So, Graeme Smith won his case against Cricket South Africa (CSA) and was cleared of racism, racial bias and racial discrimination in an independent arbitration process.

He is both relieved and vindicated and can move forward with his life. Only, he can never move forward without an asterisk, without scars and a slight whiff of scandal, thanks to a flawed process that has sullied his name.

The charges CSA brought were flimsy at best and based on the findings in the final report of the Social Justice and Nation-Building initiative (SJN) under advocate Dumisa Ntsebeza SC.

During that process in 2021, which cost CSA R7.5-million, witness after witness came forward to speak about their experiences of racial discrimination in cricket for the better part of 30 years.

Some testimony was genuinely sad and moving, but some of it seemed to be intent on making scapegoats and wasn’t tested in cross-examination. Wild accusations and assumptions – such as former wicketkeeper and match-fixer Thami Tsolekile alleging Smith, when was Proteas captain, didn’t want him in the team between 2012 and 2014 because he was black.

Or that Mark Boucher was made Proteas head coach by Smith in 2019 in his role of director of cricket, because he was white and the other candidate, Enoch Nkwe, was black. The inference was that it was racially motivated and the SJN accepted those sentiments.

The final SJN report made “tentative findings” that Smith was guilty of racial discrimination and that, if CSA so chose, it could pursue the matter further. The SJN passed the buck down the line, surely understanding that any smoke regarding racism allegations would soon be a wild brushfire.

Which is what happened. It was an extremely reckless piece of legal sidestepping that left the implication of “racism” hanging awkwardly over Smith’s head. Smith suffered massive reputational damage as a consequence.

CSA pursued the matter further against Smith, with both parties submitting to an arbitration hearing, which basically sought to prove that the SJN’s “tentative findings” were correct. It was an extraordinary witch hunt considering Smith was under contract to CSA as director of cricket (DoC) and performing his tasks in exemplary fashion.

Smith’s legal adviser, David Becker, and several other lawyers involved in the SJN (but who wanted to remain anonymous) wrote an open letter to the CSA board last December, warning that it should not accept the final SJN report because it was deeply flawed.

The arbitration panel found no direct or indirect racial bias in Graeme Smith’s decisions. (Photo: Visionhaus / Getty Images)

“The conclusion that the findings made in the report are ‘tentative’ is concerning. Some of these ‘findings’ are very far-reaching and significant,” the letter stated.

“Respectfully, how can a finding of racism, for example, be ‘tentative’? Either it is a finding, or it is not a finding. If it is tentative (and if further work is required, as suggested by the Ombudsman in paragraphs 439 and 442 of his report in order to reach ‘appropriate conclusions’), this report ought not to be accepted in its current form.”

Regardless, the board accepted the SJN report and was then obliged to test some of the accusations (they can’t really be called “findings”) in it.

CSA and Smith, who had little choice as he had to attempt to clear his name, went to arbitration. This was not a disciplinary hearing because Smith was not a permanent employee but a contractor.

Charges

Smith was charged with three counts of racial discrimination over Tsolekile’s non-selection, Boucher’s appointment and a third claim that he was unable to work under black leaders at CSA.

After weeks of hearings, Smith was cleared on all three counts. The full report is clear and focused, unlike the SJN report. It finds there were irregularities in the way Smith went about appointing Boucher, because it was done without any interview process, but no racial bias or indirect or direct racism motivated the decision.

Crucially the arbitration panel of Advocate Ngwako Maenetje SC and Advocate Michael Bishop SC found that on all three counts there was no direct or indirect racial bias in the decisions by Smith. CSA was ordered to pay Smith’s legal costs as well.

Tsolekile non-selection

The arbitration panel’s reasoning was clear – such as with wicketkeeper Tsolekile’s non-selection – after hearing evidence from Smith, Tsolekile and selectors Linda Zondi and Andrew Hudson.  

The finding goes into a detailed dissection of the Proteas’ selection process at the time and the roleplayers who were party to Tsolekile’s eventual non-selection.

Tsolekile admitted in evidence that he did not expect to play in the Tests against England and Australia in that period, but that Hudson “guaranteed” he would play against New Zealand. Hudson, who was convenor of selectors at the time, disputed that version, stating that he only told Tsolekile he was “likely” to play.

Tsolekile had been awarded a CSA contract in 2012 and the panel admits he had a “reasonable expectation” to be picked as a result. But when Boucher suffered a career-ending injury on the tour to England, AB de Villiers, already established as a leading batter in the team, took on the wicketkeeping role.

“Mr Tsolekile was not, however, selected for the 15-man touring squad to go to England in July 2012,” the arbitration ruling reads. “Mr Boucher was selected as the first-choice wicketkeeper. There was initially some debate about whether Mr De Villiers was selected as the back-up keeper or just as a batter.

“But Mr Tsolekile ultimately accepted that Mr De Villiers – despite his misgivings about keeping in tests – was selected as the back-up wicketkeeper to Mr Boucher.

“Mr Tsolekile was called up to replace Mr Boucher in England. However, he was brought in as the replacement wicketkeeper, not the first-choice wicketkeeper.

“That makes sense. Mr De Villiers was the back-up keeper in the squad. When the first-choice keeper was injured, he stepped in. Mr Tsolekile was called in as back-up in case Mr De Villers was injured. But there was more to the selection decision than simply following the existing order of preference.

“Mr Hudson explained the selectors’ thinking as follows: ‘De Villiers taking the wicketkeeping gloves gave the team the ‘X factor’ and allowed us, the selectors, to select an extra batter at No 7.’

