Africa-Press – Ethiopia. Cricket South Africa (CSA) was found to have attempted to “trap” its former director of cricket (DOC) Graeme Smith during their arbitration hearing in the matter involving Mark Boucher’s appointment, which cost them its case.
Independent arbitrators Adv Ngwako Maenetje SC and Adv Michael Bishop cleared Smith on all four charges of racial discrimination, which arose following the CSA’s Social Justice and Nation-building (SJN) project findings.
In his “tentative findings”, SJN Ombudsman Adv Dumisa Ntsebeza SC found that Smith “unfairly discriminated on the basis of race against Enoch Nkwe” when appointing Boucher as Proteas men’s head coach in December 2019.
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This formed the basis of CSA’s case against Smith. However, arbitrators concluded that “CSA did not prove that Mr Smith’s appointment of Mr Boucher was unfair racial discrimination against Mr Nkwe”.
Nkwe was appointed as Boucher’s assistant in December 2019 before resigning in 2021, months before the ICC T20 World Cup.
Details have since emerged that, after initially pleading that Smith directly discriminated against Nkwe on the basis of race by picking Boucher, CSA tried to “trap” Smith by trying to use his reasons for appointing Boucher against him.
Smith testified that the reason he appointed Boucher ahead of Nkwe was that “Nkwe lacked international experience and that the assistant coach position would allow him to gain that experience”.
After failing to prove direct racial discrimination against Smith, CSA turned their argument around to say that by using “international experience” as a barometer for the Proteas head coach position, Smith was discriminatory because black people were in the past denied those international playing opportunities due to race.
Arbitrators deemed that CSA’s case had therefore changed from one of direct discrimination (Smith on Nkwe) to one of indirect discrimination, a more systematic form of racism that discriminated against an entire demographic. “Something very different,” they said.
Not only that, CSA – represented by big gun lawyer Adv Tembeka Ngcukaitobi SC – was found to have tried to “trap” Smith by “springing” their change of argument on him.
“If CSA believed that Smith’s primary reliance on that factor (international experience) was what constituted unfair discrimination, it could and should have pleaded that case.
“But the claim of indirect discrimination only emerged when Ngcukaitobi cross-examined Smith,” arbitrators wrote in their scathing judgement.
“CSA accepts Smith’s claim that he acted solely because of Boucher’s international playing experience and says that [allegedly] non-racial reason constitutes racial discrimination. CSA may be right, but it was required to plead that case, not to wait for Smith to walk into a trap and then spring it.”
Arbitrators also concluded:
The two coaches had contrasting but equally credible strengths for the role and were also multiple trophy-winners in the domestic circuit.
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Arbitrators said: “There were two primary differences between the two: Mr Boucher had over a decade of international playing experience, while Mr Nkwe had limited international experience. But Mr Nkwe had a level 4 coaching certificate, whereas Mr Boucher had no formal coaching certificate.”
But CSA’s failure to insist that Smith advertise the position and conduct interviews before appointing the Proteas head coach failed to remove the ambiguity involved in the eventual decision to choose Boucher.
Smith also said by the time he became DOC on 11 December 2019, there was no time to go through an extensive interview process as England’s imminent arrival for the important summer tour added pressure to the situation.
And CSA, led by then-president Chris Nenzani and ex-CEO Thabang Moroe, never raised objections to Smith handpicking Boucher, a former team-mate and known friend, without a proper appointment process.
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