SA Institute of Drug Free Sport Amendment Bill [B7B – 2006] deliberations

SELECT COMMITTEE ON EDUCATION AND RECREATION
1 November 2006
SA INSTITUTE OF DRUG FREE SPORT AMENDMENT BILL [B7B – 2006] DELIBERATIONS

Chairperson: Mr BJ Tolo (ANC, Mpumalanga)

Documents handed out:
South African Institute of Drug Free Sport Amendment Bill B7B-2006

SUMMARY
The State Law Advisor and the Legal Advisor of the Department of Sport and Recreation took the Committee through the latest version of the South African Institute for Drug Free Sport Amendment Bill. The new wording of Clause 3 had clarified the number of members and their voting rights on the Board of the Institute, and time limits had been inserted. There was some discussion over whether the Minister was found by the recommendations. It was noted that the members of the Board must have specialised knowledge of doping. The number of members on the Board and their terms of office had been clarified. Clauses 4 and 6 dealt with responsibilities relating to the Public Finance Management Act (PFMA). Clause 4 now inserted another subsection into the principal Act to clarify that the CEO must ensure compliance with the Public Finance Management Act. Although some members felt that there was duplication of the wording, since Clause 6 required the Institute also to comply, it was decided that there was no harm in having both clauses. The clause must contain the proper cross-references to the principal Act. Clause 5(1)(f) now included the words “as far as reasonably possible” in line with the Institute’s objection that it might not always be possible to have access to an accredited testing facility. Clause 6 now contained the Minister’s powers of intervention, which were limited to cases of doping. There was discussion on the meaning of the directive. Clause 10, dealing with appeals, had had two additional subclauses inserted to clarify the procedures, and had tightened up the wording relating to members. The State Law Advisor indicated that the draft before the Committee still needed to be amended so that it read more clearly, and proposed that the clause be divided into subsections, one dealing with the Board, and the second with the Tribunal. It was agreed that this be done, and the redrafted wording was prepared and put before the Committee, who agreed to it. The qualifications of the CEO were discussed and debated. It was noted that the wording of subclause (2) should be left as “may hear appeals”. Clause 17 had now been renumbered, and there was some discussion on whether the amount of the deposit should be stated in the Act, or included in regulations. It was agreed that it would be better done by regulation and the State Law Advisor presented a new draft to the Committee, which was approved. It was agreed that clause 17(e), relating to the waiver of the deposit, should be retained.

The Committee agreed that it was not necessary to call for debate, and that it would be sufficient to make a statement. It was agreed that Mr Thlagale would make a statement. A member requested that the statement should include the fact that that every code had an obligation to educate their members. The Committee then proceeded to deliberate the Bill clause by clause. The long and short titles, and Clauses 1, 2, 4, 5, 6, 7, 8, 9 and 11 were all agreed as published. Clauses 3 and 10 were accepted as amended by the State Law Advisors.

Members also approved the Minutes of the meetings of 13 and 18 October 2006.

MINUTES
The Chairperson noted that there were five members present. This was sufficient quorum for the meeting to proceed.

Adv Gideon Boshoff, Legal Advisor, Department of Sport and Recreation, (SRSA), said that he would start by comparing he Amendment Bill (A/B) to the inputs given at the last meeting with the Committee.

Clauses 2 Board and Staff of the Institute
Mr Boshoff confirmed that the wording relating to the members of the Institute had been changed to provide that additional members on the Board of the South African Institute for Drug-Free Sport (SAIDS) would have no voting rights. Generally the CEO of an organisation had no voting right. The previous wording had been unclear, and there was a possibility of this being exploited.

He said that there was also now a time limit of thirty days inserted in Clause 2(c) in respect of requests from the Minister to SAIDS and the South African Sports Federation and Olympic Committee (SASCOC), whereas previously this had been open-ended.

The Chairperson asked if the Minister could appoint all the candidates.

Adv Boshoff replied that the Minister would take policy guidelines into account. The Act was silent on whether the Minister was bound by the recommendations made by SASCOC.

