Minister of Sport on Caster Semenya Issue, SASCOC & Athletics South Africa; Discussion of Section 56 of Constitution to Summons an Entity to Appear before a Committee

Sports, Arts and Culture

06 September 2010
Chairperson: Mr B Khompela (ANC)
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Meeting Summary

The Committee discussed the refusal of the South African Sports Confederation and Olympic Committee (SASCOC) to appear before the Committee. SASCOC had been invited to appear before the Committee to discuss the Caster Semenya controversy involving Athletics South Africa. Two written invitations had been sent to SASCOC which had not been honoured. SASCOC was a no show. SASCOC believed that the issues that the Committee wished to be briefed on were of a sensitive nature and preferred to brief the Minister of Sport. The Committee felt that the refusal by SASCOC was undermining the Committee and it decided to invoke Section 56 of the Constitution to compel the institution to appear. A resolution to this effect would have to be taken by the Committee. Section 56 provided for SASCOC to be summonsed to appear before the Committee. Failing an appearance, SASCOC would be in contempt.

The Minister of Sport had been invited by the Committee to brief members on the Caster Semenya issue and he obliged. The briefing was at his own behest and he made it clear that he was not the messenger of SASCOC. Neither had he been summoned by the Committee. It was felt all-round that the Minister’s briefing had not divulged anything of a sensitive nature. Much of what the Minister had said was already in the public domain. The media had covered the Caster Semenya controversy extensively. The refusal by SASCOC was seen by Members as pure arrogance and should not be tolerated. SASCOC had forced the Committee’s hand to take drastic action.



Meeting report

Refusal of SASCOC to appear before the Committee
The Chairperson stated that Members had the previous week met with the National Assembly legal advisor and the Speaker to decide on how to relate to SASCOC. The issue that the Committee wished to discuss with SASCOC was the Caster Semenya case and not the
findings of the forensic audit report into the finances of Athletics South Africa (ASA). This was communicated to SASCOC via a letter. SASCOC was asked to brief the Committee on the Caster Semenya issue as handled by ASA. SASCOC did not comply with the Committee’s request. The Chairperson had been advised to invite SASCOC a second time. If SASCOC refused a second time to appear before the Committee, Section 56 of the Constitution should be invoked to force SASCOC to appear before the Committee.

The Chairperson noted that he had received a letter from SASCOC prior to the meeting. The first letter received from SASCOC was dated the 13 August 2010. SASCOC stated that they had briefed Minister of Sport, Makhenkesi Stofile, on the issue and would not be appearing before the Committee. An enquiry was taking place and a legal process had ensued. It was a confidential matter.

The Chairperson said that, by inference, SASCOC was saying that the Minister should brief the Committee as SASCOC would not be coming to Parliament. The second invitation by the Committee was also turned down by SASCOC. The issue was not about SASCOC briefing the Committee on certain matters, but rather, by not making an appearance, it was that they had no respect for the Committee.

Mr G MacKenzie (DA) noted that the refusal of SASCOC to appear before the Committee after being invited twice was not just arrogance but they were crossing the line of the law of South Africa. SASCOC was attempting to create a division between Minister Stofile and Deputy Minister Gerhardus Oosthuizen on the one side and the Committee on the other side. SASCOC felt that it could provide Minister Stofile with selective information.

Mr T Lee (DA) stated that if SASCOC refused to provide the Committee with information, the Minister might as well provide it.

The Chairperson said that it was a simple matter of principle that the Committee could not allow a precedent to be set: that an entity be allowed not to appear before the Committee, despite being asked to do so. He asked why Minister Stofile should be the messenger of SASCOC.

Mr M Dikgacwi (ANC) agreed that Minister Stofile was not the spokesperson of SASCOC. It was a clear sign of arrogance and disrespect by SASCOC. Section 56 of the Constitution needed to be invoked. A briefing by Minister Stofile should not be seen as being on behalf of SASCOC.

Ms T Sunduza (ANC) said that SASCOC was undermining the Portfolio Committee on Sport. They were breaching an Act of Parliament. Minister Stofile was being undermined as well. It was very convenient for SASCOC to consider itself a non-government organisation (NGO). SASCOC was a government body and it was undermining Parliament. Suddenly the Caster Semenya issue with ASA was considered sensitive yet it was all over the media.

