Sports and Recreation prioritised legislation

Sports, Arts and Culture

20 November 2019
Chairperson: Ms B Dlulane (ANC)
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Meeting Summary

The Sports and Recreation division of the Department presented its two Draft Bills: National Sport and Recreation Amendment Bill 2021 and South African Institute for Drug-Free Sport Amendment Bill 2021. Although the former Bill had been tabled in the Fifth Parliament, it would not be revived in its previous form. Both Bills would be re-drafted due to the establishment of a new Cabinet in June 2019.

The National Sport and Recreation (NSR) Amendment Bill is intended to develop and promote sports and recreation in South Africa and establish a Sport Arbitration Tribunal to resolve disputes in sports and recreation bodies. It will provide guidelines for bidding and hosting international sports and recreation events. It will ensure that guidelines are developed for South African Sports Confederation and the Olympic Committee (SASCOC).

The South African Institute for Drug-Free Sport (SAIDS) Amendment Bill will amend the Principal Act to ensure that school children who play sports are tested for performance enhancing substances. Further, learners under the age of 18 provide parental consent for testing. The SAIDS Amendment Bill will allow SAIDS to inspect the fitness industry to ensure that prohibited drugs are not used for body enhancement. It will establish a national inspectorate to perform these inspection duties.

Members asked about the extended powers granted to the Minister and discretionary powers granted to the Director General in the with NSR Amendment Bill. The Committee said that the NSR Amendment Bill was adequately detailed but it lacked timeframes of when the different activities would be completed prior to its tabling in Parliament. They requested detailed timeframes. The establishment of the Sports Arbitration Tribunal was queried as some members were concerned that it would interfere with the work of government.

With the SAIDS Amendment Bill, Members were concerned that parental consent is required when testing school children who play sports for doping. It was explained that children’s rights cannot be violated by testing them without parental consent.

It was noted that the prioritised legislation for Arts and Culture would be presented at a later date.
 

Meeting report

Draft National Sport and Recreation Amendment Bill, 2021
Mr Gideon Boshoff, Legal Advisor of the Department of Sports, Arts and Culture, said that the NSR Amendment Bill sought to delete, amend and insert certain definitions, promote and develop sport and recreation, establish a Sports Arbitration Tribunal and prepare procedures for bidding for and hosting international sports and recreational events. It sought to provide the Minister of Sports, Arts and Culture with powers to appoint a committee of inquiry to respond to maladministration and corruption within sports and recreation and provide for offences and penalties. It further sought to regulate the recruitment of foreign sports personnel and the accreditation of sport agents.

Mr Boshoff summarised the clauses:

Clause 1 will insert definitions for “club”, “committee” (committee of inquiry), “national emblem”, recreational activity” and “sports and recreation”. The definition of “national federation” will be amended. It will be understood as a national governing body of a code of sport in South Africa with affiliate members of not fewer than five provinces recognised by Sports and Recreation South Africa (SRSA) and an international controlling body.

Clause 2 will ensure that guidelines are developed for SASCOC. Clause 2(7) and (8) will govern the functions of SASCOC, and the penalties against SASCOC that are to be considered by the Minister. These penalties will be finalised after the Minister considers SASCOC’s written notice, detailing reasons for its poor performance.

Clause 3 enforces the publication of policy objectives of SRSA, SASCOC and other sports and recreation bodies in the Government Gazette.

Clause 4 will, where appropriate, replace the words “national federation” with “sport and /or recreation bodies” in section 6 of the Principal Act. Clause 4 will amend the processes used to recruit foreign sports personnel, to include for instance, vetting and verification of a possible criminal record.

Clause 5 will add a new section, section 6A and 6B. These sections will ensure that it is compulsory for sports and recreation agents to be registered and licensed. Further, it will give the Director-General the discretionary power to recognise sports and recreation bodies, and issue them with recognition certificates.

Clause 6 will substitute the word “must” with “may”, when providing physical facilities. These facilities will have norms and standards that the Minister may publish from time to time.

Clause 7 will ensure that newly built facilities are inspected and monitored by inspectors employed by the state, or by a registered and licensed sports and recreation agency, that is appointed by the Minister.

Clause 8 will deal with the protection of vulnerable groups and ensure that they are able to participate in sports and recreation with the aim of protecting them against sexual abuse.

Clause 9 is intended to empower the Minister to establish and appoint members of the national colours board.

