The ZCU racism inquiry in full

I Chapter I - Introduction

I.1 This panel has been established by the International Cricket Council (ICC) to investigate allegations of racism within the Zimbabwe Cricket Union (ZCU) between 1st April 2003 and 1st July 2004. During the course of April 2004 a dispute had emerged between the ZCU and certain of the players contracted to it. Certain allegations of racism were levelled against the ZCU in the course of this dispute. The ICC Executive Board Meeting of 30th June 2004 resolved to appoint this panel to conduct an independent review of these allegations and to report back to the ICC Executive Board. The terms of reference for the inquiry were posted on the ICC website on the 10th August 2004. The said Terms of Reference is annexed hereto as Appendix 1.

I.2 Paragraph 3 of Appendix 1 contains details relating to the procedure to be adopted for the investigation. The salient features of that procedure are:

a) That written submissions from all interested parties would be received by the Panel.

b) That a hearing would be conducted where oral evidence would be adduced under oath or affirmation whereat the rules of natural justice shall apply.

c) The Panel shall therafter furnish its report to the ICC Executive Board.

I.3 It is of some importance to note at the outset that the Terms of Reference specifically envisaged that the parties would be entitled to legal representation in the course of this investigation and more particularly in respect of the hearing of oral evidence. Ultimately both the ZCU and the players were legally represented at the Inquiry and the ICC had contributed an equal sum to these two parties' legal costs.

II Chapter II - Problems Encountered Prior to the Hearing of Oral Evidence

II.1 The Terms of Reference were posted on the ICC website under cover of an ICC press release, announcing the appointment of the Panel to investigate the racism allegations and summarising the procedure to be adopted in the course of such allegations. The said press release contained the full contact details of the Panelists to whom written submissions had to be forwarded.

II.2 An initial written submission from the ZCU was received by email on the 25th August 2004. At our request, the attorneys acting for the ZCU, Wintertons of Harare, Zimbabwe, forwarded to us by courier, the documents referred to in that initial written submission.

II.3 By contrast, a considerable delay was experienced in obtaining a written submission from the players through their attorneys, Byron Venturas & Associates of Harare, Zimbabwe. The players as a group constituted the other main protagonist to the investigation. Moreover, if regard is had to the fact that the allegations of racism were emanating from them, a full written submission detailing the specific allegations of racism was required in order so that the ZCU could formulate a detailed response to the specific allegations. The initial written submission by the ZCU was understandably in fairly general terms, there being no known detailed allegations available at that time. This delay prompted us to request the CEO of the ICC to impress upon the players' legal representative to furnish their written submissions without further delay.

II.4 Prior to forwarding the written submission to us, Mr Venturas had raised directly with us his concerns regarding the duplication and overlapping between this investigation and the Alternative Dispute Resolution (ADR) process which had been envisaged between the ZCU and the players. In particular, his concern in this regard related to the possibility that if this investigation culminated in certain findings prior to the ADR process being completed, such findings may be regarded as res judicata on related issues before the ADR process. In response we furnished to Mr Venturas our firm and unequivocal view that these are two separate and distinct processes, albeit with some related and overlapping areas. We also conveyed to him that we had no doubt whatsoever that the issue of res judicata could most definitely never arise, since conclusions drawn and findings made at the end of our investigation on matters which may subsequently arise again at the ADR, could most certainly not be regarded as being final judgements which would bind the members of the Tribunal at the ADR. Mr Chris Venturas also insisted that the proceedings be held in camera, with the press having no access. ICC, after consultation with us, agreed to this in a communication dated 09/09/2004.

II.5 In these circumstances, Mr Venturas conveyed to us by email that "we are happy to proceed, as long as the proceedings are in camera". A written submission was received on behalf of the players from their attorney, Mr Chris Venturas of the aforementioned firm of attorneys on 17th September 2004. Prior to that there was a considerable amount of correspondence between Mr Venturas and Mr Malcolm Speed (ICC CEO) which had been copied to us but this does not warrant further consideration herein. Suffice to say that it was regrettable that there had been such a delay in the written submission on behalf of the players by their attorney.

II.6 We believe that it is of the utmost importance that we reiterate in this report our position (as already conveyed to Mr Venturas and accepted by him), that none of the conclusions drawn and findings reached in this report in respect of issues which may arise again in the envisaged ADR proceedings between the parties can and should be regarded as res judicata at the said proceedings.

II.7 The written submission on behalf of the players consisted to a large extent of generalisations and was somewhat disappointing in its lack of particularity in respect of specific instances of racism by the ZCU. Consequently the written response by the ZCU is similarly framed in general terms and the observation on their behalf that "as a consequence the ZCU is unable, until such particularity is provided, to deal with the allegations made" is justified.

III Chapter III - Analysis of submissions received

III.1 ZCU initial submission

III.2 In its initial written submission the ZCU emphatically denied the allegations of racism levelled against it. It referred primarily to the ZCU's policy of integration and set forth in considerable detail the background and the historical development of cricket in post-independence Zimbabwe, i.e. post 1980. Central to this development was a sustained effort to integrate all sections of the Zimbabwe population into the game of cricket. This initial submission focused to a large extent on the comprehensive Inquiry undertaken during 2001 under an independent management consultant, Dr Zackrison, and the work of the so called "Task Force", whose recommendations were eventually unanimously adopted by all the role players in Zimbabwe cricket, which in turn necessitated certain important amendments to the constitution of the ZCU. These amendments to the constitution were unanimously passed at the Annual General Meeting of the ZCU in 2001.

III.3 It is of importance to note and record at this stage that neither the establishment of, nor the investigation, findings and recommendations of the Task Force are in issue before us. Although it was averred in paragraph 3 of the players' written submission "that the affirmative action protocol prepared on the ZCU's behalf and known as the "Task Force document" was never accorded an official legal status at any stage", Mr Venturas specifically placed on record at various stages in the course of this inquiry, as will appear more fully later, that the work of the Task Force and its eventual findings and recommendations were not in dispute at all.

III.4 Two material aspects in the ZCU initial submission require mention at this stage namely:

a) It was emphasised that the integration process was never intended to be and has not in fact been racially motivated.

b) That the integration of players from all sectors of the Zimbabwe population into the national cricket team has never been applied on a quota basis, but has instead been premised as a matter of policy on clearly defined goals with a concomitant retention of selection on a merit basis.

III.5 The players' written submission

III.6 The written submission on behalf of the players refers in general terms to certain allegations of racism as well as certain unfair labour practices perpetrated against them as employees by the ZCU as their employer. This latter complaint of unfair labour practices quite clearly falls outside the ambit and scope of this investigation as is apparent from the Terms of Reference, Appendix 1 hereto. The players make reference to their constitutionally entrenched right not to be discriminated against as is contained in Section 23 of the Constitution of Zimbabwe.

III.7 As background certain facts are set forth which are said to be "common cause". These relate primarily to the dispute which had arisen between the then Captain of the national team, Heath Streak, and the ZCU in April 2004 which led, as the players describe it, to "Streak's dismissal without any reasons therefor", and the subsequent strike by the other players. As part of the so called "common cause" background facts the players state that the Task Force documents has no official legal status and that the players' contracts of employment contain no reference whatsoever to any affirmative action policies in terms of the said Task Force document or any other legislation. It was also alleged that the players had taken the view that their employment had become untenable given the levels of hostility exhibited towards them. The players also referred to the establishment of the ADR process as part of the background facts. Reference is also made to what is described as "defamatory reports" concerning the players and their actions which had been published in the Zimbabwean press allegedly at the behest of the ZCU.

III.8 A material aspect to be highlighted thus far in the players' written submission is the fact that they lay much emphasis on what they refer to as the ZCU's "dismissal of Heath Streak without any just cause and without furnishing reasons for the dismissal."

III.9 The players then proceed to set forth in general terms their complaints namely:

a) They deny that the Task Force document which is said to form the legal basis for affirmative action is a legally binding document or a legitimate tool in the integration of Zimbabwean cricket (this aspect now falls away given the subsequent position adopted by Mr Venturas on behalf of the players).

b) The players state that in any event the objectives with regard to the integration of Zimbabwean cricket contained in the Task Force document have been "badly perverted" by certain members of the ZCU Board of Directors and it is alleged that these members had used the issue of race in the furtherance of agendas which are not in the best interest of cricket.

c) The players state further that they intend to show that the Board of Directors had both collectively and through individual members, through acts or omissions created the overriding impression that it is hostile to the white players on several issues.

