South Africa Drug-Free Sport Amendment Bill: deliberations

SPORT AND RECREATION PORTFOLIO COMMITTEE
17 August 2006
SOUTH AFRICA DRUG-FREE SPORT AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr B Kompela (ANC)

Relevant documents
South African Institute For Drug-Free Sport Amendment Bill [B7-2006]
Portfolio Committee Amendments – Parts 1 & 2

SUMMARY
The Department briefed the Committee on the amendments it proposed at the previous meeting regarding the cross-referencing to the National Sports and Recreation Amendment Bill, the establishment of the national tribunal, the search and seizure powers of the Institute as well as certain definitions. The Committee was also briefed on the reworked Clauses 2, 3, 5, 6 and 10, which incorporated its amendments.

The Committee then went through each clause of the Bill. Amongst others, the reference to the Promotion of Access to Information Act in Clause 7 was deleted, for clarity. The appointment, composition and level of expertise and knowledge of the appeal board created in Clause 10 was considered.

MINUTES
The Chair requested Mr Gideon Boschoff, Legal Advisor from the Department of Sport and Recreation, to take the Committee through the document containing the proposals made by the Committee on the previous day. He reminded the Department that the Committee had requested it to reconsider the rather technical matter of cross-referencing the Bill to the National Sports and Recreation Amendment Bill, which was a non-existing law. The Committee proposed that the reference to the National Sports and Recreation Amendment Bill be removed and replaced with separate and independent clauses in this Bill. The second issue was the inclusion of a definition of an international standard for laboratories. The third was the inclusion of the definition of the United Nations Scientific and Cultural Organisation (UNESCO) Convention. The fourth issue was the clarification of the search and seizure powers of the South African Institute for Drug-Free Sport (the Institute). The final issue was the provision that dealt with the national tribunal.

Briefing by Department on Latest Committee amendments
Cross-referencing to National Sports and Recreation Amendment Bill
Mr Boschoff informed the Committee that he had consulted his colleagues on the matter that morning, and it was decided that it would be more appropriate for the Bill to cross-reference to the National Sports and Recreation Amendment Bill, as opposed to copying the relevant pieces of that legislation into this Bill. The reason was that the Committee decided to hold public hearings on the National Sports and Recreation Amendment Bill in the near future, and if the relevant provisions in that Bill were to be inserted into this Bill, the Committee would then have to allow public hearings on those provisions again for consistency. The general feeling was thus that the cross-referencing would be the preferred option, on condition that the National Sports and Recreation Amendment Bill  was promulgated just before this Bill, as that would make the cross-referencing more authentic

The Chair disagreed. No Parliamentary Committee was obliged to hold public hearings. It was a discretionary power based on an assessment of the possible public interest in the legislation. He stated that the Department was not correct when it proposed that a simple cross-reference be made to the National Sports and Recreation Amendment Bill, and was of the view that those provisions must be expressly included in this Bill because they were relevant to the functioning of the Institute.
 
Mr Theo Hercules, State Law Advisor, replied that a new subsection would thus have to be added to that provision to deal with the staffing of the Institute. That provision would then reflect what was currently contained in the National Sports and Recreation Amendment Bill.

The Chair agreed, as that formulation was in line with the intention of the Committee.

Mr B Solo (ANC) agreed with Mr Hercules, as the Minister must take into account factors such as gender, the target demographic, transparency etc.

Mr Boschoff agreed completely with the input made, and ensured the Committee that those provisions in the National Sports and Recreation Amendment Bill would be transferred to this Bill, as slightly modified by the State Law Advisor.

National tribunal.
Mr Boschoff indicated that submissions were received, but there were without motivations. He suggested that the Committee would be on very thin ice if the provision were to be included at that stage, when its exact formulation was not yet certain. The Department would like to discuss it further with Dr Shuaib Manjra, SAIDS Chairperson, when he returned from his overseas trip. He was thus requesting a postponement of the discussions on that matter.

The Chair agreed.

Search and seizure powers of Institute
Mr Hercules proposed that the official from the Institute must be accompanied by a police officer when searching or seizing property. The officer would have the usual search and seizure powers granted by the Criminal Procedure Act. The provision would however be clarified.

The Chair agreed.

