I am in a bit of a fix: I often complain bitterly about the tendency of officials and politicians to ignore the clear provisions of the Constitution or relevant legislation to achieve politically expedient goals. On this Blog I have ranted about the unlawful release of Schabir Shaik, the probably unlawful firing of Vusi Pikoli, the failure of the JSC properly to investigate complaints against Judge President Hlophe, the probably unlawful dropping of charges against President Jacob Zuma and any number of other matters where the Rule of Law was not adhered to.
Does this mean I should applaud sports Minister Makhenkesi Stofile’s decision not to assist with the granting of citizenship to one of my heroes, Tendai “Beast” Mtawarira? Mtawarira was born in Zimbabwe and although he has already played 15 test matches for the Springbok Rugby team it now transpires that those bright sparks at Springbok Rugby have never made sure that Mtawarira becomes a South African citizen. Only South African citizens can play for the national team so now we will have to take on France on Friday night without “The Beast” in the front row. It’s a disaster.
On its face, the Minister is acting in an admirable fashion, sticking to the rules and upholding the Rule of Law. The Sports Ministry explained the decision last night in the following terms:
This request to have the Minister use his position to have the process of securing permanent residence and subsequently, citizenship expedited ahead of the year end tour in Europe, has exposed our sport administrators’ clear disrespect or lack of understanding of our laws.
Talented as he is, Tendai, like all foreign nationals plying their trade in South Africa, is bound by the laws of this country. The migration laws of our country are clear on issues relating to permanent residence and citizenship. We expect our sport administrators to understand and respect legislation that regulate their business. None of the athletes, sport codes, or federations can be bigger than the country.
While Tendai is a live wire on the field of play, the question is whether it is, in the first place, justifiable to say he has scarce skills – the rationale that would have enabled him to obtain the current work permit. If we go the route our rugby administrators are requesting us to take, and facilitate the fast-tracking of Tendai’s citizenship, what would this say to all rugby players in our country? We cannot as a government department responsible for sport and recreation in this country, afford to insult our players like this.
It is clear that the managers at Springbok Rugby did not do their jobs properly. Now they want to Minister to fix their problem for them. Surely, the Rule of Law requires the Minister to treat everyone the same and not to do special favours for “The Beast” just because he would have grinded the French front-row into the ground on Friday night if he had been allowed to play.
The South African Citizenship Act 88 of 1998 states that the Minister may grant South African citizenship to an applicant who can show, amongst other things, that he or she has been a permanent resident for at least one year, has lived in South Africa for at least four more years, is of good character, he or she intends to continue staying in the country, can speak at least one of the official languages and ”he or she has an adequate knowledge of the responsibilities and privileges of South African citizenship”.
The Minister has a discretion to grant citizenship, but can only grant citizenship if the prescribed requirements are met.
The problem is that even if the Minister had wanted to help SA Rugby, all the requirements that would have allowed him to grant citizenship are not in place. Although “The Beast” has a work permit, he is not a permanent resident of South Africa. He could legally be granted permanent residency by the Director General of Home Affairs in terms of 27(b) of the Immigration Act 13 of 2002 because he ”possesses extraordinary skills or qualifications”. The DG has a discretion in this regard and if he wants to, he would be well within the limits of the law to issue Mtawarira with a permanent residency permit. The Minister would then be legally entitled to grant him citizenship one year later without breaking any laws or disrespecting the Rule of Law.
By the way, the Act actually does not refer to “scarce skills” as the Ministry of Sport seems to think. What is required is “extraordinary skills”. Surely being able to scrum Rugby opponents of the highest calibre to a pulp must count as “extraordinary skills”. So one wonders – based on the statement above – whether the Ministry of Sport is perhaps less concerned about the Rule of Law and more about teaching those pesky Springboks a lesson. Isn’t this a bit petty?
Sport-on-TV is the opiate of the masses!
Minister Stofile’s decision, as you argue Prof., may be in accordance with the prescripts of our laws but I suspect the issue is bigger than we’re being led to believe. I suspect he’s got an axe to grind with the SA Rugby bosses especially when you consider that the inclusion of “the Beast” in the Boks line-up appears to be in accordance with the coveted issue – transformation.
It would sadly be a continuation of the abuse of the public powers by those upon whom they have been conferred, which has characterised the respective government, if it were to be established here that the Minister indeed has an axe to grind with the SA Rugby bosses, as such public powers would have been utilised for an ulterior purpose and thereby rendering the Minister’s decision illicit.
I guess we have to wait to see how this goes…
PS: It is interesting how often authorities expressly manifest their adherence to the laws governing their powers when it suits them and how (un)skilfully they raise exceptions when they want to sidestep the same laws when those laws no longer serve their wishes. But I am not implying anything here…
Brett Nortje
What’s your opiate? Playing with your guns?
