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SPORT AND RECREATION PORTFOLIO COMMITTEE & SELECT COMMITTEE: JOINT MEETING
24 July 2006
2010 FIFA WORLD CUP SOUTH AFRICA SPECIAL MEASURES BILLS: DISCUSSION
Chairperson: Mr B Komphela (ANC); Mr B Tolo (NCOP; ANC)
Documents handed out:
Working draft of Bill: B13-2006
Working draft of Second Bill: B16-2006
Second 2010 FIFA World Cup South Africa Special Measures Bill [B16-2006]
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] (Reintroduced)
Portfolio and Select Committee members considered the draft amendments drawn by the legal advisors of Sport and Recreation South Africa, following the public hearings on the Bill. The Preamble had now been amended to include a reference to the guarantees. The definitions section was amended to include a reference to the Immigration Act. Non-contentious changes had been made to the wording of Clauses 3, 4, and 9 of the Bill. Discussion was held on the scope and purpose of Clauses 5 and 6, in regard to "designated areas". SAPS, Department of Trade and Industry and the Local Organising Committee commented on issues relating to safety and security measures, ambush marketing, support for local businesses and the likely ambit of the FIFA regulations on these businesses. They also discussed and debated the use of the words "must" or "may" in relation to the access control measures in Clauses 6 and 7. The Legal Advisors were instructed to prepare a further draft, incorporating the points discussed, for final decision by the Committee on the following day
In the afternoon, the Committees considered the proposed amendments to the Second 2010 FIFA World Cup South Africa Special Measures Bill. These included a proposal to remove Clause 3 which dealt with the marketing, distribution, consumption and advertisement of liquor during the 2010 World Cup. This clause had been a particular concern to the Department of Trade and Industry (DTI) who had argued that there was already good legislation in place, which regulated liquor, and it did not believe that this legislation breached the FIFA guarantee. There was also a proposal to replace the reference to Minister of Health with the relevant statutory Health Professional Council, as the accrediting body for foreign medical contingents and medicines unlicensed in South Africa. The proposals also dealt with the concerns of companies such as Vodacom and ABSA, by including provision for consultation before further regulation, particularly regarding marketing rights.
The Chairpersons of the Portfolio and Select Committees gave a brief introduction and requested that the various Departments represented should give their input on each section as it was discussed
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] (Reintroduced)
Mr Gideon Boshoff (Legal Advisor, Sports and Recreation) reported on proposed changes to the clauses of Bill 13-2006 (Reintroduced), in response to submissions at the public hearings.
Mr Boshoff reported that the preamble now included reference to the guarantees by the government to FIFA, in line with a suggestion made earlier by Mr B Holomisa.
Memorandum on the Objects of the Bill
Mr Boshoff noted that a suggestion had been made that the Memorandum should appear at the front of the Bill. He stated that it was drafting convention that it appeared at the back of the Bill, as it did not form part of the Bill.
Clause 1 – Definitions
Mr Boshoff reported that there was one amendment, including a definition of the Immigration Act No 13 of 2002
Clause 2 – Declaration as Stadium or Venue
There were no amendments to this clause
Clause 3 – National Anthems and Flags
Mr Boshoff reported that the reference to the Minister of Foreign Affairs had been removed from this clause, following the reference to the guarantees in the preamble.
Mr Boshoff also pointed out that the clause had been split into two sub-clauses. Sub-clause (1) contained the wording relating to national anthems, but a new sub-clause (2) had been inserted to provide for a penalty clause.
Mr Boshoff reported further that it had been decided not to insert in this clause any reference to the prohibition of the old flag, or to any other antagonistic emblems, flags or symbols. These situations would be covered in the regulations still to be drafted and prescribed.
The Chairperson reminded members that Germany had similar provisions for the last World Cup, including face-painting or clothing reflecting antagonistic symbols.
Mr M Nkosi, Chief Director and Co-Ordinator 2010, Department of Foreign Affairs (DFA), confirmed that DFA was happy with the redraft.
Clause 4 – Visas, visitor’s permits, work permits and business permits
Mr Boshoff indicated that the title had been redrafted to include business permits.
