Deeps Betting Grounds (Pty) Ltd t/a Scorbet v Northern Cape Gambling Board and Another (1698/2019) [2020] ZANCHC 15 (20 March 2020)

Reportable:

YES / NO

Circulate to Judges:

YES / NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

Case no:

1698/2019

Date heard:

21/02/2020

Date delivered: 20/03/2020

In the application of:

DEEPS BETTING GROUNDS (PTY) LTD t/a SCORBET Applicant

and

NORTHERN

CAPE GAMBLING BOARD

1st Respondent

DESERT PALACE HOTEL RESORT (PTY) LTD

2nd Respondent

in re:

DESERT PALACE HOTEL RESORT (PTY) LTD

Applicant

DEEPS BETTING GROUNDS (PTY) LTD t/a SCOREBET 1st Respondent

NORTHERN

CAPE GAMBLING BOARD

2nd Respondent

Coram: Dauds, AJ

JUDGMENT

ON APPLICATION FOR LEAVE TO APPEAL

DAUDS AJ

[1] This matter was heard on 1 November 2019 and judgment delivered on 13 December 2019. It involved a counter-application to an application brought by Desert Palace Hotel (Pty) Ltd (hereinafter “Deeps Betting”). The counter-application was dismissed with costs and Deeps Betting then brought an application for leave to appeal the Court’s decision to, preferably, the Supreme Court of Appeal. The grounds of appeal were set out as follows in Deeps Betting’s application for leave to appeal:

1.1 the Court erred in dismissing the counter-application, and in ordering the Applicant (Deeps Betting) to pay the costs;

1.2 the Court failed to have regard to the decision of the Constitutional Court in The Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at para. 179 – 199;

1.3 more pertinently, the Court failed to accept and appreciate that:

1.3.1 the order of the Supreme Court of Appeal had to be complied with, irrespective of whether the Northern Cape Gambling Board or the [this] Court agreed with the order;

1.3.2 the order of the Supreme Court of Appeal exists in fact, which obligates the Northern Cape Gambling Board to either have it set aside or comply with it. But to refuse to comply with the order because of the Gambling Board’s opinion that it countenances an illegality was not a defence, nor a reason for non-compliance;

1.4 the Court moreover erred in holding, in any event, that the order offends against Regulation 7(c) of the Northern Cape Gambling Board Regulations. More importantly, the Court failed to appreciate that:

1.4.1 the order of the Supreme Court of Appeal was the culmination of an intra curiae dispute the Applicant had with the Northern Cape Gambling Board on the true interpretation of the said regulation. This the Court was told during argument and in the papers before Court, but the Court apparently chose to ignore this fact;

1.4.2 the Applicant (Deeps Betting) contended that the regulation and the 500-metre radius requirement was not a rule of thumb, and the Gambling Board contended to the contrary. That was the dispute the Supreme Court of Appeal was faced with and had to pronounce upon;

1.4.3 there served before the Court no evidence to suggest that the five Justices of Appeal who granted the order that made the settlement agreement an order of Court did not appreciate the effect of the order;

1.4.4 the Court (the Supreme Court of Appeal) would not have granted the order if it opined that the order would amount to the Applicant conducting its business at 23 Scott Street, Upington would be doing so unlawfully;

1.4.5 it was wholly inappropriate for this Court – given the prescript of the stare decisis principle – to find differently, and that without the Court pronouncing upon the true intention of the Regulation at all.

[2] During argument in the application for leave to appeal, Mr Grobler SC for the Applicant, emphasised that the Tasima case was an important case and urged the Court to read the case again with particular reference to paras. 186, 188 and 195. The Court accepted the invitation to read the Tasima case, and has done so – once more.

[3] In paragraph 180 of its judgment in the Tasima case, the Court states that:

“The general rule is that orders that do not concern constitutional invalidity do have force from the moment they are issued.”

[4] In the very next paragraph of its judgment, namely, paragraph 181, the Court reminds us that the common law has long recognised the above position as is apparent from the Honeyborne[1] case.

[5] Further down in paragraph 186 of its judgment, the Court makes it clear that the legal consequence that flows from non-compliance with a Court order is contempt.

