SOUTH AFRICAN INSTITUTE FOR DRUG – FREE SPORT AMENDMENT BILL, 2017

 

SOUTH AFRICAN INSTITUTE FOR DRUG FREE SPORT AMENDMENT

BILL, 2017

GENERAL EXPLANATORY NOTES:

[ ] Words in bold type in square brackets indicate omissions from the

existing enactment.

________ Words underline with a solid line indicate insertions in existing

enactments.

BILL

To amend the South African Institute For Drug Free Sport Act 14 of 1997, so as to

insert new definitions; to provide for an inquiry with regard to the removal of a

member of Institute from office and for the resignation of a member; to make

provisions for a resolution of the National Assembly calling for the removal of a

member of Institute or for the dissolution of the Institute; to provide for the

appointment of interim members of the Institute; to provide for the consent in

random testing of learners in schools that participate in sport; and to provide for

matters connected therewith.

BE IT ENACTED by Parliament of the Republic of South Africa, as follows:-

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Amendment of section 1 of Act 14 of 1997

1. Section 1 of the principal Act is hereby amended by the-

(a) by the substitution in the definition for the “national sports

federation” of the following definition:

“National [sports] federation” means [any number of people

involved in overseeing and coordination of playing and

administration of any particular sport in any particular

country] a national governing body of a code of sport in the

Republic with affiliate members in not less than five provinces

recognised by –

(i) Sport and Recreation South Africa as the only authority for

the administration and control of the relative code of sport

including but not limited to the special member, affiliates,

voluntary organisation, or recreational organisation; and

(ii) the relevant international controlling body for that particular

code of sport

(b) by the substitution in the definition for the “SASCOC” of

the following definition:

“ Sports Confederation” [SASCOC] means the Confederation

recognised by the Minister in writing as the national coordinating

macro body for the promotion and development

of high performance sport in the Republic [South African

Sport Confederation and Olympic Committee, a non

governmental sports body consisting of the following

founding constituency components:

(a) The Olympic national federation;

(b) The Commonwealth national federation;

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(c) School sport in so far as it is represented on

SASCOC’s Board in accordance with its article of

association;

(d) Tertiary institutions sport (including Further

Education and Training);

(e) The national federations catering for athletes with

disability;

(f) The All African Games national federations; and

(g) Other national federations]

(c) by the substitution in the paragraph (f) for the definition of

“sports administration body” of the following paragraph:

“(f) Sports Confederation”;

Amendment of section 3 of Act 14 of 1997

2. Section 3 of the principal Act is hereby amended by deletion of the

proviso to subsection (3) paragraphs (a) and (b).

(a) by the insertion before subsection (4) of the following subsections:

“(3A) The Minister, on the advice of the National Assembly, must

appoint the Institute in terms of subsection (1) in the following manner and

ensuring-

(a) participation by the public in a nomination process;

(b) transparency and openness; and

(c) that a shortlist of candidates for appointment is published, taking into

account the objects and principles of this Act.

(3B) The members of the Institute must, when viewed collectively-

(a) be persons who are suited to serve on the Institute by virtue of their

qualifications, expertise and experience in the fields of medical ethics,

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public health, doping control, legal, medical law, finance, business

practice, marketing, and sports administration, education, social and

labour issues;

(b) be persons who are committed to the principle of fair play, ethical and

fairness, and openness and accountability on the part of those holding

public office;

(c) represent a broad cross-section of the population of the Republic;

(d) be persons who are committed to the objects and principles as enunciated

in the transformation charter and sport in general.”

(b) by the substitution in subsection (4) for the following words preceding the

proviso of the following words:

“(4) The Minister shall when it becomes necessary appoint as a member of the

Institute a person [proposed by the interested party] recommended by

national Assembly as contemplated in subsection 3A.”

(c) by insertion after subsection (6) of the following subsection:

“(6A) The Minister –

(a) may remove a member from office on account as contemplated in

subsection (6) after due inquiry and upon the recommendations by the

Institute; or

(b) must remove a member from office after a finding to that effect by a

committee of the National Assembly and the adoption by the National

Assembly of a resolution calling for that member’s removal from office in

terms of section 4A.

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Insertion of section 4A in Act 14 of 1997

3. The following section is hereby inserted after section 4 of the principal Act:

4A. Resolution for removal of member, dissolution of Institute and

appointment of interim Institute

(1) The National Assembly may, after due inquiry and the

adoption of a resolution, recommend the removal of a member of

Institute as contemplated in section 3 , subsection (3A) , (6) and

(6A) from office .

