Ken Borland

There seems to have been some misinterpretation of Jurie Roux’s comments this week to the extent that the Australian Associated Press news agency claimed that the SA Rugby CEO had made the call for legal action to be taken against New Zealand Rugby for their plans to basically pull out of SuperRugby as we know it.

The truth is likely to turn out to be almost the opposite. While Roux did say “New Zealand have kicked themselves out”, he also added that they had “every right to determine their own future” and that discussions were happening with all Sanzaar partners.

You see, the Covid-19 pandemic would almost certainly qualify as a ‘force majeure’, the trendy new legal term borrowed from the French for what we used to call Acts of God. A ‘force majeure’ is an unforeseen and uncontrollable circumstance that makes it impossible to fulfil a contract.

In terms of rugby, it is clearly impossible for SuperRugby in its usual format to happen in 2021 if international travel is not yet allowed, if there are strenuous quarantine measures still in place or if the paucity of flights makes overseas trips prohibitively expensive.

Roux did say that there are Sanzaar legal agreements in place and that if anyone ignored their commitments to them then they would be liable to legal action, but with that French word coming into play, it would clearly take some pretty soulless leadership to try and sue a union that is just trying to keep themselves afloat in this time of economic catastrophe.

The shoe is on the same foot when it comes to South Africa because even if New Zealand wanted to proceed with SuperRugby as per normal next year, our franchises probably wouldn’t be allowed into the country without quarantining for two weeks and the costs of travel would be unaffordable.

Roux is a shrewd man as well and, although he has never publicly dissed the brand, he would have been well aware that the current SuperRugby format had lost the support of the general rugby-loving public and was busy pushing SA Rugby into poverty. He admitted this week that for more than a year he has been looking at additional options for SA Rugby and said “we are a long way down that road already and some of those options probably suit us better”.
This surely means a move into the lucrative Northern Hemisphere market. The Springboks and our top four franchises have plenty to offer European competitions as well – it is not as if we are the peasants of the game, we are the world champions and one of the biggest broadcast markets for rugby in the world.

But while SuperRugby may well be discarded like the old, worn out pair of boots it is, there is no doubt South Africa want to maintain a good relationship with New Zealand, traditionally their greatest rivals. Roux spoke about how the Rugby Championship is not only a significant revenue-earner for SA Rugby but it also enables them to cross-subsidise so many of their other competitions.

Those Sanzaar legal agreements are going to force New Zealand, Australia and South Africa, and Argentina, to the negotiating table to thrash out whatever win-win-win solution they can come up with. Leverage is always the name of the game when it comes to negotiation and while South Africa have the numbers and therefore the money to bring to the table in a big duffel bag, and New Zealand also have a large bag based on their historical record as having the best teams in southern hemisphere competition and therefore the biggest drawcard, it would seem Australia and Argentina only have sachets to barter with.

Nobody would want Australian rugby to be isolated like their country was before James Cook arrived with his cutlass, but the fact is they are not in a position of strength when it comes to negotiating the future of Sanzaar.

It is not too surprising that New Zealand do not want to accommodate all five Australian franchises, but if allegations that they have been in clandestine contact with a couple of them are true then that would be as offsides as the former SA Rugby president who fired the Springbok coach by fax.

Whatever comes of the negotiations, though, it would seem South African rugby fans can look forward to a stronger Currie Cup-type tournament locally, a refreshed, shorter, crossover event with the other Sanzaar teams and more of our franchises dunking their toes into European competition.

With the British and Irish Lions touring here next year, the stars of the UK game could become the same sort of attractions/nemeses as the likes of Dan Carter, Christian Cullen, Richie McCaw and Stephen Larkham.

And given the time zone, watching our teams playing in Europe will be much easier for those of us who tend to suffer from moderate dysania.

Cricket South Africa’s Board can look forward to more legal action against them as dismissed Head of Sales and Sponsor Relations Clive Eksteen announced on Tuesday that he was taking them to the CCMA for unfair dismissal.

Eksteen was sacked at the weekend based on a single charge that was added to his disciplinary hearing after he was suspended on October 29 for his alleged role in the non-payment of image rights to the players’ union. That extra charge was related to a loss of $100 000 the CSA Exco alleged the organisation suffered because Eksteen negotiated a deal with Amul, the multinational sponsors of South Africa’s T20 series in India last year, for an amount less than had been approved by the CSA Exco.

While Eksteen said he was cleared of all charges related to the non-payment of image rights – the presiding officer finding that the former Proteas spinner was in fact instrumental in the South African Cricketers’ Association eventually being paid – and an additional charge involving an agreement he was not even part of between the SABC and a sponsor, he was found guilty of Charge 5 and dismissed.

Eksteen said this was despite him providing evidence that the agreement with Amul was signed by his superior, chief commercial officer Kugandrie Govender, and that she knew how much they had offered before she informed Exco.

