THE NATIONAL HORSERACING AUTHORITY OF SOUTHERN AFRICA
IN THE APPEAL OF S'MANGA KHUMALO
In the matter between:
S'MANGA KHUMALO
Appellant
and
THE NATIONAL HORSERACING AUTHORITY OF
SOUTHERN AFRICA
Respondent
THE APPEAL BOARD'S REASONS FOR DECISION DELIVERED ON
14 MARCH 2014
1. The appeal in this matter was initially scheduled to have been heard on
Wednesday, 12 March 2014. By agreement, and in consequence of
certain flight difficulties experienced by Mr Robert Bloomberg (Mr
Khumalo's attorney), the hearing was moved to Friday, 14 March 2014,
when the appeal in this matter was duly heard at the offices of the
National Horseracing Authority of Southern Africa ("the NHA").
2. At the conclusion of the hearing on 14 March 2014, and after careful
consideration and deliberation, the Appeal Board informed the parties of
the outcome of the appeal (the appeal was dismissed and the relevant
deposit was declared forfeited). The parties were advised that full reasons
would be prepared in relation to the decision of the Appeal Board, and that
those reasons would be furnished as soon as circumstances permitted.
Those reasons are now furnished by way hereof.
2
BACKGROUND
3. At an inquiry held on Monday, 2 December 2013, the Inquiry Board which
inquired into this matter found Mr Khumalo guilty of a contravention of
Rule 62.2.1. which rule provides that:
"The RIDER of a HORSE shall ....take all reasonable and
permissible measures throughout a RACE to ensure that his
HORSE is given a full opportunity to win or to obtain the best
possible placing"
in that the Inquiry Board held that, Mr Khumalo, whilst riding the colt,
SUPERTUBE, in the 10
th
race at the Vaal Racecourse on the 5
November 2013, failed to take all reasonable and permissible
measures to ensure that the colt SUPERTUBE was given a full
opportunity to win or to obtain the best possible placing in that, after a
slight stumble at the start, Mr Khumalo failed to take measures to
improve his position in the first 900m of the race, and then in the final
500m, Mr Khumalo failed to ride with his normal vigour and
determination.
The Inquiry Board in this matter imposed the following penalty, namely:
"a suspension from riding in races for a period of 60 (sixty)
days"
4. Mr Khumalo appealed against both the finding as well as the severity of
the penalty imposed.
5. Heads of argument were lodged on behalf of both Mr Khumalo as well as
the NHA. In the light of the issues raised on behalf of Mr Khumalo, it
became necessary for the Appeal Board to make a determination in
regard to all of the following, namely:
5.1 Whether or not the procedural issues raised by Mr Bloomberg, on
behalf of Mr Khumalo, might be such as justified or necessitated the
3
setting aside of the Inquiry Board proceedings (and consequently an
order for the hearing of an enquiry
de novo);
5.2 Whether or not, if the enquiry proceedings were not to be set aside, Mr
Khumalo had correctly been found guilty of a contravention of Rule
62.2.1;
5.3 If Mr Khumalo had correctly been found guilty of a contravention of the
aforesaid rule, whether or not the penalty imposed by the Inquiry Board
ought to be interfered with.
SALIENT FACTS TO BE GLEANED FROM THE EVIDENCE PROCURED AT
THE INQUIRY PROCEEDINGS
6. The trainer of SUPERTUBE (being the person who engaged Mr Khumalo
to undertake the ride which gave rise to the charge preferred by the
Inquiry Board) was Mr Sean Tarry, a trainer licenced by the NHA.
7. Mr Tarry testified, in regard to hi
s instructions to Mr Khumalo, that
SUPERTUBE has got "a big stride and he needs to be reasonably handy
and he needs to start rolling pretty early; that he's not a horse that you can
sit and bundle up until the 200 (m) and come with a run".