(2) The Minister —

(a) may suspend a member of Institute from office in writing at

any time after the commencement of the proceedings of the

National Assembly for the removal of that member;

(b) must act in accordance with a recommendation of the National

Assembly as contemplated in subsection (1) within 30 days after

receiving such a notification; and

(c) must dissolve Institute if the resolution of the National

Assembly recommends the removal of all the members of Institute.

(3) (a) Upon the dissolution of Institute as contemplated in

subsection (2)(c), the Minister must appoint an interim Institute

consisting of the persons referred to in section 3 (1).

(b) The interim Institute must be appointed by the Minister within

10 days after receiving such recommendation from the National

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Assembly for a period not exceeding six months after the

dissolution of Institute.

(4) The Minister, on the recommendation of the National

Assembly, must designate one of the members of the interim

Institute as the chairperson of the Institute.

(5) A quorum for any meeting of the interim Institute is

five plus one members.’’

Section 10 of the principal Act is hereby amended-

4. by the substitution in subsection (2) of the word “SASCOC” for

the following word:

“(2) The Institute shall operate independently, but may co-operate with

[SASCOC] Sports Confederation and SRSA from time to time as the need

arises in order to achieve the objects of the Institute as contemplated in

this Act.”

Section 11 of the principal Act is hereby amended-

5. by addition in subsection (2), after paragraph (n) for the following

paragraph:

“(o). The Institute may on annual basis publish the SAIDS Anti- Doping

Rules in the Government Gazette after public consultation with all

stakeholders”

6. by the substitution in subsection (3), paragraph (a) of the word

“SASCOC” for the following word:

“(a) address the issue with [SASCOC] Sports Confederation or any

other relevant sports body and organisation as he or she deems fit;”

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Insertion of section 11D in Act 14 of 1997

7. The following section is hereby inserted in the principal Act after

section 11C:

11D Testing of the learners participating in sports

(1) The Institute may request the school governing body , parents or

legal guardian consent for a learner participating in sports in writing to

arrange for-

(a) a learner to undergo doping control in order to determine whether

he or she has been using prohibited substance or methods;

(b) the laboratory analysis of the sample for that purpose;

(c) the Institute to be given information arising out of the making of

such request, including information relating to :

(i) An evasion , or an attempt evasion, by a person of a request to

provide a sample;

(ii) the aiding, abetting, counseling, or procuring of such an evasion, or

attempted evasion, by the learner;

(iii) any failure by the learner upon receipt of consent by parent or legal

guardian to provide such a sample;

(iv) any interference with the provision , collection or testing of the

sample; or

(v) the results of testing.

(2) The Institute in prescribed manner provide the procedure and

sample collection kit to be used for collection of sample from the learners

in preparation for sport event.

(3) The learner with the consent of the parent or legal guardian must

submit himself or herself for testing in order to detect the usage of

prohibited substance published as an Scheduled to this Act.

(4) The parent or legal guardian must consent prior to the testing of

prohibited substance for learners who are under the age of 18 years.

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(6) The school or school governing body must upon receipt of the

consent allow the Institute to conduct testing in terms of this Act.

(7) The Institute must in the prescribed manner provide for the

procedure guidelines for entering the school and testing of prohibited

substance to the learners.

(8) The Minister and Minister of Basic Education after consultation

with the Institute publish the procedure guidelines in the government

gazette within 30 days after the promulgation of this Act.

(9) For the purpose of this section, the parents for learner under 18

years old must sign the pre registration form for testing consent as a

prerequisite for participation in sport.”

11E Testing at recreational events and fitness industry

(1) The Institute may request any participant at the recreational event

or in the fitness industry to submit for doping control in terms of section

11C.

(2) For the purpose of this section “participants” means any person

who participates in the recreation activity or registered as a member in the

fitness industry.”

11F Inspection and powers of entry and inspection

(1) A person appointed in writing as an inspector by the Institute may

enter a fitness industry venue, or other business premises that provide

sports supplements at any reasonable time during the day to conduct an

inspection and make such inquiries as may be necessary to ensure that

prohibited substances are not distributed to any athlete or sports person in

terms of this Act.

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(2) An inspector may be accompanied during an inspection by a police

official and any other person reasonably required assisting in conducting

the inspection.

(3) The inspector or police official may-

(a) require a person who appears to be in charge of the fitness

venue or business premises to produce supplements certificates,

records, book or other document, including documentation in

electronic format relating to supplements distribution;

(b) examine any document referred to in paragraph (a) and

where necessary make a copy of any such document; and

(c) direct any person who appears to be in control of such

premises to take reasonable steps to ensure compliance with the

Act.

