Lee's Legislative proposal to repeal the South African Boxing: Briefing & Selfe and de Lille proposals on Presidential power to pardon: deliberations, adoption of Questions for Department

Private Members' Legislative Proposals and Special Petitions

31 August 2010
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee firstly considered a legislative proposal from Hon Donald Lee to repeal the South African Boxing Act 11 of 2001. Mr Lee indicated that boxing was the only South African sporting code whose powers and functions were laid out in terms of national legislation. All other sporting codes were self-regulated, and the legislation governing the institution was therefore an anachronism. In addition, because the legislation required the State to fund Boxing SA on an ongoing basis and to bail it out if it fell into financial difficulties, this was unfair to other codes, and was unwarranted expenditure that was not based on a sound decision supported by good financial management and performance. He described the organisation of Boxing South Africa as shambolic, pointing out that it was run by bureaucrats with no real interest in the sport, and that it had received qualified audit reports for the last nine years. Members asked why the Act was passed in the first place, and what the effect of the repeal would be, asked for more detail on why development of boxing seemed to be in decline, and questioned what the position of sponsorship and financial support by the State was in other codes. They also noted that many sponsors were withdrawing from boxing, asked why this was so, and questioned whether Mr Lee would still believe it was necessary to repeal the Act if the officials at Boxing South Africa were replaced with competent officials, and why the competent people of the past had opted out when the Act was passed. Mr Lee reiterated that his other arguments about unfairness still applied. Members also highlighted that it was possible for a sport to be controlled by racketeers, wondered how much of the subsidy to Boxing South Africa was going on salaries and how much to promotion of the sport, asked whether the presenter was in favour of all sporting codes being regulated by legislation, and what controls would still exist if the Act was repealed.   

Members then further debated the Selfe and de Lille Proposals around the President’s power to pardon. One proposal had called for a repeal of Section 84(2)(j) of the Constitution while the other called for fettering of the power by certain requirements having to be fulfilled. Two clear views emerged from the discussions. Some Members thought that this matter must be referred to the Portfolio Committee on Justice and Constitutional Development, since this Committee could not debate on the merits of the proposals, but there was further information that was needed to make a decision. Others thought that there was no need to do so since the views of the Department of Justice had already been obtained, and because it had emerged from the earlier discussions that this power to pardon, although originating from a monarch’s power to pardon, was not necessarily inconsistent with a modern democracy, and that in practice the President would not take a decision without consulting with Cabinet, and the victim. These Members saw no reason to amend the position. It was agreed that the issue be discussed further at the next meeting.

The Committee considered, and adopted, amended draft questions that would be forwarded to departments when the input of stakeholders was required. They also adopted the Fourth Term Committee Programme.

Meeting report

Chairperson’s opening remarks
The Chairperson announced that a communiqué had been received from the Portfolio Committee on Women, Children, Youth and People with Disabilities, indicating that a joint meeting had been scheduled with the Select Committee for Women, Children and People with Disabilities to consider Hon Dudley’s proposal dealing with the Choice of Termination of Pregnancy Amendment Act, after which a further report would be sent to this Committee.

Lee’s Legislative Proposal to repeal the South African Boxing Act, No 11 of 2001
Mr D Lee introduced his legislative proposal to repeal the South African Boxing Act No 11 of 2001 (the Act). He said that boxing was the only South African sporting code whose powers and functions were laid out in terms of national legislation. All other sporting codes were self-regulated, and the legislation governing the institution was therefore an anachronism.

Furthermore, the establishment of Boxing SA (BSA) by this Act placed an obligation on the State to fund it on an ongoing basis, as well as to provide additional financial support when it encountered financial difficulties. This expenditure was unwarranted. If State money was to be provided to boxing, then this should be done not because it was compelled to do so, but rather based on a sound decision taking financial and performance grounds into consideration. In addition, Mr Lee believed it very unfair for the other sporting codes that only boxing was singled out, and that its administration was fully subsidised by the government. In principle, boxing should be run independently without interference from the State, as was the case with the other sporting codes and their governing bodies, such as rugby (SARU), cricket (CSA), football (SAFA), and athletics (ASA). It was time for the State to rid itself of this organisation and allow it to be recreated under its own management, as was the case for all other sporting codes.

