Schoeman v Chairperson of the North-West Gambling Board and Others (1571/04) [2005] ZANWHC 11 (13 January 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 1571/04

In the matter between:

DANIEL JACOBUS SCHOEMAN Applicant

and

THE CHAIRPERSON OF THE NORTH WEST 1st Respondent

GAMBLING BOARD

MR J C ERASMUS 2nd Respondent

THE MINISTER OF SAFETY & SECURITY 3rd Respondent

THE MAGISTRATE RUSTENBURG 4th Respondent

INSPECTOR A THWANE 5th Respondent

THE PROVINCIAL COMMISSIONER OF POLICE:

THE NORTH WEST PROVINCE 6th Respondent

JUDGMENT

GURA J

[1] The applicant brought an urgent application in the following terms:-

“PART A:

BE PLEASED TO TAKE NOTICE that the applicant will make application to this court on 14th December 2004, at 09h00 or so soon thereafter as the matter may be heard for an order in the following terms:

1. Dispensing with the forms and services as provided for in the rules and disposing of the matter as one of urgency

2.

2.1 Pending finalization of the relief set out in part B of this notice, that the first, second, third, fifth and sixth respondents be interdicted from seizing and removing any articles as set out in the paragraph B to the search warrant issued by the fourth respondent, dated 7th December 2004, in respect of the business Kings Entertainment Club corner of Ridder and Platina Streets, Rustenburg

2.2 In the alternative, in the event of the respondents having already removed the said articles, they be ordered to forthwith restore the possession thereof to the applicant, pending finalization of the relief set out in part “B” of this notice.

Pending finalization of the relief set out in part B of this notice, that the first, second, third, fifth and sixth respondents be interdicted from any further seizure of any gambling machine, or device, of the applicant in sofar as it is done under the pretext that its possession is unlawful in terms of section 9(1) (a) of the National Gambling Act, 2004.

Directing any party who opposes this application to pay the costs thereof;

Further and/or alternative relief.

TAKE NOTICE FURTHER that the affidavit of Daniel Jacobus Schoeman with annexures thereto will be used in support thereof.

PART B:

BE PLEASED TO TAKE NOTICE that the applicant will make application to this court on 6 January 2005 at 09h00 or so soon thereafter as the matter may be heard for an order in the following terms:-

1. Dispensing with the forms and services as provided for in the rules and disposing of the matter as one of urgency in terms of rule 6(12) of the Uniform Rules of the High Court;

2. Reviewing and setting aside the search warrant issued by the fourth respondent dated 7th December 2004 in respect of the business Kings Entertainment Club at corner Ridder and Platina Streets, Rustenburg;

Ordering the respondents to forthwith restore possession to the applicant of all items seized and/or removed by virtue of the said search warrants;

Interdicting and restraining the first, second, third, fifth and sixth respondents from any further seizure and removal of any gambling machine or device of the applicant, where such seizure and removal is done under the pretext that its possession in unlawful in terms of section 9(1)(a) of the National Gambling Act, 2004;

Further and/or alternative relief.”

[2] The following facts are either common cause between the parties or not denied:-

The machines forming the subject of this application are gambling machines.

These machines were found in the possession of the applicant on 7th December 2004.

Applicant does not hold any license or permit to possess these machines.

The National Gambling Act, No. 7 of 2004 (“the Act”) came into operation on 1 November 2004.

Section 9 of the Act provides:-

“Unlicensed dealing in machines and devices unlawful

9(1) Despite any other law, a person must not:-

import, manufacture, supply, sell, lease, make available, possess, store, or alter a gambling machine or gambling device, or transport or maintain such a machine or device except to the extent contemplated in Section 23 (4), unless that person is authorised to do so in terms of this Act or applicable provincial law:

b. possess or make available for play a gambling machine or gambling device for use in a gambling activity unless registered ownership or possession of the machine or device has been transferred to that person in terms of section 23(b).

2. The Minister, by regulation made in accordance with section 87, may prescribe categories of gambling machines or gambling devices that are exempt from the application of subsection (1)” (My emphasis).

[3] After the matter was argued on behalf of both parties on 15 December 2004 the court made the following order:-

“1. Application for an interim interdict is dismissed with costs.

Reasons for judgment are reserved.”

