Ken Borland

Hot on the heels of the new Cricket South Africa board protesting that they inherited the mess that was the Social Justice and Nation-Building hearings, there is a second legacy of the old, disgraced board that may also cause them strife in the coming months.

I do have some sympathy for chairman Lawson Naidoo and his fellow directors when they ask with some frustration, in the wake of CSA’s embarrassing arbitration loss to Graeme Smith, “What were we supposed to do?”

The fact that SJN ombudsman Dumisa Ntsebeza chose only to make “tentative findings” on “untested evidence”, but was quite happy to make public claims of racism (surely the most damaging allegation against a White South African), meant CSA were almost damned if they do, damned if they don’t.

If they failed to further investigate the SJN allegations, then they would have been accused of ignoring the systemic racism that no doubt was part of our cricket in previous decades. But by acting on the claims against Smith, they left themselves open to criticisms of a witch-hunt and slander because the evidence was so flimsy.

Naidoo and fellow director Steven Budlender, the noted advocate, defended themselves in a Daily Maverick article this week, but what they did not mention was the way CSA’s legal representatives handled themselves in the arbitration, being criticised by the officials for “changing their tack” in the middle of the hearings and “trying to trap Smith”.

Little wonder costs were awarded against CSA.

Because the SJN was not properly set up to hear and test such inflammatory evidence in a better-controlled legal environment, the previous board certainly left Naidoo and Co with an explosive booby-trap.

The other decision of the previous board that is now causing some unhappiness in cricket circles is the automatic promotion/relegation that will apply at the end of next summer and see one of the top eight teams go down to the second division.

At the moment, one of Northern Cape, KZN Inland or South-Western Districts look set to be promoted. The Free State Knights, based in Bloemfontein, are bottom of the Division One relegation standings, with North-West (Potchefstroom) and the KZN Dolphins (Durban) tied second-from-bottom. Even teams like Western Province (Cape Town) and the Eastern Province Warriors (PE) have anxious times ahead as they are only lead the Knights by 10 points.

Do CSA really want one of those major centres to miss out as the likes of Kimberley, Pietermaritzburg or Oudtshoorn have a Division One team instead?

The problem with automatic promotion/relegation is that it is unlikely, barring a mass defection of players, that the team coming up will be better than the side going down, given the quality of cricket played in Division II.

There are many good reasons to ensure teams in the lower division can work their way up into the premier section, but the majority of fans do not want to see the Dolphins, Western Province or the Central Gauteng Lions playing in the second league. Imagine iconic stadiums like Newlands, the Wanderers or Kingsmead not hosting the best domestic players?

The only reason teams like KZN or the Lions, who would have been involved in the relegation battle before their surprise victory in the One-Day Cup right at the end of the season, would find themselves in danger of going down is because they provide most of the Proteas team.

There are many who feel automatic promotion/relegation is there to ensure the smaller unions, whose votes are often like the tail wagging the dog, share a place at the top table for at least one season before themselves being demoted.

I know CSA have a lot on their plate, but tweaking this system to ensure the Division II winners are only promoted if they beat the bottom side in Division I, is hopefully going to become a priority.

Former Proteas captain Faf du Plessis continues to bat with the same class and explosiveness as he showed in his first match as skipper of the Bangalore Royal Challengers at the weekend, but his team suffered the same fate as they always seem to when they put a big total on the board – losing by five wickets with a full over to spare against the Punjab Kings in the Indian Premier League.

Du Plessis changed gears superbly in his innings as his 88 off 57 balls took Bangalore to 205/2 in Mumbai. Opening the batting, the 37-year-old only scored 17 runs off his first 30 balls in seamer-friendly conditions, but two sixes and a four off West Indian paceman Odean Smith in the 13^th over took him to his half-century off 41 balls. He plundered 38 runs from his next 16 deliveries, adding 118 in 10 overs with Virat Kohli (41* off 29).

But then, in a recurring theme for Bangalore, their bowlers let them down.

As usual when Du Plessis is the star of the day, in what is still though a domestic league, his display led to plenty of questions over why the Proteas have not chosen him since he retired from Test cricket in February 2021.

The current situation is that Du Plessis is technically available for white-ball cricket, but it is difficult to rely on him at national level because his first priority is playing as a T20 free agent in the leagues around the world. Du Plessis wants a contract to play for South Africa, but CSA cannot afford to contract a player who is only available to them some of the time and in only one format.

Last year Du Plessis said he was taking a sabbatical from ODI cricket in order to concentrate on T20 cricket with World Cups being played in 2021 and this year. He has since made no mention of his ODI availability.

So it would seem Du Plessis has had his day in the Proteas shirt.

Cricket South Africa’s board announced on Monday that they will institute an enquiry into the conduct of director of cricket Graeme Smith and Proteas head coach Mark Boucher following the accusations of discrimination made against them by the Social Justice and Nation-Building Report released last week.

An independent legal panel will conduct the enquiry, making it a more formal process than the SJN hearings, during which evidence was not tested and ombudsman Dumisa Ntsebeza admitted that his findings were “tentative” and not definitive.

Even if there is no more than a germ of truth, however, in the SJN allegations, CSA’s statement said “The Board [is] mindful of its duty to treat allegations of racism or discrimination with the utmost seriousness and in a manner that ensures fairness and due process in terms of South Africa’s labour legislation and the Constitution.”

The formal enquiry will also give Smith and Boucher another opportunity to give testimony in person, after both were criticised for only submitting affidavits to Ntsebeza during the SJN process.

Smith has been accused of misusing his position as director of cricket to shepherd “his friend” Boucher into the head coach position without following due process. The former Proteas captain’s lawyer, David Becker, has refuted these allegations, pointing out that the decision was signed off by the board and executive management of CSA.

Ntsebeza’s finding also ignores the fact that Boucher was the most successful coach in domestic franchise cricket at the time of his appointment, and has international playing experience second to none.

Smith’s own appointment was also flagged by Ntsebeza as being irregular, but again this was done with the approval of a Black-majority board as well as the executive management of CSA, according to Becker and the organisation’s own evidence at the SJN hearings.

CSA said the formal enquiries will start “early in the new year” and will include all employees, suppliers or contractors implicated in the SJN report.

Smith and Boucher will continue in their positions until at least the end of the India tour on January 23.

All of which makes it seem like CSA are starting their investigations all over again despite spending R7.5 million on the SJN.

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”.