Western Cape Museum Ordinance Amendment Bill: Department briefing

Police Oversight, Community Safety and Cultural Affairs (WCPP)

15 March 2021
Chairperson: Mr R Allen (DA)
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Meeting Summary

Video: Standing Committee on Community Safety, Cultural Affairs and Sport, 15 March 2021, 09:00

In a virtual meeting, the Western Cape Department of Cultural Affairs and Sport briefed the Committee on the Museum Ordinance Amendment Bill.

The Department said the Auditor-General was responsible for auditing province-aided museums, because the province-aided museums formed part of the Department. This exercise costs the province-aided museums upwards of R100 000, which is an exorbitant fee for the small entities to pay. To alleviate the strain the Amendment Bill was formulated.

The main purpose and aim of the Bill was to ensure the financial burdens of annual audits currently conducted by the Auditor-General on province-aided museums were reduced, while still ensuring effective financial accountability. Instead, province-aided museums would be required to seek professional registered auditing firms to audit it, which would be far more affordable, ultimately saving the institutions a lot of money. The Department would continue to provide oversight to ensure the audits by the professional registered auditors were legitimate.

The Department said an ancillary motivation behind the Amendment Bill was to get the legislation in line with the Constitution of the Republic of South Africa, 1996, and to foster social inclusion.

It was noted, Clause 15(4)(c) expressly favoured the Dutch Reformed Church (DRC), a particular denomination within the Christian sector of the Tulbagh community. This meant it favoured the DRC to the implied exclusion of other stakeholders within the sector.

Members agreed the Clause was exclusionary and not inclusive, but said it should not be amended to become too broad, and should be limited to the insertion of the word ‘churches’.

The Committee resolved to have the notice for an invitation for public participation published in various media formats and languages, the following day. The public hearing was to take place on 24 March 2021, with the deadline for submissions being 23 March 2021.

Meeting report

The Committee was briefed on the Museums Ordinance Amendment (MOA) Bill, and its impact.

Briefing by the Western Cape Department of Cultural Affairs and Sport (DCAS) on the Museum Ordinance Amendment Bill

Mr Michael Janse van Rensburg, Deputy Director: Museum Service, Western Cape Department of Cultural Affairs and Sport (DCAS), gave the presentation on the Museum Ordinance Amendment Bill.

He said the Museums Ordinance 8 of 1975 was assigned to the Western Cape Province in 1994 under Proclamation 115 of 1994. The Museums Ordinance broadly governed the following:

  • The establishment of museums
  • The governance of museums

- (5) Provincial Museums (Management Committee)

- (20) Province-aided Museums (Board of Trustees)

- (6) Local Museums (Control Board)

-     The granting of subsidies/grants to museums, and

-     The appointment of staff at museums

The Museums Ordinance predated the Constitution of the Republic of South Africa, 1996, and so contained language not aligned with the Constitution. It also did not align with the Public Finances Management Act 1999 (PFMA). Province-aided museums were funded through subsidies paid according to Section 29 of the Ordinance. These museums faced a huge challenge because section 32 of Ordinance required it to be audited by the Auditor-General South Africa (AGSA). The Auditor-General fees were R2.3 million for the year 2018/19, for 19 province-aided museums in the Province, and R2.5 million for 2019/2020. The collective result was province-aided museums were unable to allocate sufficient resources towards its core functions to conserve, exhibit, and educate, communities about the Province’s collective heritage.

Detailing the objectives of the Bill, he said the Museums Ordinance Amendment Bill sought to amend provisions to align the principal Ordinance with the Constitution, and other relevant legislation such as the Public Finance Management Act (PFMA), and good practice within the museum governance environment.

Further, the Museums Ordinance Amendment Bill sought to align the principal Ordinance with current terminology and government structures, and to alleviate the financial burden of annual financial audits by the Auditor-General on province-aided museums.

