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”.