With the NHA AGM on Wednesday, legal man and regular Sporting Post reader Advocate Brett Maselle writes in the Sporting Post Mailbag and asks who would have thought that racing is being regulated by an illegitimate nominations board and national board?
Introduction
On 13 January 2020, the Sporting Post (SP) published an article about the National Horseracing Authority (NHA) Annual General Meeting (AGM) and Special General Meeting (SGM) to be held on Wednesday 15 January 2020.
The article was published as a result of Steve Reid making it known to SP that there were many questions that were needed to be asked at the AGM.
Steve complained about the apathy of members and expressed the view that “this apathy has resulted in racing finding itself in the position that it is in today.”
At the end of the article SP invited the racing public to furnish comments. The dearth of contributions in the comments section confirms to me that there is a broad lack of interest in the regulation of horse racing. I should not be surprised. Horse racing is full of individuals who can contribute but do not for a myriad of personal reasons.
For more than a decade, a few concerned horse racing devotees, of which I am one, have spoken out. It seems that we have taken up the cudgels on behalf of those who choose to remain silent.
Over time, and with our passion and drive to correct wrongs, we have transformed from horse racing enthusiasts into horse racing activists. We acknowledge that we may not always be right.
We have been constantly maligned and reviled by the authorities and their supporters for expressing our views. We know that we have made a difference, albeit, small.
That which I deal with below is a serious matter.
It affects the regulation of horse racing in Southern Africa.
When you read this, you must keep in mind that the NHA has advocates and lawyers which hold high ranking positions in the NHA as well as a management and staff contingent that is tasked to make sure that the Constitution and the Rules of the NHA are followed without exception.
I should not have been the one to raise these egregious failures and breaches. As far as I am concerned, the nominations committee, the national board directors and senior management should resign their positions. They have failed the NHA and horse racing. There are no excuses.
From past experience, I believe that the NHA will try to downplay all of this. I do not know how the NHA will deal with its illegitimate boards and decisions taken with such illegitimate boards. The likelihood of it doing so in a transparent manner is slim. Only time will tell.
The NHA has a constitution and rules that sets out its objectives and relevance. The NHA has a national board which is vested with the authority and responsibility to achieve the objects and to exercise the powers of the NHA. The national board of the NHA is appointed by a nominations committee.
Background
The NHA held an SGM on 20 January 2016 which, after voting, caused substantial changes to the NHA Constitution.
Prior to the amendments, the national board consisted of seven nationally elected members, one member appointed by the national board, one member representing the owners’ association (RA), a representative from each of the racing operators (i.e. Gold Circle, Phumelela and Kenilworth Racing), the TBA, the chief executive and racing control executive.
The old board consisted of Mr R J Trotter; Mr VL Thurling; Mr L Wainstein; Mr J M Witts-Hewinson; Mr K P Truter; Mr W A du Plessis; Mr G T Hawkins. Mr C S Beyleveld; Mr C B Hall; Mr A G O’Connor (Chairman); Mr A D Hyde; Mrs S Rowett, Mr R Moodley, Mr J du Toit.
After the amendments, the national board was reduced to nine directors which excludes the racing operators, the RA and the TBA.
After the amendment, seven alleged previously elected board members and two executive members, being the chief executive and racing control executive. The board then reduced to the following persons: Mr A G O’Connor (Chairman); Mr L J Barends; Mr C S Beyleveld Mr R Moodley; Mr K P Truter; Mr R J Trotter; Mr J M Witts-Hewinson; Mr J Du Toit; Mr A D Hyde
The changes to the NHA constitution created a new hierarchy.
The nominations committee is dealt with in clause 14 of the NHA constitution. I will not repeat any clause of the NHA constitution unless I deem it necessary. I suggest that the readers read the relevant clauses for themselves. I have tried to keep it simple.
In terms of clause 14 of the NHA constitution, there has to be 4 (four) persons on the nominations committee. The nominations committee must be made up of persons who previously served as a chairperson of the national board for -a period of not less than 12 (twelve consecutive months).
There are vital and important proviso’s regarding an ex-chairman holding office on the nominations committee. They include that the ex-chairman must be a member of the NHA and not have reached the age of 80 (eighty). I will only be focusing on the requirement that all the committee members of the nominations committee are obliged to be current members of the NHA.
For me, ascertaining the persons who have been and currently are on the nominations committee has been a mission. The NHA annual report is relatively transparent when it comes to the persons who are directors, employees and committee members. I have considered the NHA annual reports since 2016 and have not found any reference to the persons who form part of the nominations committee.
I would have expected the NHA to at least annually inform horse racing in its annual report of the names of the people consisting of the nominations committee.
After all, it is this committee that chooses the national board of directors. In this day and age, its unheard of, to not know and be informed in annual reports of the names and details of individuals who are in control of an organisation where these individuals have an unfettered right and discretion to determine who they want to control the organisation.