Clause 10 inserts new subsections in section 11 of the NSR Act, and it ensures that bidding and hosting of international sport and recreational events is approved by the Minister. It establishes a Regulatory Authority for Combat Sports and the Fitness Industry, and its functions.

Clause 11 empowers the Minister with discretionary powers to establish a committee of inquiry, which allows him to investigate any matter that may bring sports and recreational activity into disrepute.

Clause 12 establishes a Sport Arbitration Tribunal that consists of at least five members appointed by the Minister. This tribunal allows the Minister to hear disputes in sports and decide on appeals made in terms of section 13 of the Act. Clause 12 puts offences in place when the Principal Act is contravened. It allows the Minister and the Director-General to apply their right to delegate powers.

Clause 13 provides for the inclusion of regulations on school sport development programmes, sport and recreation agents and the training of sport coaches, that can be developed by the Minister

Clauses 14 and 15 makes provision for the amendment of the Long Title of the Principal Act and contains a short title of the Bill respectively.

Mr Boshoff mentioned that this NSR Amendment Bill had to be redrafted, after the Legal Advisors of Parliament raised queries with it in June 2019. Additionally, after elections, a new Cabinet had been appointed, which required that they be consulted with, before approval of the Amendment Bill.

Mr Boshoff confirmed that a submission to the Minister was underway to obtain the Executive Authority's approval on the following:
- Contents of the Draft National Sport and Recreation Amendment Bill 2021;
- The publication of the Draft Bill in the Government Gazette and consultation with stakeholders, and
- Submission of the Draft Bill to the Socio Economic Impact Assessment System (SEIAS) Unit, Chief Directors Clusters, State Law Advisors, Cabinet Cluster and Cabinet for approval.

Discussion
The Chairperson thought that the NSR Amendment Bill was going to be revived and presented to the Committee as it had been tabled in the National Assembly [in November 2018]. However, this could not be the case because the Bill was to be re-drafted.

Ms Sumayya Khan, Acting Director General for Sports and Recreation at the Department of Sports, Arts and Culture, confirmed that it had been presented to the National Assembly Committee. The feedback received from that is being incorporated in the re-drafting process.

Mr Boshoff said he would provide the Legal Unit of Parliament with an update on inputs as they had identified concerns with the Bill in 2018 such as the need for consultation with provincial and local government.

Mr W Faber (DA) thanked Mr Boshoff for the presentation. He queried the establishment of a tribunal and asked if it will constitute, for instance, a former judge who is non-partisan. He asked if a tribunal of five people will be able to handle all the cases handed over to it. He asked where the tribunal will be located, and if members of the tribunal would have to travel to various locations in the country. Has the tribunal been budgeted for and what the cost implications are for such a tribunal in the Department of Sports, Arts and Culture. Lastly Mr Faber asked the way forward for the tribunal after resolving all its cases.

Mr Boshoff replied that the five tribunal members can handle all the cases, and that enough budget has been allocated for this tribunal. The tribunal will operate on an ad-hoc basis and it will travel the country when investigating cases. If there are several cases that are not urgent, these will be grouped together and handled simultaneously. He emphasised that the tribunal will operate independently but is mandated to report regularly to the Department of Sport, Arts and Culture.

Mr T Mhlongo (DA) asked if there were timeframes for the consultation process. He raised concerns with Clause 5 on granting the Director General discretionary powers and said that this needed to be debated. He said that the powers granted to the Minister were too broad. He asked for clarity on why there needs to be approval from SASCOC for things to get done.

On the broad powers granted to the Minister, Ms Khan confirmed that the Minister is the custodian of sports in South Africa. The Minister is granted powers in the NSR Amendment Bill because he is usually the person consulted when there are issues. The previous Act did not provide the Minister with enough powers to mediate on challenges and explained why the powers granted to the Minister were not broad enough. The Minister would not interfere with any processes but would act as a mediatory body in instances of an impasse. She demonstrated the dispute resolution process for the Committee and mentioned that if a sport federation faces difficulties and hit an impasse after having exhausted its internal dispute resolution process, SASCOC must be called in to deal with the impasse. If SASCOC fails in its mediation, the Minister must be called in to mediate, and as such, the new NSR Amendment Bill makes this possible.

Mr Boshoff confirmed that the DG will apply discretion within the bounds of the constitution of that sporting association. The DG must comply with the sporting association constitution so that the decision is not made subjectively, but rather does so objectively.

