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PORTFOLIO COMMITTEE ON SPORT AND RECREATION
9 June 2006
2010 FIFA WORLD CUP SOUTH AFRICA SPECIAL MEASURES BILL [B13-2006]: DEPARTMENT BRIEFING
Chairperson: Mr B Komphela (ANC)
Documents handed out:
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006]
The Committee was presented with the draft of the 2010 FIFA World Cup South Africa Special Measures Bill. This Bill had been unacceptably delayed. The reasons for the delays were presented. Many government departments were involved, but some felt that existing legislation was sufficient to deal with issues during the World Cup. The Bill contained thirteen clauses, covering definitions, merchandising, status of venues, national symbols, visas, marketing of liquor, medical practitioners, medicines, access control, traffic, peace officer duties, and the power of the Minister.
Late submissions were made by the Rainbow Junction Group concerning the building of infrastructure and by the Department of Provincial and Local Government on the host city agreements. These late submissions might have to be incorporated into an Amendment Bill at a later date as 31 July 2006 was a deadline for the passing of this legislation. There was also doubt as to whether the Bill should be handled under Section 75 or 76 of the Constitution.
Members asked questions regarding the financial measures and implications to the state. They expressed deep concern that the Bill had been delayed, and was then still regarded as an unfinished product. It was felt that senior members of the Department or the Minister should have been present. The Department was warned that if these persons did not attend future hearings, the Committee would consider dropping the Bill. Public hearings might have to be held to ensure due process. The implications of failure to pass the legislation on time were also raised. The tournament could be cancelled by FIFA as a result.
The Chairperson said that government had made an undertaking to meet FIFA requirements. The first piece of legislation to result from this undertaking had now materialised, and opened a floodgate of work for the Committee. Copies of the 2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] were handed to Members. The intentions of the Bill would be spelt out by the legal advisor of the Department of Sport and Recreation South Africa (SRSA). The Bill should go before the National Assembly and National Council of Provinces simultaneously, as it would have to be fast-tracked in order to meet the deadline. The Committee was uncomfortable with the delays, and could not be dictated to by SRSA. Ultimately Parliament would have to carry the blame, as the Bill had been almost eighteen months in the making.
Mr Mansoor Parker (member of Local Organising Committee (LOC) legal team) sketched the context of the Bill. During the bidding phase, an Organisation Association Agreement (OAA) had been signed with FIFA. The South African Football Association (SAFA) had to obtain government guarantees, and to ensure that these were both valid and enforceable. They would be held liable for any omissions on the part of government. FIFA had the option to terminate the agreement if it was not honoured. The LOC was composed of football and government representatives.
In the drafting of the Bill, Mr Parker said that many departments felt that there was no need to introduce new legislation. SRSA had co-ordinated all the different inputs that were received.
Mr Gideon Boshoff (Legal Advisor, SRSA) said that SRSA was mandated to oversee that the various government departments were supporting the guarantees. These departments had been asked to review legislation to determine where repeals of current legislation were indicated and where new legislation was needed. Inputs had been received from the Departments of Agriculture, Trade and Industry (DTI), Health, Home Affairs, the SA Police Services (SAPS) and Foreign Affairs. Representatives from all of these departments were present except for DTI and SAPS, which had apologised due to the short notice given for the meeting.
Mr Boshoff presented the strategic view of what the Bill should achieve. He identified five aims. Firstly, it would confirm the role and responsibility of the various departments. It would protect the interests of the government, FIFA and other shareholders. It would put South Africa in position to organise the World Cup successfully. It would enhance South Africa’s international image and prove its capacity to host major events. Finally, it would ensure that the social and economic objectives set for the World Cup would be met.
He said that SRSA had gone through a thorough consultative process, and had tried hard to meet the deadlines. However, circumstances beyond SRSA’s control and a lack of information received from other departments had led to delays. Letters had been sent to the tardy departments by the Director-General of SRSA without success. Follow-up letters from the Minister had helped, but finalised outputs were still been outstanding. Finally, letters from the Deputy Minister had produced inputs in early 2006.
