/ 15 April 2019

Solidarity tackles sports quotas in labour court

Springbok captain Siya Kolisi.
Springbok captain Siya Kolisi. (Stu Forster/Gallo)

There is a Youtube video, posted by trade union Solidarity, which unpacks its campaign to rid our sporting nation of “unconstitutional” racial quotas because they defy labour practices.

“The same obsession with race the ANC suffers from, which brought Eskom to its knees, now features in a charter that wants to make sure that rugby, cricket and every other sport will be left in the dark from now on,” Solidarity chief executive Dirk Hermann says on the video, with no puns acknowledged.

In a nutshell, Solidarity says that reserving jobs based on race leads to incompetence, which inevitably leads to failure. We’re told in the video that the campaign to rid sport of politics is a collaboration between Solidarity and Afrikaner interest organisation AfriForum.

READ MORE: Too much white in Saru’s colour mix

Solidarity has chosen to take the emotion out of the subject and approach the Labour Court with an argument that says it has proof that “sport authorities want to regulate the racial composition of all employees in the work environment that sport constitutes in a central way”.

The union, which dates back to 1902, says the Transformation Charter gives the sport and recreation minister the power to punish federations who do not meet their quota targets.

To drive home the point, the example used by Hermann suggests a scenario in which Sport Minister Tokozile Xasa could “strip the Springboks of their blazers”. It’s the kind of pay-off line that tugs at the umbilical cord connecting rugby’s traditional Afrikaans base and the Springbok emblem. It’s a bond that appears unbreakable, with no tolerance for losing.

Solidarity’s legal argument against quotas in sport is framed as a legal matter and could occupy the courts for some time. Or not all.

Solidarity has one glaring problem. Advocate Norman Arendse, representing the department of sport, points out that Solidarity has no athletes as members and therefore can’t argue on their behalf.

A thin argument

In the labour court hearing, advocate Greta Engelbrecht, the counsel for Solidarity, stated: “It is absolutely true that Solidarity does not identify particular individuals. I must say this, which professional sportsman, which professional sportswoman, is going to put their heads above the parapet and bring against quotas? It would be a death knell for them.”

It’s a thin argument, and one the court may not look kindly on given the magnitude of Solidarity’s ask.

The lacklustre transformation and development in sport on the part of government 25 years into democracy plays perfectly into the hands of Solidarity, which is asking the courts to remove politics from sport.

READ MORE: Transformation report — Rugby still lagging behind

Apartheid politics created the disadvantages that hinder children from poor communities and government is tasked with dismantling and rebuilding the system to the benefit of all aspiring athletes.

The lack of access to opportunities and resources for the underprivileged has been the task of the department of sport since democracy. Reversing decades of neglect and discrimination was never going to be simple, but the department has fallen short of the dreams of black athletes and the communities from which they hail.

By and large, a black athlete in South Africa has had to somehow transcend his or her circumstances or physical surroundings to progress. It is virtually impossible for a talented black athlete to emerge from the townships and represent the Proteas or Springboks without aligning with an elite school or university system that for the most part is a white-dominated space, socially and culturally.

Kolisi on quotas

Springbok captain Siya Kolisi admitted as much in his now infamous interview in Japan earlier this year.

“If you talk about transformation, you have to start there [in the townships]. Imagine if I didn’t go to the English school, I wouldn’t have been eating properly. I wouldn’t have grown properly. And I wouldn’t have had the preparation like the other boys did. When I went to the English school, I had to compete with boys who were eating six meals a day, each and every single day of their lives. It’s tough … representing South Africa is tough, because we want results and we want transformation,” Kolisi said.

Solidarity says it has obtained quota percentages for various sports that point to a concerted effort to regulate sport bodies, not just on the field but at management level. Solidarity deputy chief operations officer Werner Human explained that section 15 (3) of the Employment Equity Act permits numeric goals between an employer and an employee, but forbids the use of quotas.

READ MORE: The Bok-ready Bulldog who was fed to the sharks

“Essentially, a system of quotas comes down to evaluating a player’s worth on the basis of their race. Black players, even if they are undeniably world-class, are inevitably ticked off as quotas in a team, carrying the placard of being a quota player. Talented white players are, from the word go, devalued because a specific quota has to be reached, regardless of the talent that they may show,” Human wrote recently in the Sunday Times.

Government’s position has been unwavering and unequivocal – transformation, and the use of quotas to achieve it, is non-negotiable.

Department of sport and recreation spokesperson Vuyo Mhaga hit back at critics of the Transformation Charter. “There’s a clear agenda that Solidarity has been pushing to make sure that they stumble transformation and the unity of our people, so they are not only doing it in sport, but they are doing it at every chance that they get,” he said.

What triggered Solidarity’s challenge?

Judgment in Solidarity’s case has been reserved while the labour court considers the matter, given that the union represented no affected member at the time. In a recent development, sources at Solidarity say it does have a representative whose identity has not been revealed as yet.

“It is of vital importance to note that the court did not deal with the matter of the merit of quotas in sport, it only dealt with legal technicalities. It is in the public interest that the matter of sport quotas per se be heard in court. The minister’s focus is undoubtedly on the legal technicalities,” Human said in response.

What triggered Solidarity’s challenge was a since retracted circular sent by South African Schools Athletics (Sasa) that read: “The following quota system must be implemented with immediate effect to reflect the demographics … A minimum of 40% from previously disadvantaged communities for all Sasa teams on all levels of competition‚ with specific emphasis on girls.”