Mr B Madlingozi (EFF) questioned the powers given to the Minister and thought this would interfere with processes outside of the Minister’s duties. He asked the reason behind the change of wording from “national federation” to “sport and recreation bodies”. This change in wording could potentially run the risk of being controlled by external sport regulation bodies. He questioned clause 12 and if the provision of various forms of punishment for offences such as imprisonment was not too punitive. He agreed with Mr Mhlongo that the NSR Amendment Bill grants the Minister too much power.

Ms Khan noted that, as with the previous sections, the Minister would not interfere with any processes but would act as a mediatory body in instances of an impasse. The term “national federation” is too limited compared to  “sport and recreation bodies” such as the need to recognise strategic partners such as non government organisations (NGOs). On the concern about imprisonment being too punitive a measure, she replied that an adequate form of punishment will be finalised after the consultation process.

Mr J Mamabolo (ANC) agreed with Mr Mhlongo suggestion about the need for timeframes for the consultation process. He asked for clarity on clause 13, and how the Minister will implement school sport development programmes, sport and recreation agents, and the training of sport coaches.

Ms Khan explained that provision for school sport development programmes, sport and recreation agents, and the training of sport coaches has been made in the NSR Amendment Bill. However, school sport has various stakeholders and role players, including the Department of Basic Education and School Governing Bodies (SGB) and schools.

Ms V Malomane (ANC) noted that her suggestions were already mentioned by other Committee members.

Mr M Seabi (ANC) referred to slide 14 that looked at the current status of the NSR Amendment Bill and detailed succinctly the process needed for it to be promulgated into law. He asked if the Committee would still be granted the opportunity to engage the NSR Amendment Bill after the relevant stakeholders have been consulted. He asked for timeframes on the consultation process. He asked Mr Boshoff what the problem statement of the NSR Amendment Bill was, and why there was a need to make amendments to the Act.

Mr Seabi was concerned that the NSR Amendment Bill was reactive to SASCOC and its challenges. He sought clarity on whether the Department uses the word “sports” or “sport” and wanted to understand if the words are used interchangeably, and if there is a correct way of using the word.

Ms Khan reassured the Committee that different sport bodies were consulted on the NSR Amendment Bill and that SASCOC did not get first priority. The Department had in fact been busy with the Committee of Inquiry into SASCOC and ensuring SASCOC complies with the recommendations. It is in no way giving SASCOC more attention than anyone else. International and domestic sport federations, and the different clusters have been consulted because without this process, the NSR Amendment Bill cannot be presented to Cabinet. The Committee and the National Council of Provinces (NCOP) will be consulted. She reminded the Committee that the NSR Amendment Bill is intended to strengthen sports and recreation, and this will have a positive bearing on provincial and local government. She confirmed that the word “sports” is used, because the Minister was sworn in as the Minister of Sports, Arts and Culture. If the word “sports” were to be changed, a new ceremony to swear-in the Minister would have to be organised.

Ms V Van Dyk (DA) asked about the definition for 'national emblem' and if this would have any implications for the Proteas or the Springboks emblem, because both teams use the protea emblem despite the Springboks having a different name. She asked if the tribunal would not interfere with the work of government. She asked how South Africa compares with other international sport bodies, and how the country will be perceived after the NSR Amendment Bill is promulgated into law.

Ms Khan replied that the intention of the tribunal is to fast-track the dispute resolution process, because Sports and Recreation has a plethora of unresolved cases dating from many years ago. The tribunal would not interfere with international bodies as it only deals with domestic issues.

The Chairperson enquired how the NSR Amendment Bill will assist athletes like Caster Semenya, and if it offers protection. She asked if there are processes in place to assist South Africa in hosting sporting events. She asked if there are similar processes in place for provinces. She asked if the Department has considered the SASCOC constitution. She said that the Committee was invited to and would attend the SASCOC Annual General Meeting on 23 November 2019. She agreed with the Committee on timeframes for consultation and for when the NSR Amendment Bill will be promulgated and emphasised the importance of conducting public hearings and consultations.

Ms Khan noted the Committee’s concern with regards to timeframes. She firstly acknowledged that it was for the first time that the Department had presented legislation to the Committee, and acknowledged that the Draft Amendment Bill is a work in progress. She agreed that there should be timeframes for consultation and for when the NSR Amendment Bill will be promulgated. She confirmed that the Amendment Bill will be completed at the end of the 2021 financial year, mindful of the fact that a lot of consultation needs to be done. However, a timeframe for all the activities leading up to the Amendment Bill’s finalisation was still premature to announce to the Committee. She suggested that she would respond to the Committee in writing. She thanked the Chairperson for her suggestion on ensuring that the NSR Amendment Bill protects athletes like Caster Semenya and noted that this will be explored. In addition, the South African Institute for Drugs-free Sports (SAIDS) Amendment Bill will be better positioned to deal with this issue.

