Western Cape Museums Ordinance Amendment Bill: public hearings and adoption

Meeting report

The Chairperson said the meeting was a public meeting on the Western Cape Museums Ordinance Amendment Bill [B5-2020]. The Bill was referred to the Committee by the Speaker. The Committee engaged on the Bill but due to the Covid-19 pandemic, the Committee resolved to hold a virtual public hearing on the present day. The Committee advertised extensively using print newspaper, the Western Cape Provincial Parliament (WCPP) social media platforms, and its media alert options. Further advertisements were sent to the Tusong Centres, municipalities, libraries, and museums. The Committee complied with Section 118 of the Constitution, and complied with the Standing Rule of the Provincial Parliament, which said the Provincial Parliament must facilitate public involvement in the process of its committees.

After the public hearings, the Committee will adopt a motion of desirability, and proceed with a clause- by-clause consideration of the Bill. This would be done informally, and then the Committee would do it formally, and report on the Bill. If any amendments were to be made or suggested, the reference should be clearly stated.

The Department then gave the Committee a brief overview on input received through the written submissions, circulated to Members.

Matrix of Submissions for the Western Cape Museums Ordinance Amendment Bill [B5-2020]

Mr Michael Janse van Rensburg, Deputy Director: Museum Service, Western Cape Department of Cultural Affairs and Sport (DCAS), presented comments and responses received during the latest public consultation process on the Bill. Responses were received from the Ministry of Finance and Economic Opportunities and from Dr Nic Walker.

The Ministry of Finance and Economic Opportunities raised the following comment regarding the Bill: the Bill should require the Department to issue policy guidelines or directives, to determine when the museum should be audited by the Auditor-General of South Africa (AGSA).

The Department’s response is: the proposal in the comments is not aligned with the objective of the amendment. The amendment seeks to delete the requirement of the Auditor-General auditing the accounts of province-aided museums. Regarding Section 4(3) of the Public Audit Act (PAA), the Auditor-General will retain the discretion to audit the accounts of province-aided museums, if the amendment passes. The proposal is therefore not necessary. It may potentially fetter the discretion of the Auditor-General, if the criteria envisaged in the proposal does not align with the prescribed criteria referred to in the Public Audit Act. 

The responses by Dr Walker included a comment to say there is no mention of the support role played by the Department itself. The Department thinks this is a misunderstanding, as the statement is not correct. The Bill expressly substitutes the defined terms, ‘department’, which refers to the Provincial Department of Cultural Affairs and Sport, in the Bill. These references are in the clause referring to the functions of the Department.

The second comment asked about mentioning private or independent museums, and if these are legal. The Department’s response is: the scope of the Bill deals with three categories of museums dealt with in the principal ordinance. These are provincial, province-aided, and local museums. The Bill does not deal with private or independent museums, which are not illegal.

Thirdly, Dr Walker said there are also issues such as insurance, building maintenance, liabilities, leases, dealing with unruly public, and so on. It needs to be covered by regulation. Regarding province-aided museums, the Department’s response is: in Clause 27, the Bill provides for subsidies to be used only for the payment of salaries, wages, allowances, and maintenance costs of the museum.

The building in which these museums are located are owned by provincial government, and the payments/costs are regulated by rules and arrangements extraneous to the Bill. Stakeholders, like museums, clubs, friends, volunteers, and the like, need to be borne in mind. Such stakeholders are recognised in the Bill.

Specific points which the Department responded to:

(1) Section 1 should include accessions. Department’s response: The definition of ‘museum’ in Clause 1 of the Bill refers to one of its functions as being ‘to acquire’. This includes the accession of an object by a museum. Accessioning is the last step of the formal process to acquire, so by having the word ‘acquire’ it already includes the part of the process which deals with accession.

(2) Section 2 is not clear regarding what criteria is needed for a museum to be a provincial museum. It implies provincial museums have a higher status than province-aided museums, just below a national museum. The Dias Museum has an international interest because of the Portuguese connection.

Department’s response: The statement is not totally correct, as Clause 2 of the Bill clearly sets out what is needed for a provincial museum to be established. It is unclear how the assumption of provincial museums having a higher status than province aided museums can be made, and clarity is required. The Department had no response to the statement saying the Dias Museum has an international interest.

