South African Institute for Drug-Free Sport Amendment Bill: motion of desirability & deliberations

Meeting report

Opening remarks

The Chairperson welcomed everyone in attendance. She noted that there were no apologies.

Consideration of motion of desirability on the South African Institute for Drug-Free Sport (SAIDS) Amendment Bill [B41-2023]

The Committee Secretary, Ms Zoleka Kula, presented the Committee’s report on the motion of desirability on the SAIDS Amendment Bill. She said the motion's aim was for the Committee to decide whether to proceed with the legislation.

The SAIDS Amendment Bill was tabled and referred to the Committee on 23 November 2023. On 5 December 2023, the Committee received a briefing from the Department of Sport, Arts and Culture on the details of the Bill. The Committee advertised the Bill for four weeks (22 February—14 March 2024) in national, local, and regional newspapers, requesting the public to make comments on the Bill.

The Committee conducted virtual public hearings from 20 February to 11 March 2024 to solicit oral submissions from stakeholders. On 13 March 2024, the Department responded to the issues raised during the virtual public hearings and oral and written submissions.

Having deliberated on the submissions received from various stakeholders, the Committee is required to adopt a motion of desirability to proceed with deliberations on the Bill. This is in line with Rule 286(4) of the National Assembly.

Mr D Joseph (DA) noted that the report stated that the “objectives of the Amendment Bill are to amend the South African Institute for Drug-Free Sport Act, 1997.” He recalled that another amendment to the Act was made in 2006 and asked if this should be included in the report.

He asked whether the report should also state that one of its objectives is to comply with the World Anti-Doping Agency (WADA) Code.

Adv Aadielah Arnold, Parliamentary Legal Advisor, replied that it was not necessary to refer to Act No.25 of 2006, because the legislation is read as a composite whole. For instance, a piece of legislation can be amended ten times, but one would always refer to the original enactment.

On compliance with the WADA Code, she replied that the Long Title of the Bill reads, “To amend the South African Institute for Drug-Free Sport Act, 1997, so as to delete, amend and insert certain definitions; to provide for consequential amendments in certain provisions and to provide for matters connected therewith”. The Committee can consider amending the Long Title when it deliberates on the clauses to clarify that the Bill deals with result management, that there will be amendments to section 17A to provide for fairness, and that a decision can only be taken once a finding of non-compliance has been made.

Ms R Adams (ANC) moved in favour of the motion of desirability, which Ms V Malomane (ANC) seconded.

The Committee is of the opinion that the Bill is desirable and will proceed to deliberate on the details of the legislature.

Clause-by-clause deliberations on the SAIDS Amendment Bill

Adv Arnold took the Committee through each clause of the Bill.

Long Title

She noted that the Long Title could be amended to include the other aspects of the Bill, such as result management, in section 17, according to the Department’s proposal. Section 17A of the Bill was also proposed to be amended to provide for fairness and reasonableness in conducting an investigation regarding non-compliance.

Clause 1

Clause 1 contains the definitions of the Bill.

Adv Arnold pointed out that there was a proposal suggesting that the Bill should refer to the “Sports Confederation” instead of “SASCOC.” This is because the South African Sports Confederation and Olympic Committee (SASCOC) is in the process of changing its name. The term “Sports Confederation” is a more general term and would avoid the need to be amended every time a name is changed.

On the definition of “Prohibited List,” WADA proposed that it be amended to read, “means the Prohibited List as defined in Appendix 1.”

WADA also proposed that after the words “Therapeutic Use Exemption” the Bill should include the abbreviation “TUE” in brackets.

Adv Arnold explained that Clause 1 (which amends section 1) deals with the definitions. Accordingly, this includes all the words and expressions used in the principal Act. There was a proposal to provide for an interpretation provision. As such, section 1(2) will say, “When interpreting a provision of this Act, any reasonable interpretation which is consistent with the Code must be preferred over any alternative interpretation which is inconsistent with the Code.” The interpretation provision ensures compliance with the Code.

