No South African would quibble with the argument that large events should be spectator-friendly. Most of us loved FIFA World Cup 2010 as the extra efforts from organizers, government and security services meant a safe and secure environment. The packed stadiums and venues were ample evidence, if any were needed, that these things are important. The end of FIFA World Cup 2010 also meant that the detailed event-specific municipal rules, which ensured this state of affairs, fell away. This, of course, does not mean that organizers are no longer responsible or liable for shortcomings in event preparation or security which give rise to harm. But it does mean the checklist of requirements which have to be met is no longer there or as clear. The lack of clear guidelines to ensure safe events has been a cause for concern not only in South Africa but internationally. No person having any knowledge of sporting disasters, such as that which occurred at the FA Cup semi final between Liverpool and Nottingham Forrest in 1989 or at Ellis Park stadium during the Soweto derby between Orlando Pirates and Kaizer Chiefs in April 2001, would take issue for the need for clear rules to ensure safety at events.

The Ngoepe Commission of enquiry into the Ellis Park tragedy identified certain shortcomings in relation to preparation for the Soweto derby and the way in which the role players dealt with the difficulties which arose. These included: an underestimation by organizers of possible crowd attendance; a failure to co-ordinate private security firm roles; a lack of crowd monitoring equipment such as closed circuit television cameras; and the indiscriminate use of teargas by security personnel which contributed to the crowd stampede. Since the Ellis Park tragedy the Premier Soccer League and other role players in professional football have attempted to deal with these issues as best they could within their area of jurisdiction. Professional clubs like Chiefs and Pirates are regularly charged with misconduct when spectators misbehave and Pirates, in fact, were charged and sanctioned after supporters invaded the field after confirmation of the Buccaneers League win on the last day of the 2010/11 season. Despite these efforts and significant sanctions against clubs, it is questionable whether this has been, or could be, effective. There is after all only so much a club can do to prevent unsavory incidents and the fact that these have continued despite significant sanctions seems to indicate that more is required.

The Safety at Sports and Recreational Events Act (Act) came into force on 3 August 2010 and is an ambitious attempt at regulating safety and security at events in South Africa. For an Act with such wide ranging aims and consequences, it has received relatively little attention. As the preamble makes plain the intention, which is unquestionably laudable, is to promote “spectator friendly” “secure” events where “the physical well being and rights of persons who attend” “must be promoted and protected”. While the regulations, which the Act allows the Ministers of Sport and Recreation and Police to promulgate, have not yet been finalized, it is clear that the Act places onerous obligations on a range of stakeholders and role players, some of whom are probably unaware of the reach of the Act. For purposes of the Act “event” “means sporting, entertainment, recreational, religious, cultural, exhibitional, organizational or similar events hosted at a stadium, venue or along a route or within their respective precincts”. (The emphasis is added).

Regulated events consequently include but are certainly not limited to, just sport or entertainment. It was interesting to read the ANC youth league President Mr. Julius Malema, publicizing the fact that the South African Police Services would not be welcome at the youth league conference. It is far from clear that he had the right to adopt such a stance without contravening the Act if the conference is as significant as we understand it to be. If the conference is an event as defined, then a host of requirements have to be met before it can be organized let alone take place and there is little doubt that appropriate state functionaries and other safety and security experts could certainly not be excluded unless exemption has already been sought and obtained under the Act. That may, of course, be the case.

When it comes to the question whether an event must be of a particular size or significance before the Act must be complied with, there is some guidance but probably not enough. The stadia and venues contemplated in the definition section must have seated or standing capacity for “at least 2000 persons”. Therefore, these are relatively large, or at least potentially large, events. This is not the case for races or processions along a route. The Act defines a route as follows - “route” means the way or course taken in getting from a starting point to a destination during an event which takes the form of a race or procession.” Arguably any race is an „event‟ and therefore the Act must be complied with if exemption is not successfully obtained. The first section of the Act records that exemptions can be sought and obtained in appropriate circumstances.

The primary obligation to put measures in place to ensure the physical safety and security of persons and their property at an event is placed, in terms of section 4 (1) of the Act, upon controlling bodies, event organizers, or stadium or venue owners “as the case may be” (for ease referred to hereafter as the section 4 (1) persons). Leaving aside precisely what the italicized phrase means in respect of an event such as a professional football match where each of the section 4 (1) persons have a role to play, the definition of each of these persons is not free from difficulty. An “event organizer” for purposes of the Act is “any person who plans, is in charge of, manages, supervises or holds and event or sponsorship rights to an event or in any manner controls or has a material interest in the hosting of an event as contemplated of an event as contemplated in this Act.” The emphasis is added and is cause for comment and probably quite some concern. Do many sponsors know that they have responsibilities in respect of safety and security at an event? Does making sponsors responsible contribute to the promotion of spectator friendly events or will it cause sponsors to shy away completely and so cause the demise of many events? And what of others with a material interest such as broadcasters? There are serious implications for those who transgress the Act and these are potentially civil and criminal. Section 5 (1) of the Act prohibits the organization of an event by any person “unless that person complies with the requirements of section 6 (1) or 6 (3) and section 25” of the Act. Section 6 requires reporting and the provision of sufficient information to the National Commissioner of Police to enable an assessment to be made whether the event in question should be categorized as low, medium or high risk and consequently the obligations placed upon role players including the section 4 (1) persons and a range of state functionaries, local authorities, and safety and security experts. Section 25 requires the procurement of public liability insurance by the section 4 (1) persons as prescribed.  

For purposes of the Act, “organize” includes to arrange, be in charge of or purport to be in charge of, convene, host, manage, plan, stage, supervise, hold an event or hold sponsorship rights to an event.” Almost anyone with an interest or any involvement in an event, including a sponsor, falls within the net and so must ensure that the Act is complied with. The lack of clarity regarding precisely who is required to meet which obligation is to be regretted and could, arguably, detract from the aim of promoting events. It also means that the lack of clarity and co-ordination identified by the Ngoepe Commission may be exacerbated and now be part of the very regulation intended to clarify these matters.  

Once an assessment has been made, the Act goes on to set out detailed steps and measures which should be taken and put in place by the section 4 (1) persons and by state functionaries, local authorities, and experts who must be appointed. Many of these, if in fact achievable, seem reasonable and appropriate. Of course, as with everything, the question is whether those charged with particular responsibilities will have the capacity to meet onerous obligations in a fast moving and complex environment. It may be that to meet these obligations specialist departments and teams will have to be brought into being and subsequently trained. Time will tell. There are also internal appeal processes which make provision for urgent and hopefully informal appeals against decisions which are made under the Act. Unlike the position with most appeal processes, the decision taken will, in terms of the Act, stand until it is actually set aside. Therefore, noting an appeal is not enough, it must actually be heard and an appropriate outcome achieved. All of this will need to happen pretty smartly in the fast paced eventing environment.  

What is clear, is that anyone involved with events at any level will need to think through the extent to which the Act places obligations upon them and the way those obligations will be met. Urgent consideration should also be given to the prospects of an application for exemption from the provisions of the Act where appropriate. The intention is to ameliorate risk in respect of events which by their size, nature, or significance, require regulation, rather than to impose administrative and cost burdens for the sake of it. And it goes without saying that all those involved in the eventing environment will consider the appropriate provisions to be inserted in the contracts they will include with commercial and other partners in future in light of the Act. The draft regulations when issued will no doubt make interesting reading and call for comment from those in the industry. Do not let them pass you by!