South African Institute For Drug-Free Sport Amendment Bill [B7-2006] A/B: deliberations

PORTFOLIO COMMITTEE ON SPORT AND RECREATION
15 August 2006
SOUTH AFRICAN INSTITUTE FOR DRUG-FREE SPORT A/B: DELIBERATIONS

Chairperson: Mr BM Komphela (ANC)

Documents handed out:
SA Institute for Drug-Free Sport Act No 14 of 1997
2010 FIFA World Cup South Africa Special Measures Bill [B13-2006]
Second 2010 FIFA World Cup South Africa Special Measures Bill [B16-2006]
South African Institute For Drug-Free Sport Amendment Bill [B7-2006]

SUMMARY

Remarks attributed the Deputy Minister of Sport and Recreation regarding the use of marijuana by South African footballers were clarified.  Amendments to the draft Bill were discussed.  Issues raised were the clarification of the definitions of federations and athletes.  The level of athletes who would be tested was specified.  The role of the Minister in the selection of members to sit on the Appeals Board was discussed.  The status of the Chief Executive Officer of the South African Institute for Drug-Free Sport was also discussed, both in terms of his or her relations with the Board as well as in the appointment of staff.

Amendments were needed to define the Institute’s operations within the terms of the Public Finance Management Act locally and the guidelines issued by the World Anti-Doping Agency.  The status of the laboratory housed at the University of the Free State was also discussed, as this was the facility used by the Institute for conducting doping tests.

MINUTES

The Chairperson apologised for being late for the meeting.  The 2010 FIFA World Cup South Africa Special Measures Bills were to be debated in the National Assembly that afternoon, and he had been attending a strategy meeting.  He said that a conference had been held on women in sport over the weekend.  The Deputy Minister of Sport and Recreation had been taken to task for remarks he had allegedly made.  During a briefing on drug-free sport clarity had been asked on the prevalence of doping in sport.  The Chairperson of the South African Institute for Drug-Free Sport (SAIDS) had said that doping was prevalent in cycling, as in the Tour de France.  It was difficult to test for marijuana, but a new machine had been bought for this purpose.  Own research had shown that 75% of soccer players used dagga.  The Deputy Minister had allegedly revealed this information, but Mr Komphela said that he had been misquoted.

Dr Shuaib Manjra (Chairman, SAIDS) said that he had seen the report in the Daily News in KwaZulu-Natal.  It had been prominent on the front page of the newspaper.  He had written a letter to the editor to clarify matters.  He said that there had never been any such statement.  The fact was that of the positive tests conducted on soccer players, 75% had indicated use of cannabis.  However, only a small percentage of players had been tested, and in turn only a small percentage of these tests had been positive.  He said that EPO was hard to detect, but the new equipment available to SAIDS could detect this.  Cannabis testing had been done for years already.

The Chairperson said that only PMG would carry the true story.  The context of the quotation was therefore wrong, and the fact was that only 75% of those who had tested positive had been shown to have used marijuana.  He said that the Committee would be dealing with the Drug-Free Amendment Bill.  Presentations had already been made by both SAIDS and the Department of Sport and Recreation (SRSA).  The Committee would now deliberate on the Bill.  The first matter to discuss was on page 4.  He asked if the term ‘National Federation’ was not the same as ‘Federation’.

Mr Gideon Boshoff (Legal Advisor, SRSA) said that National Federations were defined in the principal Act.

Dr Manjra said that an international federation was a group of national federations.  Local athletes would be part of an international federation indirectly as the national federation was a member of the relevant international federation.

The Chairperson asked if the term ‘International Federation’ was defined elsewhere.

Mr Boshoff said that this was defined in the principal Act, copies of which were being made.  The terms ‘international athlete’ and ‘athlete’ were also defined for purposes of doping control.  An athlete was defined as being any participant at international level as defined by an international sports federation.  There were three categories.  Firstly there was the international level.  Secondly was the national level, which was defined by SAIDS which must identify the definition of an athlete.  Thirdly there was the lower level, where the onus was on SAIDS to define the criteria.

Dr Manjra said that there was an athlete testing pool which covered both in and out of competition testing for the national federations.  The international federation did the same for international athletes.

Dr GR van Dugtering (Chairperson, Anti-Doping Committee, SASCOC) said that this was a bit confusing at first glance.  A sports federation could refer to any other federation at provincial or regional level, but term would cover all sporting federations outside of the national federation.

