Controversial legal ruling clears Swimming South Africa’s executive of violating own constitution

Olufunke Gando of South Africa during the World Aquatics Championships 2023 Women's match between France and South Africa on July 24, 2023 in Fukuoka, Japan. (Photo by Albert ten Hove/BSR Agency/Getty Images)

By Keanan Hemmonsbey

21 Feb 2025

Swimming South Africa’s executive members, with terms in excess of the three permitted by its constitution, look likely to continue without sanction after technicalities on when the changes were made to the code.

South African Sports Confederation and Olympic Committee (Sascoc) and its lawyers have found that Swimming South Africa (SSA) is not in breach of its own constitution despite actions to the contrary.

SSA came under fire last year after four of its executive members, including president Alan Fritz, were re-elected for terms exceeding the three-term limit set in its own constitution.

At the time, in August last year, Matt Kemp, a registered member of SSA and director at law firm Becker Kemp Solicitors & Attorneys, sent a letter to SSA and Sascoc disputing the eligibility of the aforementioned quartet to be allowed to be nominated to the executive committee.

In response, SSA shrugged off the matter while Sascoc has taken six months to respond.

Sascoc referred the letter to its lawyers, HJW Attorneys, for legal opinion.

coetze swimming south africa Pieter Coetze before winning gold in the men’s 50m freestyle during the SA National Aquatic Championships on 13 April 2024 at Newton Park Swimming Pool in Gqeberha. (Photo: Anton Geyser / Gallo Images)

HJW Attorneys found that because SSA’s constitution was changed in 2018 to limit the number of terms an executive member was allowed to stand for, the years preceding the change in constitution were slated clean.

“In addressing the dispute, it is evident that the South African legal system is reluctant to apply provisions and statutes retroactively,” Sascoc’s letter in response, outlining the legal advice, read.

“In line with the presumption against retroactive application that has been evidenced by our courts, the limitation on the term of office introduced by the 2018 constitution does not apply retroactively.

“Resultantly, this would negate the current dispute as the limitation on the term of office of Executive Officers only became effective in 2018, irrespective of how many terms of office the Executive Member had previously served.”

Back and forth

Sascoc’s reply to Kemp, which Daily Maverick is in possession of, does not ascertain whether the legal opinion of HJW Attorneys is the official decision of Sascoc.

Kemp, in response, has claimed that Sascoc’s legal response is “problematic”.

“It appears, from paragraph 3 of your letter, as though Sascoc is simply sharing a portion of external legal advice that it has received, however, the conclusion that, ‘(Sascoc) trusts that (the advice) has resolved the present dispute’ raises several serious concerns,” Kemp’s response to Sascoc reads.

“Specifically, the status of your letter is unclear. Is it: (i) a definitive decision which has been taken by Sascoc, indicating a conclusion to this matter; (ii) a representation of Sascoc’s considered opinion on the issue, reflecting its adoption of the legal advice (but not its final decision or finding); or (iii) simply a report of Sascoc’s attorneys’ opinion, without any further consideration or endorsement by Sascoc?”

Olufunke Gando of South Africa during the World Aquatics Championships 2023 Women's water polo match between France and South Africa on 24 July 2023 in Fukuoka, Japan. (Photo: Albert ten Hove / BSR Agency / Getty Images)

Kemp has also claimed that Sascoc’s response is in violation of its own constitution in his request for an initial dispute resolution.

Article 50.1 of Sascoc’s constitution reads as follows: “50.1 Every body or individual falling under the jurisdiction of Sport SA shall ensure that any sports-related or institutional dispute that it has with a body or individual falling under the jurisdiction of Sport SA or any dispute with Sport SA, itself, is resolved in accordance with the dispute resolution mechanisms of Sport SA as outlined in this constitution and its by-laws.”

There has been no mediation or arbitration between Kemp and Sascoc, but despite this, Sascoc has deemed the matter “resolved” in its letter to Kemp.

For the time being, SSA’s executives are free from any repercussions of ignoring their constitution, but the matter has not reached a conclusion yet.

Minister of Sports Gayton McKenzie has also promised to look into the matter. He had said he would do so at the start of February, but there has been no updated progress from his side as yet. DM

Daily Maverick reached out to Sascoc for comment but had not received a reply by publication deadline.

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