Metro Gaming and Entertainment (Pty) Ltd v Northwest Gambling Board and Others (M30/2016) [2016] ZANWHC 81 (21 July 2016)

IN THE NORTH WEST HIGH COURT

MAHIKENG

M330/2016

In the matter between:

METRO GAMING AND ENTERTAINMENT

Applicant

(PTY) LTD

and

NORTHWEST GAMBLING BOARD

1st Respondent

CHAIRPERSON OF THE NORTH-WEST

2nd Respondent

GAMBLING BOARD

PIONEER BINGO NORTH-WEST (PTY) LTD

3rd Respondent

t/a PIONEER BINGO

DATE OF HEARING : 21 JULY 2016

DATE OF JUDGMENT : 21 JULY 2016

FOR THE APPLICANT : Adv Sholto-Douglas SC

FOR THE RESPONDENTS : 1st and 2nd Adv Williams SC with

Him Adv Groenewald;

3rd Adv Rorke SC with him

Adv Richards

REASONS FOR JUDGMENT

1. The matter was brought before me as an urgent application for the interim relief pending the determination of (1) an internal review of a decision of the first respondent to award a bingo licence to the third respondent; (2) review of the entire process initiated by the request made by the first respondent for the bingo licenses in the North-West Provinces. The applicant sought an interdict to stop the second respondent from issuing the bingo licence to the third respondent, further that the third respondent be interdicted from developing and operating its bingo hall in Klerksdorp.

2. A brief factual background of this application is to the effect that during October 2015 the first respondent issued a request for applications for a number of bingo licences available within the North West Province including the two licences available within the Dr. Kenneth Kaunda District Municipality (the district Municipality). The first respondent is empowered in terms of section 4 of the North-West Gambling Act 2 of 2001 (the Act), to grant gambling licences. The applicant, the third respondent, Jonoforce (Pty) Ltd (Jonoforce) and two others applied for the licences of different sites within the district municipality. The applications of the applicant, the third respondent and Jonoforce being for the sites in Klerksdorp. This application relates only to the applicant’s application for a bingo licence in the district municipality, at Matlosana Mall, Klerksdorp. It is important to indicate at the onset that none of the applicants were competing for the same sites.

3. On the 10th of June 2016 the first respondent approved the third respondent’s application for a licence at the East End Centre and that of Jonoforce at Flamwood Walk Shopping Centre, and refused that of the applicant for the Matlosana Mall.

4. On the 4th of July 2016 the applicant, after receiving the second applicant’s reasons on the 1st of July 2016, filed this application. The first, second and third respondents opposed the application. The matter was heard on the 21st of July 2016 and the following order was issued:

1. The application is struck off the roll due to lack of urgency and non-joinder.

2. The application to strike out the supplementary founding affidavit is upheld.

3. The applicant is ordered to pay the costs which includes the costs consequent to the employment of 2 counsel.

5. On the 5th of April 2017 the first and the second respondents requested reasons for the order and the reasons follows hereunder.

6. The first and the second respondents were represented by two Counsel who were different from the one representing the third respondent. Although this was the case, Counsel raised the same pre-liminary issues in support of their respective opposition. Their submissions will therefore be dealt with jointly in this judgment and the first to the third respondents will be referred jointly as “respondents” where necessary.

Urgency

7. The applicant contends that the matter is urgent because:

· The commencement of the development of the third respondent’s site is imminent and the third responded will commence operations prior to the finalisation of the review proceedings;

· The third responded must be prevented from commencing the development as there is a possibility that the review tribunal will in exercising a discretion decide that it would not be in the interests of the justice to set aside the decision or the application process given the substantial steps the third respondent had taken;

· In accordance with the terms of the request for the application, the third respondent is required to begin operations at its bingo site within four months of the date on which the second respondent granted the license to it;

· The applicant has not sat on its hands in bringing the application as it immediately after the second respondent informed them about the decision to refuse their application on the 20th of June 2016, instituted this application.

8. The respondents’ Counsel argued that the applicant’s drastic departure from the Uniform Rules of Court (the Rules) was not justified in the circumstances of the matter. They further contended that the applicant has dismally failed to,

· Set forth explicitly the circumstances which it avers renders the matter urgent; and

· why it could not be afforded substantial redress at a hearing in due course;

· Explain why despite receiving the first respondent’s reasons on the 1st of July 2016, it only filed an affidavit dealing with those reasons only on the 7th of July 2016, giving the respondents only two court days within which to file their answering affidavits.

9. The respondents’ Counsel further submitted that the applicant in fact abused the process of the Court as it was not possible for them to file proper answering affidavits. They indicated that the further affidavit subsequently filed by the applicant was not dealt with at all in particular by the first and the second respondents because the filing of the said affidavit on the 7th eventually resulted in them being given two court days to file an answering affidavit to a voluminous set of papers. As proof that the application could not be ripened for the applicant’s target date of the 21st of July 2016, the third respondent was only able to file its answering affidavit on the 19th. The applicant filed its replying affidavit thereafter some few hours before the hearing. According to the respondents’ Counsel, this is clearly an abuse of the process of Court because the applicant could not also adhere to the times frames it prescribed.

