Johannesburg - In finding that Graeme Smith did not discriminate against Thami Tsolekile, because he is black, Cricket SA’s arbitration process also criticised CSA for trying to change the nature of its argument during the process.
The arbitrators, Adv. Ngwako Maenetje SC and Adv. Michael Bishop found that Smith did not play a role in Tsolekile not being selected for the Proteas between 2012 and 2014, and that Tsolekile not playing was not because Smith discriminated against him because of his race.
Cricket SA sought to argue during the process, that Smith should have supported Tsolekile’s selection with the then selection panel, but the arbitrators found that Smith accepted the final team as presented to him by the selectors at the time.
Tsolekile had said in media interviews and in testimony before the Social Justice and Nation Building hearings last year that Smith had blocked his path into the national Test team specifically, for a series against New Zealand in 2013.
Tsolekile, who testified at the arbitration hearing, said he’d been told by the then selection convenor Andrew Hudson and a member of the panel, Linda Zondi, that Smith did not want him in the side, and that in fact Smith would quit the team if he was selected.
Smith, Hudson and Zondi all denied that assertion. Smith told the arbitrators that as captain, other than an advisory role, in which he shared his thoughts about the team with the head coach, he had no influence on selection.
Hudson, currently a member of CSA’s Board of Directors said he had never had a conversation with Tsolekile about being picked for the series with New Zealand. “The decision not to select him to play was”, Mr Hudson stated, “the view of the selection panel.”
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Tsolekile also said he’d spoken to Zondi around the same time who had told him it was because of Smith that he wasn’t being picked. “However, Mr Zondi only became a selector in July 2013 – several months after the New Zealand series. Mr Tsolekile accepted that the 35 conversations with Mr Zondi may have happened later in the year,” the arbitration panel’s report noted.
“But (Tsolekile) insisted Mr Zondi had told him Mr Smith was to blame for his exclusion. Mr Zondi denies this. His evidence was: ‘Mr Smith did not influence the decision of the selectors not to select Mr Tsolekile as a wicket-keeper by reason of his race.’ Rather, in Mr Zondi’s experience, Mr Smith ‘would get the team from the Convenor and at the moment the selection panel said this was the starting XI, he would accept that.’ By contrast, Mr Zondi had actively lobbied for the selection panel to include Mr Tsolekile. He was ultimately outvoted.”
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CSA’s legal team argued that Smith, as captain had a duty to speak up on Tsoelkile’s, behalf, and by failing to do so, it constituted discrimination. That argument was also dismissed by the arbitrators, which argued that CSA failed to show causation. “We cannot conclude, on the evidence before us, that if Mr Smith had argued for Mr Tsolekile’s inclusion, he would have been selected. We simply do not know. Accordingly, even if Mr Smith had a duty to speak, we cannot find that his failure to do so constituted unfair discrimination.”
The arbitrators also criticised CSA, for only adjusting to that particular argument, when Smith was cross-examined. “Whether there was a duty on Mr Smith to speak, whether he breached that duty, and whether his silence caused Mr Tsolekile not to be selected appear nowhere in the pleadings. The question is whether CSA’s reliance on an unpleaded omission caused prejudice to Mr Smith. In our view it did,” the arbitrators stated.
The arbitration award directed CSA to pay Mr Smith’s costs, that include the cost of two counsel.