SAIDS Amendment Bill: DSAC & SAIDS response to comments & finalisation

Meeting report

The Committee Secretariat announced that the meeting had formed a quorum.

The Chairperson then invited Members to proceed with the agenda. No additional items were suggested. Ms N Ndongeni (ANC, Eastern Cape) moved to adopt the agenda, which was seconded by Ms E Nkosi (ANC, Mpumalanga).

The Committee Secretariat then announced two apologies: one from the Minister of Sport, Arts and Culture, due to family commitments, and another from the Acting Director-General of the Department of Sport, Arts and Culture (DSAC), Dr Cynthia Khumalo, who would leave early for a conflicting meeting with National Treasury. Ms Sumayya Khan, Deputy Director-General: Recreation and Sports Development, DSAC, would lead the delegation in Dr Khumalo's absence.

The Chairperson reiterated the purpose of the meeting, which was to engage with the Bill concerning drug-free sports. He emphasised the importance of aligning national laws with international agreements to avoid contradictions. He welcomed the delegation from the Department and the South African Institute for Drug-Free Sport, and outlined the meeting agenda, including presentations from the Department and legal guidance.

Briefing by the Department of Sport, Arts and Culture on the South African Institute for Drug-Free Sport Amendment Bill [B 41B-2023] (sec 75)

Dr Cynthia Khumalo, Acting Director-General, DSAC, expressed gratitude for the Committee's commitment to finalising the Bill. She requested that her video be switched off to improve network quality before proceeding with the presentation. She acknowledged the importance of compliance with legislation and expressed appreciation for the Committee's time.

Dr Khumalo proceeded to outline the purpose of the presentation, stating its aim to update the Select Committee on the progress made by the Portfolio Committee of Sport, Arts, and Culture regarding the South African Institute for Drug-Free Sport (SAIDS) Amendment Bill and other related matters. She also highlighted the presentation's intent to provide details of the National Assembly's adoption of the SAIDS Amendment 2024 and to update the Committee on an arbitration matter between The World Anti-Doping (WADA) Code and SAIDS. Dr Khumalo recommended that the Select Committee on Education and Technology, Sport, Arts, and Culture consider the presentation for adoption and further processing.

Regarding background information, Dr Khumalo mentioned that the Department presented the draft bill to amend the SAIDS Act 1997 to the Republic's Cabinet on 4 October 2023. She noted that the Bill was subsequently tabled before Parliament on 24 November 2023, and 28 February 2024. Dr Khumalo also stated that the Portfolio Committee on Sport, Arts and Culture held both written and oral submissions on the SAIDS Amendment Bill, involving stakeholders such as athletics associations and sports academies. Oral submissions occurred on 11 March 2024 and 13 March 2024, and the Department responded to these submissions.

Dr Khumalo concluded by expressing her intention to hand over to the legal service unit to further discuss the Bill's clauses.

Mr Benedict Mokubedi, Assistant Director: Legal Services, Department of Sport, Arts, and Culture (DSAC), proceeded to provide a clause-by-clause analysis of the Bill (see attached for further details).

He addressed various matters, such as definitions, stating that some definitions had been repealed due to their operational function not aligning with current practices. Others were inserted to align with new amendments and codes. He explained that the definition clause also included an appendix to support amendments made to the WADA code, eliminating the need for frequent amendments to the Bill itself.

In section 2 of the Principal Act, it was clarified that SAIDS is established as a corporate board, denoting it as a national public entity listed in Schedule 3 to the Public Finance Management Act (PFMA). The Bill sought to replace the phrase "operating body" with "public entity" and to specify SAIDS as a national anti-doping organisation.

Section 10 deals with the object of SAIDS and aims to promote and ensure the adoption of a centralised doping control programme, focusing on implementing intelligent testing both in and out of competition. It was suggested that the provision for advanced testing notices be removed, as this should only occur in exceptional circumstances.

Section 11 primarily addressed drafting style and alignment with the code. For example, "testing pool" was amended to "registered testing pool," and issues of singular and plural were rectified.

Section 17, which dealt with appeals, was amended to replace the entire section with a new clause titled "result manager." This clarified that result management would be governed by procedural rules and anti-doping rules aligned with international standards. It established an independent doping hearing panel and an anti-doping appeal board.

Transitional provisions ensured that proceedings pending before the Independent Doping Hearing Panel (IDHP) at the commencement of the Act would continue under the jurisdiction of the IDHP. WADA confirmed the amendments appeared to be in line with the code, contingent upon the formal adoption of the amendments proposed by the Portfolio Committee.

The National Assembly adopted the Bill on 25 March 2024. Mr Mokubedi emphasised the importance of promulgating the Bill to avoid consequences of non-compliance, such as South Africa losing the right to host regional, continental, and world championship events and its flag not being flown at major events. He recommended that the Select Committee take note of the amendments and consider the presentation for further processing.

