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Christo Smith Law Blog

How strong must tea be?

Notes on sport quotas, racism and milk

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In the aftermath of the Springbok rugby team’s devastating repeated losses against Australia, Argentina and this morning against the All Blacks, the quota policy of the SA Government is once again in the spotlight. The Boks are set to end third and perhaps even a humiliating fourth in the Rugby Championship this year!  It seems that the Bok downward spiral began getting momentum more or less after the government intensified its quota system onslaught. This was aggravated by the recent announcement of the Minister of Sport, Fikile Mbalula that the government will not support the hosting of international events unless the quotas set by the government for numbers of players of colour are met. Various arguments arise as to the role the quota policy is playing in performance standards and results.

The one view is that government policy is jeopardising the strength of teams and is causing the decline of rugby in general. Teams are, according to them, not elected on merit and therefore not at full strength. Government policy, in the dock, so to speak, is accused of alienating spectators and players alike. Even good black players realise that the former glory of the Springbok is in the past and that they need to seek opportunities abroad or suffer the consequences of being part of a losers culture.

On the other hand, supporters of the quota system argue that players have always sought more lucrative opportunities abroad due to the declining value of the Rand and various other factors that are unrelated to the quota system. Spectators attendance figures have been on a steady decline due to the comfort television has brought. In addition, the advent of professionalism in rugby has blurred the competitive spirit. Players are relocating between provinces and even countries at such a pace that the teams have to a large extent lost their geographical identity. Spectators seem less interested in attending a game that offers no real provincial or national competitiveness.

The consequences of the quota system, being positive or negative, will be debated in perpetuity, whether it fails or not. Political leaders rarely acknowledge their failed policies. A good example is the apparent failure of Communism. An even better example closer to home is the economic collapse of Zimbabwe. However apparent the degeneration of society and the economy may be, leaders just don’t admit the failure of their policies.  That’s in the nature of politics. Its always something else. Everything but that which is real and apparent.

The strength of their tea is measured by its appearance, not its taste.

It therefore serves little purpose to argue whether the tea is strong or weak.  There is just too much room to manoeuver on both sides of the argument.

The legal argument however presents less of a problem in this sense. I will therefore focus on the recipe of the tea, the authenticity of the production process and the standards by which proper tea is measured.

What is a quota system? More specifically, what is the government’s rugby quota system exactly?  In 2012 the Minister announced that the government would drop its controversial sports quotas in favour of a new system where a performance scorecard would be used to gauge how far sports bodies had progressed in terms of transformation. In essence, it meant the quota system in a disguised form.

The quota system and transformation as its goal, must be judicially and more specifically, constitutionally, definable and defensible. Firstly, one must understand what is meant by “transformation” and the “quota system”.

The quota system is best defined by quoting the Minister : “Fifty percent of Springboks have to be players of colour by 2019”. In addition, specific quotas for various racial groups have been set. The Minister’s argument against merit is the following :

“You can’t use merit because merit assumes that all people have equal opportunities”. (Colour barrier: Sport and the quota system in South Africa  http://indianexpress.com/article/sports/sport-others/colour-barrier-sport-the-quota-system-in-south-africa-3019466/)

Is that what merit assumes? How does this statement stand up to judicial scrutiny? The question requires that one firstly examine the de facto situation globally. In England for instance, did each and every child in England have the same opportunities that David Beckham had? Obviously not. Some are poor and some are middle class and some are rich. Some can afford Eaton and Cambridge and others must make do with Everyman’s School. That’s pretty much the situation worldwide. In every country some have less opportunities than others. However, when national teams are elected, this “inequality” does not come into play at all. Merit means “the best”.

If the Minister is correct and insists that teams be elected according to who had better opportunities, who would in legal sense decide which opportunity was better than another? What is the “opportunity yardstick” going to be? Are poor white children who did not have the advantages of expensive private schooling also included? The problem of dealing   with the Minister’s assumption in judicial sense, is threefold :

  • It firstly assumes that merit and opportunity are necessarily causually related. Whilst it cannot be denied that opportunities are advantageous in sport development of individuals, there are many examples of men and women in all walks of life who reached the highest echelons and who had very little “opportunities”. Gary Player, Cassius Clay, Barack Obama, Charlize Theron, Tiger Woods, the Williams tennis sisters. The list goes on and on. In as much as opportunity is not an absolute requirement for sports achievement, the converse is also true : it does not guarantee success. The flaws of this assumption are apparent and need no further discussion.
  • Secondly, the Minister’s argument assumes that “opportunity” can be measured. The worldwide status quo referred to above, dismisses this assumption out of hand. The poor will always be with us, to quote the Lord himself. Has been and always will be. If it be accepted that differentiation of opportunity is universal and with us in perpetuity, the quota system cannot be linked to “transformation” because in that sense transformation will never be accomplished. Is this what the Minister is saying? If that is the case, further serious questions arise : what about Bafana Bafana? Why are they not forced to attract more white players? Will players of colour be protected ad infinitum – in other words, will our national team have to  adhere to a specific racial composition notwithstanding merit ad infinitum and if not, will it take another 20 years to “normalise” sport? This leads to the third flaw in the Minister’s argument.
  • The argument lacks honesty in legal sense. Because “opportunity” cannot be measured or defined, there must be something else the Minister has in mind. Can it be race itself? Obviously there are racial disadvantages of the past. That must be dealt with. The question is however whether the disadvantages of the past are dealt with by a forced outcome, so to speak. The quota system forces selection. Once the quotas have been met, it is assumed the Minister will be satisfied that transformation has been achieved. But will it? Once quotas have been met, will it mean that blacks play good rugby, or at least as good as whites? If it means less, the quotas may have been met, but the game has not been transformed.

