National Department of Tourism: Workshop on Act No. 3 of 2014

Meeting report

National Department of Tourism (NDT)
The NDT hosted the Committee to a workshop on the Tourism Act No.3 of 2014. The delegation from the NDT comprised of Mr Victor Tharage, Acting Director General; Mr Dirk van Schalkwyk, Chief Operating Officer; and Ms Mmaditonki Setwaba. Mr Tharage provided a brief introduction to the Tourism Act. It was important to paint a picture of the tourism environment for the Committee. The challenge was that the tourism sector could have different pieces of legislation and policies that may not fall within the mandate of the NDT. There was therefore a need for coordination. Some of the provisions contained in the Tourism Act attempted to deal with aspects that did fell within the mandate of the NDT as well as with aspects covered by other pieces of legislation.  For instance on the registration of a company it was done through the Companies and Intellectual Properties Commission (CIPC) and fell under the ambit of the Department of Trade and Industry (DTI). There might even be local government requirements that needed to be met. It was therefore prudent for the NDT to check on whether the environment was sufficient or not. Government departments were guided by policy priorities of the Executive. Prior to the current Tourism Act there had been the Tourism Act of 1993. It had however predated SA’s democracy, its constitution and the White Paper on Tourism. The old Tourism Act of 1993 mainly covered the SA Tourism Board. There was thus a need for a new Act as tourism was a concurrent function.  Government also introduced a National Tourism Sector Strategy (NTSS). It was developed by a panel of experts and was approved by cabinet in 2010. Given the shortcomings of the old Tourism Act cabinet approved the Tourism Draft Bill on the 26 July 2011 for publication. In August 2011 the Draft Bill was published for comment. Extensive consultation had taken place and more that 450 comments on the Draft Bill had been received and dealt with. The Bill was introduced into parliament on the 4 December 2012.
Ms Setwaba continued with an overview of the chapters of the Tourism Act and what it covered.

Tourism Act No.3 of 2014
Chapter1: Interpretation and Objects
The Chapter defined certain words and expressions. It also set out the general objectives of the Act and how conflicts with other laws were to be dealt with.

Chapter 2: National Tourism Sector Strategy, Norms and Standards and Codes of Good Practice  
The Chapter empowered the Minister following a consultative process to establish a National Tourism Sector Strategy (NTSS) to promote the objects of the envisaged Act. It also made provision for the Minister to determine norms and standards as well as indicators to measure compliance with such norms and standards. It furthermore empowered the Minister to issue codes of good practise with the tourism sector to guide conduct relating to tourism services, facilities and products.

Chapter 3: South African Tourism Board
The Chapter provided for the continued existence of the SA Tourism Board. Amongst other things it set out the composition of the Board, the functions of the Board and the powers of the Board. It also covered the appointment of the Chief Executive Officer (CEO) of the Board. Provision was furthermore made for the Board to determine an employment and remuneration policy applicable to personnel of the Board and for the CEO to appoint personnel.

Chapter 4: Grading System
The Chapter empowered the Minister to develop a national grading system for tourism with a view to maintaining or enhancing the standards and quality of tourism services, facilities and products. The grading system must make provision for schemes of which tourist businesses could obtain membership and for the use and display of insignia, such as a star or a number of stars indicating the grading awarded in terms of the scheme. The Chapter furthermore established the Tourism Grading Council that must implement and manage the national grading system. Provision was also provided for the appointment of a chief quality assurance officer who would be responsible for supervising the process of grading and for the strategic management of the grading system.

Chapter 5: Tourism Protection
The Chapter empowered the Minister to designate an official from the NDT as the Tourism Complaints Officer. The Chapter outlined the functions of the Tourism Complaints Officer.

