Draft Tourism Bill, 2011

The South African Department of Tourism published for comment a draft Tourism Bill, 2011. The provisions of the Bill are divided into chapters dealing with: interpretation, objects and application (ss 1-3); the national tourism sector strategy, norms and standards as well as codes of good practice (ss 4-8); a national quality assurance strategy and grading system (s 9); the South African Tourism Board (ss 10-28); tourism protection (ss 29-31); tourist guides (ss 32-42); as well as general provisions (ss 43-48) and transitional provisions (schedule 1).

I submitted the following comments:

1. Long title:

The long title refers to “the enjoyment of all its citizens and foreign visitors”. The term “citizens” is arguably too narrow in the light of the definition of “tourism” in s 1(l) where the words “South African residents” are used. It is suggested that the long title be amended accordingly.

 

2. Arrangement of sections:

It is suggested that ss 43-48 also be included.

 

3. Cross-references:

It is suggested that cross-references be checked to correct inaccuracies. For instance, there is a reference in the definition of the term “Board”, in s 1(a), to “section 8” although the latter provides for codes of good practice for tourism.

 

4. Definition of “this Act” (s 1(k)):

It is suggested that the definition of the term “this Act” contain a reference to s 7, with regard to “the norms and standards” and s 45, with regard to “regulations”.

 

5. Definition of “tourism” (s 1(l)):

The definition of the term “tourism” in the 1996 Tourism White Paper included a requirement of at least one night being spent away from home. No such requirement appears in s 1(l). Is this change of approach deliberate?

 

6. Definition of “Republic” (s 1):

In order to avoid any uncertainty with regard to whether the Act applies to activities in the marine component of the South African territory, it is suggested that the term “Republic” be defined in the Act and that the definition include the terms “internal waters” and “territorial waters” (see further P Vrancken “The marine component of the South African territory” (2010) 127 SALJ 207-223).

 

7. Definition of “scheme” (s 1):

It is suggested that the term “scheme”, the meaning of which is not readily clear which is used for instance in ss 9(2)(a), 9(3), 9(4) and 30, be defined in the Act.

 

8. Punctuation:

It is suggested that the punctuation be checked to correct inaccuracies. For instance, the semicolon at the end of s 1(n) should be a full stop.

 

9. Objects of the Act (s 2(a)):

It is suggested that s 2(a) be amended to take into account (i) the submission in paragraph 1 above as well as (ii) the fact that the words “social, economic and environmental” appear in the long title.

 

10. Extent to which organs of State are bound by the Act (s 3(3)):

Section 3(3) is problematical as it stands to the extent that it may be read as providing that organs of State “in the national and local spheres of government” are bound by the Act irrespective of s 146 of the Constitution. This would not be in conformity with the Constitution. As stated in s 3(2)(b) of the Act, a conflict between a section of the Act and provincial legislation must be resolved in terms of s 146 of the Constitution. Should the provincial legislation prevail, the relevant provision(s) of the Act are inoperative in terms of s 149 of the Constitution. As a result, organs of State in all three spheres of government are not bound by the provision(s).

 

11. National Tourism Sector Strategy (s 4(2)):

It is suggested that the term “Minister” be replaced by the term “Department” in s 4(2).

 

12. National Tourism Sector Strategy (s 4(3)(b)):

It is unclear why s 4(3)(b) provides for a maximum period. It is indeed unclear why Parliament would want to prevent the Minister from inviting written representations for a longer period than 60 days if he or she deems it appropriate. By contrast, it is easy to see why Parliament would (should) provide for a minimum period in order to ensure that effect is given to the values of “responsiveness and openness” entrenched in s 1(d) of the Constitution. Moreover, such a minimum period is provided for in s 14(5) of the Act and it is unclear why a distinction is made between that provision and s 4(3)(b). See further s 39(1)(c).

 

13. National Tourism Sector Strategy (s 4(3)(c)):

13.1. It is suggested that the wording of s 4(3)(c) be amended to reflect the fact that the steps referred to in that provision are in addition to those provided for in s 4(3)(a) and (b).

13.2. The basis for the distinction between the general wording of s 4(3)(c) and the more specific wording of s 7(2)(a) is not clear.

