The Durban High Court has delivered a damning judgement against the National Horseracing Authority based on unfair and haphazard handling of procedures and a conflicted office bearer.
James Goodman – never gave up
The case arose following an Inquiry finalised in Durban on 13 November 2015, where trainer James Goodman was found guilty of a contravention of Rule 73.2.4 in that he was the conditioner of the horse Aldric from which a urine specimen was taken after it had run on 10 October 2014.
The Board imposed a fine of R80 000 and in addition, acting in terms of Rules 84.6 and 75.12, ordered Goodman to pay costs incurred by the National Horseracing Authority (NHA) of R45 500.
On 13 November 2016 the veteran trainer applied for a high court review.
On Thursday Justice J Vahed set aside the findings of the NHA Inquiry and the R80 000 fine. The NHA have been ordered to pay the costs of the application .
Judge & Jury? Former NHA Chairman Jonathan Witts-Hewinson.
In his judgement, Justice Vahed found that attorney Jonathan Witts-Hewinson, representing the National Horseracing Authority, should have recused himself from an Inquiry involving the prohibited substance case initially brought against trainer James Goodman in December 2014.
The Judge highlighted an argument presented by attorney Bruce Armstrong of Shepstone & Wylie, acting for Mr Goodman, stating in effect, “… if a judge is in fact party to the litigation or in fact has a proprietary interest in its outcome then he is indeed sitting as a judge in his own cause…”
The judge also made reference to a letter written by Attorney Robert Bloomberg, who had initially assisted Goodman, which was addressed to NHA Chairman Andy O’Connor in June 2015 citing a number of reasons as to why he believed Witts-Hewinson should recuse himself from the case.
Bloomberg suggested in the letter that Mr Witts-Hewinson arrogantly showed a flagrant disregard for neutrality and independence and that him ‘acting as judge, jury and executioner can no longer be tolerated’.
It will be of concern that the National Horseracing Authority were also singled out as having conducted the inquiry process in a haphazard fashion and without structure, and even denied Goodman access to laboratory documents requested by him.
Witts-Hewinson, a former NHA Chairman and National Board Director of the NHA at the time he chaired the Goodman Inquiry, was also a panel member of the Inquiry Review Board, Appeal Board and also sat on a legal sub-committee of the NHA. He presently sits on the Nominations Committee of the NHA which appoints National Board Directors.
He is an Executive Consultant in the Cliffe Dekker Hofmeyr Dispute Resolution practice. According to the firm’s website, he has extensive experience in relation to arbitration proceedings and other forms of alternate dispute resolution. His areas of expertise are commercial litigation, intellectual property disputes, director liability and delinquency, insolvency law, product liability, unfair/unlawful competition, arbitration and alternate dispute resolution. Jonathan is a CEDR qualified mediator.
The Judgement can be read here
It will be interesting to hear how a vastly experienced attorney allowed himself to become as involved as he did at the risk of jeopardising legal processes at the racing regulator. The Sporting Post approached Mr Witts-Hewinson for a comment but he was out of office.
There was nobody available at the NHA Legal Department in Johannesburg to comment, but NHA CEO Lyndon Barends confirmed to the Sporting Post that they were currently digesting the judgment and the implications thereof and would release a statement when ready.