Mr Janse van Rensburg highlighted some clauses to be amended. Clause 15 GP substituted Section 15 of the principal ordinance. This was done to reconfigure the constitution of a board, to ensure good governance at province-aided museums. The whole of the principal Ordinance was assigned to the Province, to the extent it applied in the Province.  The museums listed in Section 15(2) of the principal Ordinance did not fall within the geographical area of the Province. For this reason, Section 15(2) of the principal Ordinance was not applicable in the Province, and was not assigned to the Province.

Particular importance was drawn to Clause 31 AG which substituted Section 32 of the principal Ordinance. It provides a Board must appoint an auditor to audit the financial statements of the Board. This is to ensure the financial burden of annual audits on province-aided museums, currently conducted by the Auditor-General, were reduced, while still ensuring effective financial accountability. Clause 32 AG inserted Section 32A in the principal Ordinance to regulate financial misconduct by a Board. This was to ensure proper financial accountability of boards. Clause 47 AG provided for savings and transitional arrangements. The purpose of Clause 47(12) was to avoid confusion with regard to references relating to Section 15(2) in this Draft Bill and the principal Ordinance.

In conclusion, Mr Janse van Rensburg said there were no additional financial implications because current budget resources will be used, neither were there direct personnel implications.

Discussion

The Chairperson asked the presentation to be circulated to Members. He said there were prior offline discussions about the motivation and closing remarks of the presentations. He thanked Members for giving up a constituency day for the urgency of the Bill.

The discussion would be opened up for questions, which was the first stage leading to the public hearing process, as well as its negotiating mandate.

Mr R Mackenzie (DA) asked about the key component of the Bill. He asked if there was a discussion with the Auditor General South Africa (AGSA) about the fees which were exorbitant when divided per museum.  He asked what auditing alternatives the Department considered; what the net effect of the cost saving was; and if the considerations and numbers to this effect could be shared with the Committee.

He asked what the net effect of the departments findings are, as a third party would audit the museum. Mr Mackenzie said normally the AGSA conducted an audit and delivered a finding which fed into the DCAS’s Annual Report. He asked if an internal audit, or an audit conducted by a third party would have an effect on the quality of the audit findings of the DCAS.

Ms A Bans (ANC) asked about the fees of the AGSA. She referred to Clause 31 of the Bill and sought clarity. The way she understood it, the DCAS were no longer mandated to use the AGSA to conduct its audits and could use any registered auditing firm, she was not sure if she understood this correctly.

She asked if other options were considered, or if it was the only option which could have been implemented.

On the abolishment of the museum, she asked for more information as she could not hear properly.

Mr G Bosman (DA) referred to Mr Janse van Rensburg’s plea for the Committee to pass the Bill before the end of the financial year. He asked which financial year, if it was the financial year concluding at the end of the month, or at the end of the financial starting in April.

Mr Guy Redman, Chief Director: Cultural Affairs, WC DCAS, replied to Mr Mackenzie, and said there had been discussions with the AGSA. The AGSA supported the decisions, as it agreed the museums were small institutions. It also took up much of the AGSA’s time, because not only did the AGSA have to audit the DCAS, but also these smaller institutions which were not part of the DCAS but were linked to the DCAS through the Act. The AGSA supported alternative registered auditors conducting the audits.

On the impact of the DCAS outcomes, Mr Redman said the DCAS only had five provincial museums which formed part of the audit outcomes of the DCAS. It was external institutions. It was only audited by the AGSA as required by the Act, because it was funded by the DCAS. Only the five institutions were DCAS affiliated while the rest were not, and its audits formed part of the outcomes DCAS had. The museums had its own audit outcomes, which caused some to raise funds because of accounting standards. Its outcomes did not affect the DCAS audit outcomes as it was external.

Mr Janse van Rensburg noted the question raised by Mr Mackenzie about discussions with the AGSA. He said DCAS continuously consulted the AGSA, who were in support of the Bill.

On the net effect, he said the cost of an audit for organisations of a similar size to the size of many of the province-aided museums, was over R100 000, which the AGSA charged because the AGSA followed the same process no matter the size of the entity it was auditing. It also sub-contracted the auditing of the museums which made it expensive. The museums would save because it would par R20 000 – R30 000 for an audit, as opposed to over R100 000. The potential net effect of saving was R100 000 per museum.

