FITNESS INDUSTRY REGULATORY BILL

REPUBLIC OF SOUTH AFRICA

 

FITNESS INDUSTRY REGULATORY BILL, 2015

(As introduced in the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No. ………….. of ………… 2015) (The English text is the official text of the Bill)

(MINISTER OF SPORT AND RECREATION)

[B 7—2015]


 

Bill

To provide for the establishment of Fitness Industry Regulatory Authority, the establishment of a Council and the appointment of councilors; to provide for the registration of fitness controlling bodies, fitness professionals and the accreditation of fitness establishments in the Republic; to provide for disciplinary action against fitness professionals, owners or managers; to provide for the maintenance and upkeep of a register of registered fitness controlling bodies, fitness professionals and accredited fitness establishments; to provide for the constitutions and powers of fitness controlling bodies; to provide for the offences, dispute resolution and appeals; and to provide for matters connected thereto.

 

ARRANGEMENT OF SECTIONS

CHAPTER 1 DEFINITIONS, OBJECTS AND INTERPRETATION OF ACT

 

1. Definitions

 

2. Objects of Act

 

3. Interpretation of Act

 

CHAPTER 2

 

FITNESS INDUSTRY REGULATORY AUTHORITY

 

4. Establishment of Fitness Industry Regulatory Authority

5. Objects of Authority

6. Functions of Authority

7. Governance of Authority

8. Establishment of Council and appointment of councilors

9. Disqualifications for appointment as councilor

10. Terms and conditions of office, vacation of office and payment of remuneration and allowances of councilors

11. Functions of Council and its chairperson

12. Accountability of Council

13. Ministerial supervision of Authority

14. Meetings and conflict of interests

15. Committees to assist Council

16. Staff of Authority

17.  Delegation of powers and assignment of duties by Council

18. Funds of Authority

19. Bookkeeping and financial statements

20. Auditing

21. Financial year

CHAPTER 3

 

REGISTRATION AS CONTROLLING BODIES, FITNESS PROFESSIONALS AND FITNESS ESTABLISHMENTS

 

22. Obligation to register as controlling body and exemptions

23. Application for registration by controlling body

24. Requirements for registration as fitness professional

25. Qualifications required for registration as fitness professionals

26. Foreign and older qualifications

27. Period of registration of fitness professionals

28. Registration and other fees of fitness professionals

29. Refusal of registration of fitness professionals

30. Employment of fitness professionals

31. Disciplinary action against fitness professionals, owners or managers

32. Accreditation as fitness establishment

33. Refusal, cancellation or suspension of accreditation of fitness establishment

34. Disability friendly status of fitness establishments

35. Database of accredited fitness establishments

36. Period of accreditation of fitness establishment

37. Extraordinary audit of fitness establishment

38. De-accreditation of and other sanctions against fitness establishment

39. Cession of accreditation of fitness establishment

40. Accreditation fees of fitness establishment

41. Submission of reports and documents by fitness establishments

42. Failure to comply by fitness establishment

43. Register of registered controlling bodies, fitness professionals and accredited fitness establishments

CHAPTER 4

 

CONSTITUTIONS AND POWERS OF CONTROLLING BODIES

 

44. Constitutions of controlling bodies

 

45. Powers of controlling bodies

 

CHAPTER 5

 

OFFENCES, PENALTIES, DISPUTE RESOLUTION AND APPEALS

 

46. Offences

 

47. Dispute resolution and appeals

 

CHAPTER 6

 

GENERAL PROVISIONS

 

48. Regulations

 

49. Provision of information to Authority

 

50. Preservation of confidentiality

 

51. Offences and penalties

 

52. Extra-territorial application of Act and jurisdiction

 

53. Limitation of liability

 

54. Delegation of powers by Minister

 

55. Transitional provisions

 

56. Short title

 

CHAPTER 1

DEFINITIONS, OBJECTS AND INTERPRETATION OF ACT

 

Definitions

1. (1) In this Act a word or expression to which a meaning has been assigned in the Act has that meaning unless the context indicates otherwise–

‘‘accreditation’’ means a process whereby a fitness establishment wishing to operate as a fitness enterprise –

 

(a)        in which supervised physical activity takes place to enhance fitness levels, health and wellbeing; and

 

(b)        that offers or provides services or equipment for the purposes of fitness, health and wellbeing

 

must –

 

(i)         apply for, be evaluated, screened and subjected to the meeting of criteria set by the Authority; and

 

(ii)        be issued with an accreditation certificate by the Authority which entitles the holder thereof to legally operate as an accredited fitness enterprise in the Republic as contemplated in section 32;

 

“Act” means the National Sport and Recreation Act, 1998 (Act No. 110 of 1998 as amended);

“annual fee” means the registration, accreditation or other fee payable on an annual basis as contemplated in terms of –

 

(a) section 23(1)(b) in respect of a controlling body;

(b) sections 24(2)(e) and 28(1) in respect of a fitness professional; and

(c) section 40 in respect of a fitness establishment; “aspiring fitness professional” means a person who –

Text Box: (a) has, prior to the promulgation of this Act, never applied to be registered as a fitness professional; and (b) intends to be registered as a fitness professional in terms of this Act;

“Authority” means the Fitness Industry Regulatory Authority established in terms of section 4 of this Act;

“certified” means a fitness professional’s qualification meets the requirements as

set out by the Authority from time to time in writing;

“chairperson” means the chairperson of the Council established in terms of section 8; “code of conduct” means the code of conduct of the Authority as contemplated in

section 22 (7)(iii); “committee” means a committee appointed by the Council in terms of section 15; “company” means a company within the meaning of the Companies Act, 1973

(Act No. 61 of 1973 as amended); "controlling body" means—

 

(a)        a national federation as defined in section 1 of the National Sport and Recreation Act, 1998;

(b) a provincial federation; or

(c) a body, including a trust or registered company of such a body,

that –

 

(i)         administers, governs and regulates any form of fitness in the Republic as defined under the definition of "fitness" at international, national, provincial or club level in the Republic; or

 

(ii) that             plans, hosts, is in charge of, manages, supervises, or promotes fitness in the Republic or in any manner controls or has a material interest in the organizing and hosting of fitness events as contemplated in this Act,

 

and to which a certificate of registration as a controlling body in fitness had been issued in terms of section 43;

”Council” means the Council established by section 8;

“councilor” means a member of the Council as contemplated in section 9;

“CPD” means Continual Professional Development in terms of which points are awarded to a fitness professional by the Authority for courses and workshops that such a fitness professional has attended throughout his or her year of registration as a fitness professional; 

“de-accreditation” means an action as contemplated in section 38;

“director” means a director of the Authority appointed in terms of section 16;

“Director-General” means the Director-General of Sport and Recreation South Africa;

“disability” means, including but not limited to, a mobility, intellectual or hearing impairment, such as cerebral palsy, severe epilepsy, amputation, spinal cord injury,

visual impairment, les autres (including dwarves or an impairment resulting from genetic problems);

“disability friendly” means that a fitness establishment has complied with the following:

 

(a) with regard to its facility:

 

(i)         The shower and toilet area must be accessible for a person in a wheelchair in terms of South African Bureau of Standards;

 

(ii)        If a pool is available, the deck of the pool must be accessible for a person in a wheelchair; and

 

(iii)       A person with a disability should be able to train his or her full body in every exercise modality subject to the nature of his or her  disability;

 

(b) with regard to its equipment:

 

(i)         Specialized equipment for a person with a disability must be available at gold and platinum fitness establishments;

 

(ii)        A wheelchair should, as far as reasonably possible, be able to move freely between all the equipment of the fitness establishment;

 

(iii)       Sufficient equipment must be in place at the fitness establishment to enable the person with a disability to train his or her full body in all different modes as referred to in paragraph (a) (iii) above; and

 

(iv)       The said equipment should be well and clearly marked for a person with a visual impairment by means of tactile and braille signage;

 

(c) with regard to its personnel, a qualified assistant must be present at a fitness establishment to assist a person with a disability at all times: Provided that if the person with a disability is accompanied by his or her personal assistant, the personal assistant may assist the person with the disability free of charge;

(d) with regard to emergency procedures, sufficient procedures must be in place to reasonably assist a person with a disability in the case of an emergency in the fitness establishment; and

(e) with regard to safety of disabled persons, a fitness establishment must have at least the following available for disabled persons:

Text Box: (i) a defibrillator; (ii) a fist aid kit specifically equipped for disabled persons; and (iii) two staff members specifically trained to assist disabled persons;

“existing fitness establishment” means a fitness enterprise that is, at the time of the commencement of this Act, already operating as a fitness establishment or maintaining to be such an establishment;

“existing fitness professional” means a professionally qualified person who is, at the time of the promulgation of this Act, already self employed or employed as staff at an accredited fitness establishment;

“fitness” means relative to a person, the latter in a state of being physically, mentally or emotionally fit by way of any mode of equipment or fitness training, irrespective of such equipment or training being cardiovascular, strength, flexability, conditioning or any other mode of equipment or training;

“fitness establishment” means a fitness enterprise that has been accredited by the Authority in terms of section 32 ­

 

