This is how it all starts. The statement from the CEO of ASA.
Anyone who has been around in the sport of Athletics (or any sport for that matter) in South Africa for a while will identify the signs immediately. It is merely a matter of time, but Sello Mokoena and his KwaZulu Natal Athletics board are dead men (and women) walking.
What I am talking about is the recent media release from Athletics South Africa, which is full of invective against KZNA (see the link above). If one was naïve and read this completely without context, it would seem that KZNA is a hotbed of political agitation against ASA, while at the same time it is destroying the sport in the province, which requires the strong hand of the national federation to step in an remove the trouble makers. If the statement is to be believed, the other 16 provinces, off their own bat, decided that enough was enough and KZNA should be called to order for attacking their beloved federation and the ASA board.
Based on this, the next step is to pile pressure of KZNA by setting up a commission of enquiry, which will find serious wrongdoing on the part of the KZNA board. Because of this, they will be removed by ASA and a new ‘interim’ board will be inserted in their place. The current board will receive lengthy suspensions from the sport, which will neutralise them and stop them sowing their anarchist views. If they fight back, there will be people set up in the province to undermine them from the inside.
It has happened before. It happened to Abrie de Swardt at South Western Districts. It happened to so many people in Eastern Province it is difficult to name all of them. There are examples in so many provinces. Nothing new, and within a month or two Mokoena and his board will be consigned to history and all the other provinces will be quick to jump in to sing the praises of ASA and its leadership for getting rid of this ‘cancer’ in the sport. Mostly because they are scared they will be next.
It’s the way it has always been.
However, it should not be. Not in 2017 and not in South Africa.
At the same time as the courts are managing to keep South Africa together by consistently applying the Constitution without fear or favour, it seems that everywhere else no-one cares about the law or the Bill of Rights.
Let’s start with some basic legal facts: Athletics South Africa is a company (a Non Profit company). It is bound by the Companies Act of 2008.
Why is that relevant?
For two reasons. Firstly, ASA does not actually have a ‘constitution’. It has a Memorandum of Incorporation (MOI). The MOI is a essentially the constitution of the company, but with one major difference. It is assumed (incorrectly, but that is for another article) that the basis of a voluntary association is a contract – the members agree to abide by the constitution as if they were entering into a contract. So if the constitution says the members must jump, then they must jump. However, with a company, the MOI does not work that way. A company cannot tell its members what to do, the members tell the company what to do. At best, all a company can do is to terminate the membership of the member who ‘misbehaves’ (at least with an NPC if the MOI allows it; with a profit company this is not possible). So, a company cannot place a member under ‘administration’ unless there is a provision in the member’s (ie KZNA) constitution permitting this (even then it would be debateable).
Secondly, in terms of the Companies Act, the company is accountable to its members. They are not only permitted to question the financial status of the company, it can be argued that they are obliged to do so. It must be viewed with extreme suspicion when a board of a company refuses to make financial statements available and to answer questions about them. If there is nothing to hide, the company would answer them.
The Bill of Rights also guarantees the right of freedom of expression. That means that no-one can be punished for expressing their opinions (provided they don’t step over the line into defamation).
The ASA statement says that: “Further, the Council said they also want the Task Team to probe media reports emanating from Board Members of KZNA which the Council deemed not to be in line with the constitutional protocols of ASA.”
Now, a Google search doesn’t show any media reports emanating from KZNA in the recent past. Nor does the ASA constitution provide for any ‘protocol’ for office-bearers of members of ASA when speaking to the media. Most importantly, what about the freedom of expression, a constitutional right?
Then it states that: “The sequence of events of the day followed the earlier barring of a co-opted KZNA delegate to the Special General Meeting (SGM) which preceded the Council Meeting. The ASA refusal was deemed in line with the constitution of the national federation. KZNA had two delegates, one of which was eligible to participate. The delegate allowed, declined to participate and stayed out of the entire session of the SGM.”
There is nothing at all in the MOI of ASA or in the Companies Act which permits the ASA as a company to determine who may represent a member (ie KZNA). It is fair for the company to ask if the person is authorised to represent the member, but once that is established there is no right for ASA to decide who the representatives may be. In any event, the Companies Act allows for proxies (see s 58), and this cannot be altered by the MOI – in other words the company (in this case ASA) has to comply with the Act.
One of the fundamental problems is that, despite being a company, ASA’s ‘constitution’ (ie MOI) does not comply with the Companies Act. Before it picks on its members for their constitutions, maybe it should get their own house in order.
Unfortunately, KwaZulu Natal Athletics are the authors of their own misfortune. In 2013, when the Companies Act came into full effect, a proposal was made to amend the ASA MOI to comply with the Companies Act (and also the National Sport and Recreation Plan) but KZNA was the most vociferous opponent. Had the ASA MOI been amended then, none of the pain it is going to suffer would have happened.
But, one may ask, why the sudden attack on KZNA?
One can only guess, but does it maybe have something to do with the fact that the IAAF Ethics Commission (the predecessor the Athletics Integrity Unit, and which is still dealing with matters predating the AIU) has been looking into the reports of financial irregularities before 2012 after someone in KZN reported it to them? Or are the police at last investigating the matter which was reported to them in early 2012 in terms of the Prevention and Combating of Corrupt Activities Act 12 of 2004? The report compiled by the KZN Government in 2012 shows clear evidence of fraud and forgery and that documents were signed by the previous leadership of KZNA which was false. Has KZNA realised that its failure to act on the evidence of fraud and corruption renders them liable to prosecution on terms of the Prevention and Combating of Corrupt Activities Act and now they are taking action?
One has to ask why KZNA did not act on this earlier.
We can only guess what motivates the ASA statement.
But one thing that is certain, if the pattern is followed which was used so often in the past, the current board of KZNA will disappear into to oblivion in the near future. The current leadership of ASA (which is largely the same people as were involved before 2009) does not put out statements like the one it did if it does not intend dire consequences for the target. ASA’s stance is too drastic for it to be able to back down and not lose face.
How does KZNA now react? We will soon know how courageous they are.