Schoeman v Chairperson of the North-West Gambling Board and Others (6/2005) [2005] ZANWHC 81 (2 November 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

Civil Appeal No: 6/2005

In the matter between:

DANIEL JACOBUS SCHOEMAN APPELLANT

AND

CHAIRPERSON OF THE NORTH WEST

GAMBLING BOARD 1ST RESPONDENT

MR J C ERASMUS 2ND RESPONDENT

MAGISTRATE RUSTENBURG 3RD RESPONDENT

INSPECTOR A THWANE 4TH RESPONDENT

THE PROVINCIAL COMMISSIONER OF POLICE:

THE NORTH WEST PROVINCE 5TH RESPONDENT

JUDGMENT

LANDMAN J:

[1] This is an appeal against the refusal by Gura J to grant the appellant an interim interdict pending finalisation of the relief sought in Part B of his notice of motion.

[2] Leave to appeal was granted by Gura J on 24 March 2005.

[3] The grounds of appeal are set out in the notice of appeal. The gist of the grounds of appeal is captured in the heads of argument filed by Mr Jagga, who appeared for the appellant. They are:

“1. that the court a quo erred in law by not finding that the applicant made out a prima facie right to possess the gambling machines although such right may be open to some doubt;

that the court a quo erred in law by not finding that the balance of convenience favoured the applicant;

that the court a quo erred in not finding that the phrase “authorised to do so in terms of applicable provincial laws” as it appears in section 9(1) (a) of the National Gambling Act, includes an implied authorisation insofar as the North West Casino Act, 2002, is concerned insofar as the latter Act does not prohibit possession of gambling machines, nor does it expressly or by necessary implication regulate such possession.”

Mr Jagga also submitted that:

“In addition to 3 above and flowing there from, it is also submitted that the court a quo erred in law by not finding that the phrase “authorised to do so in terms of applicable provincial laws” is indeed capable of more than one reasonable interpretation and accordingly that the applicant showed a prima facie right, although open to some doubt, to possess the machines notwithstanding the provisions of section 9(1) (a) of the National Gambling Act.”

[4] The interpretation of section 9(1)(a) of the National Gambling Act

The appeal revolves around the interpretation of section 9(1)(a) of the National Gambling Act 7 of 2004.

Section 9(1)(a) reads as follows:

“(1) Despite any other law a person must not

(a) import, manufacture, supply, sell, lease, make available, possess, store or alter a 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;

(emphasis applied.)

…”

[5] Mr Jagga submitted that the current North West Gambling Act does not contain any express or implied prohibition of possession of gambling devices or gambling machines outside the ambit of a regulated licensed casino. This conclusion appears to me to be correct.

[6] Building on this he submitted that where the provincial law does not expressly prohibit, or by implication prohibit, the possession of these machines, it clearly by implication confirms the common law position, namely that those machines may lawfully be possessed. I cannot find fault with this proposition.

[7] Mr Jagga consequently submitted that the phrase “authorised to do so in terms of the applicable provincial law” is to be interpreted in a manner which does not create harsh and inequitable results. This submission reflects over rules of interpretation. But it must give way to the express intention of the legislature. See Venter v Rex 1907 TS 910 914.

[8] Mr Jagga went on to submit that there is nothing to indicate that the word “authorised” in section 9(1)(a) was intended to only mean express authorisation, and could not include authorisation by way of implication.

[9] I am prepared to accept, without deciding, that the provincial law referred to in s 9(1)(a) may implicitly authorise possession of a gambling machine or device and need not do so expressly.

[10] The result of all this, however, is that the real and true authority to possess a gambling machine in this province is the common law. The fact that a Provincial Act is silent on the matter or is harmonious with or consistent with the common law cannot mean that possession of a gambling machine is authorised by such an Act.

[11] At this juncture it is necessary to observe that the Interpretation of Statute Act 33 of 1956 defines “law” unless the context otherwise read, as “any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law”. The word “law” will ordinary not encompass the common law. See Nimed Medical Aid Society v Seipp and Others NWO 1989 (2) SA 166 (N). There is nothing in the context which shows that “law” is to bear another meaning. When the National Gambling Act wishes to refer to the “common law”, it does so expressly. See s 16(1) of the Act.

[12] Section 9(1)(a) overrides the common law in so far as the common law permits the possession of a gambling machine or device. But this subsection goes on to provide that “despite any other law” i.e. statutory law possessed may be authorised by only the National Gambling Act or a Provincial law.

