SOLOMON NICOLSON
Attorneys Notaries and Conveyancers
Prokureurs Notarisse & Aktebesorgers

 

29 August 2006

 

Dear Sirs,

 

 

SUBMISSIONS OF CRICKET SOUTH AFRICA IN REGARD TO NATIONAL SPORT AND RECREATION AMENDMENT BILL

 

 

We act herein on behalf of our client, Cricket South Africa.

 

We have been instructed to forward to you our client’s submissions in regard to the National Sport and Recreation Amendment Bill.

 

We trust that you find the above in order and will be pleased if you will kindly acknowledge receipt hereof.

 

Yours faithfully,

 

 

SOLOMON NICOLSON

                                            

Per

SUBMISSIONS OF CRICKET SOUTH AFRICA IN REGARD

TO NATIONAL SPORT AND RECREATION AMENDMENT BILL

 

 

1.         Introduction

 

1.1               The presentation of the National Sport and Recreation Amendment Bill (“The Bill”) has evoked emotional responses, laced with criticism.

 

1.2               In particular, certain members of the media have adopted a defensive and critical stance in regard to the Bill.

 

1.3               Furthermore, a certain political party has gone as far as utilising a rugby test match to publicise its objections to the Bill.

 

2.         The position of Cricket South Africa

 

Cricket South Africa, however emphasises that this document constitutes submissions made in a constructive and a positive manner, and must kindly not be regarded as “objections” to the Bill.

 

3.         Numerous positive aspects regarding Bill

 

            Cricket South Africa welcomes many of the proposed provisions in the Bill which it endorses and is of the opinion adds substantial value to the administration of sport in our country.

 

4.         Provisions regarding the South African Sports Confederation and Olympic Committee (“SASCOC”)

 

4.1        The ministry is to be congratulated in regard to the various proposed amendments regarding SASCOC and related matters.

 

4.2        In particular, it appeared to South African Cricket that SASCOC has, to an extent existed somewhat in a “legal vacuum” and the proposed amendments incorporate not only good “housekeeping” but also established a firm legal foundation from which SASCOC may operate.

 

4.3               Proposed amendment to Section 2 in terms of the Bill

 

4.3.1     The clarity which this proposal brings in regard to SASCOC as being the sole macro body for high performance sport is to be welcomed.

 

4.3.2          The need for consultation with SASCOC is clearly in the interests of South African Sport and is to be welcomed.

           

5.                      The amendment to paragraph 4 of the Act, in terms of the Bill

 

5.1               Again, this proposal is to be welcomed.

 

5.2               While the concept of an umbrella organisation such as SASCOC clearly has merit, the perception that such an organisation may not be performance-driven, and in fact something of a “white elephant” will be dispelled by the service level agreement which will require it to perform to the standards envisaged in the agreement.

 

5.3               In particular, this is necessary given the media reports of late indicating the apparent tenuous state of SASCOC’s finances, its recent retrenchment of its CEO and apparent difficulty in securing sponsorships.

 

 

 

 

6.                      The proposed amendment of Section 6 in terms of the Bill

 

Again, and given the tragic occurrences at Ellis Park, the provisions hereof are to be welcomed regarding safety issues.

 

7.                      The inclusion of a new paragraph 7 in terms of the Bill

 

7.1               Yet again, the ministry is to be commended regarding the provisions relating to this new section.

 

7.2               The Honourable President of our country and numerous other members of the leadership thereof have continuously expressed the need for education to provide the framework for the improvement of sport administration.

 

7.3               This provision compliments other initiatives, such as those driven by SETA and, for example the executive management programme for Sports Administrators sponsored by a local broadcaster.

 

8.                      The amendments to Section 8, 9, 10 and 11 of the Act by the Bill

 

The proposed amendments in these sections are again most welcome.

 

9.                      Amendment of Section 13 as provided for in the Bill

 

9.1        Sections 13(a)(b) and (c)

 

The proposed amendments to these provisions are of some concern to Cricket South Africa.