III.10 The submission then deals in some limited detail with specific grievances namely:

a) The most important grievance appears to be the one relating to the selection process which is alleged to have been carried out in an utterly non-transparent and unaccountable fashion by incompetent selectors with a view to marginalising white players. They also allege that there had been some interference by Directors of the ZCU in selection matters where issues of race played a prominent role. The players also allege that the ZCU has in fact accepted that matters of selection were being dealt with in an unsatisfactory manner.

b) A further grievance is that white players and staff members as well as black players who supported or sympathised with white players had all been subjected to hate speech.

c) It is alleged that there is a tacit policy condoned by the ZCU to alienate the white players and make their working conditions untenable so as to force them to terminate their employment.

d) There has been a systematic marginalisation of the players.

e) Allegations against the Board of Directors are that the Board was: i) unsympathetic to the players' grievances; ii) inarticulate with regard to its goals for integration; iii) incapable of disciplining board directors who had violated their mandate with regard to players from all races; iv) incapable of disciplining members and administrators who openly practised hate speech and who had made specific threats against players both black and white; v) that the Board of Directors had condoned hate speech through its silence in regard thereto; vi) the Board of Directors had permitted radical elements who had openly professed to be antiwhite players to continue to act with impunity.

f) The players stated that they would adduce evidence showing that certain administrators had created polarisation between players from different racial groupings. It was also stated that evidence would be adduced showing that black players who had supported so called white cricket clubs had been intimidated and victimised by administrators.

III.11 Response by ZCU to players' submission

III.12 In its response to the players' submission the ZCU commences by correctly pointing out that the question of alleged unfair labour practices falls outside the Terms of Reference of this Inquiry. The ZCU also makes mention of the lack of particularity with regard to the allegations of racism against the ZCU. It points out that the Task Force proposals were unanimously adopted and also that the players had signed the contracts of employment with the ZCU in the full knowledge of the existence of the Task Force document and the proposals contained therein. It furthermore denies all the specific allegations levelled against the Board of Directors.

III.13 With regard to the stand off between the Board of Directors and Heath Streak the ZCU avers that it had at all times strived to resolve the matter through negotiation, through various without prejudice meetings and the ZCU then records that even at this stage it remains prepared to accept the players back into its fold.

III.14 With regard to the important aspect of selection, it is the ZCU's stance that the selection committee has functioned in accordance with the norms and methods of operation of selection committees throughout Zimbabwe and throughout the cricketing world generally. It avers that the selection criteria were to select the best possible national team subject only to the goals set forth in the Task Force document.

III.15 It is specifically denied by the ZCU that it ever intended to alienate the players and to make their working conditions untenable for them.

III.16 Other submissions received

III.17 A submission was received by email from Mr Allan Robinson, a resident of Harare, Zimbabwe, who describes himself as a loyal supporter of Zimbabwe cricket since 1980.

III.18 Mr Robinson's submission deals with two broad issues, namely selection and the composition of the Board of Directors. With regard to selection he submits that the present quota system which is employed by the selectors is blatantly racist in that it substitutes merit and ability as criteria for selection with race. He expresses the view that the national team which is selected should at all times be the best players available regardless of skin colour or ethnic or religious background. With regard to the composition of the Board of Directors he refers to paragraph 11.4 of the ZCU constitution which requires that the Board of Directors shall comprise a minimum of 6 non white directors and submit that this is in conflict with the ZCU mission statement which reads: "to actively promote and develop the playing and administration of cricket for the benefit of all Zimbabweans without discrimination of any kind".

III.19 We were also contacted by email by a Mr Mehluli Sibanda who describes himself as a cricket journalist resident in Bulawayo, Zimbabwe. Mr Sibanda did not make any written submission but conveyed to us his desire to testify at the hearing in Harare. He conveyed to us his grave concerns regarding his personal safety and expressed the wish to remain anonymous and to have his evidence received in confidence. He also indicated a need to have his accommodation and travel costs met by the ICC. We encouraged Mr Sibanda to furnish us with written submissions and to testify before us. We undertook to have his evidence received in confidence, but not anonymously. In the end, as will become apparent later, Mr Sibanda did testify before us and the ICC carried the costs of his travel and accommodation.

III.20 Having received these afore mentioned submissions we scheduled a hearing in Harare for 29th September 2004 to 1st October 2004 for oral evidence to be heard.

IV Chapter IV - Informal Pre Hearing Meeting

IV.1 With a view to curtailing the issues between the parties and to dispense with possible preliminary matters, procedural or otherwise, so as to expedite the hearing, we invited the legal representatives of the main parties, namely the ZCU and the players, to an informal pre-hearing meeting in Harare on 28th September 2004.

IV.2 This meeting was attended by Mr Chris Venturas attorney for players, Mr Norman Arendse and Mr Alwyn Pichanick of Wintertons on behalf of the ZCU. Also present at the meeting was Miss Urvasi Naidoo, In House Lawyer for the ICC and Mr Ozias Bvute, acting CEO of the ZCU.

IV.3 We raised several matters with the parties and gave them an opportunity to raise matters from their side. A very important feature of the meeting was that the parties placed before us all the documents which they intended to rely on at the hearing. In the case of the ZCU, we were given a lever arch file containing 30 different documents numbering 408 pages in total. On behalf of the players Mr Venturas placed before us three separate bundles of documents; the first of these consisted of 43 documents numbering 137 pages in total, the second bundle contained 10 further documents numbering 39 pages and the third bundle contained 11 documents numbering a total of 25 pages. The last mentioned bundle primarily contained statements by certain of the affected players and other interested parties.

IV.4 The proceedings at the meeting were not recorded as it was regarded as an informal, off the record meeting.

IV.5 We now deal separately with the matters raised at the meeting.

a) Firstly we raised with Mr Venturas the possibility of opening the hearing for attendance by members of the public and the media. In this regard we conveyed to him that though we considered ourselves bound by the agreement reached between him and the ICC CEO on the 9th September 2004, namely that the hearing would be held in camera and that members of the public and the media would not have access thereto, that it was our firm view that we would prefer an open hearing so as to promote transparency. Mr Venturas indicated an in camera hearing was still preferred, by reason of the fact that the ADR process was still pending and that the players feared being prejudiced in that regard should an open hearing be held. Mr Arendse on behalf of the ZCU voiced the ZCU's strong opposition to an in camera hearing and requested that the hearing be open to the public and the media as these allegations were already in the public domain. He also pointed out that the ADR process is completely separate and unrelated to the present Inquiry. In the end we noted the ZCU's position but in view of Mr Venturas' insistence we confirmed that, as agreed between the ICC and the players, the hearing would be held in camera.

b) A matter related to the aforegoing was raised by Mr Venturas. He said the players had strong objections to three ZCU directors being present at the hearing whilst they testify. He justified this objection on the basis that they were in fear of these directors. Two of the three directors were named, namely Mr Ozias Bvute and Mr Macsood Ebrahim. Mr Arendse voiced his client's strong opposition to the exclusion of these three gentlemen from the hearing. He pointed out that the terms of reference required that the rules of natural justice should apply. This entailed, he submitted, that these three gentlemen who were said to be "on trial" should have the opportunity of facing their accusers and hearing the accusations levelled against them first hand so that they could respond thereto. He also correctly pointed out that this was a matter which had never been raised before by Mr Venturas or the players and that it had taken the ZCU by surprise. Mr Venturas in reply remained steadfast and stated that the players refused to testify if these three directors were present. We considered this particular aspect to be of grave importance and requested the parties to meet separately to attempt to resolve their differences in this regard. To this end we granted a short break in the meeting. The parties did meet separately, but upon resumption of the meeting it became clear that the matter remained unresolved. Mr Venturas indicated that the players had no objections to other directors of the ZCU being present throughout the hearing and that the three ZCU directors could attend the proceedings at all other times. It was agreed that Mr Venturas would consult his clients again in this regard, subsequent to the meeting and prior to the hearing the following day, with a view to getting them to agree to the presence of the three ZCU directors. (We deal with what actually happened in this regard later).

c) Mr Venturas agreed that the players would adduce evidence first with the ZCU to follow suit. We informed the parties about the witness who wished to testify in confidence without disclosing his identity. Mr Arendse expressed his client's opposition to this, pointing out that it added to allegations regarding a climate of fear which was being created. He did however, in the interest of expediency agree that the witness may testify in camera (i.e. with only lawyers present). It was agreed that this witness would testify first.

d) We reminded the parties that the hearing forms part of an extra-curial inquiry and that it was not a trial of any sorts. The proceedings were therefore to be inquisitorial and not adversarial in nature. Consequently it was our intention that there should be no cross examination of the witnesses in the strict sense of the word and that we would exercise strict control over questioning of the witnesses.

e) With regard to the documents handed in these were provisionally allocated Exhibit Numbers which were to be confirmed formally at the hearing. The parties agreed to the handing in of the various bundles of documents. It was also agreed that the documents in the various bundles were what they purported to be and that the authenticity thereof need not be proved, unless specifically placed in issue at the hearing. Mr Venturas informed the meeting that none of the Task Force documents or any of its findings or recommendations were in issue. We indicated that the probative value of the bundle of witness statements handed in by Mr Venturas would be determined at the hearing.

