Robert Khathi Issues Review Application Vs NHA And Moodley

By December 19, 2023Featured Article, SA Racing

Robert Khathi, aboard Cape Eagle who is between horses, was handed a 120 day suspension for this ride. It was  adjudged he had failed to give the horse a full opportunity to win or to obtain the best possible placing (Picture: Candiese Lenferna)
Turf Talk
Robert Khathi has issued a review application versus the NHA and Vee Moodle through his lawyers to the High Court.
This revolves around a 120 day suspension he was given after being found guilty of a contravention of rule 62.2.1 after an inquiry into his ride on Cape Eagle at Hollywoodbets Greyville on 15 October in the Michaelmas Handicap.
Rule 62.2.1 states: 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;
However, his application to the High Court is not about the fairness of the inquiry outcome.
Rather it is about about the NHA and its CEO Vee Moodley denying Khathi an appeal after the prescribed fee for the appeal arrived more than 48 hours late.
The NHA rules on this matter state:
85.6 Any PERSON who wishes to appeal pursuant to the provisions of RULE 85.1 (“the appellant”) shall give notice in WRITING of his intention to appeal (“Notice of Intention to Appeal”) within 7 DAYS from the date on which the finding, penalty or decision to be appealed against has been communicated to him. The Notice of Intention to Appeal shall be addressed to the CHIEF EXECUTIVE and shall be delivered within the prescribed time limit to the CHIEF EXECUTIVE. 
85.7 Every Notice of Intention to Appeal shall be accompanied by the prescribed fee
On November 17 Khathi made an email request to the NHA asking for a copy of the transcript/recording of the inquiry and a copy of the rules (sepcifically the 62.2.1, 85.6 and 85.7) and penalty guidelines.
He received a reply on the same day saying the guidelines were attached and that a transcript would be sent when available.
However, apparently the guidelines were not attached.
On November 20 Khathi made another request by email for the guidelines and transcript.
To date he has never received a response.
Khathi will claim he did not have the relevant information necessary to make a good decision on whether he should go ahead with the appeal or not.
As it happened he only contacted his lawyers Shepstone and Wylie for help on November 20.
It was only then that he became aware that the prescribed fee for the appeal was due on that same day, November 20.
He had not seen the rules and guidelines and his lawyer informed him of the November 20 deadline.
Khathi’s notice of intention to appeal was duly served to the NHA by his lawyer on November 20.
The NHA were also notified by the lawyer of Khathi’s intention to pay the fee.
Khathi will point out to the high court that the fee of R8,950 was a substantial amount and he did not have the money immediately available. He had to raise the money through financial assistance from the Jockey Association, of which he is a member.
Khathi paid the fee on the morning of November 23.
He had been informed by the NHA that the option to appeal had fallen away due to the non-payment of the fee.
However, Khathi, through his lawyer, then excercised rule 85.10:
85.10 Should a Notice of Intention to Appeal or Notice of Appeal not be lodged within the prescribed time periods, the right of appeal or the appeal as the case may be shall lapse; provided that the CHIEF EXECUTIVE may, on written application to him, in his sole discretion and on such terms and conditions as he may determine, condone the late lodging and reinstate any appeal which has lapsed.
However, the NHA CEO Vee Moodley responded by acknowledging the recipt of the email, which requested a reinstatement of the appeal, and then stating: As the payment was not made timeously I am not able to entertain the request. The directive is consistent with prior practices.
Moodley was contacted by Turf Talk about the matter.
He pointed out the rule uses the word “shall” which indicates a future obligation or requirement and not just a future action as would be the case with the word “will”.
He said the same denying of an appeal had been made for the same reason i.e. late payment, to multiple jockeys including S’Manga Khumalo, Chase Maujean and Dennis Schwarz.
He used the analogy of a car license where the law of the land gives a grace period of 20 days to apply for a new license, but if caught driving with an expired license after that period a policeman or judge would not entertain an explanation that there had been a lack of funds.
Khathi will claim the response from Moodley was procedurally unfair and irrational in that he did not appear to consider the merits of his particular case and rather just referred to prior practises.
All of the above is just the layman’s interpretation of the papers.
However, it is apparent that the finer points of the law will also be used in an attempt to establish that Khathi was unfairly denied the chance to appeal.
Moodley said he had his reasons for making the decision and they will also be presented in court.
Without an appeal, the next stage of the process is for the case to be heard by an inquiry review board.
The big difference between the latter and an appeal is that legal representation is not allowed at an inquiry review hearing.
The inquiry finding on Khathi’s ride is stated below:

The National Horseracing Authority confirms that at an Inquiry held in Durban on Tuesday, 7 November 2023, Jockey R Khathi was charged with a contravention of Rule 62.2.1.  The particulars being, that whilst riding CAPE EAGLE, he failed to take all reasonable measures throughout the race to ensure that this gelding was given a full opportunity to win or obtain the best possible placing in Race 6 at Hollywoodbets Greyville Racecourse on 15 October 2023. 

 Jockey Khathi pleaded not guilty but was found guilty of the charge. 

The Inquiry Board, after considering the mitigating and aggravating factors and that it was found that Jockey Khathi had failed to ride CAPE EAGLE out with sufficient vigour and determination which in the opinion of the Stewards, had a bearing on the result of the race,  ruled that he be suspended from riding in races for a period of 120 (one hundred and twenty days). 

Jockey Khathi was given the Right of Appeal against both the finding and the penalty imposed.   

The merit of this decision is difficult to judge in Turf Talk’s opinion.

When Khathi won on this horse in March at the same venue it was clear he kept the stick away until the 200m mark, as he did in the race in question (The Michaelmas).

He did ride with way more vigour from the 200m mark in both his winning rides on Cape Eagle at the same venue (November last year and March this year 2023) than he did in the Michaelmas. In fact some, in this day and age, would have been unhappy with how hard he hit the horse with both the right hand and the left hand on those two winning  occasions. However, importantly, he had no horses on his outside or inside on those two occasions, so was able to whip freely without fear of any ducking away from the whip causing interference.

In the two aforementioned wins, Cape Eagle displays a significant turn of foot on both occasions when the whip was changed from the right hand to the left hand late in the race. The burst of speed won him the race on both occasions. However, on both occasions he ducked significantly away from the left-handed whip.

In the Michelmas Khathi gives the horse two gentle reminders with the right hand after the 200m mark.

He then switches the stick to the left hand and the horse looks poised to make his familiar winning burst.

However, Khathi after one left handed back-hander puts the stick away and ride with the hands.

He then makes a hash of driving the horse out with the hands for the remaining 50 metres of the race, to be frank, and finishes a neck back in third with the horse holding his head up and to the side.

The mitigating circumstances would be that he had horses on his outside at the 200m mark, so might have decided the vigorous right hand use of the whip would have posed a risk of his horse causing interference to those horses.

Then he gets into a bit of a tangle when he is transferring the whip to his left hand and the horse hangs to the right interfering with another horse.

When he does have the stick in his left hand the eventual winner has appeared on his inside, so he might have been mindful of Cape Eagle’s tendency to duck away from the left handed use of the stick, bearing in mind too he had already interfered with a horse on his outside.

The horse does have it’s tongue hanging out to the side when the attempt is being made to steer him straight in the final stages.

It would not have been nominated for ride of thr season, but the question was whether it deserved a three month suspension?

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