Province-aided museums operated as non-profit organisations (NGOs) and could potentially negotiate with professionally registered auditors, some even securing pro bono audits. It would save a lot of costs. Mr Janse van Rensburg was confident in decreasing the R2.5 million by 60% - 70%.

In response to Ms Bans, he said the amendment of Clause 31 removed the AGSA as the auditing authority, and inserts the requirement to be audited by a professionally registered auditor. It meant it was not an option of either or, but a professional registered auditor would be the mandatory institution to audit province-aided museums.

On the abolishment of provincial museums, Mr Janse van Rensburg said the Section was amended in the Ordinance to ensure there were criteria in place for the Provincial Minister to consider when abolishing a museum.  An example of a requirement would be for there to have been public consultation before abolishing a museum. The process had set criteria and was more transparent.

He turned to Mr Bosman’s question and said the request was for the adoption of the Amendment Bill by the end of March 2021.

Mr Bosman asked a follow up question and asked what the timeline was thus far, and why it took so long to get it gazetted and to get to this stage.

Mr Mackenzie thanked Mr Janse van Rensburg for the explanation and agreed it made financial sense. He repeated Mr Bosman’s question about the timeline, because there only two weeks left of March.

On the net effect, he said the DCAS gave funds to the museums and AGSA audited the DCAS, it had to make sure the money was spent accordingly. He was concerned the external auditors would have an adverse effect on the DCAS.

Mr Redman answered Mr Mackenzie’s question and said it would not have an effect on the DCAS. There was a similar requirement with the arts and culture organisations the DCAS funded. 50 of it were funded every year and were required to be audited by a registered audit firm. The DCAS finance department went through the audit reports the organisations submitted to it, and checked it thoroughly. The DCAS still provided oversight when the institutions were being audited by the AGSA. There were also additional measures, such as, Mr Janse van Rensburg attended all the board meetings of the museums to ensure the money was spent appropriately.

Mr Janse van Rensburg replied to Mr Bosman’s question about the timeline. He said on 15 January 2020 Cabinet approved the publication of the Draft Ordinance Amendment Bill for public comment, which was recorded in Cabinet Minute 14 of 2020.  The DCAS published it for comment and worked through it.  On 28 July 2020 Cabinet granted approval to introduce the Draft Museum Ordinance Amendment Bill to the Provincial Parliament, recorded in Cabinet Minute 476 of 2020. On 12 February 2021, with Provincial Gazette Notice 8385, Parliament published the Western Cape Museum Ordinance Amendment Bill for public comment. Therefore, the DCAS’s part of the process was finalised on 28 July 2020.

Mr Bosman wanted confirmation of Cabinet approving the Bill for gazetting in July 2020, it was then sent to Parliament, and Parliament only published it in the Gazette on 12 February 2021. He asked if this was correct.

Mr Janse van Rensburg said yes.

The Chairperson said in the Standing Committee’s discussion about when the Bill was gazetted, it had to be gazetted for 21 days. This is the reason for the offline conversations taking place among the permanent Members of the Committee, about the way forward.

Adv Romeo Maasdorp, Legal Advisor, Western Cape Provincial Parliament, said the national and private museums were not within the remit of the provincial DCAS, so were excluded. From what the DCAS said, he understood there were provincial museums, provincial-aided ones, and local ones. Other than national and private museums, it seemed the Province had some or other limited involvement with the three aforementioned categories of museums. This involvement could be in the form of funds, support of human resource, or personnel. Province as a national entity had some involvement in the museums. 

He was also led to believe by Mr Janse van Rensburg that provincial-aided museums were juristic entities of its own accord, and one the premises which informed the Bill, was to make it align with the Constitution and the Public Finances Management Act (PFMA). He agreed with Mr Janse van Rensburg, one of the aims of the DCAS which Adv Maasdorp found to be noble was, the DCAS was at the forefront of social inclusion. With this observation, Adv Maasdorp referred to Clause 15 of the Bill, and in particular Clause 15(4)(c).