10. I fully agree with both Counsel for the first, second and third respondents that the enrolment of this matter in the urgent roll was unwarranted. On the applicant’s own version, the third respondent is only required in terms of the licence granted to be in operation some four months from the date of the decision. In addition, the applicant knew very well at the time they brought this application that the licence was not yet issued. Should the licence be issued to the third respondent, the third respondent will be acting entirely on its own risk if it begins to embark on developing its premises and commence trading whilst aware of a pending application if a review application has been launched. On the other hand the applicant has not established any basis upon which these circumstances would impact adversely on it. To put it in proper perspective, the applicant’s concern that the third respondent will incur expenses is not something which lies in the applicant’s mouth to be concerned about.

11. The applicant furthermore failed to satisfy the Court that it will not be afforded substantial redress at a hearing in due course if the matter is not heard immediately. The applicant has an alternative remedy in a form of an application for review in terms of section 90 of the Act and the Regulations thereto which it ought to have pursued. There are no reasons provided why the applicant could not have vigorously and promptly applied for it. The regulations dealing which such reviews have short timeframes.

12. Applications in terms of Rule 6 (12) of the Rules does not ordinarily entitle practitioners to select any day of the week and time to demand a hearing. The question in such applications is whether there must be a departure at all from the times prescribed in Rule 6 (5) (b). In the case of Luna Meubel Vervaardigers (Edms) BPK v Makin and another (t/a Makins Furniture Manufacturers) 1977 (4) SA 135 (W) it was made clear that practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules under the ordinary practice of the Court is required. Further that, the degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith and it must be justified in the founding affidavit.

13. The drastically attenuated timeframes applied by the applicant were not even justified by the applicant in its papers including during the submissions in Court. The applicant’s founding affidavit was signed on the 2nd of July 2016. A further affidavit wherein the applicant dealt with the second respondent’s reasons was signed on the 7th of July 2016, despite the fact that the reasons were received on the 1st of July 2016. In the founding affidavit signed on the 2nd the applicant elected to launch its application without dealing with these reasons. In its Notice of Motion the applicant prescribed to the respondents that they should file their answering affidavit by the 12th of July 2016, that is, within two court days of the applicant’s further affidavit as it was filed on the 8th of July 2016.

14. All the respondents claimed that they could not file proper answering affidavits or deal properly with the applicant’s further/supplementary affidavit. The attitude of all the respondents was that the applicant’s further/supplementary affidavit should be disregarded by the Court because of the reason that the set of papers that were required to be answered thereto were voluminous. Their other reason was to the effect that there is no explanation by the applicant why, despite receiving the second respondent’s reasons on the 1st of July 2016, it only filed a further affidavit dealing with the reasons only on the 8th of July 2016.

15. In my view, the respondents were prejudiced by the applicant in trying to rush the matter to Court on unrealistic timeframes. It took the applicant about 6 days to deal with the reasons supplied by the second respondent and draft the further/supplementary affidavit but it expects the respondents to be able to answer to it in only two days. I fully agree with the respondent’s submission that it was clear from the onset that there was no real prospect of getting the matter ripe by the applicant’s chosen target date of the 21st of July 2016 because of the voluminous paperwork involved in this matter and as it further appears that:

15.1 The first and second respondents were only able to respond to the initial founding affidavit which was signed on the 2nd of July 2016;

15.2 The third respondent was only able to file its answering affidavit on the 19th of July 2016;

15.3 The applicant’s replying affidavit to the first and second respondents’ answering affidavit was filed outside of the promised date, being filed only on the 19th of July 2016;

15.4 The first respondent was not able to deal with the counter-application (and Rule 16(a) notice) filed by the third respondent.

16. I furthermore agree with both Counsel acting on behalf of the respondents that the enrolment of the matter in the urgent roll and in the circumstances that prevailed including the fact that the Court was in recess, was in the circumstances unwarranted. The consideration above also led this Court to conclude that the application to strike out the further/supplementary affidavit which was not properly before the Court to be upheld.

Non Joinder

17. It is common cause that the applicant did not join amongst others Jonoforce and Latiano. The applicant contends that the non-joinder issue raised is bad in law because all of the parties who have a legal interest in the interim order, the respondents in this application, have been cited as parties. The others that are mentioned above by the respondents will be required to be cited and joined only in the review proceedings, and this will be done.

18. I fully agree with the respondents that these other parties should have been joined. The applicant is amongst it prayers seeking the review and setting aside of the “entire process” as the applicant puts it. This is the process of which the first respondent invited all applications, considered and awarded them. If this process is eventually set aside, the decision would impact materially, directly and adversely on the others as well. Although for the process of an interdict, the applicant need only establish a prima-facie right to the review relief sought, should this Court find that the applicant has established a prima facie right, as the applicant contends that it should, it will determine accordingly and grant the interdict on that basis. It is clear that a successful applicant is also accordingly having a legal interest in this prior finding of this Court, that is, that the applicant has a prima facie right established to the review and setting aside of the first respondent’s decision not to award a Bingo licence to the applicant. Accordingly, the failure by the applicant to join these other companies amounts to a material non-joinder.

19. The above sums up the reason for the order I granted on the 21st of July 2016.

________________

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant

: Edward Nathan Sonnenbergs

c/o Van Rooyen Tlhapi Wessels

9 Proctor Avenue

Mahikeng

For the 1st and 2nd Respondents : Bokwa Inc

c/o ME Tlou Attorneys Ass

No.43 Cnr Baden Powell and

and Visser Str