CFAS

Ismaël Mohamed Ali, journaliste à RFO

Le Colloque du 9 octobre 2007 a mis au jour les succès et les attentes que crée le sport en favorisant l'intégration à la vie citoyenne dans les deux pays.

Les débats ont montré que si l'Afrique du Sud connaît une situation très nouvelle depuis 1994, toutes les évolutions n'ont pu encore y être accomplies.

En France, le développement du rôle et de la place du sport au sein du système éducatif est un objectif bien accueilli qui doit se concrétiser davantage.

À cet égard, la principale du collège Henry Dunant de Colombes (92) a également rappelé que l'intégration par le sport concerne plus encore les femmes.

L'évolution en Afrique du Sud

Éric Miyeni , romancier sud-africain, acteur évoqua la violence du racisme sous l'apartheid et ses effets dans la société sud-africaine d'aujourd'hui, mais souligna à quel point « le sport pouvait servir de symbole de tolérance et d'unité, d'outil de transformation de la société. Un homme libre, poursuivait-il n'est seulement celui qui se libère de ses chaînes, mais c'est aussi celui qui aide à faire retomber celles des autres ».

Georges Lory , directeur international de RFI, traducteur de Nadine Gordimer a exposé l'ostracisme vécu par les Noirs dans le monde sportif d'avant 1991. « Avec l'Apartheid systématisé en 1950, mais existant dès 1948, tout Sud-Africain était reconnaissable selon cette loi par sa couleur. Elle déterminait son espace vital et ses activités sociales. Le sport en ce sens, parce qu'il était ségrégé était raciste, car bon nombre de disciplines étaient réservées, plus qu'à une élite, aux seuls Blancs. Le rugby, par exemple, était dans ce cas. D'ailleurs, seuls les Blancs étaient susceptibles de porter le blason des Springboks ».

Mike Sofile , rugbyman de formation et vice-président de la Fédération sud-africaine de rugby s'est interrogé : « Aujourd'hui en Afrique du Sud, la politique initiée par Nelson Mandela consistant à faire du sport un outil d'intégration social est-elle suivie par toutes les fédérations sportives du pays ? Non. Toutes n'adhèrent pas à cette politique, d'où la création de projets de loi. La nouvelle constitution sud-africaine nous dicte pourtant quoi faire. Dans mon domaine, je suis le seul Noir parmi une vingtaine de Blancs. Cela est dû au fait que je suis encore soumis à une hiérarchie issue des structures originelles. Je ne dois pas être vu comme celui qui veut les chasser, mais comme celui qui veut voir les choses évoluer. Il y a tant de choses qui perdurent treize ans après la libération. On continue de lutter, car les Noirs n'ont pas les mêmes opportunités que les Blancs. En même temps, les plus méritants doivent être respectés pour la place qu'ils occupent et le travail accompli. En 2003, dans l'équipe championne du monde de rugby sud-africaine des moins de 21 ans, il y avait neuf joueurs noirs. Où sont-ils dans l'équipe senior d'aujourd'hui ? ».

Denis Pietton , ambassadeur de France à Pretoria , a souligné :« la faiblesse du système éducatif sud-africain hérité de l'apartheid. Il subsiste un faible revenu chez les enseignants et un manque de formation. Cependant le pragmatisme de l'État sud-africain qui s'appuie sur des ONG capables de diffuser les idéaux de cohésion nationale, démocratique et sociale est à souligner ».

Shoayb Casoo , ministre plénipotentiaire à l'ambassade d'Afrique du Sud a rappelé le parcours qui se construit depuis 1994 : « L'Afrique du Sud a été marqué par un passé de très fortes discriminations. Le rendez-vous de 2010 de la Coupe du Monde de Football dans notre pays est un nouveau jalon pour l'avenir ».

Le débat en France

Patrick Lozès , président du Collectif des associations noires de France (CRAN) , a reconnu que " le sport est un fort facteur d'intégration. Il suffit de voir les enfants prestigieux de l'immigration : Kopa, Platini ou encore Zidane. La France n'a jamais été aussi été aussi française qu'aujourd'hui quand on voit le nombre de Domiens (Antilles, Réunion, Guyane). Oui les apparences sont trompeuses. L'intégration par le sport est là, mais il tend aussi à renforcer les stéréotypes, le cliché récurrent étant que le Noir réussirait essentiellement dans la musique et dans le sport. Mais l'intégration totale par le sport l'est jusqu'à un certain degré. L'intégration a peut-être très bien marché pour les populations phénotypiquement proches des Français dits de souche. Cette intégration montre néanmoins ses limites pour les personnes aux faciès différents, sans parler des constructions mentales propres à chacun liées, à leurs expériences propres et à la mémoire partagée de l'esclavage ou de la colonisation ».