Mr C Frolick (ANC) stated it was not the first time that SASCOC had refused to appear before the Committee when asked to do so. It had happened in the past as well. The responsibilities of Minister Stofile and that of SASCOC should not be confused. SASCOC was a macro federation who received government funding. SASCOC thus had a duty to address the Committee.

The Chairperson reiterated that the refusal by SASCOC to appear before the Committee forced the invocation of Section 56 of Constitution read together with Rule 138 of the National Assembly. He asked Ms Parliamentary Legal Adviser to speak on the matter

Ms Anthea Gordon, Parliamentary Legal Adviser, agreed with the sentiments expressed by Members. Section 2 of the Constitution made the Constitution supreme. Everything that was done fitted in under the Constitution. Parliament had invited SASCOC on two occasions in a cordial manner. If a matter was in the public interest, it fell within the jurisdiction of the Committee. The invocation of Section 56 of the Constitution was the correct route to take. The matter would then be a summons issue. A summons was in terms of Section 14 of the
Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 2004. What the Committee needed to do was to pass a resolution to kick off the summons process.

The Chairperson said that the resolution would be passed and the matter would be further discussed with Ms Gordon. It was a bad situation that the Committee had arrived at, but the Committee had to act. The Minister understood his role and that of the Committee. Correspondence had been sent to the Minister that the issue of Caster Semenya needed discussion and that the SASCOC issue also required addressing. The matter, as far as the Committee was concerned, had not been about the forensic audit report. Mr Leonard Chuene had been suspended as President of ASA due to the Caster Semenya controversy. The Committee needed to know how the matter involving Caster Semenya had been handled.

Briefing by Minister of Sport
Minister
Makhenkesi Stofile said that he and Deputy Minister Oosthuizen did not have a problem attending the meeting. Permission from the Deputy President had been obtained. He did not wish to give the impression that he had been summoned by the Committee. The Committee had requested a briefing and he was willing to oblige. The truth would be revealed. He stated that it was correct that SASCOC had spoken to him about the Caster Semenya matter. It was normal for the Minister to speak to federations all the time. Many issues had on several occasions been discussed. It was indeed correct that the Ministry could not be the spokesperson of SASCOC. The Ministry represented government. Neither did the Ministry represent the Committee nor the Speaker.

Minister Stofile was relieved that the Committee was not interested in the forensic audit report. The forensic report was a very technical document. He said that the issue between Caster Semenya and the International Association of Athletics Federations (IAAF) could be likened to going to war. He felt it to have been a worthy war as Caster Semenya had prevailed in the end. He would shed light on how Mr Chuene and the board members of ASA had handled the saga. The action they took would also be elaborated upon.

Minister Stofile said that Caster Semenya was in 2009 embroiled in the whole issue which saw her name being dragged through the mud. Issues about her gender and sexuality were in question. It was a rude invasion and a violation of her dignity and rights. The Ministry had demanded that the IAAF apologise to Ms Semenya and restore her World Record 800m title that had been taken away from her. The IAAF had alleged that Ms Semenya’s testosterone levels were too high. The Ministry had asked what the ceiling for acceptable levels of testosterone was, as far as having an unfair advantage. The Minister had further asked that norms and standards be established. SA scientists had assisted with the setting of norms and standards. The matter of testosterone levels and unfair advantage was looked at by five representatives from the IAAF and SA respectively. The long-term implications on Ms Semenya had also to be considered. A legal team had been put together to look after Ms Semenya’s interests. The Minister said that he could not divulge the actual treatment that had been meted out to Ms Semenya.

In the end, it was decided that Ms Semenya had not had any unfair advantage and would be allowed to compete again. Her gold medal title was also restored. Everything returned to normal once the ban had been lifted. The good that had emanated from the controversy was that new benchmarks had been set for athletes in world athletics. Testosterone levels for competitions had been benchmarked. It would promote fairness and gender equity. Another eye opener was that it was realised that governments and international federations had to co-operate on such matters. Elements did exist where policy development was necessary for relations between international federations and governments. The Ministry had worked with FIFA on similar issues. The Minister stated that he would be attending a conference in Mexico in the near future on similar matters. The IAAF and SA had introduced a new dimension which needed to be spread to the world. The good that had emerged had however come at a price, that is, the impact on Ms Caster Semenya.