(see attached for full presentation)

The Chairperson extended gratitude, acknowledging the transition, and outlined the sequence for the session. First, the South African Institute for Drug-Free Sport (SAIDS) would present, followed by responses from the Department concerning the raised issues. The Chairperson emphasised the overarching aim of fostering a drug-free environment within South Africa's action sports realm.

Input by the South African Institute for Drug-Free Sport (SAIDS) on the SAIDS Amendment Bill

Ms Wafeekah Begg, Legal Manager, SAIDS, began by introducing herself and confirming collaboration with the Department of Sport, Arts, and Culture. She emphasised support for the Department's presentation and recommendations for adopting the Bill.

Department’s Response on submissions received on the SAIDS Amendment Bill

Dr Khumalo began by stating that the Department had noted the consensus comments from SAIDS. She mentioned that they also had received comments from the Western Cape Provincial Department, and she intended to delve into them in more detail. Dr Khumalo then highlighted the confirmed alignment and working relationship between SAIDS and the Department's processes, as affirmed by the Legal Service manager from SAIDS. Through the Chairperson, she invited Ms Sumayya Khan, Deputy Director-General: Recreation and Sports Development, DSAC, for further input.

Ms Sumayya Khan, Deputy Director-General of Recreation and Sports Development, DSAC, greeted the Chairperson, Members, CEO, SAIDS board members, and colleagues present. She acknowledged the Acting Director-General's appreciation for the Committee's support and highlighted the close collaboration between DSAC, SAIDS, and Parliament's legal services personnel in finalising the Bill. Ms Khan mentioned that the adopted Bill was sent to the World Anti-Doping Agency (WADA), which confirmed alignment and addressed compliance issues. However, WADA requested to review the final Bill and be formally informed of the President's assent. She emphasised the need for timely deliberations as Parliament dissolves by 21 May 2024, aiming for presidential approval before then. Ms Khan also mentioned the ongoing dispute with WADA, noting their cooperation and the revised hearing date in September 2024. She expressed confidence in finalising the Bill before 21 May 2024 and thanked everyone involved for their efforts.

The Chairperson expressed gratitude and satisfaction with the progress made, noting compliance with WADA regulations as a positive step towards hosting international games in South Africa and allowing the South African flag to fly at international events. He then requested feedback from Parliament's legal advisors on the matter, seeking clarification on any observations or additional considerations for the legal team.

Legal’s Input

Ms Aadielah Arnold, parliamentary legal advisor, expressed gratitude and greeted the Chairperson and Members. She confirmed that WADA had confirmed the Bill's compliance with the code and the resolution of all issues outlined in the corrective action report. Ms Arnold then elaborated on the procedural aspects of the Bill, highlighting that as a section 75 Bill, it could be passed with or without amendments or rejected. She noted that if amendments were proposed or if the Bill was rejected, the Bill would return to the National Assembly. Regarding public involvement, Ms Arnold referred to National Council of Provinces (NCOP) rule 176, which empowers the Select Committee to manage its business to facilitate public engagement. She mentioned that the Committee had called for written submissions from interested parties, with the deadline being 19 April 2024. Only one public submission was received from the Western Cape government. Ms Arnold suggested allowing the Department to formally respond to the submission from the Western Cape government for the record and to acknowledge its consideration of the public submission.

The Chairperson asked the Department to respond to the Western Cape’s comments.

Response to the Western Cape Government Comments: South African Institute for Drug-Free Sport Amendment Bill

Ms Khan informed the Chairperson that Mr Mokubedi would guide the Committee through the comments received. She explained that the comments from the Western Cape government, DSAC's response, and WADA's comments on the matter had been sent through SAIDS.

Mr Mokubedi then elaborated on the comments and responses.

Mr Mokubedi outlined the Western Cape government's first submission, expressing the need for alignment with the corrective action report issued by WADA in October 2022. In response, DSAC affirmed that the amended Bill addressed all non-compliance issues, as confirmed by WADA's correspondence on 19 March 2024. Additionally, WADA supported this confirmation in its own submission.

He then addressed the issue the Western Cape government raised regarding the long title of the Bill and punctuation. DSAC acknowledged the proposal but explained that the long title was updated in consultation with legal and medical advisors, indicating that it fell outside the scope of the Western Cape government's concern.

Regarding the definition of "therapeutic use exemption" (TUE), DSAC clarified that the term was appropriately used in the body of the Bill, contrary to the Western Cape government's assertion. Additionally, DSAC noted that "TUE" was a common acronym accepted by anti-doping practitioners.

On the matter of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) convention, DSAC explained that referencing it in the appendix ensured consistency and avoided frequent amendments. WADA supported this approach, recommending against defining the convention within the Bill.

Next, Mr Mokubedi discussed the inquiry about “Intelligent Testing" by the Western Cape government. DSAC explained that the term stemmed from Article 4.1.1 of the International Standard for Intelligent Testing (ISTI) and concurred with WADA's recommendation not to strictly define it in the Bill.

Addressing the proposed amendment to section 17 sub-one of the principal Act, DSAC assured alignment with procedural rules and anti-doping rules, as guided by both domestic legislation and international standards. WADA emphasised its oversight role in ensuring compliance with international standards.

