Cricket transformation hearings submission to be made 'under oath', ombudsman can allow cross-examination

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Advocate Dumisa Ntsebeza (Gallo)
Advocate Dumisa Ntsebeza (Gallo)

Submissions to the cricket transformation hearings that begin this month will be made under oath and the ombudsman Advocate Dumisa Ntsebeza will have the power to allow cross-examination, it was revealed on Friday.

Cricket South Africa (CSA) published the Social Justice and Nation-building (SJN) project transformation hearings terms of reference as well as the rules of the hearings on Friday.

The much-debated hearings, which were postponed in May, will be "inquisitorial in nature" while the ombudsman "will use the civil standard of proof in making his findings".

READ | New Cricket SA chair to meet ombudsman ahead of transformation hearings restart

Ntsebeza will have the licence to question and interrogate submissions and those defending themselves against racial discrimination accusations to do the same.

"The Ombudsman will observe the principles of natural and open justice," the procedural rules said.

"This means that the Ombudsman will give a fair hearing to the participants.

"For the purpose of clarity, the Ombudsman will allow participants to make written submissions by means of sworn statements and affidavits; give participants who have been invited to make oral representations before the Ombudsman an adequate opportunity to make their representations; give adequate notice to each participant invited to make oral representations and afford the [alleged] perpetrators an opportunity to respond to allegations levelled against them after notifying them."

David Becker sent a legal letter to Ntsebeza days before the hearings were meant to start in May, forcing their postponement to July.

Becker, who represents CSA director of cricket Graeme Smith and Anti-Corruption Unit chief Louis Cole, questioned the hearings' legal framework and terms of reference at the time.

Some disaffected players took to releasing portions of their stories of alleged discrimination to the media, while Ntsebeza criticised the late postponement of the proceedings.

However, with the legal loose ends sown up, the project is all clear to start.

CSA also confirmed that the hearings would be live-streamed to the public but former players, coaches or administrators making submissions could do so anonymously.

Some key points in terms of reference said:

The Ombudsman may make findings on a balance of probabilities provided that, where a factual dispute cannot be resolved without cross-examination, the Ombudsman shall, in his sole discretion, either allow cross-examination or record the factual dispute without resolving it.

The decision to allow cross-examination of parties who appear before him will be at the sole discretion of the Ombudsman.

The Ombudsman may consider materials of any nature including submissions, opinions, statements, affidavits, oral testimonies under oath, academic materials and so on, provided that allegations against any individual or organisation shall be made only on affidavit or via oral testimony under oath.

No person may interfere with how the Ombudsman conducts his investigations and hearings and reaches his conclusions and recommendations.

Ntsebeza and his team have until 30 September to conclude their proceedings and submit a report with findings and recommendations to the new CSA board.

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