DEEP DIVE | Legal Take Part 3: Can the 2015 match-fixing scandal bans be challenged?
This piece was first published by News24, in three parts, on 30 November, 1 December and 2 December 2020.
The matter of safety is one of the most interesting elements to arise from the complaints made by the trio of players on Marawa Sports Worldwide (MSW) regarding the 2015 match-fixing saga.
This and other technical grounds for justification of players’ conduct are considered in terms of their impact on possible challenges to the validity of players’ sanction agreements.
A further important element arising from these complaints is the question of whether further players may still be criminally charged. It appears that no criminal charges have been brought against any players aside from ringleader Gulam Bodi, who was sentenced by the Commercial Crimes Court.
This question is answered below and its relevance is discussed in the context of possible efforts by players to escape the operation of their sanction agreements.
Furthermore, Alviro Petersen and Thami Tsolekile have, in effect, questioned whether there has been inconsistent treatment of players, saying or implying that other players may have transgressed the Cricket South Africa (CSA) Anti-Corruption Code (the Code), but have not been sanctioned.
These allegations concerning other players, which CSA has responded to, are serious. The detailed facts and the legal relevance of these allegations is discussed below.
Possible justification for players’ conduct
Speaking to Marawa, Petersen raised the impact his involvement had on his family’s safety, referring to players being taught in their anti-corruption education that “criminal mobs” are behind match-fixing.
He said that Craig Alexander, a fellow former Lions player approached by Bodi, had told him that Bodi had said “keep quiet, we all have families” when Alexander refused to become involved.
The Code requires that full details of approaches and of possible transgressions by other players must be reported “without unnecessary delay”.
In terms of the Code, it will always constitute unnecessary delay to report an approach after the match that it relates to.
However, the Code provides that it is a valid defence against any charge to prove, on a balance of probabilities, that the alleged offence was committed due to the player’s “honest and reasonable belief that there was a serious threat to his/her life or safety or to the life or safety of any other person”.
Petersen’s comments indicate that he may believe he has such a valid defence in the circumstances.
Petersen has already served his two-year ban, but he could conceivably still benefit from challenging the validity of his sanction agreement.
An important question would be why this was not raised by Petersen, if it indeed was not, at the time of negotiating his sanction agreement. This is aside from the question of whether there would be merits to a claim by Petersen that he has such a valid defence.
In addition, a player may be exonerated of an offence of failing to cooperate with the investigators – in respect of which Petersen and Lonwabo Tsotsobe both admitted guilt – by proving “compelling justification” for their conduct.
The Code requires players and other “participants” to comply with requests for information within a reasonable period of time and at least within fourteen days of the request, except in exceptional circumstances.
Raising these as legal points in challenging the validity of an already concluded sanction agreement may be framed as a mistake in contract. The principle of contractual mistake was explained in Part 2 of this series.
Players’ contracts bind them to the Code, but Petersen said they had not seen the content of the Code when the incidents took place. His comments on MSW imply that he believes it is questionable whether players could be found guilty of breaching the Code, as a result.
Players are automatically bound by the Code once they are selected for an international or domestic match. They are also bound by the anti-corruption rules of the International Cricket Council (ICC), which includes the ICC Anti-Corruption Code for Participants, on which the content of the Code is closely based.
Importantly, the Code gives players the responsibility to familiarise themselves with the rules contained in it. Without detracting from this duty, CSA is responsible for promoting awareness of the Code and educating players on it.
The prevailing possibility of criminal prosecution
In their 8 August 2020 statement, CSA affirmed that it had no influence or bearing on the functions of the Hawks, the National Prosecuting Authority (NPA) or the courts, and that the criminal investigation was beyond its remit.
In its 7 August 2020 statement, CSA quoted its anti-corruption officer and head of its Anti-Corruption Unit (ACU), Louis Cole – who led the investigation together with an independent attorney and former Head of Legal for the ICC, David Becker – as saying that all evidence gathered was shared with the Hawks when a criminal case was opened under section 15 of the Prevention and Combating of Corrupt Activities Act.
With reference to Bodi, Cole said that “the investigation into the involvement of the other players in the corruption case is ongoing as per the NPA’s press release on 22 October 2019”. This indicates that further players could possibly be criminally charged.
In line with Cole’s comments, a sanction agreement between a player and CSA would not bind the law enforcement authorities.
Criminal proceedings may be instituted against any player, in spite of a sanction agreement and regardless of whether CSA pursues a criminal case.
One expects that the sanction agreements would be accurate in reflecting the true state of affairs in this regard.
In regard to Tsotsobe’s comment that the Hawks have made contact with him, which he believes shows that he was misled, if he laboured under a reasonable mistake on the legal status of his sanction agreement and believed that the law enforcement authorities are bound to it, with the effect that this prevents the Hawks and the NPA from taking action against him, he may be able to argue that he should not be bound by the agreement.
