Merensky v Chairperson, North-West Gambling Board and Others (1436/2005) [2005] ZANWHC 89 (24 November 2005)

CASE NO. 1436/2005

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

DUAN MERINSKY APPLICANT

and

CHAIRPERSON, NORTH WEST GAMBLING BOARD 1ST RESPONDENT

MR J.C. ERASMUS 2ND RESPONDENT

MR R. BARNES N.O. 3RD RESPONDENT

INSPECTOR C.H. VON BENECKE N.O. 4TH RESPONDENT

THE MINISTER OF SAFETY & LIAISON 5TH RESPONDENT

THE MEC FOR ECONOMIC DEVELOPMENT & TOURISM 6TH RESPONDENT

______________________________________________________________________

JUDGMENT

MOGOENG JP.

Introduction

[1] The Applicant, who describes himself as the owner of the business known as “Maxi Millions” has brought an urgent application against the Chairperson of the North West Gambling Board and others for an order set out below: “2. That the respondents’ seizure of the items listed on annexure “DM1” at the premises known as “Maxi Millions” situated at Delta Centre, Shop No. 4, corner Nelson Mandela and Berg Streets, Rustenburg, North West, be declared invalid, ultra vires the provisions of section 65 of the North West Gambling Act, 2001, and be set aside. 3. That the respondents forthwith restore possession to the applicant of the items listed on annexure “MD1”. 4. That the provisions of section 65(3) of the North West Gambling Act, 2001, be declared to be unconstitutional insofar as it is ultra vires the provisions of section 342 of the Criminal Procedure Act, and that pending the confirmation thereof of the Constitutional Court in terms of section 172 of Act 108 of 1996, the respondents be interdicted from acting in terms of the said section 65(3). 5. That those respondents who oppose this application be ordered to pay the costs thereof.” [2] In an apparent attempt to either found or strengthen the basis for asking for a spoliation order, as he now does, the Applicant handed to Court a Supplementary Affidavit on the day of the hearing to the following effect: “2. I have been advised that for purposes of completeness and in order to leave no doubt in that regard, it was necessary for me to depose to this supplementary affidavit in order to highlight the following: I have at all relevant times, up until the events of 28 October 2005, been in the peaceful and undisturbed possession of my equipment that was seized by the second respondent on the evening of 28 October 2005. 3. I do apologise for the failure to have this set out in my founding affidavit as clearly as I do now and I apologise for any

inconvenience caused thereby. I do, however, wish to submit that it is in the interest of justice that this further supplementary affidavit be admitted on the basis that it contains averments which are material to my case.” I turn now to deal with the facts of this matter. Facts [3] Applicant alleges that he is the owner of a business conducted at shop No. 4, corner Nelson Mandela and Berg Streets, in Rustenburg. He has been the owner for some two months as at the time this application was launched. When he took over the goodwill of the business, he installed his own electronic equipment at the premises which he has been using to entertain the patrons who frequent his business. Those machines, as he puts it, are not machines usually found within the confines of a casino, although he also keeps machines which in appearance look similar to what are traditionally known as “slot machines” but not as defined by the North West Gambling Act. [4] On 28 October 2005 at about 19h45, the second Respondent, an inspector of the North West Gambling Board, came to the Applicant’s business accompanied by the third and fourth Respondents, a policeman and an inspector of the North West Gambling Board respectively, (hereinafter referred to as “the team”). They identified themselves, so says the Applicant, in a manner that did not allow the Applicant to see their identification cards properly. The second Respondent demanded to enter the premises in terms of s 65 of the North West Gambling Act No. 2 of 2001 (“the Act”), but did not specify what he intended to do inside the premises. He threatened to arrest the Applicant if he did not open the door for him.

[1] The Applicant, who describes himself as the owner of the business known as “Maxi Millions” has brought an urgent application against the Chairperson of the North West Gambling Board and others for an order set out below:

“2. That the respondents’ seizure of the items listed on annexure “DM1” at the premises known as “Maxi Millions” situated at Delta Centre, Shop No. 4, corner Nelson Mandela and Berg Streets, Rustenburg, North West, be declared invalid, ultra vires the provisions of section 65 of the North West Gambling Act, 2001, and be set aside.

3. That the respondents forthwith restore possession to the applicant of the items listed on annexure “MD1”.

4. That the provisions of section 65(3) of the North West Gambling Act, 2001, be declared to be unconstitutional insofar as it is ultra vires the provisions of section 342 of the Criminal Procedure Act, and that pending the confirmation thereof of the Constitutional Court in terms of section 172 of Act 108 of 1996, the respondents be interdicted from acting in terms of the said section 65(3).

5. That those respondents who oppose this application be ordered to pay the costs thereof.”

[2] In an apparent attempt to either found or strengthen the basis for asking for a spoliation order, as he now does, the Applicant handed to Court a Supplementary Affidavit on the day of the hearing to the following effect:

“2. I have been advised that for purposes of completeness and in order to leave no doubt in that regard, it was necessary for me to depose to this supplementary affidavit in order to highlight the following:

I have at all relevant times, up until the events of 28 October 2005, been in the peaceful and undisturbed possession of my equipment that was seized by the second respondent on the evening of 28 October 2005.

3. I do apologise for the failure to have this set out in my founding affidavit as clearly as I do now and I apologise for any

inconvenience caused thereby. I do, however, wish to submit that it is in the interest of justice that this further supplementary affidavit be admitted on the basis that it contains averments which are material to my case.”

