Submission on National Sport and Recreation Amendment Bill, 2020

There are three broad issues underlying the proposed National Sport and Recreation Amendment Bill, 2020, that the Free Market Foundation regards as problematic.

The first is that the Bill unnecessarily and unjustifiably intrudes on the private sphere, by expanding the extent and potential scope of government interference in sport and recreational activities. The second is that the Bill, like many other pieces of legislation enacted by Parliament, vests executive officials, primarily the Minister of Sport and Recreation, with discretionary powers that are not restrained by any guiding criteria on how the Minister must exercise those powers. Thirdly, the Bill is clearly aimed at centralising governmental power away from civil society and away from independent institutions, in the hands of the Department of Sport and Recreation and its minister.

It is also noteworthy that a socio-economic impact assessment did not accompany the Bill, despite it being government policy that all new interventions must go through such a process.

All South Africans are by right entitled to a free sphere of private action. Two of the most quintessentially private affairs are sport and recreation. However, the Bill would, among other things, vest the statutory Sports Confederation with the power to “coordinate” all “high-performance sport”, allow the Minister to impose policy and political considerations on private sporting bodies, require coaches and gyms to be licenced, registered, and paying subscription fees, and disallow sporting bodies to bid for or host sport and recreational events without ministerial approval. One particularly concerning aspect is the reintroduction of conscription in South Africa, this time for sport. The Bill, if passed, would require sportspersons who have been called to serve South Africa in an international event to comply, without regard to their own choices. The inclusion of “recreation” specifically in many of these intrusions creates the impression that government wants to needlessly start regulating what South Africans do for fun, and this must not be allowed.

This interference in sporting affairs also stands to embarrass South Africa in the international sporting arena, as various international sporting codes prohibit such direct government interference in the operations and decisions of sporting bodies.

The imperative of the Rule of Law contained in section 1(c) of the Constitution prohibits Parliament from assigning unrestrained discretionary powers to the executive in the legislation it enacts. Yet this appears throughout the Bill, with provisions empowering the Minister to do certain things, appoint certain functionaries, and direct certain people to do things, all based on the Minister’s own whims, without any of these decisions being restrained by legal principles or criteria. Certain vague provisions in the Bill, because of their lack of clarity, also lend themselves to being applied in any way the Minister may see fit. In other words, the quality of legislative drafting as regards this Bill leaves much to be desired.

Finally, the Bill is evidently giving effect to an unacceptable centralisationist agenda, which is incompatible with the spirit and values of the Constitution and constitutionalism in general. The Sports Confederation in many respects is made entirely subservient to the Minister, who may, also without restraining criteria, suspend or withdraw recognition and other support for the confederation if the confederation, even for valid reasons, refuses to comply with ministerial diktat. The Bill also establishes a so-called “independent” tribunal to hear disputes in the sporting world, but that tribunal, too, is entirely subservient to the Minister, as each member is appointed by the Minister. Centralisation of power is exactly what constitutionalism and the Rule of Law is meant to counter, and as such the Bill stands in stark contrast to South Africa’s constitutional project.

Our rights and freedoms are protected by the Constitution, which sets out the extent to which government may interfere in our private and associational affairs. Although there is a limitation provision in section 36 that permits the limiting of certain rights, such limitations must be extensively justified. If government wishes for South Africa to avoid being embarrassed in the international sporting arena for violating international codes, and instead respect the imperatives of the Rule of Law and the freedoms guaranteed by the Bill of Rights, the Bill needs to be scrapped in its entirety.