Regarding the mistake in the heading of Clause 9 of the Bill Amendment, DSAC acknowledged the comment made on changing the word “section” to “sections” and noted that WADA had no further submissions on this point.

The further comments emphasised that the submitted comments did not have a material impact on changing enforcement or specific clauses within the Bill. The corrective action report highlighted areas of non-compliance, all of which were addressed by the Amendment Bill. The agency overseeing the process, involving both the Minister of Sport, Arts and Culture and the Portfolio Committee on Sport, Arts and Culture, confirmed the Bill's full compliance and provided corresponding documentation.

If the Select Committee were to consider the comments by the Western Cape, it would lead to a delay in the promulgation process of the Amendment Bill. This delay would coincide with the dissolution of Parliament in 2024, potentially resulting in South Africa losing its case against WADA at the Court of Arbitration of Sports, incurring significant financial costs. Non-compliance with the WADA code would have enforcement consequences, leading to national and international embarrassment, with South Africa's flag and national anthem at risk of not being acknowledged at the 2024 Olympics and Paralympic Games in Paris.

In conclusion, the urgency of the timeline and potential consequences underscored the recommendation that the Department of Sport, Arts and Culture suggests the Select Committee exclude these comments, deeming them of no material effect in interpreting the legislation.

See attached for further details

Discussion

The Chairperson informed Members that the Department, the legal team and the South Africa Institute for Drug-Free Sport, had provided their comments and responses regarding the input from the Western Cape. He clarified that the suggestions made during the engagement did not constitute any material changes to the Bill. He then invited Members to share their comments on the presentation.

During this time, he noted that the engagement by the Portfolio Committee and the National Assembly had effectively addressed all outstanding matters. WADA's feedback indicating compliance was particularly noteworthy, as it meant South Africa could participate in international sporting events with its flag. The Chairperson expressed gratitude for this compliance confirmation from WADA.

Observing no immediate comments or questions from the Members, the Chairperson inferred that there was agreement with the amendments made by the National Assembly. He sought guidance from the technical team on the next steps forward.

Ms Arnold addressed the Chairperson and Members, highlighting a technical matter regarding Clause Nine of the bill. She clarified that the indication was to refer to sections, and once the Bill is passed, Parliament's Bills Office will effect that change. This amendment does not alter the substance or content of the Bill; it's merely a typographical error.

The Chairperson acknowledged that technical adjustments to the Bill are permissible and expressed gratitude for the further discussion. He then inquired if there were any additional comments before proceeding to the report.

Report of the Select Committee on Education and Technology, Sports, Arts, and Culture on the South African Institute of Drug-Free Sport Amendment Bill [B41B – 2023]

 The Chairperson directed Members to review the report on the finalisation process of the South African Institute for Drug-Free Sport Amendment Bill [B41B – 2023], stating that they could adopt or reject the report with or without amendments. After checking for raised hands, and seeing none, he called for a motion to adopt the report. With no objections, he proceeded to confirm agreement and asked for clarification on whether the voting would be done by individual Members or by provinces. It was clarified that since it was a section 75 bill, voting would be done as individuals.

Members were then asked to raise their hands if they were in favour, against, or abstaining.

The Chairperson concluded the voting process and awaited the results.

Voting: The Committee Secretariat reported the results of the voting to the Chairperson, stating that seven Members had voted in favour of the Bill, with no Members voting against it and no abstentions.

Closing remarks

The Chairperson expressed gratitude for the agreement on the Bill without any amendments. He then asked if there were any further comments from the participants. In the absence of any, he extended thanks to everyone for participating in the important meeting, highlighting the significance of ensuring that the South African flag would fly proudly around the world. He emphasised the unity and happiness it brings and expressed the desire to see it flying high. Finally, he concluded the meeting, thanking everyone once again.

Approximately 25 minutes later, the Chairperson acknowledged the premature ending of the meeting and the oversight in not covering other agenda items, specifically the adoption of minutes and the Committee report. Stressing the importance of addressing these matters promptly, he redirected the focus to them.

Ms K Muthwa (ANC, KZN) said expressed network challenges.

Committee Minutes

Minutes dated 02 May 2024

Ms Nkosi moved to adopt the minutes, and Ms D Christians (DA, Northern Cape) seconded the motion.

The minutes were duly adopted.

Report of the Select Committee on Education and Technology, Sports, Arts, and Culture on the South African Institute of Drug-Free Sport Amendment Bill [B41B – 2023]

Ms Nkosi proposed the adoption of the report, which was seconded by Ms S Lehihi (DA, North West).

The report was then unanimously adopted. https://pmg.org.za/tabled-committee-report/5831/

The Chairperson noted that this marked the final meeting of the Select Committee on Education and Technology, Sport, Arts, and Culture in the National Council of Provinces. He invited Members to share farewell messages and extended well wishes to all. With no further inputs from the Members, he encouraged those continuing with parliamentary work to advocate for incident-free elections and for a better society.

The meeting was officially adjourned.