South African Institute for Drug-Free Sport Amendment Bill: DSAC briefing; with Minister and Deputy Minister

Meeting report

Chairperson's opening comments

The Chairperson reminded the Committee that 5 December was the tenth anniversary of the death of the former President, Mr Nelson Mandela. She suspected that this day would be used to honour Mr Mandela, a man who, despite the views of those not in agreement, believed that South Africa would one day be a democratic nation.

She had read a profound statement which highlighted what was expected from South Africa's leaders. The statement was that to break the cycle of gender-based violence (GBV), one needed to understand what GBV was, why it happened and its impact. The Chairperson said there was a short online course for survivors, victims and abusers to take the first step in breaking the cycle of violence. GBV had no colour and was not an issue that differentiated between the rich and the poor.

Over the years, as the December month started, the GBV-related tragedies had become more serious. This morning, a beautiful little girl who had been missing was found. There was also a mother and child who had been murdered by a 37-year-old Zimbabwean man. She said people with HIV needed to be championed, supported and included in constituencies. It also had to be emphasised that HIV was a sickness, like any other sickness.

The Chairperson opened the meeting, noting that it would be the Committee’s last meeting of the year. It would be meeting again for the administration’s last term. Its programme for the last term would be full, but had not been finalised yet.

The Chairperson said the first item on the agenda was the Department of Sport, Arts and Culture (DSAC) briefing on the South African Institute for Drug-Free Sport Amendment Bill. She asked Mr Zizi Kodwa, Minister of Sport, Arts and Culture, to proceed.

South African Institute for Drug-Free Sport Amendment Bill [B41-2023]  

Minister's overview

Minister Kodwa said the DSAC had worked around the clock to bring this Bill before the Committee. The Bill had gone through various stages of the legislative process, including receiving an opinion from the Office of the Chief State Law Adviser (OCSLA). The Department had had to move quickly, considering the consequences and impact of the World Anti-Doping Agency (WADA) ruling on South Africa as a winning and sporting nation. Given the deadlines, there had been several challenges, but the Department was excited that the Bill’s processing was now starting here with the Committee.

The Minister noted that he was joined by the Ms Nocawe Mafu, Deputy Minister of Sport, Arts and Culture, the Department's Deputy Director-General (DDG), and Legal Services.

Minister Kodwa said the Department’s presentation was to brief the Committee on what was being amended. In the documents sent to the Committee, the Department had attached the principal act, anti-doping codes, references to the amendments, and some of the inputs the DSAC had received so far. The brief was about what the DSAC was amending, the areas and provisions that were not compliant, and what the Department would be doing to ensure these areas and provisions were compliant.

The Chairperson said she had forgotten to introduce Ms Aadielah Arnold, Parliamentary Legal Adviser, who was present in this meeting.

Ms Sumayya Khan, DDG: Recreation Development and Sport Promotion, DSAC, delayed the start of her presentation while connectivity issues were sorted out.

She said the presentation was 24 slides, but she would not read the first 11 slides word for word as the focus of the meeting would be the amendments being made.

The Chairperson said Mr E Mthethwa's (EFF) hand was up.

Mr Mthethwa interjected to say there was a technical issue he thought the Committee should address before the Department’s presentation. He asked if the DA had sent an apology related to Mr T Mhlongo (DA), or had notified the Committee that it was removing Mr Mhlongo. He wanted to know this so that the quorum could be met and the challenging of decisions made in this meeting could be avoided. He was sure that the Committee had seen what had happened in the media, which had opposed the formalities that had to be followed.

The Chairperson said the Committee would not be entertaining this, as this meeting had a quorum. If the DA had wanted to say something, the Committee would have heard from them. The Committee had not heard anything from the DA. Sometimes, not all the apologies were presented in this Committee, and the focus of today’s meeting was the Amendment Bill. If something was not officially presented to the Committee, it would not be discussed. The Committee was aware of what had been reported in the media, but nothing official had been presented in this meeting, and she asked that the Committee wait for the DA’s official word on this matter.

Department's Briefing

Ms Khan began her presentation by providing background on the SA Drug-Free Sport Amendment Bill.