She noted that the definitions of “International Olympic Committee” and “international sports federation” are not used in the principal Act or the Bill. She believed this was probably an oversight. She reiterated that the purpose of definitions is to define the terms that are used in the principal Act.

Clause 2

Clause 2 clarifies that SAIDS is a public entity and the Institute is the “National Anti-Doping Organisation in the Republic”. Adv Arnold reminded the Members that the National Treasury proposed that the Bill should refer to the public entity as being established in terms of the Public Finance Management Act (PFMA).

WADA proposed that section 2(2) explicitly refer to the “Republic of South Africa”.

Clause 3

Clause 3 seeks to amend section 10 of the principal Act, which provides for the objects of the Institute.

The submission by SAIDS and WADA indicated that section 10(1)(d) should not have been amended in the manner that it has been because it creates the impression that athletes should be given advanced notice when testing. It was proposed that section 10(1)(d) should rather read “... to promote and ensure the adoption of a centralised doping control programme, which focuses on implementing intelligent testing, both in- and out-of-competition, on athletes over whom it has authority”.

Clause 3 also seeks to amend section 10(2) of the principal Act by the replacement of the reference to the SRSA with “the Department”. This is a consequential amendment.

Adv Arnold pointed out that if the Committee decides to replace the term “SASCOC” with “Sports Confederation (as discussed under Clause 1), then this would also be a consequential amendment.

Clause 4

The clause seeks to amend section 11 of the Principal Act. The first amendment is the deletion of paragraphs (b) and (c) of subsection 2. Paragraph (f) was also amended. None of the stakeholders commented on this.

SAIDS and WADA have informed the Committee that section 11(2)(l) needs to be amended because it is incorrect to refer to the “testing pool” in small caps (line 11 of the Bill). SAIDS and WADA proposed that, as per the Code, the correct reference should be “Registered Testing Pool”. If the Committee finds this proposed amendment acceptable, section 11 of the Principal Act would essentially not be amended.

Section 11(2)(n) seeks to bring in an amendment to read “ensure that there is a process for all athletes with documented medical conditions requiring the use of a prohibited substance or method to request a Therapeutic Use Exemption.” The proviso that was omitted now appears in section 2A, which assists in the ease of reading.

Clause 5

Clause 5 seeks to repeal sections 11(a) to 11(c) of the Principal Act. None of the stakeholders commented on this.

Clause 6

Clause 6 seeks to amend section 17 of the principal Act, which provides for appeals. However, WADA indicated that section 17, which appears in the Bill, is non-compliant. WADA explained that it breeches the concept of institutional independence and contains heavy administrative provisions (in the sense that these provisions are contained in SAIDS’s rules).

The Parliamentary Legal Services, the Department, and SAIDS have worked on a proposal to bring Section 17 up to compliance status.

Clause 7

Clause 7 concerns punitive measures. Instead of “SRSA,” the Bill explicitly refers to the “Department.”

Section17A.(1) reads “The Department, on the written recommendations of SASCOC, may cause an investigation to be conducted as it deems fit to ascertain whether all national sports federations have complied with the provisions of this Act”. One of the stakeholders (i.e. Body Building South Africa) have cautioned that the wording “as it deems fit” would imply that SASCOC could find anything essentially deeming fit. It was proposed that the section should not use the words “as it deems fit”, but instead indicate that this be done in a “fair, transparent, just and equitable manner”.

In section 17A.(2), Body Building South Africa proposed that this be amended to read, “The Department must, after consultation with the Institute and SASCOC, and after any national sports association is found, after an investigation is conducted as contemplated above to be non-compliant identify any non-compliant national sports federations whereafter it may, amongst others...”

Clause 8

Clause 8 provides for the Long Title of the Principal Act.

