National Sport and Recreation Amendment Bill; Library Bill; White Paper; with Minister & Deputy

Meeting report

The Chairperson requested that questions falling outside the remit of the agenda should be raised in a subsequent meeting. She recognised and asked the Minister of Sport, Arts and Culture to brief the Committee

Minister's comments on National Sport and Recreation (NSR) Amendment Bill
Minister of Sport, Arts and Culture, Mr Nathi Mthethwa, suggested that the Committee spend the majority of the discussion on the NSR Amendment Bill since he had encountered concerns about the timing of the Bill and acknowledged that “perhaps it was not the best of time to release it” as it was initially proposed in the Fifth Parliament. One of the “critical” points raised by the previous Portfolio Committee before passing the Bill was that the Department consults further with the Provinces. In addition to the NCOP public consultation, Department had decided to reopen the Bill for public comments until 28 February 2020.

The Minister said that the Bill was fundamentally important because the Department currently requires the Presidency to institute a judicial commission of inquiry when it seeks to resolve disputes, misconduct or irregularities. This is inefficient both for the Department and the Presidency. The Bill would confer upon the Minister the powers to institute a special tribunal to deal with disputes, some of which are presently both outstanding and longstanding.

The Chairperson interjected and sought clarification on the precise content about which the Minister wished to speak, raising a concern that she did not wish to delve into points not contained in the agenda.

The Acting Director-General of the Department of Sport, Arts and Culture, Ms Sumayya Khan, clarified that the Minister was speaking about the governing structures in place to deal with disputes, and the replacement structure the Bill would institute which would render the resolution of disputes more efficient.

The Chairperson noted that she had requested that a Parliamentary Legal Advisor be present in the Committee meeting due to the briefing on legislation.

The Chairperson, as an aside, inquired why the venue had no microphones or recording equipment since it was imperative that the meeting be recorded, especially due to the unanticipated number of participants present.

Mr T Mhlongo (DA) interjected and indicated that the crux of the meeting was the powers that the NSR Amendment Bill conferred upon the Minister and secondly that, in effect, it was as if the Bill was “nationalising” sport. He asked what the Minister’s view on this was.

Mr Faber (DA) added that the Committee had only one briefing at the end of the last term concerning proposed legislation. Soon thereafter the Bill was unexpectedly revived and a call for comments went out. There was immense “public outcry” and it seemed as though the Bill was to be pushed through during the recess period. When the bill is read in conjunction with public comments, it made sense that insufficient time was given for consultation on the Bill, even though he is aware that the Department has now extended the due date for public submissions.

Mr Faber drew the Committee’s attention to the fact that the Bill had lapsed in the Fifth Parliament. He wanted to know if the Bill was being reintroduced in the Sixth Parliament as is or whether the Minister was reintroducing a brand new Bill. If so, what are the differences because there had been “obvious problems”? Since he was not a member of the Committee in the preceding term, he was unsure if they were exactly the same bills. He reiterated concerns of the appearance of the nationalisation of sport raised by Mr Mhlongo, since he maintained the Bill gave the Minister the sole power to confer “colours”, on who can come into the country, and “even taking away the powers of the South African Sports Confederation and Olympic Committee (SASCOC).” He requested clarification from the Minister about the Bill.

The Chairperson indicated that the Committee meeting cannot commence with a question session and that members should wait until after the briefing on the Bill prior to raising questions.

Mr Mhlongo raised a point of order, and contended that an overview of the Minister’s thoughts concerning the status of the Bill was required before the presentation commenced describing the amendments of clauses in the Bill. The Committee first required the Minister’s elucidation about the status of the Bill. He wanted clarification on the Minister’s thoughts about the powers the Bill confers on him before the Department proceeded with a presentation about its proposed amendments which he agreed was also important.

The Chairperson repeated that, according to the agenda, the presentation was to precede questions.