13.3. The basis for the distinction between the phrase “an organ of state and any institution established by government to exercise tourism functions” in s 4(5) and the phrase “organs of state and any institution responsible for developing and managing tourism” in s 5(2)(c) is not clear. Moreover, the distinction in s 4(5) between “an organ of state”, on the one hand, and an “institution established by government to exercise tourism functions”, on the other hand, is also not clear. In terms of s 239 of the Constitution, the term “organ of state” includes any institution “exercising a public power or performing a public function in terms of any legislation”. Tourism functions are undoubtedly public functions (Schedule 4 Part A of the Constitution). This means that an “institution established by government to exercise tourism functions” in terms of legislation is an organ of state (and there is then no need to distinguish in s 4(5) such an institution from other organs of state). It follows that an “institution established by government to exercise tourism functions” would only not qualify as an organ of state (and there it would be necessary to distinguish in s 4(5) such an institution from other organs of state) if it does not exercise those functions in terms of legislation. The question then arises as to the basis for the exercise of the functions and whether the establishment of such an institution conforms to the principle of legality (see Fedsure Life Insurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 1 SA 374 CC, 1998 12 BCLR 1458 CC at 58).

 

14. Information by tourism businesses (s 6):

14.1. It is suggested that the title of the section be amended to make the direction of the flow of information clearer.

14.2. There is no subsection 3.

14.3. The distinction between the term “tourism businesses” (used in the title of the section as well as s 6(1), (2) and (6)) and “tourism services and facilities” (used in s 6(4)) is unclear.

 

15. Norms and standards for tourism (s 7):

15.1. In the light of the fact that responsible tourism mentioned in s 7(1)(a)(i) is an object of the Act (see s 2(a)), it is suggested that s 7(1)(a)(iii) be amended to reflect the fact that the objects referred to in that provision are objects other than the one mentioned in s 7(1)(a)(i). Compare also s 7(1)(a)(ii) and s 2(c).

15.2. With regard to s 7(2)(b), see comment in paragraph 12 above.

15.3. With regard to s 7(3), it is unclear why the provision does not also mention the institutions established by government to exercise tourism functions, which are mentioned in s 4(5). See further paragraph 13.3 above.

15.4. With regard to s 7(4), it is unclear why the details contained in s 7(2) with regard to national norms and standards are not replicated with regard to provincial norms and standards.

 

16. National Quality Assurance Strategy and Grading System (s 9):

16.1. It is suggested that s 9(2)(b) and (c) be amended to remove the apparent duplication / contradiction between the two paragraphs.

16.2. Section 9(7) provides for the delegation of oversight of the Tourism Grading Council of South Africa, but the Act does not indicate expressly who exercises that oversight when no delegation has taken place. It is suggested that s 9(6) or s 9(7) be amended to address this issue.

 

17. Composition of Board (s 14(4)(b)):

Section 14(4) starts by stating “Before appointing the members of the Board”, but s 14(4)(b) states “publish the names of persons appointed as members of the Board” (emphasis added). It is suggested that this problem be addressed.

 

18. Term of office of members of Board (s 15(3)):

The reference to s 15(2) in s 15(3) is not accurate. There is indeed no conflict between s 15(2) and s 15(3). The reason is that s 15(3) deals with the length of the period of office while s 15(2) deals with the position after the period of office has expired, irrespective of whether that period was three years (s 15(1)) or longer (s 15(3)). For the above reason, it is suggested that s 15(3) be amended and that s 15(3) become s 15(2) while s 15(2) become s 15(3).

 

19. Disqualification from membership of Board (s 16(1)(d)-(e)):

It is suggested that s 16(1)(d)-(e) be amended to make those provisions clearer, possibly by making use of sub-paragraphs.

 

20. Board meetings (s 19):

19.1. With regard to s 19(3), the words “those matters” are unclear. The word “matter” is not used earlier in s 19 and is not synonymous to “reason” used earlier in s 19(3). Indeed, the reason for requesting a meeting is not necessarily the matter to be discussed at the meeting.

19.2. A quorum is a minimum number of members of a body whose presence is required for that body to be competent to perform its functions. The wording of s 19(6) is therefore problematical to the extent that the provision may be interpreted as meaning that a quorum is a majority of the members present instead of a majority of the members of the Board.

