Ken Borland

Hot on the heels of the new Cricket South Africa board protesting that they inherited the mess that was the Social Justice and Nation-Building hearings, there is a second legacy of the old, disgraced board that may also cause them strife in the coming months.

I do have some sympathy for chairman Lawson Naidoo and his fellow directors when they ask with some frustration, in the wake of CSA’s embarrassing arbitration loss to Graeme Smith, “What were we supposed to do?”

The fact that SJN ombudsman Dumisa Ntsebeza chose only to make “tentative findings” on “untested evidence”, but was quite happy to make public claims of racism (surely the most damaging allegation against a White South African), meant CSA were almost damned if they do, damned if they don’t.

If they failed to further investigate the SJN allegations, then they would have been accused of ignoring the systemic racism that no doubt was part of our cricket in previous decades. But by acting on the claims against Smith, they left themselves open to criticisms of a witch-hunt and slander because the evidence was so flimsy.

Naidoo and fellow director Steven Budlender, the noted advocate, defended themselves in a Daily Maverick article this week, but what they did not mention was the way CSA’s legal representatives handled themselves in the arbitration, being criticised by the officials for “changing their tack” in the middle of the hearings and “trying to trap Smith”.

Little wonder costs were awarded against CSA.

Because the SJN was not properly set up to hear and test such inflammatory evidence in a better-controlled legal environment, the previous board certainly left Naidoo and Co with an explosive booby-trap.

The other decision of the previous board that is now causing some unhappiness in cricket circles is the automatic promotion/relegation that will apply at the end of next summer and see one of the top eight teams go down to the second division.

At the moment, one of Northern Cape, KZN Inland or South-Western Districts look set to be promoted. The Free State Knights, based in Bloemfontein, are bottom of the Division One relegation standings, with North-West (Potchefstroom) and the KZN Dolphins (Durban) tied second-from-bottom. Even teams like Western Province (Cape Town) and the Eastern Province Warriors (PE) have anxious times ahead as they are only lead the Knights by 10 points.

Do CSA really want one of those major centres to miss out as the likes of Kimberley, Pietermaritzburg or Oudtshoorn have a Division One team instead?

The problem with automatic promotion/relegation is that it is unlikely, barring a mass defection of players, that the team coming up will be better than the side going down, given the quality of cricket played in Division II.

There are many good reasons to ensure teams in the lower division can work their way up into the premier section, but the majority of fans do not want to see the Dolphins, Western Province or the Central Gauteng Lions playing in the second league. Imagine iconic stadiums like Newlands, the Wanderers or Kingsmead not hosting the best domestic players?

The only reason teams like KZN or the Lions, who would have been involved in the relegation battle before their surprise victory in the One-Day Cup right at the end of the season, would find themselves in danger of going down is because they provide most of the Proteas team.

There are many who feel automatic promotion/relegation is there to ensure the smaller unions, whose votes are often like the tail wagging the dog, share a place at the top table for at least one season before themselves being demoted.

I know CSA have a lot on their plate, but tweaking this system to ensure the Division II winners are only promoted if they beat the bottom side in Division I, is hopefully going to become a priority.

The Proteas may be performing at a renewed level of excellence at the moment, but Cricket South Africa continue to come hard at head coach Mark Boucher, who has now been formally charged with “gross misconduct” over the allegations of racism made against him by the Social Justice and Nation-Building report.

In what one CSA insider described as “an aggressive attack” on Boucher, the record-breaking wicketkeeper/batsman was served with charges under the organisation’s disciplinary code the day before the ODI series against India began.

Having pulled off an improbable 2-1 win in the Test series against India after losing the first match, the Proteas then registered an impressive victory in the first ODI in Paarl in midweek.

But the CSA Board’s antagonistic attitude towards their own national team and management was shown when they failed to send out any form of congratulatory message to the captain, players or coaching staff for beating the then No.1 side in Test cricket. CSA have made a habit in recent years of sending out congratulatory statements for even minor triumphs.

The SJN report accused Boucher of discrimination and using racial slurs relating to Paul Adams’ complaint of the Proteas team using a song referring to him as “a brown shit in the ring” during their fines meetings back in the late 1990s.

CSA on Thursday afternoon confirmed that Advocate Terry Motau (SC) would chair the disciplinary hearing, with the parties meeting on January 26 to determine a timetable for proceedings.

Legal sources have suggested that CSA’s already depleted kitty could be emptied even further if they try to use the SJN report to dismiss either Boucher or director of cricket Graeme Smith. Informed sources have indicated enquiries are still being made into whether Smith should also be charged, but that matter is complicated by the fact that the former Proteas captain is technically an independent contractor.

Lawyers representing several respondents implicated in the report have labelled it as “flawed” and have pointed out that the ombudsman, Advocate Dumisa Ntsebeza, admitted himself that his findings were “tentative” and that he could not make “definitive findings” based on “untested evidence”.

The impartiality of the lawyers involved has also been called into question because 260 paragraphs of the final report were merely copied-and-pasted directly from the complainants’ submissions.

The fact that such a significant accusation as racism has now been publicly made against Boucher and Smith is bound to lead to major legal challenges.

