South Africa: Is Rugby Legally Prepared for its Concussion Reckoning?
By Razia Mahomed, School of Law, UNISA, Pretoria, South Africa
Introduction
The ongoing UK concussion lawsuit under the Group Litigation Order (GLO) highlights growing concerns around player safety in contact sports. What makes this lawsuit significant is its scale and the class action format.
There are currently 1,100 former rugby players involved in the GLO, seeking damages from World Rugby, the Rugby Football Union, and the Welsh Rugby Union. These former players allege that the sport’s governing bodies were negligent and failed to take reasonable action to protect them from serious brain injuries resulting from cumulative concussive and sub-concussive impacts.
They are seeking damages for conditions, such as early-onset dementia, chronic traumatic encephalopathy (CTE), a neurodegenerative disease linked to repeated trauma to the head, epilepsy, Parkinson’s and motor neuron disease.
Whilst South Africa is not directly involved, as no South African players have publicly joined the UK-led GLO and the South African Rugy Union (SARU) has not been named in this lawsuit, this could nonetheless set a global precedent – encouraging similar claims outside the UK, including in South Africa.
What are South Africa’s current protocols for rugby concussions?
South Africa implements its concussion management through the BokSmart programme, which aligns with international best practices for identifying, managing, and clearing players to return to the game after sustaining a concussion. This evidence-based system includes mandatory training for coaches and referees, who must renew their accreditation every two years. It also provides public resources, such as concussion awareness guides, particularly for players and guardians of minors; on-field assessment tools; return-to-play guidelines; and centralised concussion registers.
To date, neither SARU, nor any affiliated governing bodies, have faced individual or class-action litigation over concussion-related issues in rugby. Whilst South Africa is yet to hear a direct concussion case in this context, relevant legal precedents – such as Hattingh v Roux NO (2011, WCHC); C.O. v Head (2012, WCHC); and Foster v MEC of Education (2023, SCA Pretoria) – illustrate how the South African legal system approaches sports-related injury claims.
Whilst South Africa currently adheres to globally informed concussion protocols through BokSmart, the evolving legal landscape abroad signals the need for critical legal and procedural introspection.
What could the implications of the UK GLO mean for South Africa?
These potential rulings could have significant implications for the domestic legal framework in sports injury litigation. The outcome of the UK GLO may influence South African governance across five key legal dimensions:
1. Expanded duty of care
A broader responsibility could be placed on SARU and other governing bodies. Their responsibility will not be limited to in-game safety but would encompass long-term health management, risk communication and investment in scientific research. The Courts may expect SARU to act proactively and monitor athletes’ post-retirement and maintain ongoing medical oversight, especially for the known risks like CTE. This could impose positive obligations on sport bodies, moving beyond passive roles.
2. Material contribution model
This could potentially ease the burden of proving exact causation in complex injury cases where multiple concussions are involved over time. If the Courts adopt a “material contribution” test (as in Fairchild v Glenhaven Funeral Services Ltd [2002] UK HL 22) in the UK), athletes could claim damages based on cumulative impact of negligent exposures, even if they cannot isolate which hit caused the damage. This could open the door for class actions where a pattern of systemic negligence is evident.
3. Limitation period reform
This challenges the applicability of prescription periods stipulated in the Prescription Act 68 of 1969. The Courts may interpret the prescription period as coming into effect only when the claimant becomes aware of the injury’s neurological origin, which could be years after retirement.
4. Disclosure demands
A heightened expectation for transparency in internal records and compliance audits in relation to safety initiatives from BokSmart. The Courts may demand access to injury tracking logs, training protocols, and medical clearance documentation. Inadequate record keeping may be treated as presumptive evidence of negligence.
5. Volenti and Contributory negligence
The defence of volenti non fit iniuria (voluntary assumption of risk) may not shield defendants entirely. The Courts may recognise that players assumed the inherent risk involved in a contact sport but not the risks concealed or poorly mitigated by governing bodies. This will align with the UK precedent (Vowles v Evans [2003]1 WLR 1607) emphasising informed consent, not blanket assumption of risk.
Contributory negligence may still reduce damages, especially if players ignored medical advice or failed to report symptoms.
Final Thoughts
With over a thousand players challenging rugby’s top institutions in the UK, the legal and ethical standards governing player safety are under unprecedented scrutiny.
For South Africa, this global shift underscores the urgent need for SARU to fortify its concussion protocols; adopt advanced technologies; and anticipate a future in which accountability will be legally tested.
Not only on the field of play, but also in the courtroom!
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