How the CSA lost the racism case after trying to ‘catch’ Smith in Boucher’s nomination debate.

Graem Smith. (Photo by Richard Huggard/Gallo Images)

  • Arbitrators found that CSA was trying to “catch” Graeme Smith in their case, which involved alleged racism in his appointment of Mark Boucher over Enoch Nkwe.
  • The CSA attorneys changed their reasoning midway through the arbitration hearing, in which they attempted to use Smith’s reasoning for Boucher’s appointment against him.
  • Smith was cleared of all charges of racial discrimination by two independent referees but chose not to reapply for his role as Director of Cricket.

Cricket South Africa (CSA) is said to have tried to ‘catch’ its former Director of Cricket (DOC) Graeme Smith during their arbitration hearing in the matter of Mark Boucher’s appointment, costing them the case.

Independent adjudicators Adv Ngwako Maenetje SC and Adv Michael Bishop acquitted Smith of all four allegations of racial discrimination made under the findings of the CSA’s Social Justice and Nation Building (SJN) project.

In his “preliminary findings,” SJN Ombudsman Adv Dumisa Ntsebeza SC found that Smith “unfairly discriminated against Enoch Nkwe on the basis of race” when he appointed Boucher as the Proteas men’s head coach in December 2019.

READ | CSA says it will keep in touch with Graeme Smith as report clears him of racism and flaws in Boucher’s job

This formed the basis of the case of CSA v. Smith. However, the arbitrators concluded that “CSA has failed to 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 retiring in 2021, months before the ICC T20 World Championship.

Details have since emerged that CSA had attempted to “catch” Smith by attempting to use his reasons for appointing Boucher against him after he initially claimed that Smith had directly discriminated against Nkwe on the basis of race by using Boucher had chosen.

Smith testified that the reason he appointed Boucher before Nkwe was because “Nkwe had no international experience and the position of assistant coach would allow him to gain that experience”.

After CSA could not prove direct racial discrimination against Smith, CSA reversed its argument and said that by using “international experience” as a barometer for the position of Proteas head coach, Smith was discriminatory because of a history of denying blacks the international playing opportunities due to them became races.

The arbitrators felt that CSA’s case had changed from direct discrimination (Smith on Nkwe) to indirect discrimination, a more systematic form of racism that discriminated against an entire community. “Something different,” they said.

Not only that, CSA — represented by big-gun attorney Adv Tembeka Ngcukaitobi SC — is said to have attempted to “catch” Smith by “forcing” 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 relied on that case.

“But the allegation of indirect discrimination only surfaced when Ngcukaitobi cross-examined Smith,” the judges wrote in their scathing verdict.

“CSA accepts Smith’s claim that he acted solely on Boucher’s international gaming experience and says so [allegedly] non-racial grounds constitute racial discrimination. CSA may be right, but it required making the case, not waiting for Smith to fall into a trap and then snap it.

The judges also concluded:

  • Failure to invoke it caused Smith an obvious disadvantage. He did not answer this case in the pleadings or in the evidence. He did not call witnesses to show that relying on international experience could not in fact have a discriminatory effect as there were enough black coaches who met the requirement. As we explain below, the evidence on this topic is patchy at best.
  • CSA brought Smith to a direct racial discrimination case. His response was, “I didn’t rely on races, I relied on Boucher’s international playing experience.” CSA was, of course, entitled to argue that Smith was lying and was in fact racially motivated. But what the claim for indirect discrimination achieves is something else entirely. It avoids undermining the credibility of the reason Smith says he acted by accepting it but unfairly challenging it on a different basis and thus deviating from the case presented.
  • The case alleged is that Smith wrongly discriminated against Nkwe. But by its very nature, an action for indirect discrimination is not directed against a specific person, but disadvantages a group of people.
  • In conclusion, we note that the alleged case does not appear to be compatible with an allegation of indirect discrimination.
  • Smith made six other appointments, all black: Linda Zondi as Chair of the Selectors; Charl Langeveldt as a bowling coach; Justin Ontong as field coach; Ashwell Prince as SA A-side head coach; Volvo Massubelele as team manager; and Siphokazi Sokanyile as media manager.

The two coaches had opposite but equally believable strengths for the role and were also multiple trophy winners at the home circuit.

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The referees said: “There were two main 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 while 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 surrounding the eventual selection of Boucher.

Smith also said when he became DOC on December 11, 2019 there was no time to go through an extensive interview process as England’s impending arrival for the crucial summer tour added pressure to the situation.

And CSA, led by then-President Chris Nenzani and ex-CEO Thabang Moroe, never objected to Smith handpicking Boucher, a former teammate and known friend, without a proper appointment process.

How the CSA lost the racism case after trying to ‘catch’ Smith in Boucher’s nomination debate.

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