“They are not going to go quietly, they’re not just fighting for their jobs but also to clear their names,” a source close to both former Proteas stars said.

Cricket South Africa’s board announced on Monday that they will institute an enquiry into the conduct of director of cricket Graeme Smith and Proteas head coach Mark Boucher following the accusations of discrimination made against them by the Social Justice and Nation-Building Report released last week.

An independent legal panel will conduct the enquiry, making it a more formal process than the SJN hearings, during which evidence was not tested and ombudsman Dumisa Ntsebeza admitted that his findings were “tentative” and not definitive.

Even if there is no more than a germ of truth, however, in the SJN allegations, CSA’s statement said “The Board [is] mindful of its duty to treat allegations of racism or discrimination with the utmost seriousness and in a manner that ensures fairness and due process in terms of South Africa’s labour legislation and the Constitution.”

The formal enquiry will also give Smith and Boucher another opportunity to give testimony in person, after both were criticised for only submitting affidavits to Ntsebeza during the SJN process.

Smith has been accused of misusing his position as director of cricket to shepherd “his friend” Boucher into the head coach position without following due process. The former Proteas captain’s lawyer, David Becker, has refuted these allegations, pointing out that the decision was signed off by the board and executive management of CSA.

Ntsebeza’s finding also ignores the fact that Boucher was the most successful coach in domestic franchise cricket at the time of his appointment, and has international playing experience second to none.

Smith’s own appointment was also flagged by Ntsebeza as being irregular, but again this was done with the approval of a Black-majority board as well as the executive management of CSA, according to Becker and the organisation’s own evidence at the SJN hearings.

CSA said the formal enquiries will start “early in the new year” and will include all employees, suppliers or contractors implicated in the SJN report.

Smith and Boucher will continue in their positions until at least the end of the India tour on January 23.

All of which makes it seem like CSA are starting their investigations all over again despite spending R7.5 million on the SJN.

Despite their dodgy origin, there are many who believed the Social Justice and Nation-Building (SJN) hearings would be a very good idea, something necessary to try and heal the increasingly polarised and embittered environment of South African cricket.

But now that the SJN report has been made public, what a grave disappointment it has been and what a waste of R7.5 million. So much evidence has simply been ignored or totally misinterpreted and the legal flaws within the findings reflect very poorly on Advocate Dumisa Ntsebeza’s standing as one of our finest jurists. Never mind the poor job done by his assistants from Werksmans Attorneys.

It is now clear that the entire focus of the SJN was on getting dirt on Graeme Smith and Mark Boucher. Addressing historic wrongs and racial discrimination was just a side project.

Ntsebeza has found Smith’s appointment as director of cricket to be irregular and has also accused him of racist behaviour in the past. This is despite what I thought was compelling evidence presented by the likes of Cricket South Africa, the South African Cricketers’ Association and former Proteas manager Mohammed Moosajee.

The report almost entirely ignores all of that and goes way outside of its mandate in slamming Smith’s appointment. Surely Ntsebeza is aware that headhunting is a common occurrence in the corporate world and his appointment was approved by a number of people, the majority of whom were Black?

But no, it was racist. As was Boucher’s selection as Proteas head coach.

Enoch Nkwe is a very good coach and, in an ideal world, should be the successor to Boucher. But to say he was discriminated against based on the colour of his skin is ridiculous. It ignores the fact Boucher had more experience and more success coaching at the level below the Proteas and the wicketkeeper/batsman’s immense international knowledge from his playing days.

Three franchise trophies in one season point to Nkwe’s potential, but to equate trophies won in second-tier cricket in the Netherlands, semi-pro cricket or junior weeks, and even a second place in the Canadian T20 league, with Boucher’s achievements is ludicrous. The report also makes no mention of the 3-0 hammering South Africa suffered in India under Nkwe as interim head coach just before Boucher’s arrival.

The SJN could really have done with some advice from an ex cricketer or anyone with some idea of how high-performance sport works. The total lack of expertise in this regard has been made clear by the report. There was an early warning sign of this when legal assistant Sandile July asked why Imran Tahir had not stepped down from the Proteas team to allow another spinner a chance!

I also believe Mr July exhibited a lack of impartiality in his examination of those witnesses who had been implicated. He seemed to implicitly believe that the evidence of the complainants, even those dishonest individuals banned from the game for their involvement in matchfixing, was true.

The allegation made this week that over 250 paragraphs of the complainants’ heads of argument, which were written by July and Fumisa Ngqele, have been simply cut and pasted word-for-word directly into the ombudsman’s report, reflects poorly on the fairness of the SJN process.

These are not just minor matters that need amendment. Most damning of all is Ntsebeza’s own admission in his closing remarks that the evidence presented was not able to be tested. He says he cannot make definitive findings, describing his own conclusions as being “tentative”.

And yet he has happily painted Smith, Boucher, AB de Villiers and various other former players and officials as being racist. The decent thing for Ntsebeza to do would be to pay back half the R7.5 million to CSA for doing half a job, never mind the compensation he might have to fork out for the damage he has done to the reputations of people based on “untested evidence” and “tentative findings”.