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SPORT AND RECREATION PORTFOLIO COMMITTEE AND SELECT COMMITTEE: JOINT MEETING
11 July 2006
2010 FIFA WORLD CUP SOUTH AFRICA SPECIAL MEASURES BILLS: BRIEFING BY DEPARTMENT OF SPORT AND RECREATION
Chairpersons: Mr B Komphela (ANC) [National Assembly]; Mr B Tolo (ANC) [NCOP]
Documents handed out
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] (reintroduced)
Second 2010 FIFA World Cup South Africa Special Measures Bill [B16-2006]
Written comments from the Western Cape Department of Premier: Liquor Services
DTI comments on 2010 FIFA World Cup South Africa Special Measures Bill
During the morning session the Department of Sport and Recreation explained to the Joint Committee that the original 2010 FIFA World Cup South Africa Special Measures Bill had been now split into two separate Bills: a Section 75 Bill and a Section 76 Bill. The Section 75 Bill dealt solely with the special measures put in place by the national government, whereas the Section 76 Bill dealt with special measures that affected provinces. The Section 75 Bill granted the Minister of Sport and Recreation the power to decide at which stadiums the matches would be played. It ensured that the national anthem and flag of all participating countries would be played, and required the Ministry of Home Affairs to issue visas and work permits to teams and support staff of all participating countries. The National Commissioner of Police was granted the power to identify designated or restricted areas in and around the stadiums, for safety and security reasons, as well as access control measures and the clear demarcation of traffic-free zones. The Bill granted the Minister of Justice the power to authorise police officers at the stadiums to exercise reasonable force in executing their search and seizure powers, and required the Minister of Sport to draft regulations on any matter contained in the Bill.
The Committee questioned whether Clause 3 banned the flying of any flag other than the national flag of participating countries, and proposed that the Minister of Home Affairs be given a discretionary power to grant visas and work permits in Clause 4. Members sought clarity on the extent to which the Bill catered for foreign assistance in providing security officers at matches, and whether volunteer peace officers were catered for. The Committees would consider further the accountability of the Local Organising Committee, because it handled public funds.
The Second 2010 FIFA World Cup South Africa Special Measures Bill was a Section 76 Bill and made provision for the Minister of Trade and Industry to declare the 2010 FIFA World Cup a protected event, which meant that only accredited FIFA sponsors would be present at the stadiums. The Department of Trade and Industry explained its guarantee under Clauses 2 and 3, and explained that the provision aimed at prohibiting ambush marketing by non-accredited products. Clause 3 dealt with the suspension of South African restrictions regarding marketing, distribution and consumption of liquor at FIFA events. The Department of Trade and Industry indicated it would make good on its guarantee without suspending those laws, and thus called for the clause to be deleted. Clauses 4 and 5 required the Department of Health to accredit foreign medical contingents (FMC) and to approve medical substances and medical devices they needed to use at the 2010 FIFA World Cup in South Africa. The Bill also allowed the Minister of Sport, in consultation with all other relevant Ministers, to pass regulations on matters contained in the Bill.
Members failed to see the need for the deletion of Clause 3 as national government must consult the MEC on liquor related matters, because it was a provincial competency, and was of the view that its deletion would revert the Bill back to a Section 75 Bill. The Committee expressed its stern dissatisfaction at the lack of consultation between the departments involved, as the issue of Clause 3 should have been resolved before presenting the Bill to Parliament. The Committee asked whether the FMC would be able to import substances that were de-regulated in their country, but which were scheduled substances in South Africa. Members raised concern with the meaning of the terms ‘import’ and ‘export’, and flagged them for further discussion. Clause 4(1) was amended to now grant the Minister of Health a discretionary power to accredit a member of a FMC. The Democratic Alliance and African National Congress disagreed as to whether the primary objective of the Bill was ensuring South Africa honoured its agreement with FIFA, or whether the objective was to empower and benefit South Africans.
In the afternoon, the debate on the two Bills focused particularly on the search and seizure clause, as well as the marketing, distribution and consumption of liquor at World Cup events. The Department of Trade and Industry explained its concerns about the liquor provisions contained in the Bill. It was of the view that the Bill would suspend the current Liquor Act and remove sensible regulations. The Committee considered the submission from the Liquor Services directorate in the Office of the Premier of the Western Cape. The submission contended that matters dealt with in the Bill were covered by the Safety at Sport and Recreational Events Bill. It questioned the constitutional legality of the search and seizure clause, as well as the broadness of the term "objects" which the peace officers would be able to confiscate. The submission sought clarity on whether stadiums would be covered by the designated areas clause contained in the Bill. The legal advisors gave their opinions of this submission.
Introduction by Chairpersons
Mr Komphela, National Assembly Chair, stated that the Committee would also meet in the week of 24 July to finalise the Bills since the National Assembly was sitting on 31 July. The Bills would then be processed by the National Council of Provinces.
Mr Tolo, the NCOP Committee chair, said that the provinces would provide their negotiating mandates to the NCOP on 20 August 2006, and the final mandates would be received on 23 August 2006. The Bills would be debated in the NCOP around 25 August 2006, after which it would be sent to the President for assent. He welcomed the Chairpersons of the Sports and Recreation Committees of the Mpumalanga, Eastern Cape, Limpopo and KwaZulu-Natal provincial legislatures, and noted that others were on their way.
Mr Komphela provided background information to the passage of the Bills by explaining that, while the Portfolio Committee had dealt with the original Bill, it was realised that public comment was needed on this very important piece of legislation dealing with the 2010 FIFA World Cup. For that reason Parliament had decided to advertise the Bill for public comment and the hearings would be heard during this week.
