Anti-doping law in South Africa--the challenges of the World Anti-Doping Code.

• Author: Ndlovu, Portia

1. Introduction

   South African sports, has developed extensively since the advent of our democracy. This national awakening in sports owes its roots to the adoption of constitutionalism and the recognition, respect and upliftment of fundamental human rights in South Africa. This was confirmed in the judgment of Coetzee v Comitis and Others (1), where the court held that persons involved in professional sports (in casu the sportsperson being a soccer player) have the right to choose their occupation freely without being treated like objects.

   The Coetzee supra decision established a value judgment based on equity thus establishing a constitutionally sound decision related to sports contracts in South African law. In a judgment by Traverso J and Ngwenya J, concurring, it was held that a contract of employment of a football player bound by rules of National Soccer League (NSL) may not contain a rule that is akin to restraint of trade when dealing with the transfer of a player from one club to another. Such a rule is unreasonable and contrary to public policy. It was thus held that such a rule is inconsistent with the Constitution and therefore invalid. In a similar case of McCarthy v Sundowns Football Club and Others (2) the court emphasized the importance of freedom in sports contracts.

   Part of the development of sport in South Africa is evident in the production of world-class athletes in multi-sporting events who have graced international arenas to compete against the world's best with excellent results. Examples of these high sports achievers, to mention a few include the likes of Hestrie Cloete (high jump), Mbulaeni Mulaudzi (800m), Natalie Du Toit (paralympian swimmer), our rugby world-cup win in 1995 and our cricket team's great performances in recent one day international matches. However, this development has not been without certain pitfalls. I would like to mention three main obstacles that plague South African sports today. Firstly, unique to South African sports we have had to deal with the reality of our historical inequalities in sports. The South African Sports Commission Act (3) which has now been repealed by the South African Sports Commission Act Repeal Act (4) summarized the historical position of South African sports prior to the adoption of the Constitution. (5) This socio-economic obstacle is being addressed through various efforts by national sporting bodies with the aim of producing talents from all social groups in South Africa. This difficult hurdle to sports in South Africa may require more than 11 years to remedy.

   The second obstacle I would like to raise is that although South Africa is trying to develop as a great sporting nation, the media reports covering South African sports at the World Championships in Helsinki 2005, for example, highlighted that our efforts are simply insufficient in developing a culture of high performance sport. It was also reported, perhaps unfairly, that the South African athletes lack the 'winning culture' that is necessary to place South Africa on the map through making finals and winning medals or trophies. In the previous year again South Africa failed to perform well at the Athens Olympics finishing 43rd on the final medal table. Not to mention the recent dismal performance by the South African soccer team in the Africa Cup games Egypt in 2006. These reports and statistics show that South Africa is failing to produce enough sporting talent. (6)

   Thirdly, the focus of this article, South African sport has been tainted by various doping scandals where, for example, in various codes of sport samples taken from various athletes have been found containing banned substances in the form of various stimulants or anabolic steroids. These doping scandals are clearly contrary to the spirit and law of sports. In May 2005, for instance, South Africa was in shock when our former Olympic 800 metres silver medalist Hezekiel Sepeng tested positive for the banned steroid norandrosterone. (7) The former Olympian protested to knowingly taking the banned substance and his case continues. (8) In team sports, the South African Rugby judiciary had to ban Western Province hooker David Britz for testing positive for the anabolic veterinary steroid boldenone. (9) These doping scandals are a brief reflection on the problem of doping in South African sports. From these doping offences or scandals one is able to draw some understanding of the humiliating sanctions and consequences of doping both for the sport and the individual athlete therefore it is essential to declare war on doping through proper application of anti-doping law.

   The purpose of this article is to educate South African athletes on anti-doping laws and to create awareness that it is possible to win at any level of competition without the use of banned substances. (10) Further, it is essential in law to highlight that there is hope for those athletes who have talent and a desire to succeed but have been historically disadvantaged however they should seek to avoid expedient success through the use of banned substances. In light of the quest to develop as a sporting nation, it is the aim of this paper is to contribute to the legal research applicable to sport by highlighting the laws relating to doping and the challenge in applying these laws in South Africa.

2. South African Sports and Anti-Doping Law

   The current legislation on anti-doping law in the Republic is contained in the South African Institute for Drug-Free Sport Act 14 of 1997. The 1997 Act has an express goal to promote participation in sports, free from the use of prohibited substances or methods intended to artificially enhance performance. Doping is defined in s 1 of the 1997 Act in relation to sports as the administration of substances belonging to prohibited classes of pharmacological agents or the application of any method intended to enhance performance...