Mr. T. WakasheDirector-General

Department of Arts and Culture

Heritage, Archives and Libraries

Legislative ReviewPresentation to the Portfolio Presentation to the Portfolio Committee on Arts & Culture Committee on Arts & Culture

5 February 20085 February 2008

CA402

Contents

1. Policy development in context2. Heritage in the White Paper3. The need for Policy and Legislative

Review4. Expected outcomes of the review5. Legislation under review6. Consultative process7. Key policy challenges 8. General recommendations 9. Major legislative challenges10. Preliminary recommendations11. Way forward

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1. Policy development in context1.1 Purpose of the presentation is to brief

the Portfolio Committee on the Heritage, Archives and Libraries Legislative review process.

1.2 Arts, Culture & Heritage policy development began with the

Arts & Culture Task Group (ACTAG) process in 1994/5 after DACST came into existence in 1994.

1.3 The White Paper on Arts, Culture and Heritage was adopted in 1996 as the first official document of the DACST.

1.4 White Paper is an elaborate and ambitious document, biased towards performing arts, with little attention to heritage.

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2. Heritage in the White Paper

2.1 In some instances, the White Paper mainly reinforced the prevailing status quo of the time, e.g. on the National Monument Council and the National Geographic Names Division.

2.2 It emerged with innovative and creative approaches on the role of museums, preservation and promotion of living heritage, the creation of the National Heritage Council, and the transformative role of the Geographic Names Council.

2.3 There is a disjuncture between the attention given to Heritage in the White Paper and the actual size, responsibility and number of legislation that were promulgated as a direct consequence of the White Paper.

2.4 More legislation (11) were passed in the area of heritage (and archives) than other areas in the arts and culture (2) sector.

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3. The need for Policy and Legislative Review

3.1 Government decision in 2004: After 10 years government policies and legislation should be evaluated and reviewed.

3.2 The legislative review was essential for the following reasons:– To bridge gaps between policy pronouncements and

legislation.– To eliminate duplications and overlaps amongst and

between acts.– To eliminate wastage of public resources.– To eliminate confusion and tension between or

amongst institutions.– To clarify roles, because in some instances,

institutions are tasked with functions that belong to other institutions and the department.

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3.1 Legislation role clarification

• RepatriationAssigned currently to both the National Heritage Resources Act and the National Heritage Council Act.

• National Museums DivisionCultural Institutions Act article 12, and the National Heritage Council Act article 10(1)e, seems to create duplication in terms of coordination of heads on institutions.

• National Heritage Resources Act 25 of 1999 Article 23Provides for the establishment of Provincial Heritage Resources Authorities (PHRAS), but is not implemented as intended.

• White Paper pronouncements not implemented (examples)The recording and conservation of intangible heritageSAHRA as sub-programme of NHCSAGNC as unit of NHCGrading of declared cultural institutions

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4. Expected outcomes of the review

4.1 The elimination of divergence, duplication and inconsistency within and between the laws themselves and in relation to the 1996 Arts, Culture and Heritage White Paper.

4.2 A gap analysis of heritage policy and legislation.

4.3 The identification of solutions and proposed legislative amendments.

4.4 Propose amendments to the Heritage section of the White Paper.

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5. Legislation under review

i. Heraldry Act 18 of 1962

ii. Culture Promotion Act 35 of 1983

iii. National Archives and Record Service of South Africa Act 43 of 1996

iv. Legal Deposit Act 54 of 1997

v. National Library for the Blind Act 91 of 1998

vi. National Library of South Africa Act 92 of 1998

vii. The South African Geographical Names Council Act 118 of 1998

viii. Cultural Institutions Act 119 of 1998

ix. National Heritage Council Act 11 of 1999

x. National Heritage Resources Act 25 of 1999

xi. National Council on Library Information Services Act 6 of 2001

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6. Consultative process

6.1 The consultative process included a series of consultative meetings with stakeholders, including national departments, provincial departments, declared cultural institutions and non-governmental organizations.

6.2 Seventeen (17) consultative meetings were held from 20 July 2006 – 9 March 2007.

6.3 Six (6) meetings were held with the appointed Reference Group between 3 November 2006 – 14 December 2007. Records of these meetings are contained in Volume 2 of the consultants’ report.