The South African Institute for Drug-Free Sport (SAIDS), the national anti-doping agency, was a public entity of the DSAC established by an Act of Parliament in terms of the South African Institute for Drug-Free Sport Act; 1997 (Act No. 14 of 1997), as amended by the South African Institute for Drug-Free Sport Amendment Act; 2006 (Act No. 25 of 2006).

Both the 1997 Principal Act and the Amendment Act of 2006 basically promoted participation in sport free from the use of prohibited substances or methods intended to artificially enhance performance, thereby rendering impermissible doping practices that were contrary to the principles of fair play and medical ethics, in the interest of the health and well-being of sportspersons; and to provide for matters connected therewith.

However, the Amendment Act; 2006, also provided, amongst others, for the adoption of matters contained in the 2021 WADA code.

On 31 October 2022, WADA identified several provisions in the 2006 Amendment Act that were non-compliant with the WADA code, and provided a corrective action report, identifying those non-compliant provisions that must be amended, with a timeline of 31 January 2023.

The DSAC and the SAIDS had informed WADA that the deadline was unreasonable, and explained the reasons why it could not guarantee the promulgation of the Amendment Act within the prescribed deadline, including the fact that a legislative amendment was constitutionally prescribed with stringent processes.

Notwithstanding, the Department had still reassured the WADA of its commitment to have the legislation aligned with the WADA code.

The WADA’s Executive Committee had accepted the compliance review committee’s recommended consequences for this non-compliance and the reinstatement conditions.

WADA ruling

• SAIDS was given 21 days, from 22 September 2023 to 13 October 2023, to dispute the WADA’s allegations of non-compliance and or the consequences of non-compliance and or the reinstatement conditions proposed by WADA. It should be noted that when an appeal was lodged, the consequences placed on SAIDS and South Africa by WADA could not be implemented until the appeal process was concluded).
• WADA had filed a request for arbitration with the Court of Arbitration for Sport (CAS), and advised SAIDS of this on 21 November, which meant that SAIDS had to file its answer to the request for arbitration within  20 days, which was 11 December. Alternatively, SAIDS could consider the mediation process, in which SAIDS had to file papers within ten days, which was by 1 December 2023. SAIDS had applied to mediate, and if unsuccessful, the arbitration process would ensue, which was expected to be finalised in March 2024.

Involvement of OCSLA and Cabinet

• The Department and SAIDS had worked together in drafting the SA Drug-Free Sport Amendment Bill 2023 to the extent that on 26 September, the Department received a notice from SAIDS that WADA had issued an approved version. 
• The Department presented the draft Bill to Cabinet on 4 October. The Cabinet had noted the recommendations and approved the processing of the Bill to ensure alignment and compliance with the WADA Code.
• The SAIDS-approved Amendment Bill was sent to the Office of the Chief State Law Advisor for consideration and certification. OCSLA had certified the Bill and issued their opinion on 1 November.

Tabling to Parliament

• Noting that South Africa had until 22 January 2024 to promulgate the SAIDS Amendment Bill, the Department had addressed letters to the Speaker and Chairperson of the National Assembly, requesting to table the Bill, and had subsequently Gazetted the notice of intention to table it in Parliament.
• On 21 November, SAIDS and WADA submitted written inputs on the SA Drug-Free Sport Amendment Bill, certified by OCSLA. Noting that the Bill had already been certified and Parliament was running with the processes, the Department had advised SAIDS that when the Parliamentary Portfolio Committee conducted its public consultations, they would have an opportunity to formally provide their input.

