Herschelle Gibbs's appeal against the ban imposed by Chris Broad following an incident during the first Test between South Africa and Pakistan at Centurion has been rejected by Richie Benaud, the ICC's code of conduct commissioner.
The original punishment was a two-Test ban, but this will now be one Test, one Twenty20 and one ODI as the ban has to apply to the next matches the player is scheduled to play. By appealing, Gibbs was able to take part in the second Test.
He will now miss the third Test starting at Cape Town on Friday as well as the first two fixtures of the limited-overs series between the two sides that follows. Cricket South Africa are preparing a response to Gibbs's suspension according to media manager Gordon Templeton.
The charge against Gibbs, which was laid by Malcolm Speed, the ICC's chief executive, related to an incident that took place shortly before the lunch interval on the fourth day of the match, when Gibbs's comments were overheard through a stump microphone on the ground.
Graeme Smith said that South Africa were disappointed to lose Gibbs. "It's a tough one. We have one or two gripes with the ICC, I guess, and maybe this is not the forum to discuss it.
"Maybe we need to get on the phone with Dave Richardson and Malcolm Speed and discuss these things. We just want to see consistency in decision making around the world. We've experienced things that haven't been dealt with." That latter remark seems a clear reference to the crowd problems the South Africans experienced in Australia last year.
Benaud spoke at length on the telephone to Gibbs and his legal representative on Wednesday, and announced his decision today.
"It was put to me that the fact the remarks in question were heard through stump microphones on the ground should invalidate the whole matter," Benaud said, explaining that the ICC was aware that there were issues with stump microphones not being switched off at the right times. "That though is ICC policy rather than a Law or Playing Condition of the game and Chris Broad, in his decision, gave Gibbs full mitigation for the fact that the stump microphones had been left on by the television network.
"With the benefit of some experience I am able to add that players, no matter where they may be, should always bear in mind that a microphone could be live. That does not just apply to stump microphones used by television networks, but it could be in a radio studio or in a press conference with the print media. There is no malice about it, but it could happen just because someone has not pushed a button or pulled a switch.
"It is precisely the same in the television commentary box for a television commentator. If you do not use the words, they do not get to air."
But Benaud was at pains to stress that he did not believe there was any evidence that Gibbs' comments were in any way racial motivated. "I certainly do not consider Herschelle to be a racist and I take great exception to the suggestion, in the same way I believe Chris Broad would object [to suggestions his finding would do the same]."
Benaud also expressed surprise South Africa's players did not draw the attention of match officials to the abuse they were receiving from sections of the crowd. "Talat Ali [Pakistan's manager] asked a very pertinent question on whether or not the captain or the players, said to have been abused on the boundary, had brought the matter to the attention of the umpires. The answer was "No, only to the security officers.
"I find it extraordinary that apparently the umpires were never brought into the problem by the captain, or the players. Or by Gibbs himself.
"On the question of procedural matters, I am satisfied that Chris Broad handled those in straightforward fashion, that no justice was denied, the player admitted using the words and unfortunately they went to the world. My view is that the sentence imposed by Broad is correct and accordingly the appeal is dismissed."
Gibbs was found guilty of a Level 3 offence, clause 3.3 of the Code which prohibits using "...any language or gestures that offends, insults, humiliates, intimidates, threatens, disparages or vilifies another person on the basis of that person's race, religion, colour, descent or national or ethic origin."