I turn now to deal with the facts of this matter.

Facts

[3] Applicant alleges that he is the owner of a business conducted at shop No. 4, corner Nelson Mandela and Berg Streets, in Rustenburg. He has been the owner for some two months as at the time this application was launched. When he took over the goodwill of the business, he installed his own electronic equipment at the premises which he has been using to entertain the patrons who frequent his business. Those machines, as he puts it, are not machines usually found within the confines of a casino, although he also keeps machines which in appearance look similar to what are traditionally known as “slot machines” but not as defined by the North West Gambling Act.

[4] On 28 October 2005 at about 19h45, the second Respondent, an inspector of the North West Gambling Board, came to the Applicant’s business accompanied by the third and fourth Respondents, a policeman and an inspector of the North West Gambling Board respectively, (hereinafter referred to as “the team”). They identified themselves, so says the Applicant, in a manner that did not allow the Applicant to see their identification cards properly. The second Respondent demanded to enter the premises in terms of s 65 of the North West Gambling Act No. 2 of 2001 (“the Act”), but did not specify what he intended to do inside the premises. He threatened to arrest the Applicant if he did not open the door for him.

[5] The second Respondent and his team allowed the Applicant to seek advice from a total of four attorneys about whether he should let them inside the premises or not. His attorneys discussed the matter with the second Respondent and he told them that the purpose of his visit was to act in terms of s 65 of the Act. They all advised the Applicant against allowing the second Respondent and his team into the premises. The second Respondent repeatedly threatened to arrest the Applicant if he did not open the door for him. [6] Eventually, the Applicant switched off the lights inside the business and left through the back door. Apparently, when he did this, neither the second to fourth Respondents nor his attorneys saw him. [7] The second Respondent and his team then broke the security gate open and entered the premises. The version of the Respondents appear below.

[5] The second Respondent and his team allowed the Applicant to seek advice from a total of four attorneys about whether he should let them inside the premises or not. His attorneys discussed the matter with the second Respondent and he told them that the purpose of his visit was to act in terms of s 65 of the Act. They all advised the Applicant against allowing the second Respondent and his team into the premises. The second Respondent repeatedly threatened to arrest the Applicant if he did not open the door for him.

[6] Eventually, the Applicant switched off the lights inside the business and left through the back door. Apparently, when he did this, neither the second to fourth Respondents nor his attorneys saw him.

[7] The second Respondent and his team then broke the security gate open and entered the premises. The version of the Respondents appear below.

[8] According to the second Respondent, he received information that machines, which required a licence in terms of the Act to be used, were being used at the Applicant’s business premises. It was for this reason that they visited the premises on the day in question. The purpose of the visit was to inspect the machines and to carry out such duties as they may have had to carry out in terms of s 65 of the Act. [9] They introduced themselves to the Applicant and produced their identity cards. The purpose of their visit was also stated as being to conduct an inspection in terms of s 65 of the Act. The Applicant refused them entry and expressed the desire to seek the counsel of his attorneys. He consulted Mr Wissing of Mafikeng, Messrs van der Westhuizen, Mapekulo and Smit of Rustenburg. The latter three were present at the Applicant’s business premises on the evening of the incident.

[8] According to the second Respondent, he received information that machines, which required a licence in terms of the Act to be used, were being used at the Applicant’s business premises. It was for this reason that they visited the premises on the day in question. The purpose of the visit was to inspect the machines and to carry out such duties as they may have had to carry out in terms of s 65 of the Act.

[9] They introduced themselves to the Applicant and produced their identity cards. The purpose of their visit was also stated as being to conduct an inspection in terms of s 65 of the Act. The Applicant refused them entry and expressed the desire to seek the counsel of his attorneys. He consulted Mr Wissing of Mafikeng, Messrs van der Westhuizen, Mapekulo and Smit of Rustenburg. The latter three were present at the Applicant’s business premises on the evening of the incident.

[10] After it had become clear that the Applicant and his attorneys were not prepared to let the second Respondent and his team into the premises, and after the Applicant had disappeared, the second Respondent and his team decided to break the gate open so as to arrest the Applicant for committing an offence of obstructing and hindering them in contravention of the provisions of s 82(e) of the Act. [11] Consequently, the second to fourth Respondents broke the security gate and entered the premises accompanied by Smit, the attorney. They switched the lights on and looked for the Applicant but could not find him (this is denied by Mr Smit). Thereafter, they inspected the machines and discovered that some of them looked very much like those found in casinos. They also played one of them which instead of giving them not more than 10 credits, as an amusement machine should, gave them as much as 371 to 700 credits. All this took place in the presence of Smit and is not denied. Having satisfied themselves, based on their experience, that these were gambling machines which seem to require a licence to be possessed, in terms of the Act, they seized them all. The issue [12] This then is an application for their return to the Applicant. Put crisply, the Applicant’s case is that he was in a peaceful and undisturbed possession of the amusement machines and that the Respondents unlawfully deprived him of his possession. Unlawful, in this context obviously means a dispossession without the plaintiff’s consent or without due legal process (See Sillo v Naude 1929 AD 21; and Ntai v Vereeniging Town Council 1953 (4) SA 579 (A)). [13] The issue in this matter is whether or not the second to fourth Respondents were, in terms of s 65 read with s 82(e) of the Act, entitled to break into the premises and seize the machines. The merits [14] The relevant extracts from s 65 are: “65. Powers and functions of inspectors.—(1) An inspector shall for the purpose of this Act— (a) enter upon any licensed or unlicensed premises which are occupied or being used for the purposes of any gambling activities or any other premises on which it is suspected— (i) that a casino or any other gambling activity is being conducted without the authority of a licence, (ii) that persons are being allowed to play or participate in any gambling game or other gambling activities or to play any gambling machine, or (iii) that any gambling machine or any equipment, device, object, book, record, note, recording or other document used or capable of being used in connection with the conducting of gambling games or any other gambling activity may be found, and may, after having informed the person who is deemed or appears to be in charge of the premises of the purpose of his or her visit, make such investigation or enquiry as he or she may think necessary; (b) with regard to any premises referred to in paragraph (a)— . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) question any person who is on or in such premises, and inspect any activities in connection with the conduct of any gambling activity, (iii) examine or inspect any gambling machine, equipment, device, object, book, record, note or other document referred to in paragraph (a) found on the premises and make a copy thereof or an extract therefrom, (iv) inspect and examine all premises referred to in paragraph (a) or any premises where gambling devices or equipment are manufactured, sold, distributed, or serviced, wherein any records of such activities are prepared or maintained. (v) inspect all equipment and supplies, in, about, upon or around such premises, (vi) seize summarily and remove from such premises and impound any such equipment or supplies for the purpose of examination and inspection.”

