Ken Borland

With the disciplinary hearing just a week away, Cricket South Africa’s legal team may have to mull a completely different strategy to try and get rid of Proteas head coach Mark Boucher following Paul Adams’ decision to not testify against his erstwhile team-mate and the likelihood that former national team assistant coach Enoch Nkwe is also not going to participate.

Adams issued a statement at the weekend in which he said he was not willing to be cross-examined over the allegations of racism he made at the Social Justice and Nation-Building hearings, which have been a central pillar of CSA’s case against Boucher.

CSA have also charged Boucher over his treatment of Nkwe, who resigned from his post in August last year, using the reasons he gave to the board as ammunition. But informed sources say Nkwe is not willing to present evidence, believing the disciplinary hearing is a matter between CSA and the head coach.

Boucher is facing charges of gross misconduct, with CSA seeking his dismissal, and, in terms of labour law, he has the right to have any witnesses against him cross-examined. If neither Adams nor Nkwe are there, his lawyers are bound to insist their statements cannot be included in the hearing.

Even though his accusers’ case would now seem to have gone to pot in a dirty pickle-jar bong, Boucher’s legal team say nothing has changed from their point of view.

“Mark Boucher said up front that all he was interested in was clearing his name, which has been tarnished,” Mohammed Chavoos told The Citizen on Monday.

“He welcomed the opportunity to do that at the hearing and that still remains the case. Our position has never changed.

“It’s up to CSA to deal with their witnesses, they were the ones who embarked on this process. All we want to do is exonerate Mark.

“It’s why labour law is there, the principle of letting the other side be heard, that’s what’s important. Mark has welcomed the chance to clear his name of these allegations,” Chavoos said.

In his statement at the weekend, Adams said he never intended to single out Boucher in the SJN hearings, where he revealed the existence of the “Brown Shit” fines meeting song, but the former Proteas spinner did say the wicketkeeper/batsman “should come and say sorry, if that’s enough” and also targeted Boucher’s appointment as Titans coach in 2016.

“We want to put South African cricket first and take the Proteas back to number one. In my view, Mark Boucher is the best coach for South Africa, that’s where he belongs,” Chavoos added.

Boucher’s disciplinary hearing on charges of racism is scheduled for May 16-20, with senior counsel Terry Motau presiding.

The SJN report has already been partially discredited by former director of cricket Graeme Smith winning his arbitration hearing, with costs, against CSA.

Cricket South Africa are fighting lots of legal battles at the moment, but possibly the most damaging to their reputation has just been made public as former England captain Karen Smithies has served the embattled organisation legal papers alleging discrimination during last year’s interview process for the position of Proteas Women’s team manager.

Smithies, who led England to the World Cup title in 1993, has been a highly-respected administrator and manager of the Titans team for the last 20 years and played a key role in the growth of the women’s game in this country in the early 2000s.

But Smithies has now made the shock claim that CSA rejected her application to be Proteas Women’s manager due to her being “bisexual or lesbian”, according to the organisation’s disgraced former head of HR, Chantal Moon. And Smithies has the recordings to prove it.

For an organisation that is trumpeting diversity as a core value and riding the wave of the tremendous recent success of the national women’s team, the revelations are deeply embarrassing and disturbing.

The online interview was held on June 9 last year via Teams before a panel comprising Moon, who has subsequently been dismissed as she was not properly qualified for her job, director of cricket Graeme Smith, head of player pathways Eddie Khoza and high performance manager Vincent Barnes.

Smith left the meeting after the interview, but the other three then discussed Smithies without realising that their conversation was still being recorded.

The legal papers allege that Moon pointed out that Smithies is “bisexual or lesbian”, to which Khoza responded that she “is in a life partnership with a previous South African women’s captain”. Moon then said there was a risk that Smithies would get “involved in some darling-darling relationship with one of the players”.

Barnes pointed out that it would not be right to appoint a “White Pommie instead of a Black African Male [current manager Sedibu Mohlaba].

The comments are an obvious case of discrimination against Smithies personally because national women’s captain Dane van Niekerk is married to team-mate Marizanne Kapp and there are other relationships within the squad. Coach Hilton Moreeng is a man but nobody has ever raised any concerns about him having a relationship with one of the players.

Smithies told The Citizen on Saturday that the initial hurt of the comments has been exacerbated by CSA’s steadfast refusal to respond to any of her complaints, forcing her to go the legal route.

