which dealt with the National Registrar of Tourist Guides and said that it was perhaps an oversight that a guide would have knowledge of the entire South Africa. He understood that tourism knew no boundaries but that quality assurance of information needed to be ensured.
Ms Njobe said that on an oversight visit to Mexico, the Committee’s tour guide in Mexico knew the history of Mexico. She asked whether there was training for tour guides.
Mr Khuzwayo said that there were Culture, Art, Tourism, Hospitality and Sport Education and Training Authority (CATHSSETA) and National Qualifications Framework (NQF) levels of training. There were different curricula for different types of guides.
Ms Ntuli pointed out that the guide in Mexico had a three-year degree.
Mr Farrow said that clauses 48 and 49 satisfied the requirement that information was disseminated and that training took place.
Ms Setswabe said that what was happening in the industry had to be taken into account. It was perhaps different from what was in legislation and in regulations. The law needed to be beefed up.
The meeting was adjourned.
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