Smith’s lawyer claims SJN process was ‘fundamentally flawed’

Lawyers for various respondents implicated in the Social Justice and Nation-Building report have claimed that Cricket South Africa’s board will need to consider “a number of fundamental flaws” in both the process and the findings of ombudsman Dumisa Ntsebeza.

David Becker, the former head of the International Cricket Council’s legal department and the attorney of CSA director of cricket Graeme Smith, issued a statement on Thursday evening on behalf of the lawyers of the respondents, saying there were “concerns about the integrity of the process”.

Smith, through Becker, is going to be fighting the allegations in the report that his appointment as director of cricket was “irregular” and that he was guilty of racial discrimination both in his current position and when he was captain of the Proteas.

“CSA is going to have to consider a number of fundamental flaws in the ombud’s process which have been raised by several respondents,’ Becker said.

“How do you make far-reaching and public findings of racial prejudice … and in the same breath say that they are ‘tentative’?” How is CSA expected to implement those findings when the ombudsman has said, by his own admission, that he ‘cannot make definitive findings’,” Becker said.

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Ntsebeza had tried to buy himself more time for a process that CSA had already extended from four months to six months, which apparently cost the federation R7.5 million rather than the budgeted R5 million.

Becker, however, criticised the process as still being lacking. His statement pointed out that certain respondents were not properly informed of the allegations of racism made against them.

“If so, this is very serious and the findings against them will ultimately need to be withdrawn,” he said.

Significant conflicts of interest were also raised because lawyers Sandile July and Fumisa Ngqele had a dual role of not only advising the ombud but also drafting heads of argument for the complainants.

Becker alleged that “over 250 paragraphs of the complainants’ heads of argument have been simply cut and pasted word-for-word directly into the ombudsman’s report”.

Becker also claimed some of Ntsebeza’s findings were “entirely questionable and without any basis”.

He pointed to the finding that Smith’s refusal to work under former CSA CEO Thabang Moroe was evidence of his racial bias as ignoring the fact that the director of cricket had worked under acting CEO Pholetsi Moseki and three black CSA presidents since his appointment.