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SPORT AND RECREATION PORTFOLIO COMMITTEE, EDUCATION AND RECREATION SELECT COMMITTEE
12 July 2006
2010 FIFA WORLD CUP: SUBMISSIONS BY DEPARTMENT OF HOME AFFAIRS, MANGAUNG MUNICIPALITY AND SOUTH AFRICAN POLICE SERVICE
Chairpersons: Mr BJ Tolo (ANC); Mr BM Komphela (ANC)
Documents handed out:
Department of Home Affairs submission on 2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] as reintroduced.
The Department of Home Affairs, the Mangaung municipality and the South African Police Service gave submissions on matters related to the 2010 FIFA World Cup South Africa Special Measures Bill and Second 2010 FIFA World Cup South Africa Special Measures Bill.
Members were particularly concerned about the police’s capacity to ensure safety and security, implement access control as well as search and seizure measures. It was suggested that the Bill be amended to allow duly accredited persons to assist the police in performing its function. Concerns were also raised about host cities’ ability to adhere to their agreements with FIFA but members were pleased with the work that had so far been done by the Mangaung municipality.
Matters related to ambush marketing, the national flag as well as the marketing, distribution and consumption of liquor were also discussed. The Committees expressed their concern about the Department of Sport and Recreation’s absence from the proceedings, as it would have been able to shed some light on some of the issues that were raised.
Matters arising from the previous day’s discussion
Mr C Frolick (ANC) said that the Committee was fortunate to have Mr Mansoor Parker, the legal advisor to the FIFA Local Organising Committee (LOC) present at the proceedings. He wondered whether the Committee could at some stage revisit the previous day’s discussion around the Second 2010 FIFA World Cup South Africa Special Measures Bill so that the LOC’s legal advisor could also give his interpretation of Clause 3 which related to the suspensions of restrictions regarding the marketing, distribution and consumption of liquor.
Mr Komphela agreed that the LOC’s legal advisor should inform the Committee of what he understood under that clause. The Committee wanted to understand what the LOC had requested and whether the Department of Trade and Industry’s (DTI) guarantee was in line with that request.
Mr Mansoor Parker (Acting Company Secretary for the LOC) said that the LOC had been liasing very closely with the Department of Sport and Recreation (DSR) with regard to the legislation under discussion. The drafting of the legislation fell outside the competency of the LOC but it had a clear interest in the contents of the legislation and gave inputs throughout the process.
The question raised concerned the interaction between Government Guarantee 14(b) and Clause 3 of the Second Special Measures Bill. He explained that one could not look at Guarantee 14(b) in isolation of Guarantee 14. The latter was issued by the DTI and was signed by the Minister on around 24 March 2004. It was an all-embracing guarantee dealing with intellectual property rights issues as well as the expectation of marketing rights. There was a particular clause within that guarantee which said, “ there were no legal restrictions or prohibitions on the sale, distribution, promotion or advertising of commercial affiliates’ products including food and beverages”. Subsequently FIFA issued a further guarantee (Guarantee 14(b)), which made specific reference to alcoholic beverages and tobacco. This guarantee was signed by the Department of Health.
Adv Parker felt that the questions as to whether the appropriate department had signed the guarantee was relatively unimportant considering that Guarantee 14(b) was a specific guarantee within the broader Guarantee 14.
The relevant Departments pursuant to a Cabinet resolution taken on 29 May 2003 issued all the guarantees. It was decided that all government guarantees would be issued in favour of FIFA and that the appropriate departments would be signing the guarantees. There would be coordinated effort between departments to ensure the implementation and execution of those guarantees.
The LOC had come up with the wording, which was captured in Clause 3 of the Special Measures Bill. The guarantee was a very important document. He reminded the Committee that during the bidding phase, Libya was excluded because they failed to provide one of the guarantees. The event was awarded to South Africa on the basis of the 17 guarantees and South Africa’s ability to execute them.
The Departments had to decide whether any laws would need to be passed to assist in carrying out the obligations contained in the guarantees. They had to consider a number of issues:
- the scope of the exemption that was required in terms of the guarantee;
- the beneficiary of that exemption e.g. FIFA or FIFA and the commercial affiliate or FIFA, the broadcast rights holder as well as the commercial affiliate, etc;
- the duration of the guarantee and
- the geographical area of the guarantee (stadium, hotel, controlled access site, etc).
Clause 3 sought to include a provision dealing with the ability of the FIFA commercial affiliates in the liquor category to exploit their liquor rights within a stadium in connection with the FIFA World Cup. Two limitations were sought to be included:
- it had to be in connection with the FIFA World Cup (any other connection fell outside of the guarantee and outside the legislation) and
- the geographical limitation to certain areas.
The question as to the necessity of the provision in the execution of the guarantee was within the jurisdiction of the DTI. If the DTI felt that specific measures were needed, it would have to indicate this view.
Mr M Netshitenze (Director: DTI) agreed that it was up to the DTI to pronounce whether there was a contradiction between the guarantee and the clause. The DTI had expressed its view the day before. He said that in the interest of consistency, Mr Frolick could then continue his questioning of whether there had been consultations with FIFA, legal advisors and the DSR. He could also establish whether the DTI had requested the LOC to, in writing, provide it with whether there was a need to amend liquor legislation. He emphasised that issues around the consultation process needed to be clarified. The LOC needed to categorically state whether the DTI had agreed to the amendments. They could then make suggestions that might tilt the balance in the direction of the necessary amendments. He said that the DTI gave its position and that the decision was now up to the Committee.
Mr Komphela said that the Committee needed to consult with the DSR on the legitimate remarks the DTI had made. Clarity would be provided the following day.
Mr B Holomisa (UDM) welcomed the Chairperson’s intervention but commented that there did not appear to be much room to manoeuvre. It was a pity that the DSR was not present to clarify matters. He added that one needed to strike a balance between both FIFA’s and South Africa’s interests.
Mr M Thetjeng (DA Limpopo) said that the committee was in possession of various guarantees from departments. It looked as though there were still more guarantees that were not included in the document. The Committee had to have access to these guarantees in order to make informed decisions. The Committee might be limited in its scope due to the things that had already been agreed to.