Mr Boshoff apologised for placing this urgent burden on the Committee. One stumbling block had led to another. Only when resistance had been broken could assistance be given. SRSA had consulted with various bodies apart from government departments, such as the provincial sports departments, the United School Sports Association of South Africa (USSASA), national federations and the South African Sports Confederation and Olympic Committee (SASCOC). Most of their inputs had been incorporated into the Bill.
Gen B Holomisa (UDM) said he was uncomfortable with aspects of the Bill. Government would be spending lots of money, and yet the Bill said there were no financial implications for the State. The Committee was interested in who controlled the funds, and their focus would be mainly financial. The Bill dealt mainly with procedural issues.
Mr Boshoff went on to outline the clauses in the Bill. The first was a list of definitions. In the second, the Minister of Trade and Industries declared the event protected in terms of the Merchandise and Marketing Act. The period of protection, normally only one month, was amended to allow for a period greater than one month.
In the third clause, the Minister of Sport and Recreation declared the stadiums as identified by FIFA as official venues. This promulgation was part of SRSA’s budget in any event, and notices had been placed in the Government Gazette. The fourth clause specified that national anthems of the participating countries could be played and their flags flown at any match. Mr Boshoff said that the fifth clause specified that visas would be granted to participants, and discussed the procedures regarding work permits. In the sixth clause, certain restrictions on marketing, importing, distribution and consumption of liquor were suspended.
Gen Holomisa noted that FIFA sponsors would need exclusive rights.
Mr Boshoff said that the seventh clause made provision for unregistered medical personnel and health care providers not to be subject to South African law. The prohibition on their services and requirements to perform community service would be suspended. The eighth clause stipulated that foreign medical contingents would be allowed into the country together with their medical devices and supplies. The ninth clause set the scope for and authorisation of foreign medical contingents. Their services would be restricted to their own teams.
He said that the tenth clause would restrict access to certain areas to accredited persons only. These areas were designated. The eleventh clause would enable the creation of traffic-free zones. The twelfth clause made provision for the empowerment of peace officers, and detailed their rights of search and seizure. The thirteenth clause allowed the Minister to make regulations regarding issues in the Bill.
Mr Boshoff then described another problem that SRSA had encountered. At a late stage an application had been received from the Rainbow Development Junction Company. This was a private company which concentrated on service delivery in various infrastructure projects, and represented the private sector as a whole. An overarching clause would be needed to cater for them, as infrastructure projects would be needed in many fields. Rainbow had a problem with the time lines, as the projects had to be completed well in advance, but red tape might prevent this from happening. There was no provision for emergency measures if deadlines could not be met. Their submission had only been received in April, by which time the Bill had already been submitted to Cabinet. In terms of the undertaking, the legislation had to be ready by 31 April, but more consultation would now be needed to accommodate Rainbow. A lot of research was needed to see which Acts were applicable. SRSA foresaw the need to include this issue in an Amendment Bill during 2007. A quick job could be done to incorporate it now, but an Amendment would need to be made in any event.
He said that the Department of Provincial and Local Government (DPLG) had also raised an issue. The host cities had signed agreements with FIFA, and DPLG thought that these might have to be captured in the Bill. This would empower DPLG to sign agreements with the host cities and to indemnify the host cities. The same urgent timelines were applicable.
Mr Boshoff said that another issue was whether the Bill was to be submitted under Section 75 or 76. Two state law advisors were of the opinion that Section 75 was the appropriate one, as there was no effect on the provinces. It was enticing to believe that this was the case. The discussion on the liquor issues showed that there was no direct impact on provinces. The decision was the responsibility of the Joint Tagging Committee (JTC). The Speaker also thought that Section 75 was appropriate, a view shared by SRSA. The JTC decision was still to be advised.
The Chairperson pointed out that if the JTC were to rule that the Bill fell under Section 76, there would be consequences in meeting the deadline.