[10] After it had become clear that the Applicant and his attorneys were not prepared to let the second Respondent and his team into the premises, and after the Applicant had disappeared, the second Respondent and his team decided to break the gate open so as to arrest the Applicant for committing an offence of obstructing and hindering them in contravention of the provisions of s 82(e) of the Act.

[11] Consequently, the second to fourth Respondents broke the security gate and entered the premises accompanied by Smit, the attorney. They switched the lights on and looked for the Applicant but could not find him (this is denied by Mr Smit). Thereafter, they inspected the machines and discovered that some of them looked very much like those found in casinos. They also played one of them which instead of giving them not more than 10 credits, as an amusement machine should, gave them as much as 371 to 700 credits. All this took place in the presence of Smit and is not denied. Having satisfied themselves, based on their experience, that these were gambling machines which seem to require a licence to be possessed, in terms of the Act, they seized them all.

The issue

[12] This then is an application for their return to the Applicant. Put crisply, the Applicant’s case is that he was in a peaceful and undisturbed possession of the amusement machines and that the Respondents unlawfully deprived him of his possession. Unlawful, in this context obviously means a dispossession without the plaintiff’s consent or without due legal process (See Sillo v Naude 1929 AD 21; and Ntai v Vereeniging Town Council 1953 (4) SA 579 (A)).

[13] The issue in this matter is whether or not the second to fourth Respondents were, in terms of s 65 read with s 82(e) of the Act, entitled to break into the premises and seize the machines.

The merits

[14] The relevant extracts from s 65 are:

“65. Powers and functions of inspectors.—(1) An inspector shall for the purpose of this Act—

(a) enter upon any licensed or unlicensed premises which are occupied or being used for the purposes of any gambling activities or any other premises on which it is suspected—

(i) that a casino or any other gambling activity is being conducted without the authority of a licence,

(ii) that persons are being allowed to play or participate in any gambling game or other gambling activities or to play any gambling machine, or

(iii) that any gambling machine or any equipment, device, object, book, record, note, recording or other document used or capable of being used in connection with the conducting of gambling games or any other gambling activity may be found,

and may, after having informed the person who is deemed or appears to be in charge of the premises of the purpose of his or her visit, make such investigation or enquiry as he or she may think necessary;

(b) with regard to any premises referred to in paragraph (a)—

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) question any person who is on or in such premises, and inspect any activities in connection with the conduct of any gambling activity,

(iii) examine or inspect any gambling machine, equipment, device, object, book, record, note or other document referred to in paragraph (a) found on the premises and make a copy thereof or an extract therefrom,

(iv) inspect and examine all premises referred to in paragraph (a) or any premises where gambling devices or equipment are manufactured, sold, distributed, or serviced, wherein any records of such activities are prepared or maintained.

(v) inspect all equipment and supplies, in, about, upon or around such premises,

(vi) seize summarily and remove from such premises and impound any such equipment or supplies for the purpose of examination and inspection.”

[15] The Respondents’ case is, therefore, that having received a report that led them to believe that illegal gambling activities were taking place at the Applicant’s business premises, they proceeded there. They sought entry to inspect the premises in terms of s 65 of the Act. The Applicant denied them access. From the gate where they were with the Applicant and his team of attorneys, they could, through a “gap in the curtain” see that gambling machines were being operated inside the Applicant’s building. [16] After the Applicant had repeatedly denied the second Respondent and his team access into the premises and after the Applicant had disappeared, acting in terms of s 48 of the Criminal Procedure Act (“the CPA”), the second Respondent and his team broke the security gate open and gained access into the premises. Notwithstanding a search, which Smit denies, the Applicant could not be found. When they saw what appeared to be gambling machines on the premises, which they had in fact come to examine and inspect, the second to fourth Respondents proceeded to examine and inspect the machines and found those they had tested to be gambling

machines. According to them those machines that they did not play were just the same as the tested ones. They seized them in terms of s 65.

[15] The Respondents’ case is, therefore, that having received a report that led them to believe that illegal gambling activities were taking place at the Applicant’s business premises, they proceeded there. They sought entry to inspect the premises in terms of s 65 of the Act. The Applicant denied them access. From the gate where they were with the Applicant and his team of attorneys, they could, through a “gap in the curtain” see that gambling machines were being operated inside the Applicant’s building.

