Tourism Bill: Negotiating Mandates

NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour

19 June 2013
Chairperson: Mr D Gamede (ANC, KwaZulu-Natal)
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Meeting Summary

Nine Provinces presented negotiating mandates on the Tourism Bill [B44B-2012]. All provinces had indicated that they were in support of the Bill, broadly, but six of them made a number of suggestions. These related to terminology and definitions, terms of compliance, and suggestions for changes of wording. The Department of Tourism's Chief Director of Legal Services and a Parliamentary Legal Adviser were available to answer any questions, and to provide clarification on points of interest, and legal guidance. The members went through each amendment presented and voted to accept or reject the proposals. It was noted that many of the proposals were recommendations or comments only, and did not relate to specific clauses in the Bill. Members were at times confused on how to approach the matter, and there was some substantial deliberations on the proper procedure to be followed. The point was, however, made that if no specific recommendations were made, the Committee could note these points, but could not vote to accept or reject them. The Chairperson asked that the Members follow up their comments, in writing, on proposals.

The Chairperson, and the Western Cape representative, emphasised that these were simply the negotiating mandates being presented at the moment, and the provinces would have the final say. They also noted that even if the provincial delegates did not, personally, agree with the mandate presented, the interests of provinces must prevail.

Representatives debated certain points at the meeting on certain points. KwaZulu Natal Provincial Legislature had proposed that the term “tourism protector” must be replaced with “tourism complaints officer”. Although Northern Cape also had a suggested wording, it was not phrased as a specific proposal for change. The Department agreed that this wording would make sense, and four provinces indicated they were in favour of it. There was also a suggestion that clause 50(2) be amended by inserting “and has shown to have prior historical or indigenous knowledge of the area”, to which six provinces indicated their assent. Mpumalanga proposed new wording for clause 4(2), referring also to the National Tourism Sector Strategy having to outline “inter-governmental coordination with the provincial and local spheres of government”. This was accepted in principle, although the second suggestion, for granting capacity support, was not supported, other than by the Free State. The Northern Cape noted that provision should be made for “green tourism”, but no specific proposals were made. The Western Cape pointed out certain ambiguities, between clauses 28 and 30, where four provinces rejected but three supported the proposals, but the remainder of the proposals were rejected by the majority.

Meeting report

Introduction by Chairperson
The Chairperson welcomed members and thanked them for their work on the Bill. This was the first time that he had seen all provinces responding, and he encouraged all to keep up the good work. He explained that each delegate would share the responses from their respective provinces and if there were any amendments proposed, they would be dealt with as a Committee. He noted the presence of officials from the Department of Tourism, who were available for comment, as well as of the Parliamentary Law Advisers.

The Chairperson noted that these were provincial mandates being presented, so even if a Member did not agree with what was being proposed, the interests of the provinces must prevail.

Tourism Bill: Presentation and Consideration of negotiating mandates
Eastern Cape mandate

Ms E Van Lingen (DA, Eastern Cape) said that the Eastern Cape was broadly in favour of the Bill. However, it had the following comments to make:

-A provision should be in the Bill to regulate action to be taken when a municipality unilaterally closed a tourism authority
-The Bill was silent on the funding model of Tourism Unites in rural municipalities. The Bill should specify this, and Municipalities should be funded according to their needs.
-The Bill should have a clause on how to promote cultural and heritage tourism
-The Bill seemed to be protecting the consumer to the detriment of the interests of the product owner, when the tourists were misbehaving
-The Bill should also address the problematic area of reliable data on statistics of tourists.

The Chairperson said that the Eastern Cape's comments made no reference to any specific clauses in the Bill. However, he asked the Department if any of these suggestions were seen to affect any existing clauses in the Bill, and he also asked all Members present to follow up, in writing, on any comments made during the meeting.

Ms Van Lingen pointed out that point 3 should be thought of in terms of the up-coming Intellectual Property Amendment Bills. Comments 1 and 2 were clearly aimed at addressing problems at the municipal level, and perhaps the Committee needed to consider whether this was something that would be more appropriately dealt with by the Committee or by way of alternative legislation.