8. SUPERTUBE was a joint favourite at 22/10 with RAKES CHESTNUT.
9. SUPERTUBE stumbled slightly at the start, losing some stride and a half.
10. The reading of the race given by Mr Timm (an Inquiry Board member),
which is borne out by a review of the video itself (which was viewed at the
appeal proceedings) is that, following the slight stumble, Mr Khumalo
"leaves the horse alone", allowing it to fall some 10 – 15 lengths off the
leader. By the 800m mark, Mr Khumalo had still not "moved on the horse",
but started moving on SUPERTUBE "from about the 450m marker". Mr
Khumalo draws his stick and strikes the horse once at about the 150m
mark, thereafter punching the horse out to the finish, with his hands, to the
line.
4
11. SUPERTUBE finishes some 8 lengths behind the winner (who won the
race by 6½ lengths) and a head behind the fourth horse.
12. SUPERTUBE was one of the fastest finishing horses and, notwithstanding
the limited vigour of Mr Khumalo's ride in the finishing stages of the race,
nonetheless (on Mr Khumalo's own version) makes up a length on the
winner over the last 400m
1
.
13. There was no report by Mr Khumalo to the stipendiary stewards, on the
day (post the race), of his having felt anything amiss with the horse, or
indeed of any other concern or difficulty with the ride of SUPERTUBE.
THE APPELLANT'S PROCEDURAL COMPLAINTS
14. Mr Bloomberg, on behalf of Mr Khumalo, raised numerous issues relevant
to the manner in which the inquiry proceedings had been conducted,
which he suggested vitiated the inquiry proceedings.
15. Broadly speaking, Mr Bloomberg had complaints at two levels, namely:
15.1 The guidelines to which he referred (annexed to his heads of argument)
dated June 2010 (titled "Guidelines for Inquiry Procedures") had not
been complied with in several respects; and
15.2 The chairman of the Inquiry Board was not only biased, but was
furthermore someone who had recently resigned from the NHA against
a background of complicity in a fraudulent act perpetrated on the NHA,
and his participation as chairman of the Inquiry Board therefore tainted
the inquiry proceedings as a whole.
16. Mr Roodt, on behalf of the NHA, emphasised that the guidelines referred
to by Mr Bloomberg were simply that (i.e. guidelines) which he himself had
prepared as an aide to assist and guide stipendiary stewards in relation to
the manner in which they ought to strive to conduct inquiry proceedings.
Mr Roodt argued that, to the extent that the guidelines had not been
complied with, those departures had not caused any misdirection on the
1
See in this regard Mr Bloomberg's submissions at page 44 of the appeal bundle
5
part of the Inquiry Board, and had not prejudiced Mr Khumalo in the
inquiry proceedings. Mr Roodt furthermore drew our attention to the
provisions of clause 18 of the Constitution of the NHA, as well as the rules
which provide for the manner in which inquiry proceedings are required to
be conducted. Mr Roodt emphasised that the procedure required by the
rules had been complied with and there was, in the circumstances, no
need to set aside the inquiry proceedings, as the principles of natural
justice had been properly observed.
17. It is relevant in this regard to have reference to the provisions of Rule
83(1), which provide as follows:
"Save where otherwise provided in the RULES, an INQUIRY
BOARD shall adopt such procedure and formalities as it in its
sole discretion, may from time to time determine."
18. It is appropriate to have reference to the judgment handed down by the
Appellate Division (as it then was) in the matter of
Jockey Club of South
Africa vs Forbes [1993] 1 All SA 494 (A),
where Kriegler AJA had the
following to say (after emphasising the contractual relationship between
the parties):
"It is common cause that the Appellant, in exercising such
disciplinary powers, is obliged
(i) to act in accordance with its rules and constitution;
(ii) to discharge its duties honestly and impartially;
(iii) to afford persons charged a proper hearing, including
the opportunity to adduce evidence and to contradict or
correct adverse statements or allegations;
(iv) to listen fairly to both sides and to observe the
principles of fair play;
(v) to make fair and bona fide findings on the facts; and
6
(vi) to conduct an active investigation into the truth of
allegations made against the person charged."
19. Whilst it may be so that the inquiry proceedings did not meet all the
standards aspired to by the guidelines referred to by Mr Bloomberg, that
circumstance is, of itself, not decisive. The constitution and rules of the
NHA do not require strict compliance with those guidelines; what is
ultimately required is that Mr Khumalo should have had the benefit of a
fair hearing and should have had a reasonable opportunity to present his
case. One needs to bear in mind, in this regard, that the stipendiary
stewards are not students of the law. They are individuals whose
expertise lies in the field of horseracing, the reading of races, and the
interpretation and application of the rules. They are not qualified
advocates or prosecutors, trained in the disciplines applied to court
proceedings. To expect or require of stipendiary stewards to conduct
inquiry proceedings in a manner which might meet every aspect of the
objectives and formalities envisaged by the guidelines to which Mr
Bloomberg has referred us, would be entirely impractical and unrealistic.
On that test, it is likely that most Inquiry Boards would be found to have
fallen short in one way or another, and the very disciplinary function
sought to be exercised by the stipendiary stewards would be frustrated to
a point where the NHA would be unable to exercise its regulatory function.
20. Although we do not deem it necessary, in the light of the circumstances
and principles detailed above, to traverse all the procedural complaints
referred to on behalf of Mr Khumalo, we nonetheless highlight the
following in relation to the procedural complaints raised by Mr Bloomberg:
20.1 It is not in issue that both the chairman of the Inquiry Board, as well as
Mr Timm, were at the time both duly appointed stipendiary stewards in
the employ of the NHA, and as such were indeed eligible to have sat as
members of the Inquiry Board;
20.2 Inquiry proceedings are not new to Mr Khumalo. He is an experienced
jockey, who has been exposed to Inquiry Board proceedings over a
period of many years. By his own admission (made at the appeal
7
proceedings) he has probably attended in excess of 20 (twenty)
inquiries over the years
2
;
20.3 Mr Khumalo was advised of his rights at the commencement of the
inquiry proceedings (page 2 lines 1 - 7);
20.4 Mr Khumalo was present when evidence was procured by the Inquiry
Board from Mr Tarry. Mr Khumalo had every opportunity to deal with
the evidence given and the views expressed by Mr Tarry;
20.5 The evidence provided in terms of the video of the race in question was
repeatedly viewed, and Mr Khumalo had every opportunity (and indeed
availed himself of those opportunities) to react and respond to the
concerns put to him relating
to his ride of SUPERTUBE.
20.6 The suggestion that Mr Khumalo may have been prejudiced by a
refusal on the part of the chairman to permit that he introduce evidence
of the subsequent race in which SUPERTUBE participated, is not
substantiated by the record. There was no request from Mr Khumalo to
introduce evidence of the subsequent race (when the horse was ridden
by a different jockey). A viewing of that race would, in any event, not
have assisted in assessing Mr Khumalo's ride in the race under
consideration. The point which the chairman of the Inquiry Board made
was simply this, namely, that the performance of the horse in one race
(when ridden by a different jockey) is not helpful in assessing the ride
under scrutiny in the inquiry proceedings. The chairman of the Inquiry
Board did not dispute the inference sought to be drawn by Mr Khumalo
(i.e. that the ride in the subsequent race did not result in SUPERTUBE
winning). What was relevant and critical, however, was the manner in
which SUPERTUBE had been ridden by Mr Khumalo in the particular
race forming the subject matter of the inquiry.
20.7 The fact that SUPERTUBE goes out of the picture (out of view) on one
of the camera angles (the side on) for some distance, is not a
circumstance which in any way vitiates the evidence considered by the
2
Appeal transcript page 25 lines 17 - 25
8
Inquiry Board. The only reason that SUPERTUBE goes out of view is
because Mr Khumalo has permitted, in riding SUPERTUBE, that he fall
many lengths behind the balance of the field. The ride remains visible,
throughout, from the head on film.
21. The fact that the chairman of the Inquiry Board, Mr Daniels, may, some
time later, have departed from the NHA "under a cloud", following his
believed involvement in a fraudulent act which an aspirant privilege holder
attempted to perpetrate on the NHA, is not of itself a ground for setting
aside the inquiry proceedings. What has to be assessed is whether or not
the chairperson, in relation to this particular inquiry, acted improperly or in
a manner which vitiates the inquiry proceedings. The criticisms levelled
against the chairperson by Mr Bloomberg do not, in our view, justify any
conclusion that Mr Khumalo was prejudiced in consequence thereof (or
that the proceedings ought to be set aside).
