Ken Borland

While a majority independent board and an independent chair have been the most well-publicised aspects of the new Cricket South Africa constitution eventually agreed to by the Members Council, the process by which independent directors are appointed is another vital pillar of the new MoI … and it is now raising concerns among stakeholders in the game.

The MoI puts into place a Nominations Committee which will be a six-person panel comprising either a men’s or women’s former international player nominated by SACA, alongside a former CSA president nominated by the Interim Board, a Members Council representative and people from the Institute of Chartered Accountants, Institute of Directors and the Legal Practice Council.

The only problem with the Nominations Committee is that their word is final and the non-independent directors, or anyone else, are not allowed to object to the names they come up with.

The dangers of that clause are brought into focus by the first board that will serve under the new MoI. Because the Nominations Committee will only exist after the new constitution is formally adopted on Wednesday, they will be picking from a list that the Interim Board have seemingly put together from the applicants who put themselves forward before the cut-off date for applications, which was in February.

It is hardly an independent process because nobody knows who applies and who handled the applications, apart from the Interim Board.

Given the schisms in South African cricket that are obviously still present even though they will ‘officially’ be signed away on Wednesday, there is still an atmosphere of fear and uncertainty out there, and that has led to all manner of speculation and rumour about who CSA’s new directors will be.

The return of Norman Arendse, president of CSA from 2007 to 2008 and a controversial figure because of his continued interference in the selection of the national team, has been mooted, while some administrators have warned of a new wave of cadre deployment as they fear Minister of Sport Nathi Mthethwa wants to drive the ANC agenda in cricket.

Other administrators have called for the institution of an independent administrative office to handle applications for independent director posts, which would then pass them on to the Nominations Committee, with independent auditors exercising oversight through the whole process.

The process of appointing independent directors has the potential to be the new battleground of South African cricket.

It took the most gruelling of meetings, but after 11 hours of intense wrangling, the Cricket South Africa Members Council on Sunday night finally agreed to the new constitution proposed by the Interim Board, marking the end of the crisis in cricket that would have led to Minister of Sport Nathi Mthethwa withdrawing their recognition at the end of the week.

The Members Council met on Saturday afternoon and then went into a meeting with the Interim Board from 10am on Sunday. The initial attitude of the Members Council seemed to be that CSA should “defend” their autonomy against the Minister’s looming action, especially since Sascoc issued a strong rejection of having a majority independent board in a statement on Saturday.

But with the threat of irreparable harm being done to the game if they were suspended by the minister, agreement was eventually reached on all the outstanding issues that prevented the Members Council from approving the MoI last weekend.

Sascoc, who have warned CSA that they could have their membership of the mother body suspended if they agree to an majority independent board and an independent chair, will obviously still be an obstacle, but it is believed Mthethwa will be handling that side of the conflict.

CSA issued a communique half-an-hour before midnight on Sunday night, the headline of which included the gorgeous words “Joint Statement” indicating agreement had finally been reached and a catastrophe averted. In terms of Section 60 of the Companies Act, an expedited process has now been triggered which will see the MoI being adopted in the next 48 hours.

“By reaching this agreement, cricket in South Africa has adopted a governance mode which is best practice both in South Africa and internationally,” the statement said. Both Members Council president Rihan Richards and Interim Board chair Dr Stavros Nicolaou were then quoted expressing their delight at the cessation of hostilities.

Cricket South Africa have been de-recognised by Minister of Sport Nathi Mthethwa in a move that will have serious consequences for the sport in this country.

The failure of the Members Council to accept a new constitution that would institute a majority independent board and an independent chair has led Mthethwa to take drastic action. He and the Interim Board he put in place at CSA have been negotiating with the Members Council since the end of January to try and get the new MoI approved.

The Members Council have called a meeting for Saturday afternoon and there have been suggestions that, far from finally caving in, they will look to take legal action against the Minister to try and prevent him from invoking his powers as laid out in the Sports Act. But the fact that they have to get approval from the Interim Board in order to launch any legal action suggests that route is also denied to them.

Losing the recognition of government will have major effects on CSA, both financially and in terms of the Proteas men’s and women’s teams.

It is believed many of their sponsorship deals will have clauses in their contracts making them dependent on CSA being the recognised body running cricket in this country. In these economically constrained times of Covid, sponsors looking for an excuse to pull out now have a watertight reason. It is also believed that four potential sponsors that were lined up to come on board later this year have now withdrawn their interest.