He noted that big companies such as ABSA, Vodacom and probably MTN had stadiums within the country with their brand name. This could create possible difficulties with FIFA’s views on branding at stadiums, and those South African companies must indicate how they thought the matter should be handled. He clarified that there was general consensus that the games would be played in those stadiums, but the companies would have to indicate how they would participate in hosting the event at those stadiums.
He explained that the two Bills before them had originally been one Bill, but its passage through Parliament was delayed because Parliament’s Joint Tagging Mechanism (JTM) had not finalised the tagging of the Bill. The JTM had since tagged the Bill and split it into a Section 75 Bill and a Section 76 Bill. He stated that the Committee felt vindicated by that decision because it was of the view that there were many issues in the original Bill that touched on the powers and functions of provinces and municipalities, and the Committee had felt that the legislation could not solely be covered in a Section 75 Bill. All the provisions that affected provinces and local government were now located in the Section 76 Bill.
The Bills gave effect to measures that had to be put in place for the organising of the 2010 FIFA World Cup in South Africa. That included granting FIFA the right to protect itself from the ‘ambush marketing’, as FIFA itself would have designated sponsors that would run the tournament and one had to prevent others from jumping on the bandwagon.
The Chair did not foresee major problems with the Bills, and suggested that the Portfolio Committee would pass the Bills by 27 July. He wished it to be placed on record that when the original Bill had been deliberated on in this multi-party parliamentary committee, at no time did the Committee believe that the Bill would negatively affect the 2010 FIFA World Cup. Everyone agreed that it required a collective and co-operative effort to ensure the 2010 FIFA World Cup would be handled in a manner that would do the country proud.
The Chair agreed. He explained that each government department involved would have an opportunity to address the Committees.
2010 FIFA World Cup South Africa Special Measures Bill (Section 75): briefing
Mr Gideon Boschoff, Legal Advisor from the Department of Sport and Recreation, explained that the Explanatory Memorandum at the end of the Bill provided a brief summary of the contents of the Section 75 Bill.
Clause 1: Definitions
He explained that the clause contained certain definitions, such as ‘accreditation card’, ‘designated area’, Organising Association Agreement’ and stadium’
Clause 2: Declaration as stadium or venue
This provision granted the Minister of Sport and Recreation the Power to declare a stadium or venue as a stadium or venue for the purposes of the 2010 FIFA World Cup, and prescribed the process to be followed.
Clause 3: National anthems and flags
The provision prohibited any person from preventing the playing of the national anthem or the flying of the flag of any team represented at the 2010 FIFA World Cup.
He explained that at a recent meeting with Mr Tolo’s Select Committee, the question was raised whether the flying of the old South African flag would be allowed. The clause did not explicitly prohibit the flying of the old South African flag, and for that reason he proposed the inclusion of the following in the Section 75 Bill: the first proviso stipulated that "no other flag may be flown if it does not relate to any of the countries of the teams participating at the 2010 FIFA World Cup ". The second proviso stated that "provided that in the event of the contravention of the previous proviso, it shall be an offence and may be punishable by way of imprisonment or fine or both such imprisonment and fine".
Clause 4: Visas and work permits
This provision stipulated that the Minister and Director-General of the Department of Home Affairs must issue visa and visitors permit to persons from a country that was not exempt from complying with visa requirements in the Immigration Act, and who wanted to attend the 2010 FIFA World Cup in South Africa as spectators. There was however some confusion in the provision because 4(1) referred to a ‘spectator’, whereas the rest of the clause referred only to ‘a person’. He thus proposed, in the interests of consistency, that the entire clause refer only to ‘person’, which was in line with the proposal made during previous deliberations on the original Bill by the Portfolio Committee.
Mr Boschoff explained that 4(2) stipulated that a person from another country who wished to work in South Africa at the 2010 FIFA World Cup and for the duration of the tournament, would be granted a authorisation to do so as long as FIFA itself agreed. Clause 4(3) made it clear that such authorisation could not be granted to a soccer team playing at the World Cup.
He was informed by the Department of Home Affairs that, although they were satisfied with the general provisions in the clause, they nevertheless wished to propose amendments to certain aspects. He assured the Committees that the crux of the clause would remain.
The clause also granted the Minister of Home Affairs the right to grant visas to FIFA dignitaries so that they could travel throughout the country for purposes of the World Cup.
Clause 5: Designated areas
Mr Boschoff explained that Clauses 5-8 were the result of input from the South African Police Services (SAPS), and dealt with the law enforcement measures at the 2010 FIFA World Cup. Clause 5 stipulated that the Local Organising Committee (LOC) could, after consultation with the National Commissioner of Police, Mr J Selebi, designate an area that can only be accessed by persons with an accreditation card. This was for safety and security reasons.
Clause 5(2) required the LOC to ensure that every entry point of the designated area was very clearly marked. Clause 5(3) allowed the LOC to issue accreditation cards to persons who, in terms of agreement signed between FIFA and the South African Football Association (SAFA), were entitled to enter such areas.
Clause 6: Access control measures
He explained that this clause was more or less a duplication of Clause 5. It allowed a police officer to request an accreditation card from persons wanting to enter a designated area and granted the police officer the power to remove them if they did not possess that card.
Clause 6(2) made it clear that the police officer must use reasonable force to remove a person, and the force used must be ‘proportional to the circumstances’. Clause 6(4) made it a criminal offence for failing to adhere to any of the subclauses, and imposed punishment of imprisonment or a fine, or both for such contravention.
Clause 7: Traffic-free zones
This clause prevented a person from driving a vehicle into such a zone or from parking there, unless he was in possession of a valid notice that allowed his presence in that traffic-free zone. The zone must identified by the National Commissioner of Police, and must be very clearly marked. Any unauthorised vehicle would be impounded if the driver failed to remove it immediately. The clause imposed an offence for failure to comply with the provision.