 

21. Appointment of Chief Executive Officer (s 25(3)):

It is suggested that s 25(3) be amended in such a way as to make it clear that the policy referred to in that provision is the policy determined by the Board in terms of s 28(1), if that is indeed the case.

 

22. Resignation and dismissal of Chief Executive Officer (s 27):

22.1. It is suggested that s 27(2) be amended in such a way as to make it clear that the contract of employment referred to in that provision is the contract to be concluded in terms of s 26(1), in contrast to the performance agreement referred to in s 26(2)-(3).

22.2. It is suggested that s 27(4)(b) be amended in such a way as to make it clear that the policy referred to in that provision is the policy determined by the Board in terms of s 28(1), if that is indeed the case. See also the comment in paragraph 21 above.

 

23. Tourism Protection (chapter 5):

It is suggested that the terms “tourist protection” and “tourist protector” be used in chapter 5 instead of the terms “tourism protection” and “tourism protector” in view of the fact that it is not tourism as such that is protected, but the tourists. This is confirmed by the use of the term “tourist complaint” (and not “tourism complaint”) in s 30(1) and 31(1), for instance.

 

24. Appointment of Tourism Protector (s 29):

It is unclear why the term “appointment” appears in the title of s 29, but the term “designate” is used in the provision itself. It is unclear also why a distinction is made in this regard between s 29 and s 32(1).

 

25. Accreditation of scheme (s 30):

25.1. It is unclear why a process such as the one spelled out in s 7(2) should not also be prescribed in the case of s 30(2)(b). See further paragraph 13.2 above.

25.2. Section 30(2)(d) is problematical to the extent that it appears to require that the Minister make revisions even though it is possible that no comments are received or the comments received do not suggest or require any revisions.

25.3. It is suggested that s 30(3)(b) be amended to make it easier to identify the purpose and policies referred to.

25.4. The purpose of the word “reasonably” in s 30(5)(b) is unclear.

 

26. Powers and functions of the Tourism Protector (s 31(1)):

It is suggested that s 31(1) be amended in such a way as to make it clear whether one of the options of the Tourism Protector is not to refer a complaint to any of the body referred to in s 31(1)(a)-(e).

 

27. Provincial Registrars of Tourist Guides (s 33):

27.1. It is unclear why a process such as the one spelled out in s 7(2) should not also be prescribed in the case of s 33(2)(b). See further paragraph 13.2 and 25.1 above.

27.2. It is suggested that s 33(3) should more appropriately be part of s 34.

 

28. Procedure relating to registration of tourist guides (s 34):

28.1. Is the intention of s 34(1) to allow a tourist guide to register wherever he or she wants, ie even in a province where the tourist guide does work and has no intention to work in the future?

28.2. It is unclear why s 34(3)(a) and (b) are worded in the present tense while s 34(3)(c) is worded in the past tense.

28.3. It is unclear why s 34(3) does not contain a provision equivalent to s 16(2) with regard to s 34(3)(a).

28.4. It is unclear which “paragraphs (b) and (c)” s 34(9) is referring to.

28.5. It is unclear which “paragraph (a)” s 34(10) is referring to.

28.6. It is unclear which “paragraph (b)” s 34(11) is referring to.

 

29. Code of conduct and ethics (s 36(2)):

It is suggested that the term “acceptable standard” in s 36(2) is too vague and that it would be appropriate to establish a relationship between that provision and s 7(1).

 

30. Complaints (s 37):

30.1. Is the intention of s 37(1) to allow a person to lodge a complaint with any provincial registrar, ie even if the complaint relates to facts that have no relationship with the province concerned?

30.2. It is suggested that s 37(2) be amended to remove the expectation that a registrar make a finding as to whether the complaint discloses an offence, a finding that a registrar is not in a position to make.

30.3. It is unclear whether s 37(3) applies only in the case of a complaint, as the title of s 37 as well as s 37(1) seem to suggest.

30.4. It is unclear whether s 37(2) applies only in the case of s 37(1) and s 37(5) in the case of s 37(4).

30.5. It is suggested that s 37(5) be amended to remove the expectation that a registrar make a finding as to whether the complaint discloses an offence, a finding that a registrar is not in a position to make.

30.6. It is unclear why a distinction is made between s 37(1)-(2) on the one hand and s 37(6)-(7) on the other hand. See further paragraph 30.2 above.

