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of racism made against them; “if so, this is very serious and the findings against them will ultimately need to be withdrawn,” Becker said.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

It was never going to be a dolly of a catch that Social Justice and Nation-Building ombudsman Advocate Dumisa Ntsebeza found himself under, but given the evidence provided during the last week of hearings, his job over the next month in compiling his final report should be like taking a firmly-struck drive straight to you in the covers.

Given the legal pedigree of Ntsebeza, I would be surprised if he fumbled. Even though the way assistant Sandile July seems to have already made up his mind about who the villains of this piece are is a bit like your team-mate distracting you under a high catch by also trying to get under it.

As Ntsebeza has often reminded, his brief is to find whether there has been racial and gender discrimination in South African cricket.

For those of us who have been involved in the game since unity, the evidence has clearly backed up what we knew all along. There was most certainly racial discrimination and lingering Apartheid attitudes that caused some fine cricketers and people to be dreadfully treated.

But since around 2010, the issue becomes cloudier. The national team became more representative and more aware of diversity and cultural differences. Cricket South Africa’s Board became majority Black.

The last week has seen Ntsebeza admit that the evidence provided by those found guilty of attempting to corrupt the game – Alviro Petersen, Lonwabo Tsotsobe, Ethy Mbhalati and Thami Tsolekile – that they had been discriminated against on the basis of their colour, was “a red herring”.

Ntsebeza expressed his regret that so much time had been spent on the issue, likening it to “a runaway horse” that was eventually corralled by the testimony of those who led the matchfixing investigation in 2015/16.

So their evidence – save for some of the harrowing tales from Tsolekile’s youth – should be discounted. Along with that of former CSA independent director Eugenia Kula-Ameyaw, who ironically came up with the SJN idea.

That she actually has very little clue on the game in this country was borne out by much of her evidence being picked apart by the compelling testimony of SACA chief executive Andrew Breetzke, CSA’s acting head of pathways Eddie Khoza and acting CEO Pholetsi Moseki.

High-profile lawyer David Becker, along with Moseki, also cleared up many of the untruths about how Graeme Smith came to be in CSA’s service as director of cricket.

It is a pity that none of Smith, Mark Boucher or AB de Villiers have given public testimony, but hopefully there is enough in their affidavits for Ntsebeza to have a clear picture of their side of the story.

It is to be hoped that Ntsebeza, who seemed to grow increasingly frustrated towards the end of the hearings but managed to remain in control and exude a definite air of fairness, is able to produce a final report that CSA can call into service to ensure they continue the progress in transformation that they have made.

The importance of the SJN is to guide CSA into the future and not to settle the scores of those who are bitter, especially those who are chiefly responsible for their own demise.

Selection and quotas will always be a contentious issue. And even though Khaya Zondo was clearly unfairly treated in 2015, it is difficult to say it was on the basis of his colour given the fact that Black people, and not just De Villiers, were involved in that controversy.

Speaking of being unfair, July himself admitted that targets were discriminatory but were designed to undo previous wrongs. It is an argument with huge merit, but the other side of the coin is that innocent people are being punished for the sins of their fathers.

I always think the opinions of West Indian great Michael Holding should guide one’s view in most cricketing discussions. But even he appeared a bit stumped by the whole quotas issue when he addressed the SJN hearings at their closure.

Calling them “an unnecessary burden” for players of colour, allowing the churlish to say they are only in the team because of regulations, he added that he understood the reason for them because people wanted to see a team that is fully representative and that the fear is, without quotas, this will not happen quickly enough.

Holding said he hoped they would eventually no longer be necessary.

My hope is that the SJN leads to exactly that, where all cricketers in this country have an equal opportunity to play for the Proteas.

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.

The first week of the Social Justice and Nation-Building hearings have been a mere aperitif for what I sense many people are hoping are more sensational revelations from next week when former players start appearing before Advocate Dumisa Ntsebeza, the ombudsman appointed by Cricket South Africa.

But in many ways, this week’s “scene-setters”, as Ntsebeza has called them, have provided vital testimony because they have given a factual account of the transformation policies of CSA and how they have changed through the years. There have been successes, but there have been failures as well and surely no-one can question that the national team is not as transformed as it should be nearly 30 years after Unity.

The SJN commission did not have a promising start though. The first witness was Dr Eugenia Kula-Ameyaw, which was fair enough because the SJN was largely her idea. But the former CSA independent director produced a couple of hours of largely incoherent testimony riddled with factual errors. As a former Board member, how does she not know that the players’ association (SACA) don’t pay the players’ salaries?!

She then thought it would be appropriate to give Ntsebeza a cricket bat, signed by her, to commemorate the occasion. The ombudsman looked bemused and it was telling that he never mentioned Kula-Ameyaw’s presentation again during the week.

It was onwards and upwards from there though as Advocate Norman Arendse, former CSA president and current independent director, and Max Jordaan, CSA’s head of transformation, spoke of the steps taken to ensure equal opportunities for all before cricket was captured and the likes of Kula-Ameyaw took the reins.

Mary-Anne Dove, a doctor of sports and exercise science whose thesis was on the role of socio-ecological factors in talent development in sport, gave insights into how targets or quotas have to be accompanied by development and other interventions, and Zola Thamae, a former Board member and manager of the Proteas women’s team, gave shocking evidence of how the women’s national team was treated a decade ago.

Professor Richard Calland, an expert on sustainable governance and organisational culture, gave an interesting presentation too.

It is clear that CSA have made a meal of transformation, but it does not matter how many Black player quotas or targets they have, the failure of the Proteas to be truly representative of the country is firstly down to socio-economic issues.

Jordaan, who has been at CSA for 20 years, apart from the disingenuous comment that “nobody is missing out on selection because we are juggling numbers”, made the salient points that when the Proteas won the ICC mace for being top of the Test pile, targets were in place, and that transformation has to start at the many non-former-Model C and private schools and at clubs, but CSA runs into difficulties when they try and improve facilities in these areas due to recalcitrant city councils and the lack of support from the department of education.

Jordaan gave the example of a cricket facility in Welkom being taken over by the local council, who built a casino instead on the land, and buildings in townships “disappearing brick-by-brick”.

Instead of just congratulating themselves for having ticked the box of having a certain number of Black players in the Proteas and domestic teams (which is not a valid measure of transformation success because teams are forced to meet the racial targets), cricket needs to firstly make sure the pipeline at grassroots is working.

I believe CSA have actually done okay in this regard and have worked very hard to keep the pipeline flowing. But there is no doubt Black players still predominantly come from the former Model C and private schools – a much smaller pool.

This is due to structural, systemic problems that only national and local government can fix, especially with the currently constrained financial resources of CSA.

The frustration of Black African cricketers was evident in the presentations of Johannesburg coach David Mashiyi and former player Zonde Mbekeni.

The fact that Mbekeni feels as frustrated and angry about the lack of opportunities for Black Africans as he did in his playing days back in the 1970s is not okay.

But in many ways it boils down to a struggle for scant resources and opportunities.