Ken Borland

A sports law expert on Friday raised concerns over whether Sascoc’s takeover of Cricket South Africa was legal and whether the process they have followed in coming to their decision will suffice in terms of giving the embattled organisation’s Board a fair opportunity to defend themselves.

The South African Sports Confederation and Olympic Committee (Sascoc) had been approached by the CSA Board to help with their governance scandal. But on Thursday evening, angered by the continued refusal of CSA to show them the Fundudzi Forensic Report that led to the dismissal of former CEO Thabang Moroe, Sascoc demanded that the CSA Board and senior executives step down.

In a letter to the CSA Members Council, Sascoc announced that they will set up a task team to conduct an investigation into CSA’s affairs and instructed the Board, acting CEO Kugandrie Govender, increasingly powerful Company Secretary Welsh Gwaza and the chief operations and financial officers to step aside.

But CSA have refused to accept Sascoc’s intervention and have taken legal advice, while committing to continued engagement with the legislated macro body for sport. A CSA spokesperson said on Friday that “operationally it is business as usual” in the organisation, with Govender still in charge.

“We do not believe Sascoc are 100% right in their suggested resolution. They do have step-in rights, but the process they have followed is not 100% correct and they certainly can’t be suspending our staff,” a member of the CSA Members Council told The Citizen on Friday. “They have given us unreasonable timelines but we still want to meet and engage with Sascoc, who have said they will deal with the Members Council going forward.”

Process was the key factor mentioned by the sports law expert, who did not want to be named because he has dealings with cricket.

“Sascoc have to give CSA a reasonable time to respond, especially since they are making quite a far-reaching intervention. They may have the right to remove Board members, but the law does not like absolutes – which is why you can dispute a speeding fine in court if you get pulled over. There is also a question mark over whether Sascoc’s powers extend to CSA staff.

“Who does the BCCI phone today at CSA or who signs off on a broadcast deal worth hundreds of millions of rand? The National Sport and Recreation Act is not great and Sascoc’s step-in rights can certainly be legally challenged. What they have done is just not practical, it will create even more of a shambles and CSA will probably argue they should be given more time to engage with Sascoc,” the Gauteng-based sports and economics management expert said.

While there has been speculation that Sascoc’s intervention could also lead to the International Cricket Council suspending South Africa’s membership due to government interference, thereby preventing the Proteas from taking to the park, this has been deemed unlikely by those familiar with the ICC’s approach to such matters. The ICC last year suspended Zimbabwe for three months, during which time they missed the T20 World Cup qualifiers, after their board was replaced by the government sports commission.

“The federation actually has to go to the ICC and complain about government interference in order for the country to be suspended. The Zimbabwe situation was different in that this is not government, but rather a mother body that CSA is a member of, and Sascoc is a member of the International Olympic Committee, recognised by government but not part of it. It’s not like Sri Lanka where the minster of sport tried to select the team.

“It seems to me that Sascoc are instructing the CSA Board while consulting with the Members Council. They have a whole list of reasons why CSA are not managing, they need help, and as the mother body they are offering to set up a task team. The minister, the public and the players have all said Sascoc needs to do something, they have an obligation and the ICC would ask whether Sascoc are within their rights,” a former high-ranking ICC official told The Citizen.

It was an interesting day for CEOs of Cricket South Africa both past and present on Tuesday as the fired Thabang Moroe saw his plot to return to office delayed in the Labour Court and the acting incumbent Kugandrie Govender suffered the embarrassment of the organisation backtracking on her statement that White consultants would no longer be used unless there were exceptional circumstances.

Moroe approached the Labour Court on Tuesday to have his dismissal set aside because he believes the disciplinary process was unlawful, but he first of all had to convince the court that his application was urgent. CSA’s lawyers argued that the matter was not urgent and the court reserved judgement as to whether the matter should be held urgently or not. The court is expected to make its decision during the week.