[13] Mr Jagga submitted that in view of the nature of the relief sought in the original application, namely an interim interdict and not final relief, the test to have been applied in order to determine whether the appellant made out a case insofar as the existence of a prima facie right is concerned, was not for the court a quo to decide whether the interpretation as set out above insofar as section 9(1) (a) of the National Gambling Act is concerned, was indeed correct or not. The test, he submitted, to be applied was the one as enunciated in Mariam v Minister of the Interior and Another 1959 (1) SA 21 (T), where on 218 Roper AJ expressed himself as follows:

“In this case it is not necessary for me to make a final decision as to the meaning of the word. I have merely to consider whether the applicant has made out a case sufficiently strong to apply the rule in the case of Webster v Mitchell, therefore, when I express a view in regard to the interpretation in part of the statute, I am expressing a prima facie view; it would be impossible to express anything else.”

Mariam’s case has been followed in Holtzhausen and Another v Gore NO and Others 2002 (2) SA 141 (C) at 159.

[14] A different view was taken of Mariam’s case in Fourie v Olivier en ʼn Ander 1971 (3) SA 274 (T) at 284 – 285. Viljoen J (as he then was) said the following at 285 B – H:

“Ek het hierbo nie ʼn prima facie mening uitgespreek nie. Ek het doelbewus ʼn finale mening uitgespreek omdat ek met alle eerbied oortuig is dat toe Regter Clayden die benadering wat in gevalle waar ʼn interdik pendent elite aangevra word gevolg moet word, neergelê het, in Webster v Mitchell, 1948 (1) SA 1186 (W), hy glad nie ʼn regsgeskil in gedagte gehad het nie, maar ʼn feitegeskil.

Dit bly baie duidelik uit die opsomming van die beslissing. Daarom work verwys na ʼn oorwig van waarskynlikhere en dit is tog ʼn uitdrukking wat gebruik word in verband met feite. Herhaaldelik word ook verwys na die feite in die geskil. Natuurlik is die Hof nie geroepe om ʼn feitegeskil in ʼn interlokutêre proses te besleg nie. Die Hof moet alleen beslis of daar ʼn prima facie saak uitgemaak is. Anders sou die Hof ʼn voorbarige oordeel vel. Indien die saak afgemaak kan word deur ʼn beslissing van ʼn regsvraag is daar egter nie ruimte vir enige voorbarige oordeel nie. Alleen een oordeel, een beslissing is moontlik en indien die saak voor die Regter dien wat die interdik pendente lite-aansoek verhoor, is dit na my oordeel sy plig om ʼn beslissing te gee. Beslis by die regsvraag ten gunste van die applikant en indien so ʼn beslissing ʼn einde aan die geskil maak het die applikant ʼn duidelike reg („clear right”) bewys en is hy geregtig op finale verligting en nie slegs verligting pendente lite nie. Setlogelo v Setlogelo 1914 AD 221.

Die Regter was ʼn aansoek om ʼn interdik pendente lite verhoor wat afgemaak kan word deur ʼn regsbeslissing is myns insiens nie geregtig om te sê dat hy die regsvraag halfhartig gaan benader en dit aan sy ampsbroer wat die verhoor waarneem gaan oorlaat om die saak behoorlik te oorweeg en finaal te beslis nie. Dit sou strydig wees met die beginsels in ons reg ten aansien van res judicata, dit sou onnodige koste veroorsaak en dit sou die onsuksesvolle party in die pendente lite-aansoek die reg van appél ontsê terwyl die uitleg wat die Regter op daardie stadium aan die regsvraag heg, hoewel die miskien nie bedoel is om die Verhoorregter te bind nie, hom in ʼn groot verleentheid kan stel as hy voel dat hy met die eersgenoemde Regter wil verskil. In die hierargie van Howe staan die Verhoorhof nie hoër as die Kamerhof waar die aansoek om ʼn interdik aanhangig gemaak word nie. Dit is albei een-Regter-Howe wat oor dieselfde aangeleentheid moet beslis.

Om al hierdie redes verskil ek, met eerbied, van Regter Roper in Mariam se saak, supra, en kom beslissing daarop neer dat ʼn verhoor van hierdie aangeleentheid oorbodig is.

[15] CB Prest, Interlocutory Interdicts has this to say at 64:

“One is that the court has merely to consider whether the applicant has made out a case sufficiently strong to apply the rule in Webster v Mitchell, and to express a prima facie view, albeit in regard to the interpretation of a statute. Another view is that the principles laid down by Clayden J in Webster v Mitchell are premised on the basis of a dispute of fact, and that the learned judge never applied his mind to the applicability of the principles to a disputed point of law.