(3) Section 3 raises one problem: the Department makes decisions without consulting management committees, and thus the roles of committees are ambiguous.

Department’s response: The comment is not correct, because Section 7 of the principal Ordinance Act, read with Clause 8 of the Bill, clearly sets out the functions of the management committee.

(4) Section 7 was highlighted, as items 1(a) – 1(c) are museum management, rather than committee tasks, and 1(f) is too vague. The Committee should provide direction and oversight.

Department’s response: The management committee of the provincial museum constitutes the governance structure of the museum. The Committee performs an advisory role in support of museum management. This is unlike province-aided museums, where governance structure is required, to be involved and accountable for operational decisions to the Department. As such, committees do provide directions and oversight.

(5) There is no mention of how often the Committee should meet. Section 33 of the principal Ordinance Act provides for when a Board of province-aided museums should meet.

Department’s response: There is no equivalent for provincial museums, and also no need to provide likewise. This is because the boards of province-aided museums are accountable to the Department, as the Department wants to be assured the Board will at least meet four times per year.  This is not needed for provincial museums because the Committee performs an advisory role and is therefore not accountable. The Department should account. It is submitted such a provision is unnecessary, because a managing committee, in any event, has authority under Section 7(1)(f), to coordinate its own timetable for meetings.

(6) Section 9 says donations and the like should also be subject to the museum’s collection policy, which should include temporary loans. There needs to be proper acceptance forms.

Department’s response: In Clause 10, which amends Section 9 of the principal Ordinance Act, the museum will have discretion to accept donations, provided it is subject to the Public Finance Management Act (PFMA). As the Department has the discretion to accept donations, it may develop guidelines to exercise the discretion, as long as the guidelines are in accordance with Section 9 and does not fetter the discretion of the museum. There is no need to expressly say in the clause that a museum should have such a policy and donations should be subject to the policy.

(7) Regarding Section 40, Dr Walker asked if there is really a Museum Advisory Committee and why proposals were not heard of. The museum service is passive, and should be more innovative, and play an active role in society. T

Department’s Response: The Department said there is currently not such an advisory committee. The Museums Ordinance makes provision for the Department to initiate such a committee, but still has to do so.

A letter was submitted by Mr Mbiko which provided a general comment on the purpose and role of museums in society. The Department notes the comments and discussion of the letter and will take it under advisement. There is no direct impact of the letter on the Ordinance. 

Motion of Desirability

The Chairperson thanked Mr van Rensburg and appreciated the Department’s response to the written comments received.

He asked the Procedural Officer if any members of the public were online. He thanked the Committee for its work and for reading up in this regard. The Committee had, since its briefing, together with arranging the public participation process, engaged quite a lot regarding the present day.

There was no indication from any member of the public wishing to comment.

The Chairperson closed the first part of the meeting as no members of the public had logged in.

He said the Committee had advertised extensively and moved onto the second part of the meeting.

A Provincial Bill was slightly different to a Section 76 Bill, and the Committee had to adopt a motion of desirability. The motion of desirability had to be read into the record. The motion of desirability had to be tabled. He read the motion of desirability as follows:

‘In the opinion of the Committee, legislation is desirable to amend the Museums Ordinance 1975 (Ordinance 8 of 1975), so as to substitute, delete, and insert, certain definitions; to make further provision for the establishment of a provincial museum; to make different provisions for the constitution of management committees; to make different provision for the tenure of office of members of a management committee; to provide for the disqualification for membership of a management committee; to make provision for the designation of a chairperson of a management committee; to make different provision for the quorum for meetings of a management committee; to make provision for decision-making by a management committee; to make different provision for a management committee to determine and charge admission fees for entry to a provincial museum; to make different provision for the appointment of staff of a provincial museum; to make different provision for the acceptance of donations and bequests in connection with provincial museums; to regulate monies collected by a provincial museum; to make further provision for the abolition of a provincial museum; to make further provision for the declaration of a museum to be a province-aided museum; to make different provision for the constitution of a Board; to make different provision for the tenure of office of members of a Board; to make different provision for the quorum for meetings of a Board; to make provision for decision-making by a Board; to make different provision for the submission of an annual report by a Board; to make different provision for the determination of the staff establishment of a province-aided museum; to empower a Board to retain staff beyond its retirement age; to repeal certain sections; to make further provision for the payment of subsidies to boards; to make provision for the payment of additional funds to a Board; to make further provision for the raising of loans by a Board; to make different provision for the investment of money by a Board; to make different provision for the auditing of the accounts of a province-aided museum; to regulate financial misconduct by a Board; to make further provision for the declaration of a museum to be a local museum; to make different provision for the constitution of a control board; to make different provision for the tenure of office of members of a control board; to provide for the designation of a chairperson of a control board; to provide for the quorum for meetings of a control board; to provide for decision-making by a control board; to make further provision for the payment of grants to control boards; to make different provision for the making of regulations under the ordinance; to make further provision for a province-aided or local museum to be established as a provincial museum; to make further provision  for the abolition of a province-aided or local museum; to make different provision for the delegation of powers; to substitute certain expressions; to amend the long title of the ordinance; to provide for savings and transitional provisions; to effect certain textual improvements; and to provide for matters incidental thereto, and the legislation referred to the Committee be taken as a basis.’