Mr M Seabi (ANC) said that the Minister was to provide the Committee with a briefing on two bills, but had added a third, the South African Public Library and Information Bill, 2019. Since the Minister had initially indicated that the Committee would spend the bulk of the time on the NSR Amendment Bill, the Committee should therefore deal with the two minor agenda items first so that most of the discussion time can be allocated to the NSR Amendment Bill.

South African Public Library and Information Bill
The Director-General said the Library Bill had been presented to Cabinet in February 2019. Its purpose is to “provide for measures to redress the inequality of the provision of public library and information services and resources” and it will be implemented through phases in a ten-year roll-out plan through the grant system. The total cost of implementation would be R18.4 billion, with each phase apportioned a percentage of the total cost as follows: Years 1 and 2 will be allocated 10% of the R18.4 billion, 20% in years 2 to 4, 40% in years 4 to 6, 20% in years 6 to 8, and the remaining 10% in the last two years.

National Treasury recommended that, due to current financial constraints and the cost of implementation, that the Library Bill be delayed. The Department has accepted that recommendation.

Discussion
The Chairperson acknowledged the Department’s acceptance of Treasury’s recommendation for delay and indicated that the Committee will reconsider the Library Bill once the Treasury allows the Bill to go forward.

Mr Mhlongo requested more information on how the Library Bill was to be implemented, what exactly the R18.4 billion would be spent on, and in which provinces.

Mr B Madlingozi (EFF) asked why the Library Bill was delayed and about its presentation to Cabinet.

The Deputy Minister of Sport, Art and Culture, Ms Nocawe Mafu, responded that Cabinet had approved the Library Bill, but that to implement it would be too expensive at present, hence the delay. The Department would further liaise with the various provinces on the Library Bill.

Revised White Paper on Arts, Culture and Heritage
The Chairperson stated that the Revised White Paper on Arts, Culture and Heritage was presented to the Committee in November 2019 for endorsement. The Committee had been requested to advise whether it would provide such endorsement. As far as she understands, what the Department is doing regarding the White Paper was correct and that the Committee does not foresee any problems with it. She asked Members to advise if they had any concerns.

Mr Mhlongo said that he welcomed the White Paper, but wanted to know when implementation was going to occur and requested more information on the financial implications of implementation.

Deputy Minister Mafu replied that the Executive is free to do their work, but must update Parliament. The Parliamentary legal advisors needed to get involved to ascertain the status of the White Paper.

The Chairperson thanked Members for the discussion on the White Paper and requested to proceed on the presentation of the NSR Amendment Bill.

Mr Mhlongo interjected and requested that the Minister first continue his thoughts on the powers to be conferred upon him by the Bill before the commencement of the presentation.

Minister's comments on NSR Amendment Bill (continued)
Mr Mthethwa referred to the empowerment of the Minister and said the reason for this is that confederations such as SASCOC do not have the ability to deal adequately with the challenges and disputes which affect them, and some of the issues are perennial and recurrent. For this reason, an independent tribunal is needed, since federations get frustrated and approach the Department to intervene. The Bill also empowers the Minister to address issues and disputes at fitness centres. Past experience has shown that the Department requires a method of intervening to regulate those. This has been seen with the incidence of doping and drug abuse with impunity in sport and fitness, for example, in body-building where people have died from such abuse. This affects the public at large. When these incidents occur, the Department is asked what they had done to prevent this, and yet they are not currently empowered to do so. The regulations the Minister seeks are “not fundamental, but administrative.” Another problem is that there is no formal clarification as to who constitutes the national federation under consideration. The Bill itself is focused more on development than on regulations.

The Minister acknowledged that the Bill appeared to have lapsed during the Fifth Parliament, but it had to be taken back to the Cabinet to restart the procedure, and the Department realised they had made a mistake in the process. Parliament had pointed out that the Department had to consult further with various stakeholders, including the NCOP and the public at large. He maintained that Parliament did not declare the Bill out of order, or demanded that it be retracted, but rather given constructive engagement. Parliament merely stated that the Department had missed a step by failing to consult the NCOP. He acknowledged that timing was therefore an issue in addition to further technical considerations, which the Department will address in its presentation.