22. In the view of the Appeal Board, due effect was given to the relevant
provisions of the constitution and rules of the NHA, and Mr Khumalo was
afforded a proper hearing in terms thereof, which observed the principles
of fair play.
THE FINDING
23. The Appeal Board had the benefit, at the appeal hearing, of not only the
transcript of the inquiry proceedings, but also the film of the race in
question. In our view, the criticis
ms expressed by the Inquiry Board
relevant to the ride of SUPERTUBE by Mr Khumalo, are justified,
especially in relation to what has been
termed the "first half of the race".
24. Although SUPERTUBE does stumble shortly after the start, and even
though there is a subsequent "nod" just after the stumble, those events do
not explain why it is that Mr Khumalo allowed SUPERTUBE to fall as far
behind the balance of the field, as he did.
25. We have carefully considered the explanations and arguments tendered
by Mr Khumalo in his evidence (and the submissions made in regard
thereto by Mr Bloomberg). To give some perspective to the difficulties
9
which we face, in regard to that evidence and those submissions, it is
appropriate to have regard to the testimony of Mr Tarry, given at the
inquiry proceedings.
26. The following extracts from the evidence given by Mr Tarry are relevant
and significant.
"Listen, I feel if I watch this first half of the race, it's definitely
not what I've asked for. Obviously, once the horse is out of his
ground, now those instructions can't be followed; but the first
half of the race I feel that he didn’t make an effort to have the
horse any handier than it was".
(Page 4 lines 25 – 30)
"...for me [the first half] of the race is the .... of grave concern,
is that half of the race, and ..."
(Page 5 lines 23 – 24)
"But now...we haven’t got to th
e 1300 yet...Ok, so it's all
systems go, or isn’t it? Even going to the 1200, only a furlong
has gone by, yet there doesn’t seem to be a clear decision on
whether the horse is ok to race or not.
(
Page 6 lines 4 – 11)
"I felt the horse could have had a slap or two down the shoulder
going through the 1200 just to ... not give him a hiding, not
scrub him along, but just ... (some encouragement).... just to
say, listen, we're in the race just one or two taps down the
shoulder. And, you know, by the time that the finish comes, I
mean, the race is over"
(Page 9 line 29 to page 10 line 3)
"As I said, my concern, more than anything, was the first part of
the ride...my concern is more at what stage did Mr Khumalo
say, right, this horse feels fine and he's in the race and we're
going to race; and did he at any stage before the 600 encourage
the horse to just start travelling a little bit better. I wouldn’t have
expected him to start jumping
on him and giving him a hiding
that far out, but does Mr Khumalo feel that he gave the horse
the opportunity once he felt that there was a problem."
(Page 11
lines 17 – 29)
10
"... but I'm just not convinced that maximum effort was used
early on, once we were so far...I'm talking about maybe the first
furlong or two."
(Page 12 lines 27 – 29)
"Did you just give him a tap or two down the shoulder just to
encourage him? Maybe he wasn’t responding to the hands –
that’s what I'm saying – so that the fact that you would have
maybe used a stick on his shoulder is a different action to the
hands. So what I am saying: if he wasn’t responding to your
hands and he responded better into the bit, did you not, while
you had him in the bit, flick him down the shoulder once or
twice to encourage him?"
(Page 13 lines 19 – 27)
"But what happened and what you say could have happened
there's like worlds apart. All I am saying is if you had just given
a few slaps down the shoulder at the .... I don’t know ... the
1100 we wouldn’t be sitting here ... to everyone else watching,
the stipes, the trainer, the punters, it doesn’t look like you made
an effort to say ..."
(Page 14 lines 4 – 12)
"There's one thing going to the front, there's one thing sitting
last, and there's about 20 different positions in between."
