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SPORT AND RECREATION PORTFOLIO COMMITTEE
23 May 2005
SA SPORTS COMMISSION ACT REPEAL BILL: BRIEFING
Documents handed out:
South African Sports Commission Act Repeal Bill
Summary of Inputs Received from Role Players on Repeal Bill
Portfolio Committee on Sport and Recreation South African Sports Commission Act Repeal Bill Background Information
The Committee was briefed by the Department on the South African Sports Commission (SASC) Act Repeal Bill. The Briefing covered the history of the SASC and the reasons for establishing new sports governance structures. Once the SASC was ‘disestablished’, the Department of Sport and Recreation would be expanded and a non-governmental umbrella structure called the South African Sports Confederation and Olympic Committee (SASCOC) would be established. Details of the Bill were also presented. The Committee clarified their desire to ‘fast-track’ the Bill, the procedure for transferring functions of the SASC to the Department, and the need for public consultations.
Sport and Recreation South Africa briefing
Mr D Hendricks, Head of Operations and Adv G Boshoff, Legal Advisor, presented the briefing. Mr Hendricks gave a summary of the background to the Bill, explaining why the SASC had been established. He then outlined the proposed new governance structure, which would entail the expansion of the Department and the establishment of SASCOC. He explained that the SASC had no funds to continue its work as it was soon going to be dismantled, but the Department was so short of staff that it was unable to function. The Department was engaged in negotiations to second the staff from the SASC to work for the Department, but they were also requesting the fast-tracking of the Bill in order to resolve the issue.
The Chairperson asked if Mr Hendricks was asking Parliament to fast-track the Bill in order to solve the staffing problems in the Department, because there were Parliamentary processes that would need to be followed in order to do so. He asked if the work to second personnel was ongoing.
Mr Hendricks said that the Executive Authority had approached the Speaker about fast-tracking the Bill. They were in a ‘desperate situation’ in the Department because personnel from SASC were supposed to have been incorporated into the Department on 1 April 2005, but that had not yet happened. They were in a process of negotiating some way to bring over members from SASC, but had to be sure that a move would not be detrimental to the staff. It was possible that the Repeal Act could come through before the secondment was over.
The Chairperson said that he had been approached about dealing with the Bill quickly and agreed that they should do so. He asked why the Bill needed to be fast-tracked however, if they were already working on a process to second the staff to the Department.
Mr Hendricks said that the process would be long and that the functions of the SASC had to be transferred to the Department or to SASCOP. They could not transfer those functions until the SASC Act was repealed. Until that was done, those functions had to remain with the SASC. This legal concern made the Bill an urgent matter.
Adv Boshoff, the Legal Advisor for SRSA, presented the legal details of the Bill. This included transitional provisions that complied with the Public Finance Management Act (PFMA) and the Constitution. He also outlined the financial implications for the State, noting that R3 million had been made available in the medium-term and no separate budget had been allocated to the SASC for 2005/06. The Department was responsible for the payment of staff transferred with effect from 1 April 2005. He then outlined the inputs received from various roleplayers on the Bill.
The Chairperson asked what date Cabinet had proposed to implement the Bill once it had become clear that the proposed date of 1 April 2005 would not be met. Adv Boshoff said that they had proposed 1 October 2005.
The Chairperson said that they would try to finalise it by the end of next month, but that Cabinet envisaged that there might be delays until 1 October. The document before them still referred to 1 April, so he asked how they could adjust it to allow the Department to continue until the Bill was finalised.
Adv Boshoff said that Cabinet felt they needed more time to finalise the Bill, but because of the staffing problems, they needed to speed it up.
The Chairperson felt that anyone should be able to understand the Bill, including the process that led up to its drafting. He asked of they could include a background somewhere in the Bill to help those unfamiliar with it. Adv Boshoff said that this could be included in the Preamble.
The Chairperson said that SASCOC was included in the list of definitions, but was not mentioned in the Bill. Adv Boshoff said that in the original draft of the Bill, SASCOC had been included, so it had not been omitted from the definition list.
The Chairperson said that they should remove it. The clause stating that the transfer of assets would be in line with Section 54 of the PFMA was separate from the clause referring to the transfer of assets in compliance with Section 42. It should be more obvious that the transfer would comply with both sections and asked about the legal rationale for separating them.
Adv Boshoff said that it had originally read that when the Act took effect, all assets, rights and abilities of the Commission, subject to the provisions of Section 54, should be vested in the Department. The State Law Advisors had advised that they should separate the two provisions from a legislative point of view. The Chairperson said that it should not be hidden in order to make it easier to understand.
Ms B Lufundo, State Law Advisor, explained that they had decided to split up the clauses about the PFMA because Section 42 and Section 54 did not deal with the same thing. Section 42 dealt with the transfer of assets and what should be done with them. Section 54 was something that had to be complied with by the Commission before the assets would be transferred. They could reformulate the provision to make it clearer.
