Sun International (South Africa) Limited v Chairperson of the North West Gambling Review Tribunal and Others (M255/2017) [2018] ZANWHC 62 (25 May 2018)

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M255/2017

In the matter between:-

SUN INTERNATIONAL (SOUTH AFRICA) LIMITED

APPLICANT

And

THE CHAIRPERSON OF THE NORTH WEST GAMBLING

REVIEW TRIBUNAL

1st RESPONDENT

THE CHAIRPERSON OF THE NORTH WEST GAMBLING BOARD 2nd RESPONDENT

THE NORTH WEST GAMBLING BOARD

3rd RESPONDENT

JUDGMENT

GUTTA J.

A. INTRODUCTION

[1] The applicant, Sun International (South Africa) Limited (SISA) applies for an order in the following terms:-

1.1 That the decision of the North West Gambling Review Tribunal (the Tribunal’s decision) taken on or about 5 December 2016, in which the Tribunal dismissed the applicant’s review application and required the applicant to pay all costs of the second and third respondents be reviewed and corrected or set aside.

1.2 Substituting the Tribunal’s decision with a decision in the following terms:-

“(a) The decision of the North West Gambling Board, which decision is recorded in its letter of 12 February 2016, to the effect that Freeplay credits constitute a part of the drop for the purpose of the computation of gross gaming revenue in terms of Regulations 73(3) of the North West Gambling Regulations, is reviewed and set aside

(b) The aforementioned decision of the North West Gambling Board is substituted with the following: Freeplay credits do not constitute a part of the drop for the purpose of the computation of gross gaming revenue in terms of Regulation 73(3) of the North West Gambling Regulations. The applicant is accordingly not required to include Freeplay credits in the drop for the purpose of computing its gross gaming revenue in terms of Regulation 73(3).

(c) The North West Gambling Board is directed to pay the applicant’s costs, including the costs of two counsel”.

1.3 Further or in the alternative to paragraph 1.2 above:-

1.3.1 Reviewing and correcting or setting aside the decision of the North West Gambling Board, which decision is recorded in its letter of 12 February 2016, to the effect that Freeplay credits constitute a part of the drop for the purpose of the computation of gross gaming revenue in terms of Regulation 73(3) of the North West Gambling Regulations (“the Board’s Decision”);

1.3.2 The Board’s Decision is substituted with a decision in the following terms:-

“Freeplay credits do not constitute a part of the drop for the purpose of the computation of gross gaming revenue in terms of Regulation 73(3) of the North West Gambling Regulations. The applicant is accordingly not required to include Freeplay credits in the drop for the purpose of computing its gross gaming revenue in terms of Regulation 73(3).”

1.3.3 Alternatively to paragraph 1.3.2 the matter is remitted to the third respondent to be considered afresh;

1.4 Directing any respondents who oppose the relief sought herein to pay the costs on a joint and several basis, the one paying the others to be absolved.

[2] The matter was initially opposed and answering affidavits filed by the first, second and third respondent. However on the day of the hearing, there was no appearance for the first respondent (the Review Tribunal).

B. BACKGROUND FACTS

[3] The applicant (“SISA”) holds casino licences for Sun City and for the Carousel in the North West province. SISA is required to pay gaming levies to the third respondent (‘the Board”). SISA introduced a non-cashable credit to members of its loyalty programme called, Freeplay. The crux of this matter is whether Freeplay should be included when SISA calculates the gaming levies that are payable to the Board for the benefit of the Provincial Revenue Fund. SISA submits that it should not be included in the gaming levies while the Board submits that Freeplay must be included.

[4] On 12 February 2016, the Board addressed a letter to SISA wherein they stated inter alia that they were not in agreement that Freeplay should be deducted for the purpose of determining gross gambling revenue and advised that all outstanding gambling levies withheld as a result of Freeplay deductions be remitted to the Board with immediate effect.

[5] SISA then launched an application to review the Board’s decision before the Review Tribunal in terms of Section 90 of the North West Gambling Act 2 of 2001 (“the North West Act”). On 5 December 2016, the Tribunal dismissed SISA review application and ordered SISA to pay the costs.

[6] SISA now applies to this Court to review and set aside the Tribunal’s decision and also seeks an order to substitute the Tribunal’s decision with a decision to the effect that Freeplay must not be included when SISA calculates gaming levies that are payable to the Board.