f) The times for the hearings and adjournments for tea and lunch were agreed.

g) We informed the parties that the proceedings were being recorded and that it would be transcribed. The transcript of the proceedings would however not be available to the parties at this stage, since it was meant to assist the Panel with the preparation of its report to the ICC Executive Board. It was agreed that the record of proceedings would form part of our report and once the ICC in its discretion had made our report public as is envisaged in terms of reference, the record itself would become a public document. With regard to our report, Mr Venturas abandoned the earlier agreement between him and the ICC CEO in terms whereof the report was to be handed to the ICC President in a sealed envelope. Mr Venturas agreed that as was envisaged in the terms of reference originally, our report would in fact be handed to the ICC Executive Board for its consideration.

h) Mr Venturas raised the issue of the verbatim transcript of a without prejudice meeting held on 8th April 2004 between some of the players and certain of the ZCU directors. He emphasised that there had been verbatim notes taken by Lorraine Yon of the ZCU staff. He said that he had been informed at first that the notes did not exist but had later been told that they do exist. Mr Arendse indicated that he would look into this request for a verbatim transcript of the notes.

i) On reply to a question from Mr Arendse, we confirmed that we had received written submissions from three parties, the players, the ZCU and Mr Allan Robinson.

IV.6 The meeting was adjourned after it was agreed that the matters raised at the meeting would be placed on record at the hearing the next day.

V Chapter V - Hearing 29th September 2004

V.1 At the commencement of the hearing the matters agreed upon and those still in issue emanating from the informal pre hearing meeting were placed on record.

V.2 Mr Venturas placed on record that he was still awaiting the transcript of the notes of the meeting held 8th April 2004. Mr Arendse indicated that the notes were no longer available. It was so noted for the record.

V.3 Mr Arendse drew our attention to a press release scheduled to appear in the Daily Telegraph and he complained of the inaccuracy contained therein. This was noted and an appeal was made to the parties and their legal representatives to refrain from issuing statements to the media and, in the event that they do issue such statements, to ensure that such statements are as accurate as possible.

V.4 Opening statements were made by Mr Venturas on behalf of the players and Mr Arendse on behalf of the ZCU. Details of both these are set out below under Chapter X- Oral Submissions.

V.5 Evidence of Mehluli Sibanda

V.6 Mr Sibanda was the first witness to testify in camera, with only legal representatives being present.

V.7 Mr Sibanda testified that he is a sports reporter for the Sunday News, a weekly newspaper published in Bulawayo. According to him he had written an article in the said newspaper on 4th April 2004 after the dispute between Heath Streak and the ZCU had arisen. Mr Sibanda pointed out that his article did not concern this particular dispute as such and that it focused instead on the selection criteria used by the ZCU in that players from other parts of Zimbabwe, i.e. outside Harare, were not being given any opportunities. According to Mr Sibanda he received a telephone call from Mr Bvute at approximately 4pm that same day. He claimed Mr Bvute threatened him over the telephone with regard to the article. According to him Mr Bvute telephoned again on the following day, i.e. 5th April 2004 and during this conversation Mr Sibanda jotted down certain of the things which were said. According to him Mr Bvute said that what he (Mr Sibanda) was doing was not right and asked why he was siding with a white man, referring to Heath Streak. He also made reference to another journalist, one Shakuro who had found himself in "hot soup" concerning some of the matters he had written about. The latter was seen as a form of threat to Mr Sibanda, or so he claimed. Mr Sibanda expressed the view that Mr Bvute, through these telephone calls, was expecting the media to single out the players who were on strike at that time as white racists. He also testified about a subsequent encounter in Harare where Mr Bvute appeared to be very angry and refused to talk to him. He later heard from another source that Mr Bvute had in fact wanted to assault him at that time. At a subsequent occasion recently Mr Bvute told Mr Sibanda that Zimbabwe cricket can do without the whites i.e. referring to the striking players. Three articles appearing in the Sunday News dated 11 April 2004 were marked as Exhibit F-1, F-2, and F-3.

V.8 Exhibit F-1, F-2 and F-3 were reports relating to the threats allegedly made by Mr Bvute against Mr Sibanda. Mr Sibanda also testified that Mr Bvute had threatened to report him to the Minister of Information at the President's Office for siding with the white players.

V.9 Mr Venturas started his questioning of Mr Sibanda by referring to the Central Intelligence Organisation which according to him, had been mentioned to by the witness (though the witness had not made any such reference). The witness gave evidence that he was scared to testify before Mr Bvute and others. He also explained that he is part of the Ndebele tribe who forms a minority in Zimbabwe. He also acknowledged that he was aware of the fact that a player from Matabeleland (of which Bulawayo forms part) had been told on numerous occasions by Macsood Ebrahim that the player would never play for Zimbabwe whilst he is based in Bulwayo and that he should rather move to Harare.

V.10 Mr Arendse subjected the witness to extensive examination which at times became heated. The witness admitted that he had met with Heath Streak the previous week, but explained that this was done with a view to writing an article about Streak's return from playing County Cricket in England. He also pointed out that he and Streak both lived in Bulawayo.

V.11 Mr Sibanda denied that he had met or spoken to any other player (except Streak) or with Mr Venturas prior to giving evidence at the hearing. He explained that the purpose of giving evidence was to show that Mr Bvute is accusing him of siding with the white cricketers. He conceded that since the alleged threats by Bvute, he had written numerous articles about the present crisis in Zimbabwe cricket. He said that he was familiar with the ZCU integration policy as he had written about them, but that he did have his own reservations about them. He was also aware that the said policy had been adopted unanimously. In motivating his view of the selection bias against players from outside Harare, Mr Sibanda explained that from 2001 until 2004 no black player from Matabeleland had been selected to play for the Zimbabwe national team. He claimed that the article which he wrote and which was the subject of Bvute's alleged ire had clearly demonstrated that the ZCU integration policy had largely benefited players from Harare. He also testified that he agreed with the objectives set forth in the integration policy although he was not aware of the specific goals contained therein. According to him the present Zimbabwe national team reflects the objectives of the integration policy and he was satisfied with the composition of the said team and any other team selected on merit.

V.12 In reply to questions from the Panel Mr Sibanda said that he did inform Streak the previous week that he would give evidence at the hearing, although he did not specify exactly what he would say. Contrary to his earlier evidence during questioning by Mr Arendse Mr Sibanda admitted that he had spoken to Mr Venturas around May or June of this year. According to him Mr Venturas may well have been aware that he was to testify at the hearing - this knowledge he would have acquired from Heath Streak.

V.13 In further questioning by Mr Arendse it was pointed out to the witness that Mr Bvute would deny the allegations of threatening the witness and it was said that Mr Bvute had phoned him (Mr Sibanda) because the article which he had written was defamatory of Macsood Ebrahim. Mr Sibanda stood by his earlier evidence in response to what was put to him.

V.14 Application for Exclusion and the resulting Impasse

V.15 After Mr Sibanda had concluded his testimony Mr Venturas formally applied for the exclusion on Mr Bvute, Mr Ebrahim and Dr Makhulani from the hearing whilst the players testified. The order following sets out the basis of the application and our ruling made as a result of it.

"There is before this panel a rather unusual and unprecedented application made on behalf of the players.

We are at the stage when the evidence of the players is about to start. The players apply that whilst their evidence is being recorded, three members of the ZCU Board should not remain present in the room. They may remain in the Hotel, they say, whilst the evidence is being recorded and may rejoin the proceedings after the players evidence is concluded, but they insist that during the time their evidence is being recorded, these three persons should not remain present.

They base this application on the apprehension that they would feel intimidated by these persons and that they would feel threatened by the presence of these persons.

The ZCU strenuously opposes this application. They submit that the fears are entirely unjustified. The allegations are known and have been made earlier. They feel that the exclusion of such persons would prejudice the handling of their case and would be contrary to natural justice.

We have given anxious consideration to this application. Prima facie, we are of the opinion that the apprehensions expressed by the players do not seem to be justified. It cannot be forgotten that the players themselves concede that what the players will say has already been said substantially before.

Besides, all the persons concerned, both the players and the ZCU have had a long association together and have interacted closely. In this view of the matter, we would have been inclined not to allow this application, but we find ourselves in a difficult situation.

We asked Mr Venturas to indicate what his clients would do if the application were not allowed. He indicated that on the basis of the available instructions from his clients, he could not make any commitment. We have been shown an article published today which quotes the players as stating that they will withdraw from this enquiry if a person is allowed to sit in the hearings.

In the circumstances, we are left with no choice but to request the three persons not to be present in the room while the player's evidence is being recorded.

