South African Institute for Drug-Free Sport Amendment Bill [B7-2006]: deliberations

SPORT AND RECREATION PORTFOLIO COMMITTEE
16 August 2006
SOUTH AFRICAN INSTITUTE FOR DRUG-FREE SPORT AMENDMENT BILL [B7-2006]: DELIBERATIONS

Chairperson: Mr B Khomphela (ANC)

Documents handed out
South African Institute for Drug-Free Sport Amendment Bill [B7-2006]: Part1 & Part2

SUMMARY
The Committee met with the Department of Sport and Recreation legal advisor and other stakeholders to deliberate the Bill. The meeting considered Clauses 5 (b), (d), (e) and (f), outlining the prescribed steps to testing and the duties and responsibilities of the South African Institute for Drug Free Sport. SAIDS would oversee the activities of the various sports federations. Members discussed the operations of the accredited laboratory and the relevance of the World Anti-Doping Agency rules. The Minister could intervene where a dispute prevailed between SAIDS and a particular federation. The role of tribunals in adjudicating on the merits of particular cases was discussed. The implications of a positive test for an athlete were considered. It was stressed that the Bill sought to establish a sound working relationship between SAIDS and other roleplayers including the Department. The meeting then briefly considered Clause 6, and it was agreed that cross-references to other legislation should be kept to the minimum, with clear definitions instead being included.

MINUTES
Mr Gideon Boshoff (Legal Advisor: Department of Sport and Recreation (DSR)) provided an overview of the deliberations from the previous day. He summarised that the Bill provided a definition of a national sports federation. It also would define an international athlete in line with the stipulations of the World Anti-Doping Agency (WADA) Code and the International Sports Federation. The South African Institute for Drug Free Sport (SAIDS) would have to define an athlete at the local level. The Bill also provided for the composition of SAIDS. Candidates would be forwarded to the Minister of Sport and Recreation for consideration. Candidates would have to have particular knowledge and expertise on doping.

Clause 5(b),(e),and (f): Amendment of section 10 of Act 14 of 1997
Mr Boshoff stated that the Bill intended to ensure that all sport federations adhered to anti-doping policies and rules and that an anti-doping WADA-accredited laboratory was established in the Republic. Therefore the word “ensure” was preferable to “encourage”. The phrase “as far as reasonably possible” would be included in (f) in order to address financial concerns. The WADA-accredited laboratory would require a guarantee of financial support for three years. Certain other conditions also had to be met.

The Chairperson stated that members were not opposed to the proposed phrase “as far as reasonably possible” but were cautious about the financial fears of SAIDS.

Dr Bernardus Van der Spuy (Director: Sport and Recreation South Africa (SRSA)) asked what powers SAIDS would have over non-compliant federations. Federations were affiliated to the South African Sports Confederation and Olympic Committee (SASCOC) and not to SAIDS.

The Chairperson asked what steps could be followed if federations refused to co-operate with SAIDS.

Mr Boshoff replied that Clause 6 (c) stipulated that any failure to co-operate with SAIDS would be reported to the Minister, who would address the issue with SASCOC or any other relevant sports body. The Minister could appoint a mediator to deal with the lack of co-operation.

Dr George Van Dugteren (Chairman: Anti-Doping Commission of SASCOC) added that Clause 11 of the Bill outlined punitive measures that the Minister could take if particular federations had failed to co-operate with SAIDS and had not complied with provisions of the Act. The legislation must ensure that federations adhered to the regulations.

Dr Van der Spuy asked for clarity on the role of the laboratory and how control over it would be exercised by SAIDS. The laboratory had to obtain a letter from SAIDS recognising its ability to deliver an acceptable standard of testing.

The Chairperson sounded his concern about the requirement of a letter, pointing out that written approval could be acquired through connivance. He believed that the Minister should be able to intervene in the event of unscrupulous behaviour. DSR should also be able to investigate irregular behaviour at a laboratory.