Mr Theo Hercules, State Law Advisor, said that the A/B did direct the Minister to take recommendations into account. He was also required to redress imbalances in terms of race and gender and disability in order to ensure representivity.

The Chairperson said that he would not like to see the Minister unduly restricted. He should be able to consider the matter outside of the recommendations provided.

Adv Boshoff said that the wording had specified that the Minister take “recommendations” from SAIDS and SASCOC into account. The recommendations were not binding.

Mr M Sulliman (ANC, Northern Cape) agreed, pointing out that the A/B was clear that the Minister should take the recommendations “into consideration”. The Minister still had the overriding power.

The Chairperson asked the members if they were satisfied that this clause was correctly worded. He did not want a situation to occur later if the Minister made an appointment other than from the recommended names and was accused of acting ultra vires.

Mr Sulliman said that this was clear to him.

Mr Hercules confirmed that Clause 2 stated that the Minister should invite interested parties to make application and then provide these names to SASCOC. The Minister would take their recommendations into account and would follow the guidelines in making the appointments.

Adv Boshoff said that clause 2 was an empowering one. This stated that the Board would consist of a Chairperson and nine members with specialised knowledge of doping, unless amended by the Minister, and would be appointed by the Minister. If he saw that the members were lacking expertise, the he could declare that the recommendations were not in accordance with the powers of the Board and could therefore overrule the recommendations.

The Chairperson confirmed that the nine members had now been stated, so that the composition of the Board was no longer an open-ended issue.

Adv Boshoff said there was another change dealing with the end of the term of the Board members. The A/B now said that, if a replacement had not yet been identified, a member could remain in office until a replacement was nominated, for a maximum of thirty days.

Mr Sulliman felt that this period might not be enough, and that a greater period should be allowed as a safety valve.

Adv Boshoff disagreed. Having this limited period would compel the Minister to plan ahead and advertise the vacant posts in the media. The thirty-day period was the safety mechanism.

The Chairperson agreed that the situation could not be allowed to persist forever.

Clause 4 and Clause 6
 Adv Boshoff said that both clauses 4 and 6 dealt with responsibilities relating to the Public Finance Management Act (PFMA). Clause 4 cast the duties on the CEO, whereas Clause 6 referred to the Institute, so that both references were necessary.

The Chairperson said that the CEO was a member of the Institute.

Adv Boshoff said that there was some uncertainty whether SAIDS was regarded as an independent accounting authority. The CEO had to ensure compliance with the PFMA, and therefore that particular responsibility was included in his or her job description. The A/B should state that the CEO should specifically ensure compliance with PFMA.

The Chairperson felt that there was still repetition. If SAIDS had to function within the PFMA, then all its members, including the CEO, must act in accordance with it.

Mr Hercules said that Section 8 of the principal Act referred to the CEO, and already tabled his or her responsibilities. The A/B was simply inserting another subsection to ensure that the CEO’s responsibilities must be carried out in accordance with the provisions of the PFMA, and therefore identified him or her as the accountable person.

The Chairperson said that he still believed there was repetition but that there was no harm in having both clauses in the A/B.

Mr Hercules indicated that the addition of the new subclause (b) meant that the cross referencing would need to be sorted out.

Clause 5(1)(f)
Adv Boshoff indicated that Clause 5(1)(f) had a cosmetic change. The phrase “as far as reasonably possible” was a new insertion, since for practical purposes it might not always be possible to have access to a World Anti-Doping Agency (WADA) accredited facility. This had been raised during the Portfolio Committee’s discussion with SAIDS.

Mr Sulliman asked if there would be a penalty if no laboratory was available.

Adv Boshoff said that there was a WADA-accredited laboratory in Bloemfontein. The legislation referred to the establishment and maintenance of this facility. It did not say that there should be only one facility, but the wording as proposed would give some leeway on the issue of maintenance. It was necessary to ensure that the wording allowed for reasonable compliance. The law needed to follow a balancing act. ‘Ensure’ was a proactive word, and replaced the word ‘encouraged’ in the principal Act.