30.7. It is unclear why s 37(1)-(3) are distinguished from the other provisions of s 37 in s 37(8).

 

31. Prohibitions (s 41(4)):

31.1. Is the intention of s 41(4) to forbid driving the vehicle concerned irrespective of whether the said vehicle actually carries more than 10 persons at the time when the tourist guide acts as such?

31.2. See paragraph 31.1 with regard to s 41(5).

 

32. Offences and penalties (s 43(1)(e)):

It is suggested that s 43(1)(e) be amended to make it clear that the knowledge required does not relate to making or assisting in providing information but rather to the fact that the said information contains an untrue statement of a material fact.

 

33. Delegation of powers and functions (s 44(4)):

It is suggested that s 44(4) be amended in such a way as to remove the reference to s 44(2), which actually forbids any delegation.

 

34. Regulations (s 45):

34.1. It is suggested that s 45(1)(a) be amended to clarify what the words “in the areas” are referring to.

34.2. It is suggested that s 45(1)(a) be amended to clarify that the words “with regard to” also apply to s 45(1)(b)-(d).

34.3. It is suggested that s 45(1)(d) be amended to make it clear that the matters referred to in that provision are all matters not already mentioned in s 45(1)(a)-(c).

 

35. Grading and classification schemes (item 2(2) of Schedule 1):

It is suggested that item 2(2) of Schedule 1 be amended to make it clearer.

 

36. Regulations under Tourism Act 72 of 1993 (item 3 of Schedule 1):

It is suggested that item 3 of Schedule 1 be amended to reflect the fact that the provision should not refer to s 40, which deals with appeals and reviews.

The Maritime Zones in the South African Interpretation Act

The Interpretation Act, 1957 (Act 33 of 1957) does not contain any reference to the South African maritime zones. This is one of the reasons why there remains a degree of uncertainty in domestic law with regard to the extent of the marine component of the South African territory (see P Vrancken “The marine component of the South African territory” (2010) 127 South African Law Journal 207-223).

In 2006, the South African Law Reform Commission (SALRC) published its discussion paper 112 entitled: “Statutory Revision: Review of the Interpretation Act 33 of 1957 (Project 25)”. The draft Bill submitted by the SALRC contains in s 25(1) a number of general definitions for words and expressions. Those words and expressions were selected on the ground that they are “often used in legislation” (par 36). They include the terms “continental shelf”, “exclusive economic zone” and “territorial waters”. All three terms are defined as having “the meaning assigned to [them] in the Maritime Zones Act, 1994 (Act No. 15 of 1994)” (MZA). However, the latter also provides for three additional maritime zones which are not mentioned in the draft Bill: the internal waters (s 3 MZA), the contiguous zone (s 5 MZA) and the maritime cultural zone (s 6 MZA). As suggested in par 36 of the discussion paper, the reason why the last-mentioned three zones are not included in s 25(1) of the draft Bill could be that the authors of the discussion paper decided that those zones were not often used in legislation. But it is not impossible that one or more of those zones, especially the internal waters, might in fact have been overlooked. This is suggested by the proposed definition of the term “the Republic”, which is defined in the draft Bill as meaning, when referred to as a geographic area: “the territory of the Republic of South Africa, including its territorial waters and the airspace above its territory and territorial waters”.

This definition is problematical in two respects. Firstly, the word “territory” is used in two obviously different senses: in the broader sense (when used the first time in the provision), the word refers to an area which includes the territorial waters and the airspace; in the narrow sense (when used the second time in the provision), the word refers to an area which does not include the territorial waters and the airspace. The second problem arises from the lack of reference to the internal waters, ie the waters landward of the baselines (s 3(1) MZA) or, in other words, the waters between the land territory and the territorial waters. As a result, it is open to question whether the term “territory” used in the narrow sense includes the internal waters (the kind of uncertainty that the draft Bill would be expected to avoid). If “territory” in the narrow sense does not include the internal waters, it would be more accurate to use the term “land territory”. It would also mean that neither the internal waters nor the airspace above the internal waters are part of the territory in the broad sense. While it is difficult to find a reason for such exclusion, it is also difficult to find a reason why a distinction is made between internal waters, on the one hand, and territorial waters, on the other hand, by mentioning only the latter in the definition.

