Tourism Bill [B44-2012]: deliberations continued


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

The Committee continued with Clause by Clause deliberations on the Bill. Members agreed to proposed amendments to Clauses 40 and 43 of the Bill, which provided for persons to be appointed within the Tourism Grading Council of South Africa to perform inspections so as to ensure that standards were maintained in the tourism industry. The Committee had decided against creating the inspection function under the Tourism Inspector. Concerns were, however, raised that the inspection mechanism would only be able to check on graded establishments to the exclusion of non-graded establishments. Grading was, after all, voluntary.
The Committee also agreed to leave Clause 50(7)(b) as it was in the Bill, as it seemed that the proposed amendment was perhaps restricting the rights of tour guides to carry out their trades in all provinces. The Bill had harmonised the validity period of tour guide registrations with first aid certifications. Both were valid for three years.  During public hearings concerns had been raised over what happened to funds that were collected in the tourism industry. The Committee agreed that it was a policy issue and would not be covered in the Bill.

A DA Member raised concerns that Clause 55(4) gave the provincial registrar too much unilateral power during disciplinary hearings and that criteria were needed against which his power should be measured. The issue was debated at length and in the end the Member let the issue go in the interests of progress.

Another issue which came out of the public hearings was that transformation in the tourism industry was not taking place. The Committee decided that it was more of a policy issue and could not be legislated upon in the Bill. The National Tourism Sector Strategy did address transformation. Intergovernmental relations between the three spheres of government were also lacking and the Committee agreed that it needed to improve oversight on it.

The Committee had hoped that Clause 13, which dealt with the composition of the South African Tourism Board, could have been amended in such a way so that the composition of the Board could have had a geographic spread. Allegations had been made that some members of the Board were marketing certain provinces more than others. The National Department of Tourism informed the Committee that the Minister of Tourism’s feelings over the issue were that a geographic spread of the Board would be difficult to manage. The composition of the Board was, in any case, based on skill. As a consequence the Committee agreed not to provide for “geographic spread” in Clause 13(4) and to leave the Clause as it was in the Bill.

Meeting report

Tourism Bill [B44-2012] deliberations
The Committee continued with deliberations through the Bill Clause by Clause. The Chairperson encouraged Members to comment on Clauses if they wished to do so.

Clause 40
In its previous meeting the Committee had discussed Clause 40 which dealt with the appointment and functions of chief quality assurance officer of the Tourism Grading Council of South Africa (TGCSA). The legal drafters had been asked to effect the necessary changes to the Clause based on Committee discussions. The proposed amendment was:

On page 14, line 8, to omit subparagraph (i) and to substitute:
“ (i)     supervising the processes involved in the grading of tourism services, facilities and products; ensuring that such grading conforms to the national grading system for tourism contemplated in section 28; and ensuring that standards set in terms of the grading system are maintained;”.

Mr Sibusiso Khuzwayo, Committee Content Adviser, stated that the Committee had in its previous meeting discussed the establishment of tourism inspectors. It was either to be provided for in Clause 47, which dealt with the duties of the Tourism Protector in respect of tourist complaints, or in the previously mentioned Clause 40. The Committee had leaned in favour of providing for it in Clause 40, hence the proposed amendment.

Clause 43
A further amendment was proposed to Clause 43, which dealt with the employment and remuneration policy of the TGCSA and the appointment of staff. The proposed amendment was:

On page 14, in line 35, to omit paragraph (b) and to substitute:
“(b)   must appoint persons in posts on the staff establishment, including persons to assist the chief quality assurance officer in performing the functions contemplated in section 40(4)(b)(i).” .

Mr R Shah (DA) said that the Tourism Protector dealt with complaints and referred the complaints to relevant authorities that would deal with complaints. Was quality assurance the Tourism Protector’s duty too?

The Chairperson said that the Committee had decided not to place inspectors with the Tourism Protector but preferred that quality assurance of the TGCSA could deal with the issue.

Mr Khuzwayo pointed out that currently in the Bill there was no provision for inspectors at all. The Tourism Protector had no investigative powers. The Committee had made the decision to place inspectors under the TGCSA. They would not be inspectors in the true sense of the word. They would most probably be officials of the National Department of Tourism (NDT).