Chapter 6: Tourist Guides
The Tourism Act provided for the Minister to appoint an official of the NDT as the National Registrar of Tourist Guides. The Chapter set out what the duties of the National Registrar was. Provision was also made for the appointment of Provincial Registrars of Tourist Guides by Members of the Executive Councils responsible for tourism in each province. The Chapter also sets out the functions of the Provincial Registrars. The procedure for the registration of tourist guides was also set out in the Chapter. The rest of the Chapter dealt with matters relating to the code of conduct and ethics which tourist guides had to comply with, complaints against tourist guides, the powers of a Provincial Registrar regarding the disqualification of tourist guides; disciplinary measures against tourist guides and appeals and reviews.

Chapter 7: General
The Chapter amongst other provisions dealt with matters such as offences and penalties, regulations by the Minister, repeal of laws, transitional provisions and savings and the short title of the Tourism Act.

Ms Setwaba noted that Schedule 1 of the Tourism Act contained transitional provisions and savings. Existing regulations in terms of the Tourism Act of 1993 were saved in terms of section 63 of the Tourism Act of 2014. Regulations specifically related to the Tourism Act covered the National Tourism Information and Monitoring System, the Grading System and Tourism Protection. Notices in terms of the Tourism Act related to norms and standards, codes of good practice, promoting the achievement of the objects of the Tourism Act and notices publishing the names of persons who were appointed as the National Registrar of Tourist Guides, the Tourism Complaints Officer and the Provincial Registrar of Tourist Guides. On implementation, priority projects for the Annual Performance Plan for the NDT were the review of the NTSS and the regulations on tourist guides. Frameworks were being developed on the manner and procedure for the lodging of tourist complaints and on the National Tourist Information and Monitoring System. 

The State Law Advisers Office, under the leadership of Adv Enver Daniels and accompanied by Mr Theo Hercules, made an input on the Tourism Act. Adv Daniels stated that Mr Herman Smuts who had been in charge of the certification of the Tourism Act had subsequently retired from the State Law Advisers Office. The inputs to be made overlapped with the inputs already made by the NDT and in some instances there would be a repetition. The State Law Advisers Office was of the opinion that the Tourism Act was consistent and compatible with the constitution of SA. It would therefore pass constitutional muster. Adv Daniels shared his experience of eavesdropping on a conversation a tour guide was having with tourists where the tour guide was bad mouthing members of parliament. He felt it to be a very unfortunate incident as it was unfairly painting an unfavourable picture of SA. The aim of the Tourism Act was to transform the sector and it was obvious that a great deal of work lay ahead. The previous Committee had requested of the State Law Advisers Office to close all gaps in tourism and to look at international examples of tourism legislation. The Kenyan model had been taken into consideration. He noted that the starting point was the White Paper on the Development and Promotion of Tourism of 1996. The National Development Plan (NDP) identified tourism as a driver for employment and economic growth. The Tourism Act No 72 of 1993 had to be repealed, as it did not reflect section 41 of the constitution, which spoke about tourism being a concurrent competence. He said that the Tourism Act embraced the NTSS and it gave effect to the Tourism White Paper. It promoted sustainable tourism and provided for the continued existence of the SA Tourism Board. The Tourism Act established the Tourism Grading Council of SA as a legal entity and created the Tourism Complaints Officer.
 
The Act promoted responsible tourism practices and quality. SA Tourism was tasked with marketing SA domestically and internationally. The Tourism Act encouraged economic growth and development of the sector and it established intergovernmental relations to promote tourism. He believed the Tourism Act to be very progressive. As was stated earlier the Tourism Act provided for norms and standards for responsible tourism. It also set out codes of good practise to be issued by the Minister. The Minister may also develop a national grading system. Regulation of tourist guides was also provided for. There was also a procedure for the reporting of contraventions and for the lodging of complaints. Provision was also made for appeals and reviews against decisions of a Provincial Registrar. He did point out that the State Law Advisers Office could not find the norms and standards that were contemplated in Chapter 2, section 7. The State Law Advisers Office had looked at the Kenyan model of tourism legislation and the Tourism Act of 2014 was very similar to the Kenyan Tourism Act but there were differences. One difference was that in Kenya the private sector could engage government via lobbying.
   