The two problems would be easily resolved, and the definition tidied up, by amending it as follows: “the territory of the Republic of South Africa, including its internal waters and territorial waters [and] as well as the airspace above its land territory, internal waters and territorial waters”. In addition, the term “internal waters” being now used in the draft Bill, it would have to be defined in s 25(1) as follows: ““internal waters” has the meaning assigned to it in the Maritime Zones Act, 1994 (Act No. 15 of 1994)”.

South African Cruise Tourism Study (2010)

In November 2010, the South African Department of Tourism released a study entitled: “South African Cruise Tourism: Prospects, Benefits and Strategies” (SACT), which provides an overview of the prospects and benefits of the cruise tourism industry for South Africa and the southern African region.

The legal aspects are discussed in chapter 5, which is entitled: “Environmental Impacts and Benefits to South Africa”, under section 5.3: “Key Legislation and Policy” (pp 90-105). As this context would suggest, the focus is on environmental law. The study acknowledges that “other spheres of legislative and policy requirements might apply” and that the list compiled in the study “is not intended to be definitive or exhaustive” (p 90). Indeed, tourism legislation, consumer protection legislation and many pieces of shipping legislation, for instance, are not covered.

Nevertheless, the law section of the study offers a good introduction to the legal complexities of marine tourism and makes, in my opinion, another compelling case for taking seriously those aspects of our legal system. In doing so, one might want, for instance, to take note that the Maritime Zones Act, 1994 (Act 15 of 1994) also provides for internal waters (which are not mentioned in the study [p 90]). One might also want to take note of the fact that (i) South Africa is not a “subscriber” to the 1982 UN Convention on the Law of the Sea (the term has no legal meaning in this case); (ii) South Africa is not only a “signatory” to SOLAS, but a Party to it; and (iii) South Africa is not only “morally bound” to abide by those instruments, but legally bound to do so (p 90).

One of the purposes of my monograph on the law of the sea, to be published later this year, is to be of assistance in projects suchh as the detailed legislative review which the SACT recommends. One must agree wholeheartedly with the fact that such a review would need to include inter alia (i) the relevant conventions to which South Africa is bound; (ii) ascertaining “the level of adherence and compliance by operators (and monitoring by the relevant roleplayers)” in order to determine the effectiveness of the relevant legislation and conventions; and (iii) suggestions with a view to “adopting/changing legislation where necessary” (p 115).

South African National Tourism Sector Strategy (2011)

In March, the South African Cabinet approved the country’s National Tourism Sector Strategy (NTSS) to inspire and accelerate the responsible growth of the tourism industry from 2010 to 2020. The NTSS was adopted at a time when the tourism industry in South Africa is much greater than it was at the time of the country’s first democratic elections in 1994. Indeed, the tourism sector contributes today about 3% of South Africa’s GDP and provides approximately 4,4% of total employment. In fact, tourism is one of the six core pillars of growth of the New Growth Plan adopted by government in October 2010.

The NTSS does not deal specifically with marine tourism. In fact, the words “coast”, “marine” and “sea” do not appear in the document while the words “beach” and “coastal” appear only once, in the context of marketing and branch management (p 34) and in the context of community beneficiation (p 58) respectively.

The legal aspects of tourism are dealt with among the strategic clusters and thrusts under cluster 1: policy, strategy, regulations, governance, and monitoring and evaluation. The NTSS recognises that, “[w]hereas the White Paper on the Development and Promotion of Tourism of 1996 constitutes an overarching policy framework for tourism development and promotion in South Africa, the Tourism Act of 1993 provides the legislative framework for the promotion of tourism. In its current form, however, the Act does not support the implementation of the White Paper as broader policy framework, as its main objectives are marketing and tourist guide regulation. The Act also predates the Constitution of the Republic, and had not necessarily been aligned with constitutional objectives. Although some progress has been made in the implementation of the White Paper, this has not been properly monitored. Policies in different spheres of government are also misaligned, and tourism is poorly integrated with the development of other sectoral policies” (p 28). In order to address those issues, the NTSS identifies the need to create a legislative and regulatory environment for tourism development and promotion, which involves more specifically: (a) identifying policy and legislative impediments, and developing appropriate interventions; (b) embarking on an advocacy and awareness campaign on policies, legislation and regulations, targeting all key stakeholders and sector departments; (c) conducting periodic policy and regulatory reviews in consultation with stakeholders to establish gaps and international best practices; and (d) investigating mechanisms for creating sufficient policy, legislative and analytical capacity, targeting tourism officials in provinces and local government (p 29).