The Chairperson asked Mr Gary Rhoda, Parliamentary Legal Adviser, if he wished to add anything to what had been said.

Mr Rhoda responded that both the Chairperson and Mr Khuzwayo had captured what had been discussed in the Committee’s previous meeting.

Ms Mmamodonki Setswabe, NDT Chief Director: Legal Services, stated that it was best to separate the Tourism Protector and the TGCSA. For both bodies provision was made for criminalisation where there was an offence committed. For example where a false grading plaque was displayed it was punishable and where there was an illegal tour guide it was a criminal offence.

On the issue of inspectors the mandate had been carried through. There was no full Inspectorate but a mechanism was being put in place with the TGCSA to maintain standards. The Tourism Protector could refer matters to the TGCSA, which would be dealt with in terms of the two proposed amendments above.

Mr Shah noted that if a whole chapter in the Bill was dedicated to the Tourism Protector then value needed to be attached. If there was no value then what was the purpose. He felt that perhaps the NDT had envisaged a greater role for the Tourism Protector than what the Committee was seeing. Perhaps the Tourism Protector was intended to cover the whole tourism sector. How could the Tourism Protector only have a referral function?

The Chairperson pointed out that the function of Tourism Protector would be carried out by an NDT Deputy Director-General.

Ms M Njobe (ANC) said that the Committee had in its previous meeting agreed that inspectors would be with the TGCSA and not with the Tourism Protector. In both the proposed amendments above, nothing had changed in both Clauses. There were additions made to both.

Ms X Makasi (ANC) was concerned that the amendments proposed, which were supposed to ensure that standards were maintained in the tourism industry, only applied to graded establishments. Grading was not compulsory and hence non-graded establishments would do as they pleased.

The Chairperson said that the Committee had agreed that grading should be optional.

Mr Dirk Van Schalkwyk, NDT Chief Operating Officer, said that he understood that legislation was enabling and that on both proposed amendments value was being added. The NDT had no concerns. He read out an excerpt from Clause 40,” grading conforms to the national grading system” He said that it was part of the system.

He also referred to the heading of Clause 43, that is, employment and remuneration policy of Council and
appointment of staff, and said that approval was needed from the Minister of Tourism with concurrence from the Minister of Finance.

Mr Shah noted Ms Makasi’s concern over keeping an eye over non-graded establishments. He stated that the Tourism Protector was still in place to receive complaints and to refer them to relevant authorities.

The Chairperson stated that if tourists insisted on not using graded establishments or TripAdvisor then the risk was theirs.

Ms Bam-Mugwanya (ANC) pointed out that the Automobile Association of SA (AA) was also a recognised grading facility. Where did AA grading fit in?

Ms Thembi Kunene, TGCSA Chief Quality Assurance Officer, responded that the AA no longer graded establishments.

Mr Khuzwayo wished to confirm that the Committee agreed to the two proposed amendments.

The Committee agreed to both.

Clause 50
Mr Khuzwayo said that the Committee had, in its previous meeting, also discussed Clause 50(7)(b) at length. When tourist guides were trained in terms of the National Qualifications Framework (NQF) levels two and four it was done according to the classification of guides by the Culture, Art, Tourism, Hospitality and Sport Education and Training Authority (CATHSSETA).

The intention was to amend Clause 50(7)(b). The Committee Section had in the previous Committee meeting proposed an amendment. The words, “if the Tourist Guide is registered as a national guide.” was proposed to be added to the end of Clause 50(7)(b).

Mr Khuzwayo, however, pointed out that the Committee had not made a decision on whether it accepted or rejected the proposed amendment. The NDT had, in the previous meeting, made the point that tourism knew no boundaries. He emphasised that, if there was still classification of guides by CATHSSETA, then the suggested Clause was misleading. The NDT was asked to comment.

Mr Rhoda expressed constitutional concerns about restricting the activities of tour guides to certain provinces. It all depended on how the provision was framed. If it was stated that tour guides could not operate in other provinces, then the trade of tour guides was being restricted.

Mr Van Schalkwyk responded that the registration of tour guides was valid for three years in all provinces in South Africa.

Ms Uveshnee Pillay, NDT Director: Tourist Guiding, said that areas of competence were determined by CATHSSETA and Regulations. 