(Page
15 lines 27 – 29)
27. In our view, Mr Khumalo has not satisfactorily explained the criticisms
levelled against him either by Mr Tarry, or the members of the Inquiry
Board.
28. The fact of the matter is that Mr Khumalo rode SUPERTUBE in a manner
which ensured that, by the time the race reached the last 500m, it was
simply no longer possible for SUPERTUBE to be a realistic participant in
the business end of the race. We wi
ll never know how
close SUPERTUBE
might have ended to the winner, precisely because of the manner in which
SUPERTUBE was ridden by Mr Khum
alo. Having allowed SUPERTUBE
to fall as far behind the field as Mr Khumalo did, he precluded the
possibility of an active participation in the finish.
11
29. We have no doubt that, by failing to take measures to improve his position
in the first 900m of the race, Mr Khumalo failed to ensure that the colt
SUPERTUBE was given a full opportunity to win or obtain the best
possible placing. That SUPERTUBE might never have beaten the winner
on the day, seems probable. How close he may have got, and what
placing might have been achieved, is mere speculation. What is certain in
our minds, however, is that SUPERTUBE was not given a full opportunity
to obtain the best possible placing.
30. We understand Mr Bloomberg to have suggested that a conviction under
Rule 62.2.1 ought not to follow under circumstances where an improper
motive or inducement has not been established in the course of the
inquiry proceedings. We disagree. There is nothing in the particular rule
which requires that any such element or motive be proved. Indeed, it
would only be in rare cases where any improper motive might be
uncovered (a jockey is unlikely, for example, to volunteer that he had
received an improper inducement to ensure that his mount did not run the
race in a manner which might permit its effective participation at the
business end of the race). Evidence of an inducement having been
offered to or received by a jockey would in fact justify an even more
serious charge and conviction under, for example, Rule 72.1.1 and/or
72.1.2, which would be likely to result in a warning off. There is no
evidence of any such inducement in the present instance, and for that
reason a charge under Rule 62.2.1 was appropriate.
31. For these reasons, we are of the view that the finding of the Inquiry Board,
relevant to the conviction under Rule 62.2.1, should be confirmed (and
that the appeal relevant to the finding should be dismissed). We held
accordingly.
THE PENALTY
32. Mr Bloomberg sought to make much of the monetary impact of the penalty
imposed by the Inquiry Board. What Mr Bloomberg's submissions lose
sight of, however, is the fact that the NHA generally prefers, in relation to
riding offences, to impose suspensions (rather than monetary fines), as
12
suspensions tend to "level the playing fields". A suspension of one month,
for example, has the same proportionate earnings impact, irrespective of
the ability or standing of any jockey. In every case, it approximates to one-
twelfth of that jockey's normal average annual earnings. This approach is
necessary in the light of the vast disparities between the earnings of
jockeys, at different levels. It is a fair way of ensuring that a similar penalty
is given to any jockey for a contravention of the same offence.
33. It is certainly within the discretion available to an Inquiry Board to deviate
from the aforesaid norm. In this instance, the Inquiry Board decided, in its
wisdom, to apply the norm (a suspension and not a monetary fine).
34. Mr Bloomberg argued that the penalty in this matter should be treated in a
manner similar to contraventions under Rule 62.2.2 and 62.2.3. In our
view, that would not be a correct approach. Generally speaking, a
contravention of Rule 62.2.1 has, historically, rightly been seen as a more
serious offence. That this is the case is evident from the penalties which
have historically been imposed in relation to offences committed under
that particular rule. As Mr Bloomberg himself emphasised, this rule is in
place so as to discourage jockeys from riding a horse in a manner which
precludes its effective participation in a race (Mr Bloomberg colloquially
referred to this as "pulling" a horse)
3
.
35. Although Mr Bloomberg correctly emphasised that there was no evidence
of any incentive or direct motive which may have induced Mr Khumalo to
ride SUPERTUBE in a manner which might result in a conviction under
this particular rule, that fact does not mean that a severe penalty should
not be imposed. It is only in exceptional circumstances where evidence
might become available which would enable the stipendiary stewards to
demonstrate a proven motive. Were such a motive to be proved (for
example that a jockey accepted a bribe to ensure that a horse did not win)
then a penalty far in excess of the 60 (sixty) day suspension, imposed in
the present matter, would be appropriate. Indeed, a warning off may well
follow.