Mr Frolick said that the office of the chief state law advisor had provided the guarantees upon the Committee’s request during a previous process. The Bill was then withdrawn. If there was anything outstanding it would not change the situation considerably. He did not feel that the situation presented a crisis. The only point of contention, as far as he was concerned, related to whether the clause was needed in the Bill. The DTI felt that there was already sufficient protection in terms of the existing legislation.
He explained that FIFA’s sponsorship rights were structured in such a way that commercial sponsors who committed themselves to the event had already filled the top section. Lower down there were plenty of opportunities for South Africans to benefit from.
Mr Komphela emphasised that the Committee would only call for the guarantees that affected the Bill before it then. The Bill under discussion needed to also give effect to the guarantees agreed to.
Mr Netshitenze pointed out that if a person gave a guarantee that did not fall within his or her competency that guarantee would be null and void.
Mr Komphela agreed. A general in the army could not give guarantees that were related to the competencies of the Department of Home Affairs (DHA). If however, a person had given the authority to sign on his or her behalf to another person that would be in order. Any other way would result in an invalid guarantee.
In reply to Mr Frolick asking if Mr Gideon Hoon (State Law Advisor) had now managed to ascertain whether the Second 2010 FIFA World Cup South Africa Special Measures Bill had been tagged, Mr Hoon said that he had not been able to confirm it yet. He would follow up on the matter later that day.
Mr Komphela asked Adv Gideon Boschoff (Legal Advisor: DSR) whether Clause 6 of the Bill (S76) related to access control measures. He wondered if only traffic officers or police officers would be responsible for enforcing this aspect of the legislation.
Adv Boschoff responded that he thought that both traffic officers and police officers would bear this responsibility. In terms of the Criminal Procedure Act (CPA) traffic officers could assist the South African Police Service (SAPS).
Mr Komphela wondered whether the both the Traffic Department and the police would be able to remove and impound cars that illegally occupied traffic free zones.
Adv Boschoff reminded the Committee that at the previous day's meeting, the need had been discussed that a peace officer as well as a person who had been duly accredited could be authorised to perform this function.
Mr Hoon said that he would distribute copies of all the legislation that was contained within the temporary legislation. He pointed out that the Section 75 Bill referred to ‘peace officer’ as it was defined in Section 1 of the CPA. This definition included traffic officers but not volunteers. The issue of volunteers was dealt with in the Police Act.
Mr Komphela said that that definition gave the responsibility to one sector while excluding others. He said that faced with a task of the magnitude of the World Cup, one needed to involve the police as well as the traffic officers, otherwise problems could be created. The Committee needed to look into the issue.
Clause 8 dealing with search and seizure provisions spoke of ‘peace officers’ too. The Committee had been concerned that this task was also too vast to be limited to the police who might not have the capacity to adequately perform it. Arrests would obviously remain the responsibility of SAPS only, but there were many issues related to safety and security that would need to be addressed.
Mr T Lee (DA) said that ‘peace officer’ was defined as a police officer or a traffic officer. He agreed with the Chairperson’s request to consider widening the definition of ‘peace officer’.
Adv Boschoff agreed with this line of thinking but pointed out that the proposal posed one problem: ‘peace officer’ had already been defined in terms of the CPA. If one were to amend that definition it would impact on that Act as well. This was a long process. He suggested that for the purposes of the temporary legislation, Clause 1 should rather include a definition of ‘person’.
Mr Komphela said that one could define that person in terms of the purpose he or she would serve. He reminded the Committee that large parts of the Special Measures Bill were taken from the CPA. The CPA could not be amended in favour of temporary legislation. If Mr Lee’s proposal could not be accommodated, the Bill would have to remain the same. He emphasised that it was never Government’s intention to amend the laws of the country for the purposes of the FIFA World Cup but to amend existing legislation for a certain period of time. The Committee would look into the matter; but would not amend the original legislation. Adv Boschoff added that the suggestions should be put to the SAPS too.
Mr Frolick agreed that it would be useful to get the SAPS’ opinion. His understanding of ‘peace officer’ as defined under the CPA was that they were specific people who performed specific tasks. He cautioned that if one included other people who were not covered by the CPA, problems might arise. Peace officers needed specific training and were protected by the law when performing certain tasks.
He agreed that one should not amend the original act. The Committee’s experience in Germany informed them that not each and every person was subjected to the provisions provided by the legislation covering search, seizure and access control – so not everybody would be searched. The Act stated that peace officers may perform this function at their discretion and depending on their manpower.
Mr Komphela said that he had seen some coverage on the Internet of the previous day’s discussion around the national flag. The Committee had been very clear that “the old flag of the old government was antagonising the people of this country”. The discussion had not been about the flag specifically. The flag was raised as an example.
If the matter had to be turned into a discussion the Committee wanted it to be put on record that it considered that flag to be one of the “most oppressive flags” and that there could be no “grace or glory” when one saw it waving in a stadium. He said that the belief that Government could not control the presence of something it did not want to have present, was a myth. He added that if Government did not want something it had to state this clearly. The flag had very negative associations. The Department of Foreign Affairs (DFA) had given an indication of the type of flags that would be allowed. He would not be happy with the flag and refused to associate with it. One needed to be honest and talk about the fact that that flag was a disgrace. All steps must be taken to ensure that it would not be displayed. One should not be apologetic about taking such measures.
Ms M Ntuli (ANC) agreed that there was no need for the Committee to embrace “things that are null and void”. Not a single government building still used that flag. That flag was illegal now and belonged to the past. She felt that whoever waved it or had it in their possession was breaking the law. When the flag was changed it was for all South Africans to abide by the laws of the country.
Mr Frolick said that in the original discussion that took place before the Bills were split as well as during the original discussion with the DSR he had raised the issue that at certain events representations of the old flag were increasingly being displayed (as flags or printed on T-shirts). At the recent Klein Karoo Kunstefees as well as at the Iron Man competition in Port Elizabeth, T-shirts bearing the old flag had been sold. He wondered how this could be regulated.
From the impression that was now being created, it appeared as though this situation had sprung out of nowhere and that the Committee was only now seized with the matter. This was false. This issue related to other events apart from soccer. He said that looking at the “type of spectator that would attend the event in 2010” it was unlikely that the flag would be displayed at the 2010 World Cup. Representations of the old swastika could not be displayed during the 2006 World Cup in Germany. He wondered what would prevent South Africa from taking the same measures Germany had taken.