Mr  E Dikgacwi (ANC) asked what criteria were used.

Ms Daphne Bradbury (CEO, SAIDS) said that athletes were selected according to their status, either international or national.  Testing was done from the provincial level upwards on a pool of about 500 top athletes, but tests were also done at lower levels.  Federations were responsible for identifying top athletes at the top level.

Dr Manjra added that the pool included both international and national level athletes.  Tests were down lower down the performance levels, and also at specific events.

Mr Dikgacwi said that national teams departing South Africa for events were tested.  He asked if they were informed of the tests.

Dr Manjra replied that athletes were never informed prior to tests.  They would only know at the start of an event, and tests, especially the out of competition tests, were usually done at short notice or no notice at all.  Most of the tests fell into this category.  National teams were tested a day or two before their departure.  Athletes were not given prior warning of tests, but should always be aware that they could be asked to provide a sample.

The Chairperson turned to page 5, first paragraph.  This would amend Section 14 of the existing Act.  He thought he might be misinterpreting the proposed amendment.

Mr Boshoff said that the amendment referred to Subsection 1 of Section 3.  SAIDS would consist of a chairperson and as many other members as deemed necessary.  They would be appointed in consultation with the Minister.  The phrase ‘Agreed upon’ implied that there was agreement.  The Minister would have the sole responsibility to decide on the number of appointees.

The Chairperson said that his experience made him uncomfortable with this provision.  There was no unfettered mandate to the Minister concerned with any other board.  In terms of any other statutory board, the procedure would be for nominations to be called for.  The Minister would appoint the Chairperson, but not the members.  This might allow the Minister to appoint incompetent persons or to engage in nepotism, and this would be usurping the powers of Parliament.

Mr Boshoff said this was fair comment.  The Appeal Board structure should be independent, and would consist of not more than eight persons.  These should be experts on doping.  Three of these would be appointed by the Minister on the recommendation of SAIDS and SASCOC.  He thought that this provision should perhaps be redrafted to read that the Minister would appoint the Chairperson, and would appoint the members on recommendation.

Dr Manjra said that the procedure described by Mr Komphela was the process which had been used to appoint the current Board.  Nominations had been called for be advertisement.  The Minister had then appointed the members in consultation with the National Olympic Council and the National Sports Council.  Nominations should be reviewed by a broader body.  The current wording of the Amendment Bill might not allow this.

The Chairperson said that nominations should come from elsewhere, and could be accepted or rejected by the Minister.  This draft could lead to partisan appointments.  In the normal process, the Minister would get proposals and would then make a selection if necessary.  The Minister would appoint the Chairperson and the rest of the members would be sent as recommendations.

Mr Theo Hercules (State Law Advisor) said that provision was made for interested groups could forward nominations.

Mr Komphela said that he wanted to assist the Minister, but the proposal as outlined could lead to a compromise.  The Minister should appoint the Chairperson, with the other names submitted as recommendations.

Mr Hercules said he would consult with Mr Boshoff.

Dr Manjra agreed with the argument of the Chairperson.

Mr Boshoff said that recommendations would come from SASCOC, and would align with the appeal procedure.

The Chairperson said that if the whole process was in the hands of the Minister, it would be hard to determine where the recourse would lie.

Dr Manjra said they will still grappling with the process.  He asked who would control the process and compile a short list of nominations.

The Chairperson said that SASCOC and SAIDS should process nominations and forward them to the Minister.

Dr van Dugtering said that the SAIDS board was renewed after a five year period.  He asked how an outgoing board could determine their replacements.  SASCOC could be the body to co-ordinate nominations and forward these to the Minister.

The Chairperson said that it was in the nature of government bodies to organise the election of their successors.

Mr C Frolick (ANC) said that democracy was a process of change.  SAIDS must be involved with their successors, and could not abdicate this responsibility.  This was the model on which Boxing South Africa was structured.  Synergy was needed between the two bodies who enjoyed a similar status.  He would not be happy with a different process.

Mr Boshoff said that advertisements would be placed in the Government Gazette and would be received by the Minister.  All nominations would be vetted by SASCOC and SAIDS, who would then recommend the most suitable candidates.

Mr J Masango (DA) said that it would be good for nominations to be advertised.  He agreed that the same process should be followed as was the case for Boxing SA.