[16] After the Applicant had repeatedly denied the second Respondent and his team access into the premises and after the Applicant had disappeared, acting in terms of s 48 of the Criminal Procedure Act (“the CPA”), the second Respondent and his team broke the security gate open and gained access into the premises. Notwithstanding a search, which Smit denies, the Applicant could not be found. When they saw what appeared to be gambling machines on the premises, which they had in fact come to examine and inspect, the second to fourth Respondents proceeded to examine and inspect the machines and found those they had tested to be gambling

machines. According to them those machines that they did not play were just the same as the tested ones. They seized them in terms of s 65.

[17] Applicant challenges the lawfulness of the seizure on the basis that: (a) the provisions of s 48 of the CPA were not complied with; (b) even if they were complied with, the entry in terms of s 48 is strictly limited to arrest and it should not have been extended to the exercise of the powers vested in the second to fourth Respondents by s 65 of the Act. [18] Section 48 of the CPA provides that: “48 Breaking open premises for purpose of arrest Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and fails to gain entry, break open, enter and search such premises for the purpose of effecting the arrest.” The first attack on the Respondents’ reliance on s 48 for gaining access to the premises, based on Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818F to 819A-B, is that the second to fourth Respondents neither suspected that the machines and the Applicant were in the premises when they broke the gate open nor was the suspicion, if any, reasonable. This flies in the face of the Respondents’ averment that having received a report that gambling activities were taking place on the Applicant’s premises, they acted upon the report by actually visiting these premises at night, as confirmed by the Applicant, and actually demanded entry for the purpose of acting in terms of s 65 of the Act which regulates gambling in the Province. The second to fourth Respondents also say that the machines could be seen from outside of the gate. According to them, the Applicant who had obstructed them from entering the premises had contravened s 82(e) of the Act and disappeared from them while he was inside the premises. Consequently, they broke the gate to pursue and arrest him inside the premises where he was when he denied them entry and fled. In fact, the Applicant himself said that he left, switched the lights off and left through the back door. Any right-thinking person in the position of the Respondents would have thought that the Applicant was still on the premises. Secondly, the entry is said to be illegal because the second to fourth Respondents did not audibly demand entry into the premises and explain the purpose for the entry before they broke into the premises. Well, the Applicant himself said that the second Respondent repeatedly told him that he would arrest him as he kept on refusing to allow him into the premises. Furthermore, he himself says that he left the second to fourth Respondents and his attorneys and left through the back door. Accordingly, not only had he been told that he was obstructing or hindering the inspectors in the execution of their s 65 duties, while he was present, he, and his attorneys were also told that he would be arrested, clearly for that reason, and that since he did not want to unlock the gate a crowbar would be used to break it open. There is a reason behind the provisions of s 48. That reason is to inform, a possibly ignorant occupant of the premises, why the officer is there, and that the officer needs to enter the premises for the purpose of effecting an arrest and that he/she needs to be given access. When access is still denied, after the purpose had been made known, then the premises may be broken into. Not only was the Applicant aware of the purpose for which entry was required and that the second to fourth Respondents wanted to arrest him for denying them access but he had removed himself from where he could, assuming that it was still necessary, have been spoken to in terms of s 48. It would have been a mechanical, purposeless and hollow ‘compliance’ with s 48 had the second Respondent acted in the manner that the Applicant’s counsel say he should have, by sort of ticking off the requirements of compliance with s 48. It is also said that the second to fourth Respondents did not search the premises for the purpose of effecting the arrest. This is incorrect since they said they looked for the Applicant but could not find him, and this is probable in the light of the obstructive conduct of the Applicant. Applicant himself says that he had switched the lights off and left through the back door. He was not on the premises to be arrested. It seems pointless, therefore, to seek to make a meal of this issue. Counsel for the Applicant also submitted that the Applicant did not hinder or obstruct the second Respondent in terms of s 82(e) of the Act, because the physical element of hindrance or obstruction is missing. The Applicant, so the submission goes, simply did not assist or allow the second to fourth Respondents to enter the premises which is not in line with the following dictum from K v Weyer 1958 (3) SA 467 (G.W.L.D.) at 472A-C: “To bring a case within the section it must be proved that the obstruction had a physical aspect although it may not be necessary that any force or violence should be used. The verbs used in the amended sections are ‘assaults, resists, obstructs, hinders or interfere . . .’ These words imply more than a mere refusal to assist the police; there is a physical element which must be present. That physical element was present in this case when Weyer stood in front of the camera and refused to walk out of the way. This conduct may have been ‘passive’ or ‘negative’ but I have no doubt that his action in standing where he did constituted an obstruction or hindrance – even though he stood still. In common parlance a man who obstructs is a man who impedes or withstands or stops someone; a man who hinders is a man who deters, delays or frustrates action. At the very least when Weyer declined to abandon his position in front of the motor cars he was delaying or frustrating the police photographer until such time as he moved on. He was making the sergeant’s duty more difficult – see R v Lashbrooke, 1951 (1) SA 94 (N).” I doubt whether the Applicant’s refusal to open the security gate to the second to fourth Respondents, when he appears to be duty-bound, in terms of the spirit of s 65, to facilitate their access to the premises, could be equated to a mere passive refusal to assist by a person who is under no apparent obligation to assist. More importantly, I think that the Applicant’s counsel has, with respect, missed the point. The Applicant did not appear before me to face a charge of contravention of s 82(e). Accordingly, unlike in the case of Weyer, which the Applicant’s counsels rely on, where Weyer was charged, convicted and sentenced and an appeal was then lodged where the meaning of hinder or obstruct had to be determined, that was not case in this Court. The guilt of the Applicant arising from his alleged hinderance or obstruction of the second to fourth Respondents does not have to be determined or proved beyond a reasonable doubt. The Respondents simply have to establish that they had legal justification for breaking into the premises in terms of s 48 of the CPA and that that legal excuse is that they reasonably believed that the Applicant had acted in contravention of s 82(e) for the reasons set out in their papers. An in-depth analysis of s 82(e) as if to demonstrate the guilt of the Appellant beyond a reasonable doubt would be a grossly irregular usurpation of the powers of the criminal court in which the Applicant may have to be tried. The Respondents have made averments which are sufficient to sustain their case for breaking the Applicant’s security gate to gain entry into the premises. All they needed was a reasonable apprehension that the Applicant had committed a crime which necessitated his arrest. This Court does not have to be satisfied that a crime was in fact committed. For this reason, the submission by the Applicant’s counsel that the Applicant lacked the mens rea to commit a crime of hindering or obstructing the inspector since he was acting on the advice of four attorneys falls by the same sword. The criminal trial is where the lack or presence of the mens rea to hinder or obstruct the Respondents will be considered. It is premature and irregular to do so in an application for a spoliation order. [19] Counsel for the Applicant also submitted that even if the second to fourth Applicants had forced their way into the premises for the purpose of effecting an arrest, which the Applicant denies, that did not entitle them to then act in terms of s 65 of the Act. This, so they say, is so because there is nothing in s 65 which empowers them to break their way into the premises for the purpose of the inspection and seizure of the machines on the premises. Reliance was placed on the following in the Duncan case supra at 818J-819B: “All that need be said for the purposes of the point under consideration is that an exercise of the discretion in question will be clearly unlawful if the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the Legislator. But in such a case, as is generally the rule where the exercise of a discretion is questioned, the onus to establish the improper object of the arrestor will rest on the arrestee.” I may add that the Applicant also relied on this dictum to make the point that the entry was illegal because the main reason why the second Respondent wanted to force the gate open was to inspect the machines. The arrest, which to date has not yet been effected, is, so says the Applicant, just an excuse to justify forced entry for the purpose of an inspection and seizure of the machines. It is common cause that the second to fourth Respondents had in fact gone to the Applicant’s premises for the purpose of inspecting the alleged premises as well as the gambling machines at the Applicant’s premises. That was the primary reason for the