The purpose of selection of a sports team is to select the best. The aim is to win. Although the best don’t guarantee a win, you have the best chance of winning if the best are on the field. The Minister’s quota system forces sports bodies that are confronted with insufficient black talent, to forfeit ability in favour of the set quota : winning becomes more and more of a gamble and less of an aim. The main goal is to qualify to “stay in the game”, not to win. Money dictates that administrators must stay in the game.

How does the quota system as formulated by the government stand the test of the Constitution? Section 9 of the Constitution is relevant:

  1. Equality.—   (1)  Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2)  Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3)  The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4)  No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5)  Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

How something can be unfair unless it is established that it is fair, is a debate for another day. One thing is sure : in terms of the Constitution discrimination can be fair.

Subsection 2 is relevant to the debate on the constitutionality of quotas. Firstly, it is abundantly clear that all persons are entitled to be treated fairly when it comes to selection of sports teams because this is covered by “the full and equal enjoyment of all rights and freedoms” of which fairness during selection is such a right.

Secondly, legislative action and other measures may be taken to “promote the achievement of equality” of persons previously disadvantaged. The principle in subsection 2 relates to the “achievement of equality”. How does a quota system promote the achievement of equality? Does a quota system, which enforces numerical racial selection according to a formula, promote equality? Say for instance, there are only 4 black rugby players that are equal in quality for selection to the national squad opposed to 15 more quality white players, will the forced selection of the 4 black players “promote the achievement of equality”? Will these players get better and improve their skills merely for being elected? Sports scientists worldwide agree that election in itself does not improve performance. It is universally agreed that training, practise, fitness and the like, are needed to improve skills.

But maybe the proponents of the quota system would argue that whilst the system itself will not achieve equality, it may serve as a form of blackmail to encourage sports administrators to get their house in order on ground level; to improve training programs and to actively attract players of colour to the game at grass root level. One can safely assume that this is the government’s modus operandi. But will it necessarily attract more players of colour to the game?  What if players of colour are in fact not really eager to play rugby in great numbers? What if black culture essentially prefers football? The quota system does not cater for these possibilities. Would it not be an execution of their Constitutional duty if the government adopts measures in the form of training programs and provides funding at grass roots level rather than forcing team compositions superficially from the top?

Another worrying aspect is the fact that to date it has not been established to what extent, if any, players of colour are being prevented from developing and advancing through the ranks. There is no scientific proof to date that sports bodies, in particular rugby, on school, provincial and national level, have not put systems and training mechanisms in place to afford players of colour every possible opportunity to advance.

The minister has, by targeting the national team with a quota system, not addressed any of the issues that underpin the real achievement of equality. In stead of addressing the  basic issues of training, growing in the game, so to speak, the quota system is forced upon sports bodies in order to create a “visual” equality without caring for “real” equality. For obvious reasons, this is especially negative for those players of colour who are elected to “fill the quota”. They and their fellow players know what their real status is. The stigma is degrading and unconstitutional in itself.

Section 36 of the Constitution contains provisions governing the extent to which rights may be limited. It states in subsection 1 that :

“The rights in the Bill of Rights may be limited only in terms of a law of general application…”

The quota system is not contained in any law. It is government policy. The limitation is furthermore linked to that which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. The quota system results not only in the forced  advancement of some players but also in the forced rejection of others. It is submitted that after 20 years of our democracy, this open society cannot justifiably reject certain race groups from selection based merely on their skin colour in terms of a superficial quota system.

The use of quotas in the advancement of equality was discussed by the Supreme Court of Appeal in the matter of Solidarity obo Barnard v South African Police Service (Vereniging van Regslui vir Afrikaans as amicus curiae) [2014] 1 All SA 319 (SCA). The Court held that section 9 of the Constitution prohibits unfair discrimination. The government body enforcing discrimination had the onus of proving that the discrimination is fair. It can safely be assumed that the Minister of sport will bear the onus in any legal proceedings relating to the constitutionality of its rugby quota system, of proving that the discrimination effected by the quota system is fair. The SCA held that :

“…numerical targets and representivity are not absolute criteria for appointment. Adopting that attitude would turn numerical targets into quotas which are prohibited in terms of the Employment Equity Act.”

The same principle would apply in election of sports teams.  Although the decision of the SCA was overturned by the Constitutional Court, the decision was based on a different factual finding and did not involve a deviation of the stated principle.

In the end it’s a question of politics, not sport. The minister and the government take their tea with less milk. They like its appearance. What the origin of the tea is, how it was cultivated, what its real qualities are; these are matters of less concern.

 

 

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How strong must tea be?