Regulation requires transparency and openness. I would like to know who are the puppeteers and who are the marionettes.
After some investigation on the internet I was able to find some articles and publications regarding the NHA informing us of the persons on the nominations committee and who had been appointed to the national board by them. As will appear later on, at least one member of the nominations committee did not a does not fulfil the requirements of being able to be a member of that committee. This has a disastrous effect on each appointment made by the nominations committee to the national board.
According to the NHA constitution there shall be a maximum of 9 (nine) national board directors, 7 (seven) of whom who are appointed by the nominations committee.
The seven board directors chosen by the nominations committee are made up of 2 (two) independent persons and 5 (five) members of the NHA where there is at least one member is domiciled in the Central Provinces and Kwa-Zulu Natal and the Western Cape. At least one of the members of the NHA shall be registered as the owner of a stallion and/or mare at stud.
It is not a tough task for the NHA, and in particular the nominations committee to follow the requirements of the constitution. The majority of the members of the nominations committee have legal training and are practising lawyers.
As will be seen below, the simple task of constituting a valid nominations committee and choosing a valid national board has failed miserably. At least one member of the nominations committee has never been entitled to hold office. Furthermore, some of the persons chosen by the nominations committee to the national board should never have been appointed.
Given the skill set of all the persons involved, I find it hard to believe that there could have been any genuine errors.
Immediate resignations should be tendered by all responsible and the NHA should accept the resignations without any delay. If resignations are not forthcoming, litigation to remove these persons should immediately ensue.
The events
To simplify the facts, I will follow a chronological order which will hopefully place the issues into perspective.
At the end of this letter, I will deal in more detail with my reasons why the nominations committee is an invalid committee and the appointments made by it to the national board are void.
However, when dealing for now with the invalid appointments by the nominations committee of persons to the national board, it can be assumed (although the assumption is incorrect) that the nominations committee had been properly constituted in terms of the NHA constitution.
Appointments by the nominations board of Mr Dolamo and Adv Stais SC
On 25 January 2017 and in an article in the Sporting Post it was reported the nominations committee, consisting of past chairmen (1) Alick Costa, (2) Larry Nestadt, (3) Jonathan Witts-Hewinson and (4) Altus Joubert had appointed (i) Mr Sholto M. Dolamo and (ii) Adv Panayiotis Stais SC to the national board to fill the two vacancies. We were told that Mr Dolamo and Adv Stais SC were ‘independent persons’ as contemplated by clause 15.1.2 of the Constitution.
To sum up, when Mr Dolamo and Adv Stais SC were appointed to the national board they were appointed as independent persons. They were not and have never been members of the NHA.
As at this date the members of the NHA national board consisted of Mr A G O’Connor, Mr L J Barends. Mr C S Beyleveld; Mr K P Truter; Mr R J Trotter; K Truter; Mr J Du Toit; Mr A D Hyde, P Stais SC, SM Dolamo.
It appears that Mr Moodley and Mr Witts -Hewinson resigned or were removed. I have been unable to find any information on this aspect.
Appointments by the nominations board of Mr Bruss and Adv Lebala SC.
On 19 January 2018 and in a NHA press release, it was reported that the nominations committee, consisting of past chairmen (1) Adv. Altus Joubert, (2) Mr Larry Nestadt, (3) Mr Jonathan Witts-Hewinson and (4) Mr Cecil Baitz, had appointed Mr R L Bruss and Adv. S M Lebala SC to the Board of Directors of the NHA to fill two vacancies on the Board.
Mr Bruss was appointed as a member in terms of clause 15.1.1 and Adv. Lebala SC is an independent person in terms of clause 15.1.2 of the Constitution.
The above appointments could only have been made if there were vacancies on the national board that necessitated the appointments.
As at this date the members of the national board consisted of Adv. S M Lebala SC, R Bruss, Mr L J Barends, Mr K P Truter (chairman), Mr R J Trotter, Mr J Du Toit; Mr A D Hyde, P Stais SC, SM Dolamo. It appears that Mr Beyleveld and Mr O’Connor vacated their seats.
I have no gripe with Adv Lebala SC as a person and as a colleague.
However, I am of the view that his appointment to the national board is unlawful and void. When he was appointed by the nominations committee, he was appointed in terms of clause 15.1.2 as an independent person.
The nominations committee were not allowed to select him as it already had appointed two independent persons in January 2017 and they remained in office, namely Adv Stais SC and Mr Dolamo.
The NHA constitution does not allow for three independent persons and prescribes that there can only be two. An independent person does not have to be a member of the NHA. Adv Lebala SC is not a member of the NHA. There is no room for the NHA to manoeuvre in respect of this invalidity. The nominations committee should have known.
Appointment by the nominations board of Mrs Rowett.