He suggested that one could extend such regulations to all sporting events that were held under the ambit of the South African Sports Confederation and Olympic Committee (SASCOC) who was in charge of the different federations. He stressed that this was a serious matter. The 2010 World Cup would be an African World Cup. The old flag could not be allowed to be displayed because, in addition to what it signified to the majority of South Africans, it was also the flag under which many African countries were raided during Apartheid.
Mr L Reid (ANC) said that the Bill referred to the national flag of a country. The old flag was not South Africa’s national flag. He agreed with the sentiments raised regarding the old flag and said that he too did not want to see it again and that regulations should be put in place to prohibit the presence of any representations of the flag or the flag itself.
Mr E Saloojee (ANC) reminded the Committee of the time it had attend a sporting event in the Free State. In the stadium adjacent to the one the Committee was at, a rugby match had been underway. “Only people from one particular group” were present at the match and they were waving the old flag. He said that there were elements that would not hesitate to use an event such as the World Cup to hoist that flag. South Africa had one national flag and one national anthem and there could be no compromise when it came to the national flag and anthem.
Mr Komphela said that the Committee needed to look into the regulations. The day before he had been tactful around the matter. The coverage he had seen on the Internet had however annoyed him. It ridiculed the Committee for talking about the flag. Not even the Afrikaner Weerstands Beweging (AWB) could be allowed to enter stadiums with the kind of flag that they would hoist. There should be no ambiguity around the national flag and anthem. “Some things” would crop up to undermine the event and to undermine the Government. The regulations should particularly deal with the old flag that was “antagonistic to many of us”.
Adv Boschoff did not think that the regulations would be the place to address the issue. He felt that measures should be included in the Bill itself. The structure of the Bill designated some activities as criminal offences. A similar type of offence should be created in terms of the flag and should be included under Clause 3.
Mr Komphela said that this was fine. He reiterated that the day before the Committee was trying to be accommodating. But he felt that the reaction to the topic had invited a debate. The Committee would look at all other legal means to outlaw the flag.
Mr Netshitenze said that during the previous day’s discussion the DTI had indicated that it was comfortable with the clause. The discussion around the regulation of the national flag, coat of arms, etc had been raised again after the meeting. He proposed that the Committee should also confer with the Chairpersons of the portfolio committees of trade and industry, arts and culture. Through the National Heraldry, the DTI and the Department of Arts and Culture also regulated these matters. When the Committee had reached the conclusion of the matter it could also confer with the principal political and administrative officials and then take the appropriate action.
Mr Tolo said that he had seen a broadcast on e-TV that appeared to indicate that the Committee and the public hearings reflected that Parliament wanted to ban the old flag. This was untrue. The Committee did not have such a discussion. The old flag was merely raised as an example of the things that would be undesirable at World Cup matches. He was not sure whether one should put this in the law. All that was needed was some leverage that would allow peace officers to remove any flag that was undesirable. This could be covered in the regulations and did not have to be included in the law.
Mr Litho Saku (Chairperson of the Eastern Cape Portfolio Committee on Sport, Art and Recreation) wondered whether the Portfolio Committee could consider the possibility of providing all schools with national flags. Sometimes confusion arose because people did not have the appropriate flags.
Department of Home Affairs’ Presentation
Adv Deon Erasmus (DHA Director: Drafting) led the delegation and was accompanied by Mr Francois Du Toit who was the DHA’s 2010 FIFA World Cup Project Manager and Ms Marie Greyling from the DHA’s Port Control directorate.
Adv Erasmus proposed that the heading visas and work permits in clause 4 of the Bill be amended to read visas and temporary residence permits. This section dealt with visas and three types of residence permits: visitor’s permits (in terms of Section 11 of the Immigration Act), work permits (Section 19) and business permits. If the heading read visas and work permits only, it would not cater for business permits, which would enable people to enter into the country with the purpose of establishing or investing in a business for the purpose of the 2010 World Cup.
Clause 4(1) dealt with persons that would watch the event at a stadium or on big screens. The DHA proposed that the sub-clause should not specify Sections 29 and 30 of the Immigration Act so as to broaden its scope. The grammatical amendment to paragraph (a) was necessary so as not to compromise the Minister of Home Affairs’ discretion as far as granting visas.
Adv Erasmus said that it was important to draw a distinction between countries that were not exempt from having to apply for visas (paragraph a) and those that were (paragraph b). According to paragraph (b) those people who were not required to apply for visas would be issued with a visitor’s permit in terms of Section 11 of the Immigration Act. This permit would grant them permission to be in the country for the period for which he or she was exempt from complying with visa requirements. If that person wanted to be in the country for longer he or she would have to apply for a visa prior to leaving his or her country of residence.
Clause 4(2) dealt specifically with people who would be coming to South Africa to work in connection with and for the duration of the 2010 World Cup. The DHA suggested that contemplated in subsection 1 be deleted since this section dealt with people who came to watch the game. In addition the subclause should include the phrase including team members since team member was defined in Section 1 of the Bill but, in terms of the Immigration Act, it fell under the definition for ‘work’. He explained that team referred to any person who worked for the team (players, physiotherapists, doctors, etc).
The Director General of Home Affairs had the authority to endorse a visitor’s permit thus enabling a person to work in South Africa for a period of three months. This endorsement could be renewed for a further three months. Applicants thus applied for a visitor’s permit, which could be endorsed to include work.
The DHA proposed that Clause 4(3) be deleted in the view of the proposed amendments to Subclause 2.
The DHA suggested the insertion of a fifth subclause. It would deal with people who wanted to work, open a business or invest in South Africa for a period that would exceed 6 months i.e. exceed the duration of the 2010 World Cup. The insertion would be in line with the Section in the Immigration Act that dealt with business permits.
It would refer to the regulations that were made under Section 7 of the Immigration Act and would provide for two processes: the Director General had the authority to issue a business permit provided the applicant had applied for a waiver to comply with certain prescribed requirements from the Minister (in terms of Section 31(2) (c)). Only once the Minister had approved this application could the Director General issue a business permit.
Mr Komphela asked whether the submissions referred to businesses that would be established prior to the 2010 World Cup or businesses that would run only for the duration of the World Cup. He feared that people would pretend to be establishing businesses in terms of the World Cup and wondered whether all business should not rather apply for permission to invest or to establish a business via the normal channels. If one wanted to invest only for the duration of the World Cup, one would be treated the same as a team and would be granted a work permit for 30 days after which it would lapse.