He said the motion of desirability was read for the record. The Committee would proceed onto the informal stage and the formal stage. Before the informal stage he would ask for questions and points of clarity regarding the input from the Department. With regard to the submissions from the public and responses thereto in written form, he asked if there were any questions or clarity seeking points.

Discussion

Mr P Marais (FF+) said, when the Department drew up the long statement, it shared the purpose of the amendment. He asked if the Department took into account the challenges listed in the discussion paper of 2011, where it had been said there were certain shortcomings in the Bill; and asked if it was taken on board or not. The shortcomings included capacity restraints over the past two decades, funding cutbacks of 75%, not keeping up with technological developments, museums becoming old fashioned, volunteerism declining, and museum infrastructure deteriorating. Regarding the objective as spelled out the present morning, he asked if the Department took these shortcomings on board, and if not, why not.

The Chairperson told Mr Marais the Committee had a briefing on 15 March 2021, and noted some of his questions related to questions posed in the briefing. However, for this one instance, he said he would allow the Department to respond to Mr Marais input.

Mr M Kama (ANC) said his questions were merely questions of clarity regarding the responses given to Dr Walker. His first question concerned the instance where Dr Walker cited Section 9, dealing with donations. He asked for more clarity from the Department about this.

When he saw the second paragraph of the response by the Department, it said the Department has the discretion to accept a donation, and it may develop guidelines to guide it in exercising this discretion. This is, provided the guidelines are in line with Section 9. When reading the Department’s response to the comment by Dr Walker, he asked if it is sufficient for the Committee to say the Department may create guidelines, instead of saying the Department must create guidelines to guide the Department in exercising this discretion. He said he might have missed the email in which Members sent the submissions, and asked if there was any further input from Dr Walker.

Dr Walker talked of Section 40 and the museum’s advisory committee. The Department said there is currently no advisory committee and the principal Ordinance provided the option for the Department to establish such a committee, if required. He asked how one would determine if such a committee is required. One would really want to get the proposals which would have come from such a museum advisory committee.

In the second part of the comment, Dr Walker said the museum service was very passive and should be more innovative, and play a more active role in society. He was interested in the innovation and more active role aspect of this statement. The Department said the comment was subjective, and could not comment on the subjective views of the commentator. He wanted clarity from the Department, because the whole process of legislation also had a role to play to ensure institutions such as these, were more innovative, and played an active role in society.

Department’s Response

Mr van Rensburg addressed Mr Marais’ question concerning the discussion paper published on 30 June 2011. At that stage, in 2011, the Department published the discussion paper, as it noted the shortcomings of the existing legislation. Ten years later, the Department made a lot of developments and progress. To bring about all of the changes which came through the process of the discussion paper, the Department actually needed a brand new Museum Bill to address all of these matters. The Department was currently working on a draft Museum Bill which would eventually, or hopefully, replace the current Museums Ordinance.

However, as an interim measure, the Department has proceeded with now trying to amend the existing Ordinance to free up resources. As was indicated, the main purpose of the amendments was to free up the R2.5 million spent annually by affiliated museums on Auditor-General costs. This has been the key driving force behind the amendments, but the Department shared Mr Marais views. There was still much further change needed, and this would be addressed in the new Bill. As an interim measure, the Department was trying to amend the Bill to free up financial resources.

