There is a famous poem by Lewis Carroll called ‘The Walrus and the Carpenter’, writes Robert Bloomberg.
One of the verses reads: “The time has come the walrus said, to talk of many things: Of shoes and ships and sealing wax. Of cabbages and kings. And why the sea is boiling hot and whether pigs have wings.”
So read on dear friends, read on…
The press release published last Friday afternoon by the National Horseracing Authority advising that on 14 May 2021, a full bench of the South Gauteng High Court upheld an Appeal by Afresh Brands Cape (Pty) Ltd and Afresh Brands KZN (Pty) Ltd and ordered the NHA to deliver information , strictly in compliance with the terms of the Promotion of Access to Information Act, Act 2 of 2000 (PAIA), is completely misleading and selective in its content.
It in fact borders on arrogance as it makes no mention of the fact that the NHA was “ordered to pay the costs of the application (including the wasted costs of the postponement of 13 March 2018), such costs to include the costs of two counsel where so employed.”
Robert Bloomberg – ‘this simply cannot continue!”
They downplay the fact that they failed to comply with the Afresh PAIA request and flippantly state that they are now “at liberty to proceed with the inquiries” but then add that they must still supply “the information requested by Afresh.”
Well, if it was that simplistic, why then did they not just comply with the PAIA request in the first place and avoid all of this litigation?
The court has ordered that the NHA “is directed to comply fully with the applicants’ “Request for Access to Record of Private Body.” In other words, if they can’t provide a specific document requested, then they had better have a damn good reason.
They also of course omit to state that these matters involving 13 trainers and 21 caffeine positives, has been ongoing for nearly 4 years!
Common sense would decree that you look at the end game before you decide to litigate. You can decide for yourself at the conclusion of this article as to whether there is any logic, and/or financial sense, in all of this.
It is alleged that the cause of the caffeine positives is feed contamination. This is disputed and understandably challenged by Afresh.
The NHA has already indicated in a letter from their in-house legal advisor at the time, Deanthan Moodley, dating back to 21 December 2017, that at the inquiry, “the presenter will request that a charge be preferred against your respective clients…..and a penalty of a warning will be recommended to the inquiry board.”
This was somewhat sly as although they do not intend fining the trainers, a ‘guilty’ finding would nonetheless mark an indelible and unjustified stain on their record. In essence this therefore only revolves around the disqualification of the horses and a redistribution of the stake cheques.
It is imperative to point out that it has been irrefutably scientifically proven that in respect of caffeine, anything under 10,000ng/ml in urine and 2,000ng/ml in plasma, has no pharmacological effect on a racehorse.
This is backed up by the fact that the Olympic threshold for human athletes is 12,000ng/ml.
The threshold level/limit for horses in SA is a preposterous 50ng/ml – hence the fact that we have had at least 30 caffeine positives over the last 5 years.
As the highest concentration level in respect of the 21 caffeine positives was only 613ng/ml in urine and 100ng/ml in plasma, there is no way that the result of any of those races was affected.
In addition, one of the horses was owned by Mayfair Speculators and their portion of the stake cheque is R332k.
As there is no chance of the NHA and/or the Operator successfully reclaiming this money, and as the Operator in question, Gold Circle, has indicated that they will most certainly not, and understandably so, ‘shell out’ these additional monies, how can you then demand that some owners still refund stake monies when others are exempt therefrom, intentionally, or otherwise?
Afresh, most importantly, have been afforded “a right to participate, be heard and present evidence in any planned inquiry proceedings.”
They have already made it clear to the NHA that at the very first inquiry, they will challenge:
- the testing methodologies of the NHA laboratory
- the threshold level/limit of 50ng/ml and
- the constitutionality of the interpretation of the ‘strict liability’ rule.
In virtually all major racing jurisdictions, if you can show as the trainer that you took all reasonable precautions to prevent the finding of a particular positive, the Jockey Club in question will not make a finding against you as the trainer in your personal capacity.