Over the issue of whether there was conflict between the Tourism Act and the new immigration regulations, Adv Daniels stated that it seemed as if the jury was still out over the matter. He did however venture that in the media it would seem as if the Minister of Tourism and the Minister of Home Affairs was speaking with one voice over the issue. Regulation 12 provided that a parent needed to provide an unabridged birth certificate of a child who was travelling with them. He stated that as far as the State Law Advisers Office was concerned Regulation 12 was not in conflict with the provisions of the Tourism Act. In conclusion, he referred to the case of Johnson and Others v Minister of Home Affairs and Others, In re Delorie and Others v Minister of Home Affairs and Others (2014). The judgement was in favour of the relief sought against the Minister of Home Affairs. The Minister of Home Affairs appealed the matter but the Constitutional Court found on the basis of the papers before it there was no constitutional crisis that it had to deal with and dismissed the matter.

The Chairperson asked Adv Gary Rhoda, Parliamentary Legal Adviser, if he had any input to make.

Adv Rhoda responded that he had none and that everything had been covered comprehensively.

The Chairperson asked Adv Daniels to provide the Committee with the notes he had referred to in addressing the Committee.

Mr Daniels agreed to email it to the Committee Secretary after the meeting.

The Chairperson asked the NDT if it had anything to add in conclusion.

Mr Tharage said that any issues pertaining to the Tourism Act should be dealt with. He noted that there might even be policy issues to take into consideration.
 
Discussion
Ms P Adams (ANC) asked for clarity on the difference in use of the terms “may” and “must” in different provisions of the Tourism Act. She also asked what the term “concurrency” meant.

Mr Hercules explained that the use of the word “may” indicates discretion and the use of the word “must” meant there was no discretion. He said Schedule 4 of the Constitution covered concurrency. Tourism in Schedule 4 was listed as a concurrent function.

The Chairperson remarked that the Tourism Act had a budget for its implementation.

Mr Tharage stated that the Tourism Act would be implemented in terms of medium term allocations. He noted that tourist guide regulations were highly prioritised. Matters relating to the Complaints Officer were also prioritised.

Mr G Krumbock (DA) clarified that what Adv Daniels had said was that there was no clear evidence that the new immigration regulations had an impact on tourism. He begged to differ if that was what Mr Daniels was saying. He believed that the new immigration regulations did in fact have an impact on tourist numbers coming into SA. Members of the Committee could have opinions on whether there had or had not been an impact. He asked the NDT to clear up the matter.

Mr Tharage responded that the environment in which tourism operated was not only affected by the new immigration regulations. Tourism was affected for example by issues of transport, trade and industry and even health regulations and standards. Different legislative environments had an impact on tourism in one way or the other. Tourism statistics overall showed an increase in tourist numbers. The NDT preferred to be cautious and would rather first do a detailed analysis of figures. The reclassification of figures by Statistics SA could also have an impact on figures. Statistics SA for instance had withdrawn its transit classification. The NDT needed to check on whether the withdrawal had an impact on figures. There was work in progress between the NDT and Statistics SA.

Mr Krumbock reacted that the response by Mr Tharage was difficult to process. The Committee and Parliament had in the past received some of the best reports from the NDT. The NDT had provided quality statistical material. The NDT had done brand positivity testing. In recent times questions had been asked as to what had affected positivity testing. He suggested that the Committee obtain a report from the NDT to give members an indication of what the weighting of factors were in relation to the impact of the new immigration regulations.

Adv Daniels reacted that the State Law Advisers Office had compared the new immigration regulations to the Tourism Act. Topical issues such as trafficking had been looked at. The State Law Advisers Office could not find conflict between the new immigration regulations and the Tourism Act. There could be unintended consequences which the State law Advisers Office could not foresee. On the question of whether the new immigration regulations had an impact on tourist numbers, the State Law Advisers Office could not deal with the matter.

The Chairperson added that the Ebola outbreak in parts of Africa did have an impact on tourist numbers.