(4) When appointing an inspector under subsection (1), the

Institute must ensure that –

(a) a person appointed has sufficient qualifications and

experience in the field of anti doping;

(b) at least one of the appointed persons is registered with the

Health Profession Council of South Africa;

(c) a person appointed has not in any time been convicted of

any criminal offence involving dishonesty and substance abuse;

and

(d) a person appointed is independent of , and has no direct or

indirect financial or other material interest in –

(i) fitness industry;

(ii) pharmaceutical owner; and

(iii) any other person who is directly or indirectly linked to the

persons referred to in subparagraph (i) and (ii).

(5) The Institute must issue an inspector appointed in terms of

subsection (1) with a certificate of appointment which the

inspector must produce if so requested during an inspection.

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(6) A person present at an inspection must cooperate with and

furnish such assistance as the inspector or police official may

require in the exercise of his or her power under this Act.”

Insertion of section 16A in Act 14 of 1997

8. The following section is hereby inserted in the principal Act after

section 16:

“16A Prohibition

(1) No person may directly or indirectly distribute prohibited

substances as prescribed from time to time by WADA.

(2) No person may for commercial purposes-

(a) obtain or possess a prohibited substance with the intention to sell

or use; or

(b) directly or indirectly sell, dispose of or promote or advertise such

substance in the media, newspaper, or electronic media.

16B Prohibition notices

(1) Any person found to be guilty in terms of this Act is prohibited

from participating in sport or any activities related to sport or recreation

for a period determined by the adjudication authority.

(2) If such a person is a registered medical practitioner with the Health

Professional Council of South Africa, his or her license may be revoked

by the Council upon due processes.”

Section 17 of the principal Act is hereby amended-

9. by the deletion in subsection (2), paragraph (a) of the word

“SASCOC”:

“(2) (a) The Minister shall on the recommendation of the Institute

[SASCOC] appoint at least three members from the persons referred to in

subsection (1) (b) to constitute an appeal tribunal to hear and decide upon

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appeals against decision made in terms of Article 13 of the Code where

appropriate.

Section 17A of the principal Act is hereby amended-

10. by the substitution in subsection (1), (2) and paragraph (c) of the

word “SASCOC”:

“(1) SRSA, on written recommendations of [SASCOC] Sports

Confederation, may cause an investigation to be conducted as it

deems fit to ascertain whether all national sports federations have

complied with the provisions contained in this Act.

(2) SRSA must, after consultation with the Institute and [SASCOC]

Sports Confederation, identify any non – compliant national sport

federation whereafter it may, amongst others-“

(c) recommend that [SASCOC] SRSA after consultation with the Sports

Confederation refuse to award national colours to the member of such

federation.”

11. by addition of the following subsection after subsection (3):

(4) A person or juristic person is guilty of an offence if that person or

juristic person –

(a) provides a prohibited substances to any person participating in

sport or recreational activity.

(b) is in possession of prohibited substance;

(c) is trafficking in any prohibited substance;

(d) administer or attempted to administer prohibited substance to any

athlete, or assist, encourage, aiding, abetting, covering up or any type of

complicity involving an anti – doping rule; or

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(e) fails to comply with the provisions of section 11, 11A, 11B, 11C,

11D, 11E, and 11F;

(5) A person convicted of an offence in terms of this Act, is liable-

(a) in case of contravention of subsection (4), (a),(b),(c), (d),(e) to a

fine or to imprisonment for a period not exceeding 15 years, or to both a

fine and such imprisonment; or

(b) in any other case, to a fine or imprisonment for a period not

exceeding five years, or both a fine and such imprisonment.

Insertion of section 17B, 17C, 17D and 17E in Act 14 of 1997

12. The following section is hereby inserted in the principal Act after

section 17A:

“17B. Performance management system

(1) The Minister must, establish a performance management system to

monitor and evaluate the performance of the chairperson and other members of

Institute.

(2) The performance management system must-

(a) set appropriate key performance indicators as a yardstick for

measuring the performance as contemplated in subsection (1);

(b) set measurable performance targets; and

(c) set a procedure to measure and review the said performance at

least once a year.

(3) As soon as is practicable after the appointment of the chairperson or

other members of Institute, a performance agreement must be concluded between

the Minister, the chairperson or other members of Institute.

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(4) The evaluation of the performance of the chairperson or other

members of the Institute must be conducted by a panel constituted by the Minister

in writing, for that purpose.

(5) The panel contemplated in subsection (4) must, after an evaluation of

the performance of the chairperson or other members of the Institute, submit a

report to the National Assembly for its consideration.”

