National Sports and Recreation Amendment Bill [B17-2006]: deliberations and adoption

SPORTS AND RECREATION PORTFOLIO COMMITTEE
28 March 2007
NATIONAL SPORTS AND RECREATION AMENDMENT BILL [B17-2006]: DELIBERATIONS AND ADOPTION

Chairperson: Mr B Komphela (ANC)

Documents handed out:
National Sport and Recreation Amendment Bill B17-2006 as of 4 August 2006
National Sports and Recreation Amendment Bill with amendments as approved on 28 March
Summary of submissions on National Sport and Recreation Amendment Bill, 2007

Audio Recording of the Meeting (Part 1), (Part 2), (Part 3), (Part 4) and (Part 5)

SUMMARY
The Department’s legal advisor and State Law Advisor went through the proposed changes to the National Sports and Recreation Amendment Bill, indicating that the most recent changes included those proposed by the Department and the Committee. Recommendations from the public hearings had been incorporated.

In Clause 2, the Committee agreed that references to SASCOC would be removed and replaced with the term “a sports federation”. This would also be done elsewhere in all relevant places in the Bill. There would also be a definition explaining what a sports federation was. Clause 2(e) was inserted to specify that federations should develop sport and recreation at club level. Failure to do so should be reported to the Minister of Finance. This clause was to be clarified by specific reference to the development agreements. A penalty clause was to be included as Clause 11(3)(a). It was decided that it would be more appropriate to deal with misuse of funding elsewhere. Clause 13(5) dealing with the Minister’s powers of intervention was clarified and it was noted that there should be provision that the Minister would need to consult with the MECs where provincial problems arose. Members agreed to adopt the provisions as amended.

MINUTES
Department of Sport and Recreation (SRSA) Briefing on amendments to National Sport and Recreation Bill Mr Gideon Boshoff, Senior Legal Services Advisor: Legislation and Contracts, SRSA presented amendments to the Bill following the issues raised at the previous meeting and the input of role players

The relevant clauses of the Bill were as follows:

Clause 2
Mr G Boshoff stated that this clause served to clarify the responsibilities of the two bodies. It clearly indicated what the SA Sports Confederation and Olympic Committee (SASCOC) would do, and stressed that it would be dealing with high performance in sport. Therefore the Department (SRSA) would not be responsible for high performance sport.

Mr C Frolick (ANC) suggested that SASCOC be removed as the only recognized national co-ordinating macro body, since that was restrictive. It was necessary to consider the position of another entity that might be interested in the development of sport. He suggested that the Department should rather refer to the sports federations.

The Chairperson indicated that the mention of SASCOC on the bill seemed to be causing discomfort and added that it was possible that another non governmental organisation (NGO) could be a custodian of sport, as with the federations, and this might apply to any other sport.

Mr B Dhlamini (IFP) reminded everyone that the overall objective of the Bill was to see that government intervened where necessary. He suggested that he would like to see an area where this was specifically stated.

Mr Boshoff answered by stating that the Minister was entitled to address all performance queries. However the high performance had been assigned to SASCOC to oversee, so that the Minister did not have to deal with that.

The Chairperson stressed that the Department was in charge of all sport at all performance levels and so was the Minister. This would allow the Minister to know all the levels and be updated on their performances, and there was no need to distinguish between high and low level performances.

Mr Boshoff indicated that the Minister issued guidelines of any level. The Department was then responsible for all sport and high performance but he suggested that high performance should be distinguished between SASCOC and Department.

The Chairperson stated that the responsibility of SASCOC should not abdicate what the Department and Minister do. The Committee wanted it to be clear that the Minister assumed full responsibility for sport.

Mr Frolick stated that the Minister may recognize a federation, suggesting that it should be included, and this did not restrict the Minister to deal with one entity only.

Mr Joe Phaahla, Director General, SRSA, indicated that the creation of SASCOC was a process that involved dissolution of other sports bodies as a means of avoiding a duplication of roles. However, he could understand the difficulties that the Committee was discussing.

The Chairperson emphasised that the Department could not insist that SASCOC will be the only recognized body.

A member suggested that the term “any other” be inserted.

Mr S Masango (DA) suggested that there be a definition to state what "high performance" was, as this term frequently appeared in the Bill.

Mr Dhlamini suggested that there was a need for a civil society body, and the Minister should not interfere with it. He agreed that there should be one macro sports body to be recognized by the Department.

The Chairperson stated that the recognition of SASCOC as the only body raised a constitutional challenge. He further noted that the Minister could not be equated to SASCOC.

Mr Boshoff stated that he would then propose that the words "high performance" should not be used in Clause 2(a)(1).

The Chairperson replied that he should take the references to SASCOC out of the Bill so that it was not reflected as the sole body recognised by government.

Mr Dhlamini also believed that high performance, rather than being taken out, should be included in the definition.

Mr B Solo (ANC) indicated that the definition of SASCOC should include an encouragement of sport bodies, so that the Minister could then provide for sports federations.

Mr M Kora (ANC) stated his concern that the Minister was the one who prepared a team. He stated that should rather be the responsibility of the micro bodies and not SASCOC.