Mr Faber enquired about the sports emblem and distinguishing the difference between the national flower and the national animal. He asked which of the two apply for the Springboks. There is confusion with the Springboks emblem as it is a Protea flower, despite that the National Rugby team being called the Springboks. He referred that the Springbok emblem was established in 1891 long before Apartheid and asked what is the stance on the national Protea flower as the Springbok emblem. He asked what the final decision was on this.

Mr Seabi replied that a compromise was struck by former President Nelson Mandela, and this was supported by then Minister Steve Tshwete. It is not yet time to debate that as it will become an emotional debate.

Ms Khan mentioned that there is a difference between the name of a sports team and the emblem. She agreed that there could be in future a well informed debate.

Mr Madlingozi asked what disempowered the South African Netball team from hosting the World Cup Tournament in the other regions other than Cape Town.

Ms Khan responded that hosting the Netball World Cup is limited to one city and Cape Town was the only city that agreed to host the world cup tournament. The Netball team has received support from the Department of Sports, Arts and Culture, for instance it accompanied Netball South Africa to present the bid to host the World Cup tournament in Cape Town. The legal department helped Netball South Africa establish a task team to assist it in improving how it operates. The Department intervened to assist Netball South Africa recover, as it was almost liquidated. Since government intervention, Netball South Africa now has stable sponsors such as Brutal Fruit and Telkom.

Mr Mhlongo spoke of the awarding of national colours to the national Netball team [inaudible 01:21:04]. He suggested that the clauses in the Amendment Bill be discussed clause by clause.

Ms Khan said the focus in the Bill on the awarding of colours is important as this must be standardised. Currently, this is not regulated.

Mr Seabi and the Chairperson agreed with Mr Mhlongo’s suggestion.

Draft South African Institute for Drug-Free Sport Amendment Bill, 2021
Mr Boshoff gave background on the legislative drafting of the SAIDS Amendment Bill. The SAIDS Amendment Bill was prompted by a lack of jurisdiction to test if school children who played sports had used performance enhancement substances. There was a lack of transparency when appointing the SAIDS Board, and that SASCOC did not follow clear procedures when submitting names. In addition, recreational activities such as those in the fitness industry are excluded in the Principal Act. Lastly, there is a lack of prohibition of possessing and distributing substances, and punishment of possessing and distributing doping substances, in line with the World Anti-Doping Association.

Mr Boshoff said that the intention of the SAIDS Amendment Bill is to amend the Principal Act and ensure that school children who play sports are tested. Learners under the age of 18 are to provide parental consent for testing. The SAIDS Amendment Bill allows SAIDS to inspect the fitness industry to ensure that prohibited drugs are not used for body enhancement. It will establish a national inspectorate to perform these inspection duties.

The SAIDS Amendment Bill ensures that prohibited substances are published in the Government Gazette annually.

The SAIDS Chief Executive Officer and Board members will be required to sign performance agreement contracts, and management will be required to submit an annual report on its activities and financial statements to the Department and to Parliament.

The current status of the SAIDS Amendment Bill is that it is still be re-drafted and consultations will start afresh because a new Cabinet was established in June 2019.

Discussion
Mr Madlingozi noted that the Bill made no mention about possible medication that athletes can be prescribed, and what protection is available for athletes who compete while on medication.

Ms Khan responded that athletes must sign a code of conduct with the World Anti-Doping Association. This code of conduct requires that athletes take the responsibility to ensure that their medication does not have performance enhancing substances.

Mr Faber was concerned that school children who play sports require parental consent for testing for doping.

Ms Khan mentioned that although some parents administer performance enhancing substances to their children, children’s rights cannot be violated by forcefully testing them, and that the SAIDS Amendment Bill must comply with other laws. When there is consensus between parents, SGBs and sport associations on testing children who play sports, SAIDS can conduct the testing in compliance with the law.

The Chairperson stated that SAIDS must fast-track its processes that govern learners who have been found guilty of doping.

The Chairperson thanked Ms Khan and Mr Boshoff. The Chairperson mentioned that the Arts and Culture presentation on its prioritised legislation was not included in the meeting for purposes of time and preventing information overload.

The Chairperson adjourned the meeting.
 

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