“The statement was put to Mr Tsolekile who agreed with the proposition that this was ‘a strategy that will make complete sense and was something which played very strongly in favour of the Proteas cricket team’. He accepted that there were ‘very good cricketing reasons to prefer AB de Villiers to yourself for a position in the Test starting 11’.”

And so it goes on.

Boucher appointment

The Boucher appointment follows a similar theme in that the decisions leading to him becoming Proteas coach were all logical and for cricketing reasons, even if there was some dispute over whether best employment practice was followed. The posts were not advertised.

When Smith was appointed, the Proteas were coming off a disastrous World Cup campaign and an even worse tour to India where they lost the Test series 3-0. Nkwe was the interim coach on that tour.

Smith, as DoC, decided that the team “needed someone that had extensive experience in dealing with conditions, with the pressures that come with the international game”. When Smith was head-hunted for the role as DoC he had already made it clear to then CSA president Chris Nenzani that he had earmarked Boucher for the position of Proteas head coach.

Smith met Boucher and Nkwe, offering them the positions of head coach and assistant coach respectively, and lengthy contracts. He also appointed other staff such as bowling coach Charl Langeveldt at the time.

CSA argued that Smith should have made Boucher and Nkwe “interim” appointments, but he countered that he was given board approval to make permanent appointments.

“The manner in which these appointments were made was clearly undesirable. There were certainly flaws in the way that Mr Boucher was appointed. But they do not establish unfair racial discrimination by Mr Smith against Mr Nkwe,” the ruling reads.

Regardless of a strong legal case should he seek damages, Graeme Smith has chosen to move on – as much for his own sanity as anything. (Photo: Richard Huggard / Gallo Images)

“CSA pointed to no direct evidence that Mr Smith was motivated by race. But it argued that, in the circumstances, the most probable inference is that he chose not to appoint Mr Nkwe because he was black. 

“In our view, that is not the most likely inference. The factors that CSA points to – both individually and collectively – fail to establish that race, rather than an honest belief that Mr Boucher would be the better coach, was the reason for Mr Smith’s decision.”

Working with black leaders

As for Smith’s “reluctance” to work with black leaders, that accusation was swiftly dealt with. Current CSA chief executive Pholetsi Moseki was one of several witnesses to testify on Smith’s behalf relating to that charge.

The main stick used to beat Smith was that he refused to report solely to the CEO when Thabang Moroe (who was later suspended after a forensic investigation into CSA detailed catastrophic leadership failures) held the job, and was racially motivated.

The panel did not buy that flimsy accusation. “The claim is that Mr Smith would not report to Mr Moroe because he was black, and insisted on reporting to CSA’s Board,” the arbitration ruling states.

“But the Board was led by a Black African – Mr (Chris) Nenzani. Seven of the nine members of the Board were black. If Mr Smith was motivated by racism, why would he be willing to report to a predominantly black Board, but not a black CEO?

“The obvious answer was that the race of the CEO was not the issue. Mr Smith continued to report to black leadership at CSA – to Justice Yacoob and Mr Lawson Naidoo who replaced Mr Nenzani as chair of the Board, and to Mr Moseki, who replaced Dr (Jacques) Faul as acting CEO.

“There was no suggestion that his relationship with any of those leaders was affected by racial bias. Mr Smith testified that his relationships with black leadership at CSA [were] ‘very good’. Mr Moseki testified that he had ‘worked well with all of’ the black leaders of CSA and that he had ‘not seen or experienced any racial bias’ by Mr Smith towards him ‘or other members of Black CSA management’.”

Vindicated and relieved

While Smith’s name has been cleared formally, a quick stroll through social media platforms reveals that his reputation has still suffered immensely. Many comments imply he has received “white justice”, whatever that is, and is still a racist despite the outcome.

The SJN’s “tentative findings” did irreparable harm and Smith would be within his rights to seek damages from CSA.

“Unfortunately, there were a multitude of opportunistic claims and insinuations made before the SJN which were not properly tested and were clearly false,” his legal adviser Becker said.

“The allegations made against Graeme Smith in particular were made by a small group of disgruntled individuals with an obvious agenda to tarnish his good name and have him removed as the DoC.

“These vexatious claims and insinuations were serious and defamatory. Graeme has every right to feel aggrieved by these personal attacks. However, it is a testimony to his character and leadership that he has held his head up high throughout this process, focused on the job at hand and continued to play a hugely significant role in assisting South African cricket.”

It also shouldn’t be forgotten that Smith has effectively lost his job over these accusations. His contract as DoC ended on 31 March, but considering the strain the SJN’s tentative findings and the arbitration process put on his relationship with CSA, it was never going to be renewed despite a very good record in the job.

Smith, of course, made millions in his role as DoC and he won’t be in an unemployment queue any time soon, but the principle remains: a man lost his job over baseless accusations.

Regardless of a strong legal case should he seek damages, Smith has chosen to move on – as much for his own sanity as anything. CSA has lost a valuable asset, which many insiders at the organisation have privately confirmed.

“I’m grateful that my name has finally been cleared. I’ve always given South African cricket my utmost, as a player, captain and administrator, over the last 20 years,” Smith said.

“So, to hear these baseless allegations of racism being made has been extremely difficult, both for me and my family. It has been exhausting and distracting, not least because South African cricket has also been going through a well-publicised rebuilding process which has required a lot of attention.

“I’m just pleased that we have now gone through a robust arbitration process before independent, objective arbitrators and I have been completely vindicated.” DM

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