Ken Borland

Despite their dodgy origin, there are many who believed the Social Justice and Nation-Building (SJN) hearings would be a very good idea, something necessary to try and heal the increasingly polarised and embittered environment of South African cricket.

But now that the SJN report has been made public, what a grave disappointment it has been and what a waste of R7.5 million. So much evidence has simply been ignored or totally misinterpreted and the legal flaws within the findings reflect very poorly on Advocate Dumisa Ntsebeza’s standing as one of our finest jurists. Never mind the poor job done by his assistants from Werksmans Attorneys.

It is now clear that the entire focus of the SJN was on getting dirt on Graeme Smith and Mark Boucher. Addressing historic wrongs and racial discrimination was just a side project.

Ntsebeza has found Smith’s appointment as director of cricket to be irregular and has also accused him of racist behaviour in the past. This is despite what I thought was compelling evidence presented by the likes of Cricket South Africa, the South African Cricketers’ Association and former Proteas manager Mohammed Moosajee.

The report almost entirely ignores all of that and goes way outside of its mandate in slamming Smith’s appointment. Surely Ntsebeza is aware that headhunting is a common occurrence in the corporate world and his appointment was approved by a number of people, the majority of whom were Black?

But no, it was racist. As was Boucher’s selection as Proteas head coach.

Enoch Nkwe is a very good coach and, in an ideal world, should be the successor to Boucher. But to say he was discriminated against based on the colour of his skin is ridiculous. It ignores the fact Boucher had more experience and more success coaching at the level below the Proteas and the wicketkeeper/batsman’s immense international knowledge from his playing days.

Three franchise trophies in one season point to Nkwe’s potential, but to equate trophies won in second-tier cricket in the Netherlands, semi-pro cricket or junior weeks, and even a second place in the Canadian T20 league, with Boucher’s achievements is ludicrous. The report also makes no mention of the 3-0 hammering South Africa suffered in India under Nkwe as interim head coach just before Boucher’s arrival.

The SJN could really have done with some advice from an ex cricketer or anyone with some idea of how high-performance sport works. The total lack of expertise in this regard has been made clear by the report. There was an early warning sign of this when legal assistant Sandile July asked why Imran Tahir had not stepped down from the Proteas team to allow another spinner a chance!

I also believe Mr July exhibited a lack of impartiality in his examination of those witnesses who had been implicated. He seemed to implicitly believe that the evidence of the complainants, even those dishonest individuals banned from the game for their involvement in matchfixing, was true.

The allegation made this week that over 250 paragraphs of the complainants’ heads of argument, which were written by July and Fumisa Ngqele, have been simply cut and pasted word-for-word directly into the ombudsman’s report, reflects poorly on the fairness of the SJN process.

These are not just minor matters that need amendment. Most damning of all is Ntsebeza’s own admission in his closing remarks that the evidence presented was not able to be tested. He says he cannot make definitive findings, describing his own conclusions as being “tentative”.

And yet he has happily painted Smith, Boucher, AB de Villiers and various other former players and officials as being racist. The decent thing for Ntsebeza to do would be to pay back half the R7.5 million to CSA for doing half a job, never mind the compensation he might have to fork out for the damage he has done to the reputations of people based on “untested evidence” and “tentative findings”.

Lawyers for various respondents implicated in the Social Justice and Nation-Building Report have stated Cricket South Africa’s board will need to consider “a number of fundamental flaws” in both the process and the findings of ombudsman Dumisa Ntsebeza.

David Becker, the former head of the International Cricket Council’s legal department and the attorney of CSA director of cricket Graeme Smith, issued a statement on Thursday evening on behalf of the lawyers of the respondents, saying there were “concerns about the integrity of the process”.

Smith, through Becker, is going to be fighting the allegations in the report that his appointment as director of cricket was “irregular” and that he was guilty of racial discrimination both in his current position and when he was captain of the Proteas.

“CSA is going to have to consider a number of fundamental flaws in the ombud’s process which have been raised by several respondents,’ Becker said.

“How do you make far-reaching and public findings of racial prejudice … and in the same breath say that they are ‘tentative’ … ? How is CSA expected to implement those findings when the ombudsman has said, by his own admission, that he ‘cannot make definitive findings’ … where the evidence … was not tested.

“Why wasn’t the evidence properly tested? The ombudsman had the opportunity to cross-examine the witnesses … and didn’t take that opportunity,” Becker said.

Ntsebeza was constantly trying to buy himself more time for a process that CSA had already extended from four months to six months, which the organisation said had cost them R7.5 million rather than the budgeted R5 million. And yet Becker criticised the process as still being lacking.

His statement pointed out that certain respondents were not properly informed of the allegations of racism made against them; “if so, this is very serious and the findings against them will ultimately need to be withdrawn,” Becker said.

Significant conflicts of interest were also raised because lawyers Sandile July and Fumisa Ngqele had a dual role of not only advising the ombud but also drafting heads of argument for the complainants. Becker alleged that “over 250 paragraphs of the complainants’ heads of argument have been simply cut and pasted word-for-word directly into the ombudsman’s report”.

