National Sport and Recreation Amendment Bill [B 17-2006]: deliberations

SPORT AND RECREATION PORTFOLIO COMMITTEE
17 October 2006
NATIONAL SPORT AND RECREATION AMENDMENT BILL [B 17-2006]: DELIBERATIONS

Chairperson: Mr B Komphela (ANC)

Documents handed out:
Portfolio Committee Program for Fourth Quarter

SUMMARY
The Legal Advisor of the Department of Sport and Recreation worked through the submission of Cricket South Africa on the National Sport and Recreation Amendment Bill.  Four points were discussed.  National federations should incorporate dispute resolution mechanisms into their constitutions, the SA Sports Confederation and Olympic Committee should not be involved in dispute resolution, disputes should not be submitted unilaterally to the Confederation and the Minister should not intervene unless a dispute could not be settled in the Confederation or a sport had been brought into disrepute.

The merits of these points were discussed.  The question of membership of the Confederation was brought up, and the need for it to transform.  The mechanics and circumstances under which the Confederation and the Minister could intervene in disputes were discussed. Members again criticised sports bodies which were not transforming.

MINUTES

Chairperson’s introduction
The Chairperson said that there was a quorum of Members present.  He was brimming with excitement due to the unprecedented events earlier, where South Africa had received 90% of the support of world leaders to earn a temporary seat on the United Nations Security Council.  The country was being recognised by the world, and he wished President Mbeki a prosperous and healthy life, and that the legacy he had created would never be forgotten.

This meeting would be kept short, as the SA Institute for Drug-Free Sport Bill would be debated in Parliament later that day and Members needed to prepare themselves.   

He said that it was right for Parliament to consult with Sport and Recreation South Africa (SRSA).  The latter Bill had been tabled twice but there had been no translation and it could not be debated.  The Committee would deal with the submissions on the National Sport and Recreation Amendment Bill during this meeting and the next day.  If the Bill could not be debated now, it would be delayed until 2007.  The Committee would not be rushed on this Bill.  Two dates were to be obtained for the Committee’s visit to Korea and Japan.

The Chairperson warned the SRSA Legal Advisor that there was a lot of work ahead.  He would not ask for inputs now, as the legal team would want to handle all other inputs, both from the public hearings and from written submissions.  Today, the Committee would be dealing with the submission of Cricket South Africa (CSA).

SRSA presentation on CSA submission and discussion

Mr G Boshoff (Legal Advisor, SRSA) said that he had summarised the submission.  In essence six points had been made which might have a significant effect on the Bill.

The first point was that national federations should incorporate a dispute resolution mechanism in their own constitutions.  Mr Boshoff said that it seemed CSA had not read the principal Act, as the existing legislation already dealt with this matter.

The second point was that the South African Sports Confederation and Olympic Committee (SASCOC) should not be involved in dispute resolution.  They had not been successful in the past, and sports and recreation bodies should resolve their own disputes.  Mr Boshoff commented that in terms of the proposed hierarchy, SASCOC would play a pivotal role as had been the case with the Sports Commission.  SASCOC was the overarching body which resulted from the Ministerial Task Team (MTT) report.  It would prove itself in the next few years.  He suggested that this proposal from CSA be disregarded.

Mr J Masango (DA) asked how the Committee should proceed regarding SASCOC.  There was nothing compelling membership of this body.

Ms M Ntuli (ANC) asked what was lacking in SASCOC which discouraged federations from joining.  Rugby had stated during the public hearings that it did not want interference.  She asked how SASCOC could be made a “giant” body which would command the respect of all federations.

Mr C Frolick (ANC) agreed that SASCOC was a voluntary organisation.  There was no need for federations to join it as matters stood.  This was a source of problems.  SASCOC was an umbrella body which controlled the participation of South African teams at events such as the Olympic and Commonwealth Games.  The SA Rugby Union (SARU) was a member of the International Rugby Board (IRB), which was a full member of the Commonwealth Games organisation.  SARU would have to choose between SASCOC membership and forfeiting its right to play against Commonwealth countries, which included most of the major rugby-playing nations.  It was normal international practice to have one co-ordinating body for sport.  Some organisation was needed, and SASCOC fulfilled this role.  He thought that SARU was missing the point by wishing to stay out of SASCOC’s “orbit”.