visit. There is no reason to believe that the intervening reason, of the Applicant refusing the Respondents entry into the premises, caused the second to fourth Respondents to abandon that reason. In fact, what necessitated the arrest was the very reason that the second Respondent was there to inspect the machines as empowered by s 65, and the Applicant in an apparent contravention of s 82(e) hindered or obstructed him from doing so. He frustrated that mission. Having gained entry so as to arrest the Applicant, who, according to the second Respondent, was hindering him from doing what he had come to the premises to do, he then inspected and seized the machines in terms of s 65. This, the Applicant argued, was irregular based on the above dictum from the Duncan case. The correct position, according to the Applicant’s counsel, is for the Respondents to have entered the premises to arrest the Applicant and having not found the Applicant, not to have inspected and seized the machines because s 48 authorises forced entry for no other purpose but arrest. Put crudely, while inside the premises, the second to fourth Respondents should have acted as if they did not see the machines and should not have inspected, examined and seized them, because forced entry in terms of s 48 of the CPA is meant only for the arrest. In so far as the Respondents were moved by their sense of duty to act in terms of s 65 which they were inside the premises, they should have conducted themselves as if the gate was still locked. It should, therefore have made no difference that the main reason for the inspector’s visit was to act in terms of s 165. I find no merit in this reasoning. It is, with respect, absurd. The onus is on the Applicant to prove that the second to fourth Respondents had the improper object for entering the premises, namely, that they did not even want to arrest the Applicant. The Applicant has failed to show that the second to fourth Respondents did not break the security gate for the purpose of arresting the Applicant. The second Respondent had, on the Applicant’s own version, repeatedly threatened to arrest him. It is not that the Applicant was in the premises where the second to fourth Applicants could clearly see him but chose not to arrest him. On his own version, he had fled. Accordingly, I accept the Respondents’ version.

[17] Applicant challenges the lawfulness of the seizure on the basis that:

(a) the provisions of s 48 of the CPA were not complied with;

(b) even if they were complied with, the entry in terms of s 48 is strictly limited to arrest and it should not have been extended to the exercise of the powers vested in the second to fourth Respondents by s 65 of the Act.

[18] Section 48 of the CPA provides that:

“48 Breaking open premises for purpose of arrest

Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and fails to gain entry, break open, enter and search such premises for the purpose of effecting the arrest.”

The first attack on the Respondents’ reliance on s 48 for gaining access to the premises, based on Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818F to 819A-B, is that the second to fourth Respondents neither suspected that the machines and the Applicant were in the premises when they broke the gate open nor was the suspicion, if any, reasonable. This flies in the face of the Respondents’ averment that having received a report that gambling activities were taking place on the Applicant’s premises, they acted upon the report by actually visiting these premises at night, as confirmed by the Applicant, and actually demanded entry for the purpose of acting in terms of s 65 of the Act which regulates gambling in the Province. The second to fourth Respondents also say that the machines could be seen from outside of the gate. According to them, the Applicant who had obstructed them from entering the premises had contravened s 82(e) of the Act and disappeared from them while he was inside the premises. Consequently, they broke the gate to pursue and arrest him inside the premises where he was when he denied them entry and fled. In fact, the Applicant himself said that he left, switched the lights off and left through the back door. Any right-thinking person in the position of the Respondents would have thought that the Applicant was still on the premises.