It is hoped that the specific and intricate legal features of marine tourism (including those highlighted on this blog) will be acknowledged and addressed when the abovementioned course of action is taken.

Chumming for your chum (part three)

The National Environmental Management: Integrated Coastal Management Act, 2008 (Act 24 of 2008) forbids to “dump at sea any waste or other material” in the South African waters without a permit (s 70(1)(e)(i)). It is not obvious that the hake off-cuts used to attract the seagulls constitute “waste” for the purposes of the Act. In terms of s 1(1), the term “waste” means “any substance, whether or not that substance can be re-used, recycled or recovered (i) that is surplus, unwanted, rejected, discarded, abandoned or disposed of; (ii) that the generator has no further use of, for the purposes of production, reprocessing or consumption; and (iii) that is discharged or deposited in a manner that may detrimentally impact on the environment” (emphasis added). While one would readily concede that requirements (i) and (ii) are met, it can be argued that requirement (iii) is not. Such an argument would entail raising doubts as to whether the once-off throwing of a few off-cuts overboard may detrimentally impact on the environment. Moreover, it could also be argued that the actions of Raggy Charters do not constitute the discharge of an effluent, which is prohibited by s 69 of the Act. In this case, the argument would be based on the fact that the Act defines the term “effluent” as meaning “(a) any liquid discharged into the coastal environment as waste, and includes any substance dissolved or suspended in the liquid; or (b) liquid which is a different temperature from the body of water into which it is being discharged”, and that the off-cuts do not constitute a liquid.

Finally, it may be pointed out that, for the purposes of the Regulations for the Management of White Shark Cage Diving, 2008 (made in terms of s 77(1)(b), 2(g) and 2(y) of the Marine Living Resources Act, 1998 (Act 18 of 1998) and published under Government Notice R724 of 2008 in Government Gazette 31211 of 4 July 2008), the term “chumming” means “to attract white sharks by any means”. Regulation 8 provides that: “(1) No person other than a white shark cage diving operator may engage in chumming to attract white sharks. (2) Chumming may only be conducted within the areas stipulated in the [operator’s] permit. (3) Chumming may only be conducted in the manner set out in the white shark cage diving permit conditions”.

Chumming for your chum (part two)

It has been argued that the actions of Raggy Charters are in contravention of the Sea Birds and Seals Protection Act, 1973 (Act 46 of 1973). Section 3(b) of the Act forbids any person to “wilfully disturb ... any sea bird”. The seagulls in the case at hand would qualify as “sea birds” for the purposes of the Act if they fall within the Laridae family (see the definition of the term “sea bird” in s 1 of the Act; other species also included are, for instance, penguins (Spheniscidae), gannets (Sulidae) and terns (Sternidae)). What the term “disturb” mean is less clear. It is not defined in s 1 of the Act and only appears in one other provision of the Act: s 11(1)(cB) which empowers the Minister of Water and Environmental Matters to “make regulations prohibiting or regulating the taking on board, without lawful reason, on any fishing boat … , of any fire-arm or any instrument or substance with which seals may be killed, disturbed or frightened away”. Moreover, there does not appear to be any reported case where the term was defined or applied.


The 2007 Policy on the Management of Seals, Seabirds and Shorebirds (published under Government Notice 1717 of 2007 in Government Gazette 30534 of 7 December 2007) includes Laridae species among the species of seabirds requiring protection (annexure C). The purpose of the Policy is “to outline the framework of principles and approaches which will guide and direct the responsible and orderly management of seals, seabirds and shorebirds for the benefit of present and future generations in South Africa. Simultaneously, it will guide and direct the drafting of revised legislation that will govern and regulate activities associated with the subject species in terms of” the Policy (par 3). With regard to disturbance by humans, the Policy states that “[t]he minimisation and regulation of disturbance to seals, seabirds and shorebirds is necessary and any disturbance, especially of breeding animals, will be subject to the issuing of a permit. Suitable restricted areas will be declared around breeding islands and mainland colonies, but provision will be made for sustainable tourism. Consideration should also be given to the restriction of speeding by recreational vessels close to breeding colonies. Eco-tourism vessels or vehicles will be subject to permit conditions and a code of conduct” (par 4.1.8, see also par 4.3.1). Interestingly, paragraph 4.10 of the Policy mentions film making as a possible source of income for funding research, monitoring and management of South Africa’s seals, seabirds and shorebirds. But once again, no definition of the term “disturb”.