Boxing SA would receive R2.3 million from the taxpayer this year. However, in addition to the money it received from the State annually, it regularly received bail-outs for a range of financial disasters. BSA had been plagued by scandals relating to mismanagement of funds and internal infighting, which had hindered organisational stability since its formation. In 2007 the then-Minister of Sport and Recreation called the organisation “a nuisance”, and last year the current Minister said that it “continues to be the Achilles heel of our work”. BSA’s administrative capacity was in a shambles. Purse monies must be deposited into BSA account fourteen days prior to a boxing tournament, but this was not the case for some time. Last year a boxing tournament in the Eastern Cape had to be postponed after international boxers refused to fight because the promoter had not been paid the purse monies. Only a last minute bail out by the Eastern Cape saved BSA from becoming the laughing stock of the boxing world. The international boxers were paid one day after the fight but local boxers were paid only a fortnight later.

In December 2008 three board members resigned, citing the chairperson’s ‘autocratic management style’ as the reason. BSA was dependant on allocations from the Department of Sport and Recreation to manage its affairs, with some revenue from licence and sanctions fees. Sponsors Vodacom, Old Buck and Distell did not renew their sponsorships, worth a combined total of R2.3 million, due to the mismanagement of the failing institution. He said that it was time that boxing was given back to the boxers and boxing promoters of this country.

Mr P Pretorius (DA) wondered why it was necessary to have the Boxing Commission in the first place. He referred to the long title of the current Act and asked for clarification as to what the consequences for boxing would be, if the Act were repealed, and nothing were to regulate the interests of that code. The original idea of the Act, amongst others, was to ensure effective administration of boxing in the Republic of South Africa, yet Mr Lee had indicated that currently the administration was not professional. He read out the wording of the Act, noting that it aimed, amongst others, to recognise amateur boxing, to create synergy between professional and amateur boxing, to establish a Boxing Commission; to promote interaction between and boxing managers and promoters.

Mr Lee responded that before the Act came into effect, South Africa had a number of world boxing champions, including Charlie Weir and others. Since the Act was promulgated, there were no more champions. This made it clear that it was not necessary to have an Act in order to have good boxers. Instead, dedicated sports administrators were needed. There were champions in other sports not regulated or administered by the State, such as rugby, cricket and different codes who were not governed by legislation. He believed that it was necessary to get dedicated people back into boxing, so it would flourish again.

Ms J Kilian (COPE) said that the repeal of the Act would result in a saving to the State. However, she asked if Mr Lee saw that the State could still support the development of amateur boxing, and asked how this worked in the other sporting codes.

Mr Lee explained that all other sporting codes received subsidies, as did the overarching sports body in South Africa. Boxing was being run by bureaucrats, and not people who were interested in boxing, and if this situation changed he believed that boxing could get off the ground. He said that support must be given to both potential boxers, and also to teachers to identify promising young boxers.

Ms J Sosibo (ANC) asked whether Hon Lee meant that boxing should not be regulated. She asked if boxing was being subsidised. She also asked why it appeared to be losing its sponsors.

Mr Lee clarified that boxing was fully subsidised, and fully run by the State. Other sporting codes were partly subsidised by the State. He thought that boxing and its development should be subsidised, but those who should benefit from the subsidy should be the boxers, not bureaucrats who made decisions. He noted that sponsorship had fallen because sponsors wished to be associated with success, and Boxing South Africa was a failure. There were always discrepancies with boxing tournaments. Sponsors did not wish their products to be associated with that.

Ms A Dreyer (DA) asked why this Act was added to the statute books in the first place, and why boxing was singled out, when similar legislation did not exist for the other sporting codes.

Mr Lee said the law was intended to assist the development of boxing in South Africa, and to protect the promoters and the boxers. However, he thought that this was flawed; if legislation was not needed for rugby, cricket, and other codes, then there seemed no reason why it was needed for boxing. Internationally, State intervention in sport was frowned at, and the Olympic Committee and FIFA, for instance, did not wish the State to meddle in sport.

Mr N Fihla (ANC) commented that sport played a role in modelling values of society. Children in sport tended to be better disciplined. There was at one time a problem in boxing, especially in America, where for many years it was controlled by the Mafia, and that influenced other countries.

Mr Lee expounded on that. Donald King was the don of the Mafia. The richest sports people in the world were boxers. The champions in the many different categories were multi-million and billionaires. They were free in the sense that they were not governed by legislation.