Clause 4(1) now contained a reference to the whole Immigration Act, and not just to sections 29 and 30 of it, as it was felt desirable to give a broader inclusion in this clause. Sub clauses 4(1)(a) and (b) had been amended by the substitution of the words "may" for "must" in relation to the issueing of visas by the Minister of Home Affairs, and visitors’ permits by the Director General of Home Affairs, as they should have discretionary powers. Furthermore, the previous references to "spectators" had not been consistent and had caused confusion, and had therefore now been replaced with the words "a person". This was now consistent throughout the Bill. In addition, the phrase "for the requested period" had been inserted for the sake of consistency.
Sub clause 4(2)(a) had similarly been amended by tightening the references to the Immigration Act, and by making it applicable to team members also. Mr Boshoff pointed out that a team member would need to apply for a visa, since, as a professional sportsman, he would be regarded as undertaking work for the specified period, in South Africa.
Sub clause 4(2)(b) had also been added to deal with the question of work permits, and to fall in line with the provisions of the Immigration Act and regulations.
Sub clause 4(2)(3) had been deleted, since the references to team members had now been dealt with in sub clause 4(2)(1), and the numbering of the following sub clauses had therefore also changed.The new sub clause 4(3) had deleted the full reference to the Immigration Act, which was now included in the Definitions section.A new sub clause 4(4) had been added, once again to ensure that this Bill was in line with the provisions of the Immigration Act. In summary, a person wishing to work, establish or invest in a business in South Africa for more than six months, pursuant to the World Cup, would have to provide certain information to the Director General of Home Affairs, 30 days before coming to South Africa. Sub clause (b) provided that a person wishing to be exempted from having a permit must submit an application 60 days before coming to South Africa, and sub clause (c) contained the procedure.
Mr D Erasmus, Director: Drafting, Legal Services, Department of Home Affairs (DHA), indicated that DHA was happy with the principle of the redrafting. However, he commented that the redraft did not make mention of the work permits in sub clause 4 (4)(a). He therefore suggested that the drafting could be tightened by amending this sub clause to read "…such person, when applying for a work permit or a business permit, must provide the Director General of Home Affairs with…"
Mr Boshoff confirmed that this suggestion was acceptable, and that the sub clause would include this wording
Mr Nkosi indicated that DFA had no problem, and that all embassies would act as directed by DHA, which was the competent authority.
Clause 5 – Designated areas
Mr Boshoff noted that this clause had been queried by Vodacom and ABSA during the public hearings. In effect, the clause had provided that the Local Organising Committee (LOC) could restrict entry to any area in a site to those in possession of an accreditation card. These areas were fairly broadly defined and could include exclusion zones surrounding or adjacent to stadiums, in which certain commercial activities were restricted
Mr Boshoff suggested that Vodacom’s concerns were addressed by requiring the LOC to consult with the South African Police Service (SAPS) "and all other stakeholders" before designating an area as a designated area. In addition, the wording referred to a designated area "in any site" and different rules could therefore apply to different stadiums. The zones surrounding the stadiums would not be unreasonably determined, and people would not be restricted unnecessarily.
The Chairperson asked to what extent this wording would address the problems raised by ABSA and by members of the Committee during the public hearings.
Mr E Roberts (Head: 2010 FIFA World Cup Initiative, ABSA) said that he would like to reserve his comment until he had heard from the legal representatives of the LOC. He indicated that the zone surrounding the stadium needed to be well defined and that there should be broad consultation with a number of stakeholders. For instance, if there was an ABSA branch or ATM within the precinct, he believed it would be unreasonable to expect members of the public wanting to visit that facility to have to apply for a permit, and equally unreasonable to expect the bank to remove the facility.
Mr Boshoff replied that this clause had been incorporated to allow for inspections by the SAPS and asked what their comment would be.
Mr T Geldenhuys (Assistant Commissioner: SAPS) confirmed that determination of any designated area would be made in consultation with all stakeholders and SAPS would attempt to ensure that there was not unreasonable limitation of the freedom to take part in economic activity. Safety was the primary concern, but SAPS was aware that any unrest or unhappiness on the part of the public could also create a situation that could affect safety. Therefore, as far as SAPS was concerned, facilities such as an ATM should remain, although people would not be permitted to enter the area just to use them, but would have to be ticket-holders.
