On 28 May 2020, after consultation with the relevant cabinet members, Minister Dlamini Zuma determined that alert level three will apply from 1 June 2020, and issued regulations governing alert level 3.
Regulation 37(1)(e) of the newly issued regulations provides that "a professional non-contact sport match [may be played, provided that such a match] . may only include players, match officials, journalists and medical and television crew, as per directions issued by the Cabinet member responsible for sport after consultation with the Cabinet member responsible for health".
Regulation 39(2)(b), read with regulation 39 (1), provides that "sports grounds and fields and swimming pools [are closed to the public], except for training of professional athletes and professional non-contact sports matches as referred to in regulation 37(1)(f)".
There are three peculiar features in the abovementioned regulations. First, there is no regulation 37(1)(f) and it therefore appears that regulation 39(2)(b) contains a typographical error and was meant to refer to regulation 37(1)(e). Secondly, and more significantly, it is unclear whether regulation 39(2)(b) permits the training of all athletes, or only those engaged in professional non-contact sports matches. Thirdly, "non-contact sports" are undefined.
Can contact sport teams train?
There ought to be no controversy about the clear typographical error in regulation 39(2)(b), and the reference to regulation 37(1)(f) should read regulation 37(1)(e). Even with the correction of this typographical error, these provisions remain ambiguous. It may mean that all professional athletes can gather at sports grounds and swimming pools for training purposes and in addition, there can be professional non-contact sports matches at such grounds and swimming pools. On the other hand, it could mean that "professional athletes" is to be restrictively interpreted to refer only to the category of athletes which is referred to in regulation 37(1)(e), being those athletes involved in non-contact sports matches.
In our view, the better interpretation is that the reference to professional athletes in 39(2)(b) is intended only to be a reference to professional athletes engaged in non-contact sports matches. If this were not the case, you could have the absurd scenario where professional players play contact sport in training, when that clearly does not appear to have been government's intention. In interpreting these regulations, we have to bear in mind that the purpose behind the regulations is to contain the spread of the Coronavirus.
However, the Minister of Sport said in an address on Saturday 30 May 2020, that professional soccer and rugby players will be allowed to train during alert level 3 and there will be further engagement with the relevant sporting bodies in this regard. We therefore do anticipate that the Minister of Sport will issue further regulations or directions to allow professional soccer and rugby players to train during alert level 3.
What is a non-contact sport?
It is clear that sports such as soccer, rugby, boxing, netball, water polo and basketball constitute "contact sports", and that sports such as golf, running, tennis and cricket do not. But where do sports like team sailing, swimming, polo and action cricket lie? Unfortunately, the regulations do not provide guidance in this regard.
Regulation 37(1)(e) contemplates the Minister of Sport, after consultation with the Minister of Health, issuing further directions and hopefully when such directions are issued, there will also be greater clarity on which sport qualifies as a non-contact sport and is therefore permitted under alert level 3 and under what conditions professional contact sportspeople can train.
Originally published29 May 2020.
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