[7] The central ground for review is whether the Board and the Tribunal misdirected itself in law when they found that Freeplay should be included when calculating gaming levies.

C. COMMON CAUSE

[8] Freeplay is a non-cashable credit loaded by SISA to a player’s card account. The credit is available for the player to use at gaming machines at SISA’s casinos. Freeplay credit loaded onto a player’s card cannot be redeemed for cash.

[9] Qualifying loyalty-programme customers are provided with Freeplay as a benefit without paying for it. SISA does not give money or any redeemable value to the players when it provides the Freeplay facility.

[10] SISA does not pay money or any other form of consideration to any third party supplier to provide the entitlement to players.

D. THE LEGISLATIVE FRAMEWORK

[11] Section 87(1)(a) of the North West Act provides that the holder of a licence will be liable to pay a gaming levy “which shall be calculated on such basis at such rate as may be prescribed”. The gambling levy is paid to the Board for the benefit of the Provincial Revenue Fund.

[12] The prescribed rates are contained in the North West Gambling Regulations 2 of 2002 (“the Regulations”). The relevant Regulations for purposes of this application are the following:

a) Regulation 73(1) provides that “A licensee shall pay in relation to each of its licenced casinos at the following rates depending on the licensee’s gross gaming revenue”. The table provides for various rates, all of which apply to “taxable revenue”.

b) Regulation 73(3) provides that “for each gaming machine, gross gaming revenue equals drop less jackpot payouts, fills to the machine and contributions to the Wide Area Progressive Fund”.

c) Regulation 1(2) defines ‘drop’ as meaning “For gaming machines, the total amount of cash and tokens removed from a gaming machine’s drop box, or for cashless gaming machines, the amounts deducted from a player’s slot account as a result of gaming machine play”.

E. THE TRIBUNAL DECISION WAS IRREGULAR

[13] The grounds of review relied upon by SISA are the following:-

1) The Tribunal’s decision that Freeplay forms part of gross grambling revenue was materially influenced by an error of law.

2) The Tribunal erred by finding that when Freeplay is played there is an activity in the gaming machine and that it is included within the definition of drop.

3) The Tribunal erred by finding that SISA derives some indirect benefit from Freeplay.

4) The Tribunal found that the exclusion of Freeplay credits from the drop “would have dire consequences for the Board in its ability to recoup revenue as there would be more players on Freeplay who stand a greater chance of winning jackpot payouts, with the latter being deducted from gross gaming revenue”.

5) The Tribunal held that SISA’s interpretation “seek to defeat the very same purpose for which the regulations were enacted”.

6) The Tribunal held that it does not matter whether gross gaming revenue is generated “as Freeplay or cash”.

7) The Tribunal found that SISA sought to use Regulation 73 as an aid to interpret the Act.

[14] SISA avers that the Tribunal decision should be reviewed and set aside on the following basis:-

a) It was materially influenced by an error of law, and is accordingly reviewable in terms of section 6(2)(d) of PAJA;

b) The Tribunal took into account irrelevant consideration and disregarded relevant considerations, and its decision is accordingly reviewable in terms of section 6(2)(e)(iii) of PAJA;

c) The Tribunal’s decisions was arbitrary and is accordingly reviewable in terms of section 6(2)(e)(vi) of PAJA;

d) The Tribunal’s decision was not rationally connected to the information that served before it or the reasons given for it, and is accordingly reviewable in terms of section 6(2)(f)(ii) of PAJA;

e) The Tribunal’s decision is unreasonable and is accordingly reviewable in terms of section 6(2)(h) of PAJA.

F. THE BOARD’S DECISION WAS IRREGULAR

[15] SISA submits that:-

15.1 The Board made the same mistake of law as the Tribunal when it came to interpreting the Regulations.

15.2 The Board asked itself the wrong question in that they only considered

whether Freeplay is one of the listed items that should be excluded from the drop, but failed to ask whether Freeplay should be included in the drop in the first place. Freeplay does not form part of the drop because it is a credit created by SISA in circumstances where no quid pro quo is received trom the player. Since SISA receives no monetory value for Freeplay, it does not increase the casino’s drop.

