A critical analysis of the legality of racial quotas as a tool for transformation in South African professional sport. Thesis presented in fulfilment of the requirements for the degree of Master of Laws at the Stellenbosch University Keenan Horne Supervisor: Prof André M Louw Date: March 2021 Stellenbosch University https://scholar.sun.ac.za DECLARATION By submitting this thesis electronically, I declare that the entirety of the work contained therein is my own, original work, that I am the sole author thereof (save to the extent explicitly otherwise stated), that reproduction and publication thereof by Stellenbosch University will not infringe any third party rights and that I have not previously in its entirety or in part submitted it for obtaining any qualification. March 2021 Copyright © 2021 Stellenbosch University All rights reserve i Stellenbosch University https://scholar.sun.ac.za SUMMARY South Africa is a country steeped in sport, which is an important part of the culture of large parts of the population. The new political dispensation in South Africa that came into existence in 1994 recognized the inequalities that had negatively affected South Africans in sport and in other areas of their lives, over the span of many years. It prompted government to introduce affirmative action measures in sport as in other areas of the lives of South Africans. After 26 years these affirmative action measures that have been implemented in sport still remain a challenge for sports governing bodies, and are still controversial. This dissertation aims to delve deeper into these affirmative action measures and, specifically, to critically analyze the legality of racial quotas in professional sport in South Africa as a tool to accelerate transformation. The dissertation will focus on the fact that sport provides an atypical context for the application of affirmative action, but one that is still subject to laws. It will be shown that professional athletes in South Africa qualify as employees under labour legislation, and are consequently protected by the same rules as more traditional employees. This raises an interesting question for legal analysis. South African labour legislation expressly prohibits the use of racial quotas in the application of affirmative action. Despite this, South African sporting codes have for a number of years employed racial quotas for the composition of representative teams (examples of which will be mentioned and examined). Because of the applicable constitutional and legislative framework for the application of affirmative action, the dissertation analyses the use of racial quotas through evaluation of the jurisprudence on affirmative action outside the sporting context in South Africa, in order to draw conclusions regarding the lawfulness of the use of such quotas in sport. There is a relative dearth of case law specifically on the issue of racial quotas. As a result, a comparative analysis is undertaken in respect of the United States of America, a jurisdiction which has grappled with the legitimacy of racial quotas for much longer than South Africa, and which has developed legal precedent on the issue. The dissertation also deals with the concept of ‘representivity’ within the context of the transformation of South African sport. This is a term that has become synonymous ii Stellenbosch University https://scholar.sun.ac.za with transformation, both in sport and in society more generally. The dissertation focuses on the concept of ‘equitable representation’, which is the express objective of affirmative action under the Employment Equity Act. Equitable representation, ostensibly, means to pursue the achievement of a level of representation in workplaces which mirrors the national or regional racial demographic profile of the population. In the context of professional sports teams, when affirmative action measures are applied the aim is therefore to select a team which is representative of the racial demographic profile of the South African population. The dissertation investigates this concept and its role in transformation in South Africa, as well as its legitimacy in the context of professional sport. Apart from the above-mentioned analysis of domestic law, the dissertation also examines the legitimacy of the application of racial quotas in the broader context of international sports governance. It considers the legitimacy of transformation measures as applied by South African sports governing bodies within the parameters of the relevant rules, principles and regulations of international sports governing bodies. This analysis highlights the anomalous nature of racial quotas in professional sport, both in the domestic and international contexts. South African sports governing bodies are contractually obliged to govern their respective sporting codes in a manner that complies with the rules of international bodies, and the dissertation also focuses on the potential danger of pushback from international sports governing bodies against domestic transformation measures which flout international rules. Finally, the dissertation investigates potential justification for racial quotas in professional sport in South Africa. It briefly evaluates the role that sport plays as a tool for nation- building and reconciliation, and then considers whether racial quotas could be justified as a means to remove inequalities and to create equal opportunities for all races in professional sport. iii Stellenbosch University https://scholar.sun.ac.za ACKNOWLEDGEMENTS Writing this dissertation has been both a challenging and enjoyable experience. It would not have been possible without the support and assistance of a number of individuals. I would first and foremost like to thank my Heavenly Father for his blessings and for guiding me through this experience. Through prayer and petition I have overcome countless challenges along the way. Secondly, I would like to thank my supervisor, Professor André M Louw for his patience and guidance throughout the process. With so much experience in this field, it was certainly a joy to have his support and knowledge to draw from. A special mention goes out to my parents, Henry and Debbie, my brothers Jordan and Hagan as well as Kendra Hudson. They have shown me tremendous support throughout this journey and it would not have been possible without their patience and love. Thank you for believing in me and encouraging me. Keenan Horne, 2020 iv Stellenbosch University https://scholar.sun.ac.za TABLE OF ABBREVIATIONS ANC African National Congress ASA Athletics South Africa CRA Civil Rights Act of 1964 CSA Cricket South Africa EEA Employment Equity Act 55 of 1998 EPG Eminent Persons Group FIFA Fédération Internationale de Football Associations ICC International Cricket Council IOC International Olympic Committee LRA Labour Relations Act 66 of 1995 NOC National Olympic Committees NRSAA Nationals Sports and Recreation Amendment Act 18 of 2007 NSA Netball South Africa NSRA National Sports and Recreation Act 110 of 1996 NSRAA National Sports and Recreation Amendment Act 18 of 2007 OCOG Organising Committee of the Olympic Games SAIRR South African Institute of Race Relations SANOC South African National Olympic Committee SARU South African Rugby SASCOC South African Sports Confederation and Olympic Committee UN United Nations v Stellenbosch University https://scholar.sun.ac.za TABLE OF CONTENTS DECLARATION ........................................................................................................... i SUMMARY .................................................................................................................. ii ACKNOWLEDGEMENTS .......................................................................................... iv TABLE OF ABBREVIATIONS .................................................................................... v CHAPTER 1: INTRODUCTION .................................................................................. 1 1 1 Problem identification .................................................................................. 1 1 2 Background: The aim of South African sports transformation ...................... 5 1 3 Research aim ............................................................................................... 8 1 4 Structure of the chapters .............................................................................. 9 CHAPTER 2: THE LEGAL FRAMEWORK OF AFFIRMATIVE ACTION IN SOUTH AFRICA .................................................................................................................... 12 2 1 Introduction ................................................................................................ 12 2 2 The fundamental right to equality ............................................................... 13 2 3 National legislation: The Employment Equity Act ...................................... 16 2 3 1 The uncertainty surrounding the standard of review ............................. 21 2 3 1 1 The criticised rationality standard of review ................................... 23 2 3 1 2 Fairness as a standard of review ................................................... 25 2 3 1 3 Proportionality analysis .................................................................. 29 2 4 Conclusion ................................................................................................. 31 CHAPTER 3: THE ROLE OF THE EMPLOYMENT EQUITY ACT IN RACE-BASED SPORTS TRANSFORMATION ...............................................................................