Minister Stofile said that another issue was that when the IAAF was questioned about the allegations that they had made, IAAF indicated that they wished to speak to President Zuma. The Ministry had advised President Zuma not to speak to the IAAF. It was an issue which the Ministry had to deal with. President Zuma could meet with the IAAF once the matter had been resolved. The IAAF had restored Ms Semenya’s title of the 800m gold and she was also paid the prize money that went with the title. The IAAF had however refused to apologise to Ms Semenya for undermining her rights.

The Minister said that he had been shocked when he saw Mr Leonard Chuene making statements on television. The board of the ASA had supported what Mr Chuene had said. The forensic report was the result of allegations of the embezzling of funds. There were also allegations of corruption within ASA.

The issues were whether the Caster Semenya controversy had been handled correctly, had the testing been done in a proper manner and whether the IAAF actually had jurisdiction. The legal commission that had investigated the matter had concluded that Mr Chuene had defied all legal and medical advice that Caster Semenya should have been withdrawn from the race until issues had been resolved. Dr Haroun Adams who was an accredited ASA doctor and who sat on the IAAF Committee on Medicines had advised Mr Chuene to withdraw Caster Semenya from the race. Mr Chuene had ignored the advice. The board of ASA was found as guilty as Mr Chuene, and was suspended. Certain managers at ASA had also been suspended with pay. SASCOC had decided to proceed with prosecutions.

Many allegations were made against ASA regarding the mismanagement of assets, non compliance with the Companies Act as well as tax evasion. SASCOC considered the issues to be sensitive. The Minister did not find the issues of a sensitive nature and hence he had spoken about them.

Discussion
Mr Lee pointed out that the Committee’s agenda for the meeting had stated that SASCOC would brief the Committee on the outcomes of the forensic audit report on the alleged financial mismanagement by ASA. 

The Chairperson reiterated that the Minister was not the messenger of SASCOC. SASCOC should have addressed the Committee. Nothing that the Minister had spoken about had been of a sensitive nature.

Mr McKenzie said that the Committee should be clear that it wished to discuss the Caster Semenya issue with SASCOC. The forensic audit was a subsidiary matter. The Minister had shed light on the manner in which Mr Leonard Chuene had handled the Caster Semenya issue. What was so sensitive about what the Minister had said? He asked if Caster Semenya would be compensated for the damage to her persona. Would she be compensated for loss of earnings as a result of not competing?

Minister Stofile replied that the compensation issue was a private law matter. Action would have to be taken by Caster Semenya herself. The Ministry could not sue on her behalf.

Mr Dikgacwi said that there was nothing sensitive about what the Minister had said. It was clear that SASCOC was just arrogant. He added that the persons who had advised Mr Chuene not to allow Caster Semenya to compete, were wrong. Caster Semenya was the champion.

Mr L Suka (ANC) said that the briefing by the Minister had demystified many of the myths. The spinoffs from the saga such as the benchmarks and policies put in place, were at least positive. He asked what programme was in place to profile Caster Semenya as a gold medallist. There had been much negative publicity so a bit of positive publicity was needed.

Minister Stofile replied that he had accompanied Caster Semenya on visits to various areas where she was supposed to host coaching clinics. The fact was that she was mobbed by fans. There was good coverage of her achievements.

Ms Lishivha stated that she was worried about SASCOC. SASCOC had the same persons in top positions year after year. The old guard needed to be changed. A generational mix was needed. Often these individuals think that the Committee was their friends - which were not the case. The public might get the impression that the Committee was selective in its oversight. Transformation in organisations such as SASCOC should take place from the top. SASCOC was quick to say that it was an NGO but when funding was needed, why did they approach the Committee? The Committee could not set a precedent by allowing SASCOC to undermine it. Action should be taken or else other federations would also undermine the Committee.

Minister Stofile explained that legislation was in the pipeline to deal with the terms of officials who serve in federations. Presidents of federations, as it was now, could serve in perpetuity. He felt that a three term service was reasonable. It was important to bring in young blood. Sports involved huge sums of money. The sporting arena was filled with sharks. It was best to keep sports administrators at arms length.

The Chairperson said that the decision to act had already been taken by the Committee. The resolution by the Committee would be forwarded to the Speaker of the National Assembly. If SASCOC did not appear before the Committee after being summonsed, then warrants would be issued and the organisation would be in contempt.

