Ken Borland

Cricket South Africa’s Members Council, having studied a summary of the Fundudzi Forensic Report over the weekend, have decided that whatever the governance failings of the Board of Directors were, they are not terrible enough to warrant them stepping aside ahead of the AGM, which has to be held by November 5.

The 14-strong Members Council includes seven members of the Board, an awful structural defect which perhaps made stronger action impossible. Nevertheless, there does seem to be a strong desire for change in CSA’s governance structures and how the Board is constituted. The weekend bosberaad decided that CSA’s Memorandum of Incorporation is to be revised with special attention given to the composition and roles of the Members Council, the Board of Directors and executive management.

But it is the current Board who will be responsible for the implementation of these changes before the AGM.

“The summary of the forensic report was quite comprehensive and covered all the burning issues. Just the litigation-sensitive stuff was kept from us on the advice of legal counsel from Bowmans Gilfillan so as to protect the case they are building against the relevant people. But there was not much in there that should affect the appointment of directors. Not many of the responsible people remain on the Board.

“There are things that could have been done better and some decisions made by the Board were not great. But often they rely on senior management to feed them the information, you trust that information to be correct and then six months later when you discover that it is not, then it’s too late. But I can’t really see why it was kept from the public,” a Members Council delegate told The Citizen on Sunday night.

The Members Council will now have their meeting with Sascoc, who have called for the Board and executive management to stand aside and allow the independent task team they are appointing to conduct an investigation into the affairs of CSA, on Monday evening.

But the practicalities of who would actually be in charge of the operations side of CSA, as well as what is seen as “quite an aggressive overstep by Sascoc”, makes it unlikely that CSA will agree to the Sascoc demand for directors to step aside.

A date for the AGM, originally scheduled for September 5, has not been finalised, but the controversy over the nominations process for new directors was discussed. The process will now be overseen by an interim selection panel comprised of people from both within and outside the game.

The proposed changes to the MOI will all need to be ratified at the AGM.

There is a massive irony in a body such as Sascoc, wracked by internal strife and lacking credibility, making an intervention in the affairs of Cricket South Africa, a federation that seems to daily provide a new definition of rock-bottom.

But one can only hope this is a rocket (a spark would have little effect on the thick-skinned people sitting on the CSA Board) that leads to a real shift in the mindsets of those arrogant directors that refuse to budge a centimetre from a place at the top table of a sport they have parasitized rather than served.

If Sascoc threatening to take over does not force the CSA Board into standing down and releasing the Fundudzi Forensic Report, then the next option has to be for them to be threatened with being declared delinquent directors. There have been a litany of governance disasters at CSA over the last couple of years and there is no way they can continue to deny their own involvement and culpability.

There is no doubt people like former CEO Thabang Moroe and company secretary Welsh Gwaza have been involved in malfeasance, but who appointed and enabled these self-serving charlatans? The directors did and they have failed in their fiduciary duties, which have a clear legal basis.

The Members Council and the CSA Board of Directors are meeting together in Johannesburg over the weekend and, as one delegate put it, this is “make-or-break” time for the organisation. Will selfish, individualistic priorities prevail and continue the death spiral into chaos and oblivion? Or will there finally be some leadership and accountability shown?

Either way, Sascoc are going to impose a task team inquiring into CSA’s affairs, which is no bad thing. But if leadership and accountability win the day then there are enough top-class people who love cricket who will be able to step into the leadership vacuum and help CSA back to stability.

One of those is Judith February, a lawyer based at the Institute for Security Studies, the former head of IDASA’s governance programme, a Visiting Fellow at the Wits School of Governance, a trustee of the Nelson Mandela Foundation and a massive cricket fan.

“You cannot be on a board and not take responsibility, resigning just before the AGM is too little, too late because they have presided over matters to that point. Directors have left in silence or written letters, but it was because they did not flex their muscles that Thabang Moroe was allowed to operate in that way. CSA’s Memorandum of Incorporation is very clear and they have breached it on every front.

“We can join the dots intelligently and see that there is something deeply wrong with the system and the people who manage it and the people who oversee them. A clean break is the best option and clearly we need to interrogate why someone of such integrity and capability as Jacques Faul could find no space to work in CSA. The players’ statement about the boardroom shenanigans was also really important,” February said this week in a Daily Maverick webinar discussing cricket in South Africa’s fight for survival.

Does February, a governance specialist and former executive director of the HSRC’s Democracy and Governance unit, not just sound like the perfect candidate to be an independent director on a new-look CSA Board?

There are also some brilliant, impressive people on the Members Council – one thinks of Ben Dladla, Craig Nel, Anne Vilas and Tebogo Siko – who are dong their best to restore the credibility of CSA, but their efforts are being stymied by the presence of seven directors of the Board in the 14-strong Members Council itself.

The Nicholson Inquiry, which the CSA Board have now committed to return to eight years after its release, called for change in how the Board was constituted, recommending nine of the 12 directors be independents.

But in 2013 it was the selfsame Sascoc who refused to accept that and pressured CSA (although it probably suited their Board back then too) into going with a 7-5 split in favour of non-independents. And that’s a major reason why CSA are in the mess they are in now.

Directors without the competence, skills or experience to run a billion-and business have been voted in to ensure certain powerful figures enjoy support and can dispense patronage in return. In some cases, these directors have been earning twice as much from Board fees as from their ‘main’ source of income; no wonder they are desperate to keep their noses in the CSA trough.

In the coming weeks, Sascoc have a vital role to play in supporting the efforts of those who want to change this system and put cricket back in the control of people who firstly love and serve the game, and secondly have the expertise to run it properly.

The Members Council ‘owned’ the Fundudzi Forensic Report auditing the affairs of Cricket South Africa in the wake of the suspension of then-CEO Thabang Moroe from the moment they commissioned it last December and they are hopeful that they will finally get to see it without onerous conditions this weekend.

CSA announced in the early hours of Friday morning that the CSA Board of Directors and the Members Council would hold “a joint workshop this weekend to discuss critical matters” and while their statement was in response to Sascoc’s intervention in their affairs revealed on Thursday evening, provincial presidents have confirmed to The Citizen that Saturday’s agenda includes a discussion of the forensic report, which was completed in June.

“We will all be under one roof and hopefully we will at least get a partial view of the report that we will dissect and analyse. I’m pretty sure the forensic report will be made available, or at least what can be made public knowledge will be. This weekend is really make-or-break time for Cricket South Africa, I believe. And then hopefully we will meet with Sascoc on Sunday,” a Members Council delegate told The Citizen on Friday.

According to a president of a major CSA affiliate, efforts to get the organisation, which has postponed the AGM they were meant to hold on September 5, back on track by allowing the Members Council to be informed of any other directors or staff implicated in the misgovernance which saw Moroe being formally dismissed last week, have been hampered by the seven Board members who also sit on the Members Council.

“I’m disappointed by the Members Council to be honest, we just seem unable to make a decision, some representatives are just going along with whatever the Board members say,” the president said.

“There are seven other members of the Members Council and three of them have been especially vocal, but there seems to be a very serious conflict of interest amongst the Board because some of them earn double what their normal income would be by being directors. It’s a flaw in the system but Sascoc are dealing with the Members Council as we look at our Memorandum of Incorporation as well.”

According to their constitution, CSA have to hold an AGM by November 5.

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.