Adv Erasmus said that this issue would be addressed in the proposed clause, which would address issues relating to businesses that arose specifically for the 2010 World Cup. This clause would apply only to people who were accredited with FIFA. If they were not accredited they would have to go via the normal route.
Mr Komphela wondered whether the DHA had brought along the Home Affairs guarantees. He said that the Committee needed to know whether the legislation corresponded with the FIFA guarantees. He asked the legal advisors to comment on whether the DHA’s proposed amendments were in line with the existing legislation and the guarantees.
Adv Bischoff said that since Adv Erasmus was an expert as far as the Immigration Act was concerned he would assume that the amendments were in line with that Act. Adv Hoon and he would have to assess whether everything was in order. He added that in principle the amendments made sense and were in line with the Immigration Act.
Mr Komphela wondered whether the DHA’s proposals relating to clause 4 were acceptable.
Adv Boschoff had no problem with the amendments that had been made. They were in line with good drafting. He reiterated that his provisional acceptance of the amendments were subject to him and Adv Hoon scrutinising the submission. Adv Hoon added that there were no drastic departures from the original clause. Other than a few drafting suggestions everything appeared to be in order.
Mr Tolo was concerned about the fact that team members would have to apply for individual visas and could not apply for group visas. He feared that individual team members’ could be refused visas.
Adv Erasmus said that currently the DHA had to deal with such issues when foreign teams came to play and team members were injured and had to be replaced. Ms Greyling added that the DHA attempted to facilitate the issuing of work permits to team members. The DHA drew a distinction between work to be undertaken for a period shorter than and exceeding 6 months. The DHA drafted the clause in such a way that team members could enter the country on a visa and not a work permit. They would apply individually but the applications could be processed together.
The legislation was not intended to make it more difficult for team members to work here but made it easier. The DHA had special arrangements and exemptions that could be granted by the Minister in place to facilitate replacements of team members in the case of injuries, etc. She assured the Committee that applying for individual permits was in line with international best practices. Each person needed a passport containing the enabling visa or permit and she did not view this as a stumbling block.
Mr Komphela felt that the Act should clearly indicate that all teams qualifying for the 2010 World Cup would be given permission to enter the country. The impression should not be created that the DHA would allow teams but that team members would be treated as individuals. The clause gave the impression that teams and individuals would be treated in the same way and would need to meet the same requirements. Special provisions should be made for teams. These should give a clear indication that one would be affecting a guarantee that 32 teams would be granted entry. Teams should be allowed to come and play irrespective of the individuals in that team.
Adv Erasmus explained that the draft did draw a distinction between people that were spectators (sub-clause 1) and people who were coming to work (sub-clause 2). Teams would be included in sub-clause 2. There were countries that were exempt from having to comply with visa requirements. Those team members should submit a letter from FIFA to the Department of Home Affairs that would indicate that they were coming to work in South Africa.
He pointed out that in terms of South Africa’s immigration laws the DHA had to have the particulars of any foreigner entering the country. If there were a crisis DHA had to know who had entered the country and whether they could be accounted for. The DHA understood that when FIFA sent the letters through they would indicate which people would be applying for permits.
Mr Thetjeng said that the documents that had been handed out the day before dealt with some of the questions that had been raised. The guarantee letter DHA provided to FIFA dealt with the list that contained prohibited persons. It reflected that if a team contained a prohibited member, that member would not be allowed entry. FIFA would submit their list of 50 team members. Should that list contain prohibited persons DHA would inform FIFA that those people would not be allowed entry. The applications would be dealt with holistically and not individually.
The Chairperson asked whether what the DHA had proposed was in line with what the guarantees stated. The guarantees made it possible for the teams to easily get permits to enter into the country. The Committee, without the privilege to have seen the single guarantees, assumed that all teams that would play in the African Cup of Nations and the World Cup would have an easy way of entering the country. Other people would have to follow the necessary processes.
Adv Erasmus said that paragraph 4 (of Clause 4) referred to administrative procedures that would be put in place e.g. when team members applied for visitor’s permits that would be endorsed enabling them to work in the country, officials at the missions would be able to give them priority treatment. He felt that the legislation was giving effect to what was contained in the guarantees.
Mr Komphela said that at first glance the Bill did not give him the impression that teams would be able to easily apply for permission to enter. Now that Adv Erasmus had explained that they would be able to get priority treatment in terms of what had been agreed upon in the guarantees he felt more comfortable.
Mr Thetjeng said that the proposed fifth clause referred to a period exceeding 6 months under which business people would be protected under FIFA 2010. He understood that the DTI had indicated that maximum period of protection under FIFA 2010 was 6 months after the last date of play. He sought clarity on the apparent confusion. Mr Komphela asked for how long “ambush marketing” would be allowed.
Mr Netshitenze said that the period had been fixed at 6 months.
Adv Erasmus added that the DHA had included a period exceeding 6 months because it was important to remember that people who were accredited with FIFA might want to come into the country prior to the World Cup to investigate whether their ventures were viable. The DHA tried to accommodate such people. He also feared that it would not be possible for people to close down their businesses within 6 months of the final game.
Mr Netshitenze explained that DTI protected the World Cup as an event but this protection did not extend to individuals.
Mr Komphela summarised that FIFA requested DTI to protect the event. As soon as the event was finished business people could no longer be protected under the Soccer World Cup 2010.
Adv Erasmus sought clarity on what ‘protected event’ referred to. He wondered whether people who had invested in a business for the purposes if the 2010 FIFA World Cup would have to conclude their business within 6 months.
Adv Hoon explained that protected event status referred to something else. People might want to come to South Africa prior to the event to set up certain structures. After the protection period had lapsed they might still be busy dismantling structures, etc. Protection in terms of ambush marketing referred to the Merchandise Marks Act. Measures for people coming to conduct business in South Africa would be addressed in the Immigration Act.
Mr Thetjeng said that the definition of the 2010 FIFA World Cup South Africa included the 2009 FIFA Confederations Cup. He wondered from when businesses would enjoy protection and said that the DHA would have to inform the Committee when this protection period would commence.
Adv Erasmus explained that the DHA simply tried to facilitate traffic into and out of the country. The DHA was not responsible for deciding when the protection period would start.