Mathieu Méranville , journaliste sportif et essayiste a mentionné la difficulté d'intégration et la lente reconnaissance des athlètes noirs dans l'histoire universelle du sport : « Doit-on constater la surexploitation des athlètes noirs dans le sport et leur sous représentation dans les autres domaines de la vie sociale ? Il s'est dit gêné de la présentation de ce “miroir aux alouettes” où le discours général consiste à dire aux jeunes issus de l'immigration que leurs exemples sont Zidane ou Thuram, alors qu'ils pourraient aussi bien être avocats ou médecins ».

Jean-Marie Safra , Le chef du service France du journal La Croix a défendu le rôle positif du sport. Il a rappelé l'importance des prises de position dans le passé face à la discrimination. « Quand l'Afrique du Sud en 1971 a refusé la participation de l'Antillais Roger Bourgarel, à la tournée des Bleus dans leur pays, la fédération française a passé outre » et a prédit que : « Les footballeurs [professionnels] noirs d'aujourd'hui sont les entraîneurs de demain ».

Jean-Louis Tétrel , proviseur du lycée Jean Renoir de Bondy, en Seine-Saint-Denis . Au sein de son lycée des projets novateurs, naissent, comme la mise en place, par deux jeunes lycéens issus des quartiers, d'un tournoi de football mixte. Il a toutefois tenu à préciser que la réussite individuelle des stars du ballon rond ne l'intéressait pas outre mesure. « Que les athlètes de haut niveau viennent se mettre au service des amateurs, des plus jeunes ! Le sport, c'est avant tout des personnes qui prennent conscience de leur individualité, qui se socialisent, qui se découvrent leaders et coordinateurs. Si une gamine sénégalaise ou malienne jouant au handball parvient encore à prendre une licence à l'âge de 12/ 13 ans, nous les éducateurs sommes heureux. Car, peut-être qu'elle ne disparaîtra pas un été [pour être mariée]. Le plus important en sport consiste ainsi à s'intégrer au groupe et à réussir sa vie ».

René Silo , président de l'équipe de football de l'ES Colombienne .« Je suis le seul président noir de la région parisienne. Dans mon club nous nous adressons à toutes les populations. Nous souhaitons former les jeunes à l'arbitrage, notamment à respecter les règles et autrui. Il est vrai néanmoins que dans l'élite, il n'y a quasiment pas d'arbitre noir. La plupart ne sont peut-être pas motivés pour monter à un certain niveau ? Le sport reste toutefois un apprentissage de la vie ».

Fernand Escobar , président du Comité régional Île-de-France des clubs omnisport souhaite qu'on « n'oublie pas la personne humaine dans ce débat. Il faudrait que les médias s'intéressent davantage à la base qu'au sommet du sport. La notion de progrès, en effet, est importante. Quel espoir de voir l'Afrique du Sud, laboratoire de l'intégration, pardonner, parler, chercher de la place à tous ses enfants et voir que chez nous, en France, on abandonne de plus en plus notre solidarité nationale et ces jeunes ».

A l'issue du colloque, plusieurs participants envisageaient de lancer des programmes d'échanges entre la France et l'Afrique du Sud dans le domaine sportif.

Eric Miyeni, writer, actor.

Nelson Mandela once said: "If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language that, goes to his heart. "

South Africa is unique amongst recently liberated countries, in Africa at least, in that it refuses to prioritise one thing above any other when it comes to the improvement of people's lives in the period directly after liberation, what the South African ruling party, the African National Congress has decided to define as "A better life for all". Even in that statement, "A better life for all ", you feel and hear the all-encompassing need to leave nobody behind, or at least the stated intention not to do so.. It is not "A better life for some ", but rather " for all ".

This means that when you talk about the equality of the races, you must also look at the equality of the sexes. When you are working to protect South African citizens you must also be the architect of the rights and institutions that protect foreigners, displaced persons, refugees and landed immigrants who end up living in South Africa. When you address human rights in general you cannot close your ears to the voices clamouring for animal rights. When you attempt to provide electricity to rural households in South Africa you must also provide clean water too and access to the telephone, among other basic needs.