Non-compliant provisions in the Bill

• The following definitions were found to be non-compliant by WADA, and the Department was requested to update them: adverse analytical findings, anti-doping rule violation athlete, code, doping control, international standard, possession, registered testing pool, tampering, and trafficking.
• Section 6 of the Principal Act, which deals with the staff of the Institute, was intended to be amended, due to the fact that some of the provisions were no longer fit for purpose.
• Section 8(2) of the Amendment Act referred to section 6(2), which was intended to be repealed, so there had to be a consequential amendment as well.
• Section 10 of the Principal Act deals with the objects of the Institute, which were intended to promote and ensure the adoption of a centralised doping control programme, which may subject any athlete to testing, with or without advance notice, both in and out of competition. WADA suggested that advance notice should be removed, as this should occur only in exceptional circumstances, including athletes over whom SAIDS had authority, and that it was preferable to refer to intelligent testing as it covered more areas and was broader in case the International Standard for Testing and Investigations (ISTI) changed.
• Section 10(2) prescribed that the Institute shall operate in close conjunction with the Sports Information and Science Agency (SISA). Amendment had to be effected to effect changes from SISA to “the Department” and include the SA Sports Confederation and Olympic Committee (SASCOC) in its operation.
• Section 11 of the 2006 Act provides for the powers and duties of the Institute, and in subsection (2)(b)(c), they were intended to be repealed as they prescribed that “the institution shall establish and maintain a register of notifiable events; and notify relevant persons and organisations of entries into the register of notifiable events.”
• There was also an insertion in Section 11, regarding the consent of a parent, guardian, any school, or any school governing body to drug-testing a protected person by the Institute participating in any non-sporting event sanctioned by a national sports federation or national school sports body. 

Further insertions in Section 11(2)(m) and (n) of the Amended Act:

• Section 11A prescribed for the doping control programme that applies to all athletes, and authorised the Institute to request an athlete to provide a sample for the purpose of doping control, and to establish and maintain a doping register for the programme. Due to the fact that the Institute no longer maintained the doping register, this provision was repealed.
• Section 11B prescribed that an athlete failed to comply with a request by the Institute to provide a sample if he or she refused or failed to submit to sample collection as required by the doping control programme. It was recommended that this provision be repealed.
• Section 11C prescribed that the Institute may request a sports administration body in writing to arrange for an athlete to undergo doping control in order to determine whether he or she had been using prohibited substances or methods. It was resolved that Section 11C would be repealed. 

Consultations

Consultations were held with numerous associations and federations across sporting codes. These included engagements with the sports confederations of the Eastern Cape, Free State, Gauteng and KwaZulu-Natal. Save for the comments received from SAIDS and WADA, only the National Treasury and the SA Rugby Union had submitted inputs.

Recommendation

The Department recommends that the Portfolio Committee on Sports, Arts and Culture should note the above submission and the draft South African Institute for Drug-Free Sport Bill, 2023, for consideration and processing.

For the detailed presentations, see attached.

Parliamentary Legal Adviser's response

Ms Arnold said the date for the finalisation and promulgation of this Bill was 24 January 2024, and she thought that it was not possible to promulgate the Bill by that date because the processing of legislation was constitutionally mandated. The Bill was classified as a Section 75 bill, which meant that although it was now before this Portfolio Committee of the National Assembly, it still needed to be sent to the National Council of Provinces (NCOP), which had its own processes.

Ms Arnold said although Chapter 13 of the National Assembly (NA) Rules did not set out a timeline for the processing of legislation, it did set out steps the Committee needed to follow when processing this Bill. These necessary steps were prescribed in NA Rule 286. Ms Arnold set out each step in chronological order. The steps were as follows:

1. The Department needed to brief the Committee on the Bill (this step was currently in progress in this meeting).
2. The Bill needed to be published, and submissions on this Bill from the public needed to be solicited (public engagement was one of the most important steps).
3. A matrix on the public submissions received needed to be developed through the Committee’s researchers and content advisers.
4. The Department must be allowed to respond to the public submissions received.
5. The Committee needed a motion of desirability.
6. The Committee needed to have deliberations on the Bill (this was where the Committee might get proposed amendments to the Bill).
7. The formal consideration and clause-by-clause adoption.

Ms Arnold said that the Committee had been challenged and found lacking in terms of public participation. The Committee could decide on the extent and mode of the public participation process. However, it had to be noted that the Constitutional Court in Doctors for Life International v Speaker of the National Assembly and Others had stated that public participation had to give the public a meaningful opportunity to influence Parliament, and Parliament must take into account the public’s views. Even if the lawmaker did not change its mind, it must approach the public with the willingness to do so.

Ms Arnold said the Mogale and Others v Speaker of the National Assembly and Others judgment had highlighted three fundamental things that the Committee needed to take into account regarding public participation. Parliament had to decide what reasonable public participation was, the importance of the legislation, the impact on the public, and time constraints on the passage of the particular Bill through the Houses of Parliament. There was a public education unit in Parliament that could advise on whether the public participation process was reasonable and adequate.