The Chairperson said that it seemed that there was no problem on the issue of harmonising the registration of tour guides validity period with that of first aid certification periods. He asked why first aid certifications had to be renewed.

Mr Van Schalkwyk noted that first aid certifications were harmonised with tour guide registrations; each was valid for three years. He noted that even medical doctors had to re-register. Hence there was a need to re-register first aid certifications. After the three-year validity period expired, a refresher course was done.

Mr L Khorai (ANC) asked whether the first aid was re-registration or if an altogether new first aid course had to be done.

Ms Pillay responded that it was a first aid refresher course.

Mr Shah said that when the Committee went on oversight visits, tour guides would complain that they did not mind to re-register but it was not always possible for them to physically travel to a far off place to get registered. He added that tour guides felt the first aid refresher course to be of no value to them and was superfluous. Could the registration of tour guides not be made easier?

Mr Van Schalkwyk said that medical certification was handled by the Department of Health. In order to be a tour guide, a first aid certificate was needed. Compliance with health requirements was needed.

Ms Njobe said that the point should not be belaboured. She agreed that first aid technologies were forever changing.

The Chairperson confirmed that the registration of tour guides and first aid certificates were both valid for three years.

The Committee continued working its way through the Bill Clause by Clause.

Clause 55
Ms Njobe referred to Clause 55(3) and asked why the word “adviser” was used and not “expert”. During public hearings a suggestion had been made to use “expert”.

The Chairperson said that the Committee should not get bogged down and should look at the interests of the country as a whole and not only the interest of certain groups who suggested the use of certain terms.

Ms Makasi said that the Clause should be left as it was. The term “adviser” should remain in Clause 55(3).

The Committee agreed.

Clause 56
Whilst dealing with Clause 56 which dealt with appeals and reviews, Ms Njobe asked what happened to the various fees that were collected in the industry. During public hearings the question was asked as to what happened to the registration fees that tourist guides paid.

Mr Khuzwayo said that the issue of where the fees collected went was not an issue to be covered in the Bill. The Committee could not legislate on where funds collected should go.

Mr Shah commented that it was a policy issue.

The Chairperson said that the National Tourism Sector Strategy (NTSS) would cover it.

Ms Njobe agreed that the issue could not be legislated.

The Chairperson asked whether the fees collected were catered for under the Public Finance Management Act (No. 1 of 1999) (PFMA). How were the fees managed?

Mr Khuzwayo pointed out that the registration fees of tourist guides were not the only money-related issue in the tourism industry. There were also the levies collected by Tourism Marketing South Africa (TOMSA). Mechanisms were in place to control funds. It was just not in the Bill.

Mr Van Schalkwyk stated that all income collected went back into revenue. The fees collected went back into the fiscus. The PFMA made provision for costs to be able to be recovered.

Mr Shah referred to Clause 55(4) relating to disciplinary measures and said that it seemed that the Clause allowed the provincial registrar to make unilateral decisions. Was there a set of regulations or principles that coupled certain violations with specific sanctions? Who ensured that a fair decision was made?

Mr Van Schalkwyk noted that there were no such regulations in place.

Ms Setswabe said that Clause 55 was empowering provincial registrars. Just as in a court of law one could not prescribe to a judge what the sanctions should be, all that could be done was to set parameters. She noted that the provincial registrar would give a sanction that was not covered in the Clause.

The Chairperson asked if the Committee had resolved Clause 55(4).

Mr Shah noted that the Minister would put Regulations in place in any event, so why should there be guidelines for disciplinary issues that could not be placed in the Regulations. Clause 55(4) was far too open for abuse by the provincial registrar. He felt that having no criteria made the Clause unconstitutional as judgement was made unilaterally without guidelines.

The Chairperson was not convinced that Clause 55(4) was unconstitutional.

Ms Njobe did not wish to comment on the constitutionality of Clause 55(4). She did not, however, feel that the provincial registrar would be making a decision unilaterally. An investigation would take place and there would be many people involved. Perhaps something could be added in the Regulations.

Ms Desiree Swartz, Senior State Law Adviser: Office of the Chief State Law Adviser, explained that the Clause set out the process that the registrar had to follow. It gave the provincial registrar the option of punishment. It set out the framework of the registrar’s work.