Clause 8: Search and seizure
This provision granted the police officer the power to search the vehicle or person or any item in possession of such person who entered a designated area or traffic-free zone, and to seize any such object found. Similar to Clause 6, it allowed the police officer to use ‘reasonable force’ in exercising his search and seizure powers.
Clause 9: Regulations
The provision granted the Minister of Sport and Recreation and the Minister of Safety and Security the power to devise regulations on any issues contained in the clauses.
Mr Boschoff reminded the Committees that, in a previous meeting on the original Bill, Mr B Holomisa (UDM) had questioned whether the legislation had any financial implications on the State. At first the Department had answered in the negative, but Mr Holomisa was in fact correct. The financial implications on the State were now included in the Explanatory Memorandum, and each government department involved had explained its financial implications and guaranteed the honouring of such obligations.
He noted that the Financial Measures Bill, which was similar to the Section 75 Bill, had been withdrawn by National Treasury. He said that these two Bills gave sufficient guarantee from their side with regard to the honouring of their financial obligations.
Mr Boschoff noted that trade-related issues, which was part of the original Bill, had been transferred to the Section 76 Bill. The reason was that the JTM had decided that, in terms of Schedule 4 of the Constitution, any matters relating to trade fell within the exclusive competency of the provincial government sphere.
Mr L Reid (ANC) [National Assembly] was of the view that Clause 3 referred explicitly to the ‘national flag of any country, which clearly excluded the old South Africa flag because it was no longer the national flag.
Mr T Lee (DA, NA) stated that the same applied to the flags of the other countries represented at the 2010 FIFA World Cup.
The Chair cautioned Mr Lee on answering Mr Reid’s question directly, as all inputs must be made through the Chairpersons.
Mr M Suleiman (ANC) [NCOP, Northern Cape] failed to understand the confusion regarding Clause 3, as it very clearly applied to national flags alone.
Mr Tolo urged the Committee to not argue the point on that day, as the Members would have an opportunity to do so during the formal deliberations stage.
Mr Boschoff responded that the provision was not cast in stone, and it could be amended for clarity and to ensure consistency. If the Committees decide to ban old national flags, then the legislation must ban every possible permutation of that old national flag, in order to ensure consistency. The problem from a practical viewpoint was that would be very difficult to regulate. As the provision currently stood it did not prohibit a person flying an old national flag, and was thus an open-ended provision. The current provision allowed person to bring hundreds of old flags along if they so wished.
Mr W Doman (DA, NA] interpreted Clause 3 to relate only to the flying of national flags during the official ceremonies and procedures at the 2010 FIFA World Cup, and not to flags brandished by the crowd. Surely it would be nearly impossible to control what the crowd did.
Mr Boschoff agreed with Mr Doman that it related to the official ceremonies only.
Mr Nkosi, from the Department of Foreign Affairs, responded that as far as his Department was c concerned, there must be no ambiguity about the flying of national flags and the singing of national anthems. The Department of Foreign Affairs knew the national anthems and national flags of every country. Not all countries would be participating in the World Cup, and the Department of Foreign Affairs had issued a guarantee that all countries participating in World Cup in South Africa would have their national flags flown and their national anthems sung. If one of the qualifying countries were to decide to change their national flag and national anthem, then their new flag and anthem would be displayed.
He stated that he was not authorised to argue in favour or against the provisos suggested by Mr Boschoff. However South Africa has successfully hosted various international events, some of which hosted over one hundred countries, which was more than the number of countries that would be participating in the 2010 World Cup. There was never any confusion about national flags or national anthems at those international events. The Department of Foreign Affairs would execute that guarantee jointly with the Department of Arts and Culture.
Mr M Netshitenze, Director: Department of Trade and Industry, was of the view that Clause 3 was very clear, and agreed with the analysis provided by the Department of Foreign Affairs.
Mr Litho Saku, Chairperson of the Sport and Recreation Committee in the Eastern Cape Provincial Legislature, was of the view that Clause 4 appeared to grant the same powers to the Minister of Home Affairs and to the Director-General.
Secondly, he asked whether the clause should stipulate ‘may’ and not ‘must’.
Mr Boschoff responded that those were valid points. He explained that the Department of Home Affairs in fact indicated in their revisit of the provision that it should stipulate ‘may’, because it granted the officials a discretionary function. That department would however explain their position in greater detail when they addressed the Committee during the week.
Adv G Hoon, Principal State Law Advisor, agreed that it stipulate ‘may’ and not ‘must’, so that the officials had a discretionary power to prevent such persons from entering the country.
Mr Saku asked whether Clause 6 prohibited persons from making fake access cards which allowed them access to the stadiums.
Mr Boschoff replied that that was a problem, but was not captured directly in the Bills. The matter would however be dealt with comprehensively in the Safety at Sports and Recreation Events Bill, which dealt in greater detail with the issue of access cards and tickets.
Ms M Ntuli (ANC) asked whether the issuing of access cards was done on an exclusionary basis, or whether vendors in the community would be able to ply their trade at the venues.
Mr Boshoff responded that the Safety at Sports and Recreation Events Bill would capture very comprehensively the vendors that would be allowed to operate at the 2010 FIFA World Cup. The Bills would not infringe on the rights of vendors to make money at the venues.
Mr H Chauke (ANC), Portfolio Committee on Home Affairs Chairperson, stated that he had raised a number of important issues surrounding the Bills with the Chair, including the involvement and co-ordination with other Parliamentary Committees when processing the Bills. He informed the Committees that his Committee had gained significant experience and insight into hosting a FIFA World Cup from its visit to Germany. It was therefore not a misuse of taxpayers’ money, as was the general complaint.
