Cricket SA just wouldn’t be the same without something vexing the organisation. For every troubled two steps forward over the past six months there has been an equally painful one backwards. The latest has the potential to be the most painful of all, financially as well as emotionally.
The Cricket SA interim board’s decision to postpone its social justice and nation-building hearings at the 11th hour has been interpreted by some as being a result of alleged perpetrators of bias and injustice running scared from the consequences of their actions.
That may or may not be true but it is certainly true that, given the circumstances, those giving evidence will need just as much protection against litigation as those against whom accusations are made. A former cricketer giving evidence to an ombudsman in a public forum, without sufficient legal representation and making potentially far-reaching and damning allegations of racial discrimination without sufficient or irrefutable evidence, could be personally disastrous.
We are blessed with the gift of free speech. It is a gift we all too often take for granted. But we are also protected by common law in SA, which stipulates that everyone has the right not to be defamed by statements that are inaccurate and derogatory. There is no doubt a balance to be struck, which would be easier to achieve if the shared goal was reconciliation.
There appears, however, to be a little too much anger and mistrust to hold out much hope that the hearings, in the current climate, will do anything other than dissolve into a litigious, mudslinging brawl. The potentially dire consequences on careers and livelihoods which can be caused by false or unsubstantiated allegations of racism mean the “defendants” must have the opportunity to test the evidence fully and, if necessary, take legal action based on defamation. They will argue that it is not only their right to do so in order to properly defend their names and reputations, but their only available remedy.
There will also need to be a robust, trustworthy and credible system of discerning between mere “unfairness” and racially motivated prejudice. Take the case of Thami Tsolekile, who undoubtedly has good reason to believe he was treated unfairly in 2012 after he was given reason to believe he was the next wicketkeeper in line to play for the Proteas if the incumbent, Mark Boucher, was injured or retired.
In the event, there was a change of plan and AB de Villiers was given the keeper’s gloves because the selection panel believed it allowed the team to play an extra batsman (JP Duminy) and, with Jacques Kallis also batting in the top five, they could field a five-man bowling attack and seven specialist batsmen. The Proteas effectively became a 13-man team and rose to No 1 in the world.
Lawyers will no doubt argue that workplace circumstances change all the time and that Tsolekile’s misfortune was not based on his race but on a justifiable change of tactics. The only people who may significantly benefit from an extended debate on this subject will, as always, be the lawyers.
There are other more straightforward allegations of racism. If the stories are true, for example, that young black players were paid less than their white contemporaries at any stage of their careers then there should be no need for argument. Deep, sincere apologies, retrospective compensation and some meaningful education for the provincial or franchise employers would be the least the affected players could expect and would deserve.
The social justice and nation-building hearings are supposed to be cricket’s answer to the Truth and Reconciliation Commission (TRC). Truth is certainly being sought, but there appears to be little interest at this stage in reconciliation. Reconciliation may be more attainable were the hearings in the form of hard but respectful conversations behind closed doors before a trained facilitator or mediator. However, if the emphasis is on retribution, then reconciliation (and the often constructive lessons come from that) appears a distant hope.
Some of the complainants have already started leaking their testimonies to the media, and the “accused” now feel they have little option but to start preparing vigorous defences.
The hearings absolutely must take place in July, their rescheduled date because of a prior commitment of the ombudsman, Dumisa Ntsebeza. The moral and ethical arguments are compelling, but so are the practical and economic ones.
Cricket SA still has to convene its delayed annual general meeting and appoint a new board. It needs to appoint a new CEO and, equally critically, a new head of commercial. Now, just as importantly, it needs to find a way to conduct the hearings as swiftly, decisively and appropriately as possible. It may be naive and optimistic to hope for “amicably”.
Until it does all of that, the professional game cannot even dream of moving forward, attracting new sponsors and prospering once more.
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