According to the argument, the principles do not apply because of the distinction to be drawn between the approach of the court to a dispute of fact on the papers and a dispute which turns on a point of law. In the former case, to reach a conclusion is to prejudice the issue, whereas in the latter case, there can be only one decision and this does not involve a prejudgment of a disputed issue, which can only properly be decided on trial. A judge must therefore come to a conclusion on the point of law and give his decision thereanent. In the event of the judge deciding the disputed law point in favour of the applicant and that decision putting an end to the matter, then the applicant has shown a clear right and is entitled to final relief.

The alternative argument is not without merit but it loses sight of the nature of interlocutory relief and the position in which the court finds itself in dealing with an application for such relief. The fact that a court is called upon to decide a point of law in circumstances of urgency does not necessarily make the task any easier that being called upon to decide a dispute of fact. This was made clear by Franklin J in Beecham Group Ltd v B-M Group (Pty) Ltd where, in the papers before the commissioner, there were no substantial disputes of fact but the court had to deal with difficult questions of law, in respect whereof detailed and thorough argument had been presented to the court.

When regard is had to the wider context of the application for urgent relief in circumstances where detailed argument and mature reflection are not possible, then the approach taken by Franklin J and the view expressed by Roper AJ in Mariam v Minister of the Interior & another must be preferred.”

[16] Blignault AJ (as he then was) considers the question in Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C) and finds that English law places the issue in context. He says at 498 C-H:

“In English law, I may point out, the test for the first requirement for an interim interdict is formulated differently. Instead of a prima facie right, as in our law, reference is made to a ‘serious question to be tried.’ (See American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; (1975) 1 All ER 504 (HL).) It is significant, however, that precisely the same approach is followed with respect to disputed issues of fact and difficult questions of law. See the dicta at 510c-e:

‘The use of such expressions as a probability, “a prima facie case”, or “a strong prima facie case” in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.’

It seems to me, however, that the approach of Viljoen J in Fourie v Olivier en ʼn Ander (supra) can be reconciled with that of Nicholas J (approved in the Beecham case supra), if due regard be had to the expression ‘difficult questions of law’. This reference to ‘difficult’ appears to imply that ordinary questions of law could be decided at the interlocutory stage of the proceedings.

How are the ordinary questions of law to be distinguished from ‘difficult questions of law’? I would venture to suggest that a basis for such a distinction can be found in the remarks made in the American Cyanamid case supra (quoted above) to the effect that difficult questions of law are those which require ‘detailed argument and mature considerations’. Whether or not a question of law is to be described as difficult for purposes of this test would obviously depend on the nature of the question concerned and the circumstances in which it is required to be decided at the interlocutory stage.”

[17] I am of the view that the pragmatic approach in Mariam’s case has much to commend it. The question of law is not a difficult one. Gura J answered it without difficulty. In my view he correctly refused to grant the order which appellant sought.

[18] There is one other point which I should deal with in case this matter goes further.

[19] Mr Jagga, very properly, drew our attention to the recent amendment to the North West Gambling Amendment Act 5 of 2005 which came into force on 28 September 2005, i.e. after Gura J refused the application. Section 82(1)(xiii) of this Act (as amended) prohibits the possession of a gambling machine in this province without a licence.

In view of my finding it is unnecessary to deal with this issue but it seems to me clear that the appellant is not entitled to an order which would restore possession of the machines to him until he produces an appropriate license. This he had not done. This question is similar to one which came before Carlisle J in Yuras v District Commandant of Police, Durban 1952 (2) SA 173 (N) at 178 Carlisle J said:

“So far as the return of the gold is concerned the Court is now asked to declare that the applicant, who is prohibited from having the gold, shall receive it. This the Court cannot do”

[20] Should the appellant secure a licence he would be entitled to apply for his property to be returned but not otherwise.

[21] In the result the appeal is dismissed with costs.

_______________

A A LANDMAN

JUDGE OF THE HIGH COURT

I agree

_____________

M M LEEUW

JUDGE OF THE HIGH COURT

I agree.

________________

V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: __ NOVEMBER 2005

DATE OF JUDGMENT: __ NOVEMBER 2005

COUNSEL FOR APPELLANT: ADV N JAGGA

ATTORNEY FOR APPELLANT: NIENABER & WISSING

COUNSEL FOR RESPONDENT: ADV M G HIGTE

ATTORNEY FOR RESPONDENT: KGOMO, MOKHETLE &TLOU