Ms Arnold said the Committee needed to follow the steps prescribed in NA Rule 286, and ensure that the public participation process was reasonable. It was on the grounds of reasonableness that she held the opinion that the deadline of 24 January 2024 could not be met. As the Department had pointed out, the Committee was constitutionally mandated to follow the law-making process as set out in the Constitution and NA rules.

Discussion

The Chairperson said that the briefing from the Department was the first stage of the constitutionally mandated process the Committee was following. This process had been outlined by the Minister and then affirmed. The constitutionally mandated process was starting, and the rest of the stages of this process would be led through the Committee, the legal department and the Office of the Chairperson. The Committee was now aware of what was expected.

The Chairperson said she suspected the Minister of the DSAC had enough ammunition to interact with WADA. As a first step, she believed the Committee should not take this matter seriously. This was the reason for requesting that the legal adviser be present in the meeting. The Committee had done what it needed to do today. Its contribution was going to be related to the processes that would be before the Committee so that it could interact. She asked if the Committee had different views to share.

Mr M Zondi (ANC) said he was not answering the Chairperson’s question but was not against her proposal. He welcomed the Committee’s presentation and the inputs from the Minister and the legal adviser. He reminded the Committee that the matter had been raised through the media. However, the Minister had taken the initiative and briefed the Committee before addressing the nation. He wanted to commend the Ministry because both the Minister and the Deputy Minister had continued to address the matter. 

He said when the media had blown the matter out of proportion during the rugby and cricket World Cups, the Committee had commended the Department’s response to the matter. The Department had been transparent, and had consulted and briefed the Committee. The Department had hidden nothing from the Committee and told it about the unrealistic timelines that WADA set out. The Committee acknowledged the consequences if there was non-compliance with WADA. The Minister had outlined these consequences in the first briefing. The Department’s intervention was the reason behind the Committee’s support.

The next step would be the public engagement process. He added that all the processes needed to be unfolded now, irrespective of the timelines set out by WADA. The Department’s mandated process was supported by the Committee.

Mr D Joseph (DA) wanted clarity on whether NA Rule 286 meant that the next step of the process was reasonable public participation, and at a certain date, the Committee would deliberate on the Bill itself after the public comments, the development of the matrix and the DSAC’s responses. He had heard the legal adviser mention that the Bill was classified as a Section 75 bill, so it also needed to be sent to the NCOP. He wanted clarity on whether it was a Section 75 or Section 76 bill.

He asked if the Department was at the mediation or arbitration stage. Considering the Committee and parliamentary programmes, how would the Committee deal with the 24 January deadline? He was clear on the other technical matters that would be dealt with at a later stage.

Ms V Malomane (ANC) thanked the Minister for being a leader who ensured the prioritisation of the Committee in all the steps taken to address this matter. She seconded the position that today was the first step in the process, and this step would be followed by the public participation that the Committee needed to do. Perhaps the Chairperson and the Committee Secretariat would inform the Committee on a way forward regarding the public participation process.

Ms D Sibiya (ANC) thanked the Department for the presentation, and said she had been covered in terms of the Committee following the necessary processes and interacting afterwards.

Mr Mthethwa commended the Department’s work and said this was not a matter to be politicised, as it was in the public’s interest. It demonstrated that where there was political will, things were done speedily. He hoped that this approach would be applied to the creative and cultural sectors, and that matters would be addressed quickly even without the involvement and pressure from an international body.

He asked whether the term used for public participation was reasonable, and what was considered public participation in sports. This was because sporting codes were represented under federations. He asked if reasonable public participation meant consultation with federations or included individuals who were part of the sporting fraternity but did not belong to federations.

The Chairperson asked Ms Arnold if the advertisement for public participation needed to be up for four to six weeks before proceeding to the next step. She wanted to know if publishing the public participation advertisement at this time of the year was possible. She needed to know the process going forward so she could monitor it. She needed guidance so that the Committee would know the next steps.

Responses

Parliamentary Legal Adviser

On the question about the classification of the Bill, Ms Arnold said the Amendment Bill was a Section 75 bill, as classified by the Joint Tagging Mechanism (JTM). Once the NA passed the Bill, it would be sent to the NCOP for consideration. However, because it was a Section 75 bill, the NCOP could only propose amendments. The referral of the Bill to the NCOP did not change its classification -- it remained a Section 75 bill.