We do so making it clear that this request is made only with a view to ensuring that the investigation proceeds further and does not in any way amount to our acceptance of the correctness of the allegations made and of the apprehensions expressed."

V.15 Our ruling prompted Mr Arendse to place on record that his clients were not happy with the ruling and would not participate further in the proceedings. This placed the further continuation of a proper hearing in jeopardy and we requested the parties to meet and discuss this impasse and also the overall dispute between them.

VI Chapter VI - Hearing 30th September 2004

VI.1 Upon resumption of the hearing on the following day, we were informed by the parties that they had not been able to resolve the stalemate with regard to the exclusion of the three ZCU directors from the hearing. We were faced with an untenable situation where both parties were digging in their heels and threatening to withdraw from the proceedings. We consequently terminated the hearing with immediate effect and recorded the reason for the termination and our views of the parties' conduct.

VI.2 Although our views and reasons for terminating the hearing at that particular stage already form part of the record and have already been conveyed to the parties and to the media (at our request the players and members of the media were present in the hearing room for the first time at this stage), we regard this matter to be of sufficient importance to set out the full ruling again here in the report.

"During the course of the informal pre-hearing meeting on Tuesday 28 September 2004, the players' legal representative, Mr Venturas, intimated that his clients would insist on the exclusion of three members of the ZCU Board from the hearing when the players testified.

Two of these Board members' names were furnished at that time. This was the very first occasion that we had been alerted to this fact.

This request was over and above the precondition which had earlier been set for participation by the players in the inquiry and to which the ICC had agreed on 9 September 2004, namely a hearing in camera.

Counsel for the ZCU, Mr Arendse, voiced his clients' strong opposition to the proposed exclusion of the three Directors. The parties were then requested to attempt to reach agreement on this issue subsequent to the meeting and prior to the hearing on 29 September 2004.

At the commencement of the hearing yesterday, 29 September, we were advised that this issue could not be settled and that Mr Venturas would bring a formal application at the appropriate time and this fact was recorded accordingly.

Application was duly made after the testimony of the first witness, who had been called by the panel. Mr Arendse strenuously opposed this application for exclusion.

Having given the matter careful consideration for the reasons recorded by us, we requested that the three ZCU Board Members absent themselves from the hearing room during the course of the players' testimony.

Immediately thereafter Mr Arendse informed us that, in view of the ruling, his clients did not see their way clear to continue their participation in the hearing while their three Board Members are excluded.

We were then obliged to request Mr Venturas to discuss this matter once more with his clients with a view to the possible withdrawal of their application and/or the abandonment of the ruling.

A short adjournment was granted for this purpose.

When we reconvened, Mr Venturas informed us that his clients remained steadfast and that they were not prepared to withdraw their application and/or to abandon the ruling.

We then adjourned the matter until this morning and once again requested the parties to reconsider their respective positions not only on this in limine impasse, but more importantly, with regard to the overall dispute between them.

Regrettably we have been informed this morning that the disputes, both in limine and on the overall merits, remain unresolved.

We find ourselves in an untenable position at this stage of the proceedings.

If we accede to an exclusion of the three ZCU Directors, the ZCU will withdraw from these proceedings. If, on the other hand, we decline the request for their exclusion, the players will withdraw as is evident from the press clipping, exhibit "E".

We find it completely unacceptable to proceed in this fashion. In our view no purpose would be served in containing the hearing of evidence in the absence of one of the main protagonists in this matter.

In the premises we are constrained to terminate forthwith this part of the inquiry, namely the adduction of viva voce evidence.

We intend fulfilling our mandate with the material placed before us by the parties at this juncture, in accordance with the terms of reference. This outcome is obviously not what would be desired, but has been imposed upon us by the unfortunately recalcitrant and inflexible positions adopted by both parties whose attitude and stands before us reflect what has brought about these problems for Zimbabwe cricket.

This hearing is accordingly declared closed."

VII Chapter VII - Conduct of the Parties and Legal Representatives

VII.1 One of the principal reasons why the conduct of this Inquiry became difficult was the attitude initially adopted by the players and their legal representative which was then reciprocated by the ZCU and its legal representatives. Even before the hearings in Harare started Mr Venturas insisted that the hearings take place in camera and that the press be excluded. ICC reluctantly agreed to this, after consultation with us on 9th September 2004 so that the inquiry could proceed. However, from the very outset, and during the pre-hearing meeting itself, there was an attitude of confrontation adopted by Mr Venturas which became progressively worse.

VII.2 Mr Venturas was bent upon projecting an atmosphere of threats, fear and intimidation. During the prehearing meeting he mentioned that he would be requesting that three ZCU Board Members be excluded from the hearing whilst the players gave evidence. At that stage, the ZCU did not appear to be very hostile to this. However, as soon as the meeting was over Mr Venturas spoke to the press. This was reprehensible given that it was at Mr Venturas' insistence that it had been agreed that the hearing would be in camera without the press having any access.

VII.3 On 29th September 2004 reports appeared in the local press that Mr Venturas had asked for the exclusion of Mr Ozias Bvute and that he had instructions to withdraw from the Inquiry if Mr Bvute was present. This vitiated the atmosphere and as a result, the position of the ZCU understandably hardened. Nevertheless, we asked the parties to sort out matters between themselves. They were unable to do so. Mr Venturas by his conduct disrupted all channels of communication. In Chapter V we have dealt with the impasse created and how we dealt with it separately but are constrained to record here our displeasure over the course of events which was set in motion by Mr Venturas.

VII.4 At every stage Mr Venturas provoked the ZCU lawyers; to cite an instance, during the pre-trial meeting Mr Venturas made a request that the notes taken in relation to a without prejudice meeting held on 8th April 2004 be made available to him. Mr Arendse said that he would enquire whether the notes were available. On 29th September Mr Venturas started the proceedings by stating that Mr Arendse had given an "undertaking" to produce the notes. This was obviously incorrect. We are citing this incident as an illustration of how the proceedings were conducted because if it was Mr Venturas' intention to introduce emotional drama into the proceedings, he succeeded. Unfortunately he was successful because Mr Arendse, despite being a leading member of the South African Bar, took the bait. Instead of refusing to descend to Mr Venturas' level, which was expected of a senior person with experience, he reacted angrily. The hostilities between the parties were now extended to the legal representatives. We must however mention that Mr Alwyn Pichanick continued at all times to conduct himself with dignity and restraint.

VII.5 We were embarrassed spectators to squabbling between the lawyers which was more than just petty and personal. Being a Tribunal of consent, with no powers to make binding orders or to enforce them, there was little we could do except to record our observations in relation to Mr Venturas' unfortunate conduct in making statements to the press. We took particular exception to his statement that he had been "gagged" - a statement which was widely reported. We have put our observations on record and are appending them to this report as Appendix 2.

VII.6 This unsatisfactory state of affairs was all the more disappointing since it aggravated the already unbending attitude of the parties. We were expecting the lawyers, particularly one as senior as Mr Arendse, to bring objectivity to the Inquiry. An incident occurred between Mr Venturas and Mr Arendse outside the room in which the hearing was being held which was reported to us later. Mr Venturas' version was subsequently reported in the press and as a result Mr Arendse was and continued to be very upset.

VII.7 Fortunately voluminous documents have been placed before us by both parties. As stated above, the players filed three sets of documents including all the relevant correspondence and statements of various persons. The ZCU filed an exhaustive set of papers running into 408 pages, including all the minutes of the various meetings, including Board meetings. We were thus confident that on the basis of these documents and the written submissions we would be able to complete our task. We had every reason to believe that we would be able to ascertain the truth. We feel that we have been able to do so.

VIII Chapter VIII - The oral submissions

VIII.1 In his opening statement Mr Venturas referred to the dictionary meaning of the word "racism" he cited the meaning in the Oxford dictionary as "the belief in the superiority of a race." He submitted that though the reference was for the period 1st April 2003 to 1st July 2004 we were really concerned with a two month period March to May 2004. He said that the white players had constitutional rights. They had rights under the Anti Discrimination Act 1998 and by reason of the fact that ZCU was a member of the ICC which afforded the players the protection of the mission statement of ICC. According to him, these rights had been grossly and blatantly violated. According to him ZCU had been guilty of systemic and systematic racism against the white players as a group. ZCU had treated the white players with disdain and contempt. It had allowed its members to violate the players' rights with impunity, and the members had instilled fear in the players through antagonism. He went to the extent of alleging that ZCU was guilty of "ethnic cleansing".