When you've put in place Black Economic Empowerment and produced a number of black millionaires, and billionaires, you will be asked continually by citizens demanding economic justice why the unemployment rate is still so high. At no point during the attempt to juggle the delivery of all these needs can our president say, "Forget about this for now, we are still busy with that, okay? He or she has to balance all the people's needs, and demonstrate that we are, as a country, working to improve in all these areas, at the same time and show the results up to that point ".

This ethos is so important to us that even when we want to take back wrongfully appropriated land to give it back to its rightful owners, we take seriously the issue of compensating those who are currently on that land even if they are the ones who got that land wrongfully under apartheid in the first place. In redressing past imbalances, we have to be careful not to unduly punish those who benefited in that very same past.

This is my country, South Africa. When I am outside of it, this often difficult to understand place with a direction for a name, I am always surprised by how impressed some people seem to be with our progress as a nation because back home many people think change is too slow. Most South Africans would say to their leaders and one another, "Come on already, it's been thirteen years okay! Why have we not produced astronauts, a few space-shuttles and had fifteen missions to Mars yet!?! Why do we still have people without houses living in squatter camps? Why? Why? Why? Why are we moving so slowly? "

If it feels slow, I always say in response when I'm caught in this kind of debate, it is because we are fixing everything at the same time as we should and there can't be rapid results when you take this difficult but healthy approach.

Other countries, like yours for example, France, and most others here in the west - north to us Africans of course - have the luxury of not having to consider these monstrously diverse and seemingly competing needs. The strongest reason being that most, if not all of their citizens, have these basic needs already catered for. Your water here in Paris for instance might not be as clean and as sweet tasting as the water in Johannesburg, but all of you can access it. Most of you have jobs and do not starve on the streets or freeze to death whenever winter announces its presence. Your systems are in place and most things run quite smoothly and you achieved this over centuries of development. South Africa on the other hand has to deliver on all these competing citizens' needs simultaneously at the blink of time measured in decades, as opposed to centuries, mainly because of one man.

We, South Africans, credit Nelson Mandela for this state of affairs. The man got out of prison and said to us, we will all get along and work together to build a better country for all who live in it. I can't think of a simpler way to ask for something with such highly complex practical implications. In this vision, Nelson Mandela placed on us, his fellow countrymen, this burden of never prioritising one race above another, one sex over the other, one need over another and by extension one nation, including our own, above any other and that is largely why we have not, unlike what other nations would have us do, invaded Zimbabwe.

But that's another story.

This Mandela way, this African National Congress way, is a difficult and long path to follow because, as evidenced by apartheid, when you prioritise a few over and above many, everything is simpler. All you need to keep the system ticking is hatred, extreme violence and brutality.

And then came Mandela.

I mean the man wore a number six rugby jersey, smiled and danced with the Springboks! You might have heard of them? The Springboks? The team that will be lifting the cup in triumph at the end of your wonderfully hosted Rugby World Cup here in Paris? I can talk proudly of the Springboks today, but back in 1995, when Nobel Peace Prize laureate Nelson Rolihlahla Mandela shared the podium with them after they'd won the Rugby World Cup in that year, I would have been forgiven for assuming that that Springbok team was utterly racist in its entirety and that each and every one of its members hated all black people in all of South Africa and beyond its borders.

There couldn't have been a more complex and confusing picture of a man trying to unify a country than Nelson Mandela dancing in a Springbok jersey smiling on that podium in 1995 especially to us South Africans who still remembered toilet signs that read "Blacks" or "Whites" to separate ablution facilities according to race and laws that augmented the existence of segregated schools, segregated restaurants, segregated higher institutions of learning, segregated hospitals, segregated residential areas and two differing justice systems working parallel to each other, one to benefit one small group at the expense of the other larger one, and the other to torment, torture and brutalise the larger group to keep it in line.

Here was a black leader of a country celebrating with his white subjects who clearly adored him only a few years after some of them would have been in the army hunting down and killing his comrades to preserve and prolong apartheid while he was languishing in jail like a common criminal. Nelson Mandela did this to tell us, and the rest of the world, that to be truly great and proud you need to be humble, in a way saying something as difficult to understand as hearing that sometimes you need to go east to reach the west.

We, South Africans, credit Nelson Mandela for this complex approach of having to love each other and work hard not to leave each other behind as the country moves forward despite this history, this recent history of brutal hatred.

I am giving you this background because to a large degree it is what informs the way sport is generally handled in South Africa.