Mr Solo agreed that the functions be clarified, as that would make it clearer for the administrators themselves when they executed their functions.
 
Mr S Masango (DA) asked why the Institute wanted to be granted search and seizure powers.

Dr G Van Dugteren, South African Sports Confederation and Olympic Committee (SASCOC) Anti-Doping Commission, replied on behalf of the Institute and stated that behalf that the Institute was that national authority on anti-doping violations in the country. The fact of the matter was that the anti-doping violation involved a long list of people, from those who provided it, to those people in the distribution chain who those who actually provided the banned substance to the athlete. The athlete was thus only the end user in the long chain. Thus the Institute needed to be able to search and seize illegal substances in the possession of the individuals in the chain, and not only the athlete. The reality was that the Institute did not have such powers at the moment.
 
Ms D Bradbury, CEO of the Institute, added that the use of illegal substances violated the South African Medicines Control Council (MCC) legislation, and the Institute currently had to go through the MCC to contact SAPS and alert them to the anti-doping violation, so that they could exercise their search and seizure powers. However SAPS itself did not regard anti-doping violations as the most urgent kind of violation, and were more concerned with illegal substances such as tik. It was thus important that the Institute be granted those powers.

Mr Boschoff explained that SAPS were granted those powers because they dealt with illegal substances that amounted to criminal transgressions. They thus approached the matter from a different perspective than the Institute, because anti-doping violations in the Bill were not criminal acts in terms of the law. The Institute thus needed those search and seizure powers in order to fulfil the ‘anti doping violation’ definition in the Bill, so as to eradicate doping offences in sport.
 
Mr C Frolick (ANC) agreed that the clause was of utmost importance to give the necessary teeth to the Institute. He agreed with Ms Bradbury because the fact of the matter was that the ordinary SAPS officer did not have the necessary specialised skills to deal with an anti-doping violation.
 
Mr Boschoff reiterated that anti-doping violations were not even currently criminal offences, but merely violated competition regulations. He proceeded to take the Committee through the rest of the document, and informed Members that the highlighted portions indicated new insertions or amendments proposed by the Committee.

‘International standard for laboratories’
Mr Boschoff explained that this was a new definition.
 
‘UNESCO Convention’
This was a new definition which now referred to the World Anti-Doping Agency (WADA) Code. However the definition might have to be amended later because the UNESCO Convention was currently in the process of being ratified by the Minister of Health. As that process had not yet been finalised, the SLA was of the opinion that it would be more prudent to retain a more general formulation of the clause for the moment. The Convention should be fully ratified within a month, and the prescripts of the Convention would be ‘fished out’ and inserted into the definition in the Bill.
 
WADA-accredited laboratory
Mr Boschoff explained that this definition was introduced for the sake of consistency.

Clause 2
The amendment to the phrase ‘possessing special knowledge relevant to doping’ in Section 3(1) was inserted for clarity. The amendment to Section 3(2) stipulated that the CEO of the Institute would have no voting rights, which ensured that the CEO was not both a player and a referee, as requested by the Committee.

The new proposed Section 3(3) would however have to be amended further, based on the Committee’s decision not to merely cross-reference to the National Sports and Recreation Amendment Bill. Instead a new provision that conformed to Section 13A of the National Sports and Recreation Amendment Bill would have to be inserted, after having been redrafted in a way that was ‘doping friendly’ for the purposes of this Bill. It also ensured that the Institute had new personnel in place before the term of office of its current personnel expired. The provision basically required the Institute to get its act in order three months before the expiration of the term of office of the current personnel.
 
Ms M Makgate (ANC) stated that a time limit must be put in place within which the new personnel must be in office.

The Chair agreed.

Dr Van Dugteren agreed but stated that the provision currently provided that the existing members would remain in office if new personnel have not yet taken over. The provision would thus have to be amended further to include a timeframe within which the Minister must appoint new members or the existing members could, theoretically at least, serve indefinitely.

The Chair agreed.

Mr Boschoff stated that both he and the SLA would ensure the time period was included. He proposed a period of 30 days after the expiration of the term of the previous members.

Mr Solo stated that the phrase ‘and as many other members’ in the proposed Section 3(1) was open-ended,  and worrying

Mr Bradbury indicated that at the moment there were nine members, plus the CEO.
 