Discussion
The Chairperson acknowledged that the primary problem which seems to be causing confusion with the ostensible lapsing of the Bill is a result of a misstep in the cycle of the previous Parliament, that is, the lack of consultation with the NCOP.

Mr Faber raised a question about the legality of the Bill’s reintroduction. According to the Constitution and the powers of Parliament, any Bill which lapses may be revived, but this has to be done via a House resolution. The question therefore was: Had there been a House resolution?

The Chairperson at this point asked the Parliamentary Legal Advisor present to assist the Committee to answer that question as to whether there was a relevant House resolution for the revival of the Bill, or whether a House resolution was even needed in the first place, i.e. whether indeed the Bill has or has not lapsed.

The Parliamentary Legal Advisor replied that in accordance with Rule 333 of the National Assembly, a Bill introduced to Parliament if, at the end of the day, that Bill has not received a second reading, the Bill lapses, unless the National Assembly resolves otherwise. However, she has not checked the status of this particular Bill on lapsing. She also advised that there is a “lacuna” in the process and rules which render the final determination on whether the Bill has indeed lapsed. In the Fifth Parliament, the Bill had been referred to the Portfolio Committee after the first reading; but it had not received a second reading and was thus not placed on the Order Paper; therefore the Portfolio Committee had not completed the requisite report to offer its recommendation as an extended arm of the National Assembly. The Portfolio Committee’s processes therefore have not reached finality on the Bill. Yet the work of the Portfolio Committee may continue, but “taking into account that it was not placed on the Order Paper.”

Mr Mhlongo said that the larger point was that the work done within the Sports Portfolio Committee was not heeded and that the Minister must take Sports seriously.

Minister Mthethwa stated that he welcomed what had been said.

The Deputy Minister agreed and admitted that the misstep was a “learning curve”. Both the legal teams of the National Assembly and the Department must meet and consult on the status of the Bill and then brief the Committee as to their findings and the possible legal recourse which may be taken.

The Chairperson thanked everyone who gave input and stressed the role of the legal team in arriving at a consensus. The advice of the Parliamentary Legal Advisor was that the lapse in process does not necessarily imply that the Committee cannot continue with its work on the Bill.

Mr Seabi wished to emphasise what the Deputy Minister stated so resources are not spent unnecessarily. He wished to continue with the presentation on the Bill’s amendments, and that the legal team needed to return to the Committee with a consensus opinion on the Bill’s final status, whether it had lapsed, and what recourse the Committee might take.

Mr Mhlongo agreed, but urged that the way forward is that a National Assembly resolution should be sought. He requested that this process be given a time frame.

Mr Mthethwa agreed to leave it to the legal teams. He referred to the lacuna, emphasising that this is not the first time that a Bill has appeared to lapse and been revived or reintroduced. Having admitted that the Bill had lapsed in May 2019 in terms of the National Assembly Rules, yet Parliament has the right to control its own processes and revive the Bill by way of a House Resolution. So as a final point, he suggested leaving it up to the legal teams and emphasised urgency on the matter.

The Committee agreed that it must be left up to the legal teams.

Mr Mhlongo requested that the presentation on the Bill be summarised and that the Director-General not go into unneeded detail given that the final status of the Bill is pending legal opinion.

The Acting Director-General said that the Department Legal Advisor would brief the Committee.

National Sport and Recreation Amendment Bill: briefing
Mr Gideon Boshoff, Legal Advisor: Department of Sports, Arts and Culture, noted the Amendment Bill's objectives are to clarify the role and responsibilities of all stakeholders; to make provision for the development of coaching framework guidelines; to make provision to regulate sport or recreation agencies and provide for the recognition of sport or recreation bodies; to empower the Minister to intervene in sports disputes by establishing a Ministerial Committee of Inquiry; to establish a Sport Arbitration Tribunal to deal with all appeal in sports disputes; and to provide penalties for any violations of certain provisions of the Act.