VIII.2 He took us through the events of March, April and May 2004 which according to him started with the allegedly marginalised and targeted players approaching their Captain, Heath Streak, to do something. According to Mr Venturas, Heath Streak addressed the letter dated 24th March 2004 to the MD of ZCU. He submitted that the then MD Vince Hogg had prevailed upon Streak to withdraw the letter (this is an important aspect which we will highlight later). According to him, Streak was sacked at a meeting held on 2nd April 2004. He emphasised that at a meeting held on 8th April 2004 the players were vilified and racially abused. He took us through what, according to him, were the important dates post April 2004. According to him, there is a fine line between a proper affirmative policy and blatant racism; this line, he said, had been breached by ZCU and by the acts or omissions of ZCU directors.

VIII.3 Mr Arendse laboured on the racial integration efforts of the ZCU from 2001 onwards. He drew attention to the various difficulties faced by players of colour. ZCU staff was predominantly white, non-whites were in junior positions, even the service providers were predominantly white organisations. He dismissed the allegations of ethnic cleansing as being downright ridiculous. According to him this was a case of racial arrogance on the part of the white players who were insensitive to the process of integration. He said that a small group of white players were holding the ZCU to ransom. The whole attempt was to threaten Zimbabwe cricket with isolation in order to perpetuate their disproportionate influence. He said that the allegations of racism were hurtful. According to him, having regard to the declining white population in Zimbabwe, there was no alternative but to encourage players of colour. It was the integration process which has saved Zimbabwean cricket, as a result of which there is depth and talent available in Zimbabwean cricket. He denied the allegations of threats and intimidation and said that the allegations made against Mr Bvute were defamatory and inflammatory.

IX Chapter IX - The Written Submissions received after 30th September 2004

IX.1 After the close of the proceedings on 30th September 2004 and after we indicated that we would proceed to make and prepare a report on the basis of the material on record. Mr Arendse suggested that the parties be permitted to file written submissions. Mr Venturas agreed to this and we fixed a deadline for the written submissions to be filed by the close of business on Friday 1st October 2004.

IX.2 Mr Venturas sent submissions on behalf of the players running into seven pages within the stipulated time. Mr Pichanick sent an email on 1st October 2004 that the submissions had not been completed and that they would be sent by the morning of 2nd October 2004. On 4th October 2004 we received written submissions sent by Mr Arendse dated 1st October 2004 running into 56 pages. On going through the written submissions we found that Mr Arendse had not restricted himself to matters on record but has enlarged the field to various matters not on record. On 4th October 2004 we received an amended schedule together with additional documents under cover of a letter dated 1st October 2004 from the ZCU Chairman Mr Peter Chingoka. It appears to us that these documents are intended to support Mr Arendse's written submissions. Since the players would have had no opportunity to deal with such issues and since the written submissions had to be confined to collating matters and documents on record we do not propose to deal with those parts of the written submissions and will confine ourselves to considering those parts of the written submissions which relate to the material and evidence on record. We also do not propose to accept the amended schedule and the additional documents onto the record.

IX.3 The ZCU's written submissions contain a number of references to the ICC which we find disturbing.

(a) In paragraph 31 thereof, the submission is made that the Inquiry should have been continued in the absence of the players. The following statement is then made: "The fact that the disaffected players (and their nameless and faceless supporters throughout the `white cricketing world') got away with it, is more a reflection on the ICC as a governing body, than on the ZCU as the governing body for cricket in Zimbabwe" (our emphasis).

(b) At the end of paragraph 38 and the beginning of paragraph 39 thereof, the following submission is made: "Zimbabwean national teams remained virtually exclusively white for a number of years after admission as a Test playing nation, and this did not appear to concern the ICC and some of its affiliates.

The fact that very little or no growth and development in the game of cricket was taking place in Zimbabwe also did not appear to concern the ICC and some of its affiliates" (our emphasis).

(c) Lastly, the following appears in paragraph 58 of the submissions: "58. That the integrity of the ZCU, and its constitutional structures, can be questioned by a few disgruntled white players, and be given such prominence by the ICC, is beyond comprehension, and is clearly an expression of political bias, more aimed against the current Government of Zimbabwe than the ZCU. It is respectfully submitted that this attack on the ZCU is entirely misconceived, misplaced and not substantiated at all by the documentation before the Learned Commissioners" (our emphasis).

To the extent that these submissions constitute an attack on the ICC as an institution, we find them most unfortunate, completely irrelevant to the issues before us and wholly unjustified. It is most regrettable that the ZCU, as a Full Member of the ICC, has been unable to appreciate the efforts of the ICC which have been directed at affording the ZCU an opportunity to clear itself of allegations of racism.

In our view the ICC has exercised great forbearance in dealing with difficult issues primarily with a view to ensuring that the Inquiry continues and the players participate effectively, particularly since the players were not giving their full co-operation.

The ICC has gone out of its way to fund this Inquiry, including a substantial contribution towards both parties' costs, at considerable expense.

In the circumstances, we find this surprising hostility towards the ICC somewhat irresponsible.

IX.4 In paragraph 29 the ZCU takes objection to our finding that both parties adopted an inflexible attitude. We see no reason to reconsider our view. It was perfectly open for the ZCU to have risen above the situation and allowed the hearing to continue particularly since eminent, mature and responsible directors such as Mr Peter Chingoka and Justice Ebrahim could have participated in the proceedings. ZCU chose not to adopt such a course of action but made the presence or absence of its three directors a prestige issue. This inflexibility contributed to the impasse. We were certainly entitled to expect a responsible approach from the ZCU.

IX.5 We also note that in paragraphs 29, 30 and 31 Mr Arendse has joined issue with the Panel. According to him, we should not have allowed the players to set pre-conditions and that we should not only have declined the players request but we should also have warned them that should they not give oral evidence the hearing would continue in their absence. Mr Arendse advises us that this procedure is well known in all countries that respect the right to a fair trial. We hardly need to be told by Mr Arendse as to what procedures are followed in such matters, particularly since Mr Arendse during the proceedings on 29th and 30th September 2004 never suggested this course of action. We would however observe that we made it clear that we would not proceed in the absence of either party because any such alternative would be most unsatisfactory. Though our position was made clear, Mr Arendse, at that stage, took no exception to it. Indeed he acquiesced in it by requesting that written submissions be allowed to be filed.

X Chapter X - The issues

X.1 The broad issue set forth in the Terms of Reference is regarding allegations of racism within ZCU between 1st April 2003 and 1st July 2004.

X.2 This in turn throws up the following questions:

A) Has ZCU been guilty of systemic and systematic racism against the players as a group?

B) Have they been intimidated, targeted and/or marginalised by the ZCU and its members?

C) Was Heath Streak "dismissed" as he alleged? Was he "dismissed" on racist grounds?

D) What were the circumstances leading to the decision taken on 2nd April 2004?

E) Was the stand taken by the players in the joint statement issued on 12th April 2004 justified?

XI Chapter XI - Defining racism

XI.1 Before we discuss the issues we would like to briefly consider what we understand by racism.

(A) Racism is defined in the Concise Oxford dictionary as "belief in the superiority of a particular race, prejudice based on this, antagonism towards others especially as a result of this."

(B) Article 1 of the Universal Declaration of Human Rights adopted by the UN General Assembly Resolution 217 A(III) of 10th December 1948 states as follows: " all human beings are born free in dignity and rights" Article 2 thereof declares: "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status."

(C) Article 1 of the International Convention on the Elimination on all Forms of Racial Discrimination which came into force on 4th January 1969 defines racial discrimination as follows: " in this Convention the term racial discrimination shall mean any distinction or exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

(D) Of some significance with regard to affirmative action measures and policies is Article 4 of the said Convention which reads as follows: "Special measures for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."

(E) The African Charter on Human and Peoples' Rights of 27th June 1981 declares in Article 18 that:

"all peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another."

(F) Having regard to the aforementioned definitions and in the context of this dispute between the parties, we understand racism to mean the exclusion and marginalisation and prejudicing of a particular group of people solely by reason of their race, colour or ethnic origin. We shall accordingly consider and make a finding on the main issue at hand, namely as to whether the ZCU had in fact perpetrated or practised racism during the period specified in the Terms of Reference, within the meaning of the term racism as enunciated above.

XII Chapter XII - The central issue

XII.1 We find the central issue revolves around Heath Streak's disputes with the ZCU. We proceed to deal with these in detail.

(A) In the written submissions the players have relied upon handwritten faxes sent by Stuart Carlisle from Bangladesh in November 2001. Carlisle was then the Captain of the Zimbabwean team. The players contended that these documents are "evidence of racism" in Zimbabwean cricket. A perusal of these faxes shows that the players' submissions are misconceived. Stuart Carlisle was indeed referring to allegations of racism, but what he was referring to was not racism against white cricketers but allegations of racism by them. He referred to an article written by Robson Sharuko, in which it had been alleged that the Zimbabwean team had been and continued to be a "racist" team which continued to practise racism. Carlisle protested against such allegations and wanted an investigation committee to deal with such allegations. He was confident that there would be no evidence of any such racism.