(a) in which supervised physical activity takes place to enhance fitness levels, health and wellbeing; and

 

(b) that             offers or provides services or equipment for the purposes of fitness, health and wellbeing

 

irrespective of it charging a fee or not;

“fitness levels” means different levels of fitness that include, but are not limited to cardio-vascular fitness, strength, flexibility, speed, power and agility;

‘fitness professional’ means any qualified person who –

 

(a) is registered in the register of the Authority as a fitness professional in terms of section 43;

 

(b) is trained for the health, wellbeing and fitness industry; and

 

(c) provides professional services in one-on-one or group instruction in any exercise modality;

 

“fitness event” means an event relative to fitness to be hosted at a stadium, venue

or along a route or within their respective precincts as contemplated in the Safety at

Sports and Recreational Events Act, 2010 (Act No. 2 of 2010) where at least 2000

persons shall participate in;

“insurance” means the appropriate insurance as determined from time to time by the Authority in writing in order for a person to be registered as a fitness professional;

“Minister” means the Minister for Sport and Recreation;

“mode” means any mode of fitness training, irrespective of such training being cardiovascular, strength, conditioning or any other mode of training conducted with or without equipment;

"national federation" means a national federation as defined in section 1 of the National Sport and Recreation Act, 1998 (Act No. 110 of 1998 as amended) and for the purposes of this Act, to which a certificate of registration as a controlling body in fitness had been issued in terms of section 43;

“National Qualifications Framework Act” means Act No. 67 of 2008; “new fitness establishment” means a fitness enterprise that has, prior to the

commencement of this Act, never before operated as a fitness establishment and that intends to be accredited as a fitness establishment in terms of section 32; “Occupational Health and Safety Act” means Act No. 85 of 1993; “owner or manager” means the owner or manager of a fitness establishment; “person” means any natural person or juristic person, if applicable; “personnel” means registered fitness professionals that are self employed or

employed as staff at an accredited fitness establishment in terms of this Act;

“planned fitness establishment” means a fitness enterprise that is, at the commencement of this Act, still in the planning stages of its development; ‘‘precinct’’ means an enclosed or clearly defined surrounding area or environs or a

specifically designated or sign-posted area immediately adjacent to or in close proximity to a fitness establishment;

"prescribed" means prescribed by regulation made under section 48; “Promotion of Access to Information Act” means Act No. 2 of 2000; “Promotion of Administrative Justice Act” means Act No. 3 of 2000; “Promotion of Equality and Prevention of Unfair Discrimination Act” means Act

No. 4 of 2000; "provincial federation" means a provincial governing body of a of sport in a province of the Republic recognised by the relevant national federation as the only

authority for the administration and control of the relative form of fitness in that province and for the purposes of this Act, to which a certificate of registration as a controlling body in fitness had been issued in terms of section 43;

“qualified assistant” means a person referred to in the definition of “disability friendly” under the personnel of the fitness establishment, who has successfully completed a course as determined by the Authority in writing from time to time relative to persons with disabilities in sport, recreation and fitness activities or any equivalent qualification;

“register” means a register of the Authority as contemplated in section 43 that contains a list of current registered controlling bodies, fitness professionals and accredited fitness establishments;

“registration” means, subject to compliance with sections 22, 23, 24, 27, 32, 33 and 36 of this Act, the registration of a controlling body, fitness professional or fitness establishment by the Authority by –

 

(a) making the necessary entry of a successful applicant in the register as contemplated in section 43; and

 

(b) the issuing of a registration or accreditation certificate by the Authority to the applicant authorizing it, him or her, subject to the provisions of this Act or any other law, to operate or practice as a controlling body, fitness professional or fitness establishment within the stipulated scope of operation or practice as contained in the said certificate;

 

“registered fitness professional” means any person who has been and is currently still registered by the Authority as a fitness professional in terms of this Act;

“regulation” means a regulation made in terms of section 48;

SAQA” means the South African Qualification Authority;

“South African Qualifications Authority Act” means Act No. 58 of 1995;

“specialized equipment” means any available specialized equipment at a fitness establishment for specific tasks to assist a person with a disability which may include existing equipment adapted for a disabled person after obtaining the written authorization of the manufacturer of the equipment in order not to compromise the terms and conditions of the guarantee provided by the manufacturer for such equipment;

“Sport and Recreation South Africa” means the national Department of Sport and Recreation; and

“standards” means the agreed upon criteria that a fitness professional needs to meet as set out by the Authority from time to time in writing.

"the Constitution of the Republic" means the Constitution of the Republic of South Africa, 1996;

"the National Sport and Recreation Act, 1998" means the National Sport and Recreation Act, 1998 (Act No. 110 of 1998 as amended);

"the Promotion of Administrative Justice Act, 2000" means the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000);

"the Safety at Sports and Recreational Events Act, 2010" means the Safety at Sports and Recreational Events Act, 2010 (Act No. 2 of 2010); and

"this Act" includes the regulations made under it.

Objects of Act

2. The objects of this Act are to—

 

(a) give effect to the provisions of the Constitution of the Republic;

(b)        regulate, control and exercise general supervision over the fitness industry in the Republic;

(c)        protect and regulate the interests of participants and other stakeholders involved in fitness matters;

(d)        promote—

 

(i)         orderly collective action;

 

(ii)        fitness in the Republic; and

 

(iii)       the effective resolution of fitness disputes;

 

(e)        eliminate undesirable practices;

(f)        maintain the highest level of efficiency in fitness;

(g)        subject to recognising the rules and regulations of the international federations relative to fitness, provide a framework within which participants in fitness and all other stakeholders in fitness must—

 

(i)         collectively determine terms and conditions of their fitness relationship and other matters of mutual interest;

 

(ii)        formulate a fitness policy; and

 

(iii)       formulate an anti-doping policy;

 

(h)        give effect to all the rights conferred and duties imposed in terms of this Act, and the rights and duties of a participant in fitness as a member of an international fitness body or organisation;

(i)         provide for the registration and licensing of stakeholders in fitness and to

 

ensure proper control and democratic practices in the process;

 

(j)         provide for the resolution of fitness disputes through arbitration, appeal and independent alternative dispute resolution services accredited for that purpose;

(k)        provide for disciplinary mechanisms to ensure the maintenance of discipline in fitness;

(l)         provide for marketing mechanisms to promote fitness in general;

(m)      provide for a working relationship in fitness structures;

(n)        ensure that provision is adequately being made for rules and regulations within which legal framework both professional and amateur fitness participants may participate in fitness;

(o)        consider the recognition of all international fitness bodies or organisations; and

(q)        provide for incidental matters.


 

Interpretation of Act

3. In the event of any conflict between this Act and any other legislation save for the Constitution of the Republic, this Act shall prevail.

CHAPTER 2 FITNESS INDUSTRY REGULATORY AUTHORITY

Establishment of Fitness Industry Regulatory Authority

4. (1) A juristic person to be known as the Fitness Industry Regulatory Authority is hereby established.

(2) The head office of the Authority is situated in Pretoria.

 

Objects of Authority

5. The primary objects of the Authority are to –

 

(a) administer, govern and regulate fitness in the Republic;

(b) exercise effective control over the practice of the occupation of all forms of fitness  via its respective controlling bodies in the public and national interest;

(c) promote legitimate controlling bodies which must act in accordance with the principles contained in the Constitution of the Republic and any other applicable laws, including but not limited to its constitutions, rules and regulations of such controlling bodies;

(d) ensure that all controlling bodies, fitness professionals or fitness establishments act in the public and national interest in the rendering of fitness in relation to both amateur and professional fitness in the Republic;

(e) promote fitness as an industry which is characterized by professionalism, transparency, accountability, equality and accessibility;

(f) promote stability within all forms of fitness;

(g) promote and encourage the trustworthiness and integrity of controlling bodies, fitness professionals or fitness establishments;

(h) determine and enforce minimum standards of occupational conduct in respect of all fitness being participated in under the auspices of such controlling bodies, fitness professionals or fitness establishments;

(i) encourage and promote efficiency in and responsibility with regard to the promotion of all forms of fitness;

(j) promote, maintain and protect the status and interests of the occupation associated with fitness by way of its respective controlling bodies, fitness professionals or fitness establishments;

(k) ensure that the process of registration of controlling bodies, fitness professionals or fitness establishments in terms of this Act are transparent, fair, objective and concluded timeously;

(l) promote high standards of management in and of controlling bodies, fitness professionals or fitness establishments;

(m) encourage ownership and control of fitness as a business by persons historically disadvantaged through unfair discrimination;

(n) encourage equal opportunity employment practices in fitness;

(o) promote the protection and enforcement of the rights of controlling bodies, fitness professionals, fitness establishments and other employees in fitness;

(p) ensure that compliance with existing legislation by controlling bodies, fitness professionals, fitness establishments and other employees in fitness are being promoted and controlled through a process of active monitoring and investigation of their respective affairs;

(q) protect the interests of controlling bodies, fitness professionals, fitness establishments and other employees in fitness; and

(r) promote the development of fitness in such a manner to demonstrate a substantial responsiveness and fulfillment to the needs of controlling bodies, fitness professionals, fitness establishments and other employees in fitness and other employees in fitness.