Adv Arnold reiterated that the Long Title could be amended to indicate that the Bill deals not only with consequential amendments and amendments to the definitions but also with appeals and section 17A of the principal Act.

Discussion

The Chairperson thanked Adv Arnold for taking the Committee through the Bill. She said it seemed as if nothing was new, as most of the matters had already been discussed in yesterday’s meeting.

Mr E Mthethwa (EFF) raised concern about the inconsistency in the usage of the term “SASCOC” because there was already agreement that the Bill should rather refer to it as the “Sports Confederation”. He believed that it would be safer to refer to “Sports Confederation”, considering that SASCOC was in the process of changing its name.

Mr Joseph sought clarity on whether it was legal to change the reference from “SASCOC” to “Sports Confederation”, while SASCOC was still in the process of changing its name.

He asked Adv Arnold to clarify the amendment to section 11(2)(l) where it refers to the “testing pool” instead of the “Registered Testing Pool”. He agreed with the amendment but sought clarity on why there was a proposal to maintain section 11(2)(1) as it appears in the principal Act.

Ms Malomane agreed with the Chairperson that what was presented today had already been discussed yesterday. She assumed that if the term “SASCOC” was changed to “Sports Confederation” in Clause 1, this amendment would accordingly be made wherever the term “SASCOC” appeared in the rest of the Bill.

She agreed with the use of the term “Sports Confederation” as it would cover any name changes in future.

The Chairperson said that she was a bit worried when Adv Arnold read out section 17A.(2), which reads, “The Department must, after consultation with the Institute and SASCOC...”. It seemed that Adv Arnold forgot to indicate that the reference to “SASCOC” would be changed to “Sports Confederation”.

She asked Adv Arnold to clarify the amendment in section 11(2)(l), where it refers to the “testing pool” instead of the “Registered Testing Pool,” considering the advice that it should remain as it appears in the principal Act. She said that the Committee must ensure this Bill follows the statutes.

Adv Arnold said that the Department indicated that SASCOC would be changing its name. It was therefore advised that the Bill should not refer to “SASCOC” but rather refer to the more general term “Sports Confederation”. This would mean that wherever one sees the word “SASCOC” in the Bill or in the principal Act, it would be changed to “Sports Confederation”. The Department explained that SASCOC might, for example, choose to use the name “Sports SA”, but the use of the expression “Sports Confederation” would encompass whatever name SASCOC chooses to utilise.

As such, she said that the Chairperson was correct in pointing out that section 17A.(2) would instead refer to the “Sports Confederation”.

Adv Arnold explained that SAIDS and WADA have pointed out that the amendment in section 11(2)(l) where it now refers to the “testing pool” instead of the “Registered Testing Pool”, is non-compliant because the Code does not refer to a “testing pool”, it refers to a “Registered Testing Pool”. In order to be compliant, section 11(2)(l) would be left as it is in the Principal Act.

The Chairperson invited an official from SAIDS to comment.

Ms Wafeekah Begg-Jassiem, Legal Manager, SAIDS, confirmed that Adv Arnold had correctly explained that the term “Sports Confederation” would be used as a general term in the event that SASCOC changes its name.

The Chairperson asked Ms Begg-Jassiem whether this amendment would apply throughout the Bill.

Ms Begg-Jassiem replied that wherever the Bill refers to “SASCOC,” this will be replaced with “Sports Confederation.”

The Chairperson asked Ms Begg-Jassiem for further clarification on the amendments to section 11(2)(l).

Ms Begg-Jassiem said there was no need to amend section 11(2)(l). It was never the intention to omit the term “Registered Testing Pool” and replace it with “testing pool.” It was always correct in the principal Act. Therefore, the term “Registered Testing Pool” is advised to remain as it appears in the principal Act.

She explained that SAIDS has many testing pools, but the specific one referred to in section 11(2)(l) is a testing pool for top-level athletes (such as national and international athletes). This is a very special pool of elite athletes referred to as the Registered Testing Pool (RTP) athletes, and it is kept separate from the other testing pools.