(B)The decision to integrate Zimbabwean cricket and to move forward was unanimous. All concerned, including the whites, gave full support to the efforts made in this behalf.

(C) Questions as to whether black players felt ostracised however continued to crop up. As recently as February 2004 it was reported that during the Test tour of Australia there was a separate bus for white players and another for the black players. This incident has been referred to in the minutes of the meeting held on 8th April 2004 exhibit D page 348. We do not find, on the record, any statement controverting this. At the same time there was simmering discontent with regard to the process of selection. There were also grievances that there were regional imbalances.

(D) Given these concerns and allegations on both sides, the atmosphere was tense. It was in this context that one has to consider Heath Streak's letter dated 24th March 2004. The letter is addressed to the MD of ZCU. It is entitled "Board's refusal to meet with Heath Streak regarding player affairs". Streak was obviously very concerned with what was going on. He was also concerned with lack of communication with the ZCU. He was unable to meet Mr Peter Chingoka whom he respected and looked up to. Unfortunately he set about dealing with the matter in a rather unfortunate way. He did not realise that he was setting himself on a collision course with the ZCU. He failed to anticipate the consequences if ZCU did not step aside. He miscalculated that a self respecting cricketing organisation could not and would not accept the tone and tenor of his demands. The letter needs to be analysed carefully:

(i) Streak starts by drawing attention to his difficult position and to how he had gone beyond the call of duty by protecting the game and its governors. He claims "I am tired of defending the ZCU with little or no support". He then goes on to state that he had been left with no option but to "make the following demands". The demands may be summarised as follows:

1) The ZCU should abolish "goals/quotas" entirely and sides should be selected purely on merit.

2) The final decision as to batting order had to be left to the Captain and the Coach - the selectors could only advise.

3) The Panel of selectors should be reduced to four selectors with the convenor having a casting vote.

4) He laid down the qualifications and disqualifications for selectors.

5) The ZCU needed to commit itself to establishing a proper players association, bearing 50% of the costs involved.

6) He wanted a Players' Association Representative, (though he was not clear the role this representative would play).

7) The National League Cricket (NLC) was to be reinstated.

(ii) He then sought answers to the following questions: 1) "Why aren't all ZCU administrative posts not publicly advertised?

2) Why are some ZCU directors making all decisions without either consulting with the Chairman, MD or the full Board of Directors."

(iii)After acknowledging that some of his points could be "unconstitutional" he said that he felt strongly that they were fair and justified and then held out the clearest possible threat in the following words: (his emphasis)

"Should you feel this is not the case, the following will happen... · I will resign from Zimbabwe cricket entirely. I fully understand the consequences and implications of this action and am prepared for such. · I feel obliged to inform the ICC, all Boards of Test Playing Nations, Player Associations, Media and Sponsors of Zimbabwe cricket regarding the above matters. · I would consider personal Legal Action against ZCU."

(iv) Having stated that he would resign, he then set out his perception of the outcome of his resignation as follows:

1) "A large number of systematic resignations by players in my support as well as possibly those of some administrators.

2) The suspension of sponsorship to the ZCU by major corporations who would not want their own reputations tarnished.

3) An investigation by the ICC and possible suspension from the international playing arena pending the outcome of this investigation and its allegations.

4) The cancellation of all forthcoming tours by Australia and England who would be only too happy to have an excuse on "political" grounds and with the blessing of the ICC to cancel.

5) A feeding frenzy by the media such as Super Sport, Wisden and other sports websites etc. They will do their best to politicise the ZCU and the local media will make this look like a racial attack.

6) Possible political intervention by Zimbabwean authorities and the possible take over of the ZCU that has been suggested by rogue organisations who will be interested in just one thing - plundering ZCU wealth!"

A copy of the letter dated 24th March 2004 is annexed as Appendix 3.

(E) At this point the following aspects need to be emphasised:

(i) Mr Venturas' assertion that this letter was written because the players approached their captain after they felt marginalised and targeted is wrong. There is no reference to the other players in Streak's letter.

(ii) Mr Venturas' assertion in his opening statement that the letter was withdrawn is also wrong. As will be shown later, this letter was referred to in subsequent correspondence and nobody ever claimed that the letter had been withdrawn. On the contrary the players' latest written submission states (paragraph 6) "On the 24th March 2004 Streak writes a letter to Vince Hogg the MD of ZCU and the person to whom he had to report complaining that Chingoka had refused to meet with him."

(iii) The submissions further state that the letter was not responded to and that Streak was "dismissed" on 2nd April 2004. Both the assertions are wrong.

(F) Streak did get an immediate response. An emergency meeting was held with some of the directors of the ZCU on 30th March 2004, at which the then ZCU MD, Vince Hogg, Heath Streak and Tatenda Taibu, Vice Captain were also present. It is to be noted that Vince Hogg had advisedly not circulated or tabled Streak's letter but all of Streak's grievances were noted. Some important decisions were taken. Significantly the demand to elect a players representative with the ZCU funding 50% of the cost was conceded. It was also the consensus that measures would be taken to ensure that the management of the national team would be strengthened. It was agreed to suggest to the incoming Board that a new selection panel be formed for the new season taking into account Streak's recommendations. However, it does seem to us that the meeting was marked by unpleasantness, to which Mr Ozias Bvute undoubtedly contributed by making personal allegations against Sean Irvine and Geoff Marsh's daughter. A copy of the minutes of the meeting held on 30th March 2004 is annexed as Appendix 4.

(G) It appears to us that after 30th March 2004, Streak's stand became more rigid. On 2nd April 2004 Streak called the MD and informed him that if all his demands were not met he would retire from all forms of cricket with effect from 5th April 2004 at the conclusion of the Logan Cup match he was participating in. At the meeting of the Board of Directors held on 2nd April 2004 the MD reported his conversation with Streak to the Board. He placed the ultimatum given by Streak before the Board along with Streak's demands. The Board of Directors expressed surprise and disappointment at Streak's demands, particularly since several issues had been sorted out at the meeting held on 30th March 2004. The Board noted that Heath Streak could not decide on the composition of the selection panel. The Board then discussed the ultimatum and every director present felt it had to be rejected. There was unanimity that since he threatened to retire, the Board of Directors should accept "this" (his retirement) with immediate effect. A copy of the minutes of the Board of Directors meeting is annexed as Appendix 5.

(H) It is clear to us that Heath Streak had unfortunately miscalculated. He failed to realise how the Board of Directors would view his position and that they would take this to be a direct threat to their position. The stakes were raised without considering what would happen if the bluff was called. Having accepted his resignation, the Board took the decision to immediately appoint Tatenda Taibu as Captain of the national team.

(I) The reaction that followed the decision taken on 2nd April 2004 (which incorrectly referred to Streak's alleged "dismissal") may have been caused by Streak stating that all he had said was that "he would consider retirement". This is the stand that Streak took at a without prejudice meeting held on 8th April 2004 at which various ZCU Board members were present. The parties' legal advisers were also present. Apart from Streak two other dissenting players were also present. The Board agreed to take Streak back as a player but not to reverse the decision with regard to captaincy, (since Tatenda Taibu had already been appointed Captain on 2nd April 2004).

(J) It appears from the papers before us that post 8th April 2004 a negotiating team was set up, but on 12th April 2004 , the atmosphere changed once again. All the white players jumped into the fray. They issued an "open statement" expressing their concern about the decision taken by the ZCU Board "terminating Heath Streak's Captaincy". The opening paragraph of the statement contains the following:-

"Heath has also assured us that he did not threaten to resign as alleged by the Board, but merely said that if the concerns were not addressed he would consider possible retirement. Knowing Heath's dedication to the game and to us as his team mates we have no reason to doubt that his version is correct."

The players proceeded on a wrong basis. Perhaps they were not aware of the contents of Streak's letter dated 24th March 2004, set out above. Unfortunately, the situation had become almost irretrievable, and the joint statement only made matters worse. A copy of the joint statement made by the cricketers is annexed as Appendix 6.

(K) Given the stand taken by the players, the ZCU was bound to react. It did so through its attorney's letter dated 15th April 2004 in which the ZCU expressed regret over its inability to accede to the various demands made in the open statement and called upon the players to report for practice not later than 10am the following day. The players did not do so stating that they "were made aware" of the letter only at 8.45am on the 16th April 2004. The ZCU therefore addressed legal notice on 16th April 2004 to the players calling upon them to rectify the breaches in terms of paragraph 9 of their contract of employment and stated that if the breaches were not rectified the contracts would be terminated. On 16th April 2004 the ZCU issued a public statement inter-alia referring to Streak's letter dated 24th March 2004.