Mr Netshitenze informed Members that the protection of any businesses associated with the FIFA World Cup commenced on the date of the publication of the notice. Brands too were protected from the date of the publication of notices up until 6 months after the date of the last game.
He added that the FIFA emblem was a prohibited registered mark. Anyone wanting to be associated with the mark would be protected. If that association was made without the permission of the organizers however, it would be considered unlawful. Since FIFA registered its trademark it would be protected as a registered trademark even after the month period had lapsed.
Adv Boschoff referring to page 2 of the DHA’s submission pointed out that the amendment proposed in subclause 2, paragraph 4 correlated with the termination of the FIFA World Cup. The protected event status lasted up to 6 months after the termination of the final game. Once the 2010 World Cup had been terminated a person could, in terms of the proposed provisor, apply for a further 6 months.
Adv Ncolo (SLA) agreed with Adv Boschoff’s assessment. The Minister would, as provided in the guarantees, declare the event protected. He felt that the clause reflected what had been written in the guarantees.
Adv Erasmus remarked that the second provisor of subclause 2 needed to be understood very clearly. It referred to 6 months from the date of entry and did not run concurrent with the end of the World Cup. DHA was legislating specifically for the people who would be in South Africa for up to 6 months. Their permits would be endorsed in terms of Section 11(2) of the Immigration Act. If the person wanted to exceed the 6 month period he would have to revert to Section 19 of the Act which related to work permits. The DHA was trying to make it as easy as possible for people to come and take part in the event.
Mr Tolo was not sure whether the Member’s question had been answered. He wondered whether the 2009 Confederation Cup was also a protected event. He sought clarity on when ambush marketing would be prohibited as well as on when protection started.
Mr Frolick said that as far as he knew the declaration had already been made. The proclamation was published in the Government Gazette on 25 May 2006. He urged the Committee not to lose sight of the fact that the FIFA LOC would be able to give clarity on he stadium contracts. He said that protection did not imply that stadium would be protected right from the 2009 Confederation Cup up until after the 2010 World Cup. As soon as the Federation Cup had been concluded the stadium would revert to their normal use up until the FIFA 2010 World Cup contract kicked in again.
Mr Komphela pointed out that the host city agreements reflected time frames. He wondered why these time frames were not reflected in the Bill.
Mr Netshitenze said that Parliament had been requested to provide a broad framework and that details would follow at a later stage. Parliament’s activities should not stop after the broad framework had been legislated. He reminded members that the guarantees should be reconciled with the legislation. He pointed out that the implementers of the legislation were not necessarily only the national departments or the host cities. Host cities should also be present so that they could understand what the broad framework was about. The stadium agreements also contained minute details that were based on the national guarantees. He agreed that one should not over legislate because some things could be wrapped up after the broad framework had been finalised.
Mr Thetjeng reminded the Committee that the reason why they had to interrogate the matter was so that they would not “be found wanting on technicalities”. His biggest concern was that the DHA needed to facilitate traffic into the country. They needed to know from which date they could start doing this. He cautioned that the framework could not be too broad and felt that timelines were necessary. The finer details could be discussed at a later stage. He assumed that as the Committee proceeded with its activities they would reach a point where some things would be cleared up.
Mr Frolick commented that the DHA’s responsibilities were very clear. FIFA would inform the DHA in writing of the team members or sponsors that needed to enter the country. This would depend on FIFA’s needs. One could not attach time frames on DHA’s activities. They knew that there were preparations that needed to be done. They knew that the 2009 Confederations Cup formed part of the 2010 World Cup activities and would be geared according to FIFA’s timeframes and needs. If FIFA wanted to send people at the end of 2006 they would submit a letter informing the DHA. He agreed with Mr Netshitenze that one should not over legislate. He noted that certain time frames were necessary so as to prevent ambush marketing but added that one could not expect to have a time frame for each and every guarantee.
Adv Erasmus pointed out that the DHA did make reference to certain time lines where necessary.
Mr Tolo said that there was still some confusion around the issue but agreed that the matter should be left at that.
Mr Komphela wondered how the Minister could declare whether a stadium would be recognised as a stadium or venue under the auspices of the 2010 FIFA World Cup. He was of the impression that since provinces were also involved this declaration could only be made in conjunction with the provinces and wondered how the Minister could make a declaration on a matter that was not within his competency.
Adv Boschoff said that he was not in a position to answer this question. The Department of Sport and Recreation was not fully represented at the meeting.
Adv Ncolo said that he was sure that the question was based on the areas of competence of the national and provincial governments as laid out in the Constitution and said that Mr Komphela was raising a valid question. He was of the impression that since the 2010 World Cup would be a national event the national Minister would be able to make certain declarations; he would however have to consult with his colleagues to be sure.
Mr Tolo felt that the Department of Sport and Recreation’s absence was problematic and said that the Department should inform the Committee of why they felt that the Minister could make declarations related to designated stadium. The Department was piloting the legislation and should be present at the meetings. He hoped that Adv Boschoff would relay this message to the Department.
Mr Komphela explained that the Committee was only seeking clarity and that the Chairpersons’ concern should not be construed as them being egotistical.
Adv Ncolo said that Schedule 5 of the Constitution provided for provincial sport. As far as he was concerned World Cup was a national event.
Mr Komphela requested the legal representatives not to complicate matters. FIFA events could not undermine the Constitution of the country hosting the event. The principles of cooperative governance dictated that national and provincial governments should be in agreement.
Mr Netshitenze added that the ownership of the stadium might not always be that of the province or the municipalities. When looking to address the issue one should also consider whether the land belonged to the national government, the provincial government or the municipality.
Mr Tolo said that the situation also raised questions as to whether the matter should be addressed as a piece of Section 75 or Section 76 legislation. He said that these questions would have to be revisited and finalised.
Mangaung Municipality Presentation
Mr George Mohlakoane, Mangaung Executive Director: Infrastructure, said that his office would forward their formal response based on the discussion the following day. Their presentation would cover three issues: matters arising from the Bill and how they affected Mangaung; the municipality’s understanding of the Bill and its implications as far the contracts that the city had signed (host city agreement and the stadium use agreement) as well as Mangaung’s readiness in dealing with temporary name changes.