Mr Shah responded that the appeals process provided for in Clause 56 meant nothing as against what criteria the guide would be appealing against. What would the appeal be based upon?

The Chairperson asked to whom one had to make an appeal against the severity of a guide’s fine.

Mr Shah responded that the guide would lodge an appeal to the National Registrar. He was concerned how it could be ensured that the provincial registrar would make the correct decision. Criteria and guidelines were needed. The deterrent should match the violation. Even if there were others involved in investigations, the provincial registrar would still make the final decision.

Mr Van Schalkwyk said that in taking out the human factor, for example, in labour, there was a process to be followed. The same principle applied in the provision. There was a disciplinary process that needed to be followed. The competency of the official was another issue. The judgement would be made based on the representation of the guide and the presiding officer. It was a process that could not be legislated upon. On whether the judgement would be fair was where the human factor came in.

Ms Njobe said that the whole of Chapter 6 contained checks and balances.

The Chairperson said that the Committee was tasked with oversight, but that everything was not always perfect.

Mr Shah agreed to let the issue go in the interest of progress. He however wished that the Minister should have Regulations for disciplinary matters.

Mr Khuzwayo said that the public hearings on the Bill had highlighted the fact that transformation was not taking place in the tourism industry. There were provisions in the NTSS that covered transformation and there were tourism sector codes. The Committee had felt that more could be done. The issue was that transformation was difficult to legislate. The implications of legislating transformation were that the Bill could become a money bill. The Department of Trade and Industry (DTI) incentives had been transferred to the NDT. Perhaps to address transformation in the tourism sector, the Tourism Development Fund funds could be ring-fenced. There was a Transformation Council in place, which advised the Minister of Tourism.

The Chairperson asked whether transformation could be legislated for more than what had already been done by government thus far. The question was whether transformation required more oversight or more legislation. Were the Black Economic Empowerment Sector Codes good enough?

Mr Shah pointed out that there was no doubt that transformation in tourism was lacking. The question was whether the Committee could legislate on it. He felt that ringfencing funds were not good enough as there were too many things to consider. The NTSS and the National Development Plan should have transformational imperatives. Transformation was a policy issue.

The Chairperson suggested that transformation could be one of the topics of the Committee’s Strategy Workshop.

Ms Bam-Mugwanya said that the reason why Black Economic Empowerment needed to be revised was because implementation was not taking place. Discussion should take place on how transformation should be done. She stressed that the DTI incentive grants excluded black people totally and favoured a certain class of people. Checks and balances were needed.

Ms Njobe agreed that it was difficult to legislate on transformation. She also agreed with the Chairperson that transformation was an oversight function. A great deal of responsibility rested with the Committee to monitor transformation.

The Chairperson said that the Committee Researcher, Ms Joyce Ntuli, and the Committee Content Adviser, Mr Khuzwayo, should do a situation analysis on transformation for the Workshop.

Mr Van Schalkwyk stated that the NDT’s Strategic Plan would speak to some aspects of transformation. Perhaps some of the mistakes of the past could be rectified. The Tourism Development Fund incentives could better deal with transformation.

Clause 60
Mr Khuzwayo said that lack of co-ordination between different spheres of government was an issue that had been raised during the public hearings process. Intergovernmental relations were covered by section 8 of the NTSS. The Committee had drafted a suggestion, which could be included in the Bill as Clause 60(5) addressing the issue of intergovernmental relations. The Committee had the option of either performing oversight over the implementation of section 8 of the NTSS or to include the proposed Clause 60(5) into the Bill.

Mr Shah noted that he was aware of the initiatives which government had in place to improve co-ordination. He felt that the Minister of Tourism should be given powers to force the provinces and municipalities to take tourism seriously. The NTSS was only a policy and lacked legal enforcement. Perhaps the NTSS could be bolstered.

Ms Njobe agreed that the NTSS did address intergovernmental relations. The Committee could increase its oversight on intergovernmental relations in the NTSS. Local government lacked a budget for tourism; hence tourism was not taken seriously.

Ms Bam-Mugwanya said that co-ordination between the three spheres of government had always been problematic. What was the reason for the lack of focus on tourism? Local government did not have a tourism budget, but yet tourism was a local government competency. Perhaps the Committee needed to strengthen its oversight function.

