Ken Borland

An independent arbitration panel, while criticising the process as being far from perfect, has found Cricket South Africa’s now former director of cricket Graeme Smith was not guilty of any unfair racial discrimination in his appointment of Mark Boucher as Proteas coach ahead of Enoch Nkwe.

CSA, acting on the “tentative” findings of their Social Justice and Nation-Building Report, alleged that Smith had shown racial bias against Nkwe, who was the interim coach of the Proteas when the former national captain took over as director of cricket in December 2019.

But the arbitrators, advocates Ngwako Maenetje SC and Michael Bishop, cleared Smith of any racism and instructed CSA to pay his costs for the entire arbitration.

Smith explained his rationale for choosing Boucher in the hearing, starting with his impression of the Proteas team under Nkwe and captain Faf du Plessis on their disastrous tour of India in 2019, for which he was one of the TV commentators.

Smith described the Proteas as being “rudderless”, their performance was “way off par” and there was “quite a lot of onfield infighting between the players”. He told the arbitrators that his view on the coaching situation might have been different if the Proteas were a more experienced team with a captain that was going to be around for the next 10 years.

“I felt that I needed a character that could handle … an extremely high pressurised position, you are at the cold [sic] face of the world media, the … crowds. … I felt the team at the time needed someone that had extensive … experience in dealing with conditions, with the pressures that come with the international game. I knew that this team was going to lose extensively up front, it was going to take time to build it,” Smith told the hearing.

The arbitrators found that Smith made it clear to CSA that Boucher would be his appointment as the new coach, there was no objection from CSA and no suggestion from them that this was unfair to Nkwe. The then chairman of the board, Chris Nenzani, told Smith that he had the authority to appoint coaches and CSA never insisted on proper processes.

There was also a time factor because Smith could only make the appointments on December 11, 2019 after he was appointed director of cricket, and the Test series against England began on December 26, with the Proteas needing to assemble 8-10 days before that.

The arbitrators found that the CSA directive was for long-term appointments, not interim ones, and that it was their “inaction and delays that put Smith under pressure”.

CSA’s assertion that Boucher should never have been appointed national coach because he does not have a Level 4 coaching certificate, while Nkwe does, was left standing nude in front of the arbitrators when it was pointed out that CSA were happy to appoint both Gary Kirsten and Ottis Gibson as Proteas head coach when neither of them had a Level 4 qualification.

The independent arbitration panel that cleared Graeme Smith of racism allegations found that Thami Tsolekile was not selected to replace Mark Boucher in 2012 for cricketing reasons, saying the wicketkeeper/batsman himself accepted that AB de Villiers being chosen ahead of him was better for the team.

Tsolekile testified at the arbitration in support of Cricket South Africa’s claim that Smith had used his influence as captain to persuade the selectors not to include Tsolekile based on his race, after Boucher suffered the eye injury that ended his career.

But while finding that Smith, the Proteas longest-serving and most successful Test captain, did have an influence on selection, the arbitrators, advocates Ngwako Maenetje SC and Michael Bishop, ruled that he did not actively seek to exclude Tsolekile because of his race. Instead they found “it is more likely that Smith just wanted his team to win”.

Andrew Hudson, the convenor of selectors at the time and current CSA Board member, and Linda Zondi, who was also a selector before succeeding Hudson as the convenor, gave evidence that De Villiers had been selected for the tour to England in 2012 as the reserve wicketkeeper and both the selectors and coach Gary Kirsten agreed that De Villiers replacing Boucher behind the stumps would allow them to play an extra specialist batsman in JP Duminy, himself Black.

Smith was consulted about the decision and agreed with the strategy.

In Paragraph 90 of their findings, the arbitrators state: “Tsolekile … agreed with the proposition that this was ‘a strategy that will make complete sense and was something which played very strongly in favour of the Proteas cricket team’. He accepted that there were ‘very good cricketing reasons to prefer AB de Villiers to yourself for the position in the Test starting XI’.”

CSA then tried to change their argument and alleged Smith was guilty of discrimination by omission because he had an obligation to speak out on behalf of Tsolekile because the wicketkeeper/batsman was previously disadvantaged.

But the arbitrators found this change of tack was prejudicial to Smith, describing it as “a trap sprung on him” and they also criticised CSA for making submissions that were inconsistent with the facts.