 

Functions of Authority

6. The Authority must take steps to achieve its objects with the means at its disposal and may, subject to this Act and any other law, for the purpose of achieving its objects­

 

(a) exercise such powers and perform such duties as may be given or assigned to the Authority in terms of this Act or any other law;

 

(b) enquire into and report to the Minister in writing or otherwise on any matter concerning the objects of the Authority;

 

(c) advise the Minister in writing or otherwise on any matter–

 

(i)         deemed by the Authority to be necessary or expedient to be considered by the Minister in connection with the provisions of this Act or the application thereof; and

 

(ii)        relating to fitness which has been referred by the Minister to the Authority for the advice and recommendations of the Authority;

 

(d) conduct an ongoing study and investigation so as to –

 

(i)         administer, govern and regulate fitness and practices of controlling bodies, fitness professionals, fitness establishments and other employees in fitness;

 

(ii)        identify shortcomings in fitness, this Act and any policy or rule made in terms thereof; and

 

(iii)       to deal with any evasion, abuse or violation of the procedures or principles contained in this Act or any policy or rule made in terms thereof;

 

(e) institute legal proceedings and defend or oppose any legal proceedings against the Authority;

(f) receive and consider applications for the registration or renewal of its registration from controlling bodies, fitness professionals and fitness establishments and grant or renew the registration of such applicants that comply with the requirements for such registration or the renewal in terms of this Act;

(g) suspend or withdraw the registration status of controlling bodies, fitness professionals and fitness establishments in terms of this Act;

(h) take such steps as may be necessary to develop and maintain standards and regulate practices in connection with the occupation of fitness exercised by controlling bodies, persons pursuing or intending to pursue such occupation, fitness professionals and fitness establishments;

(i) gather information relevant to the occupation of fitness exercised by controlling bodies, fitness professionals, fitness establishments and other employees in fitness

 

in connection with persons who are managing fitness or who are applying to be registered as such;

 

(j) take steps to protect and assist controlling bodies, fitness professionals, fitness establishments and other employees in fitness against or in regard to acts, practices and consequences of exploitation or abuse;

(k) take such steps as may be expedient or necessary in connection with the training of controlling bodies, fitness professionals, fitness establishments and other employees in fitness to ensure a high quality of training and in particular with regard to ­

 

(a) set standards in respect of the training of controlling bodies, fitness professionals, fitness establishments and other employees in fitness; and

 

(b) formulate, implement or monitor skills development plans for the fitness industry;

 

(v)        the appointment of persons to monitor and assess achievements or outcomes in respect of standards applicable to fitness training; and

 

(vi)       the taking of reasonable steps to verify the authenticity of fitness training certificates presented to the Authority by persons for the purposes of this Act;

 

(l) develop and maintain a computerized data base with information required for the

 

Text Box: (i) good governance; (ii) accountability; (iii) financial management; (iv) the participation in the activities of other bodies or persons entitled by law to –

proper performance of the Authority’s functions;

 

 

(m) establish and manage branch offices of the Authority;

(n) provide or disseminate information promoting and encouraging compliance with this Act, the Constitution of the Republic, the constitution and any other regulatory documents of controlling bodies;

(o) provide information to the users, prospective users or representatives of users Relative to fitness regarding the compliance by controlling bodies, fitness professionals, fitness establishments and other employees in fitness with the provisions of this Act;

(p) in the prescribed manner establish a complaints office to receive, process, refer or deal with complaints regarding the quality of service rendered by controlling bodies, fitness professionals, fitness establishments and other employees in fitness;

(q) furnish information required by any department or any organ of State for the purposes of the Authority’s official functions;

(r) receive, expend and generally administer funds;

(s) open accounts with any banking or other financial institution approved by the National Treasury;

(t) invest money deposited with the Authority with financial institutions registered in terms of any law;

(u) determine, charge and collect fees as provided for in this Act or in respect of any service rendered by the Authority or any object made available by the Authority;

(v) acquire or hire movable or immovable property, or hypothecate, let, sell or otherwise dispose of movable or immovable property of the Authority;

(w) accept donations to be made to the Authority with the approval of the Minister;

(x) raise finance from other sources in the course of the normal business of the Authority;

(y) manage and safeguard the assets of the Authority;

(z) determine minimum internal control systems for controlling bodies and fitness establishments, including but not limited to, accounting and reporting procedures and any other procedures or systems;

(aa) become a member of an association or organization or similar body which seeks to promote any matter in which the Authority has an interest;

(bb) establish relations with or enter into co-operation agreements with bodies or offices regulating controlling bodies, fitness professionals, fitness establishments and other employees in fitness in other countries, or bodies representing such regulators;

(cc) conduct, or cause to be conducted, hearings, investigations and inquiries with regard to any matter falling within the scope of its functions;

(dd) enter into contracts including insurance agreements;

(ee) enter into agreements with or obtain the assistance of any department or organ of the State to conduct or assist it in conducting any investigation or performing any other functions in terms of this Act;

(ff) cooperate with any person or body in the performance of an act which the Authority by law is permitted to perform; and

(gg) generally perform any act that contributes to the attainment of its objects.

 

Governance of Authority

7. (I) The Authority is governed and controlled by the Council contemplated in section 8 in accordance with this Act.

 

(2) The Authority acts through the Council and all acts of the Council are regarded as acts of the Authority.

 

(3) The Authority must be impartial in the performance of its functions and must ensure that in the taking of decisions or other steps, it complies with all legal requirements for just administrative action.

 

(4) The Authority must otherwise perform its functions in terms of this Act and in accordance with such guidelines and policy directions as may be issued by the Minister from time to time by notice in the Gazette.

 

(5) A guideline or policy direction issued by the Minister in terms of this section may be amended, withdrawn or substituted by the Minister, by notice in the

 

Gazette.


 

Establishment of Council and appointment of councilors

8. The Council for the Authority is hereby established and consists of the following councilors:

 

(a) a chairperson;

 

(b) a vice-chairperson; and

 

(c) three additional councilors appointed by the Minister in writing.

 

Disqualifications for appointment as councilor

9. A person may not be appointed as a councilor if such a person ­

 

(a) is not a citizen of or does not have permanent resident status in the Republic;

 

(b)        has a direct or indirect financial or personal interest in the fitness industry; or

 

(c)        represents or is a member of a body representing the interests of controlling bodies, fitness establishments, fitness professionals or employees under the auspices of such controlling bodies or fitness establishments.

 

(d) is not a fit and proper person to hold office as a councilor; or

 

(e) is an unrehabilitated insolvent.

 


 

Terms and conditions of office, vacation of office and payment of remuneration and allowances of councilors

10. (1) A councilor is, subject to this section, appointed for a period not exceeding three years, on such terms and conditions as the Minister may determine in a letter of appointment.

 

(2) A councilor is eligible for reappointment upon the expiry of his or her term of office, for a period not exceeding two additional terms, if he or she continues to meet the requirements for such appointment in terms of this Act.

 

(3) A councilor vacates office when­

 

(a) he or she becomes subject to any disqualification referred to in section 9;

(b) he or she has been absent from three consecutive meetings of the Council without leave of the Council;

(c) he or she is removed from office in terms of subsection (4) hereunder; or

(d) his or her written resignation is accepted by the Council in writing

(4) A member of the Council may at any time be suspended or removed from office by the Minister, if there is a sound reason for doing so.

(5) If a councilor ceases to hold office, the Minister must, with due regard to section 9, within a reasonable time appoint a person to fill the vacancy for the unexpired portion of the former councilor’s term of office.

(6) A councilor, or a member of a committee appointed by the Council, who is not an employee of the Authority or an officer or employee in the Public Service, may be paid from the funds of the Authority such remuneration and allowances as the Council may determine with the concurrence of the Minister and the Minister of Finance.

(7) The remuneration and allowances referred to in subsection (6) may differ according to different offices held by councilors or other persons or the different functions performed by them.


 

Functions of Council and its chairperson

11. (1) The Council ­

 

(a) must take steps to achieve the objects of the Authority contemplated in section 5 and to ensure performance of the duties of the Authority;

 

(b) must oversee and exercise general control over the performance of the functions of the Authority and of the activities of the persons appointed by it to perform the work of the Authority; and

 

(c) may by notice in the Gazette make rules, subject to the provisions of this Act regarding ­

 

(i)         the good management of the affairs of the Council and the effective functions of the Authority; and

 

(ii)        any matter necessary or expedient for the proper performance of the execution of its functions.

 

(2) The chairperson ­

 

(a) may, subject to ratification by the Council, exercise any power of the Council or fulfill any of its duties;

(b) must prepare the agenda of meetings of the Council;

(c) must sign the minutes of meetings of the Council;

(d) must provide strategic direction to the director appointed in terms of section 16 and the Council;

(e) may attend meetings of the senior management of the staff of the Authority; and

(f) must establish and maintain liaison with the Director-General relative to the rendering of its services and to ensure that transformation is effectively taken place and maintained in the fitness industry.


