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.

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”.

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.

Cricket South Africa’s Members Council on Wednesday approved the new constitution that embraces the governance recommendations of the Interim Board based on the Nicholson Report, which means the organisation can now move on to the process of choosing their new board made up of independent and non-independent directors.

The Interim Board on Wednesday clarified the process by which these directors will be appointed, disputing suggestions published by The Citizen that they have any knowledge of who the applicants to be independent directors are and that they play any role in drawing up a shortlist for the Nominations Committee.

The Nominations Committee should be in place later this week and that six-member panel will comprise either a men’s or women’s former international player nominated by SACA, alongside a former CSA president nominated by the Interim Board, a Members Council representative and people from the Institute of Chartered Accountants, Institute of Directors and the Legal Practice Council.

“The Interim Board does not know who has applied and will not be involved in the nominations process other than recruiting one former CSA president to serve on the Nominations Committee. All the applications are under lock and key in the office and will be passed on directly from the office to the Nominations Committee as soon as they are in place,” Interim Board spokeswoman Judith February told The Citizen.

The planning for the long-delayed AGM of Cricket South Africa can now go ahead, with the election of the new board likely to happen around May 14, which is when the extended tenure of the Interim Board is set to end.

Interim Board chair Dr Stavros Nicolaou said he was looking forward to the focus now moving from the boardroom to the field of play.

“Cricket is now poised to move forward with a new governance structure. We look forward to taking the focus away from the boardroom and to the field of play, especially ahead of the T20 World Cup later this year. I would like to thank the Members’ Council for ensuring that this resolution is passed.

“We have now reached the stage where we can move to complete one of the outstanding issues of our mandate which is to hold the Annual General Meeting. We have kept Minister Nathi Mthethwa fully briefed on the latest developments,” Nicolaou said.

The Minister will hold a joint press conference with the Interim Board and the Members Council on Friday, at which the new Memorandum of Incorporation is expected to be made public as South African cricket finally starts to emerge from two years of poor leadership, in-fighting and enormous damage to its credibility.