“I felt so hurt and very disappointed that my career and achievements all came down to that one thing [her sexuality]. These are people I know well and I just wanted an apology and an acknowledgement that what happened was wrong. I’ve tried everything possible to avoid going to court, sent so many letters, but CSA have not had the decency to reply to one of them,” Smithies said.

Parliament’s sports portfolio committee duly received the full Fundudzi Report into the forensic affairs of Cricket South Africa on Friday, but not without having to go through legal gymnastics such as signing a non-disclosure agreement.

The members of the committee could get some decent weight training in if they print out the 486-page report and lug it around over the weekend. CSA were scheduled to meet again with the sports portfolio committee early next week, but depending on how much weekend leisure time the politicians are willing to give up, that could well be postponed given how long it will take to study the report properly.

A summary of the report was released to the media and other stakeholders, but not to parliament, by Cricket South Africa earlier in the week, much to the ire of the sports portfolio committee. They demanded that the full, unredacted report be given to them by close of business on Friday and CSA have complied.

While the summary focused on the failures and misdeeds of former CEO Thabang Moroe, it has caused a legal kerfuffle elsewhere in terms of some of the other names that were mentioned. CSA have been at pains to point out that the report has not been tested in court and is only the opinion and recommendations of the Fundudzi investigators. But already the other people named such as CSA human resources director Chantel Moon and parliamentary liaison officer Unathi Tshotwana, who has allegedly been exposed as being Service Provider X, have been tarnished without being given the opportunity to respond.

CSA issued a statement on Friday evening saying they had asked the chairperson of the sports portfolio committee, Beauty Dlulane, to declare the report as confidential.

“CSA has noted the public statement by the chairperson of the PPC to the effect that the PPC will sign a non-disclosure agreement in respect of the forensic report.  As such, and in accordance with the recommendation of the relevant Parliamentary Senior Legal Adviser, CSA has requested the chairperson of the PPC to make a ruling in terms of the relevant provisions of the Rules of the National Assembly, declaring that the forensic report is a confidential document.

“As publicly stated by CSA on various occasions and public platforms, the contents of the forensic report are confidential at this stage because it is a provisional report, because aspects of the report are subject to further investigation, and because public dissemination of the report at this stage may impair the integrity of the investigation process and undermine the implementation of remedial steps by CSA. It is for these reasons that CSA has, at this stage, released to the media a summary of the report, recording the substance of the provisional findings,” the statement said.

The full report, unlike the summary which was put together by CSA’s lawyers Bowmans, was sent to parliament directly by Fundudzi, so there should not be any redactions.

CSA did add that they would be consulting with Sascoc with a view to giving their president the report on the same basis as the sports portfolio committee.

But don’t expect any huge revelations to be coming out on social media over the weekend, because the lawyers have held sway.

Cricket South Africa on Thursday officially parted ways with their chief executive Thabang Moroe, announcing that he has been fired with immediate effect for serious misconduct, but the size of his misdemeanours is only likely to be revealed in the coming months as the dismissed administrator’s legal team have already indicated they will fight his axing in court.

CSA’s brief statement on Thursday said the “decision was based on expert external legal opinion supported by the findings emanating from an independent forensic investigation” but they gave no details of what exactly Moroe had done wrong. And the CSA Board have already rebuffed requests for the forensic report to be made public, including from their own Members Council, which is scheduled to elect a new Board on September 5.

Many believe the report implicates the Board in many of the things Moroe has been punished for, a perception his legal team have supported.

At the time of his suspension, way back in December, Moroe had presided over a huge deterioration in CSA’s relationships with key stakeholders such as the players’ union, sponsors and media. He was also accused of excessive credit card spending and procurement irregularities.

The forensic investigators, Fundudzi Forensic Services, interviewed a range of stakeholders before submitting their report in May, since when CSA have supplied numerous different excuses for not finalising the matter more timeously.

Tellingly, Moroe did not avail himself of the opportunity to be interviewed by Fundudzi, a point CSA were quick to highlight in their statement on Thursday.

“Mr Thabang Moroe was offered sufficient opportunity to provide representations to the independent forensic auditors and to the Board regarding the allegations of misconduct, which opportunity he failed and/or refused to utilise,” the statement read.

Moroe’s legal team are likely to include this in any legal action they take, given that they also targeted the chairperson overseeing his disciplinary hearing, demanding that they be replaced by an independent figure.

As much as the CSA Board may now believe the Moroe matter is done and dusted, there are numerous parties who are determined to ensure the forensic report is made public, and the axed CEO will certainly be using it in his defence. The behaviour of the CSA Board will then be in the spotlight.