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of racism made against them; “if so, this is very serious and the findings against them will ultimately need to be withdrawn,” Becker said.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 fact that his previous two-year ban for doping has now been quadrupled to eight years for his next offence is something Chiliboy Ralepelle’s lawyers believe is grounds for an appeal, but the former Springbok hooker’s career is almost certainly over after the South African Institute for Drugs-Free Sport’s independent doping tribunal announced another guilty verdict on Wednesday.

The 33-year-old tested positive for the growth hormone Zeranol while with the Sharks in January 2019. It was his second doping offence after being banned for two years in September 2015 for use of an anabolic steroid, Drostanolone, while recovering from injury in France.

Ralepelle has actually tested positive on three occasions, with his initial brush with the law coming in 2010 when he and wing Bjorn Basson were found to have the banned stimulant methylhexaneamine in their systems after the Springboks had played Ireland in Dublin on an end-of-year tour. But they were only given a reprimand when a judicial hearing found that it was not their fault because it came from a tainted supplement provided by the South African Rugby Union.

So it seems Ralepelle’s legal team are set to argue that it is only his second doping offence.

“We have concluded that there are definitely grounds for appeal, but we are creatures of instruction and we will take those instructions from Ralepelle on how he wants to proceed. We are preparing an opinion for Ralepelle on whether, solely from a legal perspective, he should appeal.

“There is one example: Chiliboy was previously banned for two years and the WADA laws say that the second offence must be double the standard for the first offence. In that respect, from our legal view, from a two-year previous ban, it should have been a four-year ban at best and not an eight-year ban. But we are still considering the contents of the judgement,” legal representative Hendrik Hugo told ENCA on Wednesday.

A four-year ban for a second offence involving serious drugs would appear to be a light punishment, however, given that some first-time offenders, such as Welshman Owen Morgan in 2017, have been given four-year sentences.

Springbok wing Aphiwe Dyantyi is facing a four-year ban himself after testing positive for three different steroids last year. According to SAIDS, a virtual hearing to the 25-year-old’s case should be held in the next two months.

At the other end of the spectrum, former Swansea hooker Dean Colclough was banned for eight years in 2014 for possessing and distributing steroids.