World Heritage Convention Bill: discussion
Tourism
17 September 1999
Meeting Summary
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Meeting report
ENVIROMENTAL AFFAIRS & TOURISM PORTFOLIO COMMITTEE
17 September 1999
WORLD HERITAGE CONVENTION BILL B42 -99
Documents handed out:
Proposed Amendments to World Heritage Convention Bill
Memorandum to the Director-General of the Department of Environmental Affairs concerning Clause 30 (3) (b) of the World Heritage Convention Bill
SUMMARY
The Portfolio Committee read through and discussed the proposed amendments compiled by the Department of Environmental Affairs and Tourism to the World Heritage Convention Bill. The Portfolio Committee accepted most of the amendments. However, there were nine amendments that caused debate among the committee members. It was decided that those amendments would be flagged and discussed again on the meeting scheduled for Monday the 20 September.
MINUTES
Mr Mbangeni and Ms Coetzee from the Department of Environmental Affairs and Tourism took the members through the proposed amendments (see appendix a).
The definitions "private land" and "State forest" were flagged in Chapter 1, Section 1. Ms Mbuyazi (Inkhata Freedom Party) was particularly concerned about the definition "private land". She was worried that the current definitions could threaten the tribal land being used in her area.
The second amendment flagged related to Chapter 1, Section 4 (2)(j) regarding fundamental principles. The amendment proposes to delete the word "sectarian" and insert after the word "purposes" the phrase "threatening a culture based on equality and freedom", and insert before the word "political" the phrase "for narrow party". Mr Moorcroft (Democratic Party) did not like the use of the word "narrow". He felt that the clause would be much stronger if it was left out. In addition, Ms Semple (Democratic Party) was concerned that the clause could be misinterpreted and seen as a way for political parties to profit from the legislation. Another concern raised by the committee was that the words "culture" and "freedom" can be based on traditional and subjective interpretations.
The third amendment flagged was in Chapter 2, Section 13 (1)(g) and (h) which concern powers and duties of the Authorities. The amendment proposes that paragraphs (g) and (h) should be replaced with a new paragraph (g) which would read:
subject to section 217 of the Constitution, enter into agreements
with any person for the provision of goods and services, including
the performances of the powers and duties of the Authority, but
the Minister may prescribe the procedure to be adopted in procuring
and negotiating such agreements or in any particular matter determine
that an agreement requires his or her written approval.
This section has many similarities to section 33 (discussed later) and it was decided that the two amendments would be dealt with at the same time on Monday.
Fourthly, the proposed amendment for Chapter 2, Section 13 (1)(k) concerning the powers and duties of the Authorities was flagged. The amendment states that, "but such immovable property may not be alienated, leased or encumbered without the prior written approval of the Minister" is to be added at the end of the phrase on line 48. Dr Rabinowitz (Inkhata Freedom Party) thought that the amendment gives too much power to the Minister. She proposed adding a process that would include public input so that the Minister is not solely in charge of the decision making process.
The committee was unable to agree on Chapter 4, Section 21 regarding harmonisation of integrated management plans; Section 23 (g) contents of integrated management plans; and Section 24 regarding approval of integrated management plans. It was clear that these items needed more study and discussion so they were flagged immediately for Monday's meeting.
Chapter 5, Section 30 which discusses land consolidation was also flagged. This section will need more consideration because it is effected by the Abolition of Certain Title Conditions Bill which has been passed in the National Assembly and is with the National Council of Provinces. The bill is currently in the provinces and it is due back in about two weeks. The committee decided that it would need more time to look at the consequences of the Abolition of Certain Title Conditions Bill on the World Heritage Convention Bill. At the request of the Portfolio Committee, the Department undertook to request a member of the Department of Land Affairs to attend the meeting of the Portfolio Committee on Monday to brief the committee on the impacts of the Abolition of Certain Title Conditions Bill
Chapter 6, Section 33 regarding security was also flagged by the committee. The amendment proposes to replace the phrase "Minister, and if applicable, the MEC, but if the assets concerned is worth more than ten percent of the total assets of the Authority, also with the consent of the Minister of Finance" with "Cabinet and, if applicable, the relevant MEC". Ms Van der Merwe (African National Congress) was worried about leaving out the Minister of Finance from this clause. In addition, this amendment concerned section 13 which was also flagged; it was agreed to deal with both amendments at the same time.