The Chair agreed with nine, as that would avoid any deadlock situations.
 
Mr Solo sought clarity on the meaning of the ‘special knowledge’ referred to in the new insertion in Section 3(1). He questioned whether it should not properly read ‘knowledge’ alone, as the proposed formulation was too exclusionary. Perhaps the provision should be amended to indicate that only some of the members would have to have special knowledge.

The Chair explained that the position required very highly skilled and expert knowledge of the matter, and did not thus require merely general knowledge. He thus agreed with the current wording.

Mr Solo proposed that the new Section 3(2) be amended further to stipulate ‘voting rights as contemplated in Section 5’, for clarity.

Mr Boschoff stated that it should properly read ‘as contemplated in Clause 2’.

The Chair noted that the Committee agreed.

Mr Solo noted that the new proposals to Section 3(3) referred only to invitations made in the media, but did not explain whether print and radio would be used.

The Chair explained that Mr Solo was raising that point because of the recent case in which a blind man from Pretoria successfully sued the government for unfair discrimination, as the advertisement for the position of employment was only placed in the print media.
 
Mr Boschoff replied that the provision was taken directly from the principal Act, in which advertisements were always placed in the Government Gazette and newspapers.

Mr Solo also requested that the multiple uses of the word ‘provided’ in the new Section 3(3) be reconsidered, because it was worded awkwardly.
 
The Chair reminded the Committee that the document was merely a draft, and that all the language corrections would be corrected at a later date.
 
Mr Boschoff agreed with Mr Solo that it be reformulated.
 
Clause 3
Mr Boschoff indicated that the insertion in Section 6(1) was proposed by the Chair in the previous meeting.

Clause 5
The phrase ‘as far as reasonably possible’ was inserted into Section 10(1), because it was felt that ‘ensure’ was for too strong.

Clause 6
Mr Boschoff stated that Section 11(2) was amended to refer specifically to the Code and the UNESCO Convention. Furthermore, the phrase ‘out of competition’ in (m) was removed to make the provision more general in its application. The same motivation was used in the deletion of the phrases ‘who are not international level athletes, is in place whereby athletes’ and ‘to any athlete included in the registered testing pool’ in (n), because it was felt that that phrase was too specific as well.

The proposed amendment to Section 10(3) had not yet been finalised because it depended on certain provisions in the National Sport and Recreation Amendment Bill, hence the ‘???’.

Clause 10
Mr Boschoff explained that a technical amendment was effected to Section 17(2)(a)(i).

He stated that those were the only amendments proposed to the Bill by the Committee, and requested the Committee to go through the printed Bill, clause by clause.

Committee deliberations on Bill
Clauses 1-6
Mr Boschoff read through the clauses.

The Chair noted that the Committee raised no concerns or objections with the provisions.

Clause 7: Insertion of sections 11A to 11C of Act 14 of 1997
Section 11A
Mr Boschoff explained that the aim of the provision was to harmonise the legislation with the WADA Code.

Dr Van Dugteren proposed that the references  to ‘WADA requirements’ be replaced with ‘in compliance with the Code’ in Section 11A(b), in order to be consistent with the amendments proposed earlier.

Mr Boschoff stated that Section 11A(g)(ee) must be amended to stipulate ‘(aa) to (cc)’ not ‘(a) to (c)’. The same applied in (ff).

The Chair asked Mr Boschoff to explain Section 11A(f)(cc), because he failed to understand the meaning of the phrase ‘any attempt, whether unsuccessful or not’.

Mr Boschoff explained that if the attempt was successful, the person would be liable for the full blast violation. If however he was not successful, the attempted violation was also an offence and he would be liable.

The Chair understood.

Section 11B
Mr Boschoff explained that this was a new insertion. It was absolutely necessary to ensure athletes complied fully with the testing procedure.

Section 11C
This new provision essentially dealt with the delegation of powers by the Institute to other sports administration bodies to conduct tests.

The Chair asked how exactly the Institute would authorise the other bodies.

Dr Van Dugteren replied that certain situations were envisaged where the Institute itself would not be able to conduct the testing itself, but where a South African athlete could be competing in another country and the Institute might want that athlete to be tested in that country. There were ways to use other WADA accredited sports administration bodies to conduct the tests.

