Michael Sham writes an open letter on behalf of New Turf Carriers (Proprietary) Limited (“New Turf”), of which he is a Director, in order to bring to light the inaction and failure by the National Horse Racing Authority (the “NHRA”) to enforce the NHRA Rules and uphold the provisions of the NHRA’s Constitution.
For the purposes of this correspondence, the debtor shall be referred to as Mr X throughout.
Mr X has used the equine transport services of New Turf for several years. New Turf has always rendered the most professional equine transport services to its patrons which Mr X sought to use for the purposes of transporting his equine thoroughbreds.
Despite New Turf rendering and discharging all of the necessary equine transport services, Mr X failed to attend to payment of his account with New Turf and owed same outstanding transport fees in the amount of R 28 580.00 (twenty-eight thousand, five hundred and eighty rand).
In order to recover the abovementioned fees, New Turf instituted action and issued summons in the Magistrate’s Court.
This process was a lengthy one and New Turf incurred substantial legal costs in order to secure a favourable judgment. After a duration of 8 months, the Magistrate granted a default judgment against Mr X which New Turf forwarded to the NHRA for the purposes of activating the procedure as contained within Rule 97.
Rule 97 provides as follows:
In line with the abovementioned Rule, New Turf submitted the default judgment and tendered the prescribed fee on or about 17 September 2019. The Chief Executive of the NHRA, in terms of Rule 97.3, was then required to provide Mr X with 10 days within which same is required to make representations. In this case, the 10-day time period would have expired on or about 03 or 04 October 2019 if Mr X was notified on a prompt basis by the NHRA (as the public holiday is to be excluded in the calculation).
After various exchanges with Mr Arnold Hyde (“Mr Hyde”) of the NHRA, it was established that Mr X would be afforded a further 2 days within which to make representations as a result of the NHRA having struggled to contact Mr X.
In addition to the above, Mr X was afforded a further indulgence until the 10 October 2019 in order to make said representations. This further indulgence was provided by Mr Hyde as a result of Mr X alleging that he would be consulting with attorneys in order to challenge the default judgment.
As the matter was being delayed with no resolution in sight, we instructed our attorney to draft correspondence to Mr Hyde regarding the numerous indulgences afforded to Mr X based on his numerous allegations and unfounded claims.
Mr Hyde advised that Mr X would be afforded until the close of business on Friday, 25 October 2019, to provide written confirmation that same had successfully applied for a rescission of the default judgment.
At this stage, it is most important to note as follows:
- that this matter has been delayed for well over 1 (one) month;
- that Rule 97 seems to offer very little assistance to New Turf as a racing creditor with a default judgment; and
iii. that Rule 97 refers to the Chief Executive who is required to deal with the issue of Defaulters and all matters related thereto.
With respect to point 3, it is most important to take note that Mr Hyde is the Racing Control Executive whilst Mr Vee Moodley (“Mr Moodley”) is the Chief Executive.
To date (29 October 2019), no response or exchanges have been received from Mr Moodley in respect of the matter at hand.
After awaiting receipt of the successful rescission application, Mr Hyde advised that he had sight of, and considered the rescission application and accompanying affidavit attested to by Mr X.
To this end, the rescission application could not be classified as a successful application in any manner or form. Notwithstanding the above, Mr Hyde advised that after due consideration of Mr X’s affidavit and in exercising his discretion, which discretion is only afforded to the Chief Executive, Mr X would not be declared a Defaulter.
With the above in mind, Mr X may well seek to challenge and rescind the default judgment, however there is certainly no guarantee that such an application for rescission shall be successful and, further, no doubt in my mind that a copy of a rescission application is not proof of a successful rescission application as explicitly required by Mr Hyde.
In addition, Mr Hyde only considered the contents of Mr X’s affidavit when exercising his discretion in terms of the Rule without giving as much as a second thought to considering New Turf’s version which resulted in the successful default judgment.
Mr Hyde advised that he would reconsider the matter and exercise his (the Chief Executive’s) discretion after the rescission application had reached its conclusion. In the interim, Mr X is permitted to race his equine thoroughbreds freely while New Turf is due outstanding transport fees from Mr X.
The default judgment remains an order of court until same is successfully rescinded or challenged.
New Turf shall vigorously oppose the rescission and do currently have in their possession evidence which shall nullify Mr X’s claims and version as contained in his rescission application and accompanying affidavit.
The NHRA has shown a clear reluctance to assist in terms of Rule 97 which Rule should be strictly enforced until there is an order which is contrary to a default judgment.
Allowing Mr X to continue racing as a colour holder is certainly not in the best interests of South African horseracing and is contrary to the provisions of the NHRA Constitution. Whether Mr X, with proof of a default judgment and/or a failed rescission application, is listed as a Defaulter remains to be seen.