Finally, Chapter 6, Section 41 dealing with the annual report was flagged. This section is in conjunction with section 13 and 33 which were also flagged, therefore, it was decided to deal with the sections together at the next meeting.
All of these flagged issues will set up the agenda for the meeting on Monday 20 September at 1:30 p.m.
Minutes Supplied by Contact
Appendix 1
Proposed Amendments to World Heritage Convention Bill
AMENDMENTS AGREED TO
WORLD HERITAGE CONVENTION BILL
[B42-99]
LONG TITLE
1. On page 2, in the fifth line of the long title of the Bill, delete ", functions"
PREAMBLE
2. On page 2, in the seventh line of the Preamble, delete "Now" at the beginning of that line
CONTENTS OF THE ACT
3. On page 3, in line 8, to insert "and duties" after the word "powers"
CLAUSE 1 - DEFINITIONS
Clause 1(xxi) - Definition of "State land"
4. On page 4, lines 41 - 49, delete the entire subsection, and renumber the subsequent definitions
Clause 1(xxiv) - Definition of "tourism"
5. On page 4, lines 54 - 57, delete the entire subsection, and renumber the subsequent definitions
CLAUSE 4 - FUNDAMENTAL PRINCIPLES
Clause 4(1)(i)
6. On page 6, in lines 21 and 22, delete the phrase ", assessed and evaluated";
Clause 4(1)(l)
7. On page 6, in line 32, insert before the word "in", the phrase "and the principles of co-operative government"
Clause 4(2)(b)
8. On page 6, in line 55, delete the word "altogether"; replace the phrase "minimised and remedied" with "mitigated"
Clause 4(2)(d)
9. On page 6, in line 60, delete the word "altogether"
Clause 4(2)(h)
10. On page 7, in line 11, delete the word "altogether" and replace the phrase "minimised and remedied" with "mitigated"
CLAUSE 6 - IDENTIFICATION & NOMINATION OF WORLD HERITAGE SITES
Clause 6(1)
11. On page 7, in line 38, replace the word "Department" with "Minister" and delete the phrase "identification and"
Clause 6(2)
12. On page 7 in line 41, replace the word "prescribed" with "determined", and the word "may" with "must"
Clause 6(4)
13. On page 7, in lines 47 and 48, delete the phrase "upon the recommendation of the Department, or, if it is in existence, the body referred to in subsection (2),", and replace the word "prescribe" with "determine"
CLAUSE 7 - CONSULTATION PRIOR TO DECLARATION OR ESTABLISHMENT OF AN AUTHORITY
Clause 7(1)
14. On page 8, in lines 6 and 7 replace the word "may" with "must"
Clause 7(2)
15. On page 8, in line 14, insert a new subsection (2) and renumber the subsequent subsections:
"(2) The consultation with interested parties referred to in subsection (1) may be in a manner that the Minister considers to be appropriate, including —
(a) calling on interested parties to participate in the public hearings referred to in subsection (1); and
(b) specifying particulars of the consultation process by notice in the Gazette, at least two nationally distributed newspapers, appropriate local newspapers and radio stations."
16. On page 8, in line 14, remove the word "notify" and place it after the word "applicable"
Clause 7(3)
17. On page 8, in line 22, replace the words "and in" with "," and add to the end of the line the phrase ", appropriate local newspapers and radio stations"
CLAUSE 8 - ESTABLISHMENT OF NEW AUTHORITIES
18. On page 8, in line 35 add the word "and" after the word "powers", and in line 36 delete the words ", functions and jurisdictions"
CLAUSE 12 - DISESTABLISHMENT OF AUTHORITY & REVOCATION OF POWERS
19. On page 8, replace the entire clause 12 with the following:
"12. (1) An Authority referred to in section 9 must only be disestablished in terms of a resolution by Parliament
(2) The Minister must, at any time, investigate the performance by an Authority of its powers and duties in terms of this Act, the Convention or the Operational Guidelines.
(3) As part of any such investigation, the Minister must afford the Authority the opportunity of refuting any allegations against it.
(4) If that investigation reveals that an Authority is not performing its functions properly, the Minister must submit a report to Parliament for consideration by the National Assembly and the National Council of Provinces.
(5) If the National Assembly and the National Council of Provinces pass a resolution amending, suspending, revoking or terminating the powers of such an Authority or disestablishing it, the Minister must give effect to such a resolution by notifying that Authority accordingly.