Mr M Dikgacwi (ANC) referred to the consultation process which SRSA said it had followed.  He asked if they had consulted CSA.

Mr Masango asked if the point regarding dispute resolution had been made.

Adv Boshoff replied that SRSA would not recognise a federation if it were not a member of SASCOC.  These bodies could not be compelled to join the umbrella body, but membership would lead to extra benefits.  The draft Bill had been submitted to all federations on the understanding that if they did not comment within 30 days it would be assumed that they agreed with it.  CSA had made some valuable inputs at a late stage.  In terms of the dispute resolution mechanism, the Minister could only intervene once SASCOC had dealt with the issue.  While SASCOC was still busy with the process the Minister would not be able to interfere.  This was written into the latest draft.  However, the Minister could intervene while a federation was still handling the process internally. 

In the case of sensitive disputes, embarrassment could result.  Once SASCOC had been entrusted to handle an issue, the Minister was handing over control.  The Minister would receive recommendations resulting from the dispute resolution process so that he or she could make a decision.  This decision could either be the issue of a directive, or referring the matter to arbitration.  SARU had said that there was no definition of a directive in the Bill.  They had asked if such a directive would be binding.  Once the Minister had made a decision it would become binding.  However, parties could still appeal in court or approach the international sports mediation forum (CAS).

The Chairperson said that SASCOC was the culmination of the MTT report.  All codes were part of SASCOC.  During the public hearings federations had raised various questions.  SASCOC was the recognised umbrella body, and must be able to deal with disputes.  If a federation had chosen not to be a member of this body, then any crisis in their ranks would require direct intervention from the Minister.  It was a fact that SASCOC dealt with issues and should be trusted to do its work.  With its members, SASCOC had to have the chance to sort out issues.  SASCOC should have the competency to deal with problems and report back to the Minister.

Adv Boshoff referred to the presentation made by Mr Mateza, who had said that SASCOC was not the body to solve disputes.  This was because the federations elected members.  If a magistrate had to try a case involving a person who had ties with him or her, then that magistrate would recuse him or herself.  The same should apply at SASCOC, which would eliminate the possibility of a conflict of interest.

Mr T Louw (ANC) asked how many national federations were not members of SASCOC.

The Chairperson replied that SASCOC could not provide this number.  There were 78 registered members, and the indication was that this was the larger portion of federations in the country.

Mr E Saloojee (ANC) asked if there was a list of the member bodies of SASCOC, and of those who were not.  It was essential that the Committee have this information.

Mr Komphela said that he would request SASCOC to provide a list.

Mr Dikgacwi said that some things had to be made clear.  Mr K Basson had raised legal arguments during the SARU presentation which Members did not understand.  If a body appealed to SASCOC, interested members might not accept the need for recusal.  He asked how this measure could be enforced.  He also wanted to know what mechanism would be provided for the Minister to intervene.  It must be clear in the Bill.

The Chairperson echoed the statement that the Bill must pronounce on the conflict of interest procedure.

Adv Boshoff agreed with the Members.  Provision was needed to avoid a conflict of interest.  He would look into the definition of intervention, which would be included in the draft Bill.  A specific cross-reference would be made to Section 9 of the Constitution, which alluded to demographics, discrimination, racism, disadvantaged persons and the promulgation of legislation in this regard.  At the same time, the Bill would identify prohibitions on interference in administrative issues such as the appointment and dismissal of executive members.  He had conducted research on actions taken by FIFA, and all cases revolved around the dismissal of presidents of football bodies or corruption.  In some cases government Ministers had become involved in taking over football controlling bodies.  FIFA was empowered to intervene in the affairs of national bodies when deemed necessary.  The issues in South Africa were separated.  Intervention would be in line with ensuring equality in terms of the Constitution.