Ms Mirriam Setwaba, Chief Director: Legal Services, Department of Tourism, Ms Setwaba confirmed that the recommendations and comment did not affect any clauses in the current Bill, or related to other pieces of legislation. She commented that the first comment, on unilateral closure, was addressed by the Promotion of Administrative Justice Act. The third comment was essentially a strategic measure that did not relate to any of the provisions of the Bill. The fourth comment related to tourism protection and methods of operation. Any
complaints would be dealt with in line with the Consumer Protection Act. The fifth comment, relating to data, was covered by the Bill, under the clause dealing with “Information on tourism businesses”, which allowed the Minister to call for information and the creation of a national database for better data collection

Ms Van Lingen stressed that the data must reflect people that indeed came into the country with the intention of tourism, (be it holiday or business tourism) and of returning to their home countries, not those who came to South Africa to work.

Mr Thulani Nzima, Chief Executive Officer, Department of Tourism, explained that the information Ms Van Lingen had requested was already available and could be detailed in a report, including the total number of people who arrived in the country who were not necessarily tourists, but those in transit, yet who might be in the country for a short while, as well as official “tourists” as defined by the United Nations. This explained why the Department had been reporting on two different sets of figures, namely, total arrivals and tourists, in line with the World Tourism Organisation’s definition of “a tourist”. Unless more specific information was needed, he assured Ms Van Lingen that the Department's data was reliable.

Ms Van Lingen replied that while she had great appreciation for the Chief Executive Officer and his opinion, his role as CEO was not the same as it would be for a hotel owner in Mpumalanga, and that the Department should not be influenced by individual opinion or interests. The Committee was making a bid for tourism, and although this issue was raised in the Eastern Cape, it could well be raised on the other provincial mandates as well.

Mr F Adams (ANC, Western Cape) suggested that Ms Van Lingen go back to her province to have the recommendations and negotiating mandates related to specific clauses. Mr Nzima had been trying to explain that the Eastern Cape's general concerns were covered by the Bill or other legislation already.

Free State mandate
Mr B Mnguni (ANC Free State) said that the Free State was in favour of the Bill, and had no recommendations.

Gauteng mandate
Ms B Abrahams (DA Gauteng) said that after long debate and discussion, Gauteng supported the Bill, but that it did wish to set out some concerns and some recommendations.

The concerns or points that it wished to highlight were set out as follows:

- The definition of a Tourist Guide was not included in the draft Bill. This could have a negative impact when trying to enforce the Bill, in particular with regard to the legal requirements of tourist guides and the enforcement of the law for illegal guiding. It was thus important that the definition of a tourist guide be inserted.
- The Bill did not clearly state whether grading would be voluntary or mandatory.
- The Bill did not indicate clearly whether the provinces would have their own Tourism Protector or whether the Protector would reside with the National Department of Tourism
- There should be transformation within the Tourism Industry, so that previously disadvantaged persons were given greater opportunity within the sector.
- The Bill did not make mention of a rural tourism strategy that was linked to rural development and community-based tourism
- The Bill should seek to focus on Broad based Black Economic Empowerment (BBBEE), with special attention on the GYODI focal point

Gauteng Provincial Legislature had made the following specific recommendations:

- Tourism businesses should be categorised
- Grading of establishments in townships should be expedited by the Grading Council in order to promote tourism
- The Department of Tourism (DOT) and other tourism authorities should intensify educating and promoting tourism within every sector of the community
- In line with legislative drafting conventions, all terminology used in the Bill should be defined. In particular, definitions should be inserted for “National Conventions Bureau” and “Tourism Grading Council”
- Clause 10(2) should be refined to indicate that the Tourism Board must also perform any other functions in line with the objects of the Bill. The way it currently read may lead to interpretation challenges
- The Bill need not regulate matters related to the employment contracts of, for instance, the Chief Quality Assurance Officer and/or the Chief Executive Officer of the Board, as such matters were invariably subject to the labour legislative regime and the law of contracts.

The Chairperson said that Gauteng's recommendations also did not point to any specific clauses.

Ms Setwaba commented that most of Gauteng's recommendations were related to legislative drafting and issues around definitions. The Department would work, in co-operation with the state law advisers, to see how to accommodate the recommendations.

Mr Gary Rhoda, Parliamentary Legal Adviser, said that he thought that some of the recommendations lacked clarity. In the past, provincial legislatures had been asked to clarify or correct any errors or mistakes in a mandate, and perhaps the Committee may wish to allow the province the opportunity to correct this. However, he saw no problems with the bulk of the recommendations, the details of which were to be decided with the Department.

