Smith, Boucher and CSA – The Explainer

    Anybody who has ever found themselves in a raging, screaming argument which started out over something well-meaning but misunderstood may be better placed to understand the way Cricket South Africa ending up ‘accusing’ its greatest captain and former Director of Cricket, Graeme Smith, and national men’s coach, Mark Boucher, of various things, including racism and unfair racial discrimination

    It was not meant to be that way. At least, that was not the goal. But gradually and inexorably the situation spiralled out of control and ended being widely labelled as a witch-hunt.

The Origins of the SJN Process

    When former independent CSA director, Eugenia Kula-Ameyaw, proposed the Social Justice and Nation Building (SJN) hearings to provide a platform for the marginalised and frustrated black and brown coaches and administrators, of whom there were plenty, to talk about their experiences with a view to building a better future, the proposal had to be adopted. Of course it did. Billed as the ‘Truth and Reconciliation’ court for cricket, only good could come of it, albeit with pain and anguish.

    So, it was adopted. And then postponed at the 11th hour by the Interim Board when the potential legal shortcomings of its formula were highlighted. But the delay was interpreted by some as obfuscation, jerrymandering to prevent a necessary process from taking place.

It must be remembered that the SJN process was first adopted by the now immensely discredited board of 2019, before Sports Minister Nathi Mthethwa insisted on an Interim Board and before the appointment of the current, majority independent board, chaired by Lawson Naidoo.

   The new CSA Board was appointed in late June 2021 and inherited the SJN “hot potato” as one of their first challenges.  The SJN hearings were due to commence just a couple of weeks later, on 5 July 2021, and planning for the hearings was already underway.  By then it was clear that the hearings would be in public. The new CSA Board felt it had no option but to press the green light, to combat allegations that CSA was trying to avoid a necessary process. So they reworked the SJN Terms of Reference to strengthen the right to due process and a fair hearing of those accused, as best they could, and gave the go ahead.

The SJN report and its aftermath

    The SJN hearings were chaired by Ombud Dumisa Ntsebeza, with warmth and sincerity. He may have been more inclined to empathise and sympathise with one side of the story, but that was entirely understandable. His self-described “tentative findings” that Graeme Smith and Mark Boucher were likely guilty of racial prejudice and bias on various counts left the new CSA board, they believed again, with no choice but to follow up on his recommendation that these ‘tentative findings’ should be subject to further investigation.

    While lawyers for some parties, including Smith’s, argued that CSA should reject the SJN Report due to procedural flaws, none of the Board members considered this a realistic option. Doing so would be contradicting their own legal advice and the Board believed it would leave an enormous cloud of doubt hanging over Smith, Boucher and cricket in general.

    The only question was which process to follow. The Board sought independent legal advice which was that Boucher (as an employee) should face a disciplinary hearings and Smith (as an independent contractor) should face an arbitration hearing. They were advised that Boucher had to be charged with “gross misconduct” given the nature of the ‘tentative findings’ against him. Potential racism could only be gross misconduct. So that’s what was put on the charge sheet.

    So off they went.

The Smith case

With Smith’s consent, CSA appointed two independent arbitrators to hear his case – the widely respected Hamilton Maenetje SC and Michael Bishop. Smith appointed his own defence counsel. CSA also appointed their ‘prosecuting’ counsel. A week before Smith’s hearing, the ‘prosecutor’ was changed. The previous Senior Counsel – known for being a ‘solid, reliable man,’ was replaced with Tembeka Ngcukaitobi SC – a counsel with a reputation as one of the country’s most ruthless advocates.  He went after Smith to such an extent that the arbitrators’ final report concluded that he had attempted to ‘trap’ him by changing his line of argument without warning. No reason has ever been given for the change of Advocate, but it certainly ramped up the ill-feeling.

    Smith was acquitted of all charges, with costs. The arbiters concluded that, although the process of his appointment of Boucher as head coach ahead of Enoch Nkwe was ‘irregular’ it was based on ‘cricket reasons’ rather than prejudice. As was the influence he had on the selection of AB de Villiers as wicket keeper ahead of Thami Tsolekile as Boucher’s replacement in the Test team when his career was ended by injury in 2012.  

The arbitration process was perceived as the reason for Smith’s refusal to re-apply for the Director of Cricket job after his contract ended at the end of March 2022, but that may only be partially true. Smith had made it clear that he was already unwilling to reapply for a position he already held. CSA also said they would not be able to sustain his salary (which is ironic given that the SJN and the two hearings cost the organisation well in excess of R10million.) Fortunately, there is just enough good will remaining for another attempt to work together. Smith may play a significant role in the establishment of the new T20 League in January.    

