Report to the Membership of South African Sailing on a Disproportionate use of the Federation's Resources

During the past year there has been a disproportionate use of SA Sailing’s resources, in both time and money, in a single matter involving two members. As this meant a substantial opportunity cost, considering what else might have been done with our limited resources, we believe it’s important to give an account to our members as to what transpired.

Last year, two members of SA Sailing threatened legal action in a letter dated 18 August 2018 in an effort to pressure SA Sailing into awarding them National Colours. This despite the fact that, in alignment with SASCOC’s protocol on Protea Colours, we stopped awarding SA Sailing National Colours with effect from 2011. From the outset and over the course of nearly a year the two members adopted the approach of sending multiple demands for the award of colours under threat of legal proceedings and an action for defamation. The Council's repeated attempts to avoid protracted and expensive litigation by establishing an independent arbitration process were rejected.

On 29 March 2019, the two members filed a High Court application seeking an order against SA Sailing. Our Answering Affidavit (attached) represents SA Sailing’s response to the applicants' demands for the award of colours. The Answering Affidavit (219 pages) is a comprehensive account, setting out a full history of this saga. There was also an earlier Record of Proceedings filed by SA Sailing (66 pages).

In short, the principal grounds for opposing the application were as follows:-

1. Their application sought a High Court review of the Council's decision to decline the award of colours in terms of the Promotion of Administrative Justice Act (PAJA). In the circumstances, the provisions of PAJA they relied upon do not apply to SA Sailing.
2. The applicants asserted SA Sailing was entitled to exercise powers delegated by SASCOC to award National Colours. The assertion was shown to be without merit.
3. The applicants failed to address the precedent of the past eight years, namely that National Colours had not been awarded by SA Sailing since 2011, even in the face of many more important successes on the international circuit.
4. The applicants represented that they had secured two hundred points in two years in domestic competition but failed to appreciate that, even in the days when SA Sailing did award National Colours, this needed to be in the “SAME” class. The applicants' points were accumulated in two different classes ie the J22 and Hunter Classes.
5. The applicants were unable to account for the fact that their application failed to achieve a two- thirds vote in favour of the award of colours as required at Council.
6. The applicants questioned whether there had indeed been a Rule 69 hearing at the Lipton Cup in 2018, after complaints of their unacceptable conduct.

No fewer than seven affidavits from members of the Protest Committee, from the Vice Commodore of PYC, the Lipton Cup Race Officer and a Lipton Cup Trustee confirmed the Rule 69 hearing and its finding. In any event the applicants did not think it was a “very serious” offence and said it amounted to “a minor transgression”.

SA Sailing’s reasons for opposing the application were threefold:-

-SA Sailing’s five- part strategy is underpinned by being a “professionally competent organisation”.

-Council’s prerogative to decide, with the requirement of a two thirds majority, on the merits of a colours award is supported by sound logic.

-Opposing the application expresses unequivocal support for those who volunteer in good faith to run regattas and administer the sport for the benefit of thousands who enjoy sailing.

The last point is crucial. How will sailors enjoy the benefit of competent, motivated lovers of the sport who give of their time and skills to run great regattas if the national body fails to stand up for them when gratuitously criticised and ridiculed? A standard is set for what is acceptable in sailing circles and what kind of behaviour is unacceptable. It is clear what is expected both on the water and in the club house after the racing. Our youth know what is expected and who to look up to.

There were seven Affidavits from SA Sailing which together with annexures totalled 304 pages. They were the product of hundreds of man hours contributed by many people. All in all the representation of SA Sailing’s case involved a co-ordinated effort to secure the inputs of 17 people. This came on top of 11 months of co-ordinated responses from SA Sailing to a series of letters threatening legal proceedings. On their side the Applicants had two people and a lawyer generating a lot of distracting work for the Federation.

The applicants capitulated, ostensibly for the fact that their points had not been accumulated in the same class. They blamed SA Sailing for not having pointed this out to them, ignoring their own failure in this regard and their not substantiating arguments on any of the five other points mentioned above.

Upon withdrawing their application, the applicants proposed that each party bears its own costs. This was rejected. In the event they contributed R30 000 towards SA Sailing’s costs of R91 065.20. SA Sailing has had a successful outcome at a very reduced cost thanks to a cost-effective law firm and the generosity of Philips Daniels, Senior Counsel at the Johannesburg Bar. Philips generously donated all his time without charge. We owe Philips a great debt of gratitude. Nonetheless, the net cost to SA Sailing is the equivalent of 107 annual memberships.