Month: September 2017

Who is Making the Decisions?

In 2008 South African company law underwent a major change. Why is this relevant to the sport of Athletics?

Quite simple really, the national federation in South Africa was incorporated as a company under section 21 of the old Companies Act in 2006. It’s registration number is Reg No 2006/034767/08.

In 2008 a new Companies Act (No 71 of 2008) was passed. It radically changed the way in which companies are regulated. Some of the major changes were that certain provisions are automatically applicable to a company, unless expressly excluded, and some can’t even be excluded. It also changed the old name of “Association incorporated under s 21” to Non-Profit Companies (NPCs). It made certain provisions applicable to NPCs.

But the Act was not brought into effect until 2011, which happened on 1 May that year. Crucially, certain transitional arrangements were included, which gave companies two years to comply with the new Act. So, by 1 May 2013 all companies had to fully comply with the Act.

Still, how does that affect the sport of Athletics?

Athletics South Africa NPC’s constitution were the Articles of Association in terms of the old Act. (Interestingly, the Articles filed with CIPC are not the same as the constitution, but that for another time. Let’s take it, as everyone always has, that the constitution was the Articles of Association.) Now this part gets a bit complicated, so bear with us. In terms of the new Act the Articles of Association became the Memorandum of Incorporation (MOI). Until 1 May 2013, if there was a clash between the Act and the MOI, the MOI won. After 1 May 2013, the Act wins.

Now, to clear up something else. The Act is very specific. Only certain other laws trump the Companies Act. These are:
• Auditing Profession Act, 2006;
• Labour Relations Act, 1995;
• Promotion of Access to Information Act, 2000;
• Promotion of Administrative Justice Act, 2000;
• Public Finance Management Act, 1999;
• Securities Services Act, 2004;
• Banks Act, 1990.
Why this is relevant is that no-where does the Act provide that the constitution or MOI of another organisation (ie SASCOC) can override the Companies Act, nor does the National Sport and Recreation Act override the Companies Act.

Again, why is this important?

For the following reasons:

Section 4 of Schedule 1 says:
“If the Memorandum of Incorporation of a non-profit company provides for the company to have members, it—
(a) must not restrict or regulate, or provide for any restriction or regulation of, that membership in any
manner that amounts to unfair discrimination in terms of section 9 of the Constitution;
(b) must not presume the membership of any person, regard a person to be a member, or provide for the automatic
or ex officio membership of any person, on any basis other than life-time membership awarded to a person—
(i) for service to the company or to the public benefit objects set out in the company’s Memorandum of
Incorporation; and
(ii) with that person’s consent.”

Put in plain English: You can no longer have ex officio members of Athletics South Africa, nor can anyone become a member of Athletics South Africa automatically (you have to join). The effect is this: Office Bearers can no longer be regarded as members of Athletics South Africa, unless they are members in their own right – ie they have joined as a member (keep in mind that other than officer bearers and honorary members, ASA does not have individuals as members).

So since 1 May 2013, office bearers are no longer members of ASA.

Section 5 of Schedule 1 says:
‘(1) If a non-profit company has members, the Memorandum of Incorporation must—
(a) set out the basis on which the members choose the directors of the company; and
(b) if any directors are to be elected by the voting members, provide for the election each year of at
least one-third of those elected directors.

ASA has members, so this provision applies. What it expressly states is the MOI must set out the basis on which members chose the directors (ie board members). Since board members can no longer be regarded as members of ASA in terms of s 4 of Schedule 1, they can’t participating in choosing who the directors are. So any election, since 1 May 2013, where board members (or any other office bearers – eg members of commissions) participated in the election, has been invalid.

And s 5(1)(b) of Schedule 1 is also a problem: In terms of the Act, the MOI must (as in has to) provide for the election of at least 1/3 of the elected members. In other words, every year 1/3 of the ASA board has to stand down and either be re-elected or new directors have to be elected. The days of a slate remaining in power for four years ended in 2013.

Athletics South Africa NPC has not amended its MOI, as required by the Act. It is thus in breach of the Act. However, it is not good enough to say, whoops, we didn’t do it but who cares. The Act is specific, where there is a conflict between the Act and the MOI, the Act takes precedence. In many aspects, the Act deems the MOI to have been amended (more on that at a later date).

For now, let’s concentrate on two aspects: Board (and commission) members are no longer members of ASA. The Act is clear on that. So they can’t vote as members and if they have, they have tainted that election.