 

Accountability of Council

12. (1) The Council is accountable to the Minister for the performance of its functions and must ­

 

(a) supply the Minister with such information and particulars as the Minister may in writing require in connection with the functions of the Authority or any other matter relating to the Authority;

 

(b) as soon as may be reasonably practicable after the end of each financial year, but in any event within three months of the end of financial year of the Authority, supply the Minister with a copy of ­

 

(i)         the annual report on the activities of the Authority and the Council; and

 

(ii)        the audited financial statements contemplated in section 20 (1), including any notes to the financial statements and the audit opinion of a duly appointed auditor contemplated in section 20 (2); and

 

(c) table a copy of the annual report contemplated in paragraph (b)(i) above in Parliament and present such further reports to Parliament as Parliament may request.

 

(2) For the purposes of this section, the annual report contemplated in subsection (1)(b)(i) must contain a fair account of the regulatory activities of the Authority, information on any other matter required by the Minister in writing, and

 

information on any matter which it is necessary or expedient to bring to the attention of the Minister.

 

Ministerial supervision of Authority

13. If the Council or the Authority cannot or does not maintain an acceptable standard in the fulfillment of one or more of its functions in terms of this Act, the Minister may intervene by taking any appropriate step to ensure the proper fulfillment of that function, including but not limited to ­

 

(a) the issuing of a directive to the Council or the Authority, describing the extent of the failure and stating the steps required to remedy the situation;

 

(b) assuming responsibility for the relevant function or duty to the extent necessary ­

 

(i)         to maintain an acceptable standard; or

 

(ii)        to prevent the Council, the Authority or any person appointed by the Council or the Authority, from taking any action which is prejudicial to the objects of the Authority; and

 

(c) dissolving the Council and appointing a new Council.

 

 

Meetings and conflict of interests

14. (1) (a) The first meeting of the Council must be held on such a date and at such a time and place as the Minister may determine.

 

(b) All meetings of the Council thereafter must be held on such dates and at such times and places as the chairperson may determine in writing in consultation with the Council.

(2) (a) The chairperson may at any time convene a special meeting of the Council and must also convene such a meeting at the written request of the Minister.

(b) If at least three councilors request a special meeting in writing, the chairperson must convene such a meeting within seven days after receiving the request.

(3) The quorum for any meeting of the Council is a simple majority of the councilors in office at the time.

(4) Subject to subsection (3), a decision of the Council is taken by resolution agreed to by the majority of councilors at any meeting of the Council.

(5) In the event of an equality of votes regarding any matter, the chairperson has a casting vote in addition to his or her deliberative vote.

(6) The procedure at a meeting of the Council must be determined by the chairperson in consultation with the Council and any decision in this regard must be taken after due consideration of transparency and fairness: Provided that the law generally applicable to meeting procedures in the Republic must apply in the absence of a determination or agreement on the procedure to be followed.

(7) The chairperson may, after consultation with the Council, require the director or a deputy director contemplated in section 16(1) to allow any person to attend any meeting of the Council on such conditions as the chairperson may determine.

(8) A decision taken by the Council or an act performed by it in terms of that decision, is not invalid merely by reason of ­

(a) any irregularity in the appointment of a councilor;

(b) a vacancy in the Council;

(c) the fact that any person was not entitled to sit as councilor at the time the decision was taken; or

(d) the fact that a councilor is guilty of an act or omission justifying his or her removal from office, if such decision was taken by a majority of councilors present at the time

and entitled so to sit, and those councilors at the time constituted a quorum in terms of subsection (3).

(9) A councilor may not attend, vote at, participate in or influence any meeting or decision of the Council, if the councilor has a conflict of interests which may reasonably be seen to preclude the councilor from performing the relevant function in a fair, unbiased and proper manner.

(10) When the chairperson is absent or is unable to perform functions as chairperson or whenever the office of the chairperson is vacant, the vice-chairperson must act as chairperson during such absence or incapacity or until a chairperson is appointed.

(11) (a) If both the chairperson and the vice-chairperson are absent or unable to perform the functions of the chairperson, the Council must appoint any other member to act as chairperson during such absence or incapacity.

(b) If both the office of the chairperson and that of the vice-chairperson are vacant, the Minister must appoint any other person to act as chairperson until a chairperson or vice-chairperson is appointed.


 

Committees to assist Council

15. (1) The Council may appoint one or more committees consisting of one or more councilors, or one or more councilors and one or more other persons, or one or more other persons to advise or assist the Authority in relation to any matter referred to it by the Council and to report on that matter to the Council.

 

(2) The Council may establish committees representing different sectors, disciplines or interests in the fitness industry to advise it regarding the regulation of controlling bodies.

(3) The Council may designate a person as the chairperson of any committee if such committee consists of more than one member.

(4) A committee must perform its functions subject to the provisions of this Act and any directives of the Council.

(5) The Council is not legally bound to accept any recommendation made by a committee.


 

Staff of Authority

16. (1) The Council must appoint a suitably qualified and experienced person as the director of the Authority, as well as three deputy directors, on such conditions and terms as may be determined by the Council in writing.

 

(2) The director and deputy directors of the Authority must, subject to the Council’s direction, control and approval ­

(a) establish administrative structures and divisions necessary for the performance of the functions of the Authority, which must include an office of the director, a finance and administration division, a law enforcement division and a training and communication division;

(b) manage the day to day operations of the Authority and the execution of its financial and administrative, law enforcement, training, communication and other functions;

(c) ensure that the functions of the Authority are performed in terms of this Act;

(d) manage, control and oversee the staff of the Authority as well as the performance of their functions;

(e) report to the Council on the performance and functioning of the Authority;

(f) prepare the business plan of the Authority; and

(g) perform any other function assigned to them by the Council in writing or otherwise.

(3) The director and deputy directors of the Authority may in writing, with the written approval of the Council, delegate any of their powers, and assign any of their duties, to a staff member of the Authority.

(4) (a) The director of the Authority may appoint, subject to this Act and to the general or special written directions of the Council, the staff of the Authority that may

be necessary to perform the work arising from or connected with the Authority’s

functions in terms of this Act.

 

(b) The director must in the appointment of staff provide for the advancement of persons historically disadvantaged by unfair discrimination, with the aim that its staff, when viewed collectively, must represent a broad cross-section of the population of the Republic and must generally apply equal employment opportunity practices.

 

(c) Staff members of the Authority may not have any financial interest in the fitness industry and must successfully undergo such security clearance check conducted by the National Intelligence Agency, as may be determined by the Council if this is relevant in respect of their work.

 

(5) Staff appointed in terms of this section may either be appointed as employees or in terms of a contract for a fixed period.

 

(6) The terms and conditions of service of the Authority’s staff and their remuneration, allowances, subsidies and other service benefits must be determined by the Council with the concurrence of the Minister and the Minister of Finance from time to time.

 


 

Delegation of powers and assignment of duties by Council

17. (1) Subject to subsection (5), the Council may assign any of its functions or duties and delegate any of its powers, except the power to make rules to its chairperson or to any committee appointed in terms of section 15.

(2)The Council is neither divested of any power nor relieved of any duty it may have delegated or assigned.

(3) Any delegation or assignment ­

 

(a) may be made subject to any conditions determined by the Council in writing;

 

(b) may be given together with the power to sub-delegate or further assign, subject to such conditions as may be determined; and

 

(c) must be communicated to the delegatee or assignee in a written notice which contains sufficient particulars of the matters being delegated or assigned and of the conditions attached thereto.

 

(4) The Council may at any time amend or revoke a delegation or assignment made in terms of subsection (3), or withdraw any decision made by the delegatee or assignee with regard to a delegated or assigned matter and decide the matter itself, unless the decision by the delegatee has conferred a right on a third party.

 

(5) The Minister may in a notice addressed to the Council prohibit, limit or impose conditions regarding the­

 

(a) delegation of power to the Council; or

 

(b) assignment of any duty of the Council.

 


 

Funds of Authority

18. (1) The funds of the Authority consist of money from any legitimate source, received by or which has accrued to the Authority in terms of this Act or any other law.

(2) The Authority must use its funds for defraying the expenditure incurred in the achievement of its objects and the performance of its functions in terms of this Act.

 

Bookkeeping and financial statements

19. (1) The Authority must keep such accounting records as are necessary to reflect the transactions and financial state of affairs of the Authority.

 

(2) The Authority must, in respect of each financial year of the Authority, make out financial statements and cause such statements to be audited by a registered accountant and auditor contemplated in section 20 (2).

 

(3) The financial statements referred to in subsection (2) must­

 

(a) be prepared in accordance with generally accepted accounting practice as by the South African Institute of Chartered Accountants;

 

(b) by means of figures and a descriptive report, explain all matters and information material to the financial affairs of the Authority; and

 

(c) include –

 

(i)         a balance sheet dealing with the assets and liabilities of the Authority;

 

(ii)        an income statement or any similar financial statement dealing with the income and expenditure of the Authority; and

 

(iii)       a statement of cash flows.


 

Auditing

20. (1) The accounting records and annual financial statements of the Authority must be audited annually by persons appointed by the Council.

(2) No person may be appointed in terms of subsection (1), unless he or she is registered in terms of the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991) as an accountant and auditor engaged in public practice.