Adv B Lufundo (State Law Advisor) said that the provisions of the Bill would allow parties to approach the courts.  It was silent on how the Minister would intervene, but this would be covered in the Bill.  The legal issues raised by SARU had in fact been covered by an amendment before being raised by them during the public hearings.

Mr Louw was still reluctant to accept the situation.  Some strategic answers were needed.  He asked which federation, the SASCOC President, Mr Moss Mashishi, represented.

The Chairperson said that this question was not relevant.

Mr Masango said that things were still not clear, particularly what could be done if federations were unhappy with SASCOC’s decisions.

The Chairperson said that the procedure should be captured in the Act.  If SASCOC could not resolve an issue, then the Minister would issue a decree.  Federations would have the first right to resolve a dispute internally, and would then refer the matter to the Minister.  SASCOC would report to the Minister, who would then make any necessary intervention.

Mr Masango needed to see this on paper.  He thought that the answer from Adv Lufundo was totally different to that of the Chairperson.

Mr Komphela said that all proposals needed to go into the Bill.  Interaction would follow.

Mr B Dhlamini (IFP) agreed with Mr Dikgacwi that one could not assume that SASCOC would be able to resolve a dispute.  There was no provision in the Act for the Minister to intervene if SASCOC failed to find a solution.

Mr Saloojee said that for a long time in cricket the composition of teams had led to constant complaints.  Black players such as Makhaya Ntini had succeeded, but he asked what had happened with the others.  There was talk of transformation and a small number had been identified.  However, the team was still predominantly white.  Black talent was emerging.  When he had first been selected, there was no guarantee that Ntini would have got to his current status.  He asked if SASCOC could effect change amongst those who controlled rugby and cricket.

The Chairperson responded to Adv Boshoff’s input.  Section 9 of the Constitution should be worked into the Act, as it addressed issues of redress in terms of race, gender and so forth.  Adv Boshoff had noted that communities were being marginalised.  Constitutional imperatives had to be recognised.  This was being done for the first time and the Bill was incorporating these imperatives.

Mr Saloojee said that the Committee must consider its approach.  Prejudices were deep.  Even if these provisions were written into the law it would still lead to a period of real turbulence.  It should enforce the provisions of SASCOC.  A shake-up was needed amongst the people who dominated the sports codes.  This would not be easy.

Mr Komphela said that proper mechanisms were needed.

Ms Ntuli asked what weight the Bill would give to intervention by the Minister.  Federations were afraid of SASCOC and there was no trust.  Presenters during the public hearings had mentioned that SASCOC needed to undergo its own process of transformation.  In this regard concerns should be captured in the Bill.  She asked what the ideal shape for SASCOC should be, and when the body would be seen as being transformed.

Mr Frolick understood certain areas in the Bill.  A cautious approach was needed, and further polishing and discussion was needed.  SRSA had made a clear attempt to get information from the federations, such as audits on player numbers.  An ongoing measure was needed.  It was critical that the issue be debated even if this happened in a robust manner.  He acknowledged that only the big federations had appeared before the Committee.  All had been invited, but the smaller federations did not respond.  The Committee could only engage with those who opened up to them.  There was no transformation in the other federations.  Insight into their affairs was needed.  The membership of SASCOC could only change if its members transformed themselves.  There were mental blocks on some issues.  It was out of government’s power to effect change unless there was change at grassroots level.  SASCOC was the final product of negotiation.  The aim of the Bill was inter alia to record change.  Another aim was to achieve equity.  The Committee did not need to hurry through the Bill.  The Bill needed to have some bite.

The Chairperson said that the question of change and the issue of transformation could not be seen at the macro level only.  The constitutions of the different federations had to comply with Section 9 of the Constitution.  The problem was at the lower level, particularly regarding access.  Government should not only target the leaves of the tree, but must also tackle the roots.  They must understand how to move downwards.  Change must be reflected at all levels.  The federations in SASCOC seemed to “represent an Indian cabal”, with Mr Mashishi the only black person on the Board.  There were only two blacks on rugby’s President’s Council, namely Mr O Hoskins and Mr M Stofile.  If SASCOC had to change by its own design then other problems would result.  He was at pains to explain the legal process.  In the Cape Town municipal elections the majority had voted for the ANC but had been defeated by a minority.  SASCOC must transform itself first.