(6) Where an Authority is disestablished in terms of this section, the Minister must ensure that-
(a) the assets of the Authority are protected; and
(b) the resolutions of the National Assembly and the National Council of Provinces be published in the Gazette for public information."
CLAUSE 14 - ESTABLISHMENT OF ADVISORY BOARD
Clause 14(4)
20. On page 11, in line 5, delete the word "substantial"
CLAUSE 15 - POWERS OF ADVISORY BOARD
21. On page 11, in line 22, the marginal note should read "Powers and duties of Advisory Board"
CLAUSE 17 - APPOINTMENT OF EXECUTIVE STAFF COMPONENT
Clause 17(5)
22. On page 12, in line 11, before the word "prescribe", insert the phrase "with the concurrence of the Minister of Finance";
CLAUSE 30 - LAND CONSOLIDATION
23 On page 14, replace the entire clause 30 with the following:
"30. (1) The Minister may, with the concurrence of the Minister of Finance, transfer any movable or immovable property belonging to the State to an Authority to enable it to perform its powers and duties or to achieve any of its objects.
(2) Immovable property transferred to an Authority in terms of subsection (1), may not, without the prior written approval of the Minister, granted with the concurrence of the Minister of Finance, be alienated, leased or encumbered.
(3) The Minister may-
(a) subject to section 40 of the Deeds Registries Act (Act No. 47 of 1937), consolidate land of which the State is the owner and forming part or potentially forming part of a World Heritage Site;
(4) The Minister must before giving written consent in terms of subsection (3), consult with all relevant parties, including the relevant-
(a) land owners;
(b) mortgage holders; and
(c) cultural, nature conservation, heritage and similar public interest bodies with an interest in the area affected by the proposed action.
(5) A registrar defined in section 102 of the Deeds Registries Act, 1937, must, upon submission to him or her of a certificate by the Minister that land has been transferred to an Authority in terms of this section, make such entries and endorsements as he or she may deem necessary in or on any relevant register or other document in his or her office or laid before him or her, in order to register such land in the name of the Authority, and no stamp duty, office or other fee is payable in respect of such registration.
(6) If an Authority is disestablished in terms of section 12, and without derogating from the generality of section 12(4)(a), a registrar must, upon submission to him or her of a certificate by the Minister that land transferred to an Authority in terms of subsection (5) has been transferred back from such Authority to the State, make such entries and endorsements as he or she may deem necessary in or on any relevant register or other document in his or her office or laid before him or her, in order to register such land in the name of the State, and no stamp duty, office or other fee is payable in respect of such registration."
CLAUSE 32 - FUNDING
24. On page 15, in line 37, delete sub-paragraph (f)(i) and renumber subsequent sub-paragraphs; and in line 43, delete paragraph (i) and renumber subsequent paragraphs
CLAUSE 34 - EXPENDITURE OF MONIES
Clause 34(2)
25. On page 16, in line 3, add to the end of the line the phrase "with the approval of the Minister, with the concurrence of the Minister of Finance, and, if applicable, the relevant MEC"
CLAUSE 41 - ANNUAL REPORT
26. On page 17, after line 38, insert a new paragraph (c):
"(c) detail of agreements entered into by the Authority in terms of sections 13(g) and (j)."
FURTHER AMENDMENTS FOR DISCUSSION ON 20 SEPTEMBER
CLAUSE 1 - DEFINITIONS
Clause 1(xviii) - Definition of "Private land"
1. On page 4, in line 37, delete the entire subsection, and renumber the subsequent definitions
Clause 1(xx) - Definition of "State forest"
2. On page 4, in line 39, delete the entire subsection, and renumber the subsequent definitions
CLAUSE - FUNDAMENTAL PRINCIPLES
Clause 4(2)(a)
3. On page 6, in line 52, delete the word "altogether" and insert before the word "minimised", the phrase "where appropriate"; and replace the phrase "minimised and remedied" with "mitigated"
Clause 4(2)(c)
4. On page 6, in line 58, delete the word "altogether"; replace the phrase "minimised and remedied" with "mitigated";
Clause 4(2)(j)
5. On page 7, in line 16, delete the word "sectarian" and insert after the word
"purposes" the phrase "of threatening a culture based on equality and freedom", and insert before the word "political" the phrase "for party-";
CLAUSE 5 - ENFORCEMENT & IMPLEMENTATION OF CONVENTION
6. On page 7, in line 18, replace the word "Department" with "Minister"
CLAUSE 13 - POWERS AND DUTIES OF THE AUTHORITIES
Clause 13(1)(g) and (h)
7. On page 9, in lines 35 to 41, replace paragraphs (g) and (h) with a new paragraph (g) and renumber subsequent paragraphs:
"(g) subject to section 217 of the Constitution, enter into agreements with any person for the provision of goods and services, including the performance of powers and duties of the Authority, but the Minister may prescribe the procedure to be adopted in procuring and negotiating such agreements, or in any particular matter determine that an agreement requires his or her prior written approval."
