Swimming SA says controversial clause ‘erroneous’ as it survives court bid

Swimming South Africa (SSA) has admitted one of its constitutional clauses forbidding members from taking legal action against it is “erroneous” and is to be amended.

This emerged during an urgent application by the parent of a competitive child in the Johannesburg high court this week.

The application was struck from the roll for lack of urgency in an order made on Tuesday night.

One of the issues scheduled to be debated in court later under the longer-range element of the application are the lawfulness of articles 14.3 and 19.2 of the federation’s constitution, which are contradictory.

Clause 14.3 states: “Any individual member, club, district or affiliate taking legal action against SSA without following the dispute resolution process will have their membership immediately suspended.”

Clause 19.2 states: “Any members resorting to court/legal action to resolve a dispute will automatically cease to be a member.”

In court papers SSA CEO Shaun Adriaanse agreed the clauses were contradictory, saying 19.2 was “erroneous and is not followed by SSA”.

“A process has been initiated to have this provision amended,” he said

“Before one reaches the legal implications of article 19.2, it is obvious the two provisions cannot be interpreted in any manner that meaningfully allows them to operate side by side.

“It appears the original intent behind article 19.2 was for it to be the ultimate sanction applied against a person that failed to rely on the internal dispute resolution mechanisms, whereas the suspension contemplated under article 14.3 was meant to operate immediately and until a proper disciplinary hearing was convened.”

Adriaanse said the federation had generally only applied 14.3 and explained that taking legal action meant automatic suspension, which was temporary until dealt with at a disciplinary hearing.

But 19.2 has been used against SSA. An attempt to hold a disciplinary hearing against two artistic swimmers suing it for R7.2m was dismissed because, based on 19.2, the federation had no jurisdiction over them.

Adriaanse said amendments were already being drafted. “The executive committee has prepared some amendments to the SSA constitution which includes amendments to articles 14.3 and 19.2.

“These amendments will be tabled before the executive committee early next year, when it will vote on them and the proposed amendments will then be presented at a special general meeting. The amendments will ensure there is no contradiction between the two articles,” Adriaanse said in his affidavit before the court.

The matter arose after the parent made an application in November to, among other things, get their child into a national team for a world championship they reportedly qualified for.

Adriaanse said in papers the child had not qualified and had been included as part of the federation’s policy of giving non-qualifying athletes the chance to gain experience.

“[The child] failed to qualify, but was recommended for inclusion for this event,” he said, adding  SSA had already decided to include the child in the team before the November application.

It was argued in the application this week that the parent, who is also a member of SSA, shouldn’t be suspended for taking action in their role as guardian of the child. Their suspension, it seems, will stand for the time being. 

The parent’s counsel Itumeleng Tshoma said the fourth respondent — Adriaanse — was a law unto himself.