Mr Tolo explained that the Committee was particularly interested in the contracts the city had signed. He was also interested in the extent to which the sponsors would be affected by the temporary name changes. He requested the Committee to be informed of what the host city agreement entailed. Some cities had signed agreements without knowing what having a full understanding of what they were letting themselves in for.
Mr Mohlakoane informed the Committee that the host city forum met regularly and that in addition to their contribution that day would submit comments on the Bill to the Department of Sports and Recreation by the end of July. Mr Tolo pointed out that such comments might reach the Department too late for them to have any impact. The Bill had already been tabled before Parliament and any further comment should thus be directed to Parliament.
Mr Mohlakoane concurred with the comments that had so far been raised around the declaration as stadium or venue clause. The Host City Agreement and the Stadium use Agreement made clear that those areas that would be used as public viewing areas or fan parks and where FIFA would have exclusive rights would be identified collectively by either the host city or the stadium authority as well as the LOC and FIFA. Mangaung was in discussion with the LOC and FIFA around this issue because some of the areas might include land that was under private ownership.
The difference between fan parks and public viewing areas also needed to be clarified. The agreement the city had signed was very specific as far as fan parks were concerned. FIFA would have exclusive rights in these areas. He said that knowing that we less than a quarter of the country would be able to attend live matches quite a large number of public viewing venue would be created. Big screens and perhaps some entertainment would be provided at such venues. He said that some of these areas might not necessarily fall within the exclusion zones and wondered whether the city would be allowed to involve in other partners that were not affiliated with FIFA. One would have to determine whether this would be in line with the not yet finalised rights protection programme.
He pointed out those commercial activities that would be limited to FIFA affiliated partners only also highlighted a problem that would have to be addressed. Mr Mohlakoane said that the Waterfront in Mangaung, which was not owned by the city, was very close to the stadium. The exclusion zone might include certain areas of the Waterfront. He said that the city needed to ensure that it did not infringe upon the rights the Constitution afforded the owners. This challenge needed to be understood and addressed as the process unfolded.
There was a database of soccer hooligans who would be barred from attending games but the visa and work permit clause did not clearly indicate how this group of spectators would be dealt with.
Adv Erasmus said that the phrase “subject to the provisions of the Immigration Act” was included to try to deal with issues related to hooliganism. FIFA had a list of known hooligans’, which would be sent to DHA. The Minister could then declare these people as being undesirable in terms of the Immigration Act. Should acts of hooliganism erupt within the country the Criminal Procedure Act and other legislation related to safety and security would come into action.
Mr Mohlakoane wondered how visa requirements would accommodate friends and family of soccer fans, who did not necessarily want to watch the soccer but accompanied their relatives to South Africa. Wives, girlfriends and children could use other recreational facilities while their partners attended matches. Host cities would like to exploit the presence of the additional visitors so as to maximize economic spin offs. He wondered how the DHA would assist so that these tourists could get visas more easily.
Mr Mohlakoane wondered how companies who were not affiliated to FIFA (especially those in the different public viewing areas) would be affected by the legislation related to the distribution and marketing of beverages. He felt that this would be one of the key challenges.
The LOC after consultation with the national commissioner and all other stakeholders had decided that certain sites would be designated for the 200 World Cup. Some of these sites might not be owned by the national, provincial or local governments. He suspected that some key role players might not have been involved in the process. Some of the details contained within the host city agreements were related to contractual agreements within the host city agreements. There was a need to marry the two such that e.g. the host city agreement would indicate that both the host city and the LOC had to identify designated areas. In such cases privately owned land would also be implicated. The host city agreement stated that the exclusion zone would be determined by FIFA, the LOC as well as the host city.
Mr Mohlakoane feared that there was a risk that the search and seizure clause was not constitutional. The Constitution provided every citizen with certain rights including the refusal to be searched.
Adv Ncolo said that each right in the Bill of Rights may be limited in terms of law of general application. The city of Mangaung thus need not be concerned about the constitutionality of the search and seizure clause in the Bill.
Mr Mohlakoane suggested that airspace should be included as a traffic free zone since “there could be ambush marketing up in the sky”.
FIFA had exclusive marketing rights that were based on the rights protection programme. Mangaung felt that the Bill itself had to be structured in a way that enabled such rights to be exercised lawfully. The Bill should give guidance as to how one could deal with ambush marketing. Alternatively this issue could be addressed through either regulation or the rights protection programme. He said that ambush marketing would have serious implications in terms of the by laws of the host cities.
Mr Netshitenze responded that DTI was waiting on the FIFA 2010 Director General to invite the Department to share its experience and share how it could assist in this regard. The understanding was that there would be such a meeting. If this did not materialise the host cities and the municipalities would be left in the dark. He proposed that the Chairpersons and the Director General conferred with each other in order to agree on when to arrange such a meeting.
Mr Tolo said that this would be taken care of and that the Committee wanted to see that there was uniformity as far as the matter was concerned.
Mr Saku commented that if there were to be vigorous interaction between the national departments and the municipalities, declared areas should also be briefed as far agreements were concerned. It would be the first time that South Africa would be exposed to an event of such magnitude and yet local municipalities were sometimes not aware of what these agreements entailed. He said that instead of waiting on invitations national departments should roll out programmes that would reach out to all provinces so that everyone could be on par.
Mr Tolo said that this was a valid request. Government departments should take a proactive approach and do the work that they were supposed to do without waiting upon invitations.
Mr Netshitenze responded that due to the three tiers of governance this might be “a no go area”. It should be noted that the DTI was committed to unveiling its programme and would not “be a reactionary”. It did however take offence to persons outside of Government asking the details of what the Department wanted to discuss with provinces and municipalities. He said that DTI and the other Departments could roll out programmes in unison but the DTI did not “like being questioned by any other person outside Government”.
Mr Tolo said that there was still a need for interaction between the DTI and all the other role players. This need could not be denied.
The “Free State Stadium” was the main venue to be used in Mangaung. ‘Free State Stadium’ was the name that was submitted while South Africa had been bidding to host the event. This name has since been changed to “Vodacom Park”.
FIFA expected the stadium to be given to them free of any commercial name. The name “Vodacom Park” thus posed a problem. Although the municipality owned the stadium it was bound to Free State Rugby by a 20-year lease agreement. According to this agreement Free State Rugby had the right to name the stadium. The city had met with FSR and explained that by the time the stadium got handed over to FIFA it should be free of its commercial name.