 

Financial year

21. The financial year of the Authority is a year ending on 31 March. CHAPTER 3

 

REGISTRATION AS CONTROLLING BODIES, FITNESS POFESSIONALS AND FITNESS ESTABLISHMENTS Obligation to register as controlling body and exemptions

22. (1) A controlling body may not in any manner administer, govern and regulate fitness in the Republic, unless such it is registered as a controlling body in terms of section 43 of this Act.

 

(2) Any contract, whether concluded before or after the commencement of this Act, which is inconsistent with a provision contained in subsection (1) is invalid to the extent to which it is so inconsistent.

 

(3) The invalidity of a contract as contemplated in subsection (2), does not affect the applicability of any provision of this Act.

 

(4) The Minister may, after consultation with the Authority, by notice in the Gazette exempt a controlling body either generally or subject to such conditions as

may be specified in the notice, from the operation of all or any of the provisions of this Act.

(5) The exemption as contemplated in subsection (4) may only be applicable to a government Department that provides fitness training as its core function, including but not limited to, the departments of Police, Defense Force and Correctional Services.

 

(6) The Authority must make a database of all registered controlling bodies available annually by way of a publication on the website of Sport and Recreation South Africa (www.srsa.gov.za) or by way of a fitness industry appropriate communication to all fitness stakeholders and to members of the public, if requested to do so in writing, but subject to the provisions of the said Promotion of Access to Information Act.

 

(7) The Authority may cancel or suspend the name of any controlling body from the register of the Authority if, in the opinion of the Authority, such a controlling body, by reason of –

 

(i)         a conviction, in the Republic or elsewhere, of an offence;

 

(ii)        a contravention of the terms and conditions of its registration certificate as a controlling body;

 

(iii) a contravention of the code of conduct and ethical code of conduct of the Authority respectively; and

(iv) any other person or body advising the Authority of incidences in writing relative to a controlling body which, after a proper investigation into the allegation by the Authority, by nature necessitate the Authority to cancel or suspend such a controlling body’s registration certificate.

Application for registration by controlling body

23. (1) An application for registration as a controlling body must be made to

Authority in the prescribed manner and must be accompanied by ­

 

 

(a) a clear and complete application submitted in the prescribed manner –

 

(i)  by the applicant, if the applicant is a natural person;

 

(ii) by each director, if the applicant is a company;

 

(iii) by each member, if the applicant is a close corporation;

 

(iv) by each partner, if the applicant is a partnership;

 

(v) by each trustee, if the applicant is a trust; and

 

(vi)       by each administrator or person in control, if the applicant is a foundation;

 

(b) registration fee as determined annually by the Authority; and

 

(c) any other document or certificate required in terms of this Act or by the Authority to be submitted by the controlling body with an application for registration.

 

(2) A controlling body applying in terms of subsection (1) for registration as a controlling body must furnish such additional particulars in connection with the application as the Authority may determine in writing or otherwise.

 

(3) If the Authority is of the opinion that the provisions of this Act have been complied with in respect of an application referred to in subsection (1), it may grant such application and register the applicant as a controlling body relative to the form of fitness stipulated in its, his or her application.

 

(4) The period of registration referred to in subsection (3) shall be automatically renewed by the Authority on an annual basis, subject to a controlling body complying fully with the terms and conditions of its registration and the provisions of this Act.

 

(5) In the event of the Authority deciding not to renew the registration of a controlling body the provisions as contemplated in section 23 must be adhered to afresh.

 


 

Requirements for registration as fitness professional

24. (1)An existing fitness professional shall not practice as a fitness professional in the Republic unless he or she, subject to complying with the formalities as contemplated in subsections (2) (a) to (e) and (6):

 

(a)        has applied in writing within six months after the promulgation of this Act to the Authority to be registered as a fitness professional in the register of the Authority; and

 

(b)        is registered in writing by the Authority in terms of this Act within 12 months  after the promulgation of this Act as a fitness professional.

 

(2) An aspiring fitness professional must –

 

(a) apply to the Authority in writing to be registered as such;

 

(b) submit a certified qualification relative to the standards as required by the Authority from time to time;

 

(c) submit such proof of his or her identity and residence;

 

(d)        submit such proof that he or she holds appropriate and adequate insurance; and

 

(e) pay a registration fee as may on an annual basis be prescribed from time to time

 

as required by the Authority.

 

(3) The Authority must –

 

(a)        within 14 days after considering an application in terms of subsection

(2) –

(iii)            give the applicant 30 days to comply with subsections (2) and (3), if the reason for its decision is based on non-compliance thereof; and

(iv)          advise the applicant of his or her right to appeal against its decision as contemplated in section 47; and

(b)        issue a registration certificate to a registered fitness professional subject to such terms and conditions as it deems fit, enabling him or her to practice as a fitness professional within the stipulated scope of practice as contained in the said certificate.

 

Text Box: (i) inform the applicant of its decision in writing; (ii) provide the applicant with written reasons for its decision relative to an unsuccessful application;

 

(4) A registered fitness professional shall at all times conduct himself or herself in accordance with the –

 

(a) provisions of the code of conduct as determined by the Authority from time to time; and

 

(b) terms and conditions as contained in his or her registration certificate issued by the Authority.

 

(5) The Authority may, subject to the compliance with the Promotion of Administrative Justice Act cancel, suspend or amend such registration of a fitness professional if it deems it appropriate.

(6) Subject to subsections (1) and (2), any person applying for registration as a fitness professional may be registered by the Authority as a fitness professional, if the applicant is a fit and proper person to participate or to render a service in the fitness industry and –

(a) is a citizen of or has permanent resident status in the Republic;

(b) is at least 21 years of age;

(c) has complied with the relevant training requirements prescribed for his or her registration as a fitness professional;

(d) was not found guilty of an offence within a period of 10 years immediately before the submission of the application to the Authority;

(e) was not found guilty of improper conduct in terms of this Act within a period of five years immediately before the submission of the application to the Authority;

(f) is mentally sound; and

(g) has paid the relevant registration fee as prescribed.

(7) A fitness professional applying to the Authority for registration as a fitness professional in terms of this section may be so registered only if­

(a) he or she complies with the requirements of subsections (1), (2) and (6); and

(b) such a fitness professional meets the prescribed requirements in respect of such registration.

(8) The Authority may cause any inspection to be held which it deems necessary at any reasonable time to establish whether an applicant meets the requirements for a fitness professional, against payment by the applicant of an amount determined by the Authority for this purpose.

 

(9) The Authority may refuse the registration of any person who­

 

(a) at the time of submission or consideration of the application, is under State investigation in respect of any criminal offence; or

(b) was convicted of an offence for more than 10 years immediately before the submission of the application for registration to the Authority.

(10) Despite the provisions of subsections (6), (7) and (9), the Authority may on good cause shown and on grounds which are not in conflict with the purpose of this Act and the objects of the Authority, register any applicant as a fitness professional.


 

Qualifications required for registration as fitness professionals

25. In order to qualify for registration as a fitness professional, an applicant must have obtained the appropriate qualifications in terms of the National Qualifications Framework Act as determined by the Authority in writing from time to time.

 

Foreign and older qualifications of fitness professionals

26. (1) The Authority may register as a fitness professional, any person who has acquired a qualification or undergone training outside the Republic, if such qualification or training in the opinion of the Authority, is commensurate with the–

 

(a) standards regulated by the Authority;

 

(b) Constitution of the Authority;

 

(c) National Qualifications Framework Act; and

 

(d) rules and regulations of the SAQA.

 

 

(2) The Authority may register as a fitness professional, any person who has acquired an older qualification in the Republic on a provisional basis for a period not exceeding 12 months.

 

(4) A person registered provisionally as a fitness professional by the Authority in terms of subsection (2) may be upgraded to a full membership as a fitness professional of the Authority, subject to such a person –

 

(a) completing a theory paper;

 

(b) completing a practical assessment;

 

(c) going through an accreditation of prior learning; or

 

(d) doing a certification course as determined by the Authority from time to time in writing.

 


 

Period of registration as fitness professional

27. (1) Any person registered by the Authority as a fitness professional in terms of section 43 shall be entitled to practice as such, for a period of 12 months, during which period he or she must satisfy the Authority that he or she:

 

 

(a)        possesses professional knowledge and ability of a standard not lower than determined by the Authority in respect of fitness professionals in the Republic;

 

(b)        is conversant with the laws of the Republic regarding the fitness practice in the area or areas determined by the Authority;

 

(c)        fulfils the terms and conditions contained in his or her final registration certificate as determined by the Authority;

 

(d)        continues to meet his or her CPD quota as determined by the Authority, in writing from time to time; and

 

(e)        complies with any further conditions as determined by the Authority in writing from time to time.

 

 

(2) The period of registration as referred to in subsection (1) shall be automatically renewed by the Authority on an annual basis, subject to a fitness

professional complying fully with the criteria as contemplated in subsection (1)(a) to (e).

(3) In the event of the Authority deciding not to renew the registration of a fitness professional, the provisions as contemplated in section 24 (2), (3) and (6) must be adhered to afresh.