The Chairperson asked for further clarification on zones.
Mr Geldenhuys reported that zones would be identified by the LOC in consultation with the SAPS National Commissioner, taking into account the needs to ensure safety of people and property. SAPS was not obliged to ensure that all economic activity could take place, but was at the same time aware that unreasonably denying the right to take part in economic activity could create an unrest situation, which would further compromise safety.
Mr B Tolo (Chairperson, Select Committee on Education and Recreation) asked how the designated areas would link in to ambush marketing; for instance enormous billboards could be erected advertising non-sponsors just outside designated areas.
Mr McDonald Netshitenzhe, Director, Department of Trade and Industry (i)) stated that ambush marketing would apply in cases such as fly-over or sky marketing, and DTI would deal with these issues, but was obviously not concerned with the safety aspects. Designating of areas had to take into account a host of issues and the LOC and DTI would consult widely to determine the appropriate size, radius, and effect of the designated areas. Illegal advertising was difficult to prevent entirely, but there was civil recourse if it was done.
The Chairperson asked where these provisions appeared.
Mr Netshitenzhe replied that the Merchandising Marks Act prescribed when and how advertising would be deemed illegal. He pointed out that there were also restrictions prior to the event taking place. A Legal Rights Enforcement Committee would deal with matters as they arose.
The Chairperson asked how the concerns of Vodacom could be addressed in relation to the sale of prepaid cards.
Mr Netshitenzhe replied that the sale would not be allowed as this would be covered by the FIFA perameters, unless the parties who were not official sponsors entered into discussions now to obtain some leeway.
The Chairperson commented that some businesses would have to cease temporarily and asked whether DTI would be involved in negotiations to ensure that this was not done arbitrarily. He asked if it was the intention that anyone having a business in certain areas would have to close it for certain periods.
Mr Netshitenzhe confirmed that this was so, but that all matters would be discussed. Dti had given a guarantee to attempt to prevent ambush marketing. Certain exceptions applied under the trade marks laws. Dti would be able to identify the usual exceptions, and could sit in on negotiations because it would be involved in the enforcement.
Mr Petra Bouwer (Executive Manager, Department of Provincial and Local Government (dplg)) believed that there was confusion on the purpose for which the term "designated area" was used. Clause 5, in his view, restricted access for the purposes of safety and security. Clause 5(1)(a) referred to "…designate any area in a site as a designated area…". In fact this was a restricted area for the purposes of security. Unfortunately the FIFA terminology did not distinguish between different classes of "designated areas". Mr Bouwer therefore proposed firstly that the Committee should consider altering the wording so that those areas clearly intended for restricted access for the purposes of safety (for instance, VIP areas, medical areas, player areas) should be referred to by some other name, such as "security areas", and secondly that a clear distinction be drawn between areas restricted for security purposes, and areas restricted for the purposes of marketing and advertising as contemplated in the guarantees.
Mr Boshoff indicated that there might be some merit in that suggestion but that this would depend on the wording of the declarations by the Minister. If the wording "designated areas" appeared in the guarantees then it could not be changed in the Bill.
Mr Geldenhuys confirmed that the guarantees referred to "designated areas". He believed that there was indeed a distinction to be drawn between the purposes for which areas were designated, but suggested that the definition was wide enough. He pointed out that in order to effectively prevent ambush marketing, there would need to be a restriction of access to that area. He reminded the Committee that the SAPS and the LOC would be consulting widely with all stakeholders and should be able to reach compromises
Mr B Solo (ANC) believed that it was critical not to lose sight of the issues raised in regard to ambush marketing, but that at the same time it would not be acceptable to frustrate businesses, and attempts should be made to accommodate as many as possible.
Mr Bouwer had made a valid point but his concerns could probably be addressed through a properly balanced system.
Mr B Holomisa (UDM) suggested that perhaps Clauses 5 and 6 should be integrated and specific references made to ambush marketing. He thought it likely that the banks would enter agreements with VISA, Mastercard and so on, and that FIFA may have given them some accreditation.
