Suspended Cricket South Africa (CSA) CEO Gerald Majola withdrew from his disciplinary hearing on Wednesday in order to approach the Labour Court, his lawyers said.
"The reason for his withdrawal is that the chairperson refused to adjourn the proceedings to enable Mr Majola to approach the Labour Court before the proceedings resumed," his legal representatives Max Boqwana and Pumezo David said in a statement.
Majola's legal team believed the process was unlawful and argued that the CSA board had already cleared him of any wrongdoing in respect of insufficient disclosure of bonus payments received by him and other staff members in 2009.
"He would be participating in a process that constitutes a fundamental breach of his constitutional right to fair labour practices," his lawyers said. "Mr Majola contended that the CSA board had fully dealt with all the complaints and with full knowledge of all the facts and its rights.
"Accordingly, in law and equity, it was precluded from re-opening the matters." Majola's lawyers were referring to CSA's internal committee of inquiry held in mid-2011, headed by CSA's then acting president AK Khan.
"After the Khan Committee had filed its report, the board was satisfied that Mr Majola had not committed any serious misconduct.
"Thereafter, an auditing firm, KPMG, conducted a forensic investigation. "The board then took its decision to regard the matter as closed."
It remained closed until Sports Minister Fikile Mbalula appointed the Nicholson Committee, in November 2011, when the bonus saga refused to die down.
The Nicholson Committee made several recommendations to CSA's board, including that Majola face a disciplinary hearing about the 2009 bonus payments.
Majola's lawyers further argued that the National Sport and Recreation Act "does not give the minister the power to appoint a committee of inquiry.
"In light of the aforegoing, Mr Majola urged the chairperson to rule that the institution of the disciplinary inquiry was unfair on the following basis: an invalid or unlawful act or decision cannot lead to a fair hearing or outcome."
Meanwhile, CSA said in a statement the disciplinary hearing would continue in Majola's absence and that "both Mr Majola and his legal team understand the consequences of their actions".
Advocate Karel Tip, chairperson of the disciplinary hearing, ruled on Friday that the CSA board was, in the circumstances, entitled to charge Majola at this stage, "notwithstanding that it had previously decided that the matters were closed".
However, in respect of the lawfulness of the actions and decisions of Mbalula and the Nicholson Committee, Tip said he did not have "the legal capacity to rule on the unlawfulness or otherwise of the impugned processes and/or decisions".
He was bound to regard them as valid until they were set aside. "In view of the fact that the invalidity of the processes followed, and the decisions taken by the minister and the committee are central to Mr Majola's defence, Mr Majola had no option but to withdraw from the disciplinary enquiry," his lawyers said.
"He will now approach the Labour Court to pronounce on the lawfulness of the impugned processes and decisions." – Sapa