The Chairperson thanked Ms Begg-Jassiem for providing more information, as some Members were unaware that there were “elite athletes”.

Mr Joseph thanked Ms Begg-Jassiem for the explanation. He said that perhaps the “Registered Testing Pool” reference also implied that it was accredited.

He asked if the Minister would have the discretion to implement SASCOC's name change after the Bill is passed.

Mr Mthethwa assumed that the Committee would have adopted the draft Amendment Bill in today’s meeting, but it seems that the Bill would still have to be rectified.

He explained that SASCOC is established by an Act. He believed that the term “Sports Confederation” was an umbrella term encompassing any name change that SASCOC might undergo after the Bill was passed.

He was uncertain of Ms Begg-Jassiem's use of the words “elite athletes”. He suggested that the Members shy away from using such terms and rather say that the testing pool is strictly for national or international sporting games.

The Chairperson reiterated that she was not aware that there were “elite athletes”. She informed the Committee that the purpose of today’s meeting was to deliberate on the Bill clause-by-clause. At the same time, the Parliamentary Legal Advisor noted the changes that need to be affected. The Committee will consider the adoption of the Bill in tomorrow’s meeting.

Adv Arnold requested another opportunity to explain section 11(2)(l) of the Bill. She explained that the Principal Act currently uses the term “Registered Testing Pool”; instead, the Bill refers to the term “testing pool”. WADA indicated that the Bill’s “testing pool” reference is non-compliant with the Code. In order to be compliant, the Bill must not refer to a “testing pool” and retain the term used in the principal Act. The principal Act was correct in referring to a “Registered Testing Pool”, because this is the term that is utilised by the Code.

She said that one of the Members correctly pointed out that SASCOC’s establishment follows legislation. The term “Sports Confederation” is used to accommodate whatever change SASCOC makes to its name.

She noted that Clause 1 of the Bill currently defines SASCOC as “the South African Sports Confederation and Olympic Committee, a non-governmental sports body consisting of the following founding constituent components...”, the components are then listed from (a) to (g). So, the definition in Clause 1 already explains that SASCOC is the “South African Sports Confederation and Olympic Committee”. The proposal, as put forth by the Department, is that the Bill and Principal Act would not refer to “SASCOC” and that it would rather refer to the “Sports Confederation” as a more general term to account for any name change that SASCOC might undergo. 

The Chairperson said that Adv Arnold had clearly explained the changes to the Bill.

Mr Joseph understood that SASCOC and the Sports Confederation were the same entity. However, he wanted to know if the Minister had the power to make any other changes to the Bill after it was passed.

Adv Arnold replied that the principal Act does not make provisions for regulations. So, the Minister cannot regulate these issues after the fact.

The Chairperson agreed with Adv Arnold. She was certain that the Ministry was aware of this.

Mr Mthethwa said he was happy with the clarification on the issues concerning SASCOC’s name change and the reference to “Registered Testing Pool”. It made sense. He sought clarity on how the term “Sports Confederation” would be defined in Clause 1. He suggested that the definition should read, “the South African sports confederation and olympic committee...”. He explained that the words “sports confederation and Olympic committee” should be in small caps because if they started in capital letters, it would imply that it is a brand.

Adv Arnold replied that Mr Mthethwa’s suggestion could be incorporated. So, the words “sports confederation and olympic committee” would be in small caps. She believed this would align with the Department's explanation regarding the use of a more general term.

She informed the Committee that she had just happened to read a newspaper article about SASCOC and its utilisation of the expression “paralympic”. She said that perhaps this should also be referenced in the definition of SASCOC.

Closing remarks

The Chairperson thanked Adv Arnold for clarifying the issues. She said the Committee will be presented with the “polished” version of the SAIDS Amendment Bill tomorrow. The Committee will meet tomorrow at 9am.

The meeting was adjourned.