2010 FIFA World Cup South Africa Special Measures Bill: deliberations

SPORT AND RECREATION PORTFOLIO COMMITTEE
14 June 2006
2010 FIFA WORLD CUP SOUTH AFRICA SPECIAL MEASURES BILL: DELIBERATION

Chairperson: Mr B Komphela (ANC)

Documents handed out:
DTI Comments on Special Measures Bill
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006] (Reintroduced) as of 20 June 2006
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006]
Proposed changes 2010 FIFA World Cup South Africa Special Measures Bill: Part one, two & three
Input from Department of Home Affairs on Clauses 1 and 5 of Special Measures Bill

SUMMARY

The Committee continued deliberation on the Bill even though a decision on its tagging was still outstanding.  It was also still undecided how to describe persons wishing to enter the country to follow the 2010 World Cup either as spectators at the ground or simply following their teams around the country.  Provision was also to be made for persons staying longer than six months in order to set up businesses.  The country did not as yet have adequate mechanisms to track persons who stayed longer than allowed.

The Department of Trade and Industry would take responsibility for the protection of intellectual property rights.  They felt that there was no need for special measures for control of liquor during the tournament.

It became apparent that the Committee needed to interact with the provided guarantees and host city agreements, and it was decided that these documents must be made available at future meetings.

MINUTES

The Chairperson said that a lot of progress had been made despite the Members of the Committee having to spend long hours in the National Assembly.  He was waiting to hear from Mr Gideon Hoon (State Law Advisor) as to the decision of the Joint Tagging Committee.  He felt that the Committee would be vindicated for having been reasonable, and that the Bill could not be passed through Parliament under Section 75.

Mr C Frolick (ANC) said that it was important to understand the tagging of the Bill, which was of a mixed nature.  He also hoped that there would be a decision.  It was unacceptable that this had not happened after being brought to the fore the previous Friday.  The Department of Sport and Recreation (SRSA) preferred Section 75 as this would enable a quicker passage.  If a different tag were applied, then the Bill would be referred back to SRSA, who would have to split the various provisions and retable it.  There would then also be involvement with the National Council of Provinces.  The Bill might then have to be fast-tracked.  It was possible that the Committee would have to meet during the forthcoming Parliamentary recess for final approval.  However, he hoped that the process would still be completed by 31 July, but SRSA would have to recognise Parliamentary procedure.

The Chairperson said that other parties represented on the Committee would be consulted.  It would be disruptive to the constituency period if the Members had to be recalled.  More changes would be made to the Bill.

Input by Department of Home Affairs

Advocate Deon Erasmus (Director Drafting (Legal Services), Department of Home Affairs) said that he was responsible for drafting legislation.  Unfortunately the line function people of his department were unavailable to attend the meeting.  He had attended the Committee’s meeting on 9 June, where the initial draft had been presented.  This looked different to the submission Home Affairs had made.  He had discussed the new Bill with line function officials, and it seemed that some provisions offered by Home Affairs had not been included.

He said that most of the visitors should be accommodated under Sections 10 (a) and 11 of the Immigration Act.  Some would be looking to work for more than three months, and they would have to request exemptions in terms of Section 31 of the Act.

He suggested that in Clause 1, the Immigration Act should be defined as the Immigration Act, 2002.  In Clause 5 (visas and work permits) reference to Sections 29 and 30 of the Immigration Act should be deleted, as this might allow the entry of undesirable persons.  In Clause 5 (1) (a) the word ‘must’ should be changed to ‘may’.  The wording as it stood might allow persons to enter the country without normal requirements, such as the possession of a valid passport, being met.  The words “for a given period” should be added to the term ‘spectator’.  Clause 5 (1) only catered for spectators, and removing this term would open up this concession to too wide a group of persons.

Discussion

The Chairperson mentioned the number of fans who would be following their teams without tickets to attend matches.  Use of the word ‘spectator’ was too specific, and it was intended that as many people as possible should visit the country and boost the local economy.

Mr Frolick noted that the term ‘spectator’ was not included in Clause 1 (definitions).

Mr Erasmus said that his Department took a broad view of a spectator to include all persons entering the country to take part in the tournament.

Mr Frolick said that the absence of a definition was problematic.  The interpretation should be opened up.  There should have been a briefing session at which the various Departments would have stated what their intentions were with the Bill.  The Departments should talk to each other.