A member asked when the negotiations would start and who would be involved.
The Chairperson replied that whilst the Bill was in the hands of the Portfolio Committee it was for the members to decide on the appropriate wording, and that the purpose of the public hearings was to try to strike a fair balance.
Mr E Mtshali (ANC) believed that South Africa should not prohibit commercial activity in the precincts of the stadiums, and that already South Africa had surrendered some very important principles to FIFA. He believed that some of the provisos were unacceptable.
Ms M Nduli (ANC) asked what FIFA had prescribed, and whether the needs of the people had been considered properly. For instance, several Spaza shops bore a Coca-cola emblem and it was surely unreasonable that they could not continue in business.
The Chairperson confirmed that a designated area was clearly intended to be one restricted for reasons of security. There would be areas, within a certain radius of the stadium, where other activities could take place, and it was clear that people would be able to conduct business, such as selling T-shirts or emblems, provided that they had a permit. FIFA did not prohibit any business of any nature. It was unfortunate that FIFA had been unable to attend the meeting today, but was expected to be present on 25 July.
Mr Bouwer stated that this whole debate merely illustrated the confusion that was caused by the present wording. He renewed his proposal for different terminology to be used. He also stated that Clause 8 provided for search and seizure in respect of those intending to enter the designated areas. Once again, that must relate to security areas, otherwise the entire stadium and all surrounding areas would be designated. He therefore suggested that clauses 5 and 6 should be incorporated as one clause dealing with security restricted areas, where access would be limited only to those with a ticket to enter the restricted area.
The Chairperson asked Mr Boshoff to consider this proposal and to revert shortly.
The Chairperson then asked Mr Netshitenzhe to comment on this proposal.
Mr Netshitenzhe commented that many people during the public hearings were not sure that there would still be leeway for negotiation. He suggested that there were still loopholes in the city/stadium agreements that needed further discussion and clarification. He suggested that the LOC, when consulting with stakeholders, should also negotiate with the stakeholders to the host city and stadium agreements. In so far as the names of sponsors were concerned, he commented that past history would have to be taken into account, such as the fact that a few years ago Pepsi were unable to establish themselves in South Africa because of Coca-Cola’s ownership of certain areas. If a new stadium was built within close proximity of the Absa Stadium, the Absa Stadium would be obliged to obscure its logos in some way that would form the subject of negotiation. This forum could not be used to renegotiate business opportunities but any negotiations could still take place at appropriate times and places. In regard to selling in vicinities around stadiums, it was intended that people would be permitted to sell, provided the proper channels were followed and they did not infringe the trade marks or brands of the sponsors. If it was claimed that there were areas that were in conflict with the Constitution, then a forum should be created for proper negotiation to take place. Ambush marketing would be dealt with in the same way and if certain zones needed to be declared as "no-fly" zones this could be done. SAPS would have the responsibility of providing inspectors to enforce the Intellectual Property legislation.
The Chairperson stated that the problem was that virtually none of the Municipalities understood exactly what they were signing; only two or three had not signed until they had had further consultations. Parliament needed to assist them, whilst also giving effect to the enabling legislation for FIFA to host the World Cup, but did not intend to amend other legislation also for this purpose. The intention was to create the best possible climate in which all applicable legislation could be incorporated and enforced.
Mr M Parker (Legal Advisor, LOC) clarified that he was present to represent the Local Organising Committee, and not FIFA. He had noted the comments made on the designated areas and agreed that they were intended to be safety zones. However the draft was probably not as onerous as it seemed, because FIFA and LOC and SAPS were obliged to consult with each other as well as with other stakeholders. FIFA would not be able to make a decision alone and would not be able to dictate. The commercial activities in the area would be disrupted only on match day, and they would not necessarily be obliged to close; perhaps the Spaza stores would be required to cover up the Coca-Cola logos. The decisions in respect of each stadium would be discussed and made in conjunction with the host city and would be appropriate to the city, so that any disruption would be limited as far as possible
The Chairman enquired whether the host city agreements and the stadium agreements spelt out the radius and distances of the zones.
Mr Parker replied that a process had been put in place to set the radius but it would vary from one stadium to the next, depending on local conditions.
