Johannesburg — Cricket South Africa did not make any argument regarding one of the most serious findings made by the Social Justice and Nation Building report regarding Graeme Smith’s conduct towards working with black colleagues at the organisation.
The SJN found that because Smith refused to work under CSA’s former CEO Thabang Moroe, it “evinces his racial bias against black leadership at CSA.”
Instead of argument before the arbitration panel, CSA sought only a finding, but did not indicate in any way what it thought the correct finding should be, the final arbitration report noted. Smith meanwhile led detailed evidence on the issue urging the panel “strongly to find that his conduct did not ‘evince racial bias.’”
Smith outlined a lengthy series of events that started with CSA’s former chief executive, Thabang Moroe approaching him in July 2019 to take on the role as the organisation’s Director of Cricket. Smith outlined how the entire process, which culminated eventually in his appointment in December 2019, had caused deep frustration with Moroe failing to fulfil various promises.
As for the inference made by Cricket SA, that Smith didn’t want to work with black officials, Smith was emphatic that the assertion was wrong. Cricket SA had claimed that Smith not wanting to answer to Moroe was proof he didn’t want to work with black people.
Smith claimed that wasn’t the case and that he didn’t want to answer solely to the CEO, but rather wanted to get his point across to the Board of Directors, which in 2019 was chaired by Chris Nenzani.
Cricket SA went further stating that when Dr. Jacques Faul was appointed interim CEO after Moroe’s suspension in December 2019, the fact that Smith worked with him was further evidence of Smith not wanting to work with black people. But the arbitrators pointed out that when Smith agreed to be Director of Cricket, he wasn’t aware that Faul would be appointed acting CEO.
Cricket SA’s current CEO, Pholetsi Moseki, who had replaced Faul in that role on an acting basis in 2020, stated to the arbitration panel on Smith’s behalf that Smith “worked well with all of’ the Black leaders of CSA and that (Moseki) had ‘not seen or experienced any racial bias’ by Mr Smith towards him ‘or other members of Black CSA management.”
The arbitrators, Adv. Ngwako Maenetje SC and Adv. Michael Bishop, found that the evidence provided to it, clearly outlined that Smith had no problem working with or answering to black people. “It is unsurprising that CSA chose not to actively pursue this issue as the facts cannot sustain a claim of racial bias by Mr Smith,” the panel outlined.
On the final matter, the arbitrators were asked to make a finding one regarding the nature of Smith’s contract with CSA, it found that both parties had entered into an agreement that Smith work as an independent contractor.
In its final report, the SJN claimed that Smith and CSA had failed to explain why they had concluded an independent contractor agreement — even though such a claim was not included in the SJN’s mandate.
The arbitrators describe the arrangement as “unusual,” because Smith resembled a senior employee at CSA. “There may also be questions about the propriety of Mr Smith being appointed as an independent contractor, and not an employee.”
“But whether it was wise, or lawful, or typical is not the question before us. We are asked only to assess what CSA and Mr Smith in fact did. And there is no doubt that what they did is conclude an independent contractor agreement.”
The arbitration award directed CSA to pay Smith’s costs, that include the cost of two counsel.
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