Mr Boshoff disagreed with Mr Komphela, as there had been many similar cases.
Gen Holomisa suggested that financial guarantees should be included in the Bill.
Mr Boshoff said that the Department of Finance had been tasked to produce a Finance Bill. This was withdrawn as it was not necessary. The Special Measures Bill contained all that was needed. There were no financial implications.
Mr Parker said that there had been a meeting with Treasury. The opinion from this meeting was that there was no need to draft a composite Bill similar to the Special Measures Bill. Theirs was a single input, and any measures involving money had to be dealt with in a special manner. Where financial arrangements were to be addressed, this would be done as amendments to existing legislation such as the Taxation and Revenue Acts. These amendments would be introduced before the end of the year.
The Chairperson referred to paragraph four of the preamble to the Bill, which referred to financial implications. He felt that it should be explicit how money would be handled, and that there should have been an expanded statement in the Bill, even if the detail was left to specialist financial acts. It was misleading as it stood.
Mr C Frolick (ANC) said that he warned SRSA regarding the timeframes of Parliamentary processes. This warning had not been taken seriously, and now the Committee was being told that it had to rush the Bill through Parliament at all costs. He felt that this important Bill should be piloted by a high ranking official such as the Minister, his Deputy or the Director-General. None of these was present. As a legal advisor, Mr Boshoff could not be expected to have all the answers. The Bill was the legal framework for the World Cup and should follow Parliamentary procedures. He was surprised to hear now about Rainbow Junction. Where the government lacked capacity, the input from the private sector would be essential. This input was needed from the start.
Mr Frolick said that more problems had been highlighted from the explanations offered. The original deadline for the Special Measures Bill had been December 2005 and seven months later there were still problems. It seemed that there had been no consultation with DPLG. Matches would be staged in local municipalities which were in provinces, hence the debate on whether Section 75 or 76 should be invoked. Parliament was being expected to pass a law which would need an early amendment. This was bad law. Clarity was needed on the issue. He asked if the date of 31 July was a guarantee or an undertaking, and what implications there would be if it was not met.
Mr Komphela said there was more to the problem. In the conclusion of the Bill (Page 9 Paragraph 3), it was stated that consultation had taken place with all departments. This would have included DPLG. He wondered why then did DPLG only raise such a fundamental issue at this late stage.
Mr B Solo (ANC) said that the committee’s work had to be done in the proper fashion. It was unfortunate that the Bill was only received on the day of the meeting, and also that the concerned department was not represented. He asked if public hearings would be held, or if the committee was expected to rubber-stamp the Bill because it had arrived at such a late stage. He also felt it would be problematic if the Bill was accepted while still needing amendment. If so, then piecemeal work was being done. It should be done once and for all rather than on the basis of continuous amendments. Local government needed to provide certain services, and functions had to be performed by different levels of government, so there was an element of a Section 76 case. This was the first time that he had heard that the JTC had still to decide, normally this should be done before the Bill was presented to Parliament. He said that some of the key provisions of the Bill were not reflected in the long title of the Bill. Public hearings would guide the committee in its deliberations. He said that the agreements between FIFA and SAFA had to be reviewed as the committee did not have the information. All South Africans needed to be part of the process.
Mr Boshoff agreed that there were some issues surrounding the Bill which he could not address. The SRSA DG was conducting a TIC in Kimberley and could not attend this meeting. As a legal man, he knew when to stop. DPLG had been consulted. They did not issue a guarantee to FIFA, so did not furnish any information at the time. The problem had only been made visible recently. He felt that SRSA was in a Catch-22 situation regarding the Bill and amendments. It was for the committee to decide on public hearings.
The Chairperson asked about the question of a train smash regarding Parliamentary procedures and the likelihood of the committee having to rule on the Section 76 status. He asked if the date of 31 July was a guarantee or an undertaking, and what the implications were.