He explained that Germany had adopted a specific approach in not granting visas to a category of persons identified by FIFA itself, known as the football hooligans. He was however not sure how South Africa would approach the matter.
Mr Boshoff responded that the Section 75 Bill did not deal with hooligans. The Department of Home Affairs would however speak to the Committees on the issue. He reiterated that the Safety at Sports and Recreation Events Bill would deal with football hooliganism and crowd control adequately and extensively.
Mr Chauke was of the view that the regulations would probably deal with most of the issues. The Committee must however have sight of those regulations at some point.
Mr Boschoff agreed. The respective Departments involved would be making presentations to their relevant Portfolio Committees.
Mr Chauke sought clarity on the extent to which the Bill catered for foreign assistance. He stated that South Africa experienced problems with policing capacity, and it was heartening to note that the National Commissioner of Police was committed to overcoming the problem over the next four years. He asked whether the Bill contained a provision that allowed South Africa to accommodate foreign peace officers, who deployed by their country of origin to assist SAPS. He asked whether they were entitled to the same search and seizure powers that the Bill granted to SAPS officials.
Mr Boschoff replied that the matter had been discussed in both the Portfolio Committee and the Select Committee. The responsibility for ensuring safety and security at the 2010 FIFA World Cup rested solely on the shoulders of SAPS, and they did not need assistance from FIFA-orientated safety officials.
Adv Hoon stated that the problem with giving effect to the amendment proposed by Mr Boschoff was that it fell outside the scope of the agreement reached between FIFA and SAFA. The Portfolio Committee and Select Committee could however decide to incorporate it into the Bill, thereby extending the scope of the agreement somewhat.
Mr Chauke asked whether the LOC was accountable to Parliament, as it had the power to spend public funds.
Mr Boschoff replied that he was however not in a position to answer the question. The Bills merely stipulated the responsibilities of the LOC, but not its accountability.
Adv Hoon responded that Section 56 of the Constitution stipulated that any Parliamentary Committee of the National Assembly had the power to summon any person or institution to report to it, and the Constitution contained a corresponding provision for the NCOP.
Mr M Solo (ANC, NA) was of the view that the LOC must be held accountable because they handled public funds. He believed the LOC must account to Parliament on a regular basis.
Mr Netshitenze replied that the Department of Trade and Industry understood that the LOC was "FIFA in the country". It was a Section 21 company and thus had a board of directors, which in turn was accountable to FIFA, which was based in Switzerland. They might however have a subsidiary registered in South Africa for that purpose.
Mr Tolo ruled that the matter would be discussed in greater detail at a later date.
The Chair expressed concern that Clause 8 did not appear to cover a volunteer who was given the responsibility to search persons at the stadiums, as the provision appeared to refer only to SAPS officials. He proposed the insertion of the words ‘any other designated person’, and requested both Adv Hoon and Mr Boschoff to consider the proposal.
Mr Boschoff responded that it must be ensured that ‘any other designated person’ must be an accredited peace officer.
The Chair stated that the Department of Home Affairs must be consulted to ascertain whether Clause 4 allowed all foreign dignitaries into the country, as well as their entourages.
The representative from the Department of Home Affairs replied that his Department had extended invitations to dignitaries, which included heads of state and heads of government, and as soon as they replied and the final list was available, that Department would devise a detailed logistics plan. Should some decide to bring along an elaborate entourage, the Department of Foreign Affairs would find a way of dealing with that situation.
Mr Boschoff responded that the Department of Home Affairs would have to address the matter.
Adv Hoon informed the Committee that South African laws had special provisions for heads of state, and he would provide the Committees with copies of the relevant provisions.
Second 2010 FIFA World Cup South Africa Special Measures Bill: briefing
In response to the Chair's comment that a Bill's explanatory memorandum should be located at the very beginning of Bill as it contained the ‘politics of the Bill’, Mr Boschoff said that it was standard legislative drafting practice followed by Parliament for many years to place it at the end. Adv Hoon agreed as the Rules of Parliament required that format. The explanatory memorandum was in fact not part of the Bill itself, and when the President signed the Bill into law the explanatory memorandum fell away.
Mr Boschoff said that this Bill confirmed the roles and responsibilities of all the government departments involved, and entrenched their guarantees given in terms of FIFA/SAFA agreement. It aimed to protect the interests of the South African government, FIFA and other stakeholders in sport and recreation, including the public at large, relative to the World Cup. The Bill aimed to put South Africa in a position to ensure that the World Cup was successfully hosted in the Republic, despite the criticism currently received in the media. The Bill furthermore strove to enhance South Africa’s international image and its capacity to host major events such as a World Cup, and its worth as a partner for ventures related to sport. Amongst others, the Bill also strove to ensure that government’s social and economic objectives, relative to the World Cup, were met.
Clause 1: Definitions
He explained that this clause contained various definitions necessary to give effect to the FIFA/SAFA agreement.
Clause 2: Extension of Minister of Trade and Industry’s power under Merchandise Marks Act, 1941
This clause made provision for the Minister of Trade and Industry to declare the 2010 FIFA World Cup a protected event, in terms of the Merchandise Marks Act. The designation of protection had already taken place, via a notice placed in Government Gazette Notice in 23 May 2006. It stipulated that the protected status would last for no later than six months after the end of the 2010 FIFA World Cup. The date was thus fixed.
Clause 3: Suspension of restrictions regarding marketing, distribution and consumption of liquor in respect of 2010 FIFA World Cup South Africa
The clause allowed for the suspension of the restriction on the marketing, distribution and consumption of alcohol at the 2010 FIFA World Cup. The Department of Trade and Industry had indicated to the Department of Sports and Recreation as well as the Portfolio Committee and Select Committee that, having reconsidered its guarantee, it would be able to make good on its guarantee without suspending its laws on the marketing, distribution and consumption of alcohol at events. The Department of Trade and Industry was thus of the view that Clause 3 was superfluous and must be deleted as a whole. Mr Netshitenze would explain the Department of Trade and Industry’s position in greater detail.