The arbitrators did have sympathy for Tsolekile, describing his non-selection as “unfair” and his subsequent involvement in a matchfixing scandal as only “exacerbating the tragedy” of his story of adversity.

Cricket South Africa’s Members Council might not yet quite be the beacons of good governance all lovers of the sport hope they become, but Wednesday night’s continuation of their AGM was an efficient 20-minute process in which they accepted Advocate Norman Arendse as an independent director and voted for all four members of the crucial Audit, Governance and Risk Committee to be independent directors as well.

The Members Council’s unanimous dissatisfaction with Arendse, a former president and lead independent director of CSA, was one of the flashpoints during the first sitting of the AGM at the weekend. The Nominations Committee agreed to reconsider but came back with the advocate as the best candidate.

Given that CSA’s new Memorandum of Incorporation makes it quite clear that the Nominations Committee have the final say, the Members Council wisely put up no resistance on Wednesday night.

The 63-year-old Arendse has been a controversial figure, attracting criticism for his continued interference in the selection of the national team and a brusque manner that has been described as bullying, and is not held in any particular fondness by the players.

With memories still fresh of how CSA’s previous Audit and Risk Committee failed so dismally to deal with the malfeasance and impropriety laid bare in the Fundudzi Report, it was pleasing to see the Members Council ensure this crucial body will be totally independent.

Seasoned governance and procurement expert Dr Lawson Naidoo will chair the committee, with Steven Budlender SC, a silk who has made his name in public interest litigation, Simo Lushaba, a leading figure from the Institute of Directors and governance expert who has sat on and chaired numerous boards,  and Mark Rayner, the former CEO of MultiChoice, the other members.

Judging by the antics of the Members Council at Saturday’s Cricket South Africa AGM, local cricket fans can thank their lucky stars that there is now a predominantly independent Board that has been put in place to oversee the strategy and vision of the embattled organisation going forward.

In between clowning around in a meeting that has serious consequences for South African cricket and subverting the democratic process by trying to elect people by consensus rather than putting everything to a vote, the Members Council did also manage to object to one of the independent directors named by the Nominations Panel.

Advocate Norman Arendse can be an enormously controversial, divisive figure as he has shown in previous stints on the CSA board, and the Members Council were unanimous in their unhappiness with his appointment. Newly-elected CSA Members Council president Rihan Richards was vague about just why they objected to Arendse, other than to say he was the lead independent director when dismissed CEO Thabang Moroe was appointed and he has made derogatory utterances about CSA in his time off the board.

The Nominations Panel agreed to reconsider Arendse’s appointment, but according to Dr Stavros Nicolaou, the chairman of the Interim Board, they can consider input from stakeholders but can pretty much appoint who they like as long as they meet the eligibility criteria.

The seven independent directors that were confirmed on Saturday are Advocate Steven Budlender, a self-described cricket obsessive; former Proteas batsman and convenor of selectors Andrew Hudson; Simo Lushaba, who has a doctorate in Business Administration and has extensive experience on several boards; governance expert Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution; Andisa Ntsubane, a marketing and communications expert whose face is well-known in cricket circles through his work with major sponsors; former MultiChoice CEO Mark Rayner and Ntombi Ravele, a seasoned sports administrator who was involved in boxing, netball and tennis.

Ravele is the only woman on the board because the Members Council could not find it in their hearts or resolve to follow through on their oft-spoken belief in gender equality as they elected Border president Simphiwe Ndzundzu, who has been accused of breaking a woman’s arm with a knobkerrie when he went to a colleague’s house and attacked him and his elderly mother, ahead of Central Gauteng Lions president Anne Vilas.

Ndzundzu, head of a province whose financial situation is almost as disastrous as their on-field performance, and Vilas, in charge of arguably the most successful union in the country, found themselves tied for the fifth non-independent director’s position. Ndzundzu has also accused Vilas of being racist when she raised the allegations of his gender violence.

The four other non-independent directors elected are Daniel Govender (KZN), John Mogodi (Limpopo), Craig Nel (Mpumalanga), Tebogo Siko (Northerns).

Interestingly, neither Richards nor Donovan May of Eastern Province, who was elected vice-president of the Members Council, made themselves available for the Board. While Richards said this was “to ensure clear separation between the Members Council and the Board”, history suggests one will find it is merely an arrangement to ensure seven Members Council representatives share the gravy instead of just five.