The International Cricket Council have been kept up to date on developments in the crisis by Mthethwa and they have been happy to take a back seat because the Sports Minister’s involvement is seen as being a bid to improve the governance of the sport.

But Mthethwa’s de-recognition of CSA now means they are not allowed to use the Proteas emblem or the national flag. Any teams they choose will not represent the country and, in fact, government could deny the teams the right to leave the country or block overseas sides from entering.

Rebel touring teams have been a controversial part of South Africa’s cricket history, and now the national side itself could be considered a rebel team.

It is at this stage that the ICC will have to take action because technically any match involving the ‘Proteas’ would be a friendly, unofficial contest. That would seriously detract from the international game.

The other major blow that will strike CSA will be the cancellation of broadcast deals. The amounts being paid for broadcast rights have been decreasing recently, mirroring a lessening of interest in the product, and the current broadcast deals will be premised on the actual Proteas playing proper international cricket.

No broadcaster will be willing to part with their millions of dollars to show what will amount to friendlies because no cricket involving or played in South Africa will have official standing.

I suppose one should pay Cricket South Africa’s Members Council their dues for the sort of sheer bloodymindedness and obstinacy that, if our batsmen could replicate it at the crease, would ensure that the Proteas never lose another Test match.

But now, with the game in this country teetering on the precipice, it really is time for them to give up the stonewalling and save us all a lot of time, effort and frustration, by accepting the inevitable changes in governance that will bring a majority independent board. Ultimately, they are trying to defy the sports minister, which is a pointless exercise reminiscent of when the SA Rugby Union, through their bombastic president Louis Luyt, took Nelson Mandela to court in 1998.

You may win the odd legal battle, but you are most certainly not going to win the war.

Dr Stavros Nicolaou, the chairman of the Interim Board, this week detailed every step in the negotiations with the Members Council and it reminded me of those World War I soldiers who would fight for days in the muddy, bloody trenches to add just a metre or two to their frontline.

And now, the handful of recalcitrants on the Members Council who scuppered the Special General Meeting last weekend are considering legal action to stop both a new constitution and Minister Nathi Mthethwa’s punitive action that is yet to be announced. CSA is an organisation that has spent millions and millions on legal fees in the last couple of years, robbing the game itself of much-needed resources, so it might seem a bit unfair that the Interim Board (their antagonists) now have to give their approval in order for the Members Council to enlist the help of lawyers in their battle, but thank goodness it is the case.

Much of the Members Council’s delaying tactics seem to have revolved around deliberate misrepresentations of what the Interim Board’s new Memorandum of Incorporation actually says. And Nicolaou confirmed this week that, apart from a majority independent board and an independent chair, everything else is negotiable. Which has not been the picture portrayed by the recalcitrants.

Do the Members Council want a 15-person board? That’s fine, then the equation will be eight independent directors, five non-independent and the two executives (CEO & CFO). Or a 13-strong board? Then the make-up will be 7-4-2; even a board of 11 is possible, with six independents, three non-independents and the two executives.

In terms of the criteria for directors, the nominations committee can decide whether they want an emphasis on a cricket background or skills in legal affairs, accounting or finance. There is no need for these criteria to be stipulated in the MoI.

What has been put in the MoI is the make-up of the all-important nominations committee that will select the independent directors. It is pleasing to see the six-person panel will include either a men’s or women’s former international player nominated by SACA, alongside a former CSA president nominated by the Interim Board, a Members Council representative and people from the Institute of Chartered Accountants, Institute of Directors and the Legal Practice Council.

And the definition of an independent director precludes anyone involved in the administration of the game at provincial or national level, not everyone involved in the game such as coaches or former players.

This MoI has been debated and pored over and modified since the first meeting of the working group, made up of three representatives each from the Members Council and Interim Board, on January 31. According to Nicolaou, on April 15, two days before the ill-fated SGM, the Members Council had agreed to the new MoI.

Their sudden about-turn, orchestrated in the most scheming, underhand manner, has meant all those months of effort have been wasted. As Nicolaou pointed out, “the Members Council continuing to kick this can down the road has awful consequences on the hard-working employees of CSA and the players”.

And think of Anne Vilas, the Central Gauteng Lions president who has been at the forefront of taking a public stand against the recalcitrants. In fact, think of her husband Doug, who has hardly seen his wife for the last few months such has been the number of late-night meetings she has had to attend as the Interim Board and the Members Council have wrangled.

For all our sakes, let’s hope the Members Council relents while there is still time.