The Concise Oxford Dictionary defines the verb “to disturb” as meaning “break the rest, calm, or quiet of, interrupt”. This seems to imply that, in order to disturb seagulls, one must either compel them to act in a way they would not otherwise have acted, or prevent them from acting in a way they would otherwise have acted. But this must surely be a matter of degree. Indeed, one would undoubtedly disturb seagulls if one were to walk close to or through an area where they are nesting, but is one “disturbing” seagulls whenever one causes them to fly off while walking on an empty beach ... ? (In terms of s 12(a) of the Act, a person who contravenes or fails to comply with the provisions of the Act is “guilty of an offence and liable on conviction to a fine not exceeding two hundred rand or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment”) Or put differently, does s 3(c) of the Act have the effect of closing off a beach once a seagull lands on it ... ? Anyway, in the case at hand, there does not appear to be any element of compulsion: the seagulls were neither forced to feed nor prevented from feeding, they were offered an easy meal! (Interestingly, there is no provision in the Act forbidding anyone to feed sea gulls) In other words, if there was disturbance, the birds were not its victims.

Finally, one must point out a loophole in the Act, which is well illustrated by this case. Section 3(c) forbids any person to disturb sea birds “within the territorial waters or fishing zone of the Republic or along the coast of the Republic between the low-water mark … and the high-water mark”. The problem is that the whole of Algoa Bay has been closed off by straight baselines, with the effect that its waters are not part of the South African territorial waters, let alone its “fishing zone”, now the exclusive economic zone or EEZ. The effect is that the waters of Algoa Bay have the status of internal waters, to which s 3(c) does not refer. This state of affairs results from a failure to update the Act when the Maritime Zones Act, 1994 (Act 15 of 1994) came into effect. Indeed, it makes no sense to protect sea birds between the high and the low-water mark as well as in the 200 nautical miles between the straight baselines and the outer edge of the EEZ, but not in the enclaves of internal waters landward of those baselines.

(to be continued)

Chumming for your chum (part one)

A chumming row in Nelson Mandela Bay was reported in the press on 29 March 2011 (see here). The facts were apparently as follows. On 24 March, the holder of a boat-based whale watching license in Algoa Bay, Raggy Charters, threw fish off-cuts overboard less than 100 m from the shore between Humewood Beach and Kings Beach in Port Elizabeth in order to lure seagulls for a film crew working on a documentary about bird migration. The activity, which was captured on the municipality’s CCTV system, apparently caused “public panic” in view of the risk of it resulting in sharks being attracted to some of the city’s main recreational beaches and the life of swimmers, including individuals training for forthcoming major sporting events, being endangered.


The report refers to the contentious nature of the awarding of the whale watching license to Raggy Charters (the dispute relates to the affirmative action credentials of the latter) and the argument that the activity described above is blown out of proportion in order to smear the operator. Legally, the actions on 24 March are not related to the awarding of the license. The latter is governed by the Regulations for the Management of Boat Based Whale Watching and Protection of Turtles, 2008 (the WWR were made in terms of s 77(1)(b), 2(g), 2(x)(v) and 2(y) of the Marine Living Resources Act, 1998 (Act 18 of 1998) and published under Government Notice R725 of 2008 in Government Gazette 31212 of 4 July 2008). The factors to be considered when issuing a permit are listed in regulation 6. The only factor of some import in this case is: “[w]hether the applicant has been convicted of any offence in terms of the Act or regulations made in terms of the Act and the seriousness thereof” (reg 6(e)). It will be noticed that three elements are required: (1) there must be a conviction; (2) the offence must be in terms of the Marine Living Resources Act or regulations made under it; and (3) the offence must be serious enough to have an impact on the decision whether to issue the permit. Neither the Act nor the 1998 Regulations (made in terms of sections 7(5), 9(3), 12(2)-(3), 39(2), 45, 47, 50(1), 77 and 80(2) of the Act and published under Government Notice R1111 of 1998 in Government Gazette 19205 of 2 September 1998) do mention “chumming”. The prohibited activities dealt with in chapter 5 of the Act relate to fishing, which was evidently not the purpose in the case of Raggy Charters. As far as the Regulations are concerned, regulation 87(1) provides that waste must be taken back to port and no waste may be disposed of at sea. However, the waste concerned is waste “generated on a fishing vessel”, which the vessel operated by Raggy Charters was not (in terms of regulation 1 read with section 1 of the Act, the term “fishing vessel” means “any vessel, boat, ship or other craft which is used for, equipped to be used for or of a type that is normally used for fishing or related activities, and includes all gear, equipment, stores, cargo and fuel on board the vessel”).