Mr T Louw (ANC) said that SRSA should have learned from the briefing.  There was a difference between a spectator and a tourist.

Mr J Masango (DA) said that a better word should have been used as the term ‘spectator’ could be confusing.

Mr B Dhlamini (IFP) said that a fan was associated with a particular team.  He asked how the South Africans following the World Cup in Germany, despite the absence of the South African team, could be described.

The Chairperson said that fans were not linked to a particular team.  Supporters would be the correct word in this case.

Mr Masango suggested that the word ‘spectator’ be deleted from Clause 5 (1) (a).

Mr Gideon Boshoff (Legal Services SRSA) said that this was a new Bill.  The Immigration Act should be aligned with the Bill.  The term ‘spectator’ was confusing.  The term ‘person’ should be used rather.  This could then be interpreted either as a natural person or a juristic person such as a body corporate.  The Immigration Act must align with the Special Measures Bill.  With the Clause relating to traffic free zones it was stated that “necessary changes” would be applicable to the Road Safety Act, and the same principle could be applied here.

The Chairperson said that the original Act could not be changed.  ‘Person’ would be a better term.

Adv Erasmus said that Clause 5 (1) only dealt with the narrow or broader interpretation of spectators.  They needed to careful with the words used.  The Bill should rather define the term ‘spectator’ or include the term ‘fan’.

The Chairperson said that a middle line was needed.

Mr Frolick said that the Bill should correlate with the applicable guarantee.  The Committee should look at the guarantee, as the intentions of the Bill and the guarantee could be different.  This might apply in other matters as well.

Mr Louw said there would be a problem if the terms ‘spectator’ and ‘fan’ were hidden.  People watching matches could be called either spectators or fans.  An explicit explanation was needed.

Mr Dhlamini said that there were implications regarding the terms used to describe persons attending the tournament.  In the case of a couple coming to the country, the husband might be at the football while his spouse was shopping.

Mr R Reid (ANC) was worried that the Bill had not been drafted as a joint effort by the various legal departments.  It would be problematic if SRSA used its own definitions, as this could lead to big problems.  The Committee needed to see the guarantees.  Something was needed by the meeting on Monday if the Committee was to go forward.

Mr M Dikgacwi (ANC) cautioned that the Bill might go contrary to the guarantees.

The Chairperson said that visitors would be on a mission to attend the World Cup, whether for business or pleasure.  It would be sufficient to word Clause 5 (1) to cover all people attending the World Cup.

Mr Louw asked what the precedents were in the laws drafted by previous World Cup hosts.

Mr Boshoff said that they had used the legislation drafted in Korea and Japan for the 2002 World Cup as a departure point. 

Mr Louw asked how they had defined spectators, but Mr Boshoff could not recall the specific wording.  They had used the Korean and Japanese legislation as a whole.  If the Chairperson decided that the guarantees should be presented, then the responsible Departments would have to be present to explain what had been included and what excluded.

The Chairperson said that Committee would look into this matter.  He agreed that the word ‘person’ should be used rather than ‘spectator’ in Clause 5 (1).  It was agreed that the phrase “as a spectator” would be removed.

Adv Erasmus referred to Clause 5 (1) (b).  There was a possibility that people might stay longer than the period for which their entry had been permitted.  Administration arrangements were the responsibility of the line function officials.  It would be up to them to check that people were not staying longer than authorised.  There would be an upgrading of ports and systems.

The Chairperson said that the Committee had visited Germany for ten days.  Home Affairs had also been present.  Any visitor with a match ticket could be tracked by the German authorities.  A clear system existed to follow people around the country.  He would like to have a two-day workshop with Home Affairs to see how they were prepared to accept visitors.  This would be in South Africa’s interest.  He was aware of one country which would be sending ten thousand visitors to South Africa during 2010, only about one thousand of whom would have tickets.  Home Affairs would have to assist in monitoring these people, and this would be a big task.

Mr Frolick emphasised that the Committee was not xenophobic.  However, he noted that there had been defectors after the end of the recent Commonwealth Games in Australia.  A legal framework and system was necessary to check on and prevent unauthorised people remaining in South Africa.

Adv Erasmus said that Mr Andre Goosen had been appointed as Chief Director recently to head Home Affairs’ efforts.  He would convey these concerns to the relevant people.  The legal framework was already in place.  He could not express himself as to whether a tracking system was in place.