He was concerned the slides did not capture the essence of the Bill. He referred to Clause 15 which dealt with the constitution of a Board, and in particular Clause 15(4)(c), which mentioned the Board would be constituted among others by also having one member nominated by the Church Council of the Dutch Reformed Congregation.

Adv Maasdorp referred back to Mr Janse van Rensburg’s noble statement of social inclusion, and asked why one particular sect of a denomination was expressly included, to the implied exclusion of other potential social agents like church councils.

Mr Janse van Rensburg said the Section dealt with the constitution of the governing bodies of the boards, the members appointed to serve on the boards. In the principle Ordinance there were a couple of province-aided museums which had a specific makeup. Historically, he said the principal Ordinance said the Minister was to appoint three members to the Board, the local, and regional municipalities appointed one each, as well as the Association of Subscribers, who also appointed one.

There were two or three museums in the principal Ordinance which included a specific institution or body, which was an integral part, or was a co-founder in the establishment of the museums. These were deemed vital stakeholders because it was integral to the success of the province-aided museum. Historically, the church mentioned in the specific section was included because of the historical narrative. On social inclusion, he said it was still fostered by the appointment of members by the Minister, and members of the various local and regional councils. Mr Janse van Rensburg asked his colleague and she said the museum in question was established when the principal Ordinance was passed in 1975. The Clause was retained because of its historical context. The DCAS did not consider it necessary at the current amendment stage of the Ordinance to reconfigure the constitution of the board. The historical context had a lot to do with it.

Mr Bosman asked if there were practical, financial, or legal consequences of broadening the Clause to include more churches, by using the words ‘church in the Tilburg area’. He asked about the impact, if perhaps the Dutch Reformed Church funded the museum.

Adv Maasdorp said the response was a response, but not an answer to the question. He said it was informative, but not persuasive. In as much as there was historical significance it seems the DCAS chose to embark on a constitutional clean up only to certain extent and not to the fullest extent. He said social inclusion should be seen consistently. Adv Maasdorp appreciated Mr Bosman’s observation, which said surely there could be a recalibration, reconfiguration, and rearticulation of the provision. This way it included a reference to an entity like a church council, and this would not expressly or by implication exclude all else. As it currently stood, it excluded every other interested stakeholder or funder. He said he was in Tulbagh not so long ago, and was amazed at the sizeable presence of Pakistani and East Asian business owners. Tulbagh was not the same as it was in the 1600s.

In 2021 it was unacceptable to provide for a sect within a sect, a Dutch Reformed sect within a Christian sect was backward. If the Minister had the discretion to appoint other members, it should be the point adopted. He said the DCAS should be legally sound and forward thinking, by either removing the reference in Clause 15(4)(C), or amending it to be inclusive, as was nobly indicated. The Dutch Reformed Church was certainly a presence in Tulbagh, but it was not the only presence in 2021, with a mobile and migrating world.

Mr Bosman agreed with Adv Maasdorp, but cautioned, saying the clause is still to be viewed within its context. He said the Clause should not be broadened to include everyone else, but should be limited to the word ‘church’, and not specifically ‘Dutch Reformed Congregation’. He said it should be put out for public participation to ascertain how the people of Tilburg felt about it. He disagreed with Advocate Maasdorp in the sense that museums were contested spaces which also held historic accuracy or context, and it was the responsibility of the participants of the time to tell the story. So if the Dutch Reformed Church was a key participant, positive or negative, there was a responsibility to keep this voice. He suggested it be subjected to a public participation process.

Ms Bans apologised for her repetitions, caused by her intermittent internet connection. She thanked Adv Maasdorp for raising the issue about the Clause concerning the Dutch Reformed Church. She suggested a deeper discussion on the matter and agreed with Mr Bosman, saying it should be stated as ‘churches’. It should not be left as is.