The actions of Raggy Charters took place within that part of Algoa Bay which falls within the limits of the port of Port Elizabeth (see regulation 2(5) and appendix 5 of the Port Limits Regulations, 2010 made in terms of section 80(1) of the National Ports Act, 2005 (Act 12 of 2005) and published under Government Notice R11 of 2010 in Government Gazette 32873 of 22 January 2010). On that basis, the National Ports Act applies together with the Port Rules, 2009 (made in terms of section 80(2) of the Act and published under Government Notice 255 of 2009 in Government Gazette 31986 of 6 March 2009. See rule 3 read with rule 1(1)(jj) and sections 1(1) and 10 of the Act). Rule 85 requires that all persons within the port limits take all reasonable steps to prevent, minimise and mitigate pollution or damage to or degradation of the marine environment. Rule 86(1) forbids any person to throw from a vessel “any harmful matter or substance of whatsoever nature” without the permission of the Harbour Master. Finally rule 86(7) requires that any person who drops an article “that might cause danger, obstruction, pollution, a negative impact upon the environment or a nuisance”, and any person who witnesses a person doing this, report the matter to the National Ports Authority immediately. In the present case, there was clearly no obstruction. It is unlikely one could speak of pollution or a negative impact upon the environment. There may have been some danger, but there is little doubt that a nuisance was caused.

(to be continued)

A definition of "marine tourism law"

I see marine tourism law as a part of attractions law, which I defined earlier as “the body of legal rules that regulate the relationships of the tourists while they are involved in the attraction that motivated their journey” (P Vrancken “Introduction” in P Vrancken Tourism and the Law in South Africa (2002) 274). I agree with Orams that what distinguishes marine tourism law from other parts of attractions law is the fact that, in the case of marine tourism law, the attractions “have as their host or focus the marine environment (where the marine environment is defined as those waters which are saline and tide-affected)” (Orams Marine Tourism. Development, Impacts and Management (1999) 9). It is necessary to narrow the scope of marine tourism law down further in order to exclude work-related attractions such as commercial fishing and marine scientific research, so as to avoid including almost the entire law of the sea. Indeed, in a sense, humans being land-based creatures, any individual spending at least one night at sea is a tourist. I therefore suggest that “marine tourism law” be defined as “the body of legal rules that regulate the relationships of the tourists while they are involved in non-work-related attractions which have as their host or focus the marine environment, the latter being understood as including all bodies of saline water connected permanently or episodically to the open sea”.

BLT model for law purposes

The difficulties involved in defining marine tourism (see Orams Marine Tourism. Developments, Impacts and Management (1999) 8-11) are matched by those encountered when identifying the wide-range of legal relationships involved. A useful tool to tackle those obstacles is the BLT model, a sociology tool which, on the one hand, identifies tourism brokers, locals and tourists as the main actors in tourism and, on the other hand, facilitates the identification of their relationships (Miller and Auyong “Coastal Zone Tourism. A Potent Force Affecting Environment and Society” (1991) 15 Marine Policy 76-77). In that model, the tourists are the individuals who consume the tourism services and the locals are the individuals who live at the place where the tourism services are consumed. As far as they are concerned, the brokers either supply the tourism services (private brokers) or regulate the supply of those services in the public interest (public brokers).  To the extent that law is understood as the normative system which can be adjudicated upon by the judicial organs of the State, the model’s distinction between public brokers and private brokers needs to be highlighted in view of the central role played by the former when marine tourism is approached from a legal perspective. To that end, the following adaptation of the model is proposed: