A hearing to address alleged social injustices in cricket that was due to start in Johannesburg on Monday has been postponed because there is a lack of clarity on procedure or terms of reference. 

Cricket South Africa (CSA) set up the Social Justice for Nation-Building (SJN) commission under advocate Dumisa Ntsebeza months ago, to facilitate conversations about racial injustice in the sport. 

But most of the star witnesses who were set to give testimony on the first week are tainted, either in an ongoing match-fixing investigation or through poor corporate governance, undermining the credibility of the process.

The likes of former professional cricketers Thami Tsolekile and Ethy Mbhalati, who were found guilty of match-fixing related offences and banned under the CSA code, were expected to appear as witnesses at the hearing.

Tsolekile was handed a 12-year ban from cricket more than four years ago for his role in match-fixing related offences in South Africa’s T20 Ram Slam competition. Tsolekile, along with Pumelela Matshikwe, Mbhalati and Jean Symes were sanctioned on 8 August 2016.

Left-arm bowler Lonwabo Tsotsobe was also banned in 2017 as was Proteas batsman Alviro Petersen. 

Fast bowler Matshikwe and batsman Symes, who both played under Tsolekile for the Lions franchise, were banned for 10 and seven years respectively. Former Titans fast bowler Mbhalati was given a 10-year ban.

Former provincial batsman Gulam Bodi masterminded the plot after being approached by an Indian-based businessman, Manish Jain. Bodi was asked to influence matches in CSA’s domestic T20 competition in 2015.

Procedural questions

There is a concern that this forum will be used to deflect from their misdemeanours that are now under investigation by the Hawks. Whatever statements they were planning to make at the SJN could also prejudice their case with the Hawks, which is an issue that doesn’t seem to have been considered. 

Ntsebeza addressed the media about the structure of the proceedings last Friday and there were mixed messages about how it would be structured. 

Initially the hearings were supposed to be behind closed doors, but the advocate indicated to the media that they would be able to attend and report on it. There were also reports that it would be broadcast live on SABC, which goes against the initial agreement to hold these hearings internally. 

There was also no clarity on whether cross-examination of witnesses would be allowed, although the Ombud did say that the process would be underpinned by “fairness”. 

“When someone has been mentioned in a way that is not favourable they must be able to respond,” Ntsebeza said. “They should and will be given an opportunity to rebut everything that has been said about them. We believe the process must be fair also for those about whom complaints are going to be made. 

“What the law requires is that an opportunity should be extended to anyone who has been prejudiced or would be prejudiced by what is said without being heard. This law is as old as the Bible. 

“They must not say they were unfairly treated, so that we can balance what they probably would say are misrepresentations of their motives, or what they did, or are downright lies.” 

Considering that the potential for reputation-damaging claims from witnesses over racial bias in the past would almost certainly taint certain individuals, the right of cross-examination is essential. Whatever claims are made, have to be tested and challenged under cross-examination.

It was also unclear from the press briefing (and subsequent lack of clarity from CSA) whether the ultimate outcome of the SJN would result in “findings” or merely “recommendations”. The distinction is vital.

If, after the process has run its course, Ntsebeza published a list of “findings”, those could be seen as binding and therefore challenged in a court on appeal. If they are merely “recommendations”, they could be adopted, or not, by CSA. 

Worryingly, Ntsebeza appeared to have also formed an opinion on first witness and former CSA board member Eugenia Kula-Ameyaw, even before proceedings had begun. 

The Ombud, without having heard her under oath, was glowing.

“I can think of no one more vocal, who has been moving heaven and earth in articulating in their own way what transformation is all about than Eugenia Kula-Ameyaw,” he said. 

“She has made bold talk about what transformation is and what it is not, and how transformation should not be construed as merely a mechanism for introducing politics into sport, or to set targets which are not targets but quotas. My experience of her is that she understands those dynamics. She’s able to separate fact from fiction, and she will lay the necessary background to the topic.” 

Kula-Ameyaw was only on the CSA board for five months and ran into a host of problems. She green-lighted a full-page advert in a Sunday newspaper on transformation without the necessary authority, which cost CSA almost R500,000. She also threatened a CSA sponsor via her personal Twitter account. 

CSA was forced to issue an apology and Kula-Ameyaw was one of the board members ousted when Sports Minister Nathi Mthethwa stepped in to rectify CSA’s governance failings. 

Late on Sunday night though, following hours of meetings as a result of a detailed letter from at least one law firm over the proceedings, it was decided to pause and reassess. 

“The process is on track; however, it has become clear that there needs to be clarity regarding the process of any public hearings,” Ntsebeza said in a statement.

“Failure to do so may compromise the legitimacy of any process embarked upon. My office will therefore be taking legal counsel as regards a proper process for any such hearings. I therefore welcome the postponement to ensure such procedural fairness.”  

The chair of CSA’s interim board, Stavros Nicolaou added: “Transformation is a national, not only a sporting imperative and CSA remains firmly committed to the deep work of transforming sport and society.  

“We are grateful to the Ombud for his commitment to the process and to those who have sought to participate in it. We have agreed with the Ombud that further legal clarity regarding the proposed hearings is imperative. Once we have such clarity, the process will continue.” DM

Paragraphs 4 and 5 of this article were amended at 3pm on May 17, 2021