The Chairperson said that the German tracking system was very efficient.  This aspect could be discussed later.

Adv Erasmus continued that Clause 5 (2) should include team members.  He also suggested that added provisions should be made for persons wishing to conduct work in the country for a period longer than the maximum visa period of six months.  Professional sport, including support staff, was defined as work.  A visa would be needed for longer periods.

Mr Boshoff said it was evident that the Bill dealt with persons who had been excused from visa requirements.  It would be a problem if these people wanted to stay for an extended period in excess of six months.

Adv Erasmus proposed a new Clause 5 (5) which would deal with persons staying longer than six months.  There would be a period of grace after the completion of the World Cup.  The period of six months was not derived from the Act.

Mr A Mlangeni (ANC) asked why FIFA was incorporated into Clause 5 (2).  He did not understand why they could determine who could work in South Africa.

Adv Erasmus replied that persons wishing to enter the country during the World Cup period but with no connection to the tournament would be subject to the normal provisions of the Immigration Act.  The proviso in Clause 5 (2) of the Bill dealt with persons who had applied to FIFA for accreditation, and who had paid FIFA a prescribed fee.

The Chairperson said that the Special Measures Bill would suspend the necessary legislation controlling individuals acting of their own free will.  FIFA had applied to South Africa for protection, and the Special Measures Bill would apply over and above the normal flow of events.  South Africa would not be allowed to tamper with FIFA’s procedures.

Mr Hoon said this was correct from a legal perspective.

Adv Erasmus said that Clause 5 (3) could be deleted.  Teams would fall under the definition of workers.  Clause 5 (4) was fine.  A new Clause 5 (5) should be introduced.  This would deal with people working in connection with the 2010 World Cup for periods exceeding six months.  An application would have to be submitted to the Minister of Home Affairs requesting a waiver of terms of the Immigration Act.

The Chairperson said that the law would be relaxed for those involved during the World Cup period.  Other people would remain subject to the normal laws of the country.

Adv Erasmus said he needed guidance from the Committee.  Transgressions of the Special Measures Bill should be dealt with in terms of the Immigration Act.

The Chairperson agreed that the Special Measures Bill would not replace normal laws, so the Immigration Act would still supply.

Mr Boshoff said that in the proposed Clause 5 (5), where FIFA was to supply information to the Department, all previous references were to the Minister.

Adv Erasmus explained the different references.  The Minister issued visas.  Visitors’ permits were issued by the Director-General of the Department.  Work permits were issued by the Director-General as Head of Department.

Mr Dhlamini said that the protection period after the event should only be for three months.  By allowing a period of six months a loophole was being created.

Adv Erasmus said that people would take time to set up businesses.  This could take up to three years before the World Cup, and they might have to stay on for some time afterwards to wind up the business affairs.

Mr MacDonald Netshitenzhe (Director, Department of Trade and Industry (dti)) said that his department would deal with this.

Mr Hoon suggested that the reference to the Department of Home Affairs should be changed to the Director-General.  Adv Erasmus agreed.

The Chairperson said the Members were in agreement with Adv Erasmus’s proposals.

Presentation by DTI

Mr Netshitenzhe said that the Constitution spelt out the need for the observation of inter-departmental relations.  It was dti’s responsibility to administer the laws regarding the protection of intellectual property.  Protection against ambush marketing was contained in the Merchandise Marks Act and the Trade Practices Act, and there was also protection against counterfeit goods.  Ambush marketing was marketing by association with an event but without the permission of the organisers, or by intrusion.  He said that South Africa’s laws to protect intellectual property were well developed.

He explained that the Merchandise Marks Act made provision for the designation of a protected event.  The requirements were that it must be in the public interest, and that business opportunities had to be created especially for previously disadvantaged individuals.  Meetings had been held with FIFA where it had been determined that the 2010 World Cup would qualify for protection in terms of the Act.  A Local Organising Committee (LOC) had been set up by FIFA with its own budget.  It was determined that 30% of the budget would be directed towards small business activities.  Therefore the World Cup could be declared a protected event. 

There was also agreement on Black Economic Empowerment (BEE) principles.  Mr Netshitenzhe said that dti and the LOC needed to take a common approach in terms of procurement of goods and services.  No advertisements had yet been placed.  SRSA had consulted with dti.

