1 This email is addressed to:-
1.1 The National Board of Directors of the NHA.
1.2 The Chairman of the Stipendiary Board of each Racing District.
1.3 The Licensing Board of the NHA and its members.
2 I request the Chairman and the Chief Executive of the NHA to ensure that the content of this email is forwarded to and received by all the persons referred to above.
3 The issues raised herein:-
3.1 involve a fundamental lack of corporate governance within the NHA which affects the integrity of the sport of horseracing.
3.2 concern most aspects of horseracing in South Africa. In amplification and without derogating from the generality of the aforegoing they impact on the membership and qualifying privileges of owners.
3.3 require the immediate attention and action of the NHA.
4 I have decided to also copy the Sporting Post and Form Grids with this email. I leave it in their hands to determine whether the issues raised herein are of sufficient newsworthiness to publish to the horseracing industry.
5 On 9 January 2013 I sent an email to the NHA and in particular to Mr Rob de Kock (the NHA Chief Executive), Mr Colin Hall and Mr Denzil Pillay. The email is below. I have excised some of the portions of the email which I believe are not material:-
Dear Sirs,
1 You will recall that in December 2012 I asked the NHA for certain documents relating to the NHA AGM to be held on 14 January 2013. I requested these documents inasmuch as they had not been made available to members. Initially the wrong NHA Annual Report (i.e 2011) was sent to me. I was advised that the 2012 Annual Report had not been finalised by the NHA printers and I would receive same. Yesterday, I received a copy of the NHA 2012 Annual Report as well as the minutes of the NHA AGM of 16 January 2012 for which I thank you.
2 On reading the 2012 Annual Report and the minutes of the January 2012 AGM several issues troubled me. It is not the province of this email to deal with all these issues. For now, I have limited the issues to two aspects. They are:-
2.1 Mr Rian Du Plessis and his position as director of the NHA as well as one corollary issue regarding directors of the NHA;
2.2 The validity of my membership of the NHA as well as other persons who hold colours.
3 I deal with the issues below. Inasmuch as the AGM takes place on Monday 14 January 2013, Please note that I seek answers to the issues below by no later than 17h00 on Thursday 10 January 2013.
4 RIAN DU PLESSIS & DIRECTORSHIPS
4.1
4.1.1 I have seen that in the 2012 NHA annual report that Rian Du Plessis was a director of the NHA during the period. I believe that he may also currently be a director of the NHA.
4.1.2 On 8 March 2012 Mr Du Plessis addressed an email to Patricia Ribiero of the NHA wherein he states that he is “not a member of the NHA” and implies that the NHA has no jurisdiction over him. A copy of the email is set out below.
4.1.3 When the CEO of Phumelela Gaming and Leisure stated that he was not a member of the NHA, I accepted this as fact. In addition, since this statement has never been disputed by the NHA, I must accept this as confirmation that Mr Du Plessis was not a member of the NHA.
4.1.4 When one considers the NHA rules and Constitution– if Mr Du Plessis was not a member of the NHA, he could not be appointed as a director of the NHA. Clause 7.3 of the Constitution is not applicable to Mr Du Plessis.
4.1.5 Even if Mr Du Plessis was a member of the NHA, he made it clear to the NHA that he was no longer a member of the NHA and accordingly in terms of Clause 15.5.1 of the Constitution he shall be deemed to have vacated his office if he ceases to be a member.
4.1.6 It is my view that Mr Du Plessis should not have been a NHA director.
4.1.7 Having regard to, inter alia, paragraphs 4.1.1. to 4.1.15 please furnish me with full reasons why Mr Du Plessis was entitled to be and act as an NHA director .
4.2 In the minutes reference is made to Mr P. Davis being a National Board Director. Despite this, the NHA Annual Report does not disclose that Mr Davis was at any time a National Board Director. To the best of my knowledge, Mr Davis was never elected as a director of the NHA National Board. I require the NHA to advise in full why the NHA Annual Report does not set out the true position. Moreover, please furnish me with the dates when Mr Davis was appointed and acted as a director of the NHA.
5 MY MEMBERSHIP OF THE NHA
5.1 After having read the Constitution regarding admission to membership, I am worried that I (as well as others) may not be valid members of the NHA .
5.2 Clause 9 of the Constitution states:-
9. ADMISSION TO MEMBERSHIP AND VOTING
9.1 …………….
9.2 Subject to the provisions of this Constitution, any person who holds a QUALIFYING PRIVILEGE shall automatically become a MEMBER without being proposed or seconded or submitting an application for membership provided that such person has not:
9.2.1 resigned as a MEMBER;
9.2.2 had his membership of the NATIONAL HORSERACING AUTHORITY cancelled or terminated in terms of this Constitution or any prior Constitution.
