1. A commission of inquiry which has no power to compel witnesses to testify becomes an exercise in futility if material witnesses refuse to share their full knowledge with the commissioner. In the present case my

investigation of the matters listed in paragraphs (a) and especially (b) of the resolution of 22 June 2013 was frustrated by the reticence of certain ASA members. 2. I commenced the inquiry by drawing the attention of all ASA members to the invitation in the second paragraph (a) in the resolution. Initially I received a complaint from Me Magda Botha only. I will deal with that later. Then, because the meeting of 9 March 2013 had been convened as a result of letters containing identical accusations of misconduct on the part of the president written to the vicepresident by six members, I emailed a list of preliminary general questions to these members in an attempt to establish the validity of the charges in their letters. My intention was to question them further depending on their answers to these initial inquiries. In response I receive a letter from their attorney Mr Oupa Skosana informing me that the letters had been written for the purpose of 1

impeaching the president “there being accusations that there were payments made and instructions given to staff to make payments from ASA account without the Board’s knowledge and authority.” In a further email I pointed out to him that I could not confront the president with such a general accusation and, firstly, requested him to inform me of the date and amount of each alleged payment and instruction, the name of every person to whom such an instruction had allegedly been given with a copy of every written instruction and, secondly, intimated that, if any of his clients were unable to supply this information, I wanted to know on what grounds he or she had relied for writing the letter. Although I expressly stated that this information was required by not later than 21 October 2013 I have not received a reply to this day. 3. I presume that the writers of the letters were advised that they need not reply (and indeed they are not obliged to do so); but, without their cooperation, I have no way of investigating the validity of their allegations for purposes of paragraph (a) of the resolution appointing the commission; nor is it possible to perform a proper examination of ASA’s affairs for purposes of paragraph (b).


4. By the same token however it is plain that the accusations of irregularities on the president’s part have not been established. 5. Moreover, the decision taken at the meeting of 9 March 2013 was probably invalid for the simple reason (apart from other possible grounds) that according to the minutes of the meeting “Mr James Evans was impeached and removed as President of Athletics South Africa”. Impeachment, whether it be in ordinary language or for purposes of the ASA constitution, simply means the formal laying of charges. But it need hardly be stated that once a decision is taken to impeach a member of an association/company like ASA he has a variety of rights that must be observed before and during the proceedings to remove him from office. According to the minutes the decision to impeach and the decision to remove Mr Evans from office were taken as one without any regard to his rights before and after impeachment and the indication in the vice-president’s letter of 15 February 2013 explaining the reason for convening the meeting that
“[s]hould the Membership of the Special General Meeting vote in favour of impeachment proceedings, then the matter will be referred to an independent tribunal for them to decide on whether the allegations made are correct, or not.”)

6. I have no doubt that this inept handling of the complaints against the president at the meeting brought the ASA in 3

disrepute irrespective of whether or not it contravened the IAAF rules or the ASA constitution. 7. Since I have been mandated to make recommendations as to any action to be taken against any person or persons I must point out that the persons attending the meeting received procedural guidance from a SASCOC

representative (Mr Mubarak Mahomed) and can hardly be blamed for the way in which the proceedings were handled. I must also point out that the relevant provisions of the ASA constitution are by no means easy to follow. For these reasons I do not recommend any action against them. 8. And as for the six writers of the letters it cannot on the available evidence be said that their complaints were groundless. However, I would like to hear why, given the opportunity to do so, they were not prepared to reveal the evidence on which their accusations were based. 9. I turn to Me Botha’s complaint. It is to the effect that Mr Pieter Lourens, the chair of the Track and Field Commission (of which she is a member) unilaterally sent out new qualifying standards for 2013 to the provincial bodies in spite of a recommendation by the other members of the committee that the 2012 standards be retained. I emailed the complaint together with all the supporting correspondence to Mr Lourens and invited him to respond; 4

but, apart from quite unnecessarily asking for ‘clarity’ and being informed that Me Botha had complained about his conduct as already described, he did not condescend to reply. The result is that Me Botha’s allegation stands uncontradicted and is in any event borne out by the correspondence. It is quite clear that Mr Lourens tried to use his authority as chair of the committee to force (apparently entirely unrealistic) new qualifications

through. I recommend that he be removed from office as chair of the Track and Field Commission and not be appointed in future as chair of any committee of ASA.

Bloemfontein 28 October 2013 JJF HEFER


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