And one third of the board has to be re-elected every year. If that hasn’t been happening, the Act has been breached and people are sitting as board members in breach of the law.

How is that relevant to the sport of Athletics: When the board of ASA decided to omit athletes from the team to the recent IAAF World Championships, were they acting legally?

It would seem not.

 

Development: Are we being honest with ourselves

Development is a hot topic in South African sport. For a long time the concepts of ‘development’ and ‘transformation’ were intertwined, so it was not possible to deal with one, without dealing with the other. And it created bizarre terminology: People were too scared to use the language of apartheid, so instead of saying an athlete was ‘black’ they became a ‘development athlete’.

The absurdity of this became apparent to anyone outsider when a runner would win a major race and be called a ‘development runner’.

For now, let’s leave the issues of transformation aside (that is for a different time, as it is a very problematic area – much needs to be done, but it won’t be while people are using ‘transformation’ to push their own personal agendas). Let’s look at the current success of development programmes. Or the lack of success….

Some starting points are needed, however. The following assumptions will be used in this series of posts:

  1.  Development should be about creating an interest in the sport, such at the athlete chooses athletics as their sport of choice.
  2.  Development is meant to be teaching the athlete the skills needed to be able to do the best that they can do when they reach their peak.
  3. Any human being will be at their physical peak between the ages of around 20-35. In all sports this is when sportspeople perform at their best. Accordingly, development programmes should have as their apex this age group as the measure of success at earlier ages.
  4. For most athletes, from 35 onwards their performance starts to decline. They will remain competitive in their age groups, but only those who have not competed when they are younger will expect to actually improve at any stage once they hit the Masters categories. Development therefore has less of a role to play in the Masters categories. (Note the use of the word ‘less’. It still has a role to play.)
  5. There are outliers who will always create exceptions to the rule. So an 18-year old may be competitive at the Olympics and have a long athletics career, just as a 40-year-old could medal at the Olympics. But they are not the norm.
  6. Success of development is measured in (a) performance at the top level and (b) an increase in depth of performance and numbers at a senior level.

To then measure whether current thinking and attitudes are correct, let’s start with a simple and basic part of the sport: Cross Country. It is the cheapest and easiest part of the sport to organise. Have an open field and you can put together a course. It is often (mistakenly) taken as the starting point for development for distance events on the track and road (mistakenly, as cross country is a discipline in its own right).

Due to the tireless efforts of Ben and Elsa Oliver, results of Western Province (ie Cape Town) cross country races are accurate and available. (The sport in Cape Town owes a lot to the two of them, and they are not appreciated nearly enough.) There is also reason to believe that what is happening in Cape Town is playing out in the rest of South Africa. The attached spreadsheet has data of all WP Cross Country League and Championship races since 2011. The numbers are the total participants in those events.

Participation at WP Cross Country 2011-2017

Let’s analyse just one aspect, to see if Western Province has been getting development right, or if it is doing the exact opposite (ie chasing people away from the sport).

If one looks at the current u20 age group, we can trace them back in two year batches to when they were u13 in 2011. (This is slightly flawed, because the age group covers 18- and 19-year-olds so they may not have been together since 2011, but the trends remain the same even if you look at the current 18-year-olds.).

These are the average league participation levels of this group of athletes (WP does not have u16 and u14 categories at leagues, only at championships):

2011 (u13):  boys: 35  girls: 27

2013 (u15): boys: 57 girls: 24

2015 (u18): boys: 44 girls: 12

2017 (u20): boys 18 girls: 6

At a glance, we will see that apart from an increase in the boys from u13 to u15, fewer and fewer athletes are participating as they get older.

It is so dire, that by the time the girls get to u20 level, less than a quarter are still taking part. Deeper analysis would need to be done to work out if any of the girls who took part at u13 level in 2011 are still participating in 2017.

If it was a case that there are only 18 or 6 (respectively) left but they are the best in the country, then it could be argued that quantity has been sacrificed for quality. Without knocking the athletes (as the system has actually let them down), that is not the case – WP does not have a good history of success at SA Cross Country champs in the u20 category. After all, when only six athletes are racing each other each week (sometimes it is as few as three), what are their chances of competing successfully at the highest level in the absence of really good coaching.

And if we look at the numbers in the u15, u18 and u20 category, there has been a sharp decline among the girls, while the boys has remained fairly steady.

Food for thought, but given these statistics, it is hard to say that any development programme which uses cross country as part of it has been a success. It is probably close to the truth to say it has failed.