Mr Pretorius asked for clarity on the figure of R2.3 million mentioned as a saving if the Act were repealed. He presumed that was the amount spent by government on boxing, and suspected that the bulk of that went to salaries. There must be a point where the seven boxing commissioners could get honoraria in respect of their services and certain allowances. Currently, the Chief Executive Officer of Boxing South Africa had the power to appoint any staff member that he felt was required, and all these people would have to be remunerated in line with the officials of the public service. He asked what percentage of the R2.3 million went to salaries.

Mr Lee agreed that the bulk of the money went to staff and salaries. The Act was passed in 2001, but since then Boxing SA had not had a single unqualified Auditor General’s report. Over the years there had been a great struggle to get the organisation into line, which was why it had been referred to as “a nuisance”.

The Chairperson noted that there was a contradiction in that the Act was apparently promulgated to assist the development of boxing in South Africa, but since its promulgation, the development appeared to have become weaker.

Mr Lee clarified that before the Act, those involved in boxing were involved in the development of the sport. Judge Kloppers was President of Boxing South Africa, many of his support people were interested in boxing, and were sport administrators. In 2001 the position changed, so that now a bureaucrat sat behind a desk, who did not really know or understand boxing. The sport was now being run not by boxing promoters and boxing administrators, but bureaucrats. Development had stopped and the code was no longer able to produce the talent of the past.

The Chairperson was not satisfied with this explanation and asked how the law was associated with development.

Mr Lee responded that the Act created the expectation that things would be done for BSA. The administrators and promoters opted out because there was now a legal body to take over. However, that body failed miserably because it was not being run by proponents of the sport.

The Chairperson noted that much of the argument was based on the incapability of the structure. He wondered what the argument would be if BSA’s staff were replaced by capable men and women.

Mr Lee said that another leg of his argument would still remain because the existence of this Act for this code only was unfair towards other sporting codes. He suggested that in fact the sport that currently needed assistance was athletics.

The Chairperson asked what Mr Lee’s opinion would be on a suggestion that all the sporting codes were regulated.

Mr Lee said he would be totally opposed to that.

Mr Pretorius asked for clarity. If the Act were repealed, there would still need to be some control, and in fact in the past there had been a Boxing Control Board. He asked if BSA would organise that internal control.

Mr Lee responded that international rules applied to all sporting codes. Safety was very important in boxing, and therefore there were rules to ensure that boxers were safe. If South Africa wanted to take part on the world stage, it would have to conform to and abide by all those rules. If that body was called a Control Board then South Africa would also have to have one.

Ms Sosibo asked in what way was boxing in a “shambles”, as Mr Lee had suggested.

Mr Lee replied that boxing had been in a shambles since the inception of the Act. It had received qualified audit reports for the past nine years.

Ms M Mdaka (ANC) asked for further clarification on the argument that the situation could not be corrected if the structure was replaced by capable people.

Mr Lee reiterated that the point remained that the existence of this Act was most unfair because it discriminated by singling out boxing, ignoring all the other sporting codes. Other sporting codes regulated, administered and financed themselves.

The Chairperson thanked Mr Lee for his presentation, saying that now the Committee had a better understanding as to why the proposal had been submitted. He would be kept informed.

Selfe and de Lille Proposals: President’s power to pardon
The Chairperson recapped that the Committee had until now not been able to deliberate on the two proposals, because it had had difficulty in getting a quorum. He noted that both proposals, although different in substance, had the same effect, namely to make alterations to the Presidential power to pardon, which was set in Section 84(2)(j) of the Constitution.

Ms Kilian said that one proposal had called for an amendment to the Constitution, while the other asked for the President’s power to pardon to be subject to certain regulations. It was interesting to see that other countries with the history of a monarchy had also moved to regulating the unfettered power of the previous monarchs to some extent, to make provision for modern democratic principles, and had accepted that it was not right for one individual, irrespective of who that might be, to take decisions without having been given guidance. This might be from the Minister responsible, or a board that would consider, on the basis of specific unbiased principles, if certain applications should be pardoned. She felt that this might be a case that the Committee needed to investigate further, although this was not the Committee’s primary responsibility. The Department of Justice and Constitutional Development (DOJ) had given a presentation that contained interesting views and listed some Constitutional case law. The presentation by Hon Selfe had not, to her mind, been quite focused enough, because it also required a Constitutional amendment. If the Committee agreed that it was necessary to limit the current unfettered power of the Head of State, then it was not up to this Committee to decide how it was to be done. She felt that the two proposals should be passed on to the Portfolio Committee on Justice and Constitutional Development. If that Committee decided that, in principle, the proposals had merit, they could then be forwarded to the Constitutional Review Committee or another relevant committee to consider how to take it on board and how to provide for that function, or how the curtailment of powers of Head of State could be done. She noted that in some countries, Heads of State were elected directly. France had presidential elections, but South Africa did not have that system. She believed further scrutiny was needed as to how to make the unfettered power compatible with the democratic principles in South Africa. She pondered if this was something that slipped in through the Constitutional process that should have been further scrutinised. There was a need to look at how the wording in the 1961 Constitution had come through to the 1993 Interim Constitution.