The primary purpose of the Bill is to improve the regulatory framework for the recreation and sport industry, and to allow the Minister powers to establish a Sport Arbitration Tribunal. The Bill seeks to allow for the appointment of inspectors for the routine inspections of the industry to certify compliance with the Act, and to provide for Ministerial powers to superintend over sport and recreation bodies and thus allow for the improvement in the operations of such bodies.

• Clause 1 seeks to make changes in Section 1 of the Act, specifically to redefine “club”, “Committee”, “national colours”, “national colours board”, “national emblem” and “national federation”, and to insert definitions for “Director-General”, “MEC”, “recreational activity”, “sport or recreation agent” and “sport or recreation body”.

Club: The reason for the change in this term is because some clubs, according to the Department Advocate, are more powerful than the federations, and thus the definition seeks to make them accountable.

Committee: The reason for the change in this term is to define the role of the Committee, due to instances in which sport and recreation bodies fail in dispute resolution.

National Colours: The reason for the change in this term is due partly to empower the Minister, and an independent body—the “National Colours Board”—to confer colours upon national teams, etc. and partly due to the fact that certain unknown bodies, particularly in Cape Town, have been awarding colours.

• Clause 2 amends Section 2 of the Act which aims at the promotion and development of sport and recreation in the country. Specifically it seeks to add a new subsection to provide for the function of sport and recreation bodies (e.g. SASCOC) which includes the coordination of activities relating to high performance sport, such as team preparation for international sporting events.

• Clause 3, by amending Section 4 of, and inserting subsection 3 into, the Act, empowers the Minister to formulate and publish policy objectives to be achieved by all sport and recreation bodies, e.g. SASCOC.

• Clause 4, in addition to creating consistency within the Act, provides for the various sport and recreation bodies to assume full responsibility for safety and security of all participants, members, children and spectators who attend sport or recreation events.

Importantly, Clause 4 will insert a clause (2B) to give the sport and recreation bodies “power to ensure that selected players comply with any national call to participate in a sport” and anyone who fails to comply with such obligations from the international controlling body is “guilty of an offence and liable on conviction to a fine, or to imprisonment not exceeding two years.”

Mr Boshoff said that “we have a problem of most of the professional people who are playing overseas who don’t even want to attend national duties. In this clause we are trying to emphasise ‘please attend national duties and be proud of South Africa’”.

• Clause 6, because of insufficient resources, unbinds the Minister from funding sport events and facilities (e.g. new stadiums) by substituting the word “must” for “may”, while simultaneously empowering the Minister to publish norms and standards for the building of such facilities, since some existing facilities do not comply with safety and security standards.

• Clause 7 seeks to ensure that all facilities are inspected by providing the necessary empowering provisions for the appointment of inspectors.

• Clause 8 seeks to amend the Act such that it promotes equity in sport, and protect vulnerable groups (e.g. children and women) from sexual abuse and exploitation in the industry by empowering the Minister to set regulations in this regard.

Mr Boshoff said that people, including foreign nationals, are often hired in sport and recreation without the necessary background checks and that, at times, results in the sexual exploitation of members of vulnerable groups.

• Clause 9 seeks to amend Section 11 by appointing a National Colours Board, responsible for the transparent and fair nomination for the awarding of national colours. The power of conferring colours, therefore, does not lie with the Minister.

• Clause 10 seeks to insert new sections (11A, B and C) to deal with the bidding for and approval of the hosting of international sporting and recreation events, and for dealing with all combat sport which, apart from boxing, is entirely unregulated (e.g. underground cage fighting). No international event may be hosted in South Africa without prior written approval from the Minister.

Importantly, regarding the Fitness Industry as a whole, a new section (11D) “provides for the Minister to establish a Fitness Industry Regulatory Authority to oversee, administer, and govern a safe environment for the fitness industry in the prescribed manner that includes, amongst others, the establishment, objective, functions, and governance of the Fitness Industry Regulatory Authority.”