He said that dti was diametrically opposed to the inclusion of Clause 6 in the Special Measures Bill.  He wanted to know what benefit there would be for South Africa in return for the protected status of the tournament.  National policies would not be renounced.  There was agreement with the LOC that Section 15 (a) of the Merchandise Marks Act was in order.  The Liquor Act applied nationally and was administered by dti.  There was a concurrent responsibility with the provinces.

Mr Netshitenzhe said that licences were issued for the manufacture, importation, distribution and retail of liquor.  Provinces also had a responsibility.  He felt that these controls were an operational issue, and he thought that it was not necessary to make special provisions in the Special Measures Bill.  Dti was not happy with the inclusion in the Bill, and was prepared to discuss this with SRSA.

He thought that the whole of Clause 6 should be scrapped.  No reasons had been advanced for its inclusion.  By suspending the current laws, dti would lose its rights to negotiate on licencing issues.  Temporary permits could be issued at any time.  He knew that Budweiser would be marketing liquor at the venues as a FIFA sponsor, but wanted to know if they would do their own distribution or if this would be left to local agents.  He said there was a policy council made up of the Minister of Trade and Industry and the provincial minister, which would have to pronounce on the issue.  Informal meetings had been held with Budweiser and they had been asked how they would empower South African people.  The policy council would have to pronounce on this.

Mr Netshitenzhe said that Clause 2 of the Bill had been debated with SRSA.  The wording had indicated a period of longer than one month, but agreement had been reached to change this to six months.  A notice had been issued to this extent.

Mr Boshoff said that an insertion had been made to make the Clause read  ‘more than one month but not exceeding six months’.

Mr Netshitenzhe said there was no need to amend the Liquor Act.  The dti regulated the marketing of liquor, and this was not to target minors.  The provisions of the Liquor Act were not part of the guarantees.

Discussion

Mr Barry Beukes (Legal Officer, Department of Agriculture) agreed that Clause 6 should be removed.  He said that guarantee 14(b) said that there should be no restriction on marketing, importation, distribution or consumption.  Clause 6 did not comply with the guarantee.

Mr Netshitenzhe said that discussions had been held with FIFA and SRSA.  The guarantee did not conflict with the current regulations.  No follow-up discussions had indicated anything to the contrary.  The issue would be dealt with outside the scope of the Bill.  Consultations would be needed with the provinces.  He did not want to delay the Bill, but emphasised that controls could not be scrapped.

Ms Wendy Jonker (Department of Agriculture) agreed with Mr Netshitenzhe.  This argument had been taken up with the LOC.  Her Department could not allow a free-for-all situation to develop.  Safety testing was needed on all alcoholic products.  If there were no restrictions, then import certification would be by-passed.

The Chairperson said advice was needed from the State Law Advisor.

Mr Malusi Ncolo (State Law Advisor) said that Mr Netshitenzhe had raised important views.  He would have to consult with Mr Hoon.  His office had an oversight role.

Mr Boshoff said that there had been a problem resulting from difficult communications between dti and SRSA.  SRSA had not received some communications from dti, and emails had gone unanswered. The wishes of dti had to be respected.  If the Department of Agriculture concurred, then they should consider scrapping Clause 6.

Mr Solo said that he had never seen the guarantees.  He said that failing to provide answers was a messy method of communication.  The dti was arguing more on principle than policy, but their argument made sense.  SRSA was responsible for the Bill.  A meeting was needed soon for clearer decision-making.  There were technical aspects to the argument.  Organs of state should communicate with each other.  He had “bad vibes” about Clause 6.  He encouraged the departments to meet to sort it out.

Mr Mlangeni wanted to see the people of South Africa benefiting.  FIFA wanted protection, but the South African people were innovative and would copy FIFA products.  The quality might be inferior to the official product.  He asked if local initiative should be prevented, as this would defeat the purpose of creating opportunities for local people.

Mr Dhlamini said he was tempted to agree with dti.  There was an impression that FIFA owned everything, and there was no scope for local people to be involved.  He would be happy if local people were able to distribute the products of foreign sponsors.

The Chairperson said that small vendors would be allowed to trade within the considerations of safety regulations.  He was assured that this would happen.  There had been cases in Europe regarding ambush marketing.