FSR submitted a written response giving permission that the name could be temporarily changed. Vodacom has also agreed to this. However based on their sponsorship agreement Vodacom would exact a penalty of R48 000 for every 7 days that its rights were not in effect. If a game had to be moved to another venue or the stadium was not being used it would be seen as non-compliance and a penalty would be imposed. The exclusive use period of the venue required that it be available15 days prior to the competition and 5 days after its conclusion. Furthermore the 2009 Confederation Cup also had to be taken into account. The estimated penalty amount was in the region of R400 000 and would still be impacted by the construction work, which would effect both the soccer and rugby programme. Games would have to be moved during this period, which would lead to further penalties.
The municipality would engage with both Vodacom and FSR in order to reach an amicable agreement since both parties wanted to have the event hosted in South Africa and realized that it would lead to all around commercial benefits.
There were certain clauses on which the Mangaung Municipality still had to engage with both the LOC and FIFA in order to make sure that while carrying out their obligations in terms of the organizational association agreement that was signed by the National Government, the event benefited the country’s as well as the local economy.
Certain clauses such as those related to the involvement of commercial partners that were not affiliated to FIFA would create a challenge. One would need to look at how to ensure that local companies got involved in the procurement of services and the preparation and management of the event without necessarily interfering with the partners and FIFA sponsors.
Since the World Cup was a protected event one could not talk about it to the media without first having received permission from FIFA. This too posed a challenge since cities were inundated with daily enquiries as far as preparations were concerned. The municipality was in the process of putting together a communication strategy.
Adhering to the rights protection programme would possibly create some problems. There would be people who would want to “take chances”. The city would have to consistently and responsibly handle such situations. More guidance was required in this area since the details of the agreement were not yet clear.
The Host City Agreement referred to certain safety and security measures that the host city had to ensure were in place. Safety and Security fell outside the city’s competency but the city had to commit itself to it. This concern had been raised with the LOC at the signing of the agreement.
There were certain stipulations concerning airports. None of host cities owned their airports and would need to create an environment and dialogue with the different role players to make sure that they carried out their responsibilities and obligations in relation to the agreement that had been signed.
FIFA had certain expectations as far as liability insurance and indemnity was concerned. This aspect still had to be defined in terms of the actual allocation of responsibilities between the host city and the LOC.
Mr Tolo noted that the presenters were still referring to the original Bill, which had now been split into two dealing with Section 76 and Section 75 Bills. He requested the presenters to be sure that the written submission they had undertaken to submit referred to the split Bills.
Mr Lee felt that it would be helpful if the Committee could see a copy of the agreements the cities had signed with FIFA so that it could see what cities had let themselves in for. The Committee would then be able to make informed contributions and would be better able to assist cities where necessary. Mr Tolo was sure that this could be arranged.
Mr Frolick commented that host cities had let themselves in for worldwide coverage for that specific period and that there was no amount of money that would be able to buy that. Furthermore host cities would be part of an African World Cup; this opportunity would be denied other cities within South Africa. Lastly he felt that there was no amount of money that could be attached to the positive impact the event would have as far as nation building was concerned.
He said that it was good to hear from at least one host city. The Committee now had a first hand account of everything that went into the preparations, the negotiations as well as some of the challenges cities faced. This proved that the profits of doom who claimed that South Africa was not ready to host the event, were wrong: cities engaged with matters, were putting the finishing touches to and had even concluded some agreements and needed to be congratulated. If this was the level of preparedness of all the cities he was convinced that South Africa was far ahead in its readiness for the event.
He remembered that in 2003 when South Africa had hosted the Cricket World Cup some of the very same conditions such as ‘clean’ stadiums had been met. No one had had any complaints. He admitted that the scale of the Soccer World Cup was far greater than that of Cricket and wondered how the requirements for 2010 differed from the ones that had had to be met in 2003. He was curious as to whether the Mangaung municipality had, if it had been involved in that process, experienced any major difficulties and how they resolved them.
Mr Keshav Panday (Manager: Mangaung Sports and Recreation) answered that because the scale of the 2003 event was smaller, it had been easier to handle the logistics around issues of ambush marketing and access control. The city had tried to get the buy in of all the stakeholders. The Waterfront, which was next door to the stadium, had for example formed part of the coordinating committee. Discussions had been aimed at negotiating the possibility of using specific entrances that were a reasonable distance from the stadium as well as to control access so that only clients to the waterfront could have access from these entrances.
The involvement of the SAPS had also assisted in terms of the control of the exclusion zone. Their involvement and committed had negated the risk of ambush marketing. He admitted that 2010 would be more challenging but said that the approach would not be too different.
Mr Mohlakoane added that the FIFA World Cup was different in that sponsors were “pumping a lot of money into FIFA” and thus FIFA had the responsibility to ensure that their sponsors’ rights were protected. He felt that host cities too needed to assist the LOC in ensuring that sponsors’ rights were protected.
He indicated the LOC was committed to ensuring that discussions with the relevant stakeholders, including FIFA, took place. FIFA expected plans to be to its satisfaction. Plans also needed to be to the satisfaction of the rest of the country.
Mr Tolo thanked Mangaung municipality for their input and urged them to get in touch with the national departments as well as the LOC to address their operational concerns.
Director Bert van der Walt (SAPS Legal Services Division) said that the SAPS’ initial guarantee stated the following: “the Government guarantees to undertake all security measures necessary to guarantee general safety and personal protection especially at airports, inside and outside hotels, stadiums, training grounds, the international broadcasting centre, media centers, any official areas and other areas where accredited persons and/or spectators are present”.
Clause 5 of the Section 75 Bill provided for designated areas that the LOC would determine in consultation with the National Commissioner of SAPS. The SAPS guarantee made mention of a national joint priority committee that would be represented in every province and would deal with security matters. The stakeholders mentioned in clause 5(1)(a) would include most of the role players.
Clause 5 had been drafted in consultation with the state law advisors and Adv Bischoff. Accreditation would be issued to ensure that there was no duplication of functions and that each sector was assigned a specific part of the security.