Ms Daphne Bradbury (Chief Executive Officer: SAIDS) stated that the South African laboratory had never asked SAIDS for a letter. SAIDS had processed a funding proposal from the laboratory, and a contract had been concluded with it. All accredited laboratories had to conduct a total of 1600 tests per year in order to retain the accreditation status. This requirement would ensure that adequate skills levels were maintained and global trends observed.

Mr Boshoff concurred that a contract with SAIDS was in place that ensured that tests were conducted in conformity with the WADA standards.

Ms Bradbury stated that the local laboratory could not conduct certain tests on particular sporting codes, such as swimming, and therefore international laboratories had to be utilised in order to circumvent possible collusion or manipulation.

Dr Van Dugteren added that WADA stipulated that all Institutes should receive a letter from their accredited laboratories and forward this letter to WADA so that Wada would be notified of the particular accredited laboratory. All laboratories had to conform to the international laboratory code. If there was no local Institute, then the National Olympic Committee had to be involved.

Dr Van der Spuy queried the status of the contract that existed between SAIDS and the laboratory. All relevant parties had to be involved in the agreement.

Mr Boshoff stated that a definition of a WADA-accredited laboratory had to be included in the Bill. SAIDS had to have an agreement in place with the laboratory.

The Chairperson asked what steps DSR could follow in addressing problems that arose in the laboratory.

Dr Van Dugteren stated that the WADA-code was applicable worldwide to all sports federations and related entities. Included in the general rules and standards was the obligation to maintain a prescribed laboratory standard in terms of testing. A failure to maintain standards would result in a loss of accreditation. WADA was in constant contact with all international accredited laboratories. Various processes were in place to test laboratories.

The Chairperson asserted that the local laboratory had to be open to monitoring, as efficiency and adherence to rules could not be assumed. It was also necessary to have a mechanism to intervene where necessary.

Ms Bradbury noted that the Free State laboratory was not part of SAIDS. She asked whether the Bill needed to make explicit reference to this laboratory in the light of its independence. The laboratory conducted testing for SAIDS and sports federations from outside South Africa.

Dr Van der Spuy stated that the Department wanted the Bill to make clear reference to the laboratory as the relationship between SAIDS and the laboratory had to be clearly outlined.

Adv Hercules proposed that the Minister must be able to intervene in some way when problems arose at the laboratory.

Mr Boshoff added that the Bill would define the WADA-accredited laboratory.

Ms W Makgate (ANC) reminded members of the Maradona incident where the player had consumed drugs for a long period of time without detection. She asked whether SAIDS and the laboratory would monitor each other.

Mr Masango added that the laboratory also had an oversight body that had to be considered in terms of monitoring. He proposed that WADA make a presentation to the Committee in the near future.

Mr Boshoff stated that the Bill would also make reference to the Copenhagen declaration in addition to the WADA code.

The Chairperson noted that the number of proposed cross-references in the Bill would have to be carefully considered.

Mr Boshoff stated that the Minister would appoint the Chairperson of SAIDS unilaterally, but members would be nominated by SASCOC and SAIDS.

Dr van Dugteren asked whether the candidates would have to be ranked in order of preference.

The Chairperson countered that the Minister would make a choice based on certain criteria and predetermined conditions.

Mr Boshoff added that the list of candidates would have to consist of individuals with sufficient knowledge and expertise to assist the Minister in the choice to be made.

The Chairperson reminded Members that issues of transformation would also govern the selection process.

Mr Boshoff stated that cross-reference would be made to the transformation guidelines as outlined in the National Sport and Recreation Amendment Bill to ensure meaningful appointments.

Adv Hercules warned that there should not be cross-reference to another Bill as opposed to an Act.

The Chairperson gave the assurance that this would not happen. He asked that the Bill provide for the existing Board of SAIDS to continue in the absence of adequate replacements until an entire new Board could be assembled. The existing Board would cease to exist when the Minister had finalised the selection process.

Clause 5(d): Amendment of section 10 of Act 14 of 1997
Mr Boshoff stated that this clause referred to the envisaged co-operation between SAIDS, DSR and SASCOC. The clause stipulated that SAIDS may cooperate if need be.