17C. Annual report

(1) The Institute must-

(a) supply the Minister with such information and particulars as he or

she may in writing require in connection with the activities of

Institute;

(b) as soon as may be reasonable practically after the end of each

financial year, but in any event within three months of the end of

the financial year, supply the Minister with a copy of –

(i) the annual report of the Institute;

(i) the financial statements of the Institute referred to in

section 40 (1) (e) of the Public Finance Management Act,

1999 (Act No. 1 of 1999 as amended); and

(ii) the Auditor - General‘s report relative to the statements

referred to in par. (ii).

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(2) The Minister must table a copy of the annual report referred in

subsection (1)(b)(i) in Parliament within 30 days after it has been received by him

or her if Parliament is then sitting and , if Parliament is not sitting, within 14 days

after the next ensuring sitting of Parliament.

17D. Auditing

(1) In addition to the annual financial statements to be prepared in terms of

the Public Finance Management Act, 1999 (Act No. 1 of 1999 as amended)

referred to in section 17B (1)(b)(ii), the Institute must cause its books and

accounts to be audited annually by a person registered as an accountant and

auditor under the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of

1991 as amended) and appointed as auditor of the Institute in writing.

(2) The Institute must produce and lay before the auditor -

(a) all books and accounts of Institute;

(b) all vouchers in support of the said books and accounts; and

(c) all other books and documents relating thereto which are in its

possession or under its control.

(3) For the purposes of the audit, the auditor may –

(a) hear and receive evidence under oath; and

(b) by written notice require any person to appear before him or her in

person at a time and place stated in such notice so as to give

information or produce any books or documents necessary for the

audit.

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(4) Any person appearing in terms of such a notice must be paid such

witness fees and allowances as he or she would have been entitled to if such a

person appeared in a magistrate‘s court as a witness.

(5) The auditor must –

(a) disallow any payment as contemplated in subsection (4) that

has been made without proper authority according to the law and

report the disallowance to the Institute in writing;

(b) lay a charge of misconduct against a person who made or

authorized the payment referred to in paragraph (a), in respect of

any unauthorized payment or portion thereof that is not condoned

by the Institute;

(c) lay a charge against the person responsible for the unauthorized

payment -

(i) as much of any amount of any deficiency or loss arising

from negligent or misconduct of that person as is not

condoned by the Institute;

(ii) as much of any amount which ought to have been but was

not brought into account by that person as is not condoned

by the Institute: Provided that no amount must be condoned

where such deficiency or loss is the result of theft or fraud

by that person, and certify in every case that the amount so

charged is correct.

(6) Any amount so charged and certified by the auditor must be paid by

the person against whom it has been charged to the Institute within 14 days after

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the charge was certified by the auditor, failing which it may be recovered from

that person by Institute as a debt

(7) It shall be the duty of the auditor, in addition to his or her ordinary

duties as an auditor, to certify on an annual basis whether or not, in his or her

opinion-

(a) the accounts of Institute are in order;

(b) such accounts present a true and correct view of the

financial position of Institute and its transactions;

(c) due provision has been made for the redemption and

repayment of loans raised by the Institute;

(d) the value of the assets of the Institute has been

correctly stated; and

(e) all of his or her requirements and recommendations

as auditor have been complied with and carried out

by the Institute.

(8) All expenses of or incidental to any audit must be borne by the

Institute.

17E Delegation and assignment by the Institute

(1) Subject to subsection (2), (3), (4) and (5), the Institute may, by resolution,

delegate any power and assign any duty conferred or imposed on it in terms of this Act

to-

(a) its chairperson;

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(b) the chief executive officer;

(c) any member of the Institute;

(d) a person appointed as inspector in terms of section 11E; or

(e) any other person appointed by it.

(2) The Institute is not divested of any power it delegates or relieved of any

duty it assign.

(3) Such delegation or assignment-

(a) may be made subject to conditions determined by the Institute; and

(b) must be communicated to the delegate or assignee in writing.

(4) The written communication in terms of subsection (3) (b) must contain

full particulars of the matters being delegated or assigned and must specify the

conditions, if any, referred to in subsection (3) (a).

(5) The Institute may, by resolution-

(a) amend or revoke a delegation or assignment made in terms of subsection

(1); or

(b) withdraw any decision, other than a decision which confers a right or

entitlement on any third party, made by the delegate or assignee with regard to a

delegated or assigned matter, and decide the matter itself.

(6) (a) The chief executive officer may delegate any power or duty conferred

or imposed on him or her to any staff member of the Institute, subject to any conditions

imposed by the Institute, and subsections (2) to (5) apply with necessary changes to such

delegation.

(b) A delegation under paragraph (a) does not prevent the chief

executive officer from exercising the power or performing the duty in question himself or

herself.

Short title

18. This Act is called the South African Institute for Drug – Free Sport Act of 1997.

  
 
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