The Chair agreed with the principle, but asked for the actual provision that stipulated that those other bodies were authorised to conduct the test and to furnish the Institute with the results.

Dr Van Dugteren explained that the Institute was the only body that was empowered by law to conduct sample collection in South Africa. The clause thus made it possible for the Institute to request another sports administration body to conduct that testing do testing under other circumstances where it was then allowed to share such information in terms of the Promotion of Access to Information Act (PAIA).

The Chair stated that the reference to the PAIA legislation was a concern.
 
Mr Hercules proposed the deletion of the PAIA reference.

The Chair continued that PAIA was a South Africa Act and it was thus not possible to force the sports administration body in a foreign country to provide the test results, because it was not bound by PAIA. This gap in the draft legislation was especially worrying because, if the athlete and that foreign sports body were to collude not to provide the test results to the Institute, there would in fact be no legal way to compel it to provide the test results to the Institute.
 
Mr Boschoff responded that the reference to the PAIA ensured the Institute communicated the information and sensitised people in terms of their rights on disclosure of information, granted to them under that legislation. He agreed with Mr Hercules and proposed the deletion of the reference to PAIA because, even if the reference were deleted, PAIA would apply in any event because it was a Constitutional Act and applied in all cases that dealt with information and disclosure of information.

The Chair stated that the provision must refer to PAIA to ensure that South African athletes and South African delegated doping institutions did not withhold test results from the Institute.

Mr Boschoff proposed the insertion after ‘subject to the PAIA’ of the phrase ‘where applicable and if relevant’.

Mr Hercules reiterated his proposal that the entire reference to the PAIA be deleted, for clarity. As Mr Boschoff explained, the Institute was in any event subject to the PAIA because it was based in South Africa.
 
The Chair stated that he had no problem with the reference to the PAIA in Sections 11A(f))(ii), 11A(g) or 11B, because those provisions refered to South African bodies. His problem lay with the reference to PAIA in Section 11C, because that provision dealt with foreign sports administration bodies.

Mr Boschoff stated that he had picked up another problem in Section 11C. It referred to ‘athlete’ which was defined to include international athletes as well. Thus its inclusion in 11C was a problem because the PAIA did not apply internationally. He reiterated his proposal that the reference to PAIA in Section 11C be removed.

The Chair agreed, as that would solve all the problems.

Clause 8: Substitution of section 12 of Act 14 of 1997
Mr Boschoff explained that the purpose of the clause was to align the legislation with the Public Finance Management Act (PFMA).

Clause 9: Repeal of sections 13, 14 and 15 of Act 14 of 1997
Mr Boschoff indicated that those provisions in the principal Act dealt with strategic plans and annual plans,. They were repealed because they were already dealt with in the PFMA, which was now made applicable via Clause 8.

Clause 10: Amendment of section 17 of Act 14 of 1997
Mr Boschoff explained that the heading of the clause was simplified to state ‘Appeals’ only. Furthermore, because the amendments proposed earlier to Section 3(1) under Clause 2 referred to ‘special knowledge and expertise’ in appointing members of the Institute, the same should level of skill must be ensured here dealing with the appeal board, for consistency.

The Chair agreed.

Mr Boschoff noted that ‘provincial’ in 2(a)(i) must be changed to ‘provisional’. He explained that most of the amendments proposed in the remainder of the clause were primarily technical, which were clarificatory in nature and aimed at giving effect to the new definitions.

There was an omission in Section 17(1)(a) because it did not stipulate who would appoint the eight members of the appeal board. The same lacuna existed in the same provision, as it did not stipulate who would appoint the appeal tribunal. It should be made clear in the provision that the Minister of Sport and Recreation must appoint both those groups of members.

Ms Makgate noted that the provision was also silent on the appointment of the Chairperson of the appeal board. Secondly, the provision did not clearly state what the positions of the three members of the appeal tribunal would be.

Mr Boschoff replied that the proviso stipulated that the appeal tribunal would consist of three members, two of whom must be legal professionals, and the third must be someone appointed by the Minister and who has specialised knowledge and was an expert in anti-doping cases.

