Graeme Smith's lawyer claims 'fundamental flaws' in SJN process

Graeme Smith's lawyer, David Becker, has raised concerns about the Social Justice and Nation-Building (SJN) report, which was released on Wednesday and found that Smith had engaged in prejudicial conduct. Becker, in a statement sent out on Thursday evening, questioned the process undertaken by the transformation ombudsman Dumisa Ntsebeza and said there are several "fundamental flaws" in the SJN process, which he and Smith participated in.

Smith's conduct as a player and as director of cricket (DOC) were both in the SJN proceedings, where he faced several allegations from, amongst others Thami Tsolekile. Smith responded to the allegations in a written affidavit but did not give oral testimony to the ombudsman. The final report found that Smith had unfairly discriminated against Tsolekile on the basis of race in 2012, that Smith, in his role as DOC had demonstrated racial bias toward black administrators at CSA, and that the process which led to Smith's appointment as DOC in 2019 did not follow proper HR procedure.

Becker specifically questioned the last two findings, calling them "without any basis," and providing a counter-argument.

While the ombudsman report said that Smith's refusal to work under former CSA CEO Thabang Moroe, who was sacked for misconduct last year, was evidence of racial bias, Becker pointed out that the "the ombudsman simply ignores the fact that Smith has worked quite happily and successfully under the current CSA Acting CEO Pholetsi Moseki for the last year. He has also worked collaboratively with three black CSA Presidents since being appointed in December 2019."

In terms of Smith's employment relationship with CSA, Becker argued that although Smith was head-hunted, the process of appointing him was not irregular, as the ombudsman claimed.

"As regards his appointment, Smith did not appoint himself," the statement read. "The evidence clearly shows that his appointment was endorsed by the selection panel and approved by the entire CSA Board, CSA President Chris Nenzani, CFO Pholetsi Moseki, the Acting CEO, HR Head Chantal Moon, and Legal Officer & Company Secretary Welsh Gwaza."

Becker also questions why the report makes no definite findings and lists its outcomes as "tentative," considering their seriousness.

"For instance, how do you make far-reaching and public findings of racial prejudice against certain people and in the same breath say that they are 'tentative', as the ombudsman has done? How is CSA expected to implement those findings when the ombudsman has said, by his own admission, that he 'cannot make definitive findings in an instance where the evidence of both the so-called victims and the alleged perpetrators was not tested'?"

Several sources close to CSA and the SJN process told ESPNcricinfo that by labelling the findings "tentative," the ombudsman has left CSA in a near-impossible position because it will be difficult for them to take action based on the report if it is not definite. However, insiders believe the ombudsman was wary of coming to conclusions which could be legally challenged in the courts.

The SJN process was not a legal process and was inquisitorial in nature, which the ombudsman said did not allow him to cross-examine witnesses. Becker contended that was also incorrect and that cross-examination would have allowed the ombudsman to test the evidence more thoroughly. "The ombudsman had the opportunity to cross examine the witnesses under the Terms of Reference and didn't take that opportunity. It was his process," Becker said.

CSA is aware of Becker's statement but do not have a response at this time. "Mr Becker is entitled to raise his concerns. As a board, we are still in the process of dealing with the report," Lawson Naidoo, CSA's board chairperson, told ESPNcricinfo.

Asked about the status of the relationship between Smith and the board, Naidoo said, "Graeme remains an employee of CSA and will be treated as such."