South Africa’s constitutional democracy ushered in an era of hope and change for all South Africans, particularly those South Africans who were oppressed by discriminatory laws, through the brutality of colonialism and apartheid.

This oppression and discrimination cut across all sections of South African society; political, social, economic, and across the sporting front. Our Constitution, as the supreme law of the land, seeks to break away from this past, by adopting a new era for South Africans, one that is characterised by the fundamental values of human dignity, freedom, and equality In order to achieve the constitutionally entrenched right to equality, our law recognises that it is necessary to address the injustices of the past, by adopting measures that seek to promote and advance persons who were affected by the aforementioned, unjust legislation of the past. It is however imperative, that the measures taken must be rational, and linked to a legitimate, governmental objective.

In this regard, various transformation laws, such as the Employment Equity Act, and the Promotion of Equality and Prevention of Unfair Discrimination Act have been passed. Transformation in South African sport is a controversial topic in South Africa, but it ought not to be.

The often, emotional debates around transformation in South African sport have mainly been centred on the two main sporting codes of rugby and cricket, which are steeped in South African sporting culture. They have traditionally being instilled into the lives of young people from an early age, from the corridors of the country’s best schools, to the lush sports fields of private sports clubs. The prestige and honour is breath-taking.

Sponsorship is provided from the countries’ largest, well-established corporate entities. However, access to playing these sports has traditionally been skewed in favour of previously advantaged, white individuals. The vast majority, include the generic composition of black, coloured and Indian historically disadvantaged individuals were excluded. It is not to say that these persons did not, or could not, play these sports, but they were confined to playing these sports in inferior conditions, with poor facilities. Since 1994 change has been slow. This was due to both the lack of black representation in the aforementioned sports, particularly from the provincial ranks upwards, as well as due to a lack of rigorous governmental and union/franchise effort, particularly at grass roots level.

The ongoing saga was firmly placed on to the national, and to some extent, the international agenda, in April 2016, when the government announced its decision to withdraw its support for the rugby, cricket, netball and athletics federations bidding to host international events. Predictably, the reaction was emotional and divided. Some decried the announcement by the Minister of Sport and Recreation, by suggesting that the government should not interfere with the federations, while others felt that the announcement was long overdue. The announcement was made after the publication of the 2014/15 report of the Eminent Persons Group who conceded that they failed to meet their own transformation targets.

It can be argued that being a federation that subscribes to South Africa’s constitutional, democratic values, means that these targets should not have to be imposed upon on them, but rather, they should do so naturally and voluntarily. It is worth noting that in terms of the EPG report, SAFA were reprimanded for failing to roll-out soccer in former Model C and private schools, as well as in suburban areas, where white South African talent may be found.

The Constitution of the Republic of South Africa, Act 108 of 1996, section 9(2), reads as follows: “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.”

In Minister of Finance & another v Van Heerden 2004 (6) SA 121 (CC) the Constitutional Court: “It seems to me that to determine whether a measure falls within s 9(2) the enquiry is threefold. The first yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality.”

However, it is imperative that the measures taken are rational, and linked to a legitimate governmental objective.

In December 2016, the Supreme Court of Appeal in Minister of Justice v The SA Restructuring & Insolvency Practitioners Association (“SARIPA”) (693/15) [2016] ZASCA 196, also endorsed the Van Heerden judgment, and held that: “Due to our country’s history and the constitutional obligation, post democracy, to redress the past injustices, measures directed at affirmative action may in some instances embody preferential treatment and numerical goals, but cannot amount to quotas. In advancing employment equity and transformation, flexibility and inclusiveness is required. Remedial measures must operate in a progressive manner assisting those who, in the past, were deprived of the opportunity to access the relevant requirements necessary to enter the insolvency profession, but such remedial measures must not trump the rights of previously advantaged insolvency practitioners. Rigidity in the application of the policy or which has the effect of establishing a barrier to the future advancement of such previously advantaged insolvency practitioners, is frowned upon and runs contrary to s 9(2) of the Constitution.”

Transformation, including in South African sport, is supported by the Constitution, and a body of judicial weight. As long as the measures taken are pursuant to a well-thought-out plan, that is rational, and linked to a legitimate governmental objective, the measures taken would survive judicial scrutiny.

It is imperative that our sporting teams reflect the demographics of our country. To this end, access to playing these sports must be fair, and transparent. Greater funding ought to be provided at the appropriate levels, both by the public and private sector, if we are to truly achieve our aim to be a winning nation.

There have been many success stories over the years, who have come though as historically disadvantaged players, and not as part of a quota system, but rather, strictly, on merit. Players such as Tendai Mtawarira, Siya Kolisi, Bryan Habana, Hashim Amla, Vernon Philander, Kagiso Rabada, Temba Bavuma, Keshav Maharaj etc have all donned their national jerseys with pride and have performed exemplary. Given the background that most HDIs come from, the search needs to continue to find future generations of stars that all South Africans can identify with.

One of the arguments raised by some who don’t appear to support transformation is the soccer argument, that is, “what about transformation in South African soccer? There are no white South Africans in the national team”. This argument is flawed, in that unlike with historically disadvantaged individuals in rugby and cricket, white South Africans were never excluded from the professional ranks in South African football. There were many white South Africans who played in the apartheid years for professional clubs in South Africa, including those clubs whose home grounds were in black townships. Players such as Les Grobler, Mark and Neil Tovey, Noel Cousins, Raymond Hack, Jimmy Cook (also a former professional cricketer), Jimmy “Brixton Tower” Joubert, etc were well known in South African soccer circles. These players were admired by many South African soccer fans, as they played with and against people of all races, in defiance of the apartheid laws of the time. There is therefore no previous exclusion that needs to be cured.

Transformation in South African sport is not only necessary from a moral point of view, but also from a legal point of view. This is supported by the Constitution and courts such as the Supreme Court of Appeal and the Constitutional Court. As long as the measures adopted are rational and linked to a legitimate governmental objective, then it will be legally acceptable. DM

Rupert Candy is a Senior Associate at Webber Wentzel, a litigator in Dispute Resolution and holds a certificate in Sport Law from the University of Pretoria