In this country if you are a trainer of a horse that tests positive for a prohibitive substance you are automatically guilty of an offence. You cannot discharge the onus or burden of proof.
This is so unconstitutional it’s scary!
This aspect has never been challenged in a court of law before because of the costs attached therewith. But Afresh will do so, and in my professional opinion I have no doubt that the NHA will lose accompanied by a massive costs order.
The very first conviction will result in Review proceedings before the High Court and Afresh will go all the way to the Constitutional Court if necessary, of that I have no doubt.
How many years do you think that will take and at what financial cost to the industry?
Some pertinent additional facts:
On 13 August 2018, I made a formal application to the NHA CEO, Lyndon Barends, accompanied with much supporting documentation, to set aside the caffeine matters. This included a letter from Afresh’s attorney, wherein they made their future intentions abundantly clear – a fact which the NHA have sadly chosen to ignore at their peril.
Past NHRA CEO Lyndon Barends (photo: hamishNIVENPhotography)
My letter contained 25 important submissions for consideration, the last 5 of which and concluding paragraph, stated as follows:
- “The maxim “justice delayed is justice denied” is very applicable here. The 1st caffeine positive dates back to July 2017;
- Settlement of these caffeine matters will save the NHA and the horseracing industry a fortune across the board;
- Settlement of these caffeine matters will render the High Court case with Afresh Brands, redundant and irrelevant and will similarly save the NHA and the Operators a huge amount of money;
- I spoke with Robert Liversage, attorney for Afresh, earlier, and he confirms that should you elect to withdraw the prosecution of the above trainers in these caffeine related matters, that they will withdraw their High Court action against the NHA;
- Proceeding herein, would, in our opinion, cause additional and unnecessary financial damage and further harm to the image of an already severely ailing industry and in reality, and with due respect, in pursuit of no real purpose.
- In the light of all of the aforegoing, we would kindly request that you carefully reconsider the position of the NHA herein, in particular taking cognizance of the inordinate time parameters and massive costs issues should you elect to proceed further herein.”
Now nearly three years later, and with disastrous financial consequences, the ‘chickens have finally come home to roost.’
Barends, who had previously informed me telephonically that he wanted to resolve all of this, advised me similarly that he was prevented from so doing by Deanthan Moodley and Arnold Hyde, who told him that this wasn’t his domain and to ‘butt out.’
It is interesting that when Barends subsequently instigated a disciplinary action against Moodley with what I am led to believe was allegedly four charges, and in respect of which he was found ‘guilty’ and dismissed from the NHA (only for him to successfully challenge this at the CCMA and be reinstated although he then proceeded to become a stipendiary steward and is now the chief in KZN where he is apparently doing a fantastic job), that at his hearing and much to the consternation of Barends, Hyde testified as a character witness on Moodley’s behalf.
On 6 September 2018, after Barends had resigned, I sent the same letter with annexures to the then NHA chairman and acting CEO, Ken Truter.
NHRA CEO Vee Moodley ‘speak to my attorney’
On 3 December 2018, I wrote to Vee Moodley just prior to his taking office as CEO of the NHA in January 2019.
On 27 March 2019, and after being continually ignored, I sent yet another email to Vee Moodley wherein I stated that “I’m astounded that you allow these exorbitant costs to continue to be incurred herein.”
I was then told to basically ‘get lost’ and to only communicate with the NHA attorney’s whom, as we know, specialize in litigation.
On 22 January 2020, nearly one year later, I wrote to Mr Vee Moodley on behalf of the Kenilworth Racing Board in my capacity as co-chairman, in a letter headed “NHA legal costs” expressing our concern about the legal costs’ situation.
I concluded the letter by saying that “we really need sanity to prevail here in these trying times.” We were ignored.
On 25 February 2020, I once again sent the same letter. This time the chairperson of the NHA, Susan Rowett, promptly called, admonished me, and astonishingly endeavoured to get me to withdraw our letter, which I refused.