The circular required that at least one athlete per event and age group come from a previously disadvantaged community‚ and specified a maximum entry of four per event for high schools (three merit qualifiers plus one previously disadvantaged) and three for junior schools (two merits plus one disadvantaged).

The maximum for high schools was, in fact, six — having been updated in a later circular —  with five merits and one previously disadvantaged, according to Sasa. The circular has unwittingly reactivated the transformation conundrum that has perplexed South African sport for decades.

Transformation remains the unfulfilled promise that breaks the hearts of Rainbow Nationists and all others who still believe in the transformative power of sport. Engelbrecht reminded the court of the ANC’s submission to the United Nations in 1971, that merit alone should be the criteria for selecting teams for representative sport.

That is rich from an organisation that also acknowledges that the playing fields in South Africa have never been equal, nor are they likely to be equal any time soon.

Netball South Africa has agreed to a 5:2 ratio at all times on the court, but they didn’t stipulate whether black athletes would be the five or the two. The sport ministry wants six players of colour in the Proteas starting XI and SA Rugby has expressed its desire for a 50:50 ratio by the World Cup this year.

Anticipating the attacks on transformation

Not enough credit is given to the wording of the Transformation Charter, which encompasses a lot of wisdom and foresight. It anticipated attacks from the likes of Solidarity and AfriForum.

“From an ethical and moral perspective, the transformation road embarked on by South Africa represents an exercise in restorative justice and reconciliation. The process involves the restoration of destroyed trust and the removal of conditions undermining relationships of trust, whether of a socioeconomic, political or structural nature,” the charter states.

It adds: “The essence of a sport transformation strategy has to be multidimensional and focused on changing demographic profiles on and off the field of play, ensuring equitable access and resource availability, skill and capability development on and off the field of play.”

But the government’s apathy towards development plays into the hands of Solidarity, which claims that under the current circumstances transformation is no more than window dressing because too few players and officials are sufficiently competent. The documents the union claims to be in possession of “expose” the racialised motives of the department, according to Solidarity.

Opponents of racial quotas say we only need to look at how cricketers like Kyle Abbott, Duanne Olivier, Rilee Rossouw and Kevin Pietersen have had to find refuge overseas to understand how politics in sport affects the country negatively. The other side of that argument says that the loss of these players has been softened by a crop of young, black talent that would have otherwise been ignored – with some of that talent better than this quartet.

In danger of going bust, like Eskom

Ashwin Desai, professor of sociology at the University of Johannesburg, perhaps sums up the frustration of the transformation debate.

“When I see the debate about race quotas and see the case between Solidarity and, basically, the ANC government, I want to immediately say, a plague on both their houses.

“On the one hand, I think this is a disguise by Solidarity, which is replete with just defending privilege and doesn’t see how race has operated in sport, as if our history hasn’t existed,” Desai says.

“On the other hand, the ANC government is so culpable in destroying township sport that I wonder how dare they want to legislate how players play in our national sporting teams, because they have done almost nothing to advance sport in township schools.”

In the above-mentioned video, Hermann uses the words “government” and “ANC” interchangeably. Whether this is deliberate or not is anyone’s guess, but the point he was making is that South African sport is in danger of going bust, like Eskom, if nothing is done.

“The ANC is willing to have less sport for the sake of increased race representivity [sic]. This is a race obsession that we can’t afford in South Africa. It has already cost us dearly at Eskom, in service delivery and many other aspects.”

At the heart of it, government’s commitment to transformation forms part of the country’s greater democratic project. It is where political and social capital is amassed among the voting public (at least every five years).

Solidarity is reducing transformation in sport to a labour matter, without properly considering the ramifications for the social cohesion that is the bedrock of sport.

‘Important for more than just the sport’

Chester Williams, the Springbok legend who for a time had to endure being perceived as a quota player and was an early flag bearer of former president Nelson Mandela’s rainbow nation, says quotas are necessary at certain levels.

“I think from Currie Cup and below, quotas are needed to allow players of colour to be exposed to rugby at a higher level. At national level, I don’t think there’s a need for quotas because the talent coming through is good enough.”

Williams, now 48 years old, coaches a struggling University of the Western Cape team in the Varsity Cup. He says quotas are important for more than just sport.

“There will always be some work to be done, but it’s important that development players learn life skills and teamwork, which comes from being in a system that nurtures them. South African rugby must try to do all it can to develop promising talent.”

Williams was a part of South Africa’s victorious class of 1995 that won the World Cup on home soil. He famously scored four tries against Western Samoa in the quarterfinals after missing the early part of the tournament owing to injury.

Being the only player of colour in a team that at the time was still governed by an untransformed rugby union, Williams stayed focused on the goal at hand, which was to win the Rugby World Cup for his country.

“I didn’t pay attention to anything that was said about me. I worked hard and I focused on my own game. The World Cup gave me an opportunity to prove to myself that I am worthy of being on this stage to represent my country.”

Williams said in an earlier interview, “Black players add value to SA rugby and they are showing that they can contribute to the South African game at all levels. Quotas have forced coaches to pick black talent and, at national level, these players have mostly been successful. The SA rugby landscape is changing, but there are players who haven’t been afforded sufficient opportunities, which is my greatest concern in terms of transformation.” — New Frame