Adv Gordon, State Law Advisor, commented that the separation was because Clause 3(1)(a) was about the effect of what happened to the assets in compliance with Section 42, not the formalities that take place. Sub-section two indicated that the formalities related to Section 54. She felt that it was an anomaly that sub-clause 2 stated that the Commission had to, before its assets and liabilities were transferred, comply with Section 54. The purpose of the Bill was to disestablish the Commission, but the Commission would only be disestablished when the legislation came into effect, so they could not hold it liable to act once it was no longer in existence. She suggested that the Accounting Officer, the CEO, or the Board should have an extended contract to deal with that function.
The Chairperson agreed with that suggestion, but did not see where the functions of the Commission were transferred to the Department in the Bill. The existence of the SASC did not give rise to the problems in the Department; it was the function of the Commission that made it difficult. The Bill did not alleviate this by placing the functions of the Commission in the hands of the Department. In subsection 3, he thought the third column of the schedule was repealed, not the second column.
Adv Gordon said that it was correct that it was the second column, but that the wording should say that the legislation was repealed to the extent indicated in column 3. The Chairperson agreed.
Adv Boshoff said that the Department of Public Service and Administration had said that with the transfer of employees, the function would follow the employee. In the Bill, there was no reference to functions being transferred. The arrangements dealt with the transfer of functions separately but concurrently, and transfer should be catered for by way of negotiation, which they were now engaged in.
The Chairperson said that this meant that if employees decided to leave their posts for the private sector, there would be no-one to transfer and there would be a problem with fulfilling functions. The functions should still be transferred to the Department without the personnel.
Adv Boshoff said that they had begun by saying that the transfer should take place in accordance with Section 197 of the Labour Relations Act. This section did not refer specifically to the transferr of functions, but would ensure that employees were not transferred to a worse-off position than previously.
Mr H Mlangeni (ANC) did not understand why they were talking about the functions of the Commission. Once the Act repealed the Commission, assets of the Commission would be transferred, but the functions would be repealed and would not be needed anymore. The functions would now be determined by the Department.
Adv Boshoff said that the provisions of Section 197 of the Labour Relations Act defined a business and a transfer and that it was the business of the SASC that was being transferred. In this way, the business of the SASC, including all its functions, were catered for in Section 197.
The Chairperson clarified that the Sports Commission had been established by an Act of Parliament, and that the Department was coming back to the Parliament asking for that Act to be repealed. The Committee should accept or refuse. The Committee had the right to say no, but then the Department could not disestablish the SASC.
Mr T Lee (DA) said that he had never agreed with the establishment of the Commission, and agreed it should be abolished. They had been told that it would be disestablished on 1 April, so the Act should have come into play then. As far as he was concerned, the Commission no longer existed. The Department’s urgency and the date given in the Bill now caused confusion, because it looked as if they were legislating on something that had already occurred. He asked what functions the Commission had performed.
Mr Hendricks said that the presentation had covered why the Commission still existed. The Repeal Bill had been endorsed on 8 March 2005, but Cabinet had suggested that it be promulgated on 1 October because it needed more time. That was causing problems because they had an expanded the Department structure with all kinds of functions but did not have the staff to fill positions. They were not able to take those functions until the Act was repealed.
The Chairperson said that Mr Lee was saying that the Commission had never had any function and asked Mr Hendricks wha functions were being transferred.
Mr Hendricks said that they could look at the Annual Reports for the last five years for more information, but that the SASC had ‘high performance and mass participation’ functions. They had been involved in Indigenous Games, the SA Games and other programmes. The problem had been too much duplication which caused confustion. With the new dispensation, all of that would be clarified, creating new efficiency and effectiveness.
The Chairperson said that they should not think that the Commission had no function. The issue was the extent to which the SASC was doing what it was intended to do.
Mr C Frolick (ANC) said that the function of the SASC was known, but that the Repeal Bill was meant to align sports activities and harness capacity to streamline the administration of sport.
The Chairperson asked how Adv Boshoff had advised the Department to handle the Bill in terms of public participation. Section 79 of the Constitution said that the National Assembly should facilitate public involvement in legislation, but it did not specify what type of legislation this applied to.
Adv Boshoff said that he had not advised them to carry out public consultations, but agreed that Section 79 said it should happen. The Minister had advised them that it was not necessary to have public hearings regarding this Bill because it was so straightforward.
Mr Frolick said that regardless of the wishes of the Minister, the Committee could debate its necessity in terms of the existing legislation.
Adv Gordon agreed that Adv Boshoff was not in a position to advise on that. Section 59 said that it was the responsibility of the National Assembly, so the Committee needed to take advice on public participation when the Bill was discussed by Parliament. The content of the Bill should not result in non-compliance with Section 59, and the extent of public participation was important. They could decide not to engage in lengthy public participation because of the nature of the Bill and its urgency, but they had to be seen to be complying with Section 59.
The Chairperson said that it was dangerous to ignore this section of the Constitution and that there were ways that they could carry it out.
Mr Frolick said that the judgement call on this Bill called for a very political discussion.
Mr E Saloojee (ANC) understood that it was essential that public hearings be held. Hearings could not be held after the Bill had been processed, because that would be meaningless.
Adv Gordon said that although they were all very familiar with the Bill, the public was unaware of it. The Bill had been drafted in consultation with some relevant bodies, but the public had not been consulted and needed to be involved.
The Chairperson said that they would meet on 24 May 2005 to further discuss the Bill.
The meeting was adjourned.
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