Clause 6
Adv Boshoff reported that Clause 6(3) had been changed to reflect that the Minister may intervene if a national federation refused to co-operate with the Institute. It also now reflected that the Minister could intervene if a dispute or alleged mismanagement or any other matter was likely to bring the sport into disrepute. This stemmed from the concurrent National Sport and Recreation A/B, which was before the Portfolio Committee at present. There was some duplication, but the intervention in the Bill now before this Committee was limited to cases involving doping. The clause now also provided that the Minister could, when intervening in a dispute, refer the matter for mediation or to issue a directive. Adv Boshoff stated that the directive would relate to the Minister’s opinion of how the matter should proceed. The State Law Advisors had cautioned that if the Minister made a ruling, the provisions of the Administration of Justice Act would come into play.

The Chairperson asked if there was a definition of a directive.

Adv Boshoff defined a directive as “guidance with authority”. If the affected federation did not comply with such a directive, then punitive measures could be applied. SRSA could withdraw funding, or, more seriously, the federation could be barred from administering that sport. If a federation chose to totally ignore a directive, then departmental action would follow.

The Chairperson asked what the difference was between a directive and a command.

Adv Boshoff said that a letter from the Minister was akin to a command, or a ruling.

Mr Hercules suggested that a directive could be interpreted as being an indication of a way forward, rather than a specific instruction.

Adv Boshoff then indicated that Clause 6(2)(i) now contained a new insertion stating that the Institute must comply with international codes. .

Clause 10
Adv Boshoff indicated that Clause 10, dealing with appeals, had not been clarified with the addition of subclauses 10(2) and 10(3). These specified that there should be an uneven number of members of the Appeal Tribunal, and that at least two of the members had to admitted and practicing attorneys or advocates with a minimum of three years experience. The original wording of seven years had been disadvantageous to young lawyers and the Chairperson of the Portfolio Committee had suggested that it be changed. The terms ‘admitted’ and practicing” must be read together.

Mr Hercules clarified that the person had to have been admitted to practise by the High Court, and secondly must currently be conducting the practice of an advocate or attorney.

The Chairperson was happy with this explanation.

Adv Boshoff pointed out that the clause now specified that there should be nine persons, as the original draft had not specified a number. It did not specify who would appoint the members. There was only reference to appointment of the three members to the Appeals Tribunal, by SASCOC and the Minister. The legal advisors needed to restructure this clause, which was very long-winded, and in doing so would specify that the Minister would appoint the nine persons.

Mr Hercules said that the wording should be divided, so that the first section of the clause dealt with establishment of a board of nine members with expertise and the second part dealt with the tribunal, which would consist of at least three members of the board. There was no authority to appoint the Board mentioned in the principal Act.

The Chairperson agreed that there should be separate clauses dealing with the Board and the Tribunal.

Adv Boshoff clarified that nine Board members were being appointed because appeals would be heard in different areas. There would thus be a pool of members, and the Minister would appoint at least three of these to hear any specific case. Appointments would be made for geographic and logistic reasons. In exceptional cases all nine members might sit on the Tribunal.

Mr Hercules stressed that the nine persons must have specialised knowledge relevant to doping. This was the ultimate qualification. SAIDS and SASCOC would recommend the three persons for the Tribunal, and at least two must be attorneys or advocates.

The Chairperson asked if SASCOC would make their recommendations from within the Board of nine, or if outsiders would be considered.

Mr Hercules and Adv Boshoff confirmed that only the nine Board members would be eligible.

The Chairperson concluded that some of the Board members might not serve on a tribunal.

Mr Sulliman observed that if there were only two attorneys or advocates on the Board, then they would have to serve on every tribunal while the other seven members could be rotated.

Mr Hercules reminded the meeting that a tribunal could consist of more than three persons.