[6] In paragraph 188 of the Tasima case, the Court deals with judgments that found that, in law, conduct or a decision taken in contravention of a statutory prohibition is invalid and the Court expresses its disagreement with those judgments, and criticises the Motala[2] judgment which, according to the Court in the Tasima case, endorsed the principle that a thing done contrary to a direct prohibition of the law, is void and of no force and effect. Referring to the Tsoga case, the Court says the following in paragraph 197 of its judgment:

“As explained in Tsoga, Motala is only authority for the proposition that if a Court is able to conclude that what the Court [that made the original decision] has ordered cannot be done under the enabling legislation, the order is a nullity and can be disregarded[3].” (my emphasis)

[7] That, in fairness, is the test as laid down in the Tsoga case and endorsed in the Tasima case, namely, is the Court before which the matter is heard able to conclude that what the Court that made the original decision has ordered cannot be done under the enabling legislation? If what the Court ordered cannot be done, then it follows that that Court’s order is a nullity and can be disregarded.

[8] It is common cause that the enabling legislation in the Deeps Betting matter is the Northern Cape Gambling Act 2008, including its Regulations. According to Regulation 7(c) of the Northern Cape Gambling Regulations, the Northern Cape Gambling Board, established in accordance with the Northern Cape Gambling Act, may not issue a licence to an Applicant if the premises from which the gambling activities will take place are within 500 metres of a school or a place of worship. The gambling activities (bookmaker’s activities) of the Applicant (Deeps Betting) are to be conducted at 23 Scott Street, Upington, Northern Cape Province (Erf 7195). It is common cause that these premises are within 500 metres of a primary school and a high school (i.e. 385 metres in a straight line of the Op die Voorpos Primary School in Upington and 210 metres in a straight line of the Upington High School).

[9] Having regard to the above, this Court has concluded that what the Supreme Court of Appeal has ordered on 4 March 2019 cannot be done. In terms of Regulation 7(c) of the Northern Cape Gambling Regulations, the Northern Cape Gambling Board may not grant the Applicant (Deeps Betting) permission or issue it a licence to conduct bookmaker’s activities at 23 Scott Street, Upington, which is within 500 metres of a primary school and a high school, yet this is what the Supreme Court of Appeal ordered.

[10] In paragraph 4.2 of its application for leave to appeal, the Applicant writes as follows:

“The Applicant contended that the regulation and the 500m radius requirement was not a rule of thumb, and the Gambling Board contended

the contrary.”

[11] When the counter-application was heard, Mr Grobler SC (for the Applicant) submitted that the 500-metre radius was not a rule of thumb. It was not clear to the Court, and still is not, what was meant by this. If it was intended to mean that Regulation 7(c) of the Northern Cape Gambling Regulations may be avoided entirely, then the contention has no legal foundation. If it was intended to mean that Regulation 7(c) may be ignored whenever it suits the occasion, the contention has no legal foundation either. If it was intended to mean there are exceptions to the application of Regulation 7(c) depending on the circumstances, there is no basis for such an interpretation of the Regulation.

[12] In paragraph 1.4.3 of its application for leave to appeal, the Applicant contends that there is no evidence to suggest that the five Justices of the Supreme Court of Appeal who granted the order on 4 March 2019 did not appreciate the effect of the order. The Applicant contends further in paragraph 1.4.4 of its application that the Supreme Court of Appeal would not have granted the order if it was of the opinion that the Applicant would be acting unlawfully if it conducted its bookmaker’s activities from 23 Scott Street, Upington in accordance with the order.

[13] All that needs to be said of the Applicant’s contentions as repeated in paragraph 12 above is what the Constitutional Court said in paragraph 182 of the Tasima case, namely, that that Court (the Constitutional Court), and so does the Constitution, accepts the Judiciary’s fallibilities. And as the Court pointed out further, like administrators, Judges are capable of serious error.

Order

[14] Having considered the application for leave to appeal as well as the submissions in support thereof, this Court is of the opinion that the appeal has no reasonable prospect of success. The application for leave to appeal is accordingly denied with costs.

DAUDS AJ

For the Applicant: Adv. S Grobler SC

Attorneys: Van de Wall Incorporated, 69 Memorial Road, Kimberley

For the 1st Respondent: Adv. G Ngcangisa

The State Attorney, cnr Lennox and Chapel Street, Kimberley

For the 2nd Respondent: Adv. ES Grobbelaar

Attorneys: Morkel & De Villiers Incorporated, The Forum, 13 Drama Street, Somerset West c/o Engelsman Magabane Incorporated, 80 Du Toitspan Road, Kimberley

[1] In re: Honeyborne (1876) 7 Buch 145 at 150

[2] Master of the High Court, Pretoria v Motala NO 2012 (3) SA 325 (SCA)

[3] Provincial Government, North West & Another v Tsoga Developers CC & Others 2016 (5) BCLR 687 (CC) at para. 50