(L)The players' legal representative's letter in response, dated 16th April 2004 did not help an already difficult situation. It aggravated matters. It asserted an "implied term" of the contract that the players were entitled to a say in the constitution of the selection panel. It set out alleged breaches on the part of the ZCU and threatened that if the breaches were not rectified the players would cancel the contracts. The breaches alleged were as follows:

1) "The discharge of Heath Streak as unlawful, malicious and unjustifiable by your client.

2) Further and in any event it is obliged to give reasons for its actions which it has failed to do.

3) That by your client's own admission the selection mechanism has not been operating correctly since David Houghton's departure.

4) That your client has further breached its contracts with our clients by failing to deal in any manner whatsoever with numerous transgressions by the Board vis a vis our clients."

(M) The ZCU's attorneys Wintertons addressed another letter dated 21st April 2004 which once again referred to Streak's letter dated 24th March 2004. We were unable to find any response to this letter.

(N) It is unnecessary for us to further analyse the correspondence which took place. It appears that there were some attempts to resolve the issues but to no avail. Finally Wintertons issued a notice dated 6th May 2004 stating that if the players did not rectify the breaches by 7th May 2004 ZCU would terminate the contracts. Wintertons, by a later letter dated 10th May 2004, communicated their client's decision to terminate the contracts with effect from 7th May 2004. The deadlock was now fully in place.

(O) We have set out how this unfortunate situation was brought about. Heath Streak found himself in a difficult position. He wanted to address problems in the ZCU. He obviously felt very strongly that he was not being heard. In the process, he put his own future on the line. With a view to impress persons about the sincerity of his purpose, he threatened to resign. The threat was accepted. The whole episode was unfortunate and could have been avoided if better counsel had prevailed on both sides. We are very clear in our minds that though there were serious problems within the ZCU, there were no "racism" issues here.

XIII Chapter XIII - Written Statements filed by the Players

(A) We will now turn to the various statements which have been filed by the players in support of the allegations of racism. These have been marked as Exhibit C on the record. We marked the bundle of statements as Exhibit C subject to consideration of its probative value. Apart from noting that none of these statements have been subjected to any critical observation, we also find that: 1) none of them were attested; 2) that several of then pertain to incidents of 2000 and 2001; 3) the bundle includes a statement from Gary Brent which is undated and unsigned and contains no dates whatsoever; 4) one Clive Field was entrusted the task, sometime in August 2004, of gathering material for our consideration and most of the statements seem to be addressed to Clive Field.

(B) We would like to preface this analysis by quoting a statement in the players' latest written submission (paragraph 17.2.7):

"It is submitted that despite the paucity of evidence it is obvious that racism is rife in cricket in this country." (our emphasis)

(C) We would first deal with the statement of Brighton Watambwa (Item 6 Exhibit C). In this regard the players' written submission contains a request (in Para 16.1) that we contact Watambwa via email and hold a teleconference as he could not afford to attend the Inquiry. We do not consider it necessary to accede to this request. Firstly the incident that Mr Watambwa refers to occurred in the year 2000 which is beyond the scope of this Inquiry. Secondly what Watambwa complains of is that he was pressurised to change clubs (by Macsood Ebrahim) and that since he did not agree he was dropped from the Mashonaland team. Ebrahim is said to have been a selector for Mashonaland. In our view, these allegations, taken at face value, do not amount to an allegation of racism. At the highest, they are personal allegations against certain individuals and their manner of functioning.

(D) We would like to comment on the manner in which some of these statements have been compiled. There is placed before us an email from Trevor Gripper dated 17th August 2004 (Item 3 exhibit C) which is described as "Trev's version of Alex Mandhu's submission". It goes on to state that a young black cricketer, Alex Mhandu, had been verbally abused in 2001/2002. When one turns to Mhandu's own email dated 24th August 2004 (Exhibit C page 5) one finds that he makes no such allegation. He starts by stating that he is "not really 100% sure" of his facts. He refers to two incidents which do not directly concern him at all. This is a rather unsatisfactory state of affairs.

(E) There is an unsigned letter from Kingsley Went dated 24th August 2004 which refers to an unseemly incident in December 2001 relating to a cricket match. It does not establish any racism and is, in any event, beyond the scope of this inquiry, having occurred in 2001.

(F) There is a long email from Paul Strang dated 24th August 2004. He starts by stating that he has not been personally subjected to any racial abuse. He evidently has personal problems with Mr Macsood Ebrahim. His real grievance is that there are powerful members within the ZCU who are using their numerous positions within the organisation to further their own agendas to the detriment of the game. This seems to us to be the focal point of all the grievances and we have dealt with them subsequently in Chapter XVI "What ails Zimbabwean Cricket."

(G) To similar effect are statements from Colin Saunders, Ray Gripper and Gwynne Jones, all of which reflect personal differences with particular persons. Interestingly Gwynne Jones makes allegations against Mr Peter Chingoka but Jones himself concedes that these are based on what was told to him subsequently by one Dan Stannard. One cannot proceed on such uncorroborated hearsay. We note his allegations that there are three Asians who have a racist agenda. He does not name them and therefore this cannot be taken further.

(H) That leaves Heath Streak's submission in the form of an email dated 10th September 2004. He refers to an incident relating to the Mashonaland Board. According to him there was a demand to include at least five black players in the squad for an ODI match and a threat to boycott the match, dig up the wicket and stage a pitch invasion if the demand was not met. Streak does not name any particular person but Ray Gripper attributes this threat to Mr Ozias Bvute. We will also deal with this particular matter in a subsequent chapter "What ails Zimbabwean Cricket."

(I) In the final analysis we are unable to find in these written statements any direct or credible evidence of racism on the part of the ZCU as an institution. In their written submissions the players contended that the ZCU's officials are guilty of failing to communicate with the players, failing to articulate the policies, failing to allow them to air their grievances etc. According to the players this "equates to racism when it is practised as it has been over a period solely against a particular racial group". The logic behind this argument is unacceptable. We have dealt with the grievances against individual ZCU directors in Chapter XVI.

XIV Chapter XIV - Mehluli Sibanda

XIV.1 We have set out the evidence of this witness above. Our observations with regard to Mr Sibanda are as follows.

(A) Much was made about this mystery witness. He contacted one of us by email initially. He wanted to give evidence in the absence of any parties, including the lawyers and he did not want to be named. Since such evidence would have been worthless, we declined to follow this course of action. At the pre hearing meeting it was agreed that this witness would record his evidence first without any parties being present but in the presence of the lawyers acting for the parties.

(B) The witness wanted us to believe that there was an atmosphere of fear and intimidation, particularly as far as Mr Ozias Bvute is concerned. This was probably meant to be the setting for the players' application to exclude Mr Bvute and two other ZCU directors from the proceedings, and then condemn them in the media.

(C) In replying to questions put to him by Mr Arendse Mr Sibanda admitted that his relations with the ZCU were sound until he went to Bangladesh with the Zimbabwean Under 19 team. It is on record that during this event the manager and the entire team were unhappy with his reporting, which they considered to be highly negative.

(D) In his statement he initially stated that though he and Heath Streak stayed in the same town he had not mentioned to Streak that he had sent an email to us advising that he wanted to give evidence before us. Later on questioning by us he admitted that Streak was aware that he was going to give evidence. He also admitted that Mr Venturas would have been aware that he was going to give evidence. He contradicted himself on whether he had ever spoken to Mr Venturas prior to his attendance at the hearing.

(E) It does seem to us that the witness has a grievance that players from his region (Matabeleland) are being unfairly treated by the national selectors. Since Mr Streak had also raised issues regarding the role of the selectors of the national team they had a common cause. The witness's article which appeared on 11th April 2004 in the Sunday News (exhibit F1) extensively quotes Heath Streak and shows their close interaction.

(F) The witness referred to an incident involving Mr Bvute which is said to have taken place in August 2004. He claims that he walked up to Mr Bvute who said "I don't want to talk to you". He went on to state that Bvute wanted to assault him and said in the same breath that this was what was told to him by someone else later. He did not identify the person who told him this. We cannot accept such uncorroborated evidence but the fact that Mr Peter Chingoka and Mr Justice Ebrahim have had, on separate occasions, to personally intervene to calm Mr Bvute down is not without significance.

(G) As we have mentioned above there are several grievances with regard to preference being given to players from Harare and discrimination against players from other regions such Matabeleland. We will deal with these allegations in the chapter entitled "What ails Zimbabwean Cricket?"

XV Chapter XV - Zimbabwe Cricket - a historical and demographic perspective

(A) One cannot fully appreciate the predicament that Zimbabwe cricket finds itself in without noting some relevant historical facts. Zimbabwe gained independence in 1980. The players have placed before us an interesting document entitled "Pertinent Facts in Zimbabwe cricket" by Justice A Ebrahim, the current Vice President of the ZCU. We drew Mr Venturas' attention to this document. He acknowledged it and said it had come to his knowledge two months ago. (We were somewhat surprised that this document was included by the players in their bundle since it is totally antithetical to their case). From this, we find that as recently as the late 1990's cricket was regarded as a white man's sport. Before independence 90% of the players were white. There were only two Asian clubs; the rest were all white clubs. At the school level only the white schools played cricket. Prior to 1980 cricket was introduced to only one black school.