Mr Parker referred to clause 8.8 of the OAA. SAFA and the LOC would use its best efforts to procure government guarantees, but FIFA had the right to terminate the agreement if any of the guarantees were not met timeously or fully. The deadline for this was 15 December 2005, later amended to 31 July 2006. Although government did not pass laws, it was up to the LOC and government to ensure that legislation was prepared and passed by Parliament before the deadline. The most serious consequence of the deadline not being met would be a breach of the clause, in which case FIFA could invoke the provision to terminate the agreement.
Gen Holomisa repeated that the committee could not rubber-stamp the legislation, but time was not on its side. Another meeting should be considered at which the DG and Minister must be present as well as a representative of the LOC. Documentation should be provided bearing in mind possible confidentiality clauses.
Mr Frolick said that the interests of the country were protected. Popular support was needed form the host cities and provinces. Although the Bill was written in beautiful English, the more one read it the more far-reaching the consequences became. At a joint meeting with the DPLG portfolio committee the contracts with the host cities had been discussed, and only then had the onerous responsibilities of the cities been realised. A clear understanding of the legal framework was needed, and what was involved. He was not saying that the 31 July deadline would not be met, as this would be decided in conjunction with the leader of government business. Parliamentary proceedings could not be disrupted. There was even an assumption that the Bill would be passed on that day. He also said that the Bill was prioritised, not fast-tracked. That meant that it got precedence before any other work before the committee, and that is how they would proceed.
The Chairperson said that SRSA had consulted with many stake-holders, and that information belonged to SRSA. It was now up to the committee and parliament to gather its own information. Existing documents could be used to gather this information, and public hearings could also be held.
Mr Solo said that there was a heavy impact in the clause quoted by Mr Parker. It was clear that a lot of work had to be done. Co-operation was needed. He had a question on behaviour and crowd control, as he saw nothing about this aspect in the Bill. SRSA needed to explain which paradigm they were moving from. He also asked about food vendors at World Cup venues, as they would be flocking to the stadiums to sell their wares. He also needed clarity on the definition of the term Peace Officer. There was a cross-reference to the Criminal Procedures Act, and there were a number of references to other Acts. Parliament needed to supply a researcher to clarify all these cross-references.
The Chairperson said that the state law advisor should provide the information on cross-references.
Mr Parker explained how the host city agreements and the OAA were only due to be signed in December 2007 for presentation to FIFA. However, the prospective host cities had needed clarity for their budgeting processes, and FIFA had therefore agreed to take the decision on host cities at their conference in March. The Bill could not anticipate what these agreements would be, and Rainbow Junction’s approaches were only made when the host cities had been decided upon. The amendments proposed would mainly be in respect of the building of stadiums.
Mr Boshoff was astounded to hear that the fast-tracking process had not been approved. The Minister had met with the leader of government business on 2 June and fast-tracking had been approved.
Mr Frolick said that the letter he had seen was only a request for prioritisation. Fast-tracking had other implications.
Mr Boshoff said that crowd control would be addressed in the forthcoming Safety at Sports Stadiums Bill. This Bill would also address vendor control. The definition of a peace officer was in the SAPS Act.
The Chairperson observed that municipal police forces were also defined in the SAPS Act. Clarity was needed on the Rainbow issue. This would be cleared up at the meeting on 12 June. It was correct that they should be involved in the process, but they must fall into the deadline. They could not hold Parliament to ransom. The committee would make a ruling once clarity had been achieved. The financial guarantees would also be addressed at the meeting on 12 June. He warned that if senior management from SRSA and the head of the 2010 Unit did not appear at the 12 June meeting, then the committee would drop the Bill.
Mr Frolick added that other pieces of related legislation might still be coming. A full overview was needed of this Bill together with other legislation.
Mr Boshoff agreed that a fuller picture was needed. This should be provided on 12 June.
The Chairperson said that all stakeholders should be present at the meeting on 12 June. He said that he would consider Gen Holomisa’s suggestion that there should be some flexibility for this meeting if some of the major players could not attend on Monday. He said that the onus was on the stakeholders to attend.
The meeting was adjourned.
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