Mr Shah remarked that it seemed that everyone had overlooked the fact that transformation was, perhaps, covered in Chapter 2 of the Bill. The Committee needed to increase its oversight and vigilance.

Mr Van Schalkwyk appreciated the fact that Mr Shah was on top of things. The provinces were tasked with ensuring that local government was properly resourced for local government tourism. There should be earmarked funding for tourism at provincial level and it would filter down to local government level. Municipalities should receive earmarked funding to be used for tourism.

Ms L Moss (ANC) said that the Constitution correctly so spoke about the three spheres of government. The issue was how intergovernmental relations were to be monitored. She added that it seemed that transformation in tourism was taking place in Durban but not in the Western Cape. She suggested that the Arts and Culture and Tourism Portfolio Committees could perhaps have a joint meeting to discuss tourism.

Unresolved issues
The Chairperson continued to take the Committee through the rest of the Clauses of the Bill up until its end.

Mr Van Schalkwyk wished to raise certain issues that were not yet resolved. It seemed that the Committee had agreed that, in Clause 13, which dealt with the composition of the South African Tourism Board, provision should be made for a geographic representation of the Board. He explained that the South African Tourism Board had a national competency to market South Africa locally and internationally. The composition of the Board was based on skills. The NDT had debated the issue exhaustively and extensively with Members of Executive Councils (MECs) and the conclusion was that the Board could not have a geographic spread. A “geographic spread” would be difficult for the Minister of Tourism to manage. He had been tasked by the Minister and the NDT Director-General to raise the issue with the Committee.

The Chairperson responded that a “geographic spread” of the South African Tourism Board was needed because its marketing campaign was not representative of all the experiences of South Africa. There were allegations that persons sitting on the Board were from Cape Town, Durban and Johannesburg and hence only promoted those cities. He asked what the Committee should do.

Mr Van Schalkwyk emphasised that the South African Tourism Board marketed South Africa and did not market products. The provinces did product marketing. The geographic spread argument spoke to the marketing of products.

Mr Shah said that it was highly unlikely that the South African Tourism Board would only market one province. If the issue of geographic spread was going to cause so much problems, perhaps the Committee should reconsider its inclusion in the Bill.

Ms Njobe said that, if “geographic spread” was not to be included in the Bill, it could perhaps be included in the Regulations. She asked, if most of the Board members came from Gauteng, what then?

The Chairperson stated that the Minister needed to be sensitive to the issue. He asked for suggestions.

Mr Khuzwayo said that “geographic spread” should not be understood to mean a representative from every province. The Minister should have due consideration for geographic spread when the Board
was composed.

Mr Shah referred to Clause 13(4) in the Bill and suggested that the Clause end at the word, “society”. The rest of the Clause, “with due regard to race, gender and disability.” should be deleted. He explained that the word “society” covered everyone.

Ms Njobe agreed to the suggestion by Mr Shah and withdrew her suggestion that “geographic spread” should be catered for in the Regulations.

The Committee agreed to Mr Shah’s suggestion.

Ms Ntuli referred to Clause 10, which covered the functions of the South African Tourism Board, and said geographic spread was not covered there either.

Mr Van Schalkwyk referred to Clause 10 (1)(a) and emphasised that the efforts of the NDT on domestic tourism had moved on to another level. This was where geographic spread came in. The domestic tourism strategy would address the issue of less visited provinces. He felt it best that the legal drafters be tasked to come up with some sort of formulation.

The Chairperson suggested that the proposed inclusion of “geographic spread” relating to the Board be scrapped. He said that the legal drafters could come up with a formulation in Clause 13(4).

Ms Makasi said that the term “tourism” needed to be defined. 

The Chairperson responded that “tourism” would not be defined in the Bill.

Mr Khuzwayo stressed that the Committee needed to take a stand on the issue of “geographic spread”, as it could not be left unresolved. The Bill needed to be finalised the following day and a B-version needed to be printed.

Mr Shah said that Mr Khuzwayo was correct. He suggested that “geographic spread” not be included in the Bill. Clause 13(4) could remain as it was in the Bill as it was.

Mr Khorai agreed to the suggestion and so did the rest of the Committee.

The meeting was adjourned.


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