What is it with SA sport? We’ve got cheats and liars like Chuene in charge of the ASA. We have highly talented cricketers in the Protea squad who can’t add up to four even when it is done for them on a chart and can’t think outside the box they wear in the middle. A shocking ’support’ team for our Olympic competitors. And now we find we have a bunch of no doubt very well-paid rugby administrators who seem incapable of doing their job properly.
I am a bit confused here (and no sarky comments about this being a permanent state for me). Which Minister?
The Citizenship Act (1995, by the way) must clearly be referring to the Minister of Home Affairs.
O shit, I’m almost content to have an ANC-like mentality…release the Beast..bend the rules…but in truth that would just be hypocritical and wrong. Sorry Beast but rules are rules. I’m cetain a few frogmunchers are relieved.
“Mtawarira was born in Zimbabwe and although he has already played 15 test matches for the Springbok Rugby team it now transpires that those bright sparks at Springbok Rugby have never made sure that Mtawarira becomes a South African citizen. Only South African citizens can play for the national team …”
Does this now mean that we have to forfeit the wins with the Beast in the team? Must we give the Tri-Nations cup to the runners-up?
@Anonymouse
I hope that you did pick up my response from your posting from yesterday.
http://constitutionallyspeaking.co.za/thabo-mbekis-strange-relationship-with-the-truth-continues/#comment-21933
Pierre you make one glaring mistake when you say –
“Only South African citizens can play for the national team so now we will have to take on France on Friday night without “The Beast” in the front row. It’s a disaster.”
The IRB sets the rules for this is and according to the IRB’s three-year residency rule (which allows Riki Flutey to play for England, while being a NZ citizen) he can play for South Africa.
There is no law or regulation of the country or SARU stating one has to be a citizen to play for South Africa.
A more simpler conspiracy theory could be this. The Beast is Zimbabwean. Black South Africans don’t like Zimbabweans because they ‘take jobs’ and endanger the victim edifice that’s so important a lever of power in SA politics.
Kameraad, thanks for the correction. I am obviously not an expert on Sport Law – just a fan.
Pierre, for once you’ve got your outspoken bloggers flabbergasted.
Koos, don’t let it be said this Blog does not cover a wide range of topics!
Pierre I will agree with you I too think the “Beast” is one of the greatest and truly wish that the lawful method could be followed to allow him to follow what his clear passion is, what brings massive entertainment to hundreds of thousands of people including myself!
A tribute the the Beast by CombatBok http://www.youtube.com/watch?v=vGSWz8PYHro
No question that “The Beast” is good and rather entertaining as well, but any “fan” would have noticed in the Currie Cup semi-final (Sharks vs. Cheetahs) that the entire Springbok front row had their backsides handed to them by the Cheetah front row. We have options in this country and our current Springbok front row is not necessarily the best, just the favourite. I guess we are no strangers to using the law to protect tokens…
I agree that the Beast has “extraordinary talent’, and is an important part of our scrum. And perhaps it’s true that there is something brewing between Minister Stofile and SA Rugby. However; it is refreshing to see 1. politicians upholding the rule of law (whatever the reason may be) and 2. politicians being sensitive to the greater SA public.
I daresay a large part of the population might not be too happy with a Zimbabwean getting that kind of special treatment; as the Minister himself says – this might be offensive to SA rugby players and the SA public. I love the Beast but I would definitely be offended if the rules were bent for him.
Otherwise, looking forward to the match tonight!
I am with Charles Scheepers here. As nice and entertaining as it is to always shout “Beast” when one is watching this man play, we ve got a lot of talent here in the Free State Cheatehas. If only Mr De Villiers can just wear glasses to see that there is a lot more talent even from within “blacks in general, but africans in particular” who were born in South Africa.
One has to congratulate the Ministry on its decision without any reservations.
Eish, please ignore a bit in the ” ” in my post above. I just dont want to add to the rapid growing list of black racists. I want to resist the temptation with every fibre of my body and believe all blacks (no matter how tempting) must resist it as well. Otherwise the death of my grandfather who died in exile fighting for a free and democratic society would be in vain.
Prof,
Do you mind doing a piece on this:
http://www.mg.co.za/article/2009-11-13-dikgang-moseneke-the-businessman-judge
I think that this goes back to the whole xenophia issue – there are hardly black SA citizens who start the game and as highly respected as Tendai and as said by another writer above black SAs do not like Zimbabweans because ‘they take their jobs!’ And as much the Minister is within his rights as you say Prof but one has to wonder is there more than what meets the eye here? I guess time will tell!
