Smith’s exoneration puts SJN in bad light
THE outcome of Graeme Smith’s arbitration process with Cricket
South Africa (CSA) further highlighted the chaotic state in which the organisation found itself three years ago, and also the flaws that were apparent in the Social Justice and Nation (SJN) building process.
Smith was exonerated on all counts by an independent arbitration panel regarding the findings made about him in the SJN report that was released in December last year.
On two of the four SJN findings that the arbitrators, advocate
Ngwako Maenetje SC and advocate Michael Bishop, ruled on, CSA’s legal team didn’t lead arguments, including one where Smith’s refusal to answer to CSA’s former chief executive Thabang Moroe, was used by the SJN as proof Smith “evinces his racial bias against black leadership at CSA”.
In their finding on that matter, the arbitrators stated that “there was no evidentiary basis to conclude that (Smith) was racially biased against black leadership at CSA”.
On two other SJN findings; that Smith likely had an influential role in Thami Tsolekile not being picked for the Proteas; and Smith choosing Mark Boucher to be the Proteas men’s team’s head coach over Enoch Nkwe, the arbitrators found no proof that Smith had acted in a racially discriminatory manner.
A major argument Smith’s lawyer, David Becker, made in the immediate aftermath of the release of the SJN report, was the fact that it contained “tentative findings”.
When placed under legal scrutiny, as was done in the arbitration process, those findings appear tenuous.
In the Tsolekile issue, the arbitrators relied heavily on statements from former selection conveners Andrew Hudson, who currently serves on CSA’s board of directors, and Linda Zondi.
Tsolekile had claimed in media interviews and then at the SJN last year, that he’d been told by Hudson he would be selected for the Proteas’ Test team in a series against New Zealand in 2013; and then later by Zondi, that Smith did not want him in the side and was threatening to quit as captain were Tsolekile to be selected.
Hudson and Zondi both denied making those claims, while Smith asserted he had not been privy to selection other than to provide advice via the head coach.
As for the Nkwe/Boucher situation that arose amidst CSA’s administrative implosion in late 2019, the arbitrators found that Smith’s reasoning for appointing Boucher as coach – that he had more international experience than Nkwe – wasn’t based on race, both directly or indirectly.
The arbitrators put forth that previously, in appointing Ottis Gibson and Gary Kirsten, CSA paid little heed to the fact that neither of that duo had Level 4 coaching certificates.
CSA had argued that Smith was wrong not to appoint Nkwe based on the fact he had a Level 4 certificate and Boucher didn’t.
“CSA did not establish that (Smith) directly discriminated against (Nkwe) on the basis of his race,” the arbitrators stated.
“If we considered the case of indirect discrimination, CSA did not prove, through the leading of relevant evidence, that Smith indirectly discriminated against Nkwe.”
The arbitrators directed CSA to pay Smith’s costs, which includes the cost of two counsels.
The arbitrators also found that Smith was successful on the two issues that CSA did argue, adding that the success was “substantial”.
“Now that finality on these processes has been reached, it is appropriate to recognise the extraordinary contribution that Graeme has made to South African cricket, first as the longest-serving Test captain in cricket history and then as director of cricket from
2019 to 2022,” Cricket SA chairman Lawson Naidoo said in a statement that was released late on Sunday night.
“His role as the (director of cricket) has been critical in rebuilding the Proteas Men’s team in particular and has laid a solid foundation for his successor.”