Clause 4: Accreditation of foreign medical contingents and approval of medicines, Scheduled substances and medical devices
This clause was a direct result of the input made by the Department of Health input. It dealt with the accreditation of foreign medical contingents and the approval of medical substances and medical devices used at the 2010 FIFA World Cup. The clause regulated the matter by granting the Minister of Health the power to accredit every member of a foreign medical contingent, and provided the procedure to be followed.
Clause 5: Scope of authority of accredited foreign medical contingent
The clause limited the scope of the authority of an accredited foreign medical contingent to the period of the 2010 FIFA World Cup alone, and to a specific team.
Clause 6: Suspension of prohibition on sale of unregistered medicines, registration of and community service for certain health care providers
The clause allowed any member of an accredited foreign medical contingent to use omitted substances, but only for the purposes of providing medical treatment to their specific team. He stated that the Department of Health would explain the matter in greater detail when it addressed the Committee later in the week.
Clause 7: Regulations
Mr Boschoff stated that this clause might fall away if the Committees decided to approve the Department of Trade and Industry proposal that Clause 3 be deleted. He stated that it would however be prudent to retain the portion of the clause that required consultation between the Minister of Sport and Recreation, the Minister of Trade and Industry, the Minister of Agriculture and Land Affairs and the Minister of Health.
Input by the Department of Trade and Industry
Mr McDonald Netshitenze, DTI Director of Commercial Law Policy, stated that one of the primary issues was the location of Clause 2 either in the Section 75 Bill or the Section 76 Bill. There were certain trade activities that could be of concurrent jurisdiction, in terms of Schedule 4 of the Constitution, but it was not necessarily true that all issues of trade were of concurrent jurisdiction. The ratifying of international treaties was a national competence alone, and thus intellectual property matters such as trade marks, copyright, designs, patents, merchandise marks etc. were an exclusive competence of the national sphere of government. Thus Clause 2 was misplaced, and should be in the Section 75 Bill.
‘ambush marketing’ and protected events
He explained that the Department of Trade and Industry, as a custodian of the country’s intellectual property, needed to protect brand names, in this case the emblem and brand name FIFA. When South Africa was preparing for the hosting of the 2002 Cricket World Cup, it came under significant pressure to pass legislation to protect the brand name of the International Cricket Council (ICC) and its sponsors. Government then informed FIFA that there was no need for it to pass another piece of similar legislation.
Brands and companies would only be allowed to operate at the 2010 FIFA World Cup in South Africa if they were invited to do so by FIFA itself. There would however be certain businesses and businesspersons who would purposefully deceive the public into believing their products were legitimately associated with FIFA and its events, when that was not the case. They were thus attempting to ambush FIFA’s event for their own financial gain.
Ambush marketing could be perpetrated in two forms. The first was ambush marketing by association, in which the person or business purported that their product was legitimately associated with FIFA and its events. The second form was via intrusion, whereby persons of a particular uninvited business or product found their way into the stadium during the FIFA event and began marketing their product within the stadium itself.
It was for that reason that the Minister of Trade and Industry, via the Merchandise Marks Act, was granted the power to declare 2010 FIFA World Cup matches as a protected event, and prohibited such activities from taking place at those FIFA events.
Secondly, the Minister of Trade and Industry shall not declare an event as a protected event unless he was convinced that opportunities were created for businesses, in particular those from previously disadvantaged communities. The Department of Trade and Industry was very insistent that this be ensured. The LOC had a budget of approximately $423 million, and the Department of Trade and Industry requested that 30% of that budget be allocated to SMME’s. This proposal has since been approved, and was firmly in place. The Department of Trade and Industry was thus able to rely on that agreement to award a contract to a local SMME for the distribution of alcohol at the FIFA events, and there was thus no need for the presence of Clause 3 in the Section 76 Bill.
In conclusion he stated that the Department of Trade and Industry recognised the importance of the need for national government to consult the provinces on the national policies governing issues such as the distribution of alcohol at the FIFA events, because it involved matters of concurrent jurisdiction. For that reason the Department of Trade and Industry agreed with the inclusion of Clause 3 in the 2010 FIFA World Cup legislation, but was now of the view that it would be better placed in the Section 75 Bill.
Mr Chauke proposed that the Joint Committee engage the relevant Portfolio Committees on the issues that involved the government department over which they exercised oversight, in order to deepen understanding of the matters at play within the Bills
Mr C Frolick (ANC, NA] stated that when the Bills were re-tagged as Section 75 and Section 76 Bills, the Portfolio Committee forwarded a communication to Parliament itself informing it of all the relevant Parliamentary Committees that would be affected by the World Cup legislation. That communication included this Committee’s hearings programme. The Chairperson of Committees was asked to inform all the relevant Committee Chairpersons of the importance of the legislation and its process. It would be interesting to know which Portfolio Committees would not be attending the hearings.
Mr Chauke sought clarity on the Department of Trade and Industry proposals that Clause 2 be removed altogether, and that Clause 3 be relocated to the Section 75 Bill.
Mr Frolick was not convinced that Clause 3 should be removed. If measures were suspended, it would negatively affect people who currently enjoyed existing rights relating to the sale of alcohol. It would be interesting to hear how many provinces have liquor legislation in place, and how the proposed suspension would impact on that current legislation. He was of the view that the matter required greater deliberation.
Mr Solo agreed. There were existing national policies that related to empowerment of previously disadvantaged communities and if FIFA was exempted from taking those policies into consideration, then the Section 76 might not in fact act in the public interest. It was a serious matter that must be considered further.
