Evaluating recent developments in the governance and regulation of South African sport: some thoughts and concerns for the future.

• Author: Louw, Andre M.

1. Introduction

   Recent times have seen important and interesting developments in the state regulation of sport in South Africa, which, at least in part, have been a response to the experience of a generally poor standard of sports governance among some of the major federations and governing bodies. In fact, the South African situation provides an interesting case study of a government's regulatory response to the apparent inability of private sports administrators to adapt to the changing face of world sport, especially in respect of high level, professional and elite competition. In contrast to other jurisdictions, such as the European Union and the UK, where the law has increasingly been called to intervene in sport because of its successful growth and increased economic significance (and impact on the rights of individuals), in South Africa it seems that the significant measure of intervention experienced in recent times has been a response to the general malaise among those governing sport in adapting to the globalised economy of modern sport.

   This note will briefly consider developments in South African sport, with the focus on private governance and the regulatory response by government. The limited discussion does not allow for any in-depth analysis of the issues touched upon, although it is hoped that major developments are sufficiently highlighted in order to provide those who are unfamiliar with South African sport with a useful overview. The discussion will also, due to the limited scope, focus specifically on the three major (professional) sports in South Africa, namely rugby union (1), football (2) and cricket (3).

   I will argue that the main characteristics of South African sport in recent times have been the generally poor standard of private governance, as well as a trend in government regulation towards active and rather drastic intervention in the traditionally accepted autonomy of sports governing bodies, where such intervention has mainly occurred in the context of the SA government's agenda of racial transformation in society, generally, and sport, more specifically. In the concluding section, I will attempt to extrapolate a number of problems and potential problems regarding the status quo, especially as it relates to new structures of regulation, in order to pose some questions regarding expectations for the future of South African sport. (4)

   While I will argue that poor standards of private governance might necessitate a measure of pro-active regulatory intervention, certain problems relating to poor planning and conceptualization, and largely incoherent policies and measures (especially in respect of the central issue of sports transformation), are serving to shape a sports regulatory system that is unique to South Africa. I will argue that this system is out of step with developments and trends elsewhere. It might be time for stakeholders in international sport, especially international governing bodies, to take heed of these developments and to consider steps to assist in addressing the problems experienced by a system faced with monumental challenges.

2. The South African sporting landscape post 1994: Re-admission, unification and regulation

   South African sport during the last few decades of the 20th century was characterized by exclusion and isolation on the world stage due to domestic state policies. (5) The governance of sport, as so many facets of South African life, was essentially racially aligned in a proliferation of 'official' federations and governing bodies representing the interests of specific groups. Sports bodies representing the interests of 'non-White' athletes had been forced, by the all-pervasive segregationist policies of the National Party government, to develop their own structures and cultures. (6) These bodies were in an unenviable position in respect of their efforts to obtain recognition and to establish power bases in the milieu of South African domestic as well as international sport. It is ironic to note that the very nature of international sports governing bodies and one of the prime pillars of their governance structure (namely the principle of a monopolised national recognition system--only one sports federation is recognised per country), served to further exacerbate the problems experienced by 'non-White' athletes in South Africa during the apartheid era. While sports federations were hard at work formulating and enforcing a sports boycott against the 'apartheid teams', new Black 'national federations' formed in the post war era could not obtain international status. International federations recognised only one affiliate per country, and recognition in the case of South Africa already belonged to the established 'White' controlling bodies. (7)

   Throughout this period, sport and politics were inextricably intertwined. (8) Apart from international instruments and measures applied to boycott South African teams' participation outside our borders (9) and the frequent political unrest and protests that accompanied our tours on foreign soil, the regime also used sport in the 1970's as a tool to try and regain respectability and reverse the trend towards isolation. (10)

   Following South Africa's re-entry into the fold of international sporting competition in late 1991 (11), and the first post-apartheid democratic elections in April 1994, the landscape of South African sports governance was predictably characterized by a process of rationalization and unification of the previously racially aligned sports bodies. There was increasing recognition of the need for 'nation-building' also in the context of sport, and of the urgent need to ensure the legitimization of control over sport. (12) This process was especially evident in cricket, one of the major sports (and which had also been a specific flashpoint of international controversy during the apartheid years (13)), where the early 1990s saw the establishment of a new, unified, national governing body, the United Cricket Board of South Africa.

   During this same period of rebuilding after 1994, state regulation of sport assumed a more structured guise through the introduction of a White Paper on Sport and Recreation in 1998, which called for new legislation to solidify government's regulatory framework in sport. The legislation that followed was the National Sport and Recreation Act (14) and the South African Sports Commission Act (15), both passed in 1998.

   The White Paper had the theme of 'getting the nation to play', and dealt with sport in all its forms and levels of participation (namely mass participation, recreational sports and elite and professional sport). The basic thrust of this policy document (in terms of the structures for governance and regulation of sport) was the following:

   --Overall responsibility for policy, provision and delivery of sport resides with the Department of Sport and Recreation (or DSR, now Sport and Recreation South Africa);

   --Parliament has the principal responsibility for defining government policy, legislation and budget allocations--this responsibility is exercised through the Minister of Sport and the DSR, with the Parliamentary Portfolio Committee on Sport and Recreation fulfilling a monitoring role in respect of the governance of sport in line with such government policy; and

   --A number of 'lead agencies' were identified, with specified contractual contractual obligations in respect of the delivery of sport and recreation in line with government policy--these were the National Sports Council (NSC), the National Olympic Committee (NOCSA), the SA Commonwealth Games Association (SACGA), and the national federations in the different sporting codes. (16)

   The White Paper further identified the lack of a specific empowering statute as a major factor hampering the DSR and the Ministry's authority to discharge its mandate, and was viewed as providing the framework for enabling legislation in order to achieve its goals relating to a number of key priorities. These priorities were identified as relating to development, transformation, funding for the upgrading of facilities in disadvantaged communities, encouraging mass participation in sport and recreation and the development of active lifestyles, and to develop a high performance programme geared towards the preparation of elite athletes for major competitions.

   The two 1998 statutes established the SA Sports Commission (SASC) as the prime overall coordinating body for sport and recreation. The SASC would be a juristic person, funded by Parliament by means of an annual budget, and charged with performing its role under the guidance of and in consultation with the Minister of Sport and Recreation. The SASC would consist of a General Assembly, made up of representatives of national federations and multi-coded sports organizations, a number of members elected by such General Assembly and a number of members appointed by the Minister.

   The Minister of Sport was charged with the power to determine general sport and recreation policy, after consultation with the SASC or the National Olympic Committee of SA (in respect of the Olympic Games). Policy so developed by the Minister would be binding on all sport and recreation bodies in SA, including national federations.

   The legislation further provided that national federations would be members of the SASC, if they met the Commission's recognition criteria.

   Finally, the SASC was provided with wide powers (and duties) in respect of advising the Minister on issues relating to sports and recreation policy, as well as powers in respect of funding of federations and other sport and recreation bodies.

   The system established in terms of these two Acts placed extensive powers relating to the development and promotion of government sports policy in the hands of the Minister and the SASC. In respect of the national federations, this meant that they were now constrained in the performance...