Becker also said some of Ntsebeza’s findings were “entirely questionable and without any basis”. He pointed to the finding that Smith’s refusal to work under former CSA CEO Thabang Moroe was evidence of his racial bias as ignoring the fact that the director of cricket has happily worked under acting CEO Pholetsi Moseki and three Black CSA presidents since his appointment.

The SJN Report also largely ignores the 250 pages of evidence submitted by the South African Cricketers’ Association dealing with the allegations against the players’ union.

Becker pointed out that two full days were granted to the four players found guilty in the 2015 matchfixing investigation, with Ntsebeza later describing their evidence as a “red herring”.

Former Proteas captain AB de Villiers has already taken public umbrage at the findings of the Social Justice and Nation-Building Report and other players and officials who have been named will also be expressing their unhappiness in letters to the Cricket South Africa board.

SJN ombudsman Dumisa Ntsebeza accused De Villiers of unfair discrimination based on racial grounds due to his leading role in the non-selection of Khaya Zondo for the decisive last ODI of their tour to India in 2015.

De Villiers, who stated in his affidavit to the SJN that he had earlier been told by the selectors that Zondo was in the squad as a learning experience and not to be part of the playing XI, responded on social media with a message saying his opposition to the then-uncapped Zondo’s selection was purely based on cricketing reasons.

“Throughout my career, I expressed honest cricketing opinions only ever based on what I believed was best for the team, never based on anyone’s race. That’s the fact,” De Villiers said.

The CSA board will consider what action to take based on the report in the new year.

The fact that Ntsebeza himself admitted that the SJN “cannot make definite findings”, “there was no process in place for testing the submissions” and that his recommendations and findings are “merely tentative”, will give the board some leeway, especially since so many of the implicated are lawyering up.

Others, however, have expressed their lack of confidence in the ability of the entire process to treat them fairly.

“I am afraid there isn’t much to say that will benefit me at all. I was found guilty before any response by a kangaroo court,” one former player told The Citizen on condition of anonymity.

“I am trying to take the higher ground without it being a tit-for-tat argument, but I am spending too much on lawyer’s fees already.

“But it doesn’t suit the narrative, I am not holding my breath, we’ve been hung out to dry, so I am not expecting that to change,” he said.

De Villiers has, of course retired from all cricket and so is out of CSA’s jurisdiction, but the originators of the SJN hearings have wanted the prize heads of Proteas coach Mark Boucher and director of cricket Graeme Smith for a long time.

Ntsebeza has delivered what they wanted, but critics of the SJN report say his report is fatally flawed on legal grounds and CSA will undoubtedly have to tread carefully unless they are to find themselves embroiled in more courtroom battles.

The Social Justice and Nation-Building Report released on Wednesday not only claims the appointments of CSA director of cricket Graeme Smith and Proteas head coach Mark Boucher were irregular but also alludes to “racial discrimination” on their behalves.

Despite these highly-damaging accusations, Advocate Dumisa Ntsebeza’s report concludes with admissions that “it cannot make definite findings”, “there was no process in place for testing the submissions” and that his recommendations and findings are “merely tentative”.

Smith’s appointment as Director of Cricket in December 2019 was labelled as “flawed” because South Africa’s most successful captain was headhunted for the position, a common practice in the corporate world. He was initially approached by former CEO Thabang Moroe, who was soon after dismissed by CSA for numerous incidents of maladministration, but still had the gall to criticise Smith’s appointment at the SJN.

The fact that Smith did not want to work under Moroe or former Board president Chris Nenzani, both of whom have left their posts under a cloud, was described as “racial bias against Black management”. The report makes no mention of the fact that Smith has continued to work under Black African Acting CEO Pholetsi Moseki and generic Black board president Lawson Naidoo since then with no issues.

Smith’s subsequent appointment of “his friend” Boucher as head coach was also stated to be an example of “unfair discirimination” based on race, because he was chosen ahead of Enoch Nkwe, who was the interim head coach.

The report lists Boucher’s five franchise trophies in three seasons as coach of the Titans, but then compares them, as equivalents, with two second-tier titles in the Netherlands, a Cubs Week triumph, three amateur cups with the Gauteng Strikers and three franchise titles won by Nkwe. No mention is made of South Africa’s three heavy defeats under Nkwe in India on their previous assignment.

Despite Boucher’s immense international playing experience, it concludes that the record-breaking wicketkeeper/batsman was appointed due to the colour of his skin.

Ex Proteas bowler and KZN Coastal coach Roger Telemachus, who has never led a franchise team, was also ruled to have been discriminated against.

The relatively new board will now have to extricate themselves from a dangerous situation in terms of legal liability, with an initiative set up by the previous board making serious allegations which have already attracted the interest of several affected parties’ lawyers.

Numerous people found to have engaged in racist conduct by the report are believed to have received no notice that they had been implicated, and at least one leading lawyer has sent a 17-page e-mail to the CSA Board warning that the report is seriously flawed in legal terms.

For now, the CSA directors are Out of Office, but they will have to grapple with the SJN issue in the new year.