The Chairperson said that the Minister would sometimes be in a serious situation, and should play a neutral role.  He said that it was agreed that the Amendment should allow the Minister to appoint the Chairperson of SAIDS, but that the members of the board would be appointed by the Minister from a list of approved nominations supplied by SASCOC and SAIDS.

Dr van Dugtering said that these were two independent bodies, and that their nominations might be different.

The Chairperson outlined a process whereby each body could nominate five persons and where both agreed on the same person, this would be the approved nomination.

Dr van Dugtering said this could work, but that a written procedure would be needed.

Mr Boshoff said that the advertisement should specify certain requirements, such as a special knowledge of doping.

The Chairperson agreed, and said that there should also be persons on the board with a legal background.

Dr Manjra asked about the role of the CEO on the board.  This had been debated.  The CEO was an ex officio board member, but was an employee of SAIDS.  He asked if the CEO should be a full member of the board, and if he or she should have full voting rights.

Mr Boshoff said he had scrutinised the Act.  The CEO was an ex officio member of the board, and by implication had voting rights.  He noted that SAIDS took an opposite stance, but he felt that the wording of the Act was clear.

Dr Manjra said it was open to interpretation, and should be clarified.

The Chairperson said that an ex officio board member should not have voting rights.  He or she could guide the meeting and participate, but he would recommend that the CEO should not have voting rights.

Mr Hercules said that this should perhaps be the case.  Dr Manjra said that this was what SAIDS wanted.

The Chairperson asked how the CEO would be able to appoint staff at SAIDS.

Mr Boshoff said that input had been received from Public Service Administration.  The CEO would be appointed by the Minister in consultation with Cabinet and the Public Service Commission.  The CEO may appoint staff based on the organisational structure and within the budget.  A further proviso was that remuneration levels would be according to ministerial guidelines.  There would be two sets of regulations; the first concerning remuneration levels and the second concerning human resource issues.

Dr Manjra said he understood this section.  The current CEO’s contract expired in January 2007, and SAIDS would need to advertise the position.  The Minister would make the appointment in consultation with Cabinet.  The board was not ultimately responsible for this appointment.

The Chairperson proposed a small amendment.  The concept of  ‘in consultation with Cabinet’ made the process more difficult.

Dr Manjra felt that this should rather be ‘the approval of Cabinet’.

The Chairperson felt that even that might be difficult.  In the case of boxing, there were issues involving the Treasury.  Appointment of the CEO of Boxing  SA was a matter for both the Ministers of Sport and Recreation and of Finance.  Consistency was needed.

Mr Boshoff said that Boxing SA was another public entity.  He suggested that the wording be changed to “in concurrence with the Minister of Finance”.

The Chairperson wondered whether the Boxing Act was outdated, or whether this Bill should be aligned to the wording of the Boxing Act.

Dr Manjra said that the CEO could make staff appointments within the strategic plan as set by the board.  The board would not appoint staff.  The CEO would not be allowed a blank cheque.  Mr Komphela agreed.

Mr Boshoff said this was position as it stood.  The concept of a CEO was new, as it was previously just the Institute.

The Chairperson said it was not up to the board to micro-manage the CEO, but it was up to the CEO to drive the process.  The CEO should however not have unfettered powers.

Mr Masango said that an organisational structure existed.  Holding board meetings might be difficult and could hamper the appointment of staff.

The Chairperson said that CEO must report to the board, including on matters of staff appointments.  Appointments could be done first and the CEO could report to the board later.

Mr Dikgacwi said that the situation must be avoided where nepotism could be possible.

Mr Komphela said that appointments must be within the available funds and strategic plan.  If the CEO ignored these guidelines, then the board must revoke his or her decisions.

Mr D Netshebe (ANC) asked if the board would only have veto powers on funding issues.  It might make it difficult for the CEO in this case.  He agreed that the veto should only be used in the case of improper procedure.

The Chairperson said that the Bill would give the CEO power to run SAIDS.  Employment of staff was one of the issues, but resources and the strategic plan must also be considered.

Dr Manjra said there were different levels of control.  The strategic plan was one of these.  As there were only five full time members of SAIDS, staff appointments would not occur often.  New appointments would be a strategic decision, given the limited resources available.