Adv Boshoff pointed out a serious shortcoming of the Bill.  It was good to say that the Minister could intervene, and it was good to know that the federations would be able to resolve issues at internal level with SASCOC able to follow-up.  However, the question was how would SASCOC and the Minister know if there was a dispute if there were no provisions for the details of a dispute to be made known should one arise.  If the federations did not comply with such a provision they would be contravening the law.  He could elaborate on this.

Mr Dhlamini agreed with Mr Frolick that there was no rush.  The Committee needed to deal with the composition of SASCOC and issues arising from the MTT report which had established SASCOC.  If any federation could be a member of the body, even if not transformed, then there could be problems.  As SASCOC was a federation of federations, it was important to know which federation Mr Mashishi represented.  SASCOC could not be given power if it was dominated by intransigent federations.

The Chairperson noted these comments.

Mr Masango asked for clarification of Sections 9(2) and 9(3) of the Constitution.

Adv Boshoff quoted the relevant sections.  The gist of them was that the state may not unfairly discriminate based on race, sex and so forth. 

The Chairperson echoed these sentiments.

Mr Frolick asked on a point of order if Mr Masango had not meant a different clause.

Mr Dhlamini said that if all of the sections of the Constitution were read, it would show that citizens must all enjoy rights and freedom.  The composition of SASCOC should be made up of federations meeting national and constitutional objectives.

Adv Boshoff said there had been no response to the proposal.  There was a serious omission, namely that the federations must submit details if a dispute were declared.

The Chairperson said that Adv Boshoff was an amazing person.  He noted and captured the essential changes needed.  There was a fair balance in his statements.  Information needed to be available at all levels.  A full discussion was needed, but there was no hurry.

Adv Boshoff then raised the third point from the CSA submission.  They said that a dispute should not be referred unilaterally to SASCOC.  All parties had to submit their version of events.  He felt that there was a risk of bodies acting in bad faith should this proposal be adopted, and it would tend to stall the resolution process.  This would restrict the aim of the legislation.  Therefore he felt that this proposal was out of order.

Mr Frolick had read this proposal as well, and he felt that it did not make sense.  There had to be a reason for the dispute to have occurred in the first place.  The parties must first agree that they could not agree.  In the case of the dispute over the Eagles cricket franchise, the Griqualand West provincial body had gone to court.  Eventually the parties realised that they had to compromise.  It should be up to the Minister to decide if a valid dispute existed, and frivolous matters should be rejected.  The Minister would decide if appropriate measures were to be taken.

The Chairperson agreed that parties might not act in a bona fide manner.  Stalling in this manner would be stifling the process.  Too much emphasis was put on consequential issues.

Adv Boshoff then raised the fourth point from the CSA submission.  The Minister should not intervene, and the events surrounding Greek football being suspended from FIFA were cited as the reason.  He had done research into this question and concluded that the facts were distorted.  The Bill was on safe grounds as there was protection from the Constitution.  He suggested that this proposition should be disregarded as well.

Mr Komphela said that people were taking information off the internet without due deliberation.  It was good to have references, but the events surrounding the Hellenic Football Federation (HFF) were reported in a misleading manner.  The Greek Minister of Cultural Affairs had disbanded the whole committee of the HFF.  This was a complete encroachment and there had been no negotiation.  People must read up on these incidents before citing them.  There must be a way to get all the facts.  The South African Football Association (SAFA) had not done so in compiling its submission.  The federations in their submissions did not mention the consequences and extent of intervention.  The South African government would not take over the running of sports bodies.  International bodies had the responsibility to take charge of errant national bodies.

Mr Frolick found it clear in the public hearings that none of the federations could show the similarity of the situations they quoted in relation to the provisions of the Bill.  He would confront any person trying to bring up these examples on a point of order when the Bill was debated in the National Assembly.

