Ken Borland

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of racism made against them; “if so, this is very serious and the findings against them will ultimately need to be withdrawn,” Becker said.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”.

The Social Justice and Nation-Building hearings resumed this week with those implicated in the earlier sittings getting the chance to answer their accusers and it seems the first half of the commission had several charlatans giving evidence.

It just goes to show the importance of hearing both sides of the story before jumping to sensational conclusions.

Clear problems have been identified like the Dolphins’ handling of Aya Myoli’s assault by Robbie Frylinck, the millions of rand which Easterns have been given to uplift development clubs but which have not been distributed to them and Khaya Zondo’s non-selection in 2015.

Myoli’s treatment is particularly shocking: because Frylinck negotiated a plea bargain that included confidentiality, Myoli, despite being the victim, was never informed of the outcome of the disciplinary hearing back in 2016 and had no idea some form of justice had been done.

But there has also been much evidence that previous testimony has come from embittered former players, especially those convicted of matchfixing offences.

We heard stories of players who had a history of creating divisions within their team, players who complained of being underpaid in comparison to White players when the facts showed that for eight of their seasons with a franchise they were within the top-four salary-earners, and international stars who complained about being discriminated against but failed 15 different fitness tests but were considered undroppable due to quotas.

While some of this has undoubtedly been mischievous, there have also been understandable misunderstandings and it has been good this week to see much of the air cleared up.

Enoch Nkwe’s demotion from interim head coach to assistant coach was controversial and sinister undertones were detected when then acting CSA chief executive Jacques Faul held a meeting with him over cappuccinos at Pearl Valley after Faul had met with SACA, the players’ association.

But Faul pointed out this week that he set up the meeting with Nkwe, along with director of cricket Graeme Smith, head coach Mark Boucher and captain Faf du Plessis in order to allow them to try and find common ground because he was desperately keen to keep Nkwe involved with the Proteas.

Empty vessels make the most noise, so the saying goes, but amidst all the loud cries of racial discrimination why hasn’t there been more noise over the fact that the Black-dominated previous CSA Board was seriously underpaying Nkwe as well as manager Khomotso Volvo Masubelele?

When Faul, who had been acting CEO before in 2012/13, returned to CSA in December 2019, he was shocked to find Nkwe and Masubelele were earning less than what their predecessors were getting in 2012. And this was approved by a CSA Board which only featured a couple of Whites and former CEO Thabang Moroe. The same people who appointed Smith as director of cricket and approved Boucher as the head coach.

Also giving evidence this week was former Proteas manager Mohammed Moosajee, a man who has contributed immensely to South African cricket and is as committed to transformation and excellence as anyone. He is a cricket man through and through.

As usual, he made perfect sense when he called for the Proteas to have a unified stance towards BLM, rather than the currently awkward situation where some people are kneeling, others are not; some fists are raised, others are not. As is so often the case in South Africa, it comes down to education.

Moosajee pointed out that it was himself and vilified former captain Smith who actually came up with the concepts around a more inclusive team with a greater appreciation for people from different backgrounds, races and religions.

As Moosajee pointed out, there is still work to be done to ensure the Proteas are a fully transformed and successful outfit, one which returns to the top table of world cricket. But much progress has been made in the last dozen years.

Cricket South Africa’s Social Justice and Nation-Building hearings are set to resume on Monday and now those implicated in the first three-and-a-half weeks of testimony will get the chance to sell their side of the story to the ombudsman, Advocate Dumisa Ntsebeza.

So far the SJN hearings have been anything but boring as nearly 50 respondents have come before Ntsebeza and his fellow advocates and testified with great zeal about how they have been hurt or discriminated against by the game of cricket in this country.

Unfortunately, numerous critics and commentators have been a bit slow to realise that we have only heard one side of the story thus far. None of this evidence has been tested or cross-examined, but that hasn’t stopped sensational headlines and vicious social media attacks being made.

While many of the stories of hurt were eloquently and movingly presented, sadly some people abused the process to continue the campaign against CSA director of cricket Graeme Smith and Proteas coach Mark Boucher, making them the focus of their presentations. As if Smith and Boucher are personally responsible for all the awful things that happened in the 1990s and 2000s. And, judging by some of the hysterical reaction, they would already be locked away in a cell before being allowed to give evidence according to certain people’s idea of how justice works.

Discrimination based on race is what the SJN is looking for, but several of the complaints around selection ignore the fact that Linda Zondi was national convenor of selectors at the time, or Russell Domingo was the Proteas head coach. So is it Black people being discriminatory or are we going to deny both these great cricket servants their agency and say they were merely stooges for the few White people involved in the running of cricket at the time?

Omphile Ramela, the former president of the players’ association, has been one of the most vocal voices claiming rampant discrimination in cricket. His personal complaints centred around him no longer being contracted by the Highveld Lions as a batsman and for CSA turning down his application to succeed Zondi as the convenor of selectors. Enoch Nkwe was the Lions coach who decided not to renew his contract and Victor Mpitsang was rightfully given the job of selection convenor, given his broad knowledge of the players in the system through both his coaching and commentary work.

There are many witnesses who have every right, however, to be angry about how they were treated, especially in the earlier days of unity. Selection frustrations are always a part of cricket though and a player not being selected cannot automatically be ascribed to racism. While Khaya Zondo was no doubt embittered by what happened to him in India in 2015, it is probably true that the only South African cricketer who was definitely dropped from the Proteas XI due to the colour of his skin was Kyle Abbott in the World Cup debacle earlier that year.

Watching our gloriously transformed and brilliant Springboks in action and listening to the painful SJN Hearings around the same time, I cannot help but feel it is the strict quotas in cricket that have caused much of the anger, strife and bitterness.

Rugby has never had quotas as strictly enforced and their transformation has been more organic. And to try and paint them as ‘targets’ in cricket is totally disingenuous – if they were just targets then why was Ashwell Prince, according to his own testimony, hauled before a CSA disciplinary committee after failing to meet the requirements on one occasion as Cape Cobras coach?

White players, who lose their places in the team due to quotas, are naturally upset and wonder if the player replacing them is there on merit. This unhappiness has now extended to Coloured and Indian cricketers and is not good for changeroom morale.

The other side of the coin is that Black players also wonder if they are in the team on merit (as the majority are), and that type of self-doubt is lethal in a sport like cricket which relies so much on confidence and self-belief.