In a dramatic development that may have wide-reaching implications for the sport, racehorse owner Advocate Brett Maselle has called on the Chairman of the National Horseracing Authority to take punitive action against Phumelela Gaming & Leisure.
This follows Maselle’s complaint to horseracing’s policing body alleging that the payment of bonus stakes paid by the Racing Association (“RA”) to its members in respect of certain designated races, discriminated against those owners who , like Adv Maselle, were not members of the RA and therefore did not qualify to receive the bonus stakes money.
Apparently the source of the funds used to pay the bonus stakes is derived from Phumelela and a small portion from the Thoroughbred Horse Racing Trust. As such it was alleged by Maselle that Phumelela was guilty of improper conduct.
The NHA appointed an Inquiry Board consisting of Judge Phillip Levinsohn and Advocate Guy Hoffman to investigate this complaint.
After hearing evidence from Adv Maselle and considering the various documents, the Inquiry Board concluded that the NHA (and therefore the Inquiry Board) did not have jurisdiction to deal with the complaint. It found further that even if it had jurisdiction, it would have been inclined to find that there was no prima facie evidence that Phumelela was guilty of any improper conduct.
This finding was handed down on 7 May 2012.
Maselle has now fired back and called on the Chairman of the National Horseracing Authority, Jonathan Witts-Hewinson to take action.
We quote in full from Maselle’s communication dated 31 May 2012 to the NHA:
Dear Mr Chairman,
1. As you aware, I was involved in an inquiry held by the NHA regarding bonus stakes paid by Phumelela to RA members. I took the view that the bonus payments were discriminatory practice and a breach of Article 4.1 of the NHA Constitution.
2. A finding was made by the appointed inquiry board that, inter alia, “…..we conclude that the NHA and therefore this enquiry board does not possess the necessary jurisdiction to deal with complaint insofar as it affects Phumelela. In any event, even if we had jurisdiction we would be driven to make a finding that there is no prima facie evidence whatsoever that Phumelela is guilty of any improper conduct.” I confirm that the NHA was represented at the second part of the inquiry by attorney Nic Roodt, who endeavoured to persuade the inquiry board to make the above ruling.
3. 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.
4. During the proceedings I made mention of an email received on 23 March 2012 by Adv Hoffman SC from Du Plessis who was clearly representing Phumelela at the time the email was sent. The email is set out below and speaks for itself:-
Sent: 23 March 2012 18:38
To: Guy Hoffman
Subject: RE: Resumption of Hearing – Adv Maselle
Dear Adv Hoffman
We hereby formally submit to you that the NHA only has jurisdiction over its members and does not have jurisdiction over Phumelela. Accordingly we shall not be attending the hearing.
Should you after proper consideration of our submission, come to a different conclusion, please provide us with full details so that we can refer the matter to our lawyers for consideration.
Rian du Plessis
5. The email clearly states that the NHA does not have jurisdiction over Phumelela. No matter what Phumelela and Du Plessis may say to the contrary, this is a clear repudiation of the contractual arrangement between Phumelela and the NHA. At the very least, it is a breach or repudiation of the Gauteng Gambling Act and/or its regulations. As a lawyer you are aware that intention is irrelevant for repudiation.
6. I have noted with some concern that the NHA despite being fully aware of the email and its contents has failed to take steps against Phumelela.
7. I set out hereunder the relevant rule regarding racing operators.
44. RACING OPERATORS
44.1 A RACING OPERATOR shall be bound by, and shall hold its RACE MEETINGS under the RULES and shall not hold a RACE MEETING at any place other than the RACE COURSE or RACE COURSES specified in its licence, except by permission of the NATIONAL BOARD.
44.2 A licence to RACE under the RULES shall only be granted to a RACING OPERATOR, which agrees to abide by and be bound by the CONSTITUTION and the RULES and which conforms with and conducts itself in a manner which conforms with legislation in force for the time being in the Province in which the RACE COURSE on which the RACING OPERATOR intends to hold RACE MEETINGS is situated.
44.3 A licence to RACE under the RULES shall be automatically cancelled if a RACING OPERATOR ceases to conduct itself in a manner which conforms with legislation in force for the time being in the Province in which the RACE COURSE on which the RACING OPERATOR intends to hold RACE MEETINGS is situated.
44.4 A RACING OPERATOR shall not be required to re-apply for a licence annually and a licence granted to a RACING OPERATOR shall endure until it lapses or is cancelled in terms of RULE 44.2 or 44.5 or until the disbanding of the RACING OPERATOR.
44.5 The NATIONAL BOARD may, in its sole discretion, after a hearing, cancel any licence granted by it to a RACING OPERATOR or suspend any RACING OPERATOR from holding RACES.
44.6 A RACING OPERATOR shall observe, abide by and enforce the CONSTITUTION and the RULES, and all instructions and decisions of the NATIONAL BOARD, made from time to time, failing which a RACING OPERATOR shall be liable to be suspended, or have its licence withdrawn at the discretion of the NATIONAL BOARD. A RACING OPERATOR shall furthermore submit all amendments to its constitution, memorandum and articles of association or other founding document or rules to the NATIONAL BOARD for approval.
44.7 Every RACING OPERATOR shall contribute to the funds of the NATIONAL HORSERACING AUTHORITY, the fees and charges set out in the RULES. Payment thereof shall be made upon demand by the CHIEF EXECUTIVE.
44.8 The accounts and all financial arrangements of a RACING OPERATOR shall be subject to inspection at any time by the NATIONAL BOARD or the CHIEF EXECUTIVE.
44.9 A RACING OPERATOR shall ensure that any STEWARDS or officials appointed by it in terms of the RULES consent to be bound by and abide by the CONSTITUTION and the RULES.
8. I expect action to be taken against Phumelela by the NHA (and not me).
9. I sincerely hope that the NHA will act independently.
We watch the progress of this matter with great interest. The story of David and Goliath revisited?