Trainer Sean Tarry – scapegoat?
South Africa’s leading specialised horseracing attorney Robert Bloomberg has been engaged by SA Champion Trainer Sean Tarry following notice that an inquiry will be held into evidence given by Tarry. The sequel to the Khumalo finding has been labelled as nothing but a ‘witch hunt’ by the NHA in search of a ‘loaded gun’ that doesn’t exist – and in order to justify their highly debatable handling of the long drawn out case.
Mr Bloomberg’s press release is carried in full hereunder:
On 6 August 2015, the National Horseracing Authority (“NHA”) issued a Press Release following on a Press Release the previous day. The latter correspondence which attempted to provide a timeline in respect of the events that unfolded in the S’manga Khumalo (“Khumalo”) case, unfortunately in our considered opinion, contains various inaccuracies and important omissions and is disingenuous in its manner and content. It further and most importantly, in its concluding paragraph, by inference unfairly and unjustifiably maligns SA champion trainer, Sean Tarry (“Tarry”), by casting aspersions as to his good name, honesty and integrity.
Read the NHA press release here.
On 2 December 2013, an Inquiry Board of the NHA, convicted Khumalo in terms of Rule 62.2.1 better known as the “pulling up” Rule. As stated by the NHA, the evidence of Tarry was “pivotal” to the outcome.
On 14 March 2014, Khumalo’s Appeal against both the finding and penalty imposed was dismissed and his deposit declared forfeit.
S’manga Khumalo – champion jockey
On 3 April 2014, Tarry deposed to a sworn affidavit in which he entirely recanted his criticism of Khumalo based in the main on the premise that he was not “possessed of sufficient information” at that stage “to fully comprehend and understand the merits of Mr Khumalo’s answers.” It is worth noting that Khumalo rode “Supertube” on debut, that Tarry gave evidence after the horse had 2 runs and that his sworn affidavit deposed to was after Supertube had raced seven times. The affidavit is comprehensive and records on no less than seven occasions that his initial assessment of Khumalo’s ride was erroneous. He further provides 14 reasons as to why he believes that he initially erred. Common sense decrees that if one is not possessed of sufficient and pertinent information at a given point in time that only comes to your knowledge and attention at a later juncture that one’s opinion can change. We believe that Tarry should be lauded for his courage and conviction in standing up and being counted rather than being told to attend an Inquiry by the NHA.
On 17 April 2014, and on behalf of Khumalo, an Application containing an expansive letter from Jenny Booth of the Maitland Group, detailed submissions on behalf of Adv Bruce Leech SC and Tarry’s affidavit, was submitted to the NHA requesting the National Board to set aside the findings of the Inquiry and Appeal Board’s and the sanction imposed, alternatively to institute an Inquiry de novo.
Robert Bloomberg – legal eagle
We believed that the Constitution of the NHA plainly and unequivocally allowed for such intervention. It was clearly pointed out that this matter was challengeable on Review, but that this would “not best serve the interests of either the NHA, the sport as a whole, or Khumalo himself.” These documents submitted, give clear, concise, cogent and detailed reasons as to why Tarry recanted his evidence. The NHA accordingly has all the evidence they require in this regard and Tarry has nothing further to add thereto.
On 29 April 2014, we were advised by attorney Nic Roodt of Fasken, Martineau (“Roodt”) for the NHA, that on the basis of an Opinion dated 28 April 2014 and furnished by Adv WHG van der Linde SC, the National Board was not “empowered to intervene.” An extension to launch Review proceedings was granted until 19 May 2014.
On 3 August 2015 and on the back of a negotiated settlement/plea bargain between Werksmans, attorneys for Khumalo, and Roodt for the NHA, an Inquiry de novo was held chaired by a one-man Board, Lyle Anderson. This was nearly 16 months, and at great financial cost, after the NHA proclaimed they were precluded from having such Inquiry de novo. By admission in the Press Release, the NHA knew “that the court would probably refer the matter back to the NHA for an Inquiry de novo.” This apart, this was actually an out-of-court settlement and was accordingly not an order of court. The Review application was withdrawn from the court roll.
No evidence was led at the Inquiry and the Inquiry Board merely “rubber stumped” the terms of the negotiated settlement/ plea bargain. Khumalo was informed by his representative in advance of the Inquiry that he would no longer be charged with the “pulling up” Rule – there was no possible chance of this succeeding second time around – and that he would be pleading guilty to the lesser charge in terms of Rule 62.2.2 of “failing to ride his horse in a competent or professional manner” and that he would be fined R75k.
Khumalo has categorically stated that he does not actually believe that he is guilty of any offence and regards his ride as having been “professional,” but has advised that because he was no longer being charged with the patently more serious offence and as a consequence was being exonerated and clearing his name in respect thereof and further, that his benefactor was to pay the fine and not him personally, he agreed to accept the recommendation of Werksman’s in respect of the terms of the settlement.
Denzil Pillay – former NHA CEO
Interestingly and prior hereto on 11 May 2015, and in an unrelated matter, the NHA CEO Denzil Pillay advised in writing that: “as you are no doubt aware the NHA rules do not make provision for a plea bargain process.”
The Inquiry de novo is by its very definition exactly that – a new Inquiry which thereby renders all previous Inquiries null and void and of no force and affect. Despite this, the NHA intends having an Inquiry on 11 September 2015 into Tarry’s evidence given on 2 December 2013 at an Inquiry that for all intents and purposes no longer exists having been superseded by the Inquiry de novo as aforementioned. They have stated that this Inquiry “is not called upon to deal with the manner in which Khumalo actually rode the horse” in an endeavour to justify their intentions. We disagree entirely as the evidence of Khumalo and Tarry is essentially one and the same and intrinsically joined at the hip.
In addition, the charge that Mr Khumalo subsequently pleaded guilty to on 3 August 2015, is a charge that places sole liability on a rider and consequently no liability whatsoever on a trainer thereby rendering Tarry’s evidence superfluous to requirements. The NHA is therefore precluded in terms of their owns Rules, from having an Inquiry into the evidence of a trainer, as it is without basis or foundation because as stated, he cannot be held liable in respect of Rule 62.2.2. Further, the opportunity they had of cross-examining Tarry at the Inquiry de novo has passed them by. As Tarry was not requested to testify by the NHA, by implication his sworn affidavit stands unchallenged and unopposed in a matter that has now been concluded.
Tarry at Equus recently with his major patron, Chris Van Niekerk
The NHA have failed and/or refused to provide details of the charges or preferred charges against Tarry. Apart from the fact that every person is entitled to know in advance of an Inquiry what the charges or preferred charges may be in order to adequately prepare for their defence, we believe that they are unable to do so for the precise reason that Tarry has not contravened any Rules or the Constitution of the NHA.
In our opinion this intended Inquiry is nothing but a “witch hunt” by the NHA in search of a “loaded gun” that doesn’t exist and in order to justify their highly debatable handling of the Khumalo case.
Roodt, notwithstanding this being an exercise in futility in our opinion, has even indicated his intention to request legal representation, which presumably isn’t free of charge, at this Inquiry thereby once again indirectly digging into the coffers of the Operators who fund the NHA.
We will not under any circumstances legitimise an invalid Inquiry by attending same and have advised the NHA that should they proceed with such Inquiry and/or make any adverse findings against Tarry, that we reserve our rights accordingly.
Press Release issued by Attorney Robert J Bloomberg on Thursday 20 August 2015