Secondly, the entry is said to be illegal because the second to fourth Respondents did not audibly demand entry into the premises and explain the purpose for the entry before they broke into the premises. Well, the Applicant himself said that the second Respondent repeatedly told him that he would arrest him as he kept on refusing to allow him into the premises. Furthermore, he himself says that he left the second to fourth Respondents and his attorneys and left through the back door. Accordingly, not only had he been told that he was obstructing or hindering the inspectors in the execution of their s 65 duties, while he was present, he, and his attorneys were also told that he would be arrested, clearly for that reason, and that since he did not want to unlock the gate a crowbar would be used to break it open. There is a reason behind the provisions of s 48. That reason is to inform, a possibly ignorant occupant of the premises, why the officer is there, and that the officer needs to enter the premises for the purpose of effecting an arrest and that he/she needs to be given access. When access is still denied, after the purpose had been made known, then the premises may be broken into. Not only was the Applicant aware of the purpose for which entry was required and that the second to fourth Respondents wanted to arrest him for denying them access but he had removed himself from where he could, assuming that it was still necessary, have been spoken to in terms of s 48. It would have been a mechanical, purposeless and hollow ‘compliance’ with s 48 had the second Respondent acted in the manner that the Applicant’s counsel say he should have, by sort of ticking off the requirements of compliance with s 48.

It is also said that the second to fourth Respondents did not search the premises for the purpose of effecting the arrest. This is incorrect since they said they looked for the Applicant but could not find him, and this is probable in the light of the obstructive conduct of the Applicant. Applicant himself says that he had switched the lights off and left through the back door. He was not on the premises to be arrested. It seems pointless, therefore, to seek to make a meal of this issue.

Counsel for the Applicant also submitted that the Applicant did not hinder or obstruct the second Respondent in terms of s 82(e) of the Act, because the physical element of hindrance or obstruction is missing. The Applicant, so the submission goes, simply did not assist or allow the second to fourth Respondents to enter the premises which is not in line with the following dictum from K v Weyer 1958 (3) SA 467 (G.W.L.D.) at 472A-C:

“To bring a case within the section it must be proved that the obstruction had a physical aspect although it may not be necessary that any force or violence should be used. The verbs used in the amended sections are ‘assaults, resists, obstructs, hinders or interfere . . .’ These words imply more than a mere refusal to assist the police; there is a physical element which must be present. That physical element was present in this case when Weyer stood in front of the camera and refused to walk out of the way. This conduct may have been ‘passive’ or ‘negative’ but I have no doubt that his action in standing where he did constituted an obstruction or hindrance – even though he stood still. In common parlance a man who obstructs is a man who impedes or withstands or stops someone; a man who hinders is a man who deters, delays or frustrates action. At the very least when Weyer declined to abandon his position in front of the motor cars he was delaying or frustrating the police photographer until such time as he moved on. He was making the sergeant’s duty more difficult – see R v Lashbrooke, 1951 (1) SA 94 (N).”

I doubt whether the Applicant’s refusal to open the security gate to the second to fourth Respondents, when he appears to be duty-bound, in terms of the spirit of s 65, to facilitate their access to the premises, could be equated to a mere passive refusal to assist by a person who is under no apparent obligation to assist. More importantly, I think that the Applicant’s counsel has, with respect, missed the point. The Applicant did not appear before me to face a charge of contravention of s 82(e). Accordingly, unlike in the case of Weyer, which the Applicant’s counsels rely on, where Weyer was charged, convicted and sentenced and an appeal was then lodged where the meaning of hinder or obstruct had to be determined, that was not case in this Court. The guilt of the Applicant arising from his alleged hinderance or obstruction of the second to fourth Respondents does not have to be determined or proved beyond a reasonable doubt. The Respondents simply have to establish that they had legal justification for breaking into the premises in terms of s 48 of the CPA and that that legal excuse is that they reasonably believed that the Applicant had acted in contravention of s 82(e) for the reasons set out in their papers. An in-depth analysis of s 82(e) as if to demonstrate the guilt of the Appellant beyond a reasonable doubt would be a grossly irregular usurpation of the powers of the criminal court in which the Applicant may have to be tried. The Respondents have made averments which are sufficient to sustain their case for breaking the Applicant’s security gate to gain entry into the premises. All they needed was a reasonable apprehension that the Applicant had committed a crime which necessitated his arrest. This Court does not have to be satisfied that a crime was in fact committed. For this reason, the submission by the Applicant’s counsel that the Applicant lacked the mens rea to commit a crime of hindering or obstructing the inspector since he was acting on the advice of four attorneys falls by the same sword. The criminal trial is where the lack or presence of the mens rea to hinder or obstruct the Respondents will be considered. It is premature and irregular to do so in an application for a spoliation order.

[19] Counsel for the Applicant also submitted that even if the second to fourth Applicants had forced their way into the premises for the purpose of effecting an arrest, which the Applicant denies, that did not entitle them to then act in terms of s 65 of the Act. This, so they say, is so because there is nothing in s 65 which empowers them to break their way into the premises for the purpose of the inspection and seizure of the machines on the premises. Reliance was placed on the following in the Duncan case supra at 818J-819B:

“All that need be said for the purposes of the point under consideration is that an exercise of the discretion in question will be clearly unlawful if the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the Legislator. But in such a case, as is generally the rule where the exercise of a discretion is questioned, the onus to establish the improper object of the arrestor will rest on the arrestee.”