[4] The dispute between the parties revolves around the interpretation of the concluding sentence of section 9(1)(a) of the Act. Advocate Jagga submitted as follows:-

The North West Gambling Act No. 2 of 2001 (“the Gambling Act (NW)”) does not outlaw the possession, storing or keeping etc. of these machines neither does it authorise such possession expressly.

However, the absence of an express prohibition to possess, store, keep etc. of the machines in the Gambling Act (NW) constitutes an implied authorisation to possess, store, keep etc. them. This is a recognition of existing rights.

Until such time that the North West Provincial legislature prohibits the possession, storing or keeping etc. of these machines (by means of an Act), then Section 9(1) of the Act is not applicable to this province.

[5] There is a presumption that the legislature does not alter common law or statutory law more than is necessary. Where there is doubt as to the meaning of a law it is presumed that the legislature did not intend an inequitable or unjust or unreasonable result (EA Kellaway: Principles of Legal Interpretation of statutes, Contracts and Wills at 335 et seq). Conversely, if there is no doubt as to the real meaning of the statute, effect must be given to the intention of the legislature (Moser v Milton 1945 AD 517 at 527- 528). A statute is not presumed to take away existing rights unless that expressly appears from its wording (Thom v Moulder 1974 4 SA 894 (A) at 905). Equally, a statute is not presumed to take away common law rights (Rigg v SAR & H 1958 4 SA 339 (A) at 349).

[6] It is clear to me that when the Act was passed, the legislature had in mind as one of its objects to safe-guard existing rights. These rights attach to people or institutions which had been authorised by this Act or their respective provincial laws to possess, store, keep etc. gambling machines. Assuming that prior to 1 November 2004 the following was the position in two different provinces. Province “A”’s law expressly allowed the possession of gambling machines. Province “B” had no provision in its Gambling Act, either allowing or prohibiting the possession of these machines. If we apply Advocate Jagga’s argument to these two provinces, then it means that Province A and B are on the same footing.

[7] It was never suggested by counsel during argument that the words “this Act” in Section 9(1) (a) of the National Gambling Act include Act 7 of 2004 as well as the common law. It is only so that “this Act” refers to the National Gambling Act to the exclusion of common law. If this was the purpose of the Act at national level, why would it extend the protection at provincial level to include not only a provincial Act but also the common law? The words “applicable provincial law” in section 9(1)(a) of the Act should be construed, in my view, to mean applicable provincial Act. It is inconceivable that the legislature intended “applicable provincial law” to encompass even common law. What the legislature had in mind is that a particular province must

have passed an Act (eg. Gambling Act) and

that Act must have had a provision expressly authorising possession, storing, keeping etc. of gambling machines.

[8] It is very difficult for an Act to cover every human activity. We cannot say that the mere fact that North West never prohibited the possession of these machines, therefore ipso facto it authorised their possession. Such a construction would lead to absurd results and frustrate the very purpose of the National Gambling Act. The terms of section 9(1) of the Act are clear and unambiguous. In respect of Province A (as referred to above) the provincial legislature must pass an act to outlaw possession, storing or keeping etc. of the gambling machines before section 9(1) of the Act can be applied. In other words existing rights in this province (right to possess, keep, store etc. of these machines) are protected by the Act. These are the rights which were expressly conferred by an Act of a provincial legislature. The same cannot be said about province B (North West).

[9] For an applicant to succeed in an application for an interim interdict he/she must prove:-

a prima facie right;

a well-grounded apprehension of irreparable harm if the interim relief if not granted and the ultimate relief is eventually granted;

a balance of convenience in favour of the granting of the interim relief; and

the absence of any other satisfactory remedy.

(Setlogelo v Setlogelo 1914 AD 221 at 227)

[10] In the face of Section 9(1) of the Act applicant has failed to prove its prima facie right to possess, keep, store, etc. the gambling machines. The balance of convenience does not favour the granting of an interim interdict.

SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 15th December 2004

DATE OF JUDGMENT : 13 January 2005

COUNSEL FOR APPLICANT : Advocate N. Jagga

COUNSEL FOR RESPONDENTS : Advocate B. Swart

ATTORNEYS FOR APPLICANT : Grobler Levine Soonius

Attorneys

C/O Nienaber & Wissing Attorneys,

6B Dada Complex

MMABATHO

ATTORNEYS FOR RESPONDENTS : State Attorney