(B) In the mid 1970's there were 250,000 whites in the country. By 1980 this figure fell to 150,000. By 1995 this came down to 80,000. We are told the present figure is less than 20,000 whites in Zimbabwe out of a total population of approximately 14 million. See Exhibit D, Item 6 pg 154.

(C) We have no doubt that there was no alternative but to take urgent steps not only towards racial integration but also to take affirmative action to spread cricket to persons of colour. The setting of goals cannot be faulted. All those connected with Zimbabwe cricket including white people have rightly and legitimately accepted this. The implementation of these policies is a non negotiable imperative if Zimbabwe cricket is to survive and to grow. There is no alternative but to increase the association of people of colour with the game and to develop a larger pool of players of colour. We note that considerable progress has been made already and much more needs to be done.

(D) When Mr Streak in his letter dated 24th March 2004 demanded that the ZCU should abolish goals entirely he failed to appreciate that he was striking at the root of the integration policy and its very fundamentals. We are of the view that the Board of Directors' response to this demand was perfectly justified.

XVI Chapter XVI- What ails Zimbabwe cricket

XVI.1 A serious allegations was made by Heath Streak in his letter dated 24th March 2004 as well as in his written statement dated 10th September 2004, Exhibit C item 8. This pertains to the Mashonaland Board instructing the ZCU to include more blacks. He refers to a threat to boycott the match, to dig up the wicket and to stage a pitch invasion if the demand to include at least five black players was not conceded. Ray Gripper identifies Mr Ozias Bvute as the person who issued these threats. We were not inclined to attach too much significance to these allegations since Mr Bvute did not get an opportunity to present his side of the story but the position has changed in view of Mr Arendse's latest written submissions received on 4th October 2004. At page 34 of these written submissions Mr Arendse has dealt with this incident and we feel it highly instructive to quote this part of the written submissions which reads as follows:

" In relation to certain threats of digging up the pitch, alternatively pitch invasion, and paying a double match fee to Mark Vermulen, these allegations are statements made by certain individuals during the course of certain meetings which were emotionally charged. It is quite acceptable in a free, and democratic society for persons to voice their concerns and/or complaints. Even if these threats were uttered it is respectfully submitted that it in no way reflects the view of the ZCU, and in any event the persons concerned were not authorised or mandated by the ZCU to make these threats and/or promises. Accordingly, as a matter of fact, and law, these allegations must be dismissed as frivolous and/or vexatious. The fact of the matter is that the threat to dig up the pitch or to invade it, did not materialise, as a direct result of the intervention of Mr Justice Ebrahim. Threats of this nature are common place in the cricketing world where emotions run high, and sensitive issues are being debated and/or discussed. What is important however is the end result, and in this case, the match took place, and the threat did not materialise."

XVI.2 We find this submission quite illuminating for several reasons:

1) It admits that threats were made. It does not identify who made the threats and we do not propose to name any particular person. However, in our view it is too facile to explain away these threats as being made by persons who were not authorised or mandated by the ZCU to make these threats. One cannot lose sight of the fact that the Mashonaland Board members who were making these threats were not ordinary individuals. These persons occupy responsible positions in Zimbabwe cricket.

2) We cannot accept the explanation that these statements were made during the course of certain meetings which were highly emotionally charged. The threats were made before the match itself. They were made with every sense of seriousness and the above quoted portion shows that Mr Justice Ebrahim had to intervene. The meetings which are referred to were meetings held subsequent to the threats made and emotions ran high because the threats were sought to be referred to.

3) This cannot be justified as an expression of concerns in a free and democratic society. This is a threat by persons charged with the administration of cricket to take the law into their own hands and to disrupt the match itself. The making of such threats by such persons holding positions of responsibility is totally unacceptable and it makes no difference that the threat did not materialise.

XVI.3 Mr Mehluli Sibanda has identified Mr Ozias Bvute as the person who threatened him. Whether Mr Bvute threatened Mr Sibanda has not been established but we are of the view that Mr Bvute's contacting the journalist by telephone on 5th April 2004 was unfortunate. It was sought to be explained by Mr Arendse in his questions put to the witness that Mr Bvute called him because his article was defamatory of Macsood Ebrahim who had been accused of favouritism. Whatever be the provocation Mr Bvute would have been well advised to have exercised more restraint. We have no doubt regarding Mr Bvute's passionate commitment to Zimbabwean cricket, its promotion, to the policy of integration and to increasing the number of players of colour. However, one must note that if one wants to hold a public office one has to learn that the press may not always agree with you. Unfortunately we have found instances of insensitivity to criticism.

XVI.4 We also find substance with regard to the criticism in relation to ZCU selectors. We find that the statements made that the selectors do not visit different regions to watch local matches has not been controverted and this is a serious issue. As a matter of fact, at the Emergency Meeting held on 30th March 2004 the suggestions made by Streak in this behalf were noted and it was agreed that it be suggested to the incoming board that a new selection panel would be formed for the new season taking into account Streak's recommendations. However at the meeting held on 2nd April 2004 his suggestions were rejected outright. We find that there are people in the ZCU who have tremendous stature, experience and long association with the game of cricket. These are people such as Peter Chingoka and Justice Ebrahim and one would hope that such people are able to rein in younger and more enthusiastic people and control their aggressiveness.

XVII Chapter XVII - Conclusions

(A) Findings

Our findings are as follows:

1. We do not find any evidence of racism within Zimbabwe Cricket within the period of 1st April 2003 and 1st July 2004.

2. Heath Streak felt compelled to write the letter dated 24/03/2004. In giving the Board an ultimatum that he would resign if his demands were not accepted, he put his own future on the line. He did this initially in the letter dated 24th March 2004 and repeated it in his telephone conversation with the MD which was reported to the Board on 2nd April 2004. He failed to appreciate the effect that his actions would have on the ZCU Board as a whole.

3. Heath Streak obviously did not anticipate (and was not advised) that given the ultimatum that he would retire by 5th April 2004 the Board would take the position that it had no option but to reject his demands and accept his retirement. They did precisely that.

4. The other so called "rebel" players mistakenly proceeded on the basis that Heath Streak had only said that he would "consider" resigning; they apparently accepted, without more, Heath Streak's assurance in this regard as is reflected in their statement dated 12th April 2004.

5. With the other players entering into the fray, there was a complete breakdown in the relationship between the white players and the Board, and the correspondence that took place was based on an action-reaction basis which made an already difficult situation impossible.

6. The ZCU policies for the integration of cricket in Zimbabwe are based on sound principles and are generally accepted by all stakeholders in Zimbabwe cricket.

7. There is discontent regarding the selection process. There are several regional issues. There is also discontent with regard to the functioning of some directors of the ZCU which needs to be seriously addressed by senior and mature persons such as Peter Chingoka and Justice A Ebrahim.

(B) Recommendations

Our recommendations are as follows:

1. There must be broad based selection in terms of the integration policy and without any regional bias.

2. The ZCU should take immediate steps to ensure that competent selectors are appointed, who should be hands on.

3. ZCU should immediately investigate and attend to the complaint that national selectors do not attend matches in certain regions.

4. ZCU should take steps to set up a players' association, if not already in place, and to provide for a players representative who shall act as chief liaison between the players and the ZCU.

5. Channels of communication between the players and the ZCU must be improved without delay so that all concerned are treated respectfully and act together in the best interests of Zimbabwean cricket.

6. The policy of integration should be implemented with tact and restraint rather than in an aggressive or confrontational manner and there should be uniformity in the approach of all members of the ZCU Board in this regard.

7. Criticism should be viewed in the right spirit and not taken personally.

8. A proper, clear and transparent grievance process must be put in place so that all stakeholders in Zimbabwe cricket can seek redress.

................................................... ............................................... G E Vahanvati S A Majiedt

5th October 2004

We would like to place on record our gratitude to Mr Ehsan Mani, President ICC, Mr Malcolm Speed, Chief Executive ICC, Miss Urvasi Naidoo, In House Lawyer ICC, and Miss Juliet Davidson, PA to Chief Executive ICC for all their help preceding, during and after the Inquiry.

List of Appendices

Appendix 1 Terms of Reference

Appendix 2 Observations put on record on 30th September 2004

Appendix 3 Heath Streak's letter dated 24th March 2004

Appendix 4 Minutes of emergency meeting on 30th March 2004

Appendix 5 Minutes of the ZCU Board meeting held on 2nd April 2004

Appendix 6 Joint statement by cricketers