When the Springboks, the Boks for short, left South Africa to come and play in this Rugby World Cup, you could feel the sense of relief and desire to win that they derived from visiting President Thabo Mbeki. And all it took was our president saying to the coach, Jake White, and, by extension, to the entire team, forget what the media says, go to France and win the rugby world cup for the nation, you have my full support. That simple statement reported in the local media and accompanied by a picture of President Thabo Mbeki standing on a chair in order to be a few inches taller than Bobby Skinstad, one of the Springbok team members, lifted the spirit of the Springboks tremendously because prior to visiting the president, the local media was awash with the controversy surrounding the exclusion of Luke Watson from the Springbok squad. Luke Watson, winner of the Vodacom Super 14 player of the year accolade for 2006 and a past South African under 21 and under 18 rugby squad capt! ain, was excluded because he was too small for the style of rugby he wanted the Springboks to play, said coach, Jake White. But many South Africans believed he was excluding Luke Watson because his father Daniel "Cheeky" Watson and his uncle, "Cheeky's" brother, Valence Watson, had refused to play for the Springboks back in the days when black players were not allowed to play for South African national teams and opted to play for black clubs with black players in the black townships.

It's not enough to have a winning team in South Africa, you have to make sure it is racially balanced as well, and fast. You have to embrace transformation. Any sign that racism is driving your decisions to exclude certain players, even if those players are white, like Luke Watson, and you are a white coach, like Jake White is, you will hear a lot of protest noise. So Jake White might win the rugby world cup come the twentieth of October here in Paris and not have a job as South African national rugby coach the next day because sport is supposed to be a transformation tool - a symbol of national identity and tool for national unity - and the senior Springboks don't seem to be winning in that department. This is very different to the fact that France can win the biggest World Cup of them all, the FIFA Soccer World Cup with an almost entirely black squad comprising in part of expatriates and this is not seen as an abnormality. In fact, the French nation celebrates and rejoices! in the well-deserved win.

In South Africa sport and integration means that sport must be a transformation tool, it must push for peace and help stop violence on our streets, it must help lower our unemployment rate, it must be a big part of our education drive, it must, like it did so brilliantly when Nelson Mandela wore that jersey back in 1995, help us reconcile as a nation and forge our way to a loving, not just tolerant, but loving coexistence alongside each other which is why a lot of South Africans are behind Jake White and his men and will celebrate when he wins. After all, and in addition to doing all the above, even in South Africa, sport must inspire by producing winning teams.

That is now. But what of the future of sport in South Africa and other developing nations?

I once read a beautifully written profile of Lucas Radebe, a former captain of the South African national soccer squad and Leeds United in the English Premier Soccer League, in a magazine called Leadership back home. I clearly remember how the writer of that article likened modern day soccer players to past century, Roman era, gladiators. He drew a striking parallel between the colosseum where the gladiators fought animals and each other to stay alive (and maybe win their freedoms) to modern day stadiums where soccer players ply their trade primarily for the same reasons. After reading that piece, I remember realising that, especially in countries like South Africa, we have great ambitions to be gladiators in the sport arena. We have ambitions to fight in the colosseum.

I believe that it is time for us to have ambitions of becoming the men and women who have the power to raise our thumbs, or lower them to determine the fate of gladiators in the arena. We have to get to a point where we too are emperors of our sporting fates.

This is why the hosting of the FIFA World Cup in South Africa and by extension and as per the South African bid, the continent of Africa, can be such an important catalytic tool. Hopefully, through the successful handling of this great and enormous responsibility, the world can begin to respect our sports business acumen, our organisational skills together with our sporting prowess. When those countries, like ours, that are supposedly on the margins of world development get to be respected in this well-rounded manner by the rest of the developed world, we will see the true potential of sport. It is then that we will unmask the truly positive impact of sport, worldwide. If, for example, the Premier Soccer league in South Africa were run as efficiently, ethically, professionally and profitably as the ones in France, Portugal, England, to name a few in the developed world, we could be talking about an industry big enough to expand our country's GDP quite significantly and thus !

Help transform our country for the better, faster. There is a cost to everything I always tell my NGO friends. Even the late Mother Teresa had to raise money to feed the poor. And it is the business side of things that generates the money needed.

When developing countries can play in the business arena of sport - truly cultivate and develop the industry of sport and all its benefits - like their wealthy nation counterparts, we will see the wonderfully positive transformative influence of sport because it is the business of sport that is the key to improving the lives of many people in the world today, whether it be from a health perspective, a money perspective or psychological perspective.