I saw on SABC News last night that Oregan Hoskins has decided to play the Beast tonight in defiance of Stofile’s mouth washing tongue lashing that he may not play because he is not an RSA citizen. This, as pointed out by Kameraad Mhambi, is of course nonsense – there is no such rule in international rugby. Indeed, the beastt has played a number of games for the AmaBokoBoko already. Players from other nationalities (e.g., Namibia) have in the past played for the national team. The thing is, like Kameraad Mhambi has said: “A more simpler conspiracy theory could be this. The Beast is Zimbabwean. Black South Africans don’t like Zimbabweans because they ‘take jobs’ and endanger the victim edifice that’s so important a lever of power in SA politics.”
This is clearly just another attempt by Stofile to tell the national sports organizers what he wants them to do and what not. In other words, political meddling into the affairs of sports – which is illegal in terms of the rules of international sports organizations.
Just look what happened in the Caster Semenya saga – in the end, the ANC sitting with egg on the face because they first believed Chuene’s lies (or failures to disclos), and entered into one heluva furore that the international athletics org is being racist, anmd sexist, and everything that is bad. Politicians should keep themselves and their petty politics (and yes, in sports I believe requiring TRANSFORMATION along racial and gender lines is nothing but petty politics, with political goals that have nothing to do with the goal of sport, which is to excell and, if possible, to win competitions) out of sport.
I think Solidarity and others have long ago made the point that, if transformation and national politics are forced upon national sports organizations, those sports organizations could be banned by the international bodies from participating. Is this what Stoffie really wants? If so – he is certainly a stupid, self-serving man.
I believe that this goes back to the unfortunate statements made during the attacks of May 2008, non-SAs residents ‘take our jobs’, its unfortunate that even after the attacks it sort of points in that direction!
Like you said Prof Tendai may be considered as possessing ‘extra-ordinary skills’ so what then is the problem! MInister is within his right but I can’t help but wonder about the motivation of his decision! It seems there is more here than what meets the eye! Guess will have to see how it plays out in time!
OK, what law or rule is being “upheld” by the Minister? Where does it say Beast can’t play?
@ Anonymouse, Mhambi et al
I will proceed from the premise that the Beast is not barred from playing for the Boks night without admitting the veracity of same.
Kindly let me know;
On what basis must the Beast play for South Africa tonight? Merely because he is not barred or is it because we do not have South African (as opposed to Zimbabewan) rugby players who can take his place and perform equally if not better for the SOUTH AFRICAN NATIONAL team?
at Sne
yes currently we do not have any one better than the beast in his position!
@Sne
You should try and keep the issues separate.
One issue is whether players are chosen not on merit but on race.
We can debate that. Me personally? I’m against race based selections.
You could for instance easily argue that Beast is not the best loosehead scrummager in the country. I’d agree. The Curry Cup semi proved that convincingly.
But you could also easily argue that he is one of the most mobile props. And if you have a good strong tighthead (which we don’t) having a mobile loosehead can make rugby sense. If Beast was chosen only because he is black then for me it would be an issue. I don’t think in his case it’s that clear cut.
That is one issue.
The issue here is a different one though.
The IRB does not require citizenship, but merely 3 years of residency. Neither have we required that up until now. It seems dodgy, arbitrary and spiteful to say the least.
Yes, Sarah. I prefer to play with my gun.
Who cares? Its rugby!
Kameraad Mhambi says:
November 12, 2009 at 15:19 pm
“There is no law or regulation of the country or SARU stating one has to be a citizen to play for South Africa.”
Dead wrong, Mhambi it appears you were. The November 2007 amendment to the National Sport and Recreation Act, 1998, states:
http://www.mg.co.za/article/2009-11-20-a-beastly-affair-for-sa-sport
The act you refers to foreign nationals recruited and makes no mention of people already resident in the country and playing for a province.
And the article you refer us to states:
“The key word is “suitable” and it raises an awful lot of questions. That’s because the sporting codes of this country are awash with foreign nationals, the vast majority of whom could hardly be described as indispensable. That being the case, dozens of PSL soccer players should be on the next plane home, not to mention the current coach of Bafana Bafana, who falls under the definition of “administrators or support staff”.
If Saru has to justify picking The Beast, it could make out a far better case than Safa could for Carlos Parreira. That’s because the sport of rugby union specifically singles out the front row of the scrum as an exceptional area requiring highly trained individuals. The laws now insist that if a prop or hooker is injured in the course of a game and no suitable (that word again) replacement remains on the bench, uncontested scrums will occur to minimise the chance of injury.
Safa might argue that Parreira’s coaching expertise is not replicated by a South African national, but it would be hard pressed to justify the appointment of Joel Santana on the same basis. In the words of the department’s press release, “the concept ‘scarce skills’ was vulgarised”.”