 


 

Registration and other fees of fitness professionals

28. (1)The Authoritymust annually in writing determine the registrationand other fees to be paid by a fitness professional.

(2) Different fees may be fixed in respect of different categories of fitness professionals.

 

Refusal of registration of fitness professionals

29. Notwithstanding any provision to the contrary in this Act, the Authority may, subject to the Promotion of Administrative Justice Act­

 

(a) refuse to register a person who has submitted his or application to be registered as a fitness professional in terms of section 43; or

 

(b)        cancel or suspend the name of any person from the register of the Authority if, in the opinion of the Authority, such a person, by reason of –

 

(i)  a conviction, in the Republic or elsewhere, of an offence;

 

(ii) a contravention of the terms and conditions of his or her registration certificate as a fitness professional;

 

(iii) a contravention of the code of conduct and ethical code of conduct of the Authority respectively; and

(iv) any other person or body advising the Authority of incidences in writing relative to a fitness professional which, after a proper investigation into the allegation by the Authority, by nature

necessitate the Authority to cancel or suspend such a fitness

professional’s registration certificate.

 

Employment of fitness professionals

30. (1)No person or fitness establishment may employ a person to perform the work of a fitness professional, unless such person is registered as a fitness professional with the Authority in terms of section 43.

.

(2) The prohibition in sub-section (1) shall not apply in respect of a student registered with an accredited education and training provider as defined in the South African Qualifications Authority Act, if the work in question is –

 

(a) performed for purposes of his or her training in the fitness practice; and

 

(b) supervised by a registered fitness professional.

 

 

Disciplinary action against fitness professionals, owners or managers

31. (1) Of its own initiative or by a submission from any person or body, the Authority may convene a disciplinary panel to consider the conduct of a registered fitness professional or an owner or manager: Provided that in the event of a complaint by a person or body ­

 

(a)        the submission to the Authority must be in writing within thirty (30) days after the cause of the complaint has arisen;

 

(b)        such a person or body must confirm his or her willingness in writing to­

 

(i)         testify at a disciplinary hearing, if necessary;

 

(ii)        submit any supporting evidence to the Authority in order to substantiate the said complaint; and

 

(iii)       identify other persons who can assist in the corroboration of the said evidence.

(2) In order to conduct a proper disciplinary hearing, the Authority may of its own accord call­

 

(a) witnesses; and

 

(b) expert witnesses

 

as it deems appropriate by way of a written notification to the witnesses in this regard.

(3) If the Authority is of the opinion that a fitness professional or an owner or manager has contravened the code of conduct for a fitness professional or an owner or manager, the Authority may impose an appropriate sanction, including but not limited to the following:

 

(a)        a written warning to the fitness professional or an owner or manager;

 

(b)        a fine not exceeding R10 000 payable by the said fitness professional owner or manager;

 

(c)        in the case of a fitness professional­

 

(i)         a suspension from the register for a period of time as specified by the Authority in writing;

 

(ii)        the cancellation of the registration certificate of such a fitness professional and the removal of his or her name from the register, subject to the Authority advising Sport and Recreation South Africa of its decision in this regard in writing within 30 days after the decision has been

 

made; and

(d) in the case of an owner or manager of a fitness establishment ­

 

(i)         a suspension of a owner or manager of the fitness establishment for a period of time as specified by the Authority in writing; or

 

(ii) a     notification to such owner or manager in writing of any decision taken by the Authority and the reasons for taken it in terms of this regulation.

 

 

Accreditation as fitness establishment

32. (1) An existing or new fitness establishment shall not conduct business as a fitness establishment unless:

 

(a) it     has applied in writing to the Authority within a period not exceeding six months after the commencement of this Act for the accreditation of such an establishment;

 

(b) it is accredited by way of the issuing of an accreditation certificate by the Authority within a period not exceeding 24 months after the commencement of this Act; and

 

(c) it has complied with the provisions of –

 

(i)         the Occupational Health and Safety Act;

 

(ii) the General Safety Regulations to the Occupational Health and Safety Act; and

 

(iii)the Promotion of Equality and Prevention of Unfair Discrimination Act.

(2) The Authority must, after consultation with the relevant controlling bodies, fitness professionals and fitness establishments that fall under the auspices of these controlling bodies ­

 

 

(a) accredit and grade all fitness establishments in the Republic in writing; and

 

(b) determine the basic requirements relative to the types of equipment and minimum equipment to be utilized at such an establishment

 

in writing.

 

(3) A fitness establishment may be awarded an accreditation certificate to offer a service above its level of grading by the Authority, if applicable, if the establishment satisfies the Authority that it complies with the requirements for such a higher grading as determined by the Authority.

 

(4) A fitness establishment must at all times comply with the requirements of its conditions of accreditation as determined by the Authority in writing.

 

(5) A fitness establishment must, after being accredited by the Authority, ensure that it fully complies with the Promotion of Equality and Prevention of Unfair Discrimination Act and the Occupational Health and Safety Act.

 

 

Refusal, cancellation or suspension of accreditation of fitness establishment

33. (1) A fitness establishment that, in the opinion of the Authority, does not comply with the criteria for accreditation as determined by the Authority may be refused accreditation by the Authority.

(2) Should an accredited fitness establishment –

 

(a) breach any term or condition of its accreditation or provision of this Act; and

 

(b) fail to remedy such breach within 14 days after receiving written notice of the Authority requiring such remedy,

 

the Authority shall be entitled without prejudice to its rights in law and irrespective of the materiality of such breach or provision, to cancel or suspend the accreditation by informing the fitness establishment in writing of its decision in this regard, subject to compliance with the Promotion of Administrative Justice Act.

(3) Notwithstanding the provisions as contemplated in subsection (1), the Authority may, if the breach of a term or condition of the accreditation of a fitness establishment or provision of this Act, is of such a serious nature that necessitate immediate steps to be taken, cancel or suspend the accreditation with immediate effect in writing, subject to compliance with the Promotion of Administrative Justice Act.

 

Disability friendly status of fitness establishments

34. The Authority may only accredit a fitness establishment, if such establishment has attained the status of “disability friendly” as defined in section 1, subject to the relevant exceptions referred to in this definition.

 

Database of accredited fitness establishments

35. (1) The Authority must keep a database of accredited fitness establishments classified according to the grade of its accreditation.

(2) The Authority must make this database available annually by way of a publication on the website of Sport and Recreation South Africa (www.srsa.gov.za) or by way of a fitness industry appropriate communication to members of the public, if requested to do so in writing, but subject to the provisions of the said Promotion of Access to Information Act.

 

Period of accreditation of fitness establishment

36. (1) A fitness establishment accredited by the Authority shall be entitled to operate as a fitness establishment, only for an accreditation period or periods as determined by the Authority in writing, during which period the establishment must

satisfy the Authority that all terms and conditions as determined by the Authority from time to time have been met.

 

(2) The period of registration as referred to in subsection (1) shall be automatically renewed by the Authority on an annual basis, subject to a fitness professional complying fully with the criteria of its accreditation.

 

(3) In the event of the Authority deciding not to renew the registration of a fitness professional, the provisions as contemplated in section 24 (2), (3) and (6) must be adhered to afresh.

 

 

Extraordinary audit of fitness establishment

37. Notwithstanding the above, the Authority may of its own initiative convene an extraordinary audit of a fitness establishment.

 

De-accreditation of and other sanctions against fitness establishment

38. If the Authority is of the opinion that a fitness establishment has contravened this Act or its conditions of accreditation as determined by it from time to time, the Authority may, subject to compliance with the Promotion of Administrative Justice Act, impose an appropriate sanction of one or all of the following:

 

(a)        a written warning to the fitness establishment;

 

(b)        a fine not exceeding R 80 000 payable by the fitness establishment to the Authority;

 

(c)        a suspension of the accreditation of the fitness establishment for a period of time as specified by the Authority in writing;

 

(d)        the de-accreditation of the said establishment by stipulating in writing that de-accredited fitness establishment ­

 

 

Text Box: (i) must be closed down; and (ii) may not carry on any of its former activities as an accredited fitness establishment in such de-accredited

state as from a date determined by the Authority in writing

:Provided that if such a de-accredited establishment fails to comply with a stipulation as referred to in subparagraph (i) and (ii) above, it shall commit an offence that is punishable by law; and

(e) the down-grading of the fitness establishment to a level as determined by the Authority in writing, if applicable.

 

Cession of accreditation of fitness establishment

39. A fitness establishment that has been accredited in terms of section 32 shall not be entitled to cede its accreditation to another fitness establishment unless such cession has been approved by the Authority in writing.

 

Accreditation fees of fitness establishment

40. (1) The Authority must annually determine the accreditation fee to be paid by a fitness establishment and publish such fees on the website of Sport and Recreation South Africa (www.srsa.gov.za)

 

(2) Different fees may be fixed in respect of different grades of fitness establishments.

 

(3) The period of registration of an accredited fitness establishment shall be automatically renewed by the Authority on an annual basis, subject to a fitness professional complying fully with the criteria of its accreditation.