Ms Mdaka said that Members seemed to forget they were discussing the President of this country. Members were comparing this country with other countries, when South Africa was actually looked upon as an example to other countries. The President was not an Executive President. She thought it would be a disgrace and an embarrassment to strip the powers of the President or to restrict them.

Ms Dreyer raised a point of procedure. This Committee had certain prescribed responsibilities when considering proposed legislation. It should not discuss the merits of the proposed legislation, as that was the prerogative of the relative portfolio committee. This Committee had to answer certain technical questions, and if it was satisfied on those, then it must refer the matter to the appropriate portfolio committee. She cautioned that Members should stick to their mandate.

Mr Fihla said he had served on the relevant Committee for fifteen years. It was clearly stated that before the President could take any action towards pardoning a person, he had to consult the Minister of Justice, because it was the judicial system that had imposed the sentence. The person seeking pardon would be evaluated. In addition, there would be consultation with the victim. Mr Fihla considered that there was enough protection of abuse of power and no need to change existing law.

Mr Pretorius agreed that this Committee should not go into the technical detail or content of the proposal. Both proposals were highly technical and complex issues, and he did not feel comfortable making a decision without having more input from experts from all sides, such as Professor de Vos from the University of the Western Cape. His view was to rather pass this to the appropriate portfolio committee, who could do a proper investigation on the contents of the proposals. He did not think this Committee was in a position to give a considered view as to whether these proposals were necessary or not. The Committee had drafted certain questions as a guide to determine whether it complied technically, and he would prefer that the Committee followed that route.

The Chairperson said Members were required to apply their minds to certain questions. They must consider the proposal before them, and the constitutionality of those proposals. The Committee must consider whether the proposal was pre-empting what was likely to be done by the other organ of State in government, or whether the proposal had some elements of replicating what already existed.

Ms Sosibo said the power to pardon people was the prerogative of the President. He did not do it alone but he consulted. At the end of the day he was the Head of State. The Department of Justice had made a presentation and she did not feel that there was a need for the matter to go to the Portfolio Committee on Justice at this stage.

The Chairperson noted two views from the Members. One was to refer the matter to the Portfolio Committee on Justice and Constitutional Development, whilst the other view was that there was no need to do so, since the Head of State had been given a prerogative to pardon offenders. The Committee had referred to this section of the Constitution, and understood that the President, in exercising this power, acted as the Head of State, and not as the Head of Government. The Constitutional principles were outlined in section 84(i) to (k) of the Constitution. Because the President, in terms of Section 84 of the Constitution, was required to set up a Cabinet, he would from time to time consult members of Cabinet when matters relating to their competency were raised, despite the fact that he had already been given the responsibility and the role by section 84. This Committee may not rule out the idea that some decisions of the President were based on the advice of Cabinet Ministers responsible for the particular area of responsibility. In addition, that section of the Constitution, which was one of the Constitutional obligations resting on the Head of State, must not be confused with parole in terms of the Correctional Services Act. The fact that the role of pardon seemed to be related to roles practiced by monarchs for some time was linked to the fact that many government roles were taken over from leaders who were ruling before the existing systems came into being. The practice should not be ruled out purely on the basis that it was practiced by the monarchy, but should be considered in the light of the new democracy. The Chairperson summarised that some Members were suggesting that there was no need to regulate how the Presidential power to pardon should be exercised.

It was agreed that the issue be discussed further at the next meeting.

Adoption of Questions for Departments
The Committee considered amended draft questions, which would be forwarded to departments when the input of stakeholders was required.

The amended document of Draft Questions for Departments was approved and adopted.

Adoption of Fourth Term Committee Programme
The Draft Fourth Term Committee Programme was approved and adopted.

The meeting was adjourned.


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