Dr Van Dugteren explained that the current practice was that two of the members of the appeal tribunal would be legal professionals and the third would be a medical doctor who specialised in doping cases. It would thus create a huge logistical problem if those same three people had to sit on every tribunal, because it might be impossible to get them together on the same place on the same day, or the case could require them to fly all over the country. The international practice was thus to have a panel and to choose, from that panel, any three members for a case. It must also be ensured that the members on the tribunal do not have a conflict of interest with the case they are presiding over. This meant that, for example, a member from the rugby federation would not be able to preside over a case involving a rugby athlete. The Minister thus selected those three members from the appeal board to sit on the appeal tribunal, and did not strictly appoint them. Perhaps the wording in the provision should be changed to reflect that nuance.

Mr Hercules agreed.

Mr Solo asked why the decision was taken to require the legal professionals to have seven years’ experience. He asked whether that number was based on any scientific basis.

Dr Van Dugteren answered in the negative. He decided on a figure that he believed was adequate, having consulted the Canadian, Australian and other appeal board structures. The mean average in those models was seven years.

The Chair stated that he believed the complete opposite should instead be the case. He was of the view that setting the bar as high as seven years would prevent the Institute from taking on a batch of young legal professionals and training them to become the experts.

Dr Van Dugteren agreed that that was an important objective, but the decisions taken by the tribunal were actually very serious and could decide the future of an athlete’s professional career. The persons on the tribunal thus needed to possess the specialised knowledge and expertise. He was not opposed to a slight reduction in the number of years requirement.

Mr Boschoff proposed that Section 17(1) be split into two separate subsections. The first would stipulate that the legal professionals must possess at least 7 years’ experience, and the second subsection would make it clear that the requirement for the other category was at least three years.

The Chair agreed

Dr Van Dugteren proposed that Section 17(1)(a) stipulate that the appeal board consist of not more than ten members, because there might not be eight such experts in the entire country.

The Chair agreed. It would also allow young professionals the opportunity to enter that field and gain the expertise over time.

Dr Van Dugteren consequently proposed that the number of members appointed by the Minister in the proviso in Section 17(1)(a) be increased to three.

Mr Solo stated that it was not clear how many terms an appeal board member could serve in 17(4).

Mr Boschoff agreed to look into the matter.

Mr Solo questioned the need for the proviso in Section 17(5). He was of the view that an official from the Institute should always be able to attend an appeal board hearing, and should not be made discretionary because it was part of their job.

Mr Boschoff responded that the phrase ‘shall be entitled’ in the proviso implied that the official from the Institute had the right to attend the appeal hearing, but that it was a discretionary right that he could exercise as he wished.

The Chair stated that it was thus a discretionary power at the moment, which the official from the Institute could decide to exercise or not. He was however of the view that their attendance must be mandatory.

Dr Van Dugteren replied that the reality of the matter was that not all matters heard by the tribunal were relevant to the work done by the Institute. As evidenced in Section 17(2)(a)(i), the tribunal would deal with administrative matters such as disqualifications, which the Institute had no interest in. He thus proposed that the discretionary power to attend me retained, as it would not make sense to require the attendance of the Institute at every single tribunal hearing.

Mr Boschoff agreed that the discretionary power be retained, to ensure transparency at the tribunal hearings.

Mr Hercules agreed.

The Chair agreed, and noted that the discretionary power would be retained as it currently stood in the provision.

Clause 11: Insertion of section 17A of Act 14 of 1997
Mr Boschoff explained that this was a new clause which allowed the Department and SASCOC to impose sanctions, in order to give effect to their watchdog roll over the South African sports federations. The proposed Section 17A(3) brought the legislation in line with the Promotion of Administrative Justice Act (PAJA). He proposed that Section 17A(2)(b) and (c) be switched, because the sanction of barring should be the last resort, and should thus be (c).

The Chair agreed. He asked Mr Boschoff to explain why only written representations were allowed in Section 11A(3), and not oral as well. He proposed that the provision be amended to read ‘written or oral’.

Mr Boschoff agreed.

The Chair requested Mr Boschoff and Mr Hercules to consolidate all the amendments into a new version of the Bill, which the Committee would discuss further at its next meeting. He informed Members that the Bill would be debated in the House in two weeks time.

The meeting was adjourned.