Author: Candice Pillay
On 5 October 1997 the Sunday Times (South Africa) reported:
"When South Africa re-entered international sport six years ago the looming new democracy was excited at having an instant role model for people of diverse cultures. From President Mandela down, politicians were quick to point out that sport had provided an ideal catalyst for change, that sport, like no other area of public life, had the capacity to break down barriers and forge the links in the nation building chain."
Fast track to 2015 and, despite the leaps and bounds that the sporting sector has made since our new constitutional dispensation, we are faced with the horror of gender based violence and sexual abuse reported in the media which exposes the vulnerabilities that women face in sport. Is there a right to play sport and to be protected from discrimination?
The Constitution does not provide us with the right to play sport but instead, in section 22, provides that every citizen has the right to choose their occupation freely and that the practice of a trade, occupation or profession may be regulated by law. Schedule 5, Part A and Part B of the Constitution regulates the functional areas of exclusive provincial legislative function and provides for provincial sport in Part A and local sport facilities in Part B. The National Sport and Recreation Act 110 of 1998 was enacted to, inter alia, provide for the promotion and development of sport and the Department of Sport and Recreation South Africa (SRSA) is mandated in terms of this Act.
Part of the SRSA's mission statement is to transform the delivery of sport and recreation by ensuring "equitable access, development and excellence at all levels of participation". When it comes to the question of whether one has the right to play sport section 9(1) assists us in answering this question - it states that the SRSA must organise programmes aimed at mobilising the nation to play.
Section 9(2)(e) takes it further and states that SRSA must ensure that women; youth attending school and those who are no longer attending school; the disabled; senior citizens; and neglected rural areas, receive priority regarding programmes for development and the delivery of sport and recreation.
The legislators’ insight into gender and social issues surrounding sport, is evident in section 13A where it states that the Minister must issue guidelines or policies to promote equity, representivity and redress in sport and recreation.
So, not only does the Act provide for our nation to play sport, it has regard for minority groups, specifically women, with quite serious consequences should national federations such as the South African Football Association, South African Rugby Union and Cricket South Africa not comply. The SRSA’s budget allocation in 2013/14 was ZAR1.073 billion. Section 10 (1)(d) states that the SRSA must, in accordance with its funding policy, increase the profile and increase financial assistance to volunteers, women, senior citizens, neglected rural areas and the disabled, in sport and recreation.
The Act goes a step further and provides sanctions to national federations in terms of section 10(3)(a) and states that no funding will be provided and no recognition will be given to national federations where no development programmes exist, and where federations exclude persons from the disadvantaged groups, particularly women and people with disabilities, from participating at the highest levels of sport.
Should an individual be faced with exclusions from a particular sporting federation, the Act provides for a dispute resolution process in terms of section 13. Each sport or recreation body must resolve its own disputes arising among its members or governing body. Where the dispute cannot be resolved in terms of section 13(2)(a), a member of the sport or recreation body who feels aggrieved by the sport or recreation body itself, may submit the dispute to the Sports Confederation.
Where there have been, among other things, allegations of discrimination based on gender, race, religion or creed, or violation of individuals’ rights and freedoms, the Sports Confederation may, at any time and of its own accord, undertake an investigation to ascertain their veracity. The Minister may be asked to approach the President to appoint a commission of inquiry or may refer the matter for mediation or issue a directive.
And the Act extends beyond the dispute resolution process to enforcement. It states that if a national federation fails to adhere to a mediator’s decision or a directive issued by the Minister, the Minister may instruct SRSA to stop funding the body and to notify it in writing that it will not be recognised by SRSA. This decision will be published in the Government Gazette.
At the end of this in-depth piece of legislation, we are left with a sense of empowerment. While there is no right entrenched in the Constitution, the Act provides an integrated framework to regulate sport and to ensure that minority groups’ (including women’s) right to equality and freedom from discrimination is enforced.
However, society has not changed its perceptions and prejudices concerning women and their role in sport. In 2013 Lydia Nsekera of Burundi was the first woman to be elected on FIFA's executive committee. At the time FIFA had been in existence for 109 years as the world football governing body. In the same year in South Africa there were only two women, Mato Madlala and Nomsa Mahlangu, who served on the executive committees of the South African Football Association. Dawn Mokhobo was the only woman at Cricket South Africa. And there were no women in the South African Rugby Union.
At ground level, gender based violence raises its ugly head as women athletes, specifically female soccer players were and are being subjected to "corrective rape" based on the perception that they are lesbians. The recent case of Bob Hewitt, the tennis coach who was found guilty of two counts of rape and one count of sexual assault, should serve as a warning to the administrators of sport in South Africa, that despite the legislation in place, nothing addresses the discrimination faced by girls and women in sport.
31 December 2015 marks the deadline to achieve the eight millennium goals that were adopted in 2000 by 189 countries, including South Africa. One of these goals was to achieve full and productive employment and decent work for all, including women and young people. A giant step towards realising this goal was in January 2014 when, for the first time in South Africa, the Fifteen Springbok Women’s Sevens players were awarded national contracts for the 2016 Olympic Games in Brazil by the South African Rugby Union.
A woman’s choice to play sport must be protected, advanced and prioritised in order to change perceptions of women in sport. Allowing women to participate at all levels of sport, educating the public, protecting female athletes and sportswomen – these are just a few steps towards eradicating discrimination in sport. It requires support for victims of discrimination at grassroots level and all the way to representation at executive levels of national sporting federations.
Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com
Comments