I sincerely hope that you, in the developed world, will help to facilitate the speedy transfer of sports industry knowledge that those in the developing world need, "For to be free ", said Nelson Mandela, "is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others ".

Thank you very much for listening.

Llyod Wesley Fortuin Attorney, South Africa

1. Introduction

This paper will examine whether transformation is still relevant in South African sport today. The question should be asked whether we have not reached a point where a democratic South Africa should be allowed to compete internationally and to put forward their “best” players. This issue has been discussed by numerous authors and this paper will attempt to answer the question whether the proverbial playing fields have been leveled sufficiently to put this controversial topic to rest.

In 1988 The South African Council on Sports (SACOS) in a paper called “ A New Perspective and Direction for Sacos” discussed the issue of the factors influencing sport as follows:

"Like all areas of social life, sport has been greatly influenced by the institutionalized divisions and inequalities that serve to differentiate society. There are three general categories of social stratification in industrial society viz: class inequality, racial inequality, gender inequality. "

After the first South African democratic elections, the African National Congress (ANC) in their Social Transformation Policy reaffirmed this view and stated that the South African Government must support efforts to correct the distortions and imbalances in our society as it is obvious that South African sport teams do not reflect the racial demographics of our society. In short, they re-emphasized that there is a great need for transformation in sport.

2. Definition of Transformation

It is important to agree on what transformation is before we discuss whether it is needed or not. The former Director–General of the Sport and Recreation Department of South Africa, Professor Denver Hendricks, defined transformation in the policy document Transformation in Sport, Policy and Procedures, Sport and Recreation in South Africa as follows:

"Transformation is a conscious, deliberate, planned and goal-directed process of fundamentally changing the conditions that have in the past led to the deliberate exclusion of the majority of people in South Africa from meaningful participation in sport and recreation and from taking their rightful place in the sports movement of the world. "

In on of the chapters in the book called Introduction to Sports Law by Cloete et al , the authors neatly summarise part of the transformation debate as follows:

"As the South African society struggles to come to grips with its past and the social and political reforms that have taken place in recent years, sport will continue to lead the way. Sport will continue to be looked at to determine whether South Africans are succeeding in the attempts at nation building, not only by people in South Africa but also by the international community. It is with this in mind that the question of transformation in South African sport should be considered. The greatest challenge to sport in South Africa today, is the management of change in ways that will eliminate crude references to race, yet promote the ideals of harmonious co-existence, working together and playing together. This challenge encapsulate the need in South African sport for affirmative action programmes that will redress the imbalances that have been created as a result of institutionalized racial discrimination not only in sport but also in society in general. Many of the challenges with which South African sport is faced in this regard, are not directly related to discrimination within the sporting community, but reflect wrongs that have been committed in the social, economic and political spheres. As a result transformation of sport in South Africa cannot take place in isolation, but has to follow and account for transformation of the South African society in general.".

The need to transform sport in our society has not been widely accepted. Commentator Anton Barnard in an article entitled "What is wrong in South African Sport?" states the following:

"There is an obvious reason for this: The broader failure of South African society as a whole. The difference between South Africa and its southern sporting neighbours lies in the ANC's much vaunted transformation. In practice its means systematic retreat from excellence in the name of equal opportunity ".

The three views expressed above give an indication of how divisive the debate is in our country and these views set out the foundation underpinning the transformation debate in South Africa. There is a great reluctance to transform sport in certain sectors of our society and therefore transformation cannot be viewed in isolation and we must always be conscious of the broader transformation debate in South African society being to create a non-sexist, non-racial and non-discriminatory society.

In a series of articles, Andre M Louw raises the debate of transformation in the context of professional sport in South Africa today. In his article titled "Transforming South African Sport Professional Sport: some Observations on Recent Developments" he writes as follows:

"In examining transformation in South African sport, an ominous picture emerges regarding the social engineering role of government and the way in which this role is being fulfilled. The impression one gets is that sport is seen as soft target in the process of social transformation. Is it possible that Government has identified sport as the focus of such radical transformational policies for the following reasons?: - Sport enjoys a very high degree of visibility; - Sport might be seen as the ideal area where quotas can be used for the sake of rapidly changing the face of our society, as it is (mistakenly) viewed as an area of activity where the merits of participation can take a back seat because athletes need no formal education of qualifications; - Sport might be viewed as the ideal stage for government to flex its muscles in social transformation, as an area that involves vested minority interests and which is tantamount to hitting critics of change (in other sectors) where it hurts most. "

3. Setting the scene

In September 2006 Judge Jajbhay delivered a paper at the Transformation of Sport in South Africa Sports Law Conference held at the University of Stellenbosch. He started off with by looking at the preamble to our Constitution and stated that:

"The preamble to our Constitution enjoins us as a nation to: recognize the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity. The preamble further enjoins us to: "improve the quality of life of all citizens and free the potential of each person; and build a united democratic South Africa to take its rightful place as a sovereign state in the family of nations."."