• Clause 11 amends Section 13 of the Act, and provides for the appointment of a Ministerial Commission of Inquiry (instead of a Judicial Commission of Inquiry appointed by the Presidency) for the purposes of dispute resolution and investigation of such disputes within the industry.

• Clause 12 deals with the establishment, composition and appointment of a Sport Arbitration Tribunal, the qualification and terms of office of its members, the appointment of its Chair- and Deputy Chairpersons, its proceedings, and the conflicts and disclosure of its members' interests.

• Clause 13 extends the powers of the Act to include school sports, particularly the school sport development programme, the fees for sports, and the recreation agent (for purposes of fair recruitment).

• Clauses 14 and 15 at once amend the Act’s long title and shorten that title.

Discussion
Mr Mhlongo raised the concern that the Department tends to deal with entities such as SASCOC through legislation instead of dealing with them individually. Most of the clauses specifically pertained to SASCOC. The Department has wasted R6 million “for nothing”, since the Ministerial recommendation made to that body had not been adhered to, and suggested that the Department was working backwards since they needed to re-consult and thus are apt to waste more money.

Mr Mhlongo raised concerns about the independence of the Sport Arbitration Tribunal, and asked if the Minister was to appoint the Tribunal himself, what their function was to be, and if they are a permanent Tribunal.

Mr Mhlongo asked if the Committee could receive the input from SASCOC on the amendments, in addition to all other submissions.

Mr Mhlongo questioned who appoints the inspectors and how the appointments are to be done i.e. will the posts for inspectors be advertised, will the Committee receive information on their qualifications, what the Department proposes their powers will be, and if these inspectors will be free from Ministerial influence.

Mr Mhlongo suggested that instead of the nationalisation of sport and recreation, that perhaps the Department ought to think about replacing certain sporting bodies with a new entity free from the challenges that the former currently experience. He suggested that the power to run sports should be afforded to people in sports, and not to politicians.

Mr Mhlongo raised the 'sexual abuse' amendment. He wanted a “concrete” example of why the Department included an amendment on sexual misconduct against vulnerable groups.

Mr Madlingozi raised his embarrassment and concern that the Department was not taking Parliament seriously enough since the Bill has potentially been allowed to lapse. He had not learnt anything from this process, and wished for the Department to take the matters it deals with seriously.

Mr Faber complained about the procedure which the introduction of the Bill followed, stating that the Committee and the Department had put the cart before the horse.

Mr Faber raised concerns that all the powers seem to have been given to the Minister in the Bill. He expressed uncertainty about the Minister “running” all sports federations. South Africa possesses sports federations to deal with disputes and which were “working perfectly”. All their powers are being given to the Minister so that he himself could take a decision or else put someone in a position to take a decision.

Mr Faber was perplexed that the Minister wanted to have powers to control and approve international events. This is not international standard practice and said that it was not a minister’s prerogative to make that decision.

Mr Faber acknowledged that there should be some regulation in some areas (such as with the plurality of kick-boxing bodies), but that these should be done individually and not through “blanket” legislation.

Mr Faber noted that the responsibility of funding is put back onto federations, as in the Bill the Minister protects himself by saying “wherever there are finances available”. He objected to putting the liability of funding onto the federations and taking that responsibility away from the Minister, yet at the same time granting the Minister powers which affect such funding.

Mr Faber raised concern that the Minister will be the sole person with the power to confer national colours.

Mr Faber expressed astonishment at the powers the Minister would have on the governance of all recreational activities. He cited his incredulity at the thought of the Minister running the affairs of a professional fitness organisation such as Virgin Active. He conceded that there have been reports of drug abuse in such organisations, but the solution was not to put the Minister in charge of “recreational activities” but rather that these issues should be taken on individually.

Mr Faber noted that no guidelines were given on what constitutes a “recreational activity”. He gave an example of choosing teams. When members of a team are being selected, how does the government intend to intervene to assure equity in selection? He suggested that there is some hidden agenda in the formulation of the Bill.

Mr Seabi agreed with the Minister that the main objective should be development, but he raised concerns that global sporting bodies might disqualify the country and its local sporting bodies from participating in international events due to excessive governmental interference.