KwaZulu-Natal mandate
The Chairperson, Mr D Gamede (ANC KwaZulu-Natal), presented the following amendments that had been proposed by the KwaZulu Natal (KZN) Provincial Legislature:

-In clause 45, and anywhere else in the Bill where the term “Tourism Protector” appears, it should be replaced by “Tourism Complaints Officer”.
-Clause 50(2) should be amended by the addition, after the reference to “proof of the competence in section 51”, of the following:  “and has shown to have prior historical or indigenous knowledge of the area.”

Ms Setwaba agreed that the Department could have improved the terminology in clause 45, and that the name of the position was not very well aligned to the functions given to the role. The Department would consider the recommendation.

Mr Rhoda said that the recommendations were strictly related to policy that must be decided upon between the Committee and Department. There were no legal issues on which he needed to comment.

The Chairperson asked each Member for an indication whether they were prepared to accept or reject the proposal to rename the “Tourism Protector” position to “Tourism Complaints Officer”.

Mr F Adams (Western Cape), Mr M Maine (North West), Mr B Mnguni (Free State), and Mr K Sinclair (Northern Cape) accepted the proposal, but Mr Sinclair also wanted to comment on it.

Ms Abrahams asked for clarity before she could accept or reject the proposal. She questioned why this acceptance was being sought now, since there was no comment called for on the proposals of the Eastern Cape or Gauteng.

The Chairperson highlighted that there was a difference; the previous provinces’ recommendations did not point to specific clauses in the Bill, and so did not require the Members to accept or reject them.

Mr Adams clarified that the previous provinces also only presented recommendations, but KZN was presenting a definite proposal for amendment.

Mr Sinclair said that whilst he accepted KZN's proposal, the Northern Cape had a slightly different name proposed for the position, “Protector of Tourists”

The Chairperson gave Mr Sinclair the option to abstain on this proposal.

Mr Adams asked Mr Sinclair where this proposal appeared in the Northern Cape mandate. If that point was not raised in the mandate, then he suggested that Mr Sinclair either had to abstain, or clearly indicate his support for KwaZulu-Natal's proposal.

Mr Sinclair quipped that the closure of schools in Western Cape meant that Western Cape representatives could not read so well, but pointed out that it was contained in clause 3.1.

Mr Adams countered that this was actually not an amendment, but a recommendation, since it was not related to any particular clause.

The Chairperson asked the Members to remain focused on KZN’s proposal, and said they would deliberate on the Northern Cape's suggestion in due course.

The Chairperson asked for the Department’s input on the second proposal.

Ms Setwaba read out clause 51, and explained that it was up to the South African Qualifications Authority (SAQA) to determine competence in this area.

The Chairperson responded that Ms Setwaba had only read section 51, but it was actually clause 50(2) where the provincial legislature was recommending the change.

Ms Setwaba said that clause 50(2) cannot be read in isolation, because it stated that “No person may be registered as a tourist guide in terms of this Act unless he or she shows proof of the competence contemplated in section 51.”

Mr Rhoda agreed with Ms Setwaba that the clauses must be read together. He said it was necessary to look at the requirements of clause 50(2), which details how tour guides should be registered. Clause 51 said that the competences referred to were outlined in clause 50(2) and determined by SAQA. He felt that the proposal of KwaZulu Natal was problematic, because it was not clear who was to determine historical or indigenous knowledge. The way the Bill was phrased now made it clear that SAQA had the authority to determine that competency, and this was more clear than the wording suggested by the province.

The Chairperson asked the Members to accept or reject the KZN province's second proposal.

Mr Adams reiterated that the purpose of negotiating mandates was to negotiate amongst each other. He suggested that perhaps, instead of making a formal amendment, the Committee could add a rider to the Bill to include “ historical and indigenous knowledge of the area”. He believed that the province’s intention behind the proposal was to prevent unscrupulous tourist guides that had little to no knowledge of an area from registering. He asked if perhaps someone could unpack the National Qualifications Framework Act, and whether it said anything specific about tourist guides.

Mr B Mnguni (ANC, Free State) believed it was best to keep the clause more open than restrictive, because otherwise it may be interpreted as limiting tourist guides to people who came from a specific area, which would not allow people from different parts of the country to become guides in another area.

Ms Setwaba believed it was best to leave the issue of local knowledge for when the competences would be determined, otherwise the Committee would be stating one competence only, but leaving all of the others out of the Bill.

Members then indicated their views.

Five representatives, from Gauteng, the Northern Cape, North West, and Western Cape, as well as KZN, accepted KwaZulu-Natal's proposal. One (Eastern Cape) abstained, and one (Free State) opposed.