Adv Boshoff explained that clause 10(4) restricted the term of office to five years. Members would however be eligible for re-appointment. The first draft of the Bill had not specified the length of the term. The rotation of members would assist in the development of expertise. Posts would be advertised and the Minister would make the appointments.

The Chairperson observed that the possibility of re-appointment might still allow persons to sit on the Board perpetually.

Adv Boshoff addressed the specific recommendations that the Committee had made at its last meeting. It had mentioned the number of Board members, which was now addressed by specifying that there should be nine. The staff of SAIDS were now appointed not by Cabinet, which would be a cumbersome process, but with the concurrence of the Minister of Finance.

The Chairperson asked what qualifications the new CEO would need.

Adv Boshoff said that the Bill required that a suitably qualified and experienced person would be appointed as CEO. Any applicant would have to persuade the Minister that he or she had both qualifications and experience.

Mr Sulliman asked what experience was suitable; in the past about five years experience was the benchmark, but there was no specific mention in the Bill.

The Chairperson remarked that the stipulation of experience was often used to exclude people from gaining employment, and this was a problem in many advertisements. The question was how one could gain experience without being given a job opportunity.

Ms H Lamoela (DA, Western Cape) said that a candidate should work up from the lowest level. This was the model Members had followed, from local councilor to provincial legislature to national parliament. The question was how narrowly experience would be interpreted. If it was meant to refer to experience in the field of doping control, it might be difficult to find suitable candidates.

The Chairperson felt that experience of working at a similar managerial level elsewhere would be sufficient.

Adv Boshoff agreed that the candidate would not necessarily need experience in the field of doping. A candidate should be suitably experienced in a similar field.

The Chairperson did not think that the person needed to have been a CEO already, but could have worked in another capacity or area.

Mr Hercules said that SAIDS would consult with the Minister over an appointment. The type of experience required was not specified. The appointment would thus be at the discretion of the Minister, and the Minister of Finance would also have to be consulted.

Mr Sulliman argued that the Minister should be given some latitude. He felt that the requirement for experience should be deleted.

Mr Hercules said that the idea was that the CEO should not be just qualified, but experienced as well.

The Chairperson reiterated that if a person did not have a job he could not gain experience.

Mr J Thlagale (UCDP, North West) believed that the experience did not necessarily have to be in this field. He or she should have wider experience in some field, and management experience would indicate that the person was able to deal with decision-making.

The Chairperson was comfortable with this interpretation.

Ms Lamoela reminded Members that a candidate would be interviewed first, and the value of his or her experience would then be shown. She added that SAIDS did have some challenges.

Mr Sulliman said that if this was the correct interpretation, then he did not have a problem with the clause.

Clause 10(2)(a)
Adv Boshoff stated that there had been a suggestion that the wording relating to the Appeal Board’s power in appeals should be changed from ‘may hear appeals’ to ‘must hear appeals’. He had discussed this with the State Law Advisors, who felt that the word ‘may’ should be retained. The Tribunal could then use its discretion in applying sanctions.

Clause 17(1)(d)
Adv Boshoff noted that the subsections had been renumbered, and the new subclause (d) now reflected that before an appeal could be lodged, a deposit of R1 000 had to be deposited with the Anti Doping Appeal Board. He believed that the reference to the R1000 should rather be changed to “an amount as determined by the Minister from time to time”. The idea of inserting a fixed amount into legislation was outdated as it meant having to amend the Act rather than the regulations. In addition, he suggested that a new subsection must be inserted, to provide that the deposit could be modified or even waived according to the personal circumstances of the appellant.

The Chairperson agreed that the trend of the legislators was that amounts should not be stipulated in the body of the Acts. It was preferable to specify a formula that could then be dealt with by an administrative action.

Mr Hercules did not think that it would be necessary to insert any further subsections. He believed that Clause 17(1)(e) already catered for the situation where a person could not pay. The Appeal Board already had discretion to modify or waive the requirement of a deposit.