I then received a legally drafted letter that accused me, amongst other things, of being conflicted and which was met with an appropriate response.
Mark Currie – supported costs awareness
The following day my KR co-chair Mark Currie then sent a totally unsolicited mail fully supporting my stance and confirming that this approach came from, and with the total support, of the Kenilworth Racing Board.
He further stated that “we really do need to ensure that whilst the NHA needs to maintain integrity in racing, it needs to be mindful of the cost benefits associated with such actions. We have to avoid the situation our country currently faces with massive litigation where the only beneficiaries appear to be the legal firms and the loser/payer being the taxpayer. I have to say that I am exceptionally surprised by the response received this morning.”
Right now, I am involved in another two caffeine matters.
The NHA forced our hand by failing to agree to providing us with certain samples in order for us to conduct our own independent tests, and then reneged on various undertakings for a variety of reasons.
As a result, we had no alternative but to bring an urgent High Court Application that we did everything in our power to avoid. This involved a huge amount of work and resulted in a 120-page document.
We were then forced to amend our papers – another 30-page document – after the NHA attempted to move the goalposts again. The NHA then capitulated, tendered our party and party costs, and accepted our draft order to be made an order of court.
I make mention of this and obviously without debating the merits of the case as the matter is sub judice, purely to highlight once again the cost wasting by the NHA that they just seem impervious and oblivious too.
It is astounding that they even defended our constitutional right to access to these samples as without this information we simply cannot defend our position, let alone be afforded a fair and impartial hearing.
Arnold Hyde – man at the centre of the storm
On 28 January 2015, Arnold Hyde was a member of a 3-man inquiry board that convicted jockey Tshwaro Appie in terms of Rule 62.2.1 – the ‘pulling up’ Rule of not giving a horse “a full opportunity to win or obtain the best possible placing” and suspended him for 20 days.
Without a shadow of a doubt, this is the worst decision I have ever encountered in all my time in racing.
Consider this: Queen Serevi is a minute 14.1 hands filly, and at that point had a career record of a single placing beaten 7.25 lengths from 16 career runs.
She had a merit rating of 44 and that was before the 10lb rise. She started at odds of 125/1. She finished 6th but 3.75 lengths behind the 5th placed horse running 4lbs above her rating, her best ever career run.
Tshwaro Appie – victim of a poor decision
In her next three runs, before being retired, she was beaten collectively 90.5 lengths. Need I say more? This was so bad that my Appeal was upheld before the matter was even heard and I didn’t have to fly to Joburg for the hearing.
I asked Hyde at the time, and subsequent to this on a few occasions, and which I have stated in writing before and which he has never denied, whether he ever got embarrassed by cases such as this and in proceeding with matters with zero merit and where the NHA ended up being pilloried and shot down in flames, and he replied that he never got embarrassed, didn’t care about costs, and that’s what Inquiry and Appeal Boards and courts of law were there for. Seriously?
The NHA has no money despite the Operator funding, the Operators have no money, and the industry is ‘bleeding’ from every single orifice.
How is any of this acceptable? Especially when all of this can be settled so easily.
I’m led to believe that the NHA’s counsel at the Appeal hearing, and after leaving court, realizing that they had just been given a solid beating, allegedly said to Afresh’s counsel that they basically needed to settle these caffeine matters.
A sound and logical conclusion you would agree.
But then look at the NHA press release. It states the exact opposite. They just carry on with impunity all in the name of so-called ‘integrity.
One must ask the obvious question – how much longer will the Operators, who fund the NHA to the tune of roughly R80 million p.a. be prepared to continue financially supporting this wasteful exercise and the runaway legal costs, all of which impacts on our stakes and on our industry – which the NHA have seemingly ‘waged war’ upon.
When will sanity prevail?
- The author Robert Bloomberg is South Africa’s most experienced specialised Horseracing Attorney. He was a co-founder of Kenilworth Racing and has served on a variety of industry boards over the past three decades. He resigned as Co-Chairman of Kenilworth Racing in June 2020.
