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.