 

9.2               Cricket South Africa has an appreciation as to why these provisions may have been included in the Bill.

9.3               It is trite that the frequent disputes in sport of late;

 

9.3.1          Harmed the image of sport in the public domain,

 

9.3.2          Increased tension between the parties by way of acrimonious litigation,

 

9.3.3          Resulted in unnecessary legal costs being incurred, whereas the scarce funds available in sport may have been put to better use,

 

It is, however respectfully submitted that a better avenue for the resolution of such disputes is available to sporting federations.

 

In this regard it is to be emphasised that Cricket South Africa, at its recent annual general meeting agreed to amend its constitution to incorporate alternative dispute resolution mechanisms, which would obviate the necessity of such disputes resulting in litigation with the concomitant negative results thereof.

 

It is submitted, further that all sporting codes should be compelled to incorporate similar dispute resolution provisions in their constitutions and which would exclude the need for SASCOC becoming involved in such disputes.

 

SASCOC, with respect should not be involved in matters of this nature.

 

9.4        Alternative suggestion

 

9.4.1     In the event that Cricket South Africa’s suggestions regarding these provisions are not accepted, and such provisions in essence remain in terms of which SASCOC is required to act as an “arbiter”, then (and only) in such event Cricket South Africa strongly suggests an amendment of the provisions referred to above.

 

9.4.2          The (with respect) legitimate concern which Sporting Federations (including Cricket South Africa) should have in respect hereof is the fact that a dispute (in terms of the Bill) may be referred unilaterally by a member of a sport or recreation body or by the body itself for the decision of SASCOC.

 

9.4.3          Such unilateral action is, with respect at odds with usual provisions of this nature.

 

9.4.4          Provisions which deal with arbitration, mediation, facilitation and the like are usually incorporated into agreements between parties who agree to refer such dispute for resolution in the manner referred to in the relevant clause of the agreement.

 

9.4.5          Cricket South Africa, accordingly suggests that disputes should only be referred to SASCOC for determination when all parties to such dispute agree thereto.  This will ensure that no party can feel aggrieved by the referral to an entity that such aggrieved party does not wish to resolve the matter.

 

9.4.6          To facilitate this, relatively simple amendment to the Bill, it is suggested that Section 13(2) be amended to read:

 

9.4.6.1                “13 (2) Where the dispute cannot be resolved in terms of sub section (1), any member of the sport or recreation body in question who feels aggrieved, or the sport or recreation body itself may, pursuant to agreement thereto by all members or bodies who are a party to the dispute, submit the dispute to SASCOC.”

 

10.         The proposed amendment by the inclusion of Section 13 (5) in terms of the Bill

 

10.1      Cricket South Africa, again has an understanding as to why the Minister may be inclined to be afforded the authority to intervene in any dispute or alleged mismanagement or any other related matter which is likely to bring a sport into disrepute.

 

10.2      We say this, in an unfortunate acknowledgement of the various lapses of Sporting Corporate Governance and otherwise which have occurred in South African sport.

 

10.3      While acknowledging such governance failures, and wishing to pro-actively avoid the repetition of same, it is Cricket South Africa’s respectful submission that this is not the domain of the Minister.

 

10.4      In this regard, reference is made to inter alia one of the highest-profile disputes and examples of governance failures in world sport, which unfortunately occurred within the domain of cricket and which appears in our law reports as Cronje vs United Cricket Board of South Africa 2001(4) SA1361.  In the aforementioned matter, our High Court reaffirmed the common law position regarding the question as to whether or not an association such as the United Cricket Board of South Africa is a public body or a private body.

 

10.5      At page 1375D and further the Court held of the United Cricket Board of South Africa that :

             

10.5.1               “The Respondent is not a public body.  It is a voluntary association wholly unconnected to the state.  It has its origin in contract and not in statute.  Its powers are contractual and not statutory.  Its functions are private and not public.  It is privately and not publicly funded.” 