Minister Stofile said that, from his perspective, nothing in the briefing was of a sensitive nature. The test was however a subjective one.

The Chairperson said that the Committee did not have a problem with international federation presidents speaking to President Zuma. What the Committee did have a problem with was when international federation presidents equated themselves with the President of South Africa. The Committee took exception to it. South Africa had a Minister of Sport with whom discussions could be had.

Minister Stofile said that it was not President Zuma’s fault. It was the Ministry’s fault. Leaders should be protected. It was the issue of management by connections and before one knew it, leadership was compromised. The Ministry had the right to decide to whom the President speaks. The President should be protected from being ambushed.

The Chairperson pointed out that two women who had the same condition as Caster Semeneya had addressed the Committee. The condition experienced by these individuals was not taboo. It should be discussed.

Minister Stofile was glad that the Chairperson had raised the issue. He wanted to hold a conference on the matter. South Africa was still very conservative and the issue was being suppressed. The Ministry had received correspondence from persons all over the world who had been cast aside by their sports federations.

The Chairperson said that South Africa had been faced with a two edged sword. If Mr Chuene had not allowed Caster Semenya to compete, the controversy would not have happened. But then the positive strides would not have been made.

He said that cheating about one’s age at school level was prevalent in sports.

The Minister agreed that schools sports was important and needed discussing. The Committee needed to be briefed on what work was being done. Minister Stofile suggested a day be set aside to brief members.

The Chairperson said that the Committee would fit it into its programme.

Mr Lee asked that the Minister furnish the Committee with the report he had in his possession on the matters he had briefed the Committee.

The Chairperson said that the Committee would receive the report.

After adopting the committee minutes of the 2, 10 and 17 August 2010, the meeting was adjourned.

Appendix:
Constitution of the RSA

56. Evidence or information before National Assembly
The National Assembly or any of its committees may –
(a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
(b) require any person or institution to report to it;
(c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any interested persons or institutions.

Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 2004
Summonsing of witnesses
14. (1) A joint committee may-
(a) summons any person to appear before it to give evidence on oath or
(b) require any person or institution to report to it.
affirmation, or to produce documents; or
(2) A summons in terms of subsection (l), or section 56(a) or
69(a) of the
Constitution, to appear before a House or committee to give evidence or to produce
documents2 must be issued by the Secretary on the instructions of-
(a) the Speaker or the Chairperson; or
(b) the chairperson of the committee concerned, acting in accordance with a
resolution of the committee and with the concurrence of the Speaker or the
Chairperson.
(3) The summons must state-
(a) the name of the person summonsed;
(b) the name or designation of the person who must serve the summons;
(c) the time, place and venue at which the person summonsed is required to
(d) the subject of the enquiry;
(e) the purpose for which the evidence of that person is required; and
(f) a description of the document, if any, which that person is required to produce.
appear;
(4) The summons must be served by the sheriff, or by a person designated by the
Secretary, by delivering a copy of the summons-
(a) to the person mentioned in the summons; or
(b) at that person’s usual or last known place of residence or of employment or
. business, to a person apparently over the age of 18 years and apparently
residing or employed there.
(5) A return by the person who served the summons that service thereof has been
effected in accordance with subsection (4) is prima
facie proof of the service.
(6) A person summonsed in terms of this section or requested by a House or
committee to attend a meeting of the House or committee,’is entitled to be paid an
amount for his or her expenses, as approved by the Speaker or Chairperson in

accordance with the standing rules.

Rules of the National Assembly
138. General powers
For the purposes of performing its functions a committee may, subject to the
Constitution, legislation, the other provisions of these Rules and resolutions of the
Assembly —
(a) summon any person to appear before it to give evidence on oath or
affirmation, or to produce documents;
(b) receive petitions, representations or submissions from interested
persons or institutions;
(c) conduct public hearings;
(d) permit oral evidence on petitions, representations, submissions and
any other matter before the committee;
(e) determine its own procedure;
(f) meet at a venue determined by it, which may be a venue beyond the
seat of Parliament;
(g) meet on any day and at any time, including —
(i) on a day which is not a working day;
(ii) on a day on which the Assembly is not sitting;
(iii) at a time when the Assembly is sitting; or
(iv) during a recess;
(h) exercise any other powers assigned to it by the Constitution,
legislation, the other provisions of these Rules or resolutions of the Assembly.

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