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Is South African Sport Failing in it’s Statutory Duty of Care?

Recent cases of historical abuse of children is sport around the world should be of concern to South Africa’s sports administrators. Few South African sports federations and affiliated clubs have in place safeguarding policies for children and vulnerable adults participating in their sport nor do they have in place procedures and practices aimed at safeguarding children and vulnerable adults.  When this situation is weighed against the strong legislation that exists in South Africa aimed at protecting children and vulnerable adults, it is only a matter of time before a sports federation, its affiliated members, staff or office bearers will be called to account for neglecting to address the issue of safeguarding in sport.

Larry Nasser was an osteopathic physician at Michigan State University and doctor to the USA National Gymnastics Team.  He was tried in a major criminal case in the USA for sexually abusing 250 girls and young women, including a number of well-known Olympic gymnasts, dating as far back as 1992.

On January 24, 2018, he was sentenced to 40 to 175 years in a Michigan state prison after pleading guilty to seven counts of sexual assault of minors. On February 5, 2018, he was sentenced to an additional 40 to 125 years in prison after pleading guilty to an additional three counts of sexual assault.

Following his conviction, more than 150 federal and state lawsuits have been filed against him, Michigan State University, the US Olympic Committee, USA Gymnastics, and the Twistars Gymnastics Club. Litigation by victims following the judgements against Nasser is likely to be costly affair for the sports organisations involved.

Under pressure the CEO and entire 18-member board of USA Gymnastics tendered their resignations, as did the President and Director of Athletics of Michigan State University along with four other staff members, and the Head of the USA Olympic Committee.

In the Larry Nasser case heads have rolled and organisations face costly litigation as they are seen to have “turned the other way” or tried to hide the activities of a child abuser instead of immediately contacting law enforcement. This case is but one example of many where children or vulnerable adults have been abused in sport across the world and where costly settlements have been reached between the victims and the sports organisations that failed to protect them.

South Africa is a litigious country, has strong laws protecting children and vulnerable adults, has the highest level of violence against women and children in the world and South Africa sport is neglecting to put in place safeguarding policies, procedures and practices.  It is a disaster waiting to happen that is going to severely damage the reputations and financial position of of individuals and organisations.  It is time for sport in South African sport to waken up to this risk before it impacts on them.

So how does the law protect children and vulnerable adults in South Africa and what are the implications for sports organisations.  An understanding of the CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007 as amended by the Judicial Matters Amendment Act 66 of 2008; Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act 6 of 2012; Judicial Matters Amendment Act 42 of 2013; Prevention and Combating of Trafficking in Persons Act 7 of 2013;Judicial Matters Second Amendment Act 43 of 2013 will help.

This act makes a provision for a National Register for Sexual Offenders and places certain responsibilities on employers and employees.  It also defines who an employer and employee is.  The definition of an employer in the act includes any person, organisation, institution, club, sports club, association or body who or which, as the case may be- (i) employs employees who, in any manner and during the course of their employment, will be placed in a position of authority, supervision or care of a child or a person who is mentally disabled or working with or will gain access to a child or a person who is mentally disabled or places where children or persons who are mentally disabled are present or congregate; (ii) owns, manages, operates, has any business or economic interest in or is in any manner responsible for,or participates or assists in the management or operation of any entity or business concern or trade relating to the supervision over or care of a child or a person who is mentally disabled or working with or who gains access to a child or a person who is mentally disabled or places where children or persons who are mentally disabled are present or congregate.

The legislation makes it clear that sports federations and clubs are employers.

The act goes on to define employees as (a) any person who applies to work for or works for an employer, and who receives, or is entitled to receive, any remuneration, reward, favour or benefit; or (b) any person, other than a person contemplated in (a), who in any manner applies to assist or assists in carrying on or conducting the business of an employer, whether or not he or she is entitled to receive any remuneration, reward, favour or benefit.

The legislation also makes it clear that anyone working in a sports federation or club in a paid or unpaid role is considered to be an employee.

The act obligates employers in respect of employees to apply to the Registrar of the National Register for Sexual Offenders for a prescribed certificate, stating whether or not the particulars of the employee are recorded in the Register. This has to be done for for paid and unpaid employees so it includes volunteer coaches, team managers, and others within a sports organisation or club that may come into contact with children or vulnerable adults.  It has to be done for all future employees and retrospectively for existing employees.

The employer cannot employ anyone on the register if their is any likelihood they will come into contact with children or vulnerable adults as a consequence of their duties.  Failure to vet employees against the registrar and to not employ someone on the register is a criminal offence and is liable on conviction to a fine or to imprisonment for a period not exceeding seven years or to both a fine and such imprisonment.

Employees are required by the act to inform their employers if they have been convicted of a sexual offence against a child or a person who is mentally disabled, or is alleged to have committed a sexual offence against a child or a person who is mentally disabled and who has been dealt with in terms of section 77 (6) or 78 (6) of the Criminal Procedure Act, 1977, irrespective of whether or not such offence was committed or allegedly committed during the course of his or her employment, must without delay disclose such conviction or finding to his or her employer.  They must also disclose any conviction or finding when applying for a role within the organisation. Failing to disclose is a criminal offence liable on conviction to a fine or to imprisonment not exceeding seven years or to both a fine and such imprisonment.

The act has implications for all sports federations and clubs requiring good recruitment practice and vetting of paid and unpaid persons working with children and vulnerable adults.

The CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007 also sets out our duty of care responsibilites in respect of safeguarding children and vulnerable adults and statutory duty to report concerns.

The act states that a person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official. That a person who fails to report that a sexual offence has been committed against a child is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

A person who has knowledge, reasonable belief or suspicion that a sexual offence has been committed against a person who is mentally disabled must report such knowledge, reasonable belief or suspicion immediately to a police official.  Failing to report such knowledge, reasonable belief or suspicion is an offence liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

The act also protects whistle-blowers in respect of good faith reports ensuring reasonable belief or suspicion shall not be liable to any civil or criminal proceedings by reason of making such report.

This means that those who serve in sports federations and clubs cannot “turn the other way” or conceal the activities of a child abuser instead of immediately contacting the police without risking prosecution.

The time has come for South African sports federations and sports clubs to take action to safeguard children and vulnerable adults in sport and to protect individuals in sport from prosecution for failing in their statutory duty of care to protect children and vulnerable adults.

It is worth finishing with a judgement from a child abuse case heard in South Africa last year. Although this case is not related to sport, it highlights the need for authorities such as sports federations and sports clubs to step up when it comes to protecting children and vulnerable adults.

“Judge Bert Bam slammed authorities in the Northern Cape town of Orania, where the family lived until shortly before Poppie’s death, for not taking action even though the abuse was reported to various authorities: 

“The matter was very serious, it involved toddlers yet, surprisingly, authorities including doctors, social workers, teachers, and even dominees (pastors) where bound by a duty to do so, but failed their duty, for unknown reasons, to take appropriate steps to protect the children, and shifted the blame. It may even be argued that these people are accomplices,” said Bam.”

Let us not be accomplices in cases of abuse against children and vulnerable adults. Let us not fail in our duty of care and get safeguarding policies, procedures and practices in place in sport.

For information on safeguarding or assistance visit Safe Sport Africa

#SouthAfricaSportLarryNasserSafeguardingSexualAbuseHarrassmentChildProtectionSportsLaw

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