The Boucher DC

    Before Boucher’s Disciplinary Hearing was cancelled and charges against him withdrawn, it was widely reported that CSA must have been ‘determined’ to get rid of him – because he been charged with ‘gross misconduct’ - and it was alleged that the relationship had broken down irretrievably. But, although there were (and are) some Board members who make no secret of their preference for a different head coach, this view was inaccurate. CSA relied on external legal advice that, when dealing with a senior employee alleged to have acted in a racist manner, it had no option but to allege ‘gross misconduct’ and seek dismissal. It was (or would have been) up to the independent Chairperson, Terry Motau SC) to decide whether the charges and sanction were justified.

    “By the very nature of the process, it had to be adversarial. They could never run the risk of accusations that they had ‘gone easy’ on either of them. They couldn’t just ask Smith and Boucher a list of questions, accept their answers and then tick a box,” a senior advocate with extensive experience in these matters explained.

    It later emerged that there was more complexity to Ombud Ntsebeza’s finding than met the eye.

    Paul Adams provided a written submission to the SJN and also testified orally. In his submission he wrote: “Being called ‘brown shit’ when I was playing by teammates 20-odd years ago still echoes in my memories. I recall that a few players would call me by that name and would be used as a fines meeting song for me … ‘Brown shit in the ring, tra-la-la-la …”. Yes, I was having the time of my life playing for my country and being one of the first black players to represent my country, so l brushed it off and focused on my game because I wasn’t going to allow these racists to affect my mindset. I knew then already what was happening was wrong. But there was no-one to talk to or to support a player who spoke up so like my fellow black friends I shrugged it off and let it go.”

    During his oral evidence, when reading out that passage, he was interrupted by advocate Fumisa Ngqele, who was assisting Ombud Ntsebeza: “Mr Adams, may I just interject there. When Mark Boucher called you ‘brown shit’, did you ever address him personally?”

    Adams replied: “Mark was probably just one of the guys” who sang the song.

    In Ntsebeza’s final SJN report the following version of Adams’ testimony appears: “Being called ‘brown shit’ when I was playing by teammates 20-odd years ago still echoes in my memories. I recall that Mark Boucher in particular would call me by that name and would be used as a fines meeting song for me … ‘Brown shit in the ring, tra-la-la-la-la’. Yes, I was having the time of my life playing for my country and being one of the first black players to represent my country so I brushed it off and focused on my game because I wasn’t going to allow these racists to affect my mindset. I knew then already what was happening was wrong. But there was no-one to talk to or to support a player who spoke up so like my fellow black friends it off and let it go.”

    Perhaps it was an innocent mistake by Ombud Ntsebeza. But it added fuel to the ‘witch hunt’ narrative and CSA knew than any attempt to charge Boucher based on evidence contained in the (now discredited) SJN report was doomed, particularly once Adams withdrew his initial agreement to testify.

That left two charges, both emanating from an internal CSA investigation following the resignation of assistant coach Enoch Nkwe. One related to Nkwe’s role and the other to the way the “Black Lives Matter” issue had been dealt with by Boucher.

    When Nkwe was appointed as Boucher’s deputy it was fraught with difficulty. Both are strong, independently-minded individuals. Both are head coaches in their own right and neither would have been suited to an assistant role. Nkwe was told that the plan was for him to take over the national team after Boucher’s contract ended after the 2023 World Cup. He decided he could not wait that long and resigned. He said he had been reduced to “putting the cones out” (for fielding drills and warm-ups) and that it was a “…toxic working environment.” However, like Adams, after the charge sheet was issued he said he had no intention or desire to testify against Boucher. Their differences may have been more personality and ego driven than racially motivated.

    The Black Lives Matter issue concerned whether Boucher had indicated that he was only comfortable dealing with white players on this issue and wanted someone black to deal with the issue. That concern emanated from CSA’s internal investigation following Nkwe’s resignation. But it turned out that there was ultimately no evidence to sustain it.  Crucially, the players in the national squad, including captains Dean Elgar and Temba Bavuma, said they had no problems with the way Boucher had dealt with the ‘Black Lives Matter’ issue. None of them were prepared to testify.

Thus all charges against Boucher were withdrawn.

CSA released a statement on Saturday, May 15:

• The charges against Mr Boucher were unreservedly withdrawn, the effect of which is that Mr Boucher has been cleared of the charges against him, including the charge of racism;

• CSA regrets that Mr Boucher had the cloud of the charges hanging over his head but is pleased that the matter is now resolved;

• Mr Boucher has the support of CSA and CSA is confident that the Proteas team will continue to make strides towards building a culture of mutual respect and inclusivity;

• Mr Boucher has confirmed to CSA that he intends to fulfil the remainder of his contract, which ends after the 2023 World Cup; and

• CSA looks forward to Mr Boucher guiding the Proteas team to their first World Test Championship Final, in June 2023.

So, the mighty, sorry mess is finally over. Hopefully.