Dr Van der Spuy asked why the clause referred to the word “may” and wondered whether the tone should be more instructive.

Mr Boshoff pointed out that SAIDS would operate independently but would co-operate where necessary.

Dr Van der Spuy suggested that more forceful language should be employed as DSR was responsible for SAIDS.

The Chairperson stated that cooperation between relevant entities was advisable in the national interest.

Mr Boshoff added that a mediator could be appointed by the Minister if a dispute between stakeholders threatened to undermine development.

The Chairperson stated that the Committee would decide on the correct choice of wording during deliberations. The independence of institutions could not be unlimited.

Mr E Saloojee (ANC) added that “may” implied that co-operation could be withheld if SAIDS so desired.

Mr Boshoff presented input on various comments made by SAIDS’s Chairperson. Firstly, it was suggested that the Bill had to make expanded reference to the United Nations Convention whenever reference was made to the WADA Code. A definition would have to be created for this Convention. A second proposal was that an international standards definition should be included, which supported the code. A search and seizure provision should also be included. SAIDS would not want to infringe on other government agencies such as the police. However, swift action had to be taken at certain times. SAIDS would like to assist the police where applicable to apprehend transgressors. The Bill made reference to the World Anti-Doping Code and not to the WADA Code. The Bill referred to the tribunals of each sports federation. However, an elevated national tribunal was needed to oversee the appeal process, and the Bill should define this tribunal.

Dr Van Dugteren stated that athletes were called to hearings if evidence of wrongdoing had been discovered through testing. Such hearings were held before tribunals of each sporting code. SAIDS wanted members to consider the relevance of a national tribunal to hear anti-doping cases. More discussion on the issue was needed before the principle was included in the Bill to avoid a conflict of interest. National federations should continue to prosecute their own cases and the national tribunal could be constituted when required.

Dr Van der Spuy thought that a middle way in this regard should be pursued. International bodies had their own rules and regulations to be applied. One national tribunal could cause confusion and a conflict between various punitive measures. A national watchdog body should be established to oversee the various tribunals.

Mr Boshoff stated that the intention was to avoid inconsistencies in the prosecution process. Members of the tribunal for each sporting code had to apply the Code’s prescripts in an impartial manner.

The Chairperson stated that members would deliberate the issue of the national tribunal in due course. Since the Bill was a product of both DSR and SAIDS, conflict on certain issues was inevitable. He asked what recourse athletes had when they consumed prohibited substances unwittingly. For example, banned substances could be placed in an athlete’s drink to discredit the individual. He pointed out that a positive result could destroy a career.

Dr Van Dugteren responded that the onus rested with all elite athletes to ensure, as far as reasonably possible, that their food was not tampered with. In certain cases, athletes had been falsely accused of doping. The regulators would investigate incidents where a team had been declared positive while all players voiced their innocence. A penalty could be modified in cases where no deliberate doping had occurred. The Review Body had the prerogative to adopt a flexible approach to sanctions.

Dr Van Dugteren reminded Members that financial constraints resulted in only certain individuals being tested as opposed to entire teams.

The Chairperson declared that testing should ideally take place universally.

Ms Bradbury stated that the intention of testing was to protect athletes who opted to remain clean and compete in a fair manner.

Mr Boshoff stated that athletes, in order to be found guilty, had to know about the presence of illegal substances on their person or in their premises.

The Chairperson proposed that an educational programme should be introduced to discourage athletes from taking performance-enhancing substances. Firm attention should be placed on coaches. The type of material disseminated had to be appropriate for the specific target audience.

Clause 6: Amendment of section 11 of Act 14 of 1997
Mr Boshoff stated that SAIDS would have to comply with the stipulations of the Public Finance Management Act. The clause outlined the duties and responsibilities of SAIDS. The Minister would be informed of any Federation that failed to co-operate with SAIDS.

The Chairperson proposed that cross-references should be kept to a minimum in the present Bill to avoid confusion. The Sport and Recreation Amendment Bill would be the cutting-edge piece of legislation in terms of transformation requirements.

The meeting was adjourned.