According to CSA disciplinary processes, any appeal can only be over sanction and needs to be handled by the chief executive, who is the legal officer. But acting CEO Jacques Faul is not allowed to be involved in disciplinary matters according to his contract, so he forwarded the appeal to the CSA Board, who last weekend upheld his dismissal.

“The Chair’s finding that revenue was lost was directly contradicted by the evidence of CSA’s employees, evidence she ignored. Subsequent to my conviction, I presented evidence in mitigation. This included a variety of reputable testimonials. The Chair refused to accept pertinent testimonials into evidence. She also refused to accept that Charge 5 was a minor charge, way less serious than the SACA charges on which I had been acquitted.

“In addition, I am in possession of evidence which exculpates me, which has come to light after the conclusion of the disciplinary inquiry, which evidence was known to CSA at the time. In these circumstances, I shall immediately be referring a dispute to the CCMA regarding my unfair dismissal. All of the evidence presented at my disciplinary inquiry, as well as the additional evidence which has now come to light … will be laid out before the CCMA. My attorney and I are totally confident that I will be vindicated in due course. Unfortunately, I believe I have been made a scapegoat for the shortcomings of others and I believe further that relevant evidence has been ignored or overlooked,” Eksteen said in his statement released on Tuesday.

The CSA Board, who thus far have failed to take any action against former CEO Thabang Moroe, who is suspended on full pay after losses of millions of dollars under his watch, even had the gall last weekend to issue a statement saying Eksteen had been fired after “transgressions of a serious nature”. They failed to mention it was over a theoretical loss of only $100 000 and that it had nothing to do with the dispute with SACA, who have even come out in support of Eksteen’s handling of their image rights dispute with CSA, which involved a reported amount of R2.4 million.

Depending on whether you believe the suspended chief executive and his legal advisors, Cricket South Africa now have two CEOs in Thabang Moroe and Jacques Faul and it is a chaotic situation that is almost entirely the fault of the president Chris Nenzani and the CSA Board.

It has been more than six months now since CSA’s Social and Ethics and Audit and Risk committees provided the evidence needed to suspend Moroe on December 6. A time period which, according to Moroe’s lawyer Michael Bill, means his suspension has lapsed. Which is why the suspended CEO pulled his brazen stunt this week of rocking up to CSA’s offices in Melrose Estate to ‘report for duty’ and there just happened to be a radio journalist on the scene to take the photo …

Despite the South African Cricketers’ Association warning CSA at the beginning of the week that their failure to make progress on Moroe’s disciplinary hearing would seriously erode the small gains in confidence that have been painstakingly acquired by acting CEO Faul and director of cricket Graeme Smith, the CSA Board were taken by surprise by Moroe’s act of defiance and, despite having practically the whole day to respond, could only issue a statement after midnight in the early hours of Friday morning.

While acknowledging that it might not be easy to pin down a slippery character like Moroe, six months is surely enough time to formulate charges against him given that the financial audit was already picking up irregularities a couple of months into their brief. Plus the state of cricket in December and the relationships Moroe had destroyed with vital stakeholders such as the players association, sponsors and the media should be enough to dismiss a chief executive for obvious incompetence.

The CSA Board have made such a pig’s ear of the entire situation that it is easy to wonder if it has not all been deliberate. Nenzani and Moroe were certainly in cahoots for much of the program of Cricket Capture and it is known that there are still directors who want the former CEO back. Plus the person responsible for handling disciplinary matters, company secretary and head of legal Welsh Gwaza, is a known Moroe ally.

Perhaps commercial manager Clive Eksteen and chief operations manager Naasei Appiah should also get ideas now and return to work after they were suspended by Moroe at the end of October? The then CEO made them, along with Corrie van Zyl, who has already been found guilty and given a final warning, the scapegoats for SACA not receiving the image rights money that was due to the players. But the players’ association say there is proof that it was not Appiah, Eksteen and Van Zyl who were delaying the payments but Moroe himself. Such malfeasance should be sufficient reason to dismiss the CEO.

The CSA Board’s response to Moroe’s ‘return to work’ was to say he is still suspended. Those incompetent directors who have shown themselves to be utterly incapable of coming up with ideas that will benefit the game look set to argue that the former CEO was never told his suspension would only last six months. But Nenzani is on record as having promised the process would be completed within six months.

CSA’s disciplinary processes talk about employees only being suspended for two months, unless there are exceptional circumstances. The Board obviously believe there are exceptional reasons for them to have flouted process, while Moroe and his legal team are within their rights to claim they have been unfairly prejudiced, pointing out that there has been a lack of formal written communication and just ‘conversations’.

There is little doubt the whole fiasco is heading for court and it will be for a judge to decide whether CSA or Moroe are in the right.

It’s going to be yet another financial drain on an organisation that was in dire straits even before the Covid-19 pandemic. All of this overseen by Nenzani, who is still trying to wrangle the constitution into allowing him to stand for yet another term as president. He has changed the constitution three times already and is the longest-serving president South African cricket has ever had to endure. And what good has he done for the game?

For South African cricket-lovers, it has been another week of shame that our beloved sport is in the hands of such delinquents.