Mr Mackenzie referred to the Clause and said it was the Board of the Oude Kerk Volksmuseum, and not museums in general, so it was a specific reference. The nomination of the Oude Kerk, which was a church at Tulbagh, meant it was specific to it. So, for example, if there was the Bo Kaap Muslim Museum, one would expect the mosques in the Bo-Kaap would appoint someone, and not a church council in Mitchells Plain.

Mr Janse van Rensburg thanked Members for the input on social inclusion, which was invaluable. He provided context, and said the property in question of the museum was connected to the title deed of the Dutch Reformed Congregation. He said the DCAS could provide clarity in writing on the specific clause.

Regarding DCAS’s vision on social inclusion, the amendment of the Ordinance was the first step. The amendment was primarily about the financial burden brought about by the audits of province-aided museums. Given the current context, the DCAS deemed it important. It was quicker to amend the current Ordinance to align it with the Constitution and other legislation. He said the DCAS was working on a new Museum Bill, which once finalised, would replace the Museums Ordinance, and this Amendment Bill. This is where the DCAS vision of social inclusion would be realised. He asked for attention to be brought back to the original intent behind the amendment, which was to alleviate the financial burden of the AGSA.

The Chairperson said part of the discussion could be concluded. He thanked the DCAS for its presentation, and all the speakers for the input.

Mr Redman thanked the Committee for its input, and said the Department would respond to any points of clarity in writing.

The Chairperson thanked the DCAS and excused the Department, so the Committee could discuss the process moving forward.

Regarding the way forward, the Chairperson said when the time frames were communicated, offline conversations took place to ascertain the process could be completed before the end of the financial year. He thanked Members for input on the public participation process, and the way forward. He referred to the agreed advertisements, and said a process had to be undertaken to meet the Western Cape Provincial Parliament and newspaper deadlines. The advertisement would be published on 16 March 2021 in English and Afrikaans. It would also be sent to the DCAS and all its structures, stakeholders, museums, libraries, local, and district municipalities. It would also be circulated on social media platforms. There was a request from a Member to get the advertisement in all the districts, but this would have been beyond the Committee’s capacity. A public hearing was scheduled for 24 March 2021, and the deadline for submissions was 23 March 2021, which was illustrated in the advertisements.  During this time the Committee would be able to deliberate and conclude its negotiating mandate, and adopt its report.

Mr Mackenzie asked if the timeline allowed for the public participation to take place was by the end of the month.

The Committee’s senior procedural officer said the public input was expected to be minimal because of the nature of the subject. He suggested the Committee move to a clause-by-clause consideration. He predicted one or two amendments and said the deadline would be adhered to.

Mr Bosman said he agreed the process could take place as the Chairperson proposed, as discussions had taken place. However, he referred back to Mr Janse van Rensburg’s earlier comment which said Cabinet sent the Bill to Parliament in July 2020. He therefore asked Mr Daza why it took so long for the Bill to be gazetted, and what delay caused it to reach Parliament in February 2021.

Mr Daza said the DCAS sent the Bill to Parliament on time, but the Bill had to be converted into the parliamentary format, which took very long. It had to be checked and sent to the Afrikaans and Xhosa language practitioners. Mr Daza said Parliament steered clear of publishing the Bill during the festive season as it caused problems before. The only available time the DCAS could be met with was on 26 January 2021, which was the time by which it communicated the Bill had to be finalised, being before the end of the financial year. Mr Daza said it would have been expedited if he had known. He said when the Bill was submitted the Committee, he was very busy and he was not available to work through it.

Ms R Windvogel (ANC) said there was no problem as long as the Committee followed the process and met the deadline.

Mr Bosman agreed with Ms Windvogel and said the advertisements should be published on the present day, so the newspapers could publish it the following day. This way public participation could be processed for the public hearing.

The Chairperson said the advertisements will be placed in two newspapers the following day, as well as on 18 March 2021. The Committee would meet for the public hearing on 24 March 2021.

The Chairperson thanked everyone for attendance.

The meeting was adjourned.

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