The hotpot of racehorse owner Advocate Brett Maselle’s recent complaint to horseracing’s policing body regarding bonus stakes paid by the Racing Association continues to boil and simmer.
In terms of our policy to promote transparent and balanced reporting, we publish herewith an unabridged exchange between NHA Chairman Jonathan Witts-Hewinson and Advocate Maselle. This email dated 13 June 2012 was made available to us by Advocate Maselle.
Kindly note that Advocate Maselle’s responses are published in red:
Dear Mr Maselle,
I refer to your email communication of 31 May 2012, as well as our subsequent brief exchanges in regard thereto.
I have now had an opportunity to consider your complaint, as detailed in your communication of 31 May 2012, on a proper basis.
In my respectful view, the email communication which you have quoted in paragraph 4 of your communication under reply is taken out of context. The particular email, as far as I can establish, refers to the limited issue placed before the Inquiry Board, and ignores the context of the other exchanges which had preceded the same.
You are entitled to your view however I disagree with it. The view that you have taken is not only wrong it is irreconcilable with the clear wording of the email. Furthermore, you were not the author of the email. For you to aver that I have taken the email out of context, without first having ascertained all the facts and the context from its author, is with respect astonishing and incorrect. In any event, the intention and context is irrelevant. I have specifically directed your attention to this aspect in my earlier communication. The Phumelela email is a repudiation of the agreement between the NHA and Phumelela. Please see the case of Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA). The NHA rules have been repudiated and/or contravened by Phumelela.
As you know, the enquiry proceedings to which you have referred were dealt with by an Inquiry Board comprising Judge P Levinsohn and Advocate G I Hoffman SC. I am constrained to say that I am troubled by the cavalier remarks which you include in your complaint addressed to me.
You may see my remarks as cavalier, I see them as a correct representation of what transpired. The status of the persons who comprised the Inquiry board is irrelevant. What is relevant is whether the Inquiry board acted correctly and made the correct finding. I stand by my comments.
If you have regard to the findings of the learned members of the Inquiry Board, you will see that they were most mindful of the relationship between the NHA (on the one hand) and Phumelela (on the other). Phumelela’s position as a licensed operator, and the fact that it is bound by [the NHA] constitution and rules is specifically dealt with and recognized in paragraph 7.1 of the finding. That notwithstanding, the Inquiry Board reached the conclusions which it did with due regard to the specific nature of your complaint and the facts pertaining thereto.
I repeat what I have stated above. You appear to have misconstrued the issues. I do not see the relevance in the finding that Phumelela is bound by the NHA constitution and rules. This is a known fact to all however Phumelela is the exception when you have regard to the Phumelela email. My complaint set out in my email of 31 May 2012 regarding the Phumelela’s email was not part of the Inquiry board’s mandate and the board did not make any finding on it.
I do not agree with the conclusions which you set forth in paragraph 5 of your complaint. The factual day to day interactions between the NHA and Phumelela demonstrate quite the contrary.
I note your disagreement which is not surprising. You may want to read the following articles on the Sporting Post website, namely http://www.sportingpost.co.za/2012/05/31/frontpage/maselle-dispute/ and http://www.sportingpost.co.za/2012/06/01/frontpage/maselle-nha/ It appears that you may be in the minority regarding your views. The day to day interactions between NHA and Phumelela demonstrates nothing more than a relationship. The Phumelela email suggests something contrary to what you seek to rely upon.
As is to be expected in any relationship such as this (i.e. between a regulator and an operator) there are differences and issues which do arise, from time to time, in the normal course. In my experience, it has been possible to deal with those issues in a proper and appropriate manner, as and when the need has arisen.
This comment appears to suggest that the NHA may treat Phumelela differently to other members of the NHA and it will continue to do so. As far as I am concerned, I take umbrage at this. Nobody should be treated differently. The constitution and rules should be applied uniformly. The NHA should be acting independently and impartially at all times. The “differences and issues which do arise, from time to time” between the NHA and Phumelela, is not the issue. The complaint that I have lodged does not relate to an issue between Phumelela and the NHA only, it relates to Phumelela and the NHA and affects every member of the NHA as well as the NHA’s integrity.
Be the aforesaid as it may, it is my intention to place your complaint (as well as this reply) before the board of the NHA, at its next board meeting. If there is any further detail or information which you would like me to place before the board at that meeting, relevant to this matter, then I would be grateful if you could furnish me with that information at your earliest reasonable opportunity. Should the board believe that your complaint warrants further action, then I will inform you accordingly.
The remarks set out in this paragraph are remarkable. You have already made up your mind regarding my complaint. There are two individuals who are representatives of the operator on the NHA board. The RA has a secured seat on the board and in my opinion is a hand maiden of Phumelela. Rob De Kock has made no bones about the fact that he dislikes me. I have little doubt that your views will be rubber stamped.
More than a year ago I was informed in writing by Mr Rob de Kock, the NHA Chief Executive that “the Management of the NHA is already engaged in a process in terms of which the entire set of rules is being reviewed to identify those provisions which are no longer applicable or which have become outdated or obsolete.” I do not know the progress made, however, from an outsider’s point of view it appears that the NHA may be dragging its heels or it has failed to adequately communicate the progress of its endeavours. I mention the change of rule issue as it has an impact on my complaint. In this regard:-
1 The NHA sent a notice to trainers which reads as follows: “As a result of growing public concerns (real or perceived) regarding the influence of Betting Operators over Trainers, the National Board of the National Horseracing Authority has agreed that with effect from 01 January 2013 the NHA intends to amend its rules so as to prohibit Trainers being sponsored by a Betting Operator, i.e. any institution that offers betting on horseracing (“the proposed amendment”). The purpose of the proposed amendment is to protect the integrity of the sport, prevent undue influence by Betting Operators over the Trainers and ensure that conflicts of interest do not arise in relation to the duties owed by Trainers to their employers on the one hand, and their Betting Operator sponsors, on the other. Any Trainer that has an existing contract (as at 24 May 2012), that could lead to the breach of the proposed amendment, is requested to submit a copy of their contract together with motivation as to why they should be exempt from the proposed amendment for the remaining period of their sponsorship contract.”
2 In terms of the above:-
2.1 the NHA seeks to amend its rules which will interfere in contractual relationships with trainers and Betting Operators.
2.2 the reason for the amendment is to protect the integrity of the sport of horseracing, to prevent undue and to prevent conflicts of interests.
3 There can be no dispute that until the rule comes into operation the NHA will not have jurisdiction over a trainer’s contract with a Betting Operator.
4 You and in particular the NHA are aware that members of the RA are in the minority of owners throughout the whole of South Africa. The Phumelela / RA bonus incentive scheme discriminates against ordinary owners (i.e. the majority). RA members are the only owners who are able to benefit from the bonus scheme. I am of the view that this type of conduct affects the integrity of the sport of horseracing, causes undue influence and a conflict of interests.
5 As a consequence of that set out in 4. above, I see no reason why the NHA board cannot intervene and amend its rules – similar to the example set out in 1. above – to prevent Phumelela, a Betting Operator from entering into agreements which discriminates against owners / colour holders.
The communication carries the email signature of Jonathan Witts-Hewinson, Director Dispute Resolution: Litigation, Arbitration and Mediation – Cliffe Dekker Hofmeyr Inc