Mr Chauke (Chairman, Home Affairs Portfolio Committee) believed that the host city agreements and stadium agreements would be tabled before the Committee, as he believed they were critical to the final discussions on the Bills and in order to assist the Committee in ensuring that local businesses were not overshadowed by foreign businesses at the time.
The Chairperson reported that his Committee was determined to ensure that BEE compliance and development would not be compromised. There were various levels of sponsorship that would enable different people to play a role.
General B Holomisa wondered whether it would not be wise to insert another paragraph in the Preamble to the effect that although certain guarantees had been given there would be a proper balance struck between the interests of FIFA and those of South African people. This could be further clarified in the regulations.
Mr Boshoff undertook to look into that issue.
Mr Netshitenzhe indicated that DTI had already advised on BEE issues and had negotiated with LOC that 30% of the budget of approximately R3 billion would be allocated to DTI to assist with establishment of small businesses. Some institutions had already offered to compile databases but DTI needed to respond taking all needs into account. Dti was concerned that those wishing to set up businesses in areas around the stadiums would have to be well-informed and would obviously oversee negotiations around the LOC, host cities and stadium agreements.
Mr Parker added that LOC had already agreed that the budget would not be financed by the South African taxpayer and there were ongoing discussions in regard to the budget. LOC would apply government-approved procurement policies in regard to its service providers. Other services were the responsibility of Government, or of FIFA commercial affiliates. The level of promotional activity was huge and represented a tremendous opportunity for South African entrepreneurs.
Mr Chauke also requested that the agreement in regard to the 30% share be tabled to the Committee. After passing the Bill, the LOC and all other interested parties should be asked to report back to the Committee on a regular basis, to enable the Committee to exercise its oversight and ensure that all South Africans stood to benefit.
Mr Chauke was supported by a representative of the Provincial sports department in Gauteng, who added that it was a pity that none of the major sporting events were held in the townships where there was a genuine passion for the sport.
Mr Boshoff reported back to the Committee that he had considered the proposals made earlier for the combining of Clauses 5 and 6, and concluded that they should not be combined. In his view, the host city agreements must be read together with this legislation, and, although he accepted that this was an omission in the current draft, this could be corrected. The host city agreements contained a definition already of an exclusion zone. This was referred to in the current Bill, Clause 5(1)(b)(iv). It was clear that a designated area required access cards. The host city agreement required further that certain facilities within exclusion zones would have to refrain from operating on match days, unless they had agreed with FIFA in advance that they could operate, and were therefore in possession of the necessary licences or permits. He believed that the two provisions read together already were sufficient and did not cause unnecessary harm or inconvenience. He agreed, however, that the clause would be amended to include reference to the host city agreement.
Mr Bouwer indicated again that his main cause for concern was the differing purposes for which the term "designated area" was used, but if it was clearly understood that certain areas were demarcated for safety purposes then this would go some way to reduce the confusion.
Ms Nduli asked whether the Committee would have sight of the host city agreements.
The Chairperson stated that the Committee could request them but some city agreements had contained confidentiality clauses. He would check what could be obtained and revert to the members.
Clause 6 – Access control measures
Mr Boshoff continued with his analysis of the current draft. Clause 6 related to access control. Clause 6(2) stated that a peace officer "may" request a person to produce an accreditation card, and "may" refuse permission, or remove a person. He queried whether this should not be amended to "must", since this clause was concerned with areas where safety was at stake.
Mr Geldenhuys wished firstly to add that the SAPS would also be included in any decision making on the determination of designated areas. Secondly, in regard to the wording of this clause, he stated that this was a standard form of wording, as it was not intended to make a person exercising his discretion guilty of an offence if he failed to request an accreditation card.
Mr M Mmuge (Assistant Commissioner, SAPS) added that the clause did allow for two sets of scenarios, one in which accreditation cards were requested on entry, and another in which they could be requested of people already admitted to the area.
Mr Boshoff was concerned that the current wording was inconsistent with the remainder of the Bill, and pointed out that "may" had been changed to "must" in clause 7.