Mr Dhlamini said that there should not be intervention in a power struggle in a federation.  There had been exclusion of people in sport.  The Committee’s counterparts in Home Affairs had set a good example by making an effort to listen to those who were affected.  The culprits were able to attend meetings of the Committee, but what was needed was for the Committee to go out to the people.

Mr Masango said that people were making their own interpretations of intervention.  He asked how FIFA would understand this term.  People might think they were following the right course until the axe fell on them.

The Chairperson said there was an accepted international definition.

Adv Boshoff presented some of the results of his research on the internet into suspensions of countries.  FIFA’s wording had been consistent, and their actions had been based on political interference rather than intervention.  The Kenyan government had taken over the executive due to corruption.  In Macao, the government had replaced the President of their football association.  In Iran, the head and his board had been replaced by the Minister of Physical Education.  In Bangladesh, the government had dissolved the controlling body and appointed a new one.  FIFA had wanted to counteract this.  In Portugal, the government had allowed an ineligible player to represent the country.  In Russia, the President of the controlling body had been forced to resign by the government.  The main thrust to all these examples was in understanding the meaning of interference.

Mr Louw supported the call to consult at grassroots level.

The Chairperson took the point, and would look into the program for November to see when time could be found for this process.  The Committee wanted to see what was the view at grassroots level.  The logistics of running such a program would have to be determined.  There was no hurry to pass the Bill.

Adv Lufundo discussed the issue of intervention.  SASCOC had to resolve issues first and then the matter would be referred to the Minister.  It was not sure what the real intention was.  SASCOC would deal with all ordinary disputes.  However, if the dispute threatened to bring sport into disrepute then the Minister could intervene.  The parties should wait for SASCOC to resolve the problem and then refer the question to the Minister.  This would not be intervention.  Intervention would only happen in the case of sport coming into disrepute.  The Minister could take over from SASCOC.  She would check if this was correct.  There was the possibility of duplication of function, as the Minister would be doing the same as SASCOC.  This would have to be clarified.

Mr Frolick said that matters would be taken to court.  If SASCOC were happy with an issue, the Minister would therefore have no say in the matter.  It was the intention of the Bill to give powers to the Minister.  He could decide whether he would handle an issue himself or refer it to SASCOC.

Mr A Mlangeni (ANC) thought that Adv Boshoff was saying that if SASCOC and the federation discussed the dispute without agreement being reached, then it would be referred to the Minister.  This was different from what Adv Lufundo had said.

Mr Dhlamini said that the Committee might be creating its own problem regarding the nature of intervention into a dispute.  It was actually a case of unequal access.  The Minister should intervene when the provisions of the Constitution were being violated.

Mr R Reed (ANC) said that Mr Dhlamini was confusing two issues.  The issue was of bringing sport into disrepute rather than resolving disputes.

Mr Komphela said it was the feeling of the Committee that federations should recognise the existence of SASCOC, and launch disputes within SASCOC.  It would be in SASCOC’s hands despite the “adverse nature” of the organisation.  The Minister could not grab the matter out of their hands.  He would have to let SASCOC deal with the issue at first.  If there was a voluntary submission to the Minister, or if there was a danger of disrepute, then the Minister must intervene.  By its nature SASCOC would have to be in a position to deal with matters.  If other federations did not go to SASCOC then the Minister’s hands could not be tied.  All agreed on this.  It would be immoral to take authority out of SASCOC’s hands.  He did not want any limitation on the Minister, but there was a place for the voluntary resolution of problems.  The wording should be flexible.  Government must not intervene in an arbitrary manner.

Adv Boshoff suggested an easy solution by the inclusion of a proviso.  If the dispute was referred to SASCOC then the Minister could not intervene unless there was a cross-reference to Section 9 of the Constitution or if the matter was likely to bring sport into disrepute.

Mr Masango asked if the Minister would intervene only if asked to do so by SASCOC, or if he would decide on intervention for himself.

Adv Boshoff said that the question had been raised.  If SASCOC failed to resolve the dispute, then the Minister could intervene.

The Chairperson warned that this could turn out to be a double-edged sword.  He excused the Members in order to prepare for the debate.

The meeting was adjourned.