Tsotsobe could possibly discharge the onus of proving that the agreement should be set aside on this basis, although proving that this misunderstanding was reasonable in the circumstances would be an exceedingly difficult hurdle to clear, especially with him having been legally represented in entering into the agreement.
Other players implicated by the complainants
Thami Tsolekile said capped Protea and fellow former Lions player, Vaughn van Jaarsveld was the first player approached by Bodi during the Africa T20 competition, and that van Jaarsveld had failed to disclose the approach, as required.
Petersen also questioned whether Van Jaarsveld had complied with his reporting obligations, and made reference to what he viewed as inconsistencies in information in the public domain pertaining to Van Jaarsveld’s conduct at the relevant time.
According to Tsolekile, Van Jaarsveld was "defended" by the investigators because he is white.
This allegation was rejected in no uncertain terms by Justice Bernard Ngoepe, who said that both black and white players were investigated and charged.
CSA stated that Alexander and Van Jaarsveld had disclosed Bodi’s approaches as required by the Code and the Prevention and Combating of Corrupt Activities Act and that their involvement in the match-fixing scheme "was fully investigated not only by the investigating team but also by the Hawks and they were cleared of any wrongdoing".
CSA said it undertook to protect the identities of Alexander and Van Jaarsveld during the investigation – as is the default requirement in terms of the Code where players are not formally charged – in the interests of their safety and that of their families.
Tsolekile also alleged on (MSW) that Protea Robbie Frylinck had fixed a match during the Champions League T20 competition.
Tsolekile said he had asked "the independent officers" about this and was told it would be followed up on. CSA quoted Cole as saying that Tsolekile had not raised this during his interviews, but that Alexander and Van Jaarsveld both reported that Bodi "had mentioned this as part of his approach".
CSA said that, after a thorough investigation, there was no evidence supporting the allegation concerning Frylinck and that the matter had been referred to the ICC for investigation, as it fell within its jurisdiction.
According to CSA, Bodi disclosed that he would bandy around the names of prominent cricketers as a tactic to put players at ease when he approached them.
If a sanctioned player could prove that another player was guilty of similarly serious transgressions, but has not been sanctioned or possibly even that they received a significantly lighter sanction, the player might consider an argument that a value judgment should be exercised in their favour and a decision made that they should, in the interests of fairness, consistency and equitable treatment, not be subject to the sanction to which they have agreed – or that they should be subject to a lighter sanction.
In technical terms, circumstances such as these could possibly be framed as a material mistake in contract.
The way forward
CSA’s behind-closed-doors views on the complaints raised by Petersen, Tsolekile and Tsotsobe will ultimately determine whether there is scope for substantive discussions with the players on the issues which they have raised, or for a negotiated or mediated resolution.
The bans prohibit the ex-players from involvement in any local or international official cricket, including as members of the media. This severely limits a professional sportsperson’s options to make a living through the use of their knowledge and expertise, and having a ban overturned or reduced, aside from restoring pride, reputation and dignity, could be life changing.
With the reopening of the investigation being mooted by some and CSA potentially being formally presented with Tsolekile’s complaints, CSA will need to apply its mind to the grievances and determine whether it is satisfied with the investigation it carried out and the sanction agreements that were concluded.
The national cricketing governing body will have to decide whether it needs to take action to rectify any shortcomings to ensure fair outcomes.
Mention was made on MSW of the possibility of the appointment of a commission of inquiry into the match-fixing saga. Our Constitution provides the President of the country (Cyril Ramaphosa) with the responsibility for making such appointments and there is no indication that any thought has been given to this by the President or the Minister of Sport, Arts and Culture, Nathi Mthethwa.
It remains to be seen whether any of the ex-players will, or will need to, institute legal proceedings to have their complaints heard in an effort to obtain the relief they seek.
Players who follow the legal route will bear the difficult burden of proving they should not be bound by their sanction agreements.
They have aired their grievances on a public platform, pricking the ears of the cricketing world and jogging memories back to the match-fixing scandal of 2015. But they would need to present relevant and impactful evidence in a legal forum to support their claims.
- Edited by Sibusiso Mjikeliso.
Disclaimer
The content published on the website of Miles Chennells & Associates, including articles, is provided for general purposes only and does not constitute legal advice.
Accordingly, we accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in our publications.
Where appropriate, our publications contain reference to sources from which information was obtained and/or links to such sources.
In the event that you seek to obtain legal advice in respect of any particular matter, please make contact with the practice in order to enlist our services.
Copyright © 2020 Miles Chennells & Associates. For permission to reproduce any of our publications, please contact us at miles@chennellslaw.co.za.
Please refer to the full terms of use on our website.