Mr Dikgacwi said that a meeting would sort out the problems.  He noted that 30% of the LOC’s budget would be set aside for small business, but asked if there would be a fair slice of the cake for all concerned, as experience showed people with connections had more of an advantage.  He also asked how the rural areas would benefit.

Ms A Makgate (ANC) said she was also tempted to agree with the dti, but she did not know the legal aspects.  South Africa had its own culture of small food vendors.  All should have the chance to benefit.  The concept of ambush marketing should be interrogated to prevent frustrations during 2010.  She asked if SA Breweries and other industries would be employing more people during the tournament.

Mr Netshitenzhe said he needed to correct some issues.  There had been several workshops with FIFA and lawyers, including SRSA representatives.  The restrictions on liquor would be the same as current conditions.  Licences would be issued according to conditions, but Clause 6 in the Bill was not needed.  Communications between departments were at Director-General level.  It was difficult for officials of the departments if information shared at this level did not trickle down.  A mandate had been given to remove Clause 6.  The restrictions would not be designed to frustrate, but consumption of liquor would be in a regulated manner.  FIFA had been told that South Africa was a country with laws in this regard.

He said that ambush marketing would not be permitted.  Counterfeit goods would be seized.  Sales of food and other goods in stadiums would be subject to regulation in any event.  There was no official FIFA sponsor for “pap en vleis”.  The LOC would spend 30% of their budget on local procurement out of a budget of US$ 423 million.  This did not include the cost of stadiums.  Procurement was to take place in terms of South African law, with emphasis on the rights of women and the disabled.  There were no criteria available yet, but details would be provided later.

He explained that Budweiser had won the tender to supply beer for the tournament.  A radius around each stadium would be negotiated where Budweiser would be protected as an official sponsor, but people would have the choice of brand outside this area.  The extent of the radius was still to be negotiated.

Mr E Ntshili (ANC) said something was missing.  He felt that the guarantees would provide the answers to several “hanging” issues.

Mr Solo aligned himself with dti.  The position had been explained in simple terms, and Mr Netshitenzhe had given a clear explanation.  The laws were sufficient to deal with the issues raised.  Workshops had been held.  He said it was fair to delete Clause 6.

Ms Makgate also aligned herself with the deletion of Clause 6.  She said the “rumour” of the radius around the stadiums had been discussed in other Committees.  She wondered if the regulations were about the brand of beer or rather about the problem of drunken behaviour.  She said the question was how to strengthen security in the vicinity of the stadiums.

Mr Netshitenzhe said the rumour was now fact, and was part of the host cities agreements signed by mayors and FIFA.  There still had to be negotiations between stadium owners and sponsors.

Mr Boshoff agreed with the proposal, as there seemed to be a clear solution.  He suggested that the proposal be approved.

The Chairperson said there appeared to be consensus that dti’s motivation was compelling.  He agreed that Clause 6 should be scrapped.

Mr Masango said that the guarantees were a necessity.

Mr Ncolo thought that the guarantees were readily available, and were held at the office of the State Law Advisor.

The Chairperson had not realised the depth of the Bill.  He requested that the guarantees be available for the next session of the Committee in summarised form.  Interaction should be on the basis of the guarantees, and they should be in line with the Bill.

Mr Boshoff reminded the meeting that the relevant departments would have to be present to table the guarantees for which they were responsible.

Mr Netshitenzhe agreed with Mr Boshoff.  The departments had unofficial copies of the guarantees, while those at the State Law Advisor were the official signed versions.  Clarity was needed to attend the next layer of the process.

The Chairperson said that the Committee needed to tie up the process.  The LOC had been informed, but Dr Phaahle was meeting with the host cities.  The Committee did not have the information, and a date needed to be set to discover the information.  The State Law Advisor was to get copies of all the guarantees.  The DGs of all the affected departments should attend the next meeting so that all would have the same understanding, as the interpretation could differ from one to another.

Mr Netshitenzhe suggested that provincial government representatives should also attend, as they and the liquor boards should also have understanding.

The Chairperson said the liquor boards should also be in attendance.  They should understand that the measures would not be an encroachment on their areas of operation.

Mr Ntshili said that the Committee should also have sight of the host city agreements.

The Chairperson replied that meetings would be held with the host cities, preferably where they were or at Parliament.  He reminded Members that it would probably be necessary for the Committee to meet in the last week of the recess in order to finalise the Bill.

The meeting was adjourned.