Mr Boshoff stated that he agreed with the Committee and would substitute the references to SASCOC with the term “ a sport federation.” He then suggested that this meant the heading would have to be amended.

The Chairperson stressed that SASCOC was never a substitution of the Sports Commission from the outset.

Mr Boshoff indicated that national federations for all those bodies must be catered for in the Bill.

The Committee agreed that references to SASCOC would be removed and replaced with the term “a sports federation” everywhere in all relevant places in the Bill.

Ms Bongi (State Law Advisor) suggested that there should be inclusion of a clause to state that the sports body be appointed by the Minister. There should also be a definition indicating what a sports federation was.

Mr Dhlamini stated that the Minister could not appoint a federation and he was opposed to giving so much power to the Minister.

The Director General told the members that there would be a definition explaining what a sport federation is.

Ms Bongi suggested that to try and address the issue about the Minister, there should be reference perhaps to the Minister identifying or recognising, rather than appointing.

Mr Masango argued that identifying was no different from appointing. He suggested that the onus should rest on a macro body and the Minister must merely recognise the sports federation.

Mr Dhlamini put this as a formal proposal.

Members agreed that this definition should be inserted as the Department and state law advisor will put it where they see best fit.

Clause 2(e)
Mr Boshoff stated that the public hearings suggested that this clause be inserted and that federations should develop sport and recreation at club level. Failure to do so should be reported to the Minister of Finance.

Mr Dhlamini asked the Department what it was that the national federations must develop. The clause was not clear what exactly was the focus area in development.

Mr Boshoff stated that Section 10(5) of the Principal Act gave a greater understanding of what development would constitute.

Mr R Bhoola (MF) asked about the evaluation of delivery.

Mr Boshoff stated that if a federation failed to deliver or to adequately develop that would constitute a change to their statement, so that punitive measures could be taken.

A member expressed his discomfort that the Minister of Sport should be accountable to the Minister of Finance. He suggested that no Minister should be accountable to another Minister.

Ms Makhosi asked about measures that could be taken if there was a mismanagement of funds.

The Chairperson stated that if federations did not attend to development as prescribed the Minister of Sport would have to notify the Minister of Finance because the latter was responsible for issuing funds. He stated that there needed to be this statement because the Minister of Sport should be obliged to report on non-performance.

Mr L Reid (ANC) supported the Member that the Minister of Finance should not be included as he felt this should remain entirely within the Minister of Sport’s discretion.

Mr Boshoff stated that the references to the Minister had been inserted specifically to make it clear that federations must develop.

Mr Frolick stated that the reason the Minister of Sport should report to the Minister of Finance was that the Department and other federations should not report directly to the Minister of Finance.

Ms Bongi then suggested that the word “advise” be used instead of the word “report” as initially stated.

Mr T Louw (ANC) suggested that this wording was still too loose and that specific reference should be made to the circumstances in which the advice should be furnished to the Minister of Finance.

The Director General said this would apply in accordance with published guidelines by the Minister of Sport.

Mr Boshoff stated that subsection (5) could include a cross- reference to guidelines, service level agreements or national legislation.

The Chairperson asked why that part should not simply be inserted in the Bill.

Mr Boshoff agreed with the Chairperson and said that it would be put in the Bill for greater clarity.

Clause 7
The Chairperson mentioned that he did not understand clause 7(b)(1). He wondered how one assigned issues of safety to federations.

Mr Boshoff mentioned that the onus was put on federations to guard for safety precautions.

Mr Reid asked if they would also be responsible for transportation.

Mr Lee mentioned that indemnity forms were used before, and would be wise to have those still.

Mr Boshoff stated that the federations would be told that if they did not make adequate provisions they would be held liable.

Clause 9(a)
The Chairperson and committee agreed with the amendment of this clause, which would now make specific reference to “physical facilities for sport and recreation to be prescribed.

Clause 11(2), and new clause 11(3), 11(4) and 11(5).
Mr Boshoff stated that the national federations would now indicate the specific clubs that would receive funding, and the type of funding.

The Chairperson wondered if the wording would not infringe on the privacy rule.

Mr Masango asked whether the development rather than the funding should not be the focus. 

The Chairperson said they should not be specific but should rather look on proportionality.

Mr Boshoff requested that a penalty clause be included as Clause 11(3)(a). He suggested that the misuse of funding could also be dealt with in this clause.

The Chairperson requested further clarity on the recognition aspects in this clause.

Mr Boshoff answered that that particular body would not be recognized as a custodian of sport and recreation in the republic. He suggested that the words “may be” could be used instead of “will be.”

Mr Reid wanted to know if the federation would be able to carry on with its programme if not recognised by government.

Mr Boshoff said that it would; but once a decision was taken it would be published in the Gazette for the public to see.

Mr Masango said that this appeared to be used as a punishment, and that he would like to ensure that warnings were given.

The Chairperson noted that proper procedures would be followed and obviously there would be a process before a federation reached a point where it was not recognized.

Ms Bongi suggested that perhaps the clause on misuse of funds could be left out.