On 4 February 2019 and in a NHA press release, it was reported that with the resignation of Mr J (Hannes) du Toit on 14 January 2019, a position became vacant on the national board and in terms of Chapter 4 of the NHA constitution, the nominations committee had appointed Mrs Susan Rowett to fill the vacancy in terms of clause 15.1.1 of the Constitution.
Strangely, we are not informed of the names of the individuals who made up the nominations committee and who appointed Mrs Rowett.
As at 1 February 2019 this date the members of the NHA national board consisted of, R Bruss, Mr V Moodley (who succeeded Mr Barends), Mr K P Truter (chairman), Mr R J Trotter, Mr A D Hyde, P Stais SC, SM Dolamo and S Rowett. I have purposely left out Adv Lebala SC as result of him being excluded.
The NHA sold the appointment of Mrs Rowett to us by stating that:” Mrs Rowett holds a Master of Jurisprudence degree and a Master of Management degree and is a Director of a multinational packaging company. As a Thoroughbred Racehorse Breeder and Owner, Mrs Rowett has been actively involved in the Horseracing Industry in South Africa for forty years. Mrs Rowett has served as Chairperson on various Boards within the Horseracing Industry and previously served as a National Board Director from November 2012 until April 2016 when the Constitution of the NHA was amended, at a Special General Meeting, in order to restructure the National Board.”
I venture to say that Mrs Rowett would have been the first person to know that she could not be on the national board unless she was a member of the NHA. She played a role in the changes to the NHA constitution.
The minutes of the 2016 SGM, reflect that Mrs Rowett was aware of the requirements to be appointed to the national board. She had the following to say: – “Mrs Rowett said that the NHA was a National organisation which regulated Racing and Breeding. The validity of the organisation depended on it being properly representative of its members. The proposed amendments effectively divided the Members and provided for representation from the Racing sector but not from the Breeding sector” and “Mrs Rowett said that it would be acceptable if the Constitution required that the Nominations Committee had to appoint at least one person who was a registered breeder.”
As set out above, the first requirement to fulfil the position of the five persons referred to in clause 15.1.1. of the constitution is that they must be members of the NHA.
A simple check of the NHA records as appears on its website indicates that Mrs Rowett was not a member of the NHA when she was appointed and is not a member. If this is correct, Mrs Rowett’s appointment to the national board is invalid and void from the date of her appointment.
There are rumours floating around that Mrs Rowett is the incumbent chairperson of the NHA. If she is not a member of the NHA and is invalidly on the NHA board of directors, she cannot be appointed as chairperson.
Appointment by the nominations board of Mr Wernars.
On 10 August 2019, and in a NHA press release we were told that with the resignation of Adv P Stais SC, a position became vacant on the national board and in terms of Chapter 4 of the constitution, the nominations committee appointed Mr Laurence Wernars to fill the vacancy on the national board in terms of clause 15.1.1 of the constitution.
Again, we are not informed of the names of the individuals who made up the nominations committee and who appointed Mr Wernars.
You will recall that Adv Stais SC was appointed as an independent person in terms of clause 15.1.2 of the NHA constitution.
The NHA had to find a person to fill the vacancy of Adv Stais SC, which requirements Mr Wernars does not meet. In any event, based on the NHA’s conduct as set out in its appointments to the national board, the quota of 5 (five) members in terms of clause 15.1.1 had already been fulfilled and Mr Wernars could not be appointed. His appointment is likewise invalid.
Observation
As is clear from the above, the NHA has serious problems. It is rather disappointing that I have to raise this.
Unfortunately, history has shown me that unless I make issues known, they are disregarded. I am much aware that a campaign of criticism and denigration will commence against me as soon as these comments are published.
I believe that I am acting correctly.
The NHA demands of its members and horse racing that they conduct themselves strictly in terms of the rules. There is no reason why I cannot demand the same of the NHA. It must comply with the NHA rules and constitution.
The NHA needs to take ownership of its wrongdoing. I need not comment on the legal ramifications.
Conclusion
The kicker of this whole saga of a failure to comply with the NHA constitution is that Mr J Witts-Hewinson, an ex-chairman of the NHA has not been a member of the NHA.
In order to be entitled to be on the nominations board, that person has to – as a minimum – be an ex-chairperson and member of the NHA. Mr Witts-Hewinson has not met the requirements of the constitution to hold office on the nominations committee.
If I am correct, which I believe I am, this would mean that the nominations board did not have the necessary quorum (i.e. 4 members who were ex-chairman for a continuous period of 12 months) to make appointments for the national board.
As a result, every appointment made by the nominations board while Mr Witts Hewinson was a member thereof is invalid and of no force and effect.
MY REQUEST TO THE NATIONAL BOARD is for it to reply to this letter in full and in writing before the AGM and SGM.