 


 

Submission of reports and documents by fitness establishments

41. A fitness establishment must annually submit the following reports to the Authority:

 

(a) an annual audit report of its compliance with health and safety issues relative to its establishment;

 

(b) an example of an advertisement in the media or through any other medium, promoting its business to the public at large;

 

(c) a     report on how the fitness establishment meets its advertising claims as projected in the advertisement referred to in par. (b);

 

(d) a     list of its qualified staff describing their qualifications in order to provide sufficient proof that it is complying to the employment requirements as contemplated in this Act; and

 

(e) a report on its disability compliance as required in terms of this Act.

 

 

Failure to comply by fitness establishment

42. Notwithstanding the provisions as contemplated in this Act, any non­compliance of any of the provisions in this Act by a fitness establishment may be dealt with by the Authority in terms of its constitution, rules and code of conduct.

 

Register of registered controlling bodies, fitness professionals and accredited fitness establishments

43. (1) The Authority must­

 

(a)        keep a register of all registered controlling bodies, fitness professionals and accredited fitness establishments;

(c)        allow the general public to inspect the register by making it available on the website of Sport and Recreation South Africa;

(d)        submit the register annually to Sport and Recreation South Africa;

(e)        submit on an annual basis during the months of June and December respectively ­

 

(i)         an updated copy of the register to Sport and Recreation South Africa reflecting the current registered status of registered controlling bodies, fitness professionals and accredited fitness establishments in the Republic; and

 

(ii) a list of all registered controlling bodies, fitness professionals and accredited fitness establishments whose registration or accreditation status have changed since the submission of the previous copy of the register to Sport and Recreation South Africa; and

 

(f)        respond in writing to any query received by it relative to the registration of a controlling body, fitness professional and fitness establishment within 14 days after receiving such a query.

Text Box: (b) immediately update the register as a result of the canceling, suspending or amending of the membership of a controlling body, fitness professional and fitness establishment;

(2) Notwithstanding the provisions of sub-regulation (1), the Authority shall have the power to outsource the maintenance and upkeep of the register of all registered controlling bodies, fitness professionals and accredited fitness establishments to a suitable body, subject to the Authority entering into a written agreement with such a body containing adequate provisions relative to the roles, duties, functions and obligations of the respective parties in respect of such register and its administration.

CHAPTER 4 CONSTITUTIONS AND POWERS OF CONTROLLING BODIES Constitutions of controlling bodies

44. A registered controlling body shall be entitled to administer, govern and regulate its form of fitness in the Republic in terms of its own constitution, rules and regulations under the auspices of the Authority and Council, subject to such constitution, rules and regulations totally conforming to –

 

(a)        the Constitution of the Republic;

 

(b)        the provisions of this Act;

 

(c)        the National Sport and Recreation Act, 1998; and

 

(d)        the Safety at Sports and Recreational Events Act, 2010, if applicable.

 

 

Powers of controlling bodies

45. (1) For the purposes of attaining the objects of this Act or its constitution, rules and regulations, a controlling body may—

 

(a)        acquire or hire the property that it considers necessary for the effective performance of its functions;

 

(b)        invest or otherwise deal with its funds not immediately required for the purpose of meeting its financial obligations, of which investments the controlling body is fully responsible and accountable for such investments or actions;

 

(c)        recommend to the Authority to a issue a registration certificate respect of a fitness establishment or a fitness professional under its auspices that qualifies

for the relevant certificate and has applied to the Authority in the prescribed manner;

(d)        examine or test the physical, mental and competence ability of any prospective fitness professional who falls under the auspices of the controlling body and its respective fitness establishments and have been issued with a registration certificate as a fitness professional by the Authority in terms of section 43, subject to such a test being done and overseen by an independent body that has a thorough understanding of and adequate expertise relative to the particular form of fitness of a fitness professional to be tested;

(e)        require any person who wishes to participate or render a service in its form of fitness to produce proof of his or her registration in terms of section 43 as a fitness professional and to furnish the controlling body with the information which it deems necessary;

(f)         recommend to the Authority the suspension, cancellation or renewal any registration certificate of any fitness professional that was issued by the Authority under paragraph (c);

(g)        sanction the holding of fitness events under the controlling bodies auspices, subject to the conditions that it deems fit: Provided that the controlling body may revoke such sanctioning in writing in the event of the event organizer of such a fitness event not complying with any of the requirements for the sanctioning of the fitness event that may be prescribed from time to time or the Safety at Sports and Recreational Events Act, 2010, if applicable;

(h)        provide for a system for the grading of fitness establishments and the rating of fitness events, subject to obtaining the written approval of the Authority;

(i)         institute disciplinary measures against any person involved in fitness who falls under the auspices of the controlling body;

(j)         recommend to the Authority to impose punishment in the form of a fine or the cancellation or suspension of a fitness professional’s registration certificate or both such fine and recommendation relative to cancellation or suspension of the fitness professional, subject to the fitness professional being found guilty in a disciplinary hearing by the controlling body as prescribed from time to time;

(k)        subject to compliance with the relevant provisions of the Promotion of Administrative Justice Act, 2000, refuse the participation of a fitness professional or permission to render a service in his or her form of fitness on any of the following grounds, amongst others:

 

(i)         in the case of any fitness professional, if such a person annually, fails to apply to the Authority be registered as such;

 

(ii) in the case of any fitness professional, failing to conform to a code of conduct determined by the Authority or a controlling body in writing;

 

(iii) in the case of any fitness professional, failing to be bound by the provisions of this Act, its Regulations or any other relevant law;

 

(iv) in the case of any fitness professional, acting in any capacity other than that in which he or she has been registered by the Authority in terms of section 43;

 

(v) in the case of any fitness professional, if such a person is found to be registered in more than one capacity at the same time, regardless whether it is in his or her personal capacity or as a shareholder, member or director of a juristic person or as a representative of any person or body;

 

(vi) in the case of any fitness professional, if such a person contravenes any of the conditions associated with his or her registration certificate issued by the Authority to such a person;

 

(vii) in the case of a fitness professional falling under the auspices of the controlling body, if such a professional holds or assists in holding a fitness event whilst —

(aa)      the written approval to hold or assist in holding such an event has not been obtained beforehand from the Authority in writing; and

(bb)      such a fitness professional in his or her capacity as the event organizer of a fitness event, has not complied fully with the provisions of the Safety at Sports and Recreational Events Act, 2010, if applicable;

(viii) in the case of any fitness professional falling under the auspices of the controlling body, where he or she has not complying fully with the provisions of this Act;

(ix) in the case of any fitness professional falling under the auspices of the controlling body –

(aa) putting its form of fitness into disrepute;

(bb) displaying any conduct detrimental to the interests of its form of fitness or the public interest, including but not limited to:—

 

(i)         any breach of a provision of the Act;

 

(ii)        any failure to comply with an oral or written order issued by a controlling body, Authority or Council;

 

(iii)       any failure to honour any contractual obligation; or

(iv)       incompetence relative to the general standard required for such a fitness professional;

 

(l)         enforce any refusal, suspension or cancellation of the registration certificate of any fitness professional as prescribed;

(m)       subject to the provisions of the Safety at Sports and Recreational Events Act, 2010, if applicable, take any steps which a controlling body considers necessary or expedient for the due and proper regulation or control of, or to enable it to exercise due and proper supervision over fitness professionals under its auspices and spectators at fitness events;

(n)        at the written request of an international controlling body which is recognised by the controlling body, host a fitness event on behalf of such international controlling body, subject to the conditions agreed upon in writing and to the provisions of the Safety at Sports and Recreational Events Act, 2010, if applicable; and

(o)        at the written request of an international controlling body which is recognised by it, exercise or perform in any place outside or inside the Republic, any power or function that the controlling body is capable of exercising or performing by virtue of this Act or the constitution of the controlling body.

(2) A controlling body must, subject to the Promotion of Administrative Justice Act, 2000, notify any person whose rights have been adversely affected by any action or decision of the controlling body of –

(a) his or her or its right to request reasons for such an action or decision on application in writing by that person; and

(b) his or her or its right to be granted the opportunity of a hearing to show cause why such action or decision should not have been taken.

 

(3)        A controlling body may—

 

(a) enter into an agreement with any independent person, body or organisation or any agency accredited in writing by a controlling body to perform any function of a controlling body; and

(b) perform any of its functions in association with any other person, body or organisation,

subject to the provisions of this Act and the controlling body ensuring that it has adequate oversight measures in place to monitor and control the proper execution and performance of any of the functions referred to above.

CHAPTER 5

OFFENCES, PENALTIES AND MISCONDUCT

 

Offences

46. (1) A fitness professional is guilty of an offence, if he or she practices as

a fitness professional –

 

(a) without such a person being registered in terms of section 2;

 

(b) without his or her certificate of registration being renewed in terms of

 

section 6 (2); or

 

(c) outside the stipulated scope of practice as contained in his or her certificate of registration as a fitness professional.

 

 

(2) A fitness professional convicted of an offence in terms of this Act, is liable to a fine or to imprisonment for a period not exceeding 3 years, or to both a fine and such imprisonment.

 

(3) A person is guilty of an offence, if he or she employs a person as a fitness professional without ­

 

(a) such a person being registered as a fitness professional in terms of

(b) his or her certificate of registration being renewed in terms of section 27.