Mr Tharage, responding to Mr Krumbock, spoke about Brazil as an example. If one included transit figures, tourist figures for Brazil were in excess of 82 000. If transit figures were not taken into account, tourist figures were roughly 42 000. It was therefore clear that transit figures did have an impact. The tourist numbers were almost halved when transit figures were excluded. The NDT had not gone through enough detail as yet to provide a conclusive answer as to whether the new immigration regulations had an impact on tourist figures.

Mr J Esterhuizen (IFP) said that the role of the NDT had been watered down by the work of the National Convention Bureau. Business events would boost tourist numbers. The Ebola outbreak in parts of Africa could affect tourist figures. On the issue of tour guides there were many volunteers working at heritage sites, how were these volunteers going to be regulated? 1 June 2015 was the date set for the new immigration regulations to kick in. Were there any changes?

Mr van Schalkwyk stated that when the NDT had become operational in 2010 the intention was to use conventions to accommodate tourism. The funding for conventions bureaus was earmarked in the SA Tourism Board. Discussions were taking place for a fund for conventions bureaus. Conventions bureaus were tourism related.

Ms Adams referred to page 20 of the presentation and asked whether the Chief Executive Officer was required to conclude a performance agreement before he started working or after he started working.
She also referred to page 5 and asked how local structures were to be engaged. If the NDT had 450 consultations on the Tourism Act did these consultations include persons who were not in the tourism industry and wished to become part of the industry?  Mention was made that notices had to be published regarding the names of persons appointed as National Registrar of Tourist Guides, Tourism Complaints Officer and Provincial Registrar of Tourist Guides. Were there timeframes for the appointment of these individuals? She felt that the work of the Tourism Complaints Officer was a grey area. What kind of complaints would the Tourism Complaints Officer deal with?

Mr van Schalkwyk said that Mr Tharage had been appointed as the National Registrar of Tour Guides. Ms Setwaba had been appointed as the as the Tourism Complaints Officer. Both these appointments had been gazetted. He noted that the consultative process had been comprehensive. Initially eight of the nine provinces had given support to the Tourism Act. The remaining province because of a technicality could not express its support for the Tourism Act at the time. However at another meeting the ninth province was able to express its support for the Tourism Act, which meant that provincial support was unanimous. The 450 figure only referred to written comments on the Tourism Act.

Mr Hercules stated that section 24 of the Tourism Act provided for the appointment of the Chief Executive Officer. In terms of the performance contract, the agreement would be in terms of section 27(1), which covered conditions and remuneration policies of staff. Section 25 dealt with the contract of employment itself and would set out the duties and requirements of the Public Finance Management Act. The Board and the CEO would conclude a performance agreement. It had to be concluded within three months of appointment and thereafter annually one month after the commencement of each financial year.

The Chairperson asked what the total number of jobs created by tourism to date was.

Mr Tharage said that efforts had started in 2010 as the NDT was only formed in 2009. By 2013 there were 655 609 persons directly employed in the sector. Good progress was therefore being made. He emphasised that these were direct jobs and not indirect jobs. If indirect jobs were added then the figure would sit at 1.4m jobs created.
He concluded by stating that the Tourism Act was law and would be implemented. There were still practical issues that would be discussed with the Committee at a later time.

Mr J Vos (DA) said that even though sustainable and responsible tourism was mentioned it needed to be made enforceable. SA was ranked number one on responsible and sustainable tourism. The Tourism Act should address the issue specifically. He referred to tour guides and said that quality assurance was key. The issue of whether grading by the Tourism Grading Council of SA should be compulsory or voluntary still needed to be decided. Grading should not only cover accommodation but other products such as tour guides too. Tour guides were important and should form part of the Committee’s oversight. Members should look into the study material for tour guides and what was provided in the scripts that they presented to tourists.

The Chairperson stated that many issues would be covered by regulations. 
 
Committee Minutes
Committee Minutes dated the 27 March 2015 was adopted without amendment.

The Committee agreed to have its next meeting on Thursday, the 23 April 2015 at 12.30pm.

The meeting was adjourned.