Mr Holomisa proposed that Clause 3 not be removed from the Section 76 Bill, but that it simply be reformulated to reflect a joint exercise by the national and provincial structures. The joint approach should ensure that, on the one hand, FIFA is not compromised and, on the other, that local industries gained from the event where possible.
Secondly, he sought clarity on the implication of Clause 4 on substances that were de-regulated in other countries, but which were scheduled substances in South Africa.
Mr Chauke asked whether the traditional medicine and traditional healers of other participating countries would be allowed, under Clause 4.
A Member of the Select Committee expressed concern with the meaning of the terms ‘import’ and ‘export’ in Clause 6. He questioned whether it could properly be termed ‘importing’ and ‘exporting’ if the members of the FMC were bringing in medicines and medical devices from their own country, and then taken them back to their country after the World Cup.
Mr Boschoff responded that the Department had considered at a previous meeting with the Portfolio Committee, the deletion of the export aspect of Clause 6. It had since realised that it would not make sense to allow the FMC to bring the medicine and medical devices into the country, but not allow them to take it back with them. Surely after the conclusion of the World Cup they must be able to export those items and take them back to their country of origin. The Department was thus of the view that the export aspect must be retained.
The Chair reminded Members that the compelling argument made by the Department for the retention of the export function was that if those FMCs were not allowed to take those devices back with them, the South African government would have to pay tax on those items.
Ms Ntuli asked whether Clause 4 put proper and stringent inspection measures in place, to ensure that no opportunity was given to drug smugglers to use the provision to get illegal substances into the country.
Mr Boschoff agreed that the use of ‘must’ in 4(1) was problematic, because it compelled the Minister of Health to grant accreditation to anyone who applied. He proposed the concern be remedied by the replacement of ‘must’ with ‘may’, to allow the Minister of Health to apply her mind and to not grant accreditation to a member of a FMC who was, for example, involved in doping. A discretionary power must be provided for. The same would apply to 4(3).
Mr Saku was of the view that the removal of Clauses 2 and 3 from the Section 76 Bill would result in the Bill essentially being a Section 75 Bill, because none of the other provisions in the Section 76 Bill related to the devolution of powers to the provincial MECs.
Mr Boschoff agreed that the removal of those clauses, and the content of the remaining clauses, could very well impact the tagging of the Section 76 Bill.
Mr Saku stated that the clauses were not clear on the specific role of the Sport and Recreation Committees in the various provincial legislatures.
Ms N Madlala-Magubane (ANC) [Gauteng] agreed. She noted that the Section 76 Bill made reference only to national Ministers, and not to provincial MECs.
Mr Boschoff explained that when the original Bill was tagged as a Section 75 Bill, the Department did not include any consultation with the provincial MECs, because it did not affect the provinces. It might however be appropriate, in light of the views expressed at the meeting, to now include a consultation process for every provision that involved the exercise of a power or function by a national Minister. He proposed that such clauses include the phrase "after consultation with the relevant MEC".
Ms Madlala-Magubane stated that, when she briefed her province on the Bill, the view was expressed that schools located in areas at which matches will be held should be closed, because the flow of traffic during the games made it problematic for learners to attend school.
Mr Boschoff responded that he was of the view that that was an operational issue, and cannot be regulated in legislation.
Mr D Lee (DA, NA) stated that the primary purpose of the legislation was for South Africa to honour the agreements signed with FIFA. The core issue was thus whether the removal of the clauses would prevent such honouring.
Mr Chauke disagreed, stating that that was the wrong approach to follow. Instead it must be ensured that the South African people benefit from the 2010 FIFA World Cup. The Department of Trade and Industry must be interrogated as to the details of the agreements made with FIFA, so that the Committees could assess the extent to which South Africans would benefit from the World Cup. Mention was made of the other international events hosted by South Africa, such as the 2003 Cricket World Cup, but the fact of the matter was that communities did not really benefit from the hosting of such events.
Mr Lee took offence to Mr Chauke criticising him personally, as the purpose of the meeting was to direct inquiries to the Departments present.
The Chair ruled that both the comment made by Mr Lee and the comment made by Mr Chauke were valid, and would be discussed further at a later stage.
Mr Boschoff replied that the Department would be meeting the Directors-General of all the departments involved. They would motivate how they would be able to satisfy their guarantee, as reflected in the Bill.
Mr Chauke questioned the extent of the consultation between the Department of Sport and Recreation and the Department of Trade and Industry when formulating the Bill and tabling it in Parliament. It could not have been thorough enough if the Department of Trade and Industry was now requesting the removal of a clause proposed by the Department of Trade and Industry itself from a Bill which had already been tabled, supposedly after thorough consultation by the Department of Sport and Recreation.
Mr M Sulliman (ANC) [NCOP, Northern Cape] said that it was very clear that the departments involved had not properly consulted each other when drafting the Section 76 Bill. They were now requesting the removal of clauses during Parliamentary Committee meetings, when the problem was really theirs to fix. The Explanatory Memorandum stated that all Departments had been consulted, but that was clearly not the case.
Mr Tolo agreed that government should engage Parliament with one voice. Battles waged and lost between departments must not be brought to Parliament. He hoped that this would not happen again in the future.
Mr Boschoff replied that the Explanatory Memorandum indicated that the Department had consulted with the provinces. He regretted having to inform the Committees that, in the past the Department had submitted pieces of legislation to the provinces but it did not receive much co-operation from them. The same was true in the present case. The Department had consulted with provincial departments, but it had not received any co-operation or feedback.
The Chair noted that the matters raised by Mr Tolo and Mr Boshoff in the morning regarding the input from provinces was an important issue.
