THE SOUTH AFRICAN INSTITUTE FOR DRUG-FREE SPORT AMENDMENT ACT, NO. 33 OF 2024 – THE HIDDEN LEGAL SUBSTANCE
By Lyrique Du Plessis[1] and Eben Koen[2]
The World Anti-Doping Agency (WADA) is the international governing body established by the International Olympic Committee (IOC) to facilitate a worldwide collaborative movement to eradicate doping from sport. The WADA Code (Code), likewise, acts as the standardised codification of all the obligations of the WADA members (also known as “National Anti-Doping Organisations” (NADOs)).
One of the obligations imposed by the Code that is relevant in this context, is that the NADOs and their countries must ensure the incorporation of the provisions of the Code into their policies, statutes, rules, and regulations (Art. 20.5.2 read with Art. 22.2 of the Code). The obligations imposed by the Code stretch to countries through their signature of the Copenhagen Declaration, and the ratification or accession to the UNESCO Convention.
Non-compliance with these obligations is treated harshly, as South Africa’s NADO, the South African Institute for Drug-Free Sport (SAIDS) has experienced recently. In September 2023, WADA alleged that South Africa’s NADO, SAIDS, was non-compliant with the Code, as the South African Institute for Drug-Free Sport Act, No. 14 of 1997 (Act) was not in line with the Code.
The consequences of non-compliance would have included a prohibition against South Africa’s sporting teams participating under the South African flag, as well as the singing of the South African national anthem[3], all of which would have affected the South African national rugby and cricket teams, who were competing in their respective world cups at the time.
This was avoided by SAIDS disputing the WADA finding[4], resulting in WADA being obligated to file a formal notice of dispute with the Court of Arbitration for Sport, which stayed those consequences until CAS rendered a decision in the dispute.
Interestingly, despite many reports and publications referring to this process as an “appeal”, it is technically not. The dispute is to be resolved by the CAS Ordinary Arbitration Division[5] instead of the CAS Appeal Arbitration Division.
On 1 June 2024, the South African Institute for Drug-Free Sport Amendment Act, No. 33 of 2024 was signed into law by the President of South Africa (Amendment Act), to ensure compliance with the Code.
The Amendment Act comprises just over three pages, and primarily addresses amendments to:
- SAIDS’ establishment;
- SAIDS’ powers and duties;
- appeals to the SAIDS Appeals Board;
- results management; and
- the independence of SAIDS (Section 10(2) of the Act).
The main thrust of these amendments is procedural and appears to be nothing more than a box-ticking exercise. However, the latter amendment – although the most inconspicuous – hides substantive legal significance.
The first edition of Section 10(2) of the Act read:
“The Institute shall operate in close conjunction with SISA”[6]
After the 2006 amendment of the Act, Section 10(2) added:
“…but may co-operate with SASCOC and SRSA from time to time as the need arises in order to achieve the objects of the Institute as contemplated in this Act.”[7]
Now, after the Amendment Act, Section 10(2) reads:
“The Institute shall operate independently, but may co-operate with the Sports Confederation and the Department from time to time as the need arises in order to achieve the objects of the Institute as contemplated in this Act.”
This amendment to Section 10(2) coincides with the amendment to Art. 20.5.1 of the Code. Whereas the 2015 Code read that each NADO is obligated “[t]o be independent in their operational decisions and activities”, the 2021 Code introduced a substantial change, augmenting this independence to having to be an independence from government and, particularly, the “government department with responsibility for sport or anti-doping”[8].
NADOs and, by extension, their countries are clearly beholden to WADA, at least insofar as their legislative powers regarding doping in sport are concerned.
But the principles of autonomy, independence, and political neutrality can be traced back to the IOC inception in 1909[9] and have now become entrenched in the Olympic Movement[10], having been codified ever since 1949, when the IOC first made mention of their importance in the (then) most recent edition of the Olympic Charter[11].
It comes as no surprise, then, that WADA – the core funding of which is sourced from the Olympic Movement[12] – likewise entrenches, in its Code, this principle and obligation of autonomy (such as in Art. 20.5.1 of the Code).
In this instance, there was significant irony in the fact that WADA expects NADOs to be independent and autonomous from their host states, and politically neutral in their operations - yet, to comply with the Code, SAIDS had to rely on the intervention of the South African Department of Sports, Arts, and Culture to fast-track the Amendment Act[13].
South Africa appears to have evaded the consequences for now, but it is a worrying uncertainty whether another WADA member will be so fortunate again, considering the timelines WADA imposes on its NADOs to ensure compliance, as well as the historical difficulties African sporting federations have had regarding government intervention in sports[14].
[1] LL.B (University of the Western Cape) LL.M in Global Sports Law (Instituto Superior de Derecho y Economia). Attorney and Partner at BDP Attorneys Incorporated, Cape Town, South Africa.
[2] LL.B, LL.M in Intellectual Property Law (University of Stellenbosch). Attorney and Associate at BDP Attorneys Incorporated, Cape Town, South Africa.
[3] These are imposed in terms of Art. 10 of the WADA International Standard for Code Compliance by Signatories.
[4] In terms of Art. 9.3.1 of the International Standard for Code Compliance by Signatories (ISCCS)
[5] Art. 9.4.1 ISCCS.
[6] SISA being the Sports Information and Science Agency.
[7] SASCOC being the South African Sports Confederation and Olympic Committee; and SRSA being the
Department of Sport and Recreation South Africa.
[8] 2021 Code, Redline amendment document (https://www.wada-ama.org/en/resources/world-anti-doping-code-and-international-standards/world-anti-doping-code)
[9] Pierre de Coubertin, Une campagne de vingt-et-un ans (1887–1908) (Paris: Éducation physique, 1909), p. 152.
[10] https://olympics.com/ioc/news/declaration-by-the-ioc-against-the-politicisation-of-sport
[11] Chappelet, J.-L. 2016. “Autonomy and Governance: Necessary Bedfellows in the Fight against Corruption in Sport.” In Global Corruption Report: Sport, edited by G. Sweeney, 16–29, Abington: Transparency International/Routledge.
[12] https://www.wada-ama.org/en/who-we-are/funding#:~:text=The%20Olympic%20Movement%20matches%20Governments,or%20partnerships%20with%20other%20organizations.
[13] Cf. https://www.youtube.com/watch?v=vU8cr3PW6pY
[14] du Plessis, L., Koen, E. Football administration in post-colonial Africa: transposing political neutrality into the regulation and governance of sport. Int Sports Law J (2024). https://doi.org/10.1007/s40318-024-00272-x, p3.