He replied to Mr Kama who had raised two questions – one on Section 9 donations, and the second one on Section 40. With regards to Section 9 donations, he said he needed to explain the context. A provincial museum was essentially owned by the Department. Once a donation is made to a provincial museum, these donations must then be accepted by the Department, and are treated as assets, or whatever it might be according to the PFMA. Therefore, specifically relating to provincial museums, the Department did not elaborate further on this.

However, as per the Department’s comment, one must look further down in the Ordinance. One will see the Ordinance addresses donations and the way to specifically deal with donations for province-aided museums, which do not essentially belong to the Department, but are statutory bodies in its own right. According to Section 40, and regarding the advisory committee, this was a policy point of view from the Department to save further costs, as any appointment of additional committees had further expenditure. There was currently not a need for this, specifically for provincial museums, because provincial museums and its appointed management committees were essentially advisory by nature. The Department got this function fulfilled by the appointed management committees. Dr Walker himself was an appointed member on the management committee of a provincial museum, being the Bartholomew Dias Museum in Mossel Bay. The Department got the benefit of advice from those two members through the committees.

On the comment with regards to innovation, he said the Department’s response focused on the legalities and procedural correctness of the Bill. Dr Walker perhaps had a perspective or opinion about innovation. The Department would certainly continue to consult Dr Walker and engage with him as an existing member of the management committee of the Dias Museum, for advice and guidance on where the Department could be more innovative. He hoped his response had addressed the questions.

Consideration and Adoption of the Bill

Committee Report on WC Museums Ordinance AB [B5 – 2020] 

The Chairperson thanked Mr van Rensburg for his replies to questions posed by Members. Next the Committee would move to adopt the motion of desirability, and thereafter the Committee would move into the formal stage.

He asked Members if there were any follow up questions based on any of the remarks made.

No hands were raised.

The motion of desirability had been read into the record and was now asked to be adopted.

Ms L Botha (DA) supported the proposal.

Mr G Bosman (DA) seconded the proposal.

The Chairperson said the motion of desirability had been read into the record and adopted by the Committee.

Regarding the informal stage, he put Clause 1 – 48 to Members for consideration, and asked if there were any amendments before the Committee went onto the formal stage.

Mr Marais said there were no amendments from his side.

The Chairperson said the documents were circulated to all Members. In the absence of any comment in the informal stage, the procedural officer noted Clauses 1 – 48 as being tabled in the informal stage. There were no amendments at this time.

As was noted, this was a Provincial Bill. The formal stage was a clause-by-clause consideration of the Bill. If there were any proposed amendments at this stage, he would refer the Bill back to the legal advisors to examine the legality of it.

Each clause was put before the Committee.

The Committee agreed to Clauses 1 – 48 with no objections.

The Chairperson put the whole Western Cape Museum’s Ordinance Amendment Bill [B5 -2020], before the Committee, and asked if there were any objections.

Mr Kama said there were no objections.

Mr Bosman said there were no objections.

Ms Botha said there were no objections.

The Chairperson said if there were no objections, the Bill was agreed to. He told Members on 15 March 2021, he remembered the Committee had unanimously agreed to assist the Department. This would ultimately assist residents to ensure the Bill is completed before the end of the current month.

He thanked Members for the hard work, for reading up, and for engaging throughout the process.

As was noted, the Committee would adopt a report. Unlike a Section 76 bill, the Committee report will read:

‘Report of the Committee on the Western Cape Museums Ordinance Bill [B5 – 2020], dated 24 March 2021, as follows: The Committee, having considered the subject of the Western Cape Ordinance Amendment Bill [B5 – 2020], referred to the Committee in accordance with Standing Rule 173, begs to report the Bill without amendments.’

He asked Members for views on the report, as it was presently screened.

Ms Botha proposed the Committee adopt the report as was flighted.

Mr Marais seconded the adoption of the report.

The Chairperson said, regarding the process moving forward, the Committee had officially adopted the report. The Bill would now be tabled in the House for a second reading debate. If the Bill is passed by the House, it will be signed into law by the Premier.

He thanked everyone for the contribution. As a Committee, the report was duly adopted. He sincerely trusted museums would feel the benefit of the Bill, and everyone would be able to see the fruit thereof.

The meeting was adjourned.