Cricket report war rages on
There’s a secret dossier — compiled by forensic investigators — on the mess, but the sport’s bosses and lawyers won’t let anyone see it
● Cricket SA’s attempt to keep the muchawaited and controversial forensic report secret is strengthened by a punitive clause in the non-disclosure agreement that threatens anyone who publicises its contents with heavy financial penalties.
The agreement, which the Sunday Times has seen, is a 17-page document compiled by legal firm Bowman Gilfillan.
It contains a clause (12.3), that says the person who shares the details of the 468-page forensic report, compiled by Fundudzi Forensic Services, with a third party, will have to reimburse CSA for “any losses, costs, liability, or damages ... suffered or incurred by CSA”.
The restrictive nature of the agreement and the clause are bones of contention with a number in CSA’s members’ council.
They took umbrage at the binding nature of the agreement and the clause.
The agreement also states that the distribution of the report, which has been seen by only CSA’s audit & risk committee consisting of Vuyokazi Memani-Sedile, Dheven Dharmalingam and Marius Schoeman, has to be limited to certain individuals not only because of serious legal implications, but “may also affect the rights of third parties implicated or menpublic tioned therein who have not yet had an opportunity to provide their version of events”.
“The [agreement] itself is a problem because it defeats the very purpose of why the report was commissioned. For the game to move forward, the report stands in the way and the particular clause ties the hands of many people. There’s no progress past it,” a CSA official said.
Fired CEO Thabang Moroe’s lawyer Michael Motsoeneng Bill said they were not aware of the agreement and the clause.
Bill also said they were not given an opportunity to see the full report. Last month Moroe was fired after a nine-month suspension based on an abridged report.
“We did ask for the full report. We weren’t given access to it and we didn’t get to the part of the [agreement],” Bill said.
Former CSA president Chris Nenzani told parliament’s sports portfolio committee in June that parts of the report were to be made and would be delivered to the sports ministry. Sports minister Nathi Mthethwa and the SA Sports Confederation and Olympic Committee (Sascoc) have to sign the agreement to see the report.
Sascoc CEO Ravi Govender said the clause was a problem.
CSA and Sascoc had a joint press conference on Thursday where neither party shifted from their original standpoints with the report.
“The bottom line is that we need unrestricted access to the report to make sure our intervention is successful in achieving its objectives. We want the report. We want unrestricted access to make sure the interventions have the best chance of success,”
Govender said.
“We’re also not at ease that the members’ council, who not only commissioned the report, but haven’t seen it in a holistic manner [does not have access]. If the highest decision-making body can’t have unrestricted access to the report, it doesn’t sit well with due process and good order.”
Bowman Gilfillan senior marketing and communications manager Alice Andersson said it prioritised client confidentiality.
“Bowmans is unfortunately not in a position to answer these questions or any questions related to clients and the confidential work we do for them,” Andersson said.
For the game to move forward, the report stands in the way
Despite the agreement and the fact Sascoc made it clear it needed the report without any obstacle, Govender said it is willing to sign an undertaking when it receives the report and will respect its confidentiality, provided it gains full access and is able to act on it if necessary.
“We are prepared to sign an undertaking that we’ve received the report and we’ll respect the confidentiality required by the normal course of business. What’s the point of being restricted and being courted? We’ve indicated we need the report to move forward in terms of organising our intervention. How are we able to do that without the elements of the report to develop the terms of reference for our task team?” Govender asked.
“We understand the principles of an [nondisclosure agreement]. As the mother body, we should have unrestricted access and that statement seems to have wide and far-reaching implications. It’s like the child dictating to the parent in an intervention, yet the child wants to protect itself against that intervention.”
CSA said limited disclosure of the report protected it and other parties. “Limited disclosure has been made in the interests of transparency whilst safeguarding and mitigating any potential harm to CSA caused by the disclosure of the forensic report.”