Mr Seabi also raised the point of revenue received from gambling (i.e. betting on sporting activities).

Mr Seabi raised the semantics of “sport” (in the singular) versus “sports” (in the plural) which, he admitted, may seem a small thing, but to him it was not.

On the objectives of the Bill, the Chairperson expressed her agreement on the powers given to the Minister, especially his ability to establish a Ministerial Commission of Inquiry, since the Committee was currently trying to intervene in the “problem of SASCOC”. That body did not have the right to do whatever it wanted and the Committee had previously requested the intervention of the Ministry. For the Ministry to intervene lawfully, it is necessary for the provisions in the Bill to pass to empower the Minister. When the Committee calls in SASCOC the following week, the Department should also be present in order to be fully informed.

The Chairperson emphasised that the legal advisors of Parliament and the Department should discuss and come before the Committee to present a status update on the Bill and what the legal recourse should be.

Ministry's response
Minister Mthethwa expressed his delight that SASCOC had been called to account before the Committee since SASCOC had failed to implement prior recommendations.

The Minister replied that the Sport Arbitration Tribunal is a temporary body which would be constituted each time the need arises, and that it would be more efficient since judicial inquiries tend to take a long time. The positive aspect of such a tribunal would be the assurance of the safety and security of the public who participate in sporting activities. He agreed to the request to provide the comments and submissions of all stakeholders.

Minister Mthethwa replied that the inspectors should be appointed on merit, with the requisite capabilities, with the objective of achieving results in developing sports and recreation in South Africa.   

On the question on sexual abuse, the Minister replied that gender-based violence is a big problem not only in sports, but in the country at large. These cases arise where men are responsible for training women, and particularly when foreigners are not vetted appropriately and are brought into the country to do so. He stated that the “playing field” needed to be leveled to ensure adequate equality in sport.

The Minister replied to Mr Madlingozi that since 1994 there has been a precedent for bills lapsing, and there is also precedent for legal consultation on such lapses. It was normal for legal teams to advise that bills have lapsed, which merely precipitates the formal reintroduction of such bills. There is a lacuna or gap in certain processes of the formalisation of bills. In some instances there is no determining factor contributing to its status, particularly during the grey area of the end of the five-year term.

Minister Mthethwa maintained that sport federations are not “perfect” as had been earlier suggested. The Ministry needs to be able to intervene. If someone is injured in sport, political parties will hold the Minister accountable and ask what he had done to prevent such injuries, yet the Ministry does not have the requisite powers to enforce such proactive preventative measures.

The Minister touched on fitness centres such as Virgin Active, stating that the new provision was necessary to enforce fairness in trade, since Virgin Active, for instance, has a virtual monopoly in the industry, and that smaller fitness centres are not able to meaningfully compete. He jested that he did not want to run Virgin Active. He cannot condone drug use in any sporting organisation and if Virgin Active wishes to shut down due to perceived unfair government intervention, he does not mind, since what he wants to do is stop the drug use, which is legitimate. There is no hidden agenda.

Minister Mthethwa responded to the question of banning the country or local sporting bodies from international events due to excessive "governmental participation", that the Ministry will not be instituting regulations in isolation, but rather will continually touch base with international bodies.

The Minister addressed the national colours, stating that it was not the Minister who was to be endowed with the power of conferring such colours, but rather an independent body in the public sphere.

Minister Mthethwa made mention of indemnity forms issued by certain fitness centres, stating that they advise members to “enter at their own risk” and consider this to indemnify them from the responsibility of ensuring their members’ safety and security. This is not agreeable and the Bill seeks to rectify this.

Deputy Minister Mafu expressed her agreement with the Minister and emphasised that the Bill was about development. She suggested that the Committee resumes once the legal terms have had a chance to consult and deliberate on the Bill’s status.

The Chairperson thanked everyone for attending and she would consult with the Parliamentary legal advisors on this urgent situation.

The Committee discussed and adopted its programme then adjourned the meeting.