The Chairperson asked Mr Boshoff to try to ensure consistency in the wording, and to make the two different circumstances quite clear.
Clause 7 – Traffic-free zones
Mr Boshoff reported that Clause 7(2) and Clause 7(3) had been amended to provide that a peace officer "must" refuse permission for driving, instead of "may refuse permission". This change had been effected because clearly the authority to enter must be displayed. Previous stadium disasters had been worsened by the fact that vehicles had blocked escape routes and it was imperative that there be traffic-free safety zones.
Clause 8 – Search and seizure
Mr Boshoff pointed out that this clause was applicable to those who intended to enter a designated area and permitted a search just outside the designated area. This clause had been endorsed in principle and did not contain any new wording.
Clause 9 – Regulations
Mr Boshoff reported that there had been some disquiet expressed by both Absa and Vodacom in regard to consultation before regulation. The clause referred to the Minister of Sport and the Minister of Safety and Security; only these two Ministers were competent to make regulations under this Bill. A new subsection 9(4) had now been added to require the relevant Minister to publish a draft of the proposed regulations calling on interested persons to comment within 30 days. The new subsection 9(5) provided that if the draft regulations were then amended following the comment, they need not be published again for comment. It was felt that Vodacom’s request that the Minister must consult with all stakeholders would be problematic and could delay the promulgation, particularly if someone were to dispute that they should have been consulted. The current draft therefore struck a better balance. The current draft would be changed to provide that the publication would need to be in the Government Gazette and the national media.
The Chairperson inquired whether the Committee would also be given a copy of the regulations, and Mr Boshoff agreed that this could be done.
Mr Chauke suggested that this provision should also appear in the Bill.
Mr Geldenhuys stated that the Interpretation Act already required a Department to table all regulations in Parliament.
The Chairperson commented that the final amendments to the wording of , following the meeting, would be effected and the new draft would be debated on the following day, 25 July.
Second 2010 FIFA World Cup South Africa Special Measures Bill [B16-2006]
The session was attended by representatives off the Department of Local Government (DoLG), the South African Police Force (SAPs), the Department of Foreign Affairs(DoFA), the Department of Labour (DoL), the Department of Agriculture (DoA), the Department of Home Affairs(DHA) and the Department of Trade and Industry (DTI).
Mr G Boshoff highlighted the proposed amendments to this Bill (see Working Draft).
The definitions in Clause 1 had been amended, in order to accommodate the proposed amendments to the body of the Bill.
Mr Boshoff explained that this clause would be retained, except that the text "but no later than six months" would be inserted. He believed this would add more precision about the time period for which the Minister of Trade and Industry could declare the World Cup a protected event.
The Committee took no issue with the proposed amendment.
Mr Boshoff explained that the Department of Trade and Industry had proposed deleting Clause 3 in its entirety. This was because the marketing, distribution, consumption and advertisement of liquor were adequately dealt with by existing legislation. He commented that the DTI had provided an extensive submission on this.
Mr Tolo (ANC) stressed that the LOC needed to understand that when liquor came into the country, it would be subjected to tests by DoA. It must be understand liquor imports would be subjected to the normal scrutiny of the Department, on the basis of sugar level etc.
Mr Reid (ANC) sought clarity as he had been under the impression that Budweiser (the official FIFA liquor sponsor) was already being sold in South Africa.
The Chair explained that if a liquor company was currently importing or producing products in South Africa, it would already be subjected to testing by the DoA. This would not change for the FIFA World Cup period.
Mr Netshitenzhe (DTI) confirmed that currently all liquor companies operating in the country would be in receipt of a licence, which meant their product had already been subjected to testing. The guarantees made to FIFA had not been to suspend such national policy - that had never been the intention.
Ms Wendy Jonker (DoA) explained that the DoA exercised an efficient system of pre-approval that assured the process did not act as stumbling block, which would frustrate business.
Mr Tolo noted that the DTI had consistently raised the issue that two provinces had jurisdiction over issuing their own liquor licences. He questioned whether the relevant legislation in these provinces had been amended to give affect to FIFA’s demands. He was concerned that if Clause 3 was removed there would then exist no mechanism of ensuring those provinces complied with the FIFA guarantees.