He commented that Members had repeatedly raised the issue that the different departments had failed to communicate with each other. Several questions had been raised regarding the role that would be played by the LOC, this was a matter that needed some clarity. He agreed with earlier comments that perhaps Cabinet members had not communicated adequately with one another with regard to the Bill.
Mr Chauke expressed his belief that the points made by the Chairperson had been correct. He felt that the Committee at some point would need to extract more information from the relevant Cabinet Ministers. He felt the Committee needed assurance that they were not just rubber stamping the Bill. The Committee could cut and change the Bill as they liked, but what was really important was that they gathered more information.
He commented that the Committee was mandated to insure the Bill was drafted in the manner that was best for the country. Issues of clarity from various Ministers, should obviously be dealt with after the hearings, Members could then apply their minds, according to the information they had received from the relevant departments.
He believed there had been a problem regarding the mechanism for provincial participation in the process. He suggested that this matter should be prioritised. Hopefully by the time the Bill had been passed, there would be uniformity across the provinces. Confusion should be avoided, where possible.
The Chair noted that Mr Chauke had earlier raised the issue of Committee Chairpersons. The Chair confirmed that all Chairpersons of the Committees affected by the Bill had been invited to attend the briefing and hearings this week. He had personally written a letter to the relevant Chairpersons, a copy of which had been requested by the deputy Chief Whip. He hoped that after the hearings, Chairpersons would not claim they had not been invited. The Committee had even invited the Chairs of the provincial legislatures, to keep them informed of the progress of the Bill and how it would affect them.
The Chair noted that there had been some contention regarding the inclusion of Clause 2 in the Section 76 Bill. He asked for Adv Hoon's input on the matter.
Adv Hoon explained that the Rules of Parliament stipulated that the Joint Tagging Mechanism (JTM) was responsible for deciding what the classification of the Bill should be. On looking at the original Bill, they had found that it was a mixed Bill, and thus constitutionally out of order. Therefore the Bill had to be split into a Section 75 Bill and a Section 76 Bill. Adv Hoon had approached the JTM legal adviser, and obtained from him the letter that had stated which clauses should be removed from the Bill and inserted into the Section 76 Bill. He had done this accordingly. He noted that the Section 75 Bill had been tagged again as a Section 75 Bill by the JTM but the Section 76 Bill had apparently not been tagged yet.
Adv Hoon explained that according to the Rules of Parliament, the Committee could move clauses and then approach the JTM to ensure the alterations were constitutionally in order.
He said the Committees were already aware that he personally believed this was Section 75 text and it should not be included in a Section 76 Bill. However he referred Members to the "liquor case" [Ex Parte President of the RSA In re: Constitutionality of the Liquor Bill, 2000], where the Constitutional Court had ruled that it was better for a Section 75 matter to go the Section 76 route, than vice versa. It thus would not be wrong to leave the text where it was, he would however be led by the Committee on the matter.
The Chair agreed it was better for a Section 75 Bill to be dealt with as Section 76, than the other way round. The problem was however, if Section 76 text were to be taken through 75 route, this could open the doors to litigation. He felt the matter needed to be discussed at a Committee level. The Committee had always felt that this was indeed Section 75 text. The guiding factor however needed to be the very point Adv Hoon had raised. He asked the Department of Trade and Industry (DTI) for input.
Department of Trade and Industry (DTI) input on Clause 3
Mr Netshitenze drew the Committees' attention to Clause 3 of the Second 2010 FIFA World Cup South Africa Special Measures Bill, which dealt with the issue of liquor restrictions.
He highlighted that in 2003 the DTI had made various guarantees to FIFA, such guarantees however had been misrepresented. He emphasised that the DTI themselves were best placed to explain the promises. The guarantee specifically dealt with the restrictions regarding the marketing, distribution and consumption of liquor around demarcated areas, where the world cup would take place. The DTI had accordingly designated the World Cup as a protected event in terms of the Merchandise Marks Act, 1941.
Mr Netshitenze explained that the DTI was currently responsible for issuing licences under Sections 12 and 13 of the Liquor Act. Although Gauteng and the Eastern Cape issued their own liquor licences under provincial legislation, the Liquor Act stipulated that the Minster was responsible for approving applications in terms of Section 12 and 13 of that Act. The Minister was currently compelled to consider the application in relation to criteria such as Broad Based Black Economic Empowerment (BEE), and the applicant's commitments to responsible drinking and combating alcohol abuse.
He understood that Clause 6 of the Bill would amend Sections 12 and 13 of the Liquor Act . The DTI view however had been that these clauses did not frustrate the normal activities of business. The guarantee made had not been to suspend national legislation of this nature.
The DTI had held a Policy Council on liquor issues, and had requested the Department of Sport and Recreation and LOC formally to submit any concerns they may have had in this regard, the DTI had received nothing. The DTI had therefore maintained its stance. They had been clear that they were not convinced of the need to change the legislation. The DTI could not sell out on this matter without going back to the Policy Council. Mr Netshitenze stressed he had consistently made these same arguments to the Committee.
The Chair confirmed that Mr Netshitenze and the DTI had consistently made a very convincing argument, but he was still unclear of the exact nature of the guarantees that had been given to FIFA about liquor and the marketing of alcohol.
Mr Netshitenze explained that the guarantees made had not been to amend South African law, but rather to ensure no further restrictions were not laid down.
Mr Chauke commented that this disagreement needed to be resolved. He noted that the Department of Sport and Recreation had failed to send representation to the Committee. He suggested the Committee should call all the relevant Ministers to appear before the Committee. He would not want to support the Bill unless he was fully convinced of the nature of the guarantees that had been agreed upon. It would ultimately be up to the Committee to decide which clauses should remain and which should go. It was therefore an absolute necessity that the Committee was well informed on the matter, from all the relevant perspectives.