 

10.5.2               And further at paragraph F “The Conduct of private bodies, such as the Respondent, is ordinarily governed by private law and not public law.  It does not exercise  public power and its conduct is accordingly not subject to the public law rules of natural justice.”

 

10.5.2               The proposed amendment by introducing Section 13(5) and further, would constitute a substantial intervention in the existing common law and would afford to the Minster authority to intervene in a public fashion in matters which are based on private contract.

 

10.5.3               In the circumstances, Cricket South Africa would suggest that such amendments to the Act not be incorporated.

 

              10.6      Alternative suggestion

 

10.6.1               In the event, however that Cricket South Africa’s contention regarding the aforementioned proposed amendments are not accepted, and only in such event, Cricket South Africa has an alternative suggestion.

 

10.6.2               This alternative is suggested in order that the drastic amendment to the common law which is envisaged herein is avoided and  which may indeed have substantial negative results in regard to international Sporting Authorities.  In this regard reference is made to the fact that European Football Champions, Greece were suspended by FIFA, the world body for Football due to the involvement of the Greek Government in the affairs of Greek Football.

 

10.6.3               The manner to deal with disputes, alleged mismanagement or matters which are likely to bring sport into disrepute would, in our respectful submission be better attended to by an institution which is specifically qualified and geared to attend to such matters.

 

10.6.4               International best practice in this regard has resulted in the Court for Arbitration in Sport being formed in Lausanne in Switzerland.

 

10.6.5               This Court for Arbitration in Sport deals with sporting disputes in an expeditious, amicable, cost-effective and subtle manner, unlike the high-profile disputes which have been the subject of the aforementioned litigation.

 

10.6.6               In the circumstances, it is proposed that a similar route be followed in South African Sport by the introduction of a similar process, the basis of which is to be found, in any event already in the Sports Law Association of South Africa (SLASA) which provides a panel of experienced Sports Lawyers who are able to attend to matters of this nature.

 

10.6.7               The introduction of such a mechanism to deal with disputes or alleged mismanagement or other matters as envisaged in section 13(5) by such a body, will avoid the disadvantages of litigation, but not bring with it the negativity associated with interference with the common law, should the Minister be called upon to intervene in such unsavoury matters.

 

11.        The proposed introduction of Section 13A and B in terms of the Bill

 

11.1            Somewhat predictably, it is these provisions which have elicited most of the emotive responses by opponents to the Bill.

 

11.2      Cricket South Africa, on the contrary and fully endorsing the promotion of equity, representivity and redress in sport and recreation supports the introduction of these measures.

 

11.3           Guidelines or policies to promote the important principles which are consistent with international best practice, is in Cricket South Africa’s opinion to be welcomed.

 

11.4           Similarly, the furnishing of statistics by Sport and recreation Bodies as envisaged in Section 13 B, will facilitate not only the promotion of these non-negotiable principles, but provide to the Ministry a mechanism and database which can only improve the administration of sport in our country.

 

12.        The inclusion of the fresh Section 14 as envisaged in the Bill

 

This suggestion is supported by Cricket South Africa.

 

13.            Conclusion

 

13.1      It is respectfully suggested that Cricket South Africa has applied its collective mind pro-actively, positively and constructively in the furnishing of these submissions.

 

13.2      It will be appreciated if the views of Cricket South Africa will be given serious consideration.

 

13.3      In this regard Cricket South Africa would welcome the opportunity to supplement these submissions by oral presentation to the Portfolio Committee on Sport and Recreation in due course. 

 

13.4      Cricket South Africa is grateful for the opportunity to express its opinions in regard to this important bill.

 

 

 

___________________

BRANDON FOOT

On behalf of Cricket South Africa

 

 

Solomon Nicolson

Attorneys

 

 

Date:                29th of August 2006

 

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