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Explainer - why Graeme Smith was cleared of racially discriminatory conduct

The arbitrators found flaws in the process of some of the decisions taken at CSA, but none that established race-based bias

Firdose Moonda
Firdose Moonda
Graeme Smith has been cleared of all three charges of racially discriminatory behaviour  •  AFP

Graeme Smith has been cleared of all three charges of racially discriminatory behaviour  •  AFP

CSA has cleared former director of cricket (DOC) Graeme Smith of all three charges of racially discriminatory behaviour, which came up for discussion after the Social Justice and Nation-Building (SJN) report's "tentative findings". The SJN report didn't provide definitive conclusions, but flagged three incidents where Smith's conduct was potentially prejudicial, and these were subsequently tested at an independent arbitration last month. Now, after Smith was cleared on all counts, CSA is required to pay his legal costs.
Here, we examine each of the issues considered by the arbitrators.
Thami Tsolekile's non-selection
Thami Tsolekile was nationally contracted by CSA in 2012, with a view to succeeding Mark Boucher as the Test wicketkeeper. But he never did. Instead, AB de Villiers was installed in the role before Quinton de Kock took over in 2014. The SJN report said Tsolekile's exclusion "showed clear signs of systemic racism" and pointed the finger at CSA, Smith, who was then South Africa's captain, and the selection panel for failing black players.
The arbitrators' task was to determine whether Smith influenced the national selectors in the matter. They heard evidence from Tsolekile and Smith, who also provided written affidavits from former selection convenors Andrew Hudson and Linda Zondi.
Tsolekile testified that when he was contracted in 2012, Hudson told him he was "unlikely to play against England and Australia" that year, but "could or would" play in the home series against New Zealand in 2013. Tsolekile claimed Hudson gave him a guarantee of a place in the XI in the New Zealand series; Hudson said he only told Tsolekile it was "likely" he would play. The arbitrators found that after being contracted, Tsolekile had a "reasonable expectation" of being selected, at the least for the New Zealand series.
However, the dynamics of the South African Test team changed when Boucher was injured ahead of the first Test against England, prompting an early retirement. Tsolekile was not in the squad at the time. And de Villiers was the back-up wicketkeeper. Tsolekile was then called up to the squad as cover for de Villiers, but not as a replacement for Boucher.
Hudson explained the selection decision to not pick Tsolekile, saying de Villiers "gave the team the 'X factor' and allowed us, the selectors, to select an extra batter at No. 7". Smith concurred. Smith recalled then-coach Gary Kirsten discussing the matter with him. As a result, Tsolekile did not play. In that instance, the arbitrators concluded that "there is no direct evidence, concerning the England tour, that Mr Smith actively influenced the selectors to exclude Mr Tsolekile from the playing XI".
Tsolekile didn't get in the XI on the tour of Australia that followed. And then the New Zealand series at home.
Hudson explained this was because the selection committee sought to "retain the unquestionable momentum the team had created", Though Smith said he was not consulted about the selection for the New Zealand series, the arbitrators noted that the selection panel was instructed to have "due regard to the views of the captain who is entitled to freely and strongly indicate his preferences in selection", and Smith was likely to have been consulted, in the same way he had been for previous tours.
CSA argued that Smith "used his influence to exclude Tsolekile from selection, and one of the bases for this exclusion was Tsolekile's race", but the arbitrators found that even though Smith did influence the selectors and favoured a strategy that "left no room for Mr Tsolekile", there was no evidence that race played a role in the discussions and the decision. The arbitrators, therefore, determined that it was a "non-race-based reason - a cricketing reason - not to select Mr Tsolekile", but said it was "impossible not to be sympathetic" to Tsolekile, who was "never given the chance to prove his worth".
Boucher's appointment
Boucher was appointed head coach of the men's national team in December 2019, shortly after Smith had accepted the DOC's role. Boucher displaced Enoch Nkwe, who was acting team director [the senior-most member of the support staff] for South Africa's tour to India in 2019. Nkwe was named Boucher's assistant and served in that capacity until August last year, before resigning.
The arbitrators had to ask how and why Smith appointed Boucher and whether there was direct or indirect discrimination against Nkwe in the process. They had to consider the suitability of Boucher and Nkwe for the position as well as CSA's procedure for appointing a national coach.
The arbitration award noted that both Boucher and Nkwe were "able coaches" and the difference lay in their experience and qualifications and experience. While Boucher had "over a decade of international playing experience", Nkwe had "limited international experience" [he never played for South Africa] but held a Level 4 coaching certificate. Boucher did not. CSA did not have a consistent practice of requiring coaches to hold a Level 4 certificate but had previously, in advertisements, called it "advantageous". Some previous coaches, like Russell Domingo, had the qualification; others, like Kirsten, did not. There was no job advertisement placed at the time of Boucher's appointment.
When it came to appointing the new national coach, Smith said while testifying that the 2019 World Cup [South Africa were the first team to be knocked out and returned the worst tournament performance in their history] and the results of the India tour [where they drew the T20I series 1-1 and lost the Tests 3-0] had led to him concluding that the team "needed someone that had extensive, extensive experience in dealing with conditions, with the pressures that come with the international game". He did not conduct a formal process or a comparative evaluation between Boucher and Nkwe. At the time, Smith did not know "exactly how long Mr Nkwe had played domestic cricket, or how long he had been a professional coach", and had, a month prior, told CSA president Chris Nenzani that he had identified Boucher as the man to take over.
In essence, Smith was not choosing between Boucher and Nkwe, because "the evidence suggests that he always preferred Mr Nkwe for the position of assistant coach and Mr Boucher for head coach", as was within the scope of his role as DOC. When Smith was unveiled as the DOC, he met Boucher and Nkwe to offer them the respective positions and also appointed other staff, including Charl Langeveldt as bowling coach, Justin Ontong as fielding coach, and Linda Zondi as convenor of selectors.
At the hearing, CSA criticised Smith's actions, and said he should have made interim appointments first. Smith countered by saying he had been given a directive to make long-term appointments.
The arbitrators found that "the manner in which these appointments were made was clearly undesirable", as the jobs were never advertised and there "were certainly flaws in the way that Mr Boucher was appointed". But, they reasoned, "they do not establish unfair racial discrimination by Mr Smith against Mr Nkwe".
They found that Smith appointed the person he thought was best-placed to coach the national team at the time. "He honestly wanted the Proteas to succeed and honestly believed that Mr Boucher was most likely to achieve that. We do not believe that the evidence suggests that he would have consciously appointed someone who he thought was not the best person for the job because of their race," the arbitration award read.
Working with the black CSA leadership
Perhaps the lightest of the charges was that Smith was racially biased against black leadership at CSA because of an allegation that he was not willing to report to former CEO Thabang Moroe.
The arbitrators found that CSA's arguments fell flat in light of Smith's willingness to report to the previous board, which had seven out of nine black directors, and subsequently to a black interim board chair - Judge Zak Yacoob, a newly appointed black board chair - Lawson Naidoo, and to work alongside a black CEO - Pholetsi Moseki. Moseki testified that Smith had "worked well with all of" the black leaders of CSA and that he had "not seen or experienced any racial bias" by Smith towards him "or other members of Black CSA management". Smith was, in fact, prepared to report to Moroe when he began as DOC but Moroe was suspended at the same time.

Firdose Moonda is ESPNcricinfo's South Africa correspondent