Clause 7 established traffic free zones so as to prevent vehicles from obstructing traffic to a stadium. The Ellis Park disaster had shown what could happen should such measures not be in place. Traffic free zones should also be kept clear so as to ensure that emergency vehicles had easy access. The joint structures would identify the traffic free zones that would accommodate emergency services.
The state law advisor had carefully considered issues around the constitutionality of Clause 8 (Search and Seizure). Concerns related to proportionality and the right to privacy were highlighted in these considerations. Clause 8(1) at first glance appeared give wide powers to police officers but their powers would be regulated.
Mr Lee wondered whether architects liaised with SAPS to make sure that their plans were in line with FIFA requirements. Mr Komphela said that FIFA requirements would not be the only concern. In terms of the law, SAPS had to approve safety measures at building of a particular size.
Mr Van der Walt said that to his knowledge SAPS were not compelled by law to get involved when big buildings were being erected but stadiums were built according to the South African Bureau of Standards requirements and guidelines. The new legislation required stadium owners to comply with certain safety requirements and for new stadiums to be built according to certain safety standards.
Mr Frolick added that during a visit to Germany and in interactions with the LOC and FIFA the Committee had found that there were strict criteria and technical requirements, especially in relation to evacuation measures, that needed to be met.
Adv Boschoff reminded the Committee that the Department had proposed that for the purposes of access control, traffic free zones and search and seizure measures a peace officer would be accredited to take certain actions. The Committee had proposed that consideration should be given to extend these powers to duly accredited persons other than peace officers. He wondered what Mr Van der Walt’s opinion regarding this matter was. He asked whether the term ‘peace officer’ included the metro police and whether the metro police could assist in this regard. Mr Tolo confirmed that the definition included metro police.
Mr Komphela said that everyone was concerned that the SAPS might not have the capacity to handle the large influx of spectators.
Mr van der Walt said that in terms of the CPA the Minister if Justice appointed peace officers. The categories of peace officers would be published in the Government Gazette. He suggested that then matter could be approached in two different ways: the Minister of Justice could appoint certain people to become ‘peace officers’ for the purposes of the Bill but limit their powers or; the Bill could include the term ‘authorized person’ instead of ‘peace officer’ and then specify what powers and functions could be performed by such a person.
He was hesitant to extend the powers of search and seizure to people who were not peace officers. Clause 6(3) stated that a peace officer was empowered to use reasonable force. He felt that normally reasonable force was implicit when such a power was given to police or peace officers. He would not like to extend these powers to people who were not police officers. While a volunteer might be given the power to enquire about an accreditation certificate, he would not empower them to use force.
Mr Tolo asked whether the peace officers would be able to deal with the situations that might arise. He realized that people who were not police officers could not be given the same powers.
Mr Van Der Walt said that he was very certain that the police would be able to deal with the situation. The joint operational structures extended right to the lowest level. Every stadium would have a venue operational centre (VOC). Stadium specific plans that would deal with the specific needs of a stadium and a specific event would be drafted. The Department had proposed that sufficient powers enabling SAPS to draft such plans and to fulfill the specific functions be included in the Bill. Mr Tolo wondered whether Mr van der Walt thought that these powers needed to be in the Bill.
Mr van der Walt responded that the SAPS had specifically requested that these provisions be included in the Bill. He admitted that the SAPS had at previous events successfully operated at without these provisions at bigger events but cautioned that it was treading on thin ice. The measures included in the Bill would be pivotal to further success.
Mr Thetjeng wondered whether there was a way of synchronizing the activities of all peace officers. Mr van der Walt relied safety and security would be coordinated through the joint structures. The metro police, Department of Health, emergency services and the DHA were represented in these structures.
Mr Komphela said that the authentic process of the SAPS around search and seizure did not convince him. He felt that police would not be in a position to check every single person coming through the gates. He felt that assistance would need to be sought.
Adv Ncolo said that the Chairperson’s concern was well founded. One could not amend the CPA at the same time as amending the Bill. There were many cases relating to search and seizure that extended as far as the constitutional court. Search and seizure had constitutional implications since it always invaded privacy. He requested the committee to allow the legal advisors to take some time to consider the implications and to then present a response the following day.
Adv Boschoff agreed and said with a view of all the legislation currently in place, which had a bearing on this particular issue. He pointed out that a person wanting to search you first needed to request your permission. Yet this was not even done. He proposed that this be investigated further. He would also not give people who were not officers the authorization to perform such duties. It was a highly sensitive matter.
Adv Ncolo said that he had raised issues that related to the Bill of Rights. In terms of section 36 there were limitations in the Bill of Rights. One needed to investigate the matter along these lines too.
Adv Boschoff said that the right to privacy, which was entrenched in the Constitution, was at loggerheads with this provision. It was important to revisit the implementation of this provision.
Mr Komphela said that he was concerned about the practical implication of the provision. He said that the legal advisors should accompany him to the upcoming Manchester united, Kaizer Chiefs and Orlando Pirates matches. He said that the two South African teams would have their own security in addition to the SAPS officers.
Mr Frolick said that to his understanding, peace officers would be empowered to, where necessary, execute those functions. In addition to peace officers other measures would also be taken to ensure safety and security. Where a threat could be identified appropriate action would be taken.
Mr van der Walt added that in practical terms the non-invasive powers referred to could be bestowed on authorized persons.
Mr Komphela requested the SAPS to work on the clause so that it could be amended in to reflect this suggestion. SAPS should report back to the Committee on the following day.
Adv Boschoff said that many of the fears addressed here would be addressed in the Safety in Sports and Recreation Bill.
Mr Komphela agreed but reminded Adv Boschoff that that would mean cross-referencing a Bill that has not appeared before Parliament. If that Bill had been passed earlier then everyone could have easily concluded the Special Measures Bill.
Mr Frolick was pleased that for non-invasive functions other categories of people would be considered. He urged the Committee not to lose sight of the magnitude of the event, which could be targeted for other purposes. Security measures needed to be put in place. He agreed that should a person not want to be searched, they should be refused entry.
Mr Komphela said that ABSA would make their submission the following day. Mr Holomisa wondered why ABSA would be making a submission when the ABSA stadium would not be used during the event. Mr Komphela responded that the hearings were for people who had an interest in the event. ABSA was an interest group. Listening to their submission would not be a waste of time. Mr Holomisa felt that since there would be no interference from FIFA in their stadium it was not appropriate that they comment.
The meeting was adjourned.
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