Ms Arnold addressed the question about what stage the Committee was at. She said that Mr Joseph had set out the process in terms of NA Rule 286(6) that the Committee had to follow correctly. The Committee was now busy with briefing the Department, which would be followed by the public participation process.

Regarding the extent of public participation, it was not up to the Committee to limit who could make submissions. The public participation process was for the entire population, so whoever felt impacted by the legislation was free to make submissions during the public participation process.

Ms Arnold said the Committee was free to decide what form the public participation would take. However, the Chairperson had correctly pointed out that consideration of the time of year was needed. It was December and many people were going on holiday, so the Committee needed to ask itself whether people would see this advert for public participation. As advised, the Committee could speak to the public education unit in Parliament about the public participation process.

Department

The Minister asked Ms Khan and the DSAC’s Legal Services representatives to proceed with the responses.

Ms Khan responded to the question on what constituted public participation and consultation in sports. She said the core stakeholder base for this Bill was the sports federations. The Department had sent the Bill out to the sports federations, SASCOC and DSAC’s entities. The Bill had also been sent to other departments with which the DSAC had relationships. Although the Bill was focused on athletes and anti-doping, there was a whole ecosystem in sports.

Ms Khan said the Bill had not been sent to academic institutions and medical fraternities, because many sports federations dealt with medical institutions. Sports federations dealt with medical practitioners such as physical therapists, team doctors, dieticians, etc. There was an ecosystem in sports. The Department could not be sure it consulted each facet of this ecosystem, but sending the Bill to the federations allowed the DSAC to do a fair amount of consultation. The Department hoped the public participation process would give those who had not been consulted in the Department’s process an opportunity to contribute.

DSAC's senior legal officer addressed the question of whether the Department was at the mediation or arbitration stage. He said the DSAC was in the process of logging documents related to mediation. Therefore, the DSAC was at the mediation stage, and should mediation be unsuccessful, the matter would be escalated to arbitration. Although a stringent timeframe was set for consultations, due process still needed to be followed. The due process that needed to be followed was public consultation, which was a cornerstone of the development of legislation in South Africa. It was advised that the public consultation should refrain from proceeding during periods such as the festive season, for example. Although there was a deadline to chase, cognisance of the time of year was important in terms of public participation.

He agreed with Ms Arnold that consultation could not be limited to sports federations, because the ordinary person who was not associated with a federation needed to have an opportunity to comment on the Bill.

The Head of Legal Services at the DSAC appreciated the Committee’s commitment to assisting the Department with processing this legislation. He had never seen a piece of legislation being processed as fast as this one. He was reminded of the emphasis on the fact that consultation had to be fair, reasonable and meaningful in a judgment. It had been confirmed recently by the Constitutional Court that whether a person was directly impacted by a Bill or not, they still had the right to participate in the public consultation process. Laws were made for the country, and that was why there was a requirement that bills had to be gazetted so that the entire country could see these bills and meaningfully participate in the public consultation process and in turn, the law-making process.

Minister Kodwa said the danger was that people were litigious and could argue that public consultation during December was unfair and just a box-ticking exercise. The advice from Ms Arnold to reach out to the public education unit in Parliament would perhaps be useful. This was because it could be claimed that consultation was done, but this consultation could have occurred at midnight while everyone was sleeping. The Minister was sure that such a case would be thrown out and suggested that advice on the public participation process was needed for the sake of integrity.

The Minister said should the mediation process be successful, it would mean that the Department would have to submit new timelines, and hopefully, they would be accepted. He hoped that the Department would be able to work around the clock to meet these timelines. The Department was sure that mediation would be successful, but in case it was not, the matter would be escalated to arbitration, which had its processes. It needed to be ensured that there were no issues regarding the integrity of the process. This was to avoid setbacks when the draft act would be passed by Parliament.

The Chairperson thanked the Minister, Department and Parliamentary Legal Services. She proposed that there be more engagements between the Minister and WADA. The mediation process indicated to the Committee that everyone took this matter seriously. When faced with challenges, she was confident that the Committee and the Committee Secretariat knew how to address them. She concluded that the Bill would be dealt with through normal processes, and an advertisement calling for public comments on the Bill would go out in December.

The meeting was adjourned.