I may add that the Applicant also relied on this dictum to make the point that the entry was illegal because the main reason why the second Respondent wanted to force the gate open was to inspect the machines. The arrest, which to date has not yet been effected, is, so says the Applicant, just an excuse to justify forced entry for the purpose of an inspection and seizure of the machines.

It is common cause that the second to fourth Respondents had in fact gone to the Applicant’s premises for the purpose of inspecting the alleged premises as well as the gambling machines at the Applicant’s premises. That was the primary reason for the

visit. There is no reason to believe that the intervening reason, of the Applicant refusing the Respondents entry into the premises, caused the second to fourth Respondents to abandon that reason. In fact, what necessitated the arrest was the very reason that the second Respondent was there to inspect the machines as empowered by s 65, and the Applicant in an apparent contravention of s 82(e) hindered or obstructed him from doing so. He frustrated that mission. Having gained entry so as to arrest the Applicant, who, according to the second Respondent, was hindering him from doing what he had come to the premises to do, he then inspected and seized the machines in terms of s 65. This, the Applicant argued, was irregular based on the above dictum from the Duncan case. The correct position, according to the Applicant’s counsel, is for the Respondents to have entered the premises to arrest the Applicant and having not found the Applicant, not to have inspected and seized the machines because s 48 authorises forced entry for no other purpose but arrest. Put crudely, while inside the premises, the second to fourth Respondents should have acted as if they did not see the machines and should not have inspected, examined and seized them, because forced entry in terms of s 48 of the CPA is meant only for the arrest. In so far as the Respondents were moved by their sense of duty to act in terms of s 65 which they were inside the premises, they should have conducted themselves as if the gate was still locked. It should, therefore have made no difference that the main reason for the inspector’s visit was to act in terms of s 165. I find no merit in this reasoning. It is, with respect, absurd.

The onus is on the Applicant to prove that the second to fourth Respondents had the improper object for entering the premises, namely, that they did not even want to arrest the Applicant. The Applicant has failed to show that the second to fourth Respondents did not break the security gate for the purpose of arresting the Applicant. The second Respondent had, on the Applicant’s own version, repeatedly threatened to arrest him. It is not that the Applicant was in the premises where the second to fourth Applicants could clearly see him but chose not to arrest him. On his own version, he had fled. Accordingly, I accept the Respondents’ version.

[20] The Court raised the question: “in the event of the Applicant succeeding to prove that the Respondents had despoiled himself of the machines, may the machines be returned to him even if nobody can, by law, possess them without a licence, just as none of us may possess a firearm without a licence”. In response the Applicant relied on the following finding at p. 11 of F. Henning & Others and Minister of Public Safety and Security Case No. 1607/2003 (TPD), unreported judgment delivered on 20 June 2003: “His submission is then that in ordering the return of the gambling machines or the devices to the applicants, the South African Police Services would be perpetuating a crime and in fact be a party to such crime, and that the --- will be contravening the commission of such a crime. I do not agree with this submission. It should be approached on the same basis as the previous point regarding the finding of the applicant’s innocent to the crime, which would eventuate in the event of an interdict being granted as requested by the applicants. In not granting the order for the return, it in my view amounts to a finding that the applicants are guilty of an offence.” Applicant submitted further that whenever a party has made out a case for a spoliation order, whatever was removed from him/her must be returned without question. To hold otherwise, so went the submission, is to miss the very reason for a spoliation order which is to restore the Applicant to the position in which he was before the dispossession took place. Again the issue has probably not been understood. In the case relied on, counsel for the police had submitted that the machines which had been removed by the police should not be returned because ‘the activities of the applicants clearly constitute an offence in that they permitted the playing of gambling games by use of gambling machines or devices in terms of section 29 of the regulations, possession of such machines or devices is rendered unlawful’. In this case, the issue of the Applicant’s activities clearly constituting an offence, and the perpetuation of a crime never arose. The point was and is, if the possession of the machines, which are central to this application, requires a licence is it appropriate, regardless of the guilt or innocence of the Applicant, for this Court to cause the machines to be handed back to the Applicant without requiring of him, as it would be the case with any other citizen, to produce a licence or just like in the case of a firearm, which requires a licence to be possessed. Should the Applicant perhaps be asked to produce a licence to possess be it a gambling or amusement machine if, for example, the amended version of s 66 of the Act requires them to be licenced. The Henning case is, therefore, clearly distinguishable. Be that as it may, this issue does not really arise since the application is devoid of merit. [21] The Respondents have satisfied me that they had a lawful reason for using force to gain entry into the Applicant’s premises. That lawful reason was that they had a reasonable apprehension that the Applicant had committed a crime in terms of s 82(e) of the Act. While they were inside of the premises, they were entitled to inspect, test and seize the machines in terms of s 65 of the Act. It would have been an inexcusable dereliction of duty not to do so. Accordingly, the Applicant has failed to satisfy this Court that the Respondents dispossessed him of the machines without due legal process. Section 65, including subsection (3), is the embodiment of the due legal process. A case was not made for a spoliation order.