9.3 Persons who do not qualify for membership in terms of clause 9.2 and who wish to become MEMBERS shall:
9.3.1 be proposed and seconded by two MEMBERS who shall have been MEMBERS for not less than three completed RACING YEARS; and
9.3.2 submit a duly completed application for membership to the CHIEF EXECUTIVE in the form prescribed by the NATIONAL BOARD from time to time.
9.4 No MEMBER may propose and/or second more than five candidates for membership of the NATIONAL HORSERACING AUTHORITY in any one RACING YEAR.
9.5 Any duly completed application for membership of the NATIONAL HORSERACING AUTHORITY received by the CHIEF EXECUTIVE shall be forwarded to the NATIONAL BOARD for its consideration. The NATIONAL BOARD may approve or reject any application for membership in its sole discretion without a hearing or giving reasons.
9.6 ……………
9.7…………….
9.8…………….
9.9……………..
5.3 To the best of my recollection, Clause 9.3.1 was not complied with when I applied for membership of the NHA. In fact, I have spoken others who do not recall that clause 9.3.1 was complied with in connection with their membership. As I understand it, clause 9.3 is peremptory.
5.4 I ask the NHA to advise furnish me with full reasons why it believes that my membership of the NHA is valid.
6. All of my rights are reserved.
Regards,
Brett Maselle
6 Attached to the email was the email of Mr Du Plessis’ in which he unequivocally stated, that he was “not a member of the NHA”.
7 Late in the day on 11 January 2013 I received an email from Mr de Kock which states:-
Dear Adv. Maselle
Your e-mail of 9 January 2013 refers.
The answers to the two issues which you raised are:
1. Mr Rian du Plessis was/is appointed to the Board by Phumelela Gaming and Leisure Ltd in terms of Clause 15.1.2.3 of the Constitution. Mr Patrick Davis was/is appointed to act as his alternate director in terms of Clause 15.1.16.
2. You are a valid member of the NHA because you are a colour holder. Clause 9.2 applies.
Regards
Rob de Kock
Chief Executive
8 At 08h36 on the morning of 14 January 2013 (being the same day as the NHA AGM) I addressed an email to Mr de Kock and copied same to the NHA Chairman Mr Witts-Hewinson as well as Mr Hall and Mr Pillay. The email states:-
Mr De Kock,
1. Your email below is confirmation to me that it will be in the best interest of horseracing that you forthwith resign from the NHA. The issues raised are significant and material to the fabric of proper corporate governance at the NHA. Your failure to deal in full and specifically with the issues raised by me is a serious cause for concern. I intend to take this aspect further.
2. You state that I am a valid member of the NHA because I am a colour holder. You know that, in connection with my membership/colours, rule 7 of the NHA rules were not applied by the Licensing Board and the Chairman of the SB of Central Provinces. Consequently, despite what you assert (which is intentionally misleading), I believe that my membership/qualifying privilege is fatally flawed much like a substantial amount of owners who believe that they are members of the NHA. The NHA represented by you and others has failed to comply with its rules. This has serious ramifications of which, no doubt, you and the National Board are aware. I have attempted to find two valid members (having not less than three completed racing years) to propose and second a new application for membership by me. I have not been able to find such persons and this is prejudicing me. I will be attending the AGM on a without prejudice basis. I intend to take this aspect further.
3. I refer you to the following Clauses of the NHA Constitution:-
9.10.6 No QUALIFYING PRIVILEGE shall exist in respect of any PRIVILEGE which has not been renewed in terms of the RULES or which has lapsed for any other reason and in such circumstances the membership of any person who became a MEMBER by virtue of holding a QUALIFYING PRIVILEGE shall be deemed to have been cancelled when his QUALIFYING PRIVILEGE lapsed.
9.10.7 The CHIEF EXECUTIVE shall draw up VOTING LISTS as at 1 September each year.
9.10.8 Notwithstanding the provisions of this Constitution no person shall be entitled, either to nominate and/or vote for a DIRECTOR or to attend a GENERAL MEETING if such person is not listed on the most recently published VOTING LIST referred to in clause 9.10.7.
4. At the AGM today (i.e 14 January 2013) I require the NHA to furnish me with the NHA Voting Lists as drawn up by you as Chief Executive as at 1 September for the periods 2009, 2010, 2011and 2012. In addition, I require the dates that each Voting List was prepared and published.