Ms M Dikgale (ANC Limpopo) asked for further clarification on the proposal and suggested perhaps having interpreters at these meetings.

The Chairperson said that both Ms Setwaba and Mr Rhoda already explained their position.

Ms Dikgale asked for a translation in Sotho before committing her vote.

Ms Abrahams raised an objection on this point. She said that if this was allowed, everyone could call for translations on any points that they did not understand.

Ms Dikgale replied that that would be unnecessary, since Ms Abraham understood the explanations given.

Ms Abrahams asked for protection

The Chairperson called for order, and asked Ms Setwaba to explain once more, in plain English, and in non-legal terms, what she was saying.

Mr Adams again reiterated that the purpose of this meeting was for negotiating mandates to be presented. The Bill was in any event going to be sent back to the provinces, who would ultimately decide whether to take this suggestion out, or leave it in. He suggested the Committee not go further on the issue, but proceed with its business.

Ms Dikgale asked if it was wrong to ask for an explanation.

The Chairperson told her it was not wrong, but Mr Adams was explaining the purpose of the meeting.

Ms Dikgale insisted that she was still “humbly requesting clarification”, because she would have to go back and explain her decisions to her province.

The Chairperson asked the legal advisor to re-explain the proposal in plain English.

Ms Setwaba explained that clause 50(2) said that if someone wanted to be registered as a tourist guide, that person must show proof of competence. Clause 51 said competence must be determined by SAQA. The proposal that Kwa-Zulu Natal has put forward was aiming, however, to bring in a competency that a person must show prior historical or indigenous knowledge of the area.

Ms Dikgale, on behalf of Limpopo accepted the proposal, bringing the total to six provinces in favour of the proposal to amend clause 50(2).

Limpopo mandate
Ms M Dikgale (ANC, Limpopo) noted that her province was in favour of the Bill and did not have any amendments related to specific clauses.

Mpumalanga mandate
The Chairperson presented the mandate on behalf of the Mpumulanga Provincial Legislature. He noted tat this province was in favour of the Bill, but had the following recommendations:

- In relation to clause 4(2), it was proposed that the following be inserted into the Bill (he indicated that the underlining meant new words would be inserted):
“The National Tourism Sector Strategy must at least make provision for:
-(2)(a) Strategies, objectives, indicators, targets, plans, guidelines, procedures, institutional arrangements and inter-governmental coordination with the provincial and local spheres of government relating to the promotion, development and transformation of tourism.
-(b) Capacity support to the local and provincial spheres of government as contributors to the roll-out of the sector strategy”
- The second recommendation was that the financial implications of the Bill must be determined in order to avoid unfunded mandates for provinces when the Bill became law.

Ms Setwaba said that the Department had only received Mpumalanga's proposal that morning, but it was safe to say that inter-governmental coordination between the two spheres of government was dealt with by the Constitution, and suggested that it was not necessary to re-write the provisions as suggested. The reference to “institutional arrangements” and “inter-governmental coordination” meant that the strategy would have to talk to how provinces and local spheres of government were to relate, but she was hesitant to suggest that this was the intention of the strategy. There were other legal and regulatory measures that dealt sufficiently with inter-governmental coordination. 

Mr Rhoda agreed with Ms Setwaba that the Constitution already bound all three spheres of government, in so far as promotion and implementation of inter-government cooperation was concerned, regardless whether or not they were specifically delineated in this Bill. He agreed that for this reason, there was no need to include the references in this Bill.

Mr Adams said that he did not dispute the legal advisers’ advice, but the NCOP's main role and function was to serve the interests of the provinces. He reiterated that the Department still had a chance to go back to the provinces, but the Members did not. He fully agreed that although there was already this wording in the Constitution and that it was also covered in the legislation around intergovernmental relations, it would not hurt for this clause to be included at the end of the “Institutional Arrangement” section. There was also an institutional Memorandum of Understanding (MOU), but if the provinces felt they or their rights needed to be protected, those was the interests that the Members here must represent. He reiterated his appreciation for the legal perspectives, and said the legal advisers’ opinions were not being disregarded. However, he emphasized the need to reassure the provinces.

All provinces present accepted the first proposed amendment.

The Chairperson said that the positive aspect of mandates was that Members had to stick to them, in the interests of the provinces.

Mr Adams suggested that there was no need for the second proposal, because he thought it had already been covered under (a).