Mr Boshoff said that the provisions for consultation with the Public Service Commission would be deleted.  The regulations of SAIDS and the regulations of the PFMA would address the concerns, and it would be better to omit these provisions.  Subsection 5 would regulate staff members.  Appointments would be in consultation with the Ministers of Finance and of Sport and Recreation.

Dr van Dugtering raised concerns over the effect of the deletion of various subsections affecting the numbering of the Bill.  Mr Hercules explained that this would be addressed in subsequent versions of the Amendment Bill.

Mr Boshoff referred to Clause 4 on Page 6.  The Exchequer Act was outdated, and references would be made to the PFMA.  The onus was on SAIDS to comply.

The Chairperson agreed that the PFMA was all-encompassing.

Mr Boshoff proceeded to Clause 5, the objectives of the Bill.  The main thrust was to align with the World Anti-Doping Agency (WADA) code.  Doping control would include testing – with or without advance warning, and in or out of competition.  Clause 5 a referred to Section 10 of the Amendment Bill.  There was a broader responsibility in terms of the WADA code.  Harder, proactive wording was needed.  The word ‘encourage’ was changed to ‘ensure’.

Dr Manjra said that a WADA-approved laboratory was required for conducting tests.  An independent laboratory in Bloemfontein was currently being used.  SAIDS had ensured that the necessary equipment had been provided to maintain testing according to WADA standards.  This would give SAIDS financial responsibilities.

Mr Boshoff said he would prefer the stronger wording.

Dr Manjra said that he had a fiduciary responsibility.  There was a cost risk.  Having a WADA-accredited laboratory would be in the best interests of SAIDS.  This would be a national asset.  He was not completely comfortable with accepting total responsibility for conducting tests without a dedicated laboratory.

The Chairperson said that doping would be with us forever.  If costs were the only problem, he wanted to know what they would be.

Dr Manjra said that SAIDS had the budget to continue.  Further responsibility would be on SRSA.  Having a dedicated laboratory would be part of his objectives.

Mr Boshoff said there were four priorities in the WADA code.  The first was the adoption of  policies, the second cooperation with anti-doping organizations, the third the encouragement of reciprocal testing and the fourth enforcement.  He felt that the wording regarding compliance to the WADA code should be changed from ‘ensure’ to ‘ensure as far as possible’.

The Chairperson said that in terms of the responsibilities, the relationship with WADA could not be undermined.  It would be good to use the word ‘ensure’, but some reasonability was needed.

Dr Manjra said that in terms of the WADA code it was not necessary for SAIDS to have its own laboratory as tests could be done at some other facility.  The current laboratory was housed at the University of the Free State, but was paid for by SAIDS.  There was a tenuous relationship between the laboratory and the University.  SAIDS paid for all tests.  The person in charged was the renowned Dr P van der Merwe.

Mr Komphela asked about the relationship between WADA and the laboratory.  In the event of a nail-biting issue arising, who would make the final decision.  Dr Manjra did not know the answer to this question.

Ms Bradbury said that the laboratory had free accommodation on the campus.  It was an independent unit at the University, and existed purely for anti-doping tests.  SAIDS had to conduct a minimum number of tests annually to keep it viable.  Dr van der Merwe was the final authority.

The Chairperson thought that the word ‘ensure’ should be left as is.  Mr Boshoff felt that it should be qualified by the wording ‘as far as reasonably possible’.

Dr Manjra said that many countries had amended their legislation to stay in step with WADA.

Mr Komphela confirmed that the UNESCO convention had been ratified.

Dr Manjra said that the Amendment Bill would make compliance with the WADA code binding.  The Bill would need to stay consistent with the code.  International standards had to be brought in in a general way.  Section 11(6) n regarding therapeutic use exemptions was subject to constant change.  Increased powers were needed for search and seizure, involving both the SA Police Services and Customs Control.  He said his last point was moot.  Currently SAIDS defined testing pools and procedures, and the Institute managed the results.  The responsibility for the prosecution of offenders rested with the national federations.  Prosecution had to be in line with WADA standards.  There was a possible element of bias due to the involvement of the federations in this process.  He felt that an independent tribunal should be considered.  This would develop expertise in the field.

The Chairperson reminded the Committee that Parliament should not make bad law. It would do so if Acts were passed when it was known that these would have to amended shortly.  Some important points had been made.

The meeting was adjourned.