The Chair also raised concern that removing the clause would mean there would be no further regulation to ensure compliance with the promised guarantees. He commented that nothing should be left to chance.
Mr Netshitenzhe believed that issues of provincial compliance could best be dealt with at the liquor policy council level, which would be the appropriate forum for assuring the department's guarantees were delivered on.
The Chair believed that the Committee, in general, was of the opinion that the clause should be removed.
Mr Tolo still felt concerned that removal of clause could leave a legislative gap with regard to the two provinces who held their own jurisdiction over issuing liquor licences.
Mr Netshitenzhe repeated the DTI’s appeal that the clause should be suspended. He commented that the Committee could issue a separate directive on the matter, but in regard to the Bill, it was absolutely necessary that the clause be removed.
Mr Mkono, (ANC) commented that he had been convinced by the DTI’s arguments. If Clause 3 was kept in the Bill, it would limit the ability to deliver on the national objectives such as ensuring Small, Medium and Micro- Sized enterprises (SMMEs) benefited from the event and that Broad Based Black Economic Empowerment (BBBEE) policies were delivered upon.
The Chair stated that although various concerns had been noted, there was general consensus in favour of the removal of the clause.
Mr Boshoff explained that this amendment had been proposed by the Department of Health and was aimed at aligning the Bill with existing health legislation. In effect the alteration meant that it would be the relevant statutory Health Council, instead of the Minister of Health, that would be responsible for the accreditation of foreign medical contingents, medicines and scheduled substances.
Dr Joe Phaahla (Head of the Local Organising Committee) explained why the proposed clause was necessary. There would be 33 national teams coming into the country, each bringing their own medical contingent. Each medical contingent would bring different medicinal substances, as permitted in their home countries. The clause stemmed from the idea that there needed to be a system of control for permitting - yet monitoring - unlicensed substances coming into South Africa. The SA Medicines Control Council would be able to use its discretion to permit teams to bring in substances subject to certain conditions. Control measures would be such that substances could not be sold or distributed to the general public.
Mr Luyanda Mpahlwa (LOC) explained that as far as FIFA was concerned they had awarded South Africa the World Cup on the back of the ministerial guarantees. It was their understanding that the buck rested firmly in the hands of the Minister. He felt It would be contradictory if the Bill now stipulated that the Health Professional Council were responsible for the delivery of such a guarantee. He reiterated that the Guarantees made to FIFA had been signed by the each Minister respectively.
The Chair said the arguments raised by Mr Mpahlwa were convincing. The debate was around who held final responsibility. If it were that the Minister should hold such responsibility, he would of course be able to delegate the function. A compromise would be to amend the text to read "the Minister after consultation with the Medical Health Professional Council".
Mr Mkono conferred with Mr Mpahlwa that the Bill had been drafted correctly originally, the final buck did indeed lie with Minister. There needed to be alignment between the mechanism by which the guarantees were being delivered by all the relevant departments, across the board.
Mr Holomisa (UDM) believed that in terms of consultation, because the Bill had been tagged as a section 76 Bill, the Committee should insist that the Minister communicates with his provincial counterparts, especially with regard to the two provinces who have jurisdiction over their own liquor licences.
Mr C Malivhadza (Legal adviser, Department of Health) counteracted the comments from the LOC by reminding the Committee that the DoH guarantee itself, had made specific reference to the Medical Health Professional Council, therefore he maintained it was necessary to adopted the proposed amendment.
Mr Boshoff believed the fact that the Guarantee had contained a specific reference to the Health Medical Professional Council had put to bed many of his concerns. However he commented that throughout the total structure of the Bill, all the others, the Ministries had been named as holding responsibilities. The Bill talked about the Minister of Sport, the Minister of Trade and Industry, the Minister of Home Affairs. As government was taking responsibility for delivery of all of the other Guarantees, for the sake of consistency it might be wise to reinsert the Minister followed by the text "after consultation with Medicine Health Professional Council." He reminded the Committee that the Bills should, however, more or less dovetail with the current legislation.