6.4 Stakeholders were provided with the opportunity to submit written comments to the process.

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7. Policy challenges and gaps identified

7.1 Community based heritage initiatives policy.7.2 Intangible cultural heritage policy (including

integration of ICH into the activities of all heritage institutions).

7.3 National museums policy, including grading system for museums.

7.4 Monuments and memorials policy.7.5 Exhumations, reburials and human remains policy.7.6 Identifying and commemorating victims of conflict

policy.7.7 Repatriation and restitution policy.7.8 Public interest copyright exceptions policy.7.9 Research and development policy.

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7. Policy challenges and gaps identified (2)

7.10 Building and sharing intellectual capital policy.

7.11 Access to heritage resources and institutions policy.

7.12 Funding of heritage institutions policy.7.13 Digitization of heritage objects policy.7.14 Geographic name changes policy.7.15 National heritage development policy. 7.16 National cultural symbols policy.7.17 Integrated frameworks for delivery of

services, specifically in the information, legal deposit, archives and records sectors.

7.18 Legacy projects policy.

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8. General recommendations

8.1 Policy required that facilitates access to heritage institutions, reduces entrance fee rates for local residents for general exhibitions, and free days.

8.2 Abolishment of provincial representation on councils. Replace with appropriate intergovernmental agreement and fora.

8.3 Councils not to exceed 15 members – impact on NHC, SAHRA and SAGNC.

8.4 Appointment, disqualification criteria and terms of office for members of councils to be specified.

8.5 Uniform remuneration / honoraria for councils. 8.6 Induction and continued training for councils.8.7 Standardized appointment letter to council

members which outlines duties.

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8. General recommendations (2)

8.8 Charter for councils’ roles and responsibilities. 8.9 Harmonization of institutional procedures and

processes e.g. salary structures. 8.10 National policy development and advice to

Minister to be located at national level and not institutional level.

8.11 National heritage development strategy with emphasis on community based heritage initiatives; NHC tasked with this.

8.12 Repatriation as national responsibility and not of SAHRA or the NHC.

8.13 Administrative and technical amendments e.g. Minister to Minister of Arts and Culture, reference to outdated institutions and acts, and linguistic corrections to be effected.

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9. Major legislative challenges

9.1 Culture Promotion Act 19831. Introduce explicit reference to sections 195(1)

and 217 of the Constitutions which deals with public administration requirements to provide for transparent sourcing of goods and services.

2. Amendment of governance matters to authorize the Minister to appoint selection committees to advise and oversee the selection and appointment of appropriate persons to serve as member of the governing bodies.

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9.2 Cultural Institutions Act 1998

1. Abolishment of current National Museums Division and the establishment of a national Council of Museums with core function to advise the Minister on policy, strategy, legal and fiscal frameworks, formulating norms and standards, grading and assessment criteria.

2. Explicit inclusion of performing arts councils.3. Establishment and implementation of a museum

classification and grading system.4. Endorsement of the transformation charter and its

relevance to museums. 5. Legalized consultation and consideration of

representations before amalgamation. 6. Explicit reference that policy formulation limited

to institutional policies and subject to national policy.

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9.3 South African Geographical

Names Council Act 19981. Minister to be given greater regulatory mandate over geographical names outside of national competence, to allow for consistency in standardization and guidelines.

2. Transparent procedure for the consideration for approval and revision of names, including a requirement for consultation.

3. Existing appeal procedure to be replaced with a requirement that the Minister must follow a notice and comment procedure before deciding on approval or rejection of a proposed name change.

4. MECs should be empowered to establish PGNCs under this act.

5. PGNCs to consider and verify applications for name changes, and to support local authorities.

6. Change name of act to Heritage Names Act.7. Policy decision required: SAGNC to be established as a

statutory body or remain secretariat of DAC. (Preliminary position is that it needs to remain a secretariat of the Minister).