Clause 13(1)(k)
8. On page 9, in line 48, add to the end of the line the phrase ", but such movable or immovable property may not be alienated, leased or encumbered without the prior written approval of the Minister"
CLAUSE 21 - HARMONISATION OF INTEGRATED MANAGEMENT PLANS
9. On page 12, in line 45, delete the word "and"; in line 46 replace the "." with "; and"; and in line 47, insert a new paragraph (e):
"(e) existing planning and development plans of an existing organ of state referred to in section 8."
CLAUSE 23 - CONTENTS OF INTEGRATED MANAGEMENT PLANS
Clause 23(g)
10. On page 13, in line 21, delete the word "and"; in line 23 replace the "." with "; and"; and after line 23, insert a new sub-paragraph (vi):
"(vi) if applicable, alienation, lease or encumbrance of immovable property referred to in section 13(j) in accordance with this Act"
[Note: 13(j) is the reworded and renumbered clause 13(k)]
CLAUSE 24 - APPROVAL OF INTEGRATED MANAGEMENT PLANS
11. On page 13, after line 47, insert a new subsection (7):
"(7) The Minister may, after consultation in terms of subsection (4), approve the existing planning and development plans of an existing organ of state referred to in section 8, as the integrated management plan for purposes of this chapter, if the Minister is satisfied that such plans comply materially with this chapter.
CLAUSE 30 - LAND CONSOLIDATION
12. On page 14, add to the reworded Clause 30(3) a new paragraph (b)
"(b) subject to section 65 of the Deeds Registries Act, 1937, register by notarial deed a condition over land forming part or potentially forming part of a World Heritage Site to the effect that such land may not be separately alienated, leased or encumbered without the prior written consent of the Minister."
CLAUSE 33 - SECURITY
13. On page 15, in lines 48 to 50, replace the phrase "Minister, and if applicable, the MEC, but if the asset concerned is worth more than ten percent of the total assets of the Authority, also with the consent of the Minister of Finance" with the phrase "Cabinet and, if applicable, the relevant MEC"
PROPOSED EDITORIAL AMENDMENTS
1. Throughout the Bill there are headings, marginal notes and clauses in which the phrase 'organs of State' appears. This must be corrected to be 'organs of state' (all in lower case) to be constitutionally correct. The applicable headings, marginal notes and clauses are as follows:
On page 2, line 16
On page 5, line 52, in clause 4(1)
On page 6, line 29, in clause 4(1)(l)(i)
On page 6, line 29, in clause 4(1)(l)(ii)
On page 8, line 23, in the heading of clause 8
On page 15, line 44, in clause 32(j)
Appendix 2
To: The Director-General: Department of Environment Affairs
EFFECT OF THE ABOLITION OF CERTAIN TITLE CONDITIONS BILL ON
CONDITIONS lMPOSED IN TERMS OF CLAUSE 30 (3)(b) OF THE WORLD
HERITAGE CONVENTION BILL
1. In terms of clause 30 (3)(b) of the World Heritage Convention Bill the Minister may register a condition against the title of land forming part of a World Heritage Site to the effect that the land may not be alienated without the consent of the Minister. Clause I of the Abolition of Certain Title Conditions Bill provides that any such condition registered before the commencement of that (Bill as an) Act is abolished.
2. There are two courses open to the Minister if clause 30(3) (b) is to stand and to be acted upon. Either the Minister can wait for the Abolition of Certain Title Conditions Bill to come into operation before registering any such condition or the Department of Land Affairs can be asked to promote an amendment of their Bill in order to accommodate these conditions as exceptions in clause 2 of their Bill. The latter course might be more prudent as it is not clear when the Abolition Bill will come into operation.
3. If the latter course is to be followed it should be done quickly since the Abolition Bill has already been passed by one House of Parliament.
STATE LAW ADVISERS
Per: O.B. KELLNER and T.MBANGENI 16/09.99
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