Judge Jajbhay then examined the historical context of sport in South Africa and stated that:

"South Africa's entry into the international arena and the total reorganization of all sports within the country was predicated on the momentous and fundamental political changes in this country since 1990. Undoubtedly, sport played a very significant role in the isolation and eventual destruction of the apartheid regime, and it is now necessary that sport plays a similar role in the construction of a new non-racial, non-sexist and democratic South African nation. "

Judge Jajbhay continued in his paper to examine transformation from a legal premise and stated that:

"Any discussion on transformation must be premised on the bedrock of the Bill of Rights and in particular section 9 of the Constitution which deals with equality. This section sets out the following: 9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) 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. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly of indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. "

Judge Jajbhay then examined recent case law and remarked:

"Within the South African context, it must be appreciated that the achievement of promoting equality may often come at a price for those who were previously advantaged. Here, action will have to be taken to advance the position of those who had suffered unfair discrimination in the past. Ngcobo J obsereved in Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC):
"The measures that bring about transformation will inevitably affect some members of society adversely, particularly those coming from the previously advantaged communities." "

In the case of Minister of Finance and Another v Van Heerder (2004) 25 ILJ 1593(CC) Sachs J sets out the following:

"The main difficulty concerning equality in this case is not how to choose between the need to take affirmative action to remedy the massive inequalities that disfigure our society, on the one hand, and the duty of the State not to discriminate unfairly against anyone on the grounds of race, on the other. It is how, in our specific historical and constitutional context to harmonise the fairness inherent in the remedial measures with the fairness expressly required of the State when it adopts measures to discriminate between different sections of the population. "

After examining aspects of the Constitution and case law, Judge Jajbhay drew an important analogy i.e.:

"The same can be said of institutions changed with the responsibility of administering sport in our country. Section 9(2) and 9(3) are not competitive in their nature, nor do they represent alternative approaches to achieving equality. In fact they are cumulative interrelated and indivisible. The necessary reconciliation between the different interests are those positively and negatively affected by affirmative action should be done in a manner that takes simultaneous and due account both of the severe degree of structured inequality with which we still live, and of the constitutional goal of achieving and egalitarian society based on non-racism and non-sexism. "

Sachs J continue in Minister of Finance and Another v Van Heerden when he held:

"In this context, redress is not simply an option, it is an imperative. Without major transformation we cannot "heal" the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. At the same time it is important to ensure that the process of achieving equity is conducted in such a way that the baby of non-racialism is not thrown out with the bathwater of remedial action. "

The Speaker then examined the noted writers Louw and Cornelius and states:

"... in the drafting and application of transformation charters, sporting codes are not immune from taking cognisance of the Constitution and legislation that have been enacted regulating affirmative action policies. Presently, there is a lack of cohesion between sports-specific legislation sanctioning transformation and labour legislation".

Andrè Louw argues in his document "Sports Transformation in South Africa: A Critical Analysis of the Application of Affirmative Action in Professional Sport" that:

"... Government has failed to show proper consideration or recognition of the significant differences in the transformation debate. This also implies a devaluation of the role of merit selection in sport generally, and in professional sport specifically. "

In this regard, Cornelius "Leveling the Playing Field: Affirmative Action in Sport in South Africa" International Sports Law Journal (2002/3) 2, describes sport as a microcosm of society and states the following:

"Many of the challenges which South African sport in faced (in regard to transformation) are not directly related to discrimination within the sporting community, but reflect wrongs that thave been committed in social, economic and political spheres. As a result, the transformation of sport in South Africa takes place in isolation, but has to follow an account for transformation of the South African society in general".

Judge Jajbhay concluded by examining the role of Government. He stated that:

"government's action in monitoring the implementation of equal opportunity and affirmative action within the various sporting codes is not a simple task. The predicament Government suffers in monitoring or even interfering in selection policies is "damned if you do, and damned if you don't ".
It is imperative to understand that past unfair discrimination frequently has ongoing consequences, a continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, they continue for a substantial time and even indefinitely. Like justice, equality delayed is equality denied (National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC). Sports will help us as a nation to articulate and mould moral and intellectual values which will energise and rationalize our human experiences. This influence is of particular significance in our country.

