Former International Cricket Council (ICC) Legal Officer David Becker has published a critical assessment of the social justice and nation-building process led by ombudsperson, lawyer Dumisa Ntsebeza SC. He also represents the current CSA director of cricket Graeme Smith.
Becker and several anonymous lawyers involved called the process and the report flawed and questioned whether the CSA could actually implement any of the “tentative” findings and recommendations contained therein.
The 235-page final report was submitted to the CSA Board of Directors by the mediator on December 10. He was deeply critical of the ASC and senior management, claiming they had engaged in harmful behavior.
It determines that the ASC, along with current ASC cricket director Graeme Smith and Proteas head coach Mark Boucher, as well as former star hitter AB de Villiers, have engaged in prejudicial conduct .
But in an 18-page letter sent to CSA on behalf of several of the respondents, the impartiality, independence and due process of the SJN – which cost CSA R7.5 million over six months – were put in check. question.
âThe conclusion that the report’s findings are ‘tentative’ is worrying. Some of these “findings” are very important and significant, “the letter says.
Respectfully, how can a finding of racism, for example, be ‘provisional’? Either it is an observation, or it is not an observation. If it is provisional (and if further work is needed, as the Ombudsman suggests in paragraphs 439 and 442 of his report in order to reach âappropriate conclusionsâ), this report should not be accepted in its present form. “
IIn a separate statement, Becker puts in evidence.
“Questions were legitimately asked about the dual role played by the Mediator’s lawyers, as it turned out that not only did they advise the Mediator, but at the same time drafted and submitted heads of argument on behalf of the plaintiffs â , Becker said. .
âThe apparent conflict is even more glaring when one considers that more than 250 paragraphs of the complainant’s heads of argument were simply cut out and pasted verbatim, directly into the Ombudsman’s report. This arguably undermines the independence of the ombudsman and calls into question the integrity of the report and the process.
Racial prejudice charges
Smith and De Villiers are accused of racist action in terms of team selection, while Boucher was named by former teammate Paul Adams as one of many players who called him ‘brown shit’ in a edited version of a popular song at a team meeting. Boucher admitted he was involved in a response affidavit and apologized.
But the SJN report criticized the apology. According to the report, Boucher showed “a lack of sensitivity and understanding of racist undertones.
âDue to the history of this country, the gravity of calling people racial nicknames will not weigh in the same way for black people. It is disappointing that Mr. Boucher seems to dislike this salient common understanding. “
Smith, along with the Proteas Selection Board in 2012, are accused of banning the elevation of former wicket keeper Thami Tsolekile to the test squad. The implication is that Smith, as captain, blocked Tsolekile’s path because he was black.
“It is difficult to rule out Mr Tsolekile’s run as the main reason he failed in the Proteas,” the report said. âThe CSA, Graeme Smith and some coaches back then really failed Mr. Tsolekile and many black players of his day in a lot of ways.
âThe panel’s decision was totally irrational and showed clear signs of systemic racism. “
In another incident, according to former manager Hussein Manack at SJN, De Villiers is accused of blocking black hitter Khaya Zondo’s path to the Proteas team.
De Villiers, as international captain for a day, has apparently insisted that Dean Elgar be selected rather than Zondo. De Villiers passed the lead from Linda Zondi, then head of selections, to CEO Haroon Lorgat to ensure that decision was made. Manack exonerated himself, saying he was “pressured” to choose Elgar.
The report, relating to this incident, says that De Villiers went over Zondi’s head: âJust to make sure that a black player was not placed in a position that he saw as requiring more experience. The only reasonable conclusion is that Mr. de Villiers unfairly discriminated against Mr. Zondo on racial grounds.
These are two serious allegations, which Smith and De Villiers were unable to dispute in the process.
Important concerns about SJN
Becker hit back at the allegations. Becker testified that he and several other attorneys representing various respondents had âraised significant concerns about the integrity of the process with CSA â.
âThe SJN process was definitely an important process for South African cricket,â Becker said in a statement. âHowever, the ASC is going to have to take into account a number of fundamental flaws in the ombud process, which were raised by several respondents.
“For example, how do you make wide-ranging and public findings of racial prejudice against certain people and at the same time say that they are ‘provisional’, as the mediator did?
“How can the CSA implement these conclusions when the Mediator has declared, by his own admission, that he” cannot draw definitive conclusions in a case where the evidence of both the alleged victims and the perpetrators suspected have not been tested â?
âWhy has the evidence not been properly tested? The ombudsman had the opportunity to cross-examine the witnesses under the terms of reference and did not take that opportunity, âsaid Becker. “It was his process.”
Concerns were also raised about the lack of due process. âImportant questions will need to be asked as to why some respondents were not properly informed of the allegations made against them, as required,â Becker said.
“It appears that several people against whom findings of racism have been made were not properly informed of the allegations made against them by the office of the Ombudsman,” Becker said. “If so, it is very serious and the findings against them will ultimately have to be withdrawn or overturned.”
De Villiers also dismissed the allegations in a statement shared by his agent. “I have fully supported the goals of Cricket South Africa’s social justice and nation-building process, to ensure a level playing field in our game,” said De Villiers.
âHowever, throughout my career I have expressed honest opinions about cricket only based on what I thought was best for the team, never based on anyone’s race. is the fact.
The final report is also disappointing in the way it deals with the accusation of bias against the South African Cricketers Association (Saca). Several plaintiffs claimed that Saca was not serving their best interests, to which Saca responded in a comprehensive 250-page affidavit. Yet, in the SJN’s final report, Saca’s observations are covered in a few lines.
Roles of Smith and Boucher in the ASC structure
The SJN final report also criticizes the process that led to Smith’s appointment as ASC cricket director at the end of 2019, and Boucher’s subsequent appointment as Proteas head coach by Smith.
The report says there were “procedural flaws” in the appointment of Smith, who, in his role as manager of cricket, subsequently appointed Boucher as head coach.
Smith was wanted for the job, which is not unusual for such managerial positions. Former chairman Chris Nenzani said in an affidavit that the board approved both Smith and Boucher’s appointments.
The SJN report also accuses Smith of racist behavior because he refused to work with then CEO Thabang Moroe. Moroe was subsequently fired and it was found that he had not acted in the best interests of the ASC, as stated in the Fundudzi forensic report .
Becker disputes the conclusion that Smith’s opposition to Moroe was racially motivated.
âSome of the findings are entirely questionable and without any basis,â Becker said in his statement. “For example, by noting that Smith’s refusal to work under Moroe” speaks to his racial prejudice against black leadership at the CSA, “the mediator is simply ignoring the fact that Smith worked quite happily and successfully under the current CEO by CSA interim Pholetsi Moseki for the last year.
âHe has also worked in collaboration with three black presidents of the CSA since his appointment in December 2019.
âRegarding his nomination, Smith did not nominate himself. The evidence clearly shows that her appointment was approved by the Selection Board and endorsed by the entire CSA Board of Directors, CSA President Chris Nenzani, CFO Pholetsi Moseki, Interim CEO, Head of human resources Chantal Moon, and Legal Advisor and Secretary General Welsh Gwaza.
Ntsebeza has called for the cricket mediator’s office to be made permanent, but that is unlikely if court challenges continue.
CSA Board Chairman Lawson Naidoo said: âWe look forward to the report and will engage with it and its recommendations, to help ensure that we actually transfer the game of cricket to a new and different trajectory. We therefore undertake to examine the conclusions and recommendations with an open mind. We will examine the report objectively, taking into account our social justice obligations and our duties as stewards of the game in the Republic of South Africa. DM