The ongoing exchange and sparring session between owner Advocate Brett Maselle and National Horseracing Authority Chairman Jonathan Witts-Hewinson continues.
We would suggest that first-time readers familiarise themselves with the background in the related posts listed.
In this exchange, Witts-Hewinson replies to Advocate Maselle’s email of 13 June 2012.
The Maselle clarifying comments/ replies are contained in red text.
It seems to me that you have two separate issues which you are seeking to deal with. There are three issues. See below. The first, as I understand you, relates to your allegations relevant to what you term the repudiation by Phumelela of its contractual relationship with the NHA. That is an issue, as I have informed you, which I will place before the board of the NHA, at its next meeting. I place on record and confirm that you have already decided this issue. See your previous email and my comments thereto.
The second issue which I understand you to complain of, is the outcome of the Inquiry Board proceedings to which you have referred. You will appreciate that it would be entirely irregular for either the board or me to usurp or undermine the function, proceedings or findings of an Inquiry Board. I believe that you have either misconstrued or misunderstood my complaint. In my first email I stated “The obiter and uncalled for statement of the inquiry board that it “would be driven to make a finding that there is no prima facie evidence whatsoever that Phumelela is guilty of any improper conduct” is unfortunate and the finding curiously does not set out all the relevant facts in this regard. I specifically asked the inquiry board to require the attendance of Larry Wainstein at the inquiry in terms of rule 84.1. inasmuch as the RA refused despite an agreement in the presence of the inquiry board to provide me with a full copy of the stakes agreement. The NHA notified Wainstein and Rian Du Plessis that they should attend the inquiry. Both individuals refused to do so and did not attend. No steps have been taken against these individuals by the NHA. Had the inquiry board enforced the rules and ensured the attendance of Wainstein and Du Plessis or any other person, I believe that the throw away statement – which was tossed in – would not have been made. I question the inquiry board’s motives when they raise the issue of there being no “prima facie” evidence when there was no need to do so as they had already found that they did not have jurisdiction to determine the issue and my hands were tied so to speak by the board not securing the attendance of the relevant persons. Had these gentlemen attended the hearing as required, I have no doubt that the whole truth regarding the bonus stakes would have come out and I would have established a case on a balance of probabilities.”
As is evident, my complaint purposely relates to the Board of Inquiry making a finding on the “dishonourable conduct” issue without all the facts and when the Board of Inquiry found that it had no jurisdiction to deal with the issue. Why make this uncalled for obiter finding? Put another way, the Inquiry Board had no right to make any kind of finding on an issue that it says it has no jurisdiction to determine.
I do not propose engaging in further debate with you regarding the complaints set forth in your correspondence. I do, however, point out that certain of your assumptions which underlie your criticisms of me, are factually incorrect. I would have preferred that you indicated to me what the “incorrect” “assumptions” are, so that I could deal with them.
Whatever you might think in regard to the composition of the board, you must surely appreciate that the NHA cannot act beyond the confines of the Constitution. I, as chairperson, have no “special powers”. I will add your latest communication to the papers to be placed before the board, relevant to the first of the issues which you have raised in terms of your complaint. You will be advised of the board’s decision once the matter has been dealt with by the board. I will be grateful if you would advise me of your powers as chairman. What can and can’t you do?
The third issue relates to you asking “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”. I dealt with this in my email to you and ended off with the following: “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.” Please ensure that the National Board deals with what I have raised in this regard.
The email carries the signature of Jonathan Witts-Hewinson , Director Dispute Resolution: Litigation, Arbitration and Mediation , Cliffe Dekker Todd Inc.