The Chair conferred with Mr Boshoff that it would indeed be consistent to say it was the Minister. A compromise could indeed be, to say "after consultation with the Medicine Health Professionals Council". In this way the Committee could assure satisfactory fulfillment of the guarantees as understood by all relevant bodies, as well as maintaining consistency.
Adv D Erasmus (Director: Legal Services, Department of Home Affairs) believed it was crucial that the Committee looked in detail at Section Two of the Medicines and Related substances Act 101 of 1965. He questioned whether the Act dictated that applications for accreditation of health professionals and substances went to the Medical Health Professional council. He was sure that such Council would have report to the Minister, who would actually sign off such an application. He felt it was crucial to look specifically at the text from Section Two of that Act.
He believed the matter boiled down to what powers the Medical Health Professionals Council currently enjoyed. Did they only act in an advisory capacity, or were they a fully independent body? He felt the Committee really needed to review these facts before they could make an informed decision on Clause 3 of the Bill.
He felt the precise wording of that Act needed to be looked at and could be included in the Bill. If the Committee then decided so, the Committee could insert "the Minister of Health after consultation with" or "the Minister of Health in consultation with". He stressed that the Committee needed the exact wording that Act used as there was a significant legal difference between the two.
Mr H Lamoer (Divisional Commissioner; SAPS) believed that the Committee needed ask why the clause was necessary. He could only foresee two such reasons the clause should even be included. Either Members wanted to create a decision making power that was functionally different from the current position. Or Members wanted to fast track the processes. He explained that from a drafting point of view you would only include such a clause if you sought to deviate from the existing legislation. It did not matter what decision was made, whether the Minister or the Medicines Council held these discretionary power, he was of the persuasion that including Clause Four would constitute poor legislating.
The Chair commented that by its very nature the Bill sought to deviate from the Medicines and Related Substances Act, to enable unlicensed substances and medical professionals to be utilised.
Mr Tolo felt that with caution the original amendment should be maintained with the insertion of "after consultation with the Medicines Health Professionals Council", to cover the Committee.
The Chair requested that during the tea break all the legal advisers should meet to try and find a consensus on the matter.
The Chair believed the various legal advisers had reached a consensus and had a revised proposal the Committee might find acceptable, he invited Mr Boshoff to explain their proposal.
Mr Boshoff explained that the proposal still needed some thought regarding the exact wording, but would sound something like the following:
New Clause (3) 1, A, Not withstanding any other relevant applicable law, the Minister of Health may after consultation with the relevant statuary Health Professional Council accredit every member of a foreign medical contingent to render health services, if the Minister of Health receives an application by FIFA for such accreditation.
New Clause (3) 3, A, Not withstanding any other relevant applicable law, the Minister of Health may after consultation with the relevant statutory Health Professional Council, approve in writing all medicines and medical devices that may be used by an accredited foreign medical contingent, if the Minister of Health receives a written request for such use by FIFA on behalf of an accredited foreign medical contingent.
He explained that they had decided to remove the words "scheduled substances" because as Members would note, there had been no definition of this contained in the Bill, and would therefore be open to confusion.
He hoped the revised proposals would address the concerns raised at the Meeting.
Mr Netshitenzhe sought clarity on whether the amendments would affect the fast-tracking of the Bill.
The Chair did not believe that tracking would be affected. The Committee had reached a broad consensus, that they should at present stick with the legal advisers revised proposals.
Clause 5 and 6
Mr Boshoff explained that these amendments were only minor non-substantive cosmetic amendments and these were accepted by the Committee.
Mr Boshoff pointed out that there was an error contained in the working document. The text, “ in consultation with the Minister of Trade and Industry, The Minister for Agriculture and Land Affairs or The Minister of Health, as the case May be” was not meant to have been deleted.
Mr Boshoff explained that this amendment dealt with a similar issue to one that had been covered in the morning session in the Section 75 Bill under clause 9, dealing with the making of regulations.
The amendment would be the deletion of Clause 7(1)(b) because this text had bearing on Clause 3, which the Committee had decided to remove .Clauses 7(2) and (3) would be inserted to deal with Vodacom and ABSA’s concerns regarding adequate consultation before the implementation of any further regulatory measures.
There were no further comments by the Committee and the meeting was adjourned.
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