Govender stated last week in a text message to Sport24 that following a meeting with the minister of sport Nathi Mthethwa, CSA “are now required to enforce Black consultants only until such time as the numbers are moving in the right direction and we can then revise this. It’s an internal measure to enforce that the change that should have happened organically over the years but didn’t, does actually now happen”.

The announcement created a storm of protest, with civil rights lobby group AfriForum threatening legal action against CSA and the Institute for Race Relations writing to the International Cricket Council to report the organisation for failing to respect the governing body’s constitution in terms of racial discrimination and political interference.

CSA issued a statement on Tuesday saying they were saddened by the media reports around their use of consultants. They called the stories “factually incorrect” even though they were quoting their own CEO verbatim.

“CSA has not taken and will not take a decision to work exclusively with Black consultants. The media reports around the statements made by our Acting Chief Executive are not a correct reflection of the sentiment that CSA had sought to convey. CSA therefore reiterates that it does not have a policy of excluding any racial grouping.

“As part of our corporate business model, CSA has adopted and subscribes to the country’s BBBEE Act and Affirmative Action policy. This means CSA has a moral and legal obligation to implement these two prescripts, while still embracing the need for all South Africans to live their cricketing dreams regardless of background, culture or ethnicity, and this includes the services that we procure from external service providers,” their statement said.

CSA went on to say transformation is a pillar for the organisation.

“It is, therefore, imperative that we constantly remind ourselves of its [transformation] importance in the way in which we conduct our business. As a democratic and non-racial institution, CSA is well aware of the need to provide equality and quality of opportunity to all and we do also emphasise that this has to be seen in the context of our unhappy history that for more than a century deprived the majority of our population from living their cricket dreams both on the field of play and in many other areas.”

The change of stance by CSA will now obviously attract the attention of Minister Mthethwa, who has been critical of the number of White faces in prominent positions at CSA. It is believed using exclusively Black consultants unless there are none available at the level required in order to keep the Proteas at the top end of the world rankings is exactly what CSA promised Mthethwa at their meeting last week.

It is also a loss of face for Govender, whose meteoric rise at CSA saw her appointed acting CEO on August 19 after Jacques Faul stepped down.

While Neil McKenzie will return to South African cricket as a batting coach, the appointment of Malibongwe Maketa and Shukri Conrad as the chief breeders of talent for the Proteas will arguably have an even greater effect as director of cricket Graeme Smith announced his high performance management team on Thursday.

McKenzie, who played 58 Tests and 64 ODIs for the Proteas, is the new batting lead and while this means he will replace Jacques Kallis as the batting consultant for the national team, his appointment is a full-time one and he will work with batsmen at all levels of the pipeline.

Conrad, as the new SA U19 men’s lead, and Maketa, who is now the full-time South Africa A and National Academy lead, have been given key roles in that pipeline.

Maketa was a Proteas assistant coach from 2017-2019 as well as enjoying a successful time in charge of the Eastern Cape Warriors, so the 39-year-old knows exactly what is required for talented cricketers to progress through the system. He told The Citizen on Thursday that he sees himself as the go-between for the Proteas management and the franchise coaches.

“They are two very important roles and fortunately I’ll have a lot of highly qualified coaches around me as we try to prepare cricketers for both the franchises and the Proteas. The Academy is there to empower the players with skills and I will be assisting them with their game-plans and execution. It’s great to be back in a full-time role with Cricket South Africa.

“I’ll be looking to assist Mark Boucher and Enoch Nkwe in creating a bigger base for the Proteas and my contract runs concurrently with their’s. It’s also about monitoring and identifying talent and lending a hand to the franchise coaches, making sure we are all speaking the same language, from Graeme, Mark and Enoch to the franchises. I intend to get my hands dirty and throw lots of balls,” Maketa said.

Conrad, a vastly-experienced coach who has been heading up the National Academy, will now take over the crucial U19 programme.

“I’ve loved every minute of it at the academy and I know what is required to get to those levels as I now get involved earlier in the pipeline. The U19s are a great challenge because it is such an important stage in development and South African cricket as a whole. The challenge is to ensure we give every young cricketer every opportunity to play and perform.