8. Establishment of SAGNC as a sub-sector structure.16

9.4 National Heritage Council Act 1999

1. Revised composition and mandate for NHC.2. Council to include elected representation from

the 5 national sub-sector structures, i.e. SAHRA, Museums, SAGN, Archives and Heraldry Councils and 8 members appointed by the Minister.

3. New role of NHC:– Commission and fund heritage research that

builds a knowledge base.– Promote, fund, mentor and monitor heritage

projects.4. Establish of intergovernmental forum between

NHC and appropriate provincial and local structures.

5. Responsibility of repatriation located with DAC.

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9.5 National Heritage Resources Act 1999

1. Amendment of SAHRA’s core function to the coordination and identification of the national estate, rather than management.

2. SAHRA’s role:– manage the national estate; – assist in the formulation of policies; – setting standards and monitoring implementation of

policies; – building capacity; – national centre of excellence in the field of conservation; – and setting in place the procedures and structures that will

effectively conserve the heritage of all South Africans. 3. SAHRA is mandated to assist provinces to establish and

capacitate PHRAs. Provincial SAHRA offices are disbanded and the resources deployed to PHRAs.

4. All provinces must establish and fund PHRAs. 5. PHRAs accountable to SAHRA for implementation of

national policies. 6. PHRAs mandated to identify and manage all heritage

sites and objects. 7. Increase of sanctions for transgressions (in general

heritage crimes are not considered serious).8. Responsibility of repatriation located with DAC.

9.6 National Library of South Africa Act 1998

1. Objects of the National Library extended to include building a knowledge society, promotion multi-lingualism, life long learning, information literacy and a culture of reading.

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9.7 National Council of Library and Information

Services Act 20011. Extend objective of NCLIS to include reference to building a knowledge society; the importance of multi-lingualism; promotion a culture of reading, life-long learning and conservation.

2. Determine terms on which public libraries, SA Library for the Blind, public archives and places of legal deposit may circumvent digital rights and management of features of works where copyright owners refuse or fail to make copies available for the effective implementation of public interest copyright exceptions.

3. Council to include representatives from science and technology sector, legal deposit committee and the SA Library for the Blind.

4. Provide for relevant intergovernmental forums between NCLIS, SA Library for the Blind, and appropriate libraries at provincial and local government level.

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9.8 South African Library for the Blind Act 1998

1. Amend name from “…library for…” to “…library of…”

2. Function of the library should be extended to a place of legal deposit of material in alternative formats.

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9.9 Legal Deposit Act 1997

1. SA Library of the Blind to be declared a place of legal deposit for alternative format publications.

2. Provision for the performance of administrative and secretarial functions of the committee.

3. Membership of the committee to include a representative from the SA Library of the Blind.

4. Amendment required to actions to remedy non-compliance.

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9.10 National Archives and Record Service Act 1996

1. Functions of the National Archives Advisory Council extended to include an appeal function in relation to decisions by the National Archivist in respect of granting access to archive records.

2. Council to include an experienced legal practitioner or judge of the High Court.

3. Explicit reference to the Promotion of Access to Information Act is required in the access and use of public documents.

4. Explicit reference to the National Film, Video and Sound archives is required.

5. Offences and penalties require updating.

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9.11 Heraldry Act 1963

1. New act required – Cultural Symbols Act - as current act is dated and requires substantive amendments.

2. New act to provide for:– indigenous heraldic symbols– the use of modern and African designations– an updated register of heraldic

representations, names and uniforms– Objections and appeals against decisions of

the state herald– Damages and penalties for unlawful use of

symbols– Offences in respect of national symbols– Governance matters

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10. Preliminary recommendations

1. Recommendations amendments on governance matters of institutions to be effected.

2. Technical / administrative corrections to effected.

3. Timetable for development of policies of identified policy gaps and challenges.

4. Amendment of legislation with substantive policy formulation as long term projects.

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11. Way forward

1. Technical, administrative or minor policy decision amendments to the acts will be drafted and submitted to the Minister, Cabinet and Parliament for approval.

2. Legislative amendments with (major) policy implications will be tabled for public consultation by Legal Services in cooperation with DAC Line Function structures.

3. Printing and public dissemination of Legislation Review report.

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ThankThankYouYou