Mr Mnguni disagreed and said it should remain.

The Chairperson, on behalf of KwaZulu-Natal, reserved comment, but noted that the Constitution said somewhere that national government was responsible for inter-governmental coordination.

Mr Adams said that the Constitution also made provision for provincial and local government to capacitate, and his concern was over-duplication.

The chairperson expressed concern with the specific term of “capacity” support.

All provincial representatives, except Free State, rejected the proposal for (b).

Mr Rhoda suggested re-naming the clause simply as “2” since there was no longer (a) and (b). He indicated that there was no legal issue with the clause.

Ms Setwaba interjected that the section to which the Chairperson had been referring related to support to be given by national and provincial governments to local governments, so the laws would not be completely aligned. She said that the way this was worded required the “national government” to support the “provincial and local government” so there was a difference.

North West mandate
Mr M Maine (ANC North West) said that his province was in favour of the Tourism Bill and did not offer any amendments.

Northern Cape mandate
Mr K Sinclair (COPE Northern Cape) noted that his province was in favour of the Bill. Most of the stakeholder inputs had already been addressed by other provinces, and most recommendations from the Northern Cape were not linked to specific clauses in the Bill. Mr Sinclair made a special mention of “green tourism”, which had not been mentioned yet by any of the other provinces, and again cited proposal 3.1, regarding the name change to “Protector of Tourists.”

Mr Adams said that the Committee has already dealt with the issue of the name of the position.

The Chairperson agreed that the Northern Cape's recommendations did not point to specific clauses.

Western Cape mandate
Mr F Adams (ANC Western Cape) said that the Western Cape Provincial Legislature was in favour of the Bill, but wished to proposed the following amendments:

- there was ambiguity between clauses 28 and 30 (see attached presentation for full detail) and therefore there was a proposal around the use of “must” and “may”.

Giving their views on the proposal, Gauteng and Northern Cape indicated their acceptance, accepted, but Free State, North West, Limpopo, and KwaZulu-Natal rejected the proposal.

Ms Dikgale attempted to explain her rationale behind rejection, but was cut off by Ms Abrahams, and the Chairperson ruled that since this was a purely procedural matter, Ms Dikgale should state simply whether she accepted or rejected the proposal.

Mr Sinclair (Northern Cape) said that whilst he personally supported the notion that the Minister 'must' develop a national tourism grading system, and should not have a choice, he did not have a mandate from his province on this matter. He was interested to hear the legal opinion.  

The Chairperson explained that Mr Sinclair was present as a delegate representing his province and should vote in his province's interests. 

Finally, from the seven provinces present, four provinces rejected and three accepted the amendment.

Ms Dikgale asked the Chairperson why other members were allowed to explain their decision-making, whereas she felt that she was constantly being cut off.

The Chairperson apologised and said there was no intention to slight her.

Mr Adams suggested that the proposal could be dealt with either as provinces, or as a Committee. He said that these were negotiating, and not final mandates. The final mandate required the acceptance of five or six provinces, whereas the negotiating mandates could be settled by the Committee, as had been done before.

The Chairperson referred to the official Parliamentary Rulebook.

Mr Adams referred to the Mandating Procedures of Provinces Act (2008), and said that the Committee could accept or object amendments, but the Bill would still have to go back to the provinces. The Act did not say that the Committee should have voted line-by-line on proposals, as they just had, as this would basically be one when considering final mandates. The Chairperson also has the casting vote.

The Chairperson responded that the Committee would just complete its work in the fashion that it had been operating.

Mr Adams continued to refer to the proposals, and pointed out that the next one related to Ambiguity between clauses 3(2) and 7(3). His province had not provided a specific amendment, but simply stated that it should be amended.

Gauteng and Western Cape accepted, Northern Cape abstained, and the remaining provinces present rejected. The Committee therefore was recorded as rejecting the proposal.

Mr Adams referred to proposals set out in “Subsections D to F” (see attached presentation for full details).

For Subsection D, Gauteng and Western Cape accepted, and the remaining provinces present rejected.

For “subsection E”, Subsection E: Gauteng and Western Cape accepted, and the remaining provinces present rejected.

For Subsection F, Gauteng and Western Cape accepted, and the remaining provinces present rejected.

The Chairperson reminded members to submit in writing all comments made that day, and asked the Department to go back and engage with the provinces’ suggestions.

The meeting was adjourned.


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