3
Appeal transcript page 102 lines 13 - 15
13
36. This is not a matter where any improper motive has been proven. What
the Inquiry Board was obliged to be guided by (and what should influence
this Appeal Board) is the precedent in relation to penalties normally
imposed, under similar circumstances, in
relation to contraventions of the
same rule.
37. Mr Roodt was able to furnish us with a history of penalties previously
imposed under Rule 62.2.1. That list is instructive, and having regard to
the importance thereof, it is appropriate to summarise the penalties
imposed in each prior instance, over the period March 2007, to date.
History shows the following:
37.1 On 9 March 2007 Mr F Anthony, on being found guilty of a
contravention of Rule 62.2.1, was suspended from riding in and
attending race meetings for a period of 3 (three) months;
37.2 On 26 April 2007 Mr Sampson, on being found guilty of a contravention
of Rule 62.2.1, was suspended from riding in and attending race
meetings for a period of 3 (three) months. Mr Sampson appealed that
penalty. The Appeal Board dismissed the appeal.
37.3 On 4 May 2007 Mr Malherbe, on being found guilty of a contravention
of Rule 62.2.1, was suspended from riding in races for a period of 3
(three) months;
37.4 On 13 June 2008 Mr L R Coleman, on being found guilty of a
contravention of Rule 62.2.1, was suspended from riding in races for a
period of 3 (three) months. Mr Coleman appealed that penalty. The
Appeal Board dismissed the appeal.
37.5 On 29 August 2008 Mr A C Fortune, on being found guilty of a
contravention of Rule 62.2.1, was suspended from riding in and
attending race meetings for a period of 1 (one) month, which was
wholly suspended for a period of 2 (two) years, on the condition that he
was not found guilty of a contravention of Rule 62.2.1 over the two year
suspended period. He was furthermore fined the sum of R50,000.00.
14
37.6 On 23 September 2011 Mr H Ramlugaan,
on being found guilty of a
contravention of Rule 62.2.1, was suspended from riding in races for a
period of 90 (ninety) days;
37.7 On 9 March 2012 Mr S L Naidoo, on being found guilty of a
contravention of Rule 62.2.1, was suspended from riding in races for a
period of 30 (thirty) days;
38. An analysis of the prior sentences imposed, following convictions under
Rule 62.2.1, indicates that the normal applied is in fact a 3 (three) month
suspension. The only exceptions appear to have been in the instance of
Mr Fortune (as was pointed out at the appeal proceedings, special
circumstances were relevant to that matter), and the offence committed by
Mr Naidoo (when he was suspended for a period of 30 (thirty) days).
39. The Appeal Board is not familiar with the facts or circumstances relevant
to the penalty imposed on Mr Naidoo. One is left to assume that the
Inquiry Board, in that matter, deemed it appropriate, in the exercise of its
discretion, to impose a lighter penalty than the norm. Each matter must be
considered with reference to its own fa
cts. In this matter, the Inquiry Board
deemed it appropriate, in all the circumstances, to impose a 60 (sixty) day
penalty (as opposed to a 3 (three) month suspension).
40. The penalty imposed by the Inquiry Board is in fact a month less than the
norm (if one has regard to past precedent relevant to the same rule). The
Appeal Board is of the view that it
has no proper basis or justification for
interfering with the discretion exercised by the Inquiry Board, and
therefore believes that it would be inappropriate for it to interfere with the
penalty imposed. The Appeal Board, accordingly, declined to do so (and
hence its decision to dismiss the appeal relevant to the severity of the
sentence).
41. There is a further aspect, relevant to the question of penalty, which we
need to deal with (in the light of submissions made by Mr Bloomberg). We
understood Mr Bloomberg to suggest and argue that the Inquiry Board
(and this Appeal Board) ought to have been influenced, in assessing the