The Chairperson answered that the clauses should be included and those who misused funds should be punished. However, sanctioning a federation for failing to adequately develop was not in the same category as punishing it for misusing funds. If the clause was not more specific, then it would be sending out the incorrect message.

Ms Bongi understood the point and suggested that the clause on misuse of funds could be inserted somewhere more appropriate.

Ms W Makgate (ANC) suggested that the funding should be accompanied by a programme.

The Chairperson answered that this concern had been catered for in the service level agreement.

Mr Reid asked if there could not be a clause to cover the issue of racism in sport.

Mr Boshoff said that this was not appropriate at the moment. The questions of transgression of Guidelines tried to look at this issue. Issues of race were catered for under section 9 of the Constitution. If those rules were contravened then the Minister could intervene.

Ms Bongi mentioned that this was also covered in the Principal Act.

Clause 13(c)
This clause provided for penalties where national federations failed to adhere to the mediator’s decision or Minister’s directive. Members were happy with the clause.

Clause 13 (f)
Mr Boshoff mentioned that there had been provision, under the revised Section 13 that the Minister may interfere and intervene at any time where deemed fit.

Mr Louw agreed that there would be a problem if the Minister interfered. The Minister could not be given so much power.

The Chairperson agreed that interference was too strong a term, but that intervention might be acceptable.

Mr Kora asked why it was mentioned the Minister could intervene in certain sports disputes in the preamble.

Ms Bongi answered that the Minister would not be able to intervene in all sport disputes.

New Clause 13(5)
Mr Boshoff indicated that a similar intervention clause should be considered for MECs, or that there should be a link to the Minister’s powers.

The Chairperson was concerned that this bill only talks about the Minister.

Mr Dhlamini stated that when there were provincial problems the Minister would intervene. He mentioned that perhaps there should be a clause that the Minister should also consult with provincial MECs and give support after consultation with provincial Ministers.

The Chairperson asked for clarification of the words “after consultation”.

Ms Bongi said ‘in consultation ‘ was used when the Minister made the decision. The term ‘after consultation’ was used when the Minister was able to exercise his discretion, having held a consultation.

A member asked what the purpose of this clause was.

Mr Boshoff clarified that this was intended to cover problems that called for intervention by the Minister. In similar situations the MEC should also intervene in the case of provinces. This was a national legislation piece of legislation, and therefore the Minister felt that there should be provision for consultation.

Clause 14: Insertion of new Section 13A to principal Act
It was noted that the development of women was now covered in the new Section 13A.

The Chairperson asked if there was mention that there should be adherence to principles of scarce skills in recruiting.

Mr Dhlamini asked how a federation would have to ensure that issues of equity, redress and so forth were addressed. Local talent should be promoted. The word “advice” was not appropriate.

Mr Boshoff stated that the word ‘may’ had been substituted with the word ‘must’ in this clause, which dealt with the fact that the Minister must issue guidelines to promote equity, representivity and redress in sport and recreation.

Mr Frolick suggested that subsection (b) could also cause problems. He said that the guidelines must be consistent with the Constitution and not with the international protocols, agreements and covenants as suggested.

The Chairperson agreed and mentioned that policy in this country should not be subservient to international protocols.

Ms Bongi mentioned that when the bill was drafted there was an understanding that there was an international agreement on those issues. Even if not, there was no harm in having it in.

Mr Louw said that there was no international protocol that could prevent such decisions being made, and therefore no restrictions should be placed.

Mr Frolick stated that Mr Boshoff should show members these protocols as Members could not allow such a clause without knowing what these agreements were.

Mr Boshoff proposed that there should be a redraft of this clause, making reference to guidelines that were guided by the Constitution.

Mr Dhlamini did not agree that there was a problem with the clause as it stood. He did not think there was any harm in mentioning the international protocols because he did not see that the government would enter into international agreements, protocols and covenants that would be in conflict with national policies.

Mr Lee mentioned that protocols did not emanate from the government only, but also from other federations and suggested that there should be some caution when dealing with this clause.

Mr Dhlamini also mentioned that there were good deals that were made from international protocols. He would prefer that if there was reference to international protocols, this reference must be carefully worded.

Mr Frolick proposed formally that the proposed 13A(b) be removed. Mr Boshoff having indicated that he had no objection, Members resolved to remove it.

Clause 14: Insertion of new Section 13C
This new Section provided that Constitutions of national federations would be scrutinized to confirm that they conformed to the Constitution. No comments were made to these amendments.

Adoption of Bill as amended
Mr Boshoff reminded members that the definition of sport federation would have to be included and will fall under the heading of “sport and recreation body”. On page 5 the SASCOC definition and all its components would be deleted. A sports federation and national federation should be included in clause 3(a).

Ms Bongi was worried that the Bill only gave functions to national federations in Clause 3, and this was perhaps not appropriate.

The Chairperson noted that the intention was that the national federation should be able to enter into service level agreements with the Department.

Mr Boshoff mentioned that the principal Act had a special section that dealt with the national federation only.

Mr Frolick moved that the Bill be adopted, with the amendments now proposed. Members agreed to adopt the Bill.

The meeting was adjourned.