[20] The Court raised the question: “in the event of the Applicant succeeding to prove that the Respondents had despoiled himself of the machines, may the machines be returned to him even if nobody can, by law, possess them without a licence, just as none of us may possess a firearm without a licence”. In response the Applicant relied on the following finding at p. 11 of F. Henning & Others and Minister of Public Safety and Security Case No. 1607/2003 (TPD), unreported judgment delivered on 20 June 2003:

“His submission is then that in ordering the return of the gambling machines or the devices to the applicants, the South African Police Services would be perpetuating a crime and in fact be a party to such crime, and that the --- will be contravening the commission of such a crime. I do not agree with this submission. It should be approached on the same basis as the previous point regarding the finding of the applicant’s innocent to the crime, which would eventuate in the event of an interdict being granted as requested by the applicants. In not granting the order for the return, it in my view amounts to a finding that the applicants are guilty of an offence.”

Applicant submitted further that whenever a party has made out a case for a spoliation order, whatever was removed from him/her must be returned without question. To hold otherwise, so went the submission, is to miss the very reason for a spoliation order which is to restore the Applicant to the position in which he was before the dispossession took place. Again the issue has probably not been understood. In the case relied on, counsel for the police had submitted that the machines which had been removed by the police should not be returned because ‘the activities of the applicants clearly constitute an offence in that they permitted the playing of gambling games by use of gambling machines or devices in terms of section 29 of the regulations, possession of such machines or devices is rendered unlawful’. In this case, the issue of the Applicant’s activities clearly constituting an offence, and the perpetuation of a crime never arose. The point was and is, if the possession of the machines, which are central to this application, requires a licence is it appropriate, regardless of the guilt or innocence of the Applicant, for this Court to cause the machines to be handed back to the Applicant without requiring of him, as it would be the case with any other citizen, to produce a licence or just like in the case of a firearm, which requires a licence to be possessed. Should the Applicant perhaps be asked to produce a licence to possess be it a gambling or amusement machine if, for example, the amended version of s 66 of the Act requires them to be licenced. The Henning case is, therefore, clearly distinguishable. Be that as it may, this issue does not really arise since the application is devoid of merit.

[21] The Respondents have satisfied me that they had a lawful reason for using force to gain entry into the Applicant’s premises. That lawful reason was that they had a reasonable apprehension that the Applicant had committed a crime in terms of s 82(e) of the Act. While they were inside of the premises, they were entitled to inspect, test and seize the machines in terms of s 65 of the Act. It would have been an inexcusable dereliction of duty not to do so. Accordingly, the Applicant has failed to satisfy this Court that the Respondents dispossessed him of the machines without due legal process. Section 65, including subsection (3), is the embodiment of the due legal process. A case was not made for a spoliation order.

[22] The constitutional validity of s 65 was raised on the basis that it was ultra vires the provisions of s 334 of the CPA. This point, though not abandoned, was not pursued in argument. I also do not intend to deal with it in any detail, suffice it to say that having considered all that was said in substantiation of it in the Founding Affidavit and the Applicant’s Heads of Argument, there is no merit in the point and it is rejected. Conclusion [23] In conclusion, the Applicant has failed to make out the case for a spoliation order. For this reason, the application stands to be dismissed with costs. [24] The Legislature may well have to amend the Act to make express provision for forced entry into the premises in circumstances where the likes of the Applicant would refuse or prevent an inspector from carrying out his/her statutory functions. To this end, the Registrar will be directed to forward this judgment to the North West Gambling Board. Order [25] a) The application is dismissed with costs. b) The Registrar of the High Court is directed to forward this judgment to the North West Gambling Board and the relevant Ministry in the North West Province. __________________ M.T.R. MOGOENG JUDGE PRESIDENT OF THE HIGH COURT APPEARANCES DATE OF HEARING : 11 NOVEMBER 2005 DATE OF JUDGMENT : 24 NOVEMBER 2005 COUNSEL FOR APPLICANTS : ADV J.P DE BRUIN SC (with him ADV N. JAGGA) COUNSEL FOR RESPONDENT : ADV S. SWART ATTORNEYS FOR APPLICANTS : NIENABER & WISSING ATTORNEYS FOR RESPONDENT : STATE ATTORNEY

[22] The constitutional validity of s 65 was raised on the basis that it was ultra vires the provisions of s 334 of the CPA. This point, though not abandoned, was not pursued in argument. I also do not intend to deal with it in any detail, suffice it to say that having considered all that was said in substantiation of it in the Founding Affidavit and the Applicant’s Heads of Argument, there is no merit in the point and it is rejected.

Conclusion

[23] In conclusion, the Applicant has failed to make out the case for a spoliation order. For this reason, the application stands to be dismissed with costs.

[24] The Legislature may well have to amend the Act to make express provision for forced entry into the premises in circumstances where the likes of the Applicant would refuse or prevent an inspector from carrying out his/her statutory functions. To this end, the Registrar will be directed to forward this judgment to the North West Gambling Board.

Order

[25] a) The application is dismissed with costs.

b) The Registrar of the High Court is directed to forward this judgment to the North West Gambling Board and the relevant Ministry in the North West Province.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 11 NOVEMBER 2005

DATE OF JUDGMENT : 24 NOVEMBER 2005

COUNSEL FOR APPLICANTS : ADV J.P DE BRUIN SC (with him ADV N. JAGGA)

COUNSEL FOR RESPONDENT : ADV S. SWART

ATTORNEYS FOR APPLICANTS : NIENABER & WISSING

ATTORNEYS FOR RESPONDENT : STATE ATTORNEY