“Excellence in coaching is critical at provincial and school level, and schools have a massive role to play. I would like to work together with them, private coaches and the Hubs and RPC coaches because we have been in our silos for far too long. Plus we have a scouting system and a wonderful database run by John Bailey and Niels Momberg to ensure nobody falls through the cracks,” Conrad said.

Other appointments confirmed on Thursday were those of Eddie Khoza as the Acting Head of Cricket Pathways, Vincent Barnes as the High-Performance Bowling Lead, Dinesha Devnarain as the Women’s SA U19 and National Academy Head Coach, and Dr Shuaib Manjra as the Chief Medical Officer. Follwing the rather dilly stink created over the appointment of certain consultants, these announcements should be sweet-smelling for the majority of SA cricket fans. They all have considerable amounts to add to the high performance programme.

The South African Cricketers’ Association – the players’ union – are mulling taking legal action under the Promotion of Access to Information Act (PAIA) to ensure Cricket South Africa release the forensic report that led to the dismissal of former CEO Thabang Moroe, SACA chief executive Andrew Breetzke revealed on Wednesday.

CSA postponed their AGM scheduled for September 5 with one of the reasons given being that there were so many unresolved issues arising from the Fundudzi forensic report into Moroe. Up till then, the Members Council, who had commissioned the investigation, had not been allowed to view the report unless they travelled to Bowman Gilfillan’s offices in Johannesburg and signed a non-disclosure agreement.

Members of the Members Council were optimistic that they would now be allowed to study the outcome of the report they instituted, with relaxed conditions, but it seems that has not been the case. The secrecy behind the report has led to growing frustration amongst the cricket-loving public and other stakeholders, with speculation now rife that the report also implicates Board members and company secretary Welsh Gwaza in misgovernance.

Speaking on a Daily Maverick webinar on Wednesday, both Breetzke and governance expert Judith February, a lawyer based at the Institute for Security Studies, called on the Members Council to demand their right to see the report is respected, failing which SACA will need to launch legal action.

“In December/January there was already enough information for a proper investigation but everything was linked to the forensic report, which was a mistake. They could have dealt with Thabang Moroe back then and South African cricket would have been in a better position now. What our cricket desperately needs now is certainty and consistency as we move into a very difficult time for the game.

“We have formally asked CSA in the past to release the report, but obviously that has not happened. We are stakeholders in that report because of the breakdown in CSA’s relationship with SACA and if it is not forthcoming in the next two to three weeks then we will have to go the legal route and apply under PAIA. There will be no peace in South African cricket until that report comes out,” Breetzke said on Wednesday.

“CSA don’t seem to understand that they operate in a democracy, they appear to be tone-deaf to the fact that the public have a stake in the game,” February said. “At the moment it feels like the public is totally disregarded, and CSA have a lot of work to do to restore their faith. When an organisation is very badly managed and has the wrong people in power, people who abuse power and mismanage finances, then it leads to a forensic report.

“The Members Council commissioned that report and it is bizarre that it is being kept secret. because it is being so closely guarded, we can only assume that it implicates others. But that report will come out because we live in a democracy and the public, the players and the stakeholders in the game have the right to know. A PAIA request is the way to go because the report is certainly in the public and players’ interest,” the former head of IDASA’s governance programme said.

February said the governance of CSA was so terrible that the Members Council should immediately dissolve the Board.

“CSA have lurched from crisis to crisis and there have been rumblings all over about how bad their governance has been. The wake-up call that something rotten was going on came when journalists’ accreditation was withdrawn. That clearly showed they were an organisation insecure in power and closed off to the public, that set off all sorts of alarm bells.

“The Nicholson Inquiry was quite clear that it wanted nine non-executive independent directors with real skill and gravitas, but the Board has been seven non-independent and just five independent directors since 2013. The Members Council should dissolve the Board. And the company secretary [Gwaza] has also become extraordinarily powerful, which is unusual to say the least,” the Visiting Fellow at the Wits School of Governance said.