The Chairperson asked why any amount should be stipulated at all. Such a provision may have been in the principal Act but Parliament was not bound to follow the format. He asked what point there was in having a fixed amount if the Board could waive it.

Mr Hercules felt there were policy reasons, but the discretion related to personal circumstances.

Adv Boshoff did not agree with Mr Hercules. The personal circumstances would relate to a person who could not afford the deposit.

The Chairperson said that if that was so, then the fixed amount should presumably be regarded as a ceiling.

Mr Thlagale said that if this Committee made any amendments the Bill would have to be referred back to the National Assembly (NA).

Mr Sulliman noted that there had already been one proposed amendment.

The Chairperson confirmed that the Bill would have to be referred back. This fact should not restrict this Committee, which must do what was correct.

Mr Thlagale and Ms Madlala-Magubane (ANC, Gauteng) agreed with the Chairperson that the amount should be reflected as one to be determined by the Minister, as was the case in other Bills.

The Chairperson asked the two legal advisors to synchronise their views.

Mr Hercules did not think this was necessary. If subclause (d) was amended, then subclause (e) could be deleted, but if this was done, then there would be no discretion to the Appeal Board to modify the amount set by the Minister. He felt that subclause (e) should be retained.

 Adv Boshoff agreed that (e) could not be deleted. He said that he would have no objection if (d) referred to an amount to be determined by the Minister.

Mr Hercules said that if paragraph (d) was amended to allow for “an amount to be set by the Minister” he was not sure that anyone reading the legislation would know what it referred to. Perhaps that was why the R 1 000 amount was set. The variable amount should be stated as one that would be published in the Government Gazette.

Mr Tolo said that the regulations would have to capture the essence properly.

Ms Lamoela complained that this would amount to discrimination against the poor.

The Chairperson disagreed, saying that the rich would still have to pay the maximum amount.

It was agreed that subclause (d) be amended to make reference to regulations to be published by the Minister, and that subclause (e) be retained.

The Chairperson asked the State Law Advisors to redraft the affected clauses while the Committee proceeded on other business. He asked the Committee whether a debate should be called in the National Council of Provinces, or whether it would be sufficient to make a statement when the A/B was tabled.

Mr Sulliman said that the A/B was repetitive in many areas. He proposed that a member of the Committee should make a statement.

Ms Lamoela commented that SAIDS had challenges. They should not only limit themselves to enforce doping policies and to conduct tests. They should also play an educational role for new athletes. Many were rural people, and were unaware of the different substances that would result in disciplinary action. SAIDS should have some focus on this.

The Chairperson said that every code had an obligation to educate their members. He agreed that the statement should capture this sentiment.

Mr Sulliman thought that there was currently a Sports Measures Bill that addressed these issues.

The Chairperson still felt that the Committee should mention the education aspect. He asked Mr Thlagale to make the statement.

Mr Hercules returned to the meeting. He said he would be bringing the clauses in line and would be drawing up a new Clause 17 to reflect the discussions today. Clause 17(1) would enable the creation of an independent Appeal Board, which would be a panel of nine persons with specialised knowledge. Clause 17(2) would deal with the Tribunal. At least three members would constitute a Tribunal, with an uneven number of members, and at least two of them must be admitted and practicing attorneys or advocates with at least three years experience. The rest of the subsections would be renumbered.

Mr Sulliman said that if there were objections the A/B would have to go for mediation.

Mr Hercules added that there would now be a new subsection in Clause 4, to delete subsection 8.3 in the principal Act.

Clause 17(d) would make provision for deposit of an amount to be determined by the Minister in the Gazette.

The Chairperson agreed that these changes would correctly reflect the views of the Committee. Members then proceeded to deliberate the Bill clause by clause. The long and short titles, and Clauses 1, 2, 4, 5, 6, 7, 8, 9 and 11 were all agreed as published. Clauses 3 and 10 were accepted as amended by the State Law Advisors.

Approval of Minutes
Members approved the Minutes of the meetings of 13 and 18 October 2006.

The meeting was adjourned.