5. Please advise the Chairman that since you have failed to properly deal with the issue of Mr Du Plessis’/Mr Davis’ status as members/directors I will raise this aspect at the AGM for him to deal with. I noted that the Chairman has failed in his Annual Report (the majority of which is a cut and paste job from the previous Chairman’s report) to state how Mr Pillay became a director of the NHA. I have asked Mr Pillay for written proof that he has been properly appointed and authorised to act yet this has not been forthcoming. Kindly ensure that these documents (if they exist) are available at the AGM for my copying and scrutiny.
6. All of my rights are reserved.
Brett Maselle
9
9.1 Inasmuch as the VOTING LISTS were not offered up to me by Mr de Kock (as requested in my earlier email), shortly prior to the AGM commencing, I approached the table of Mr Pillay, Mr Witts-Hewinson and Mr de Kock to obtain a copy of the VOTING LISTS.
9.2 In terms of the Constitution, these VOTING LISTS are obliged to be published. I was informed by Mr de Kock that he had not prepared a VOTING LIST and that he had a list of NHA members as at 1 August which had been published in the Racing Calendar. I retorted that this was not good enough as the Constitution was peremptory in its terms. No attempts were made by the three gentlemen to appease my concerns and to assist.
9.3 Mr Witts Hewinson did not bring the facts regarding the VOTING LISTS to the attention of the members present. I was thus forced to do so and requested the NHA National Board to look into this. I sat there in amazement inasmuch as Clause 9.8 of the Constitution makes it abundantly clear that no person may attend the AGM if their name is not on the most recently published VOTING LIST. Since a VOTING LIST had not been drawn up and published, there could not have been a valid AGM.
9.4 I must ask: Who cares? Certainly not the persons to whom I directed my email and the NHA directors. The NHA, represented at the very least by its Chairman, Chief Executive and Chief Executive Designate was aware of the terms of the Constitution and that the AGM could not be validly held yet the NHA proceeded with the AGM without making any disclosure to the members of the ramifications of proceeding with the AGM without a VOTING LIST not having been drawn up and published as required. How many other AGM’s are invalid?
10
10.1 During the AGM I raised the issue of the status of Mr Du Plessis and that of Mr Davis. Mr Du Plessis was not present at the AGM. Mr Du Plessis was likewise not present at last years AGM. Unfortunately I do not have records of his attendance at the balance of the past AGM’s. I would have thought that inasmuch as the NHA Board of Directors determined the date for the AGM, Mr Du Plessis would have noted the date in his diary months in advance and would have ensured his attendance at the AGM. If Graeme Hawkins (who is based in Durban and is a director of Gold Circle) can attend then there is no reason why Mr Du Plessis could not do so. But then, since Mr Du Plessis has said in writing to the NHA that he is not a member of the NHA and that Phumelela “hereby submit to you that the NHA only has jurisdiction over its members and does not have jurisdiction over Phumelela” Imagine the furor should Mr Du Plessis miss the AGM of Phumelela Gaming and Leisure Ltd!
10.2 I raised the issue of the status of Mr Du Plessis and Mr Davis at the AGM inasmuch as I believed that Mr de Kock and the NHA had no interest nor did they care for the questions raised in my email. This was confirmed to me by Mr de Kock’s intentional unhelpful reply. One would have expected a proper reply and explanation and not a response giving short shrift to my concerns.
10.3 At the AGM Mr Witts-Hewinson confirmed that when Mr Davis acted as a director of the NHA he acted as an Alternate Director appointed by Mr Du Plessis. You have to ask why NHA members were never told about this fact in the Annual Report. This non disclosure also goes to other issues such as why the NHA Annual Financials which were approved by the NHA Board are misleading. How can an Annual Financial statement properly reflect the financial position of the NHA when the NHA’s Auditors charges are not set out as an expense or reflected in the financials? No explanation is forthcoming in the financials regarding this.
10.4 On the issue of Mr Du Plessis, Mr Witts-Hewinson referred to the relevant clause of the Constitution. He gave a similar reply to the email of Mr de kock. I pointed out that his answer was not good enough. I stated that I was aware that a person could not be a director of the NHA without being a member. This statement was questioned by Mr Witts-Hewinson as if it was incorrect. Unfortunately, I could not direct the AGM’s attention to the relevant rules and clauses. I asked the NHA National Board of directors to look into this aspect.
10.5 If Mr Du Plessis is correct with his assertions and he is not a member of the NHA, then the NHA is saying the most remarkable thing, namely that Mr Du Plessis can be a director of the NHA and at the same time not be held accountable to and by the NHA for his conduct.
10.6 I wait to hear from the NHA on this subject. A final note on this topic – if Mr Du Plessis is a member of the NHA then it appears that any other member who says he is not a member can do so and the NHA, having regard to its lack of action against Mr Du Plessis, will not take action against them. This leads onto the subject of membership below.
