Johannesburg - Cricket SA’s arbitration process regarding the “tentative findings” made about Graeme Smith by the Social Justice and Nation Building process, agreed with the SJN, that “there were certainly flaws in the way that Mark Boucher was appointed”, as Proteas head coach.
However, the arbitrators, Adv. Ngwako Maenetje SC and Adv. Michael Bishop found that Smith, in appointing Boucher instead of Enoch Nkwe, was not guilty of either direct discrimination based on race nor indirect consideration, even though the latter did not form part of the arbitrators’ mandate.
The arbitration award directed CSA to pay Smith’s costs, that include the cost of two counsel.
Cricket SA had argued Smith should have appointed Nkwe over Boucher based on better coaching qualifications, that he’d won more trophies at domestic level and that he was black and his appointment thus aligned with CSA’s transformation policies.
In it’s findings on the matter, the arbiters state: “CSA pleaded a case of direct discrimination and was not permitted to advance a case of indirect discrimination. CSA did not establish that Mr Smith directly discriminated against Mr Nkwe on the basis of his race. If we considered the case of indirect discrimination, CSA did not prove, through the leading of relevant evidence, that Mr Smith indirectly discriminated against Mr Nkwe.” The arbitrators state that CSA did not prove that Smith’s conduct with regard to the appointment of Boucher as Proteas head coach amounted to unfair racial discrimination with respect to Nkwe.
The arbitrators took heed of the upheaval in South African cricket at the time of both Smith’s appointment as director of Cricket (DOC) and subsequently Boucher’s as Proteas head coach. Smith told the panel about being approached by CSA’s then chief executive, Thabang Moroe about the DOC position during the 2019 World Cup.
Although Smith hadn’t been appointed he’d already started thinking about some of the changes he would make, specifically to the Proteas, during the team’s tour to India that year. Smith was in India as part of the television commentary team.
By the time CSA had persuaded him to become DOC, he’d already informed the organisation’s then president, Chris Nenzani, that if appointed, he would make Boucher coach.
When that subsequently occurred amidst a storm in the sport - that notably included CSA’s suspension of Moroe - Smith felt he had to act hurriedly which Nenzani and CSA’s then Board, agreed with. The Proteas were due to face England just three weeks after Smith’s appointment.
CSA argued before the arbitration panel that given those circumstances Smith should have made interim appointments.
“Mr Smith’s response was that CSA’s directive to him was to make a long-term appointment. He also felt the team needed stability. He said he did not even consider making an interim appointment.”
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The arbitration notes that the manner of the appointments was “clearly undesirable”, in that Smith made up his mind based on his own thinking with no outside consultation. “In choosing between Mr Boucher and Mr Nkwe, he thought that the most important characteristic for being able to lead that team at that time was international experience. In his view, that experience would enable the coach to handle the pressure, and to build the team. He made that decision based on his ‘extensive cricket knowledge.’”
Cricket SA’s argued that Smith should have chosen Nkwe based on the fact that he had a Level 4 coaching certificate - the highest level - and Boucher a Level 2. However in evidence before the arbitration panel, it was shown that CSA had previously not sort that certificate as a prerequisite; both Ottis Gibson, and Gary Kirsten didn’t have Level 4 certificates and in the latter’s case when CSA appointed him in 2011, it showed that “experience can trump qualifications, and that a Level 4 certificate was not an absolute requirement.”
“CSA pointed to no direct evidence that Mr Smith was motivated by race. But it argued that, in the circumstances, the most probable inference is that he chose not to appoint Mr Nkwe because he was Black. In our view, that is not the most likely inference,” the arbitrators state. “The factors that CSA points to – both individually and collectively – fail to establish that race, rather than an honest belief that Mr Boucher would be the better coach, was the reason for Mr Smith’s decision.”
CSA also changed its argument during the arbitration, notably when its legal team cross examined Smith. “If CSA believed that Mr Smith’s primary reliance on that factor (i.e. international experience) was what constituted unfair discrimination, it could and should have pleaded that case. But the claim of indirect discrimination only emerged when Mr Ngcukaitobi cross-examined Mr Smith.”
“CSA accepts Mr Smith’s claim that he acted solely because of Mr Boucher’s international playing experience, and says that apparently non-racial reason constitutes racial discrimination. CSA may be right; but it was required to plead that case, not to wait for Mr Smith to walk into a trap and then spring it.”
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