4. Response to Judge Jajbhay

Andre M Louw, in a response to the above paper, wrote an article entitled "Yet another view on the transformation of South African Sport" which highlighted aspects which he felt needed to be examined more closely. The aspects were as follows:

1. 1. Whether government's transformation agenda and it's implementation to date has ever sufficiently addressed the question of whether race – based affirmative action has any place in the professional sports entertainment industry;
2. 2. Whether the measures, policies and programmes we have seen implemented to date, which have largely been premised on the application of a race – based quota system to sports teams, can in any conceivable way be reconciled with the applicable labour legislation's express condemnation and prohibition of such measures in all other sectors and workplaces;
3. 3. On the difference between 'targets' or 'numerical goals' and quotas;
4. 4. Whether the proponents of these affirmative action measures have ever (sufficiently) addressed the questions as to economic consequences of such measures for the professional sports industry and it's participants as well as other stakeholders such as sponsors.
5. 5. What is 5?

For purposes of this essay I view Louw's point number 5 in his response paper as the most important. I quote at length as he sets out his argument.

He states:

"It remains my contention that there are serious flaws in government's transformation agenda in sport in South Africa, especially as it relates to the professional sports industry. While I realize and acknowledge the urgent necessity for real and substantive transformation, it is contended that, at the conceptual level, the process should not be aimed at ensuring 'representative' sports teams in the meaning apparently attributed to this concept.

"In the light of the importance of merit in sport, it is crucial that government should bridge the conceptual gap between the interaction of merit and the constitutional imperative of redressing past discrimination and injustice. In the light of the role of merit in determining "entitlement" to participation in (professional) sport, how can "representitivity" in the meaning of "80% black" South African sports teams ever function as indication of a just system? ".

"It has been contended that the focus should rather be on assuring transformation to a system of fair access to opportunities at all levels. Our efforts at transforming sport should concentrate on eradicating the pervasive inequalities inherited from an unjust system in the past, in respect of existing infrastructure, social and economic inequality and lack of opportunities for previously disadvantaged athletes, in the hope that these efforts will serve to attain more equitable representation of all groups in the near future ".

"It is troubling to see that the issue of transformation has provided a major source of division between government and private organizations involved in sport. It has proven to be the single biggest burning issue upon which sports administrators are often taken to task by the Minister of Sport and members of Parliament. This raises the question of how best to marry the needs and challenges regarding transformation with the structures of sport and the interest of stakeholders. Arguably, mass participation and development programmes, school sports and infrastructure delivery systems are the ideal vehicles for promoting such government policy goals - at elite and professional levels, the practical nature and characteristics of international global sport requires that domestic policy should not unduly interfere with existing market forces. "

To summarise, Louw is of the opinion that the following should be noted:

1. 1. The professional sports industry should not be viewed in the same light as other sports when it comes to transformation;
2. 2. It is crucial that government bridge the conceptual gap between the interaction of merit and the constitutional imperative of redressing past discrimination and injustice;
3. 3. The focus should rather be on assuring transformation to a system of fair access to opportunities at all levels;
4. 4. The needs and challenges of transformation must be married with the structures of sport and the interests of stakeholders;
5. 5. What the ultimate goal of sports transformation is.

5. Full name (SASCOC) position paper

The President of SASCOC, Moss Mashishi, in a position paper dated 30 August 2005 declared 2005-2014 to be the decade for fundamental transformation and development. He states that:

"the desire and the sense of urgency amongst South Africans to eradicate apartheid in sport remains intense, and has found universal expressions in the term "transformation". This term has became the clarion call of a nation seeking to effect a fundamental change in sports and ensure that sport reflects the demographics of our country and on merit produces excellence in performances drawing from all the talent in our country, black and white ".

Mashishi warns against simplicity by stating that:

"In order to effectively address the myriad of issues posited by the challenge of transforming sport, we must first avoid simplistic assertions about racism in sport and knowledge that the root causes of the current disparity in our sport are multifaceted and complex. The response therefore has to be equal to the task, comprehensive, systematic and scientific, rather than emotional, accusatorial and opportunistic ".