11
11.1 At the AGM Mr Witts-Hewinson confirmed that the NHA had not taken any investigations to understand the cause for the decline in NHA members. I asked for an explanation regarding the NHA’s modus operandi in renewing membership/colours. Mr de Kock is the Chairman of the LICENSING BOARD of the NHA and furnished an answer which to me corroborates my views that there is a serious problem with membership and colours of the majority of owners (and others who hold privileges). Mr de Kock advised the AGM that members who wanted to renew their colours had to fill in the NHA renewal application, sign it, send it to the NHA and make payment of the necessary fee. Once the NHA received confirmation that the fee was paid the members colours would be renewed.
11.2 I informed the AGM that the conduct of the NHA was wrong and that the Chairman of the SB of each Racing District as well as the LICENSING BOARD had not done what was required of them. This resulted in persons being “members” of the NHA and holding “colours” contrary to the rules and Constitution. Simply, membership and holding of colours by owners where the correct procedure had not been followed invalidated the membership and colours..
11.3 There is a detailed procedure that applies to the renewal of membership and colours:-
11.3.1 In terms of clause 20 of the Constitution, the LICENSING BOARD has the power to grant, refuse to grant, renew, or refuse to renew, any PRIVILEGE provided for in the Constitution or the rules. [note: rule 7 furnishes similar powers to the Licensing board] The LICENSING BOARD is a minimum of 3 persons chosen solely by the National Board of directors of the NHA and it is obliged to act in conformity with and apply the rules and the Constitution.
11.3.2 In terms of rule 7.2 every application or re-application for a PRIVILEGE is obliged to be made on the prescribed form and signed by everyone who is a party thereto, which form, together with any other information required by the LICENSING BOARD and the prescribed fee (if any), must be lodged with the Chairman of the SB in the RACING DISTRICT in which the applicant resides or such other body or person as may be provided in terms of the rules.
11.3.3 Rule 7.4 makes it absolutely clear that an application for renewal has to be considered and determined by the LICENSING BOARD. It states:-“The Chairman of the SB in the RACING DISTRICT in which the applicant resides shall consider such application whereupon his recommendation together with the application shall be forwarded to the LICENSING BOARD for consideration and adjudication.”
11.4 Based on the facts put to the AGM by Mr de Kock, it is apparent that not a single application for renewal was considered by the LICENSING BOARD and the Chairman of the SB in the relevant RACING DISTRICT. I am aware of instances where owners did not complete, sign and send an application for renewal to the NHA.
11.5 The membership of every holder of a PRIVILEGE, including my membership, is in all likelihood invalid. This is confirmed by clause 9.10.6 of the Constitution which states that “No QUALIFYING PRIVILEGE shall exist in respect of any PRIVILEGE which has not been renewed in terms of the RULES or which has lapsed for any other reason and in such circumstances the membership of any person who became a MEMBER by virtue of holding a QUALIFYING PRIVILEGE shall be deemed to have been cancelled when his QUALIFYING PRIVILEGE lapsed”.
11.6 I asked that the National Board look into the above. Bearing in mind that there has to be an annual renewal for membership of the NHA because membership lapses on 1 August of each year, the ramifications of the NHA’s failure to comply with the rules and Constitution regarding renewals is far reaching. Can a jockey, owner or breeder be charged and/or fined for a breach of the rules if their PRIVILEGES are void or they are not valid members of the NHA? What is the position relating to an owner, jockey or trainer who has been warned off yet at the time they were not subject to the rules and constitution of the NHA? Many questions arise and all the difficulties have arisen solely as a result of the NHA not doing what it is obliged to do. The NHA is quick to take action against trainers, jockeys and owners for infractions of the rules and Constitution (some of which may be seen as trivial) yet it appears that what is good for the goose is not good for the gander when it comes to the NHA and/or or its representatives following the rules and/or Constitution.
12 Taking all of the above into account, I believe that I am not a valid colour holder and member of the NHA. The NHA has said otherwise. Until the NHA resolves this shameful situation, I intend to continue racing my horses. The problem has been created by the NHA and it is for the NHA to resolve it. I am willing to take such reasonable steps that are necessary to ensure my colours are renewed and/or valid and that I am a bona fide member of the NHA. I look forward to hearing from the NHA, as a matter of urgency, regarding what it requires of me.
13 In addition to the above, I look forward to hearing from the NHA on each issue that I have raised. I believe that the NHA has no choice but to urgently deal with the above. Moreover, I would like to know what steps the NHA intends to take regarding the conduct of its officials and directors which has caused the difficulties referred to above.