The Chair explained that with regard to the two Bills, the Committee needed to manage the interests of the public, in a manner that ensured that the South African people would really benefit from the event. He was concerned that it is was not the first time that Mr Netshitenze had outlined such arguments. The Department of Sport and Recreation had never disputed the DTI contentions. He believed the Department of Sport and Recreation had sneaked the matter though the back window, expecting the Committee to retain the clause without question, for fear of contradicting the FIFA guarantees.
He felt the Committee should request that the Department of Sport and Recreation brief the Committee on its understanding of the exact nature of the guarantees made. The Committee had to have a clear understanding of what exactly had been promised to FIFA. He did not agree with the Department of Sport and Recreation on this clause. He noted that it was up to the Committee to decide on how to deal with this clause.
Mr D Mkono (ANC) [NCOP, Eastern Cape] agreed with the Chair. He was convinced by the consistency of the DTI arguments. The driving factor had to be what the South African people were going to get out of this. He felt that perhaps the Minister of Sport would be able to shed more light on the debate.
Mr Reid was concerned that the Department was not present, to defend the retention of the clause. He proposed that any decision on this clause be delayed until study groups had been given the opportunity to discuss the matter. He agreed that at a latter stage the Committee should invite the Minister to clarify various aspects of the Bill.
Mr Chauke agreed that this was the correct course of action for dealing with the matter. The Committee would listen to all the arguments and then they could work out their own way forward. The Department should be brought before the Committee to confirm their interpretation of the guarantees made
Mr Frolick questioned whether the Section 76 bill had or had not been tagged yet. He had understood the Bill had been fast-tracked by the Leader of Government Business. Mr Hoon had indicated that the Bill had not been tagged yet. How could the Bill be fast-tracked if it had not been tagged yet?
Adv Hoon explained he had seen on the Order Paper that the Section 75 bill had been tagged. It had not mentioned if the Section 76 bill had been tagged. He had concluded from this that it had not. However he stressed he could be mistaken and would look into the matter.
Mr Netshentize commented that Clause 2 dealing with the extension of the Minister of Trade and Industry’s powers under the Merchandise Marks Act of 1941 currently included text which read as "a date later than one month". He however believed that it had already been agreed to by the Committee that this was in fact six months. In passing this particular clause, whether it be a Section 76 or 75 bill, this should state six months.
The Chair commented that the Committee would listen to all the arguments. All the relevant Departments would be invited at a latter stage so issues could be clarified.
Office of the Premier of the Western Cape submission
The Chair drew the Committee's attention to the Western Cape submission and requested that Mr Boshoff take the Committee through the Western Cape's comments.
Mr Boshoff, explained that the Clause 8 referred to in the submission referred to the Section 75 Bill's Clause 8 which aimed to legislate for the searching of persons or vehicles intending to enter or found in designated areas.
The objections were that this empowered peace officers to search only those persons or vehicle intending to enter or found in areas designated (as laid out in Clause 5) and not the entire stadium or venue. The Western Cape had questioned whether it was the intention to exclude the whole of a stadium or venue from such searches.
Mr Boshoff, explained that designated areas had been defined in Clause 5 as "any area in a site that may only be entered into by a person in possession of an accreditation card". The word "site" had been defined as "any stadium or venue". He felt this clearly meant the whole stadium or venue. This was a broad description. He asked Adv Hoon if he had anything to add on the matter.
Adv Hoon agreed with this interpretation. He however added that the Bill intended to create different designated areas for different people, for example, for players and spectators.
Mr Boshoff substantiated that the Safety at Sports and Recreational Events Bill would make it possible to search and interrogate people at stadiums in areas not covered under designated areas.
The Chair noted that the Western Cape submission highlighted that the Safety at Sports and Recreational Events Bill already catered for some of the matters on which the 2010 Bills were attempting to legislate. He explained that the Western Cape was concerned that if the 2010 FIFA World Cup South Africa Special Measures Bill was passed, the status of the Safety at Sports and Recreational Events Bill would be compromised.
Mr Boshoff explained that the two Acts would be harmonised. One would not override the other unless they were in serious conflict.
The Chair requested that Mr Boshoff pass comment the Western Cape's objection number six that the Bill would give peace officers overly wide powers to exercise discretion as to what they would or would not seize, The Western Cape felt this limited the constitutional right to privacy, in terms of Section 14(c) of the Constitution.
Mr Boshoff noted that Section 14(c) of the Constitution did entrench the right to privacy. There were limitations to rights as defined in Section 36 of the Constitution. This would permit the restriction of privacy if it was ensuring the safety and security of the public at large. At an event such as the 2010 World Cup such a restriction would be regarded as reasonable and fair, and could legitimately be enforced in terms of Section 36 of the Constitution.
The Chair believed that perhaps the issue was that the Bill did not specify what the peace officers could or could not seize.
Mr Boshoff explained that the Local Organizing Authority in consultation with the South African Police Force (SAP) decided on such matters. He stressed that the SAP would be present the following day and would be able to clarify the issue. The word "object" needed to be understood according to its normal dictionary meaning which was indeed very wide. He agreed it was perhaps too broad. He however pointed to the counter argument that perhaps a broader definition would place less restriction on the work of the peace officers.
Adv Hoon noted that the clause catered for the seizure of any "prescribed" object. He explained that the word "prescribed" had been dealt with in the definitions of the Bill, which stated that "prescribed" meant specifically prescribed by regulation.
The Chair commented that many of the issues raised by the Western Cape had to a degree been correct, however they had not had the privilege to be informed by a cross reference with other Bills.
He thanked Members for their input, and adjourned the meeting.
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