(4) A person who illegally employs a person as a fitness professional as contemplated in subsection (3) and who is convicted of an offence in terms of this Act, is liable to a fine or to imprisonment for a period not exceeding 4 years, or to both a fine and such imprisonment.

 

section 43; or

(5) A person who is the owner or manager of a fitness establishment, is guilty

of an offence, if he or she –

 

(a) operates a fitness establishment without the establishment being

 

accredited in terms of section 32;

 

(b) operates a fitness establishment outside the stipulated accreditation period as determined by the Authority in terms of section 36; or

 

(c) cedes a fitness establishment without the written approval of the Authority as contemplated in section 39.

 

(6) A owner or manager convicted of an offence in terms of this Act is liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

 

Dispute resolution and appeals

47. (1) Any dispute arising from any matter pertaining to this Act must be dealt with in accordance with section 14 of the National Sport and Recreation Act, 1998 (Act No. 110 of 1998 as amended).

(2) Notwithstanding the provisions as contemplated in terms of sub­section (1), any person or fitness establishment that is aggrieved by a decision or, where applicable, the terms and conditions attributable to such a decision, taken in

terms of this Act may, within a period of 30 days after service of the notification of the relevant decision, appeal to the Minister in writing;

(3) The Minister may ­

 

(a)        hear and decide on any appeal referred to it in terms sub­section (2);

 

(b)        confirm or set aside any sanction imposed in terms of this Act; and

 

(c)        may in the place of any sanction so set aside, impose any sanction which in his or her opinion should and could lawfully have been imposed.

 

 

(4) Any person or fitness establishment lodging an appeal to the Minister as contemplated in this Act must do so, in writing, within the time frames provided for in terms of this Act in the following manner:

 

(a)        The grounds of appeal must set out fully and clearly the grounds of appeal; and

 

(b)        Any legal representations and arguments which the appellant believes may be relevant to the matter must be set out fully and clearly.

 

(5) An appellant shall be entitled to be represented by a person of his or her or its own choice.

 

(6) The normal generally accepted rules and procedures of administrative law and natural justice shall apply to any appeal lodged as contemplated in this Act.

 

CHAPTER 6

 

GENERAL PROVISIONS

Regulations

48. (1) The Minister may make regulations relating to­

 

(a) any matter which in terms of this Act is required or permitted to be prescribed;

 

(b) the registration by the Authority of a controlling body;

 

(c) the periodic applications for renewal of registration of a controlling body and the conditions upon which such applications are to be granted;

 

(d) the obligatory undergoing of fitness training by fitness professionals;

 

(e) the procedure for –

 

(i) the institution and conduct of improper conduct proceedings or any other inquiry in terms of this Act;

 

(ii) the appointment, powers and duties of presiding officers and other officials in respect of such proceedings or any other inquiry in terms of this Act;

 

(iii) the attendance by a controlling body or fitness professional or any witness, of improper conduct proceedings or any other inquiry in terms of this Act;

 

(iv) cost orders with regard to improper conduct proceedings;

 

(v) the procedure for the payment and collection of fines imposed in respect of improper conduct;

 

(vi)       competent findings and other appropriate orders in respect of improper conduct; and

 

(vii) the confirmation, review or substitution of any finding, punishment or other order contemplated in subparagraph (vi), or the setting aside thereof, by the Authority;

 

(f) the types of information which an controlling body, fitness professional or fitness establishment must furnish to the Authority;

 

(g) the safe-keeping and disposal of records, documents and other objects seized in terms of this Act; and

 

(h) generally, any matter which it is necessary or expedient to prescribe for the attainment or better attainment of the objects of this Act or the performance of the functions of the Authority.

 

(2) Different regulations may be made in terms of subsection (1) with reference to different categories or classes of controlling bodies, fitness professionals and graded fitness establishments.

 

(3) Regulations made in terms of subsection (1) may, in respect of any contravention thereof or failure to comply therewith, prescribe as a penalty a fine or imprisonment for a period not exceeding 24 months.

 


 

Provision of information to Authority

49. (1) Any person involved in fitness must, at the request of the Authority, furnish the Authority with information regarding any previous conviction of a person applying in terms of sections 23, 24 and 32 to be registered or accredited as a controlling body, fitness professional or fitness establishment respectively.

(2) A person in the employ of the State must, subject to any applicable law, at the request of the Authority, must furnish the Authority with such information as may be needed by the Authority in order to perform its functions in terms of this Act.


 

Preservation of confidentiality

50. No person may disclose to any other person any information obtained by him or her in the performance of any function in terms of this Act and which relates to the personal, financial or business affairs of any person or which may be prejudicial to the performance of the functions of the Authority, except –

 

(a) to the extent to which it may be necessary for the proper administration or application of the provisions of this Act;

 

(b) to the extent that this Act or any other applicable law authorizes or compels such disclosure;

 

(c) with the written consent of the Minister; or

 

(d) to the extent that it is necessary for the purposes of pending legal proceedings relating to a matter dealt with in this Act.

 

 

Offences and penalties

51. (1) Any person who –

 

(a) falsely represents himself or herself to be a registered controlling body, fitness professional or accredited fitness establishment respectively; or

 

(b) interferes with, resists, obstructs, hinders or delays any person or other person unlawfully in the performance of any function in terms of this Act,

 

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

 

(2) Any registered controlling body, fitness professional or accredited accredited fitness establishment that –

(a) refuses or fails to comply with any lawful oral or written request of the Authority or a member of the South African Police Service;

(b) without lawful excuse refuses or fails to answer a question put to him or her by the Authority or a member of the South African Police Service; or

(c) makes any statement to the Authority or a member of the South African Police Service which is materially false or produces any document to the Authority or a member of the South African Police Service which is false in any material respect,

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

(3) Any person who –

 

(a) in any application, inquiry, improper conduct proceedings, appeal or other proceedings in terms of this Act, willfully furnishes information or makes a statement which is false in any material respect;

(b) fails to keep a prescribed record or document or fails to keep a prescribed record or document at the premises as required in terms of this Act;

(c) holds itself, himself or herself out as controlling body, fitness professional or fitness establishment respectively whilst it, he or she is not registered or accredited or such registration or accreditation is suspended;

(d) knowingly or without the exercise of reasonable care contracts for the rendering of services relating to fitness contrary to a provision of this Act;

(e) in any manner threatens, or commits an act which is calculated to obstruct or unduly influence a councilor or a staff member of the Authority in the performance of his or her functions in terms of this Act; or

(f) commits an act which is calculated to hinder, impede or obstruct any investigation in terms of this Act,

is guilty of an offence and –

 

(i)         on a conviction of a contravention, is liable to a fine or to imprisonment for a period not exceeding 24 months, or to both a fine and such imprisonment;

 

(ii) on a second conviction of a contravention, is liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment; and

 

(ii)        on a third or subsequent conviction of a contravention, is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment; and

 

(4) Any person who contravenes or fails to comply with any other provision of this Act, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding 24 months, or to both a fine and such imprisonment.

 

Extra-territorial application of Act and jurisdiction

52. (1) Any act constituting a criminal offence in terms of this Act and which is committed outside the Republic by a controlling body, fitness professional or fitness establishment, registered or obliged to be registered in terms of this Act, is deemed to have been committed in the Republic.

 

(2) Any criminal offence in terms of this Act is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed –

 

(a) at the place where it was actually committed;

 

(b) at the place where the accused is resident; or

 

(c) at the place where the accused conducts its, his or her business.

 

Limitation of liability

53. The Minister, someone acting under the authority of the Minister, the Authority, a councilor contemplated in section 8, or any person in the employ of the Authority or performing functions in terms of this Act, is not personally liable in respect of the bona fide exercise of a power or performance of a duty in terms of a provision of this Act, if such exercise or performance was not grossly negligent.

 

Delegation of powers by Minister

54. (1) The Minister may upon such conditions as he or she may deem fit, delegate any of the powers conferred upon him or her by this Act, except the powers mentioned in sections 7, 8, 10, 13, 14, 16, 17, 22 and 48 to the Director General or a senior official in the employ of Sport and Recreation South Africa designated by the Minister after consultation with the Director-General.

(2) No delegation of any power prevents the exercise of such power by the Minister.

 

Transitional provisions

55. (1) An existing fitness establishment shall have a grace period of 36 months as from the commencement of this Act to comply with any structural alterations to such a fitness establishment in order to adhere to any requirement as contemplated in this Act that impacts on the building or its immediate precincts in which the business of such a fitness establishment is conducted.

 

(2) A new fitness establishment shall have a grace period of 60 months as from the commencement of this Act to comply with any structural alterations to such a fitness establishment in order to adhere to any requirement as contemplated

in this Act that impacts on the building or its immediate precincts in which the business of such a fitness establishment is conducted.

(3) A planned fitness establishment must comply with all requirements as contemplated in this Act that impact on the building or its immediate precincts in which the business of such a fitness establishment is to be conducted with immediate effect as from commencement of this Act.

 

Short title

56. This Act is called the Fitness Industry Regulatory Act, 2015.



  
 
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