Labour lawyers differ with Cricket SA’s legal opinions on Boucher’s non suspension

The dates for Mark Boucher’s hearing may be set for May but the charges against him are so serious that his employer Cricket SA (CSA) should have put the embattled national team coach on suspension.

This is the opinion of two labour lawyers who weighed in on the Boucher saga.

Boucher was charged with gross misconduct last month and will face an independent disciplinary hearing in May where CSA will argue for a sanction of dismissal. But he has not been suspended.

The charges emanate from findings from the Social Justice and Nation-building (SJN) report released in December which found Boucher engaged in racist behaviour by his participation in a team song which referred to Paul Adams as “a brown sh*t” during the team’s fines meetings when the two were Proteas teammates.

SJN ombudsman Dumisa Ntsebeza SC said his findings were “tentative” and called on CSA to investigate further. The CSA board decided in January not to suspend Boucher on that basis.

CSA chairperson Lawson Naidoo assured members of the portfolio committee on sport in a virtual sitting this week that “the board received opinions from two senior legal experts who told us there were no legal grounds for precautionary suspension”.

Naidoo told the committee the board “unanimously agreed it would be inappropriate to suspend Boucher" as “it will bring us unnecessary litigation”.

Labour law expert Dunstan Farrell said it is “irrelevant” whether the SJN report is tentative .

“If the misconduct is deemed to be as serious as alleged, Boucher should not be going to New Zealand with the Proteas team and should not be coaching the team when Bangladesh visit,” said Farrell.

“If an employer is going to argue the irretrievable breakdown of the employment relationship, suspension as soon as possible should be implemented.”

Farrell, from Farrell Incorporated Attorneys, said the onus on CSA will be to prove their case on a balance of probabilities, as opposed to beyond reasonable doubt.

“As I understand it, there is no doubt Boucher said what he said to Adams.

“In disciplinary enquiries the onus is not beyond reasonable doubt but on a balance of probabilities.

“In criminal law the onus is beyond all reasonable doubt.”

Farrell, however, said the charges relating to Boucher’s conduct towards his former assistant coach Enoch Nkwe and Black Lives Matter do not appear to be that “obvious”.

“I ask the question whether a simple person or cricketer has the wherewithal to deal with such an important and significant issue as Black Lives Matter.

“My personal view is t there is also a lot of white ignorance around the issues of Black Lives Matter,” said Farrell, who views the matter that has divided opinion across the racial divide as “an opportunity to adopt a more conciliatory approach and use the opportunity to educate the cricket fraternity, the sporting community and the SA population as a whole on the issues of racism”.

Farrell said the non suspension of Boucher may make it difficult for CSA to argue the employment relationship has broken down irretrievably.

“What is also significant in the Boucher disciplinary issue is that he has not been suspended and will be travelling with the South African cricket team to New Zealand and SA will be managing the incoming Bangladesh tour this year before the disciplinary enquiry takes place [from May 16 to 20]. 

“It will be very difficult for CSA to argue t]he employment relationship has irretrievably broken down and therefore the contract of employment should be terminated.”

Another labour lawyer who did not want to be named said while the details of the two legal opinions CSA received are not public, there is no reason why the organisation could not have effected a suspension.

“Those two legal opinions which CSA sought can be challenged. Company law suggests if the person is investigated they should get suspended so as not to influence the investigation.

“The opposite is happening. The investigated person gets players to testify on his behalf. What CSA is doing is exactly what company law warns against.”

Former player Omphile Ramela, who also served as the previous players' union, Saca, president and director on the CSA interim board appointed by sports minister Nathi Mthethwa,  agreed with Farrell.

Ramela said "it is not fair and not right" on the players to allow Boucher to be within the team environment.

"You can’t expect someone who is an alleged perpetrator to be in the same environment as the victims. It just does not make sense."