6. Sport as a nation builder

Professor Marion Keim Lees from the University of the Western Cape presented an interesting perspective on "Sport as Opportunity for Community Development and Peace Building in South Africa" at the International Conference in Sport and Development at UWC in April 2006. She remarks, correctly in this author's view, that in the struggle against apartheid in South Africa, sport played a crucial role as a dynamic part of the civil society. Sport, Professor Lees states, plays a vital role in modern contemporary society. Sports bridges cultural dialogue, understanding, unity, tolerance and peaceful existence. It is her opinion that sport has a meaningful function for social transformation, community development and peace building in South African Society.

Professor Lees is of the opinion that until the priorities of South African sport are realigned to meet the desires and needs of all the people of South Africa for healing, transformation and genuine peace–building, there is no doubt that conflicts due to scarcity of resources, aggression, crime, corruption and violence in the communities and in sport will continue.

This illuminating presentation discussed above has challenged sport administrators to align sport with the national agenda of transformation. It is interesting that Professor Lees continues on the theme that SACHS J stated in Minister of Finance v Van Heerden when he said: "Without major transformation we cannot heal the past ".

7. In Conclusion

In the book Introduction to Sports Law in South Africa, the authors states:

"Sport is an integral part of a society and has been for thousands of years. Events and occurrences that impact on society must inevitably have an impact on the sport practices within that community. These influences begin with the individual and the family; extend further to religious groups and beyond that to economic, legal and political influences. These influences also range from the local environment to the national level and beyond to the transnational and international levels. One thing is certain; sport does not exist in isolation. "

Transformation for this author involves many aspects as alluded to earlier. The Western Cape Audit revealed the stark absence of black administrators in key positions. It is thus imperative as the audit recommended that programmes be put in place that will address these aspects. Sport will not flourish if there is a perception that a particular sport is not representing all the communities within an area.

The playing fields (letterlik of figuurlik?) are of course the most visible aspect of sport. It is thus obvious that transformation, like justice, must not only be done but must manifestly be seen to be done.

Government will, correctly, in my view, argue that transformation is part of nation building and indeed of healing the wounds of the past. The nation needs healing from its past and government has a duty to ensure that teams leaving the country are reflective of SA and not only a segment of society.

The question of affirmative action in professional sports is of course a vexed one. One probably need as Louw argues, a balance of weak affirmative action and strong affirmative action. Commercial needs may dictate that transformation takes place in the lower ranks to a large extent.

Of course national teams are seen as national assets and the symbolism of the team should not be lost. The international community and South African in general looks to its sports community to see what changes have been made. If no visible change is apparent then the morale of the nation is affected and the transformation of society will be viewed as being either slow or non-existent.

Books:

• Cloete R, Lexis, Introduction to Sports Law in South Africa, 2005

Articles and seeches:

1. Jajbhay J. "Transformation of Sport in South Africa" delivered at the Sports Law Conference at Stellenbosch University, 14 September 2006.
2. Lees Marion Keim Prof, "Sport as Opportunity for Community Development and Peace Building in South Africa" delivered at the International Conference on Sport and Development at the Universety of the Western Cape, April 2006.
3. Mashishi Moss, "Towards Equity and Excellence in Sport 2005-2014; A Decade for Fundamental Transformation and Development", 30 August 2005
4. Western Cape Department of Cultural Affairs and Sport, Transformation Indaba held at the Hawthorne Country Inn, George on 19, 20 November 2004, December 2005
5. Western Cape Department of Cultural Affairs and Sport, Audit Transformation Questionnaire, 2005.
6. MDZ Consultants,Results of 2005Questionnaire, July 2006.
7. Louw, A.-M. "Should the playing fields be leveled? Revisiting Affirmative Action in Professional Sport-part 1: The Background and context",tellenbosch law Review Vol.15 No.1 (2004) 119-136
8. Louw,A.-M. "Should the playing fields be leveled? Revisiting Affirmative Action in professional sport – Part 2: The professional Sporting Context Stellenbosch Law Review Vol.15 No. 2 (2004) 225-246
9. Louw, A.-M. "Should the Playing fields be leveled? Revisiting Affirmative Action in Sport – Part 3: Testing the Legitimacy of Affirmative Action in Professional Sport"
10. Stellenbosch Law Review Vol. No. 3 (2004) 409-428
11. Louw, A.-M. "Transforming" South Africa's Professional Sport: Some observations on Recent Development saw, democracy & Development 2005 (2) Vol. 9
12. Louw, A.-M. "Yet another view on the Transformation of South African Sport" LASA publication March 2007