15.3 The Board referred to concepts that do not form part of the Regulations:

a) The Reasons Document interprets gross gaming revenue with reference to an “in meter” and an “out meter”. It says that Freeplay does not form part of the “out meter”, but is a component of the “in meter” and therefore cannot be a deductible item for the purpose of determining gross gaming revenue. The concepts “out meter” and “in meter” do not feature in the definitions of gross gaming revenue or drop and are not used in the Regulations or the Act

b) The Memorandum says that, for the purposes of regulation 73(3), “it is clear that only items being accounted for through the out-meter (winnings) of the gambling machine should be taken into account against the in-meter of the gambling machine when determining gross gambling revenue”. Regulation 73(3) makes no reference to “in-meter” or “out meter” or even to “winnings”. The Memorandum is therefore wrong when it states that one of the relevant questions is whether “winnings won utilising non-cashable credits [can] be regarded as winnings for the purposes of determining gross gambling revenue as provided for in terms of Regulation 73(3)”. There is no basis in the Act or the Regulations for this understanding of gross gaming revenue.

15.4 The Board failed to appreciates the long-term impact of Freeplay on gaming revenue. The Board said that if SISA’s interpretation was correct, this would have “dire consequences” for the revenue collection activities of the Board, since it would “significantly reduce the revenue due to the province”. This evinces both a mistake of fact as to how Freeplay works (in that it actually increases gaming revenue over time) and a mistake of law as to the applicable interpretive principles (as legislation must be interpreted against the fiscal authority).

15.5 The Board failed to appreciate how Freeplay works. In its answering affidavit before the Tribunal, the Board stated that “the players of Freeplay do put up something of value as a risk to enable them to expect a winning and a possible payout”. The Board did not explain what this “something of value” is. Players do not put up anything “of value” when they use a Freeplay credit. The Board’s statement therefore demonstrates a fundamental misunderstanding of how Freeplay operates.

[16] SISA submits that the Board’s decision should be reviewed and set aside on the basis that:-

16.1 It was materially influenced by an error of law, within the meaning of section 6(2)(d) of PAJA; and

16.2 It was not rationally connected to the reasons given for it, within the meaning of section 6(2)(f)(ii)(dd) of PAJA.

G. APPLICANT’S CASE

[17] The applicant submits the following:-

17.1 Freeplay is a credit in the hands of a player that does not derive from the player’s own financial resources but has rather been created by SISA. Thus SISA’s revenue does not increase when a player plays a particular game with a Freeplay credit. If a player plays the Freeplay credit and loses, SISA’s revenue position is not any better off because the player merely loses a credit which SISA itself had created; SISA does not gain any additional revenue from that transaction. If the player plays the Freeplay credit and wins, SISA’s revenue decreases because it pays out winning to the player despite the fact that he or she was playing with a Freeplay credit.

17.2 Regulation 73 requires a gaming levy to be paid on gross gaming revenue. In the case of gaming machines, gross gaming revenue equals drop (ie. “the amounts deducted from a player’s slot account”) less jackpot payouts (i.e. “credit to a player’s slot account”). In broad terms, the following principle is that a licensee must pay a gaming levy based on the amount it receives from a player when the game is initiated less any amount it pays out to a winning player at the end of the game.

17.3 The purpose of Regulation 73 is to impose a levy on the revenue that a licensee receives. This is clear from Regulation 73(1), which pegs the gaming levy to a percentage of “taxable revenue”. The obligation to pay a gaming levy in Regulation 73 is therefore based on the premise that a licensee has acquired revenue and is “better off” financially. However, there are no circumstances in which a particular bet involving Freeplay could ever increase SISA’s revenue or could leave SISA “better off” financially. A Freeplay bet can at best leave SISA in a neutral position, and will leave SISA “worse off” if the player wins.

17.4 Because Freeplay can never be exchanged for cash and because it is a credit that has been created by SISA in circumstances where no quid pro quo is given by the player, it does not constitute an “amount deducted from a player’s slot account” and therefore does not form part of the drop. To interpret the Regulations differently would not be “sensible” or “businesslike”. If the Tribunal’s interpretation of Regulation 73 were correct, SISA would be required to pay a gaming levy in circumstances where its financial position has not improved because it receives no increase in revenue as a result of any particular Freeplay transaction. In order to avoid such an unconstitutional outcome, the definition of drop should be interpreted so as not to include a Freeplay credit.

17.5 The case of Teemane (Pty) Ltd t/a Flamingo Casino v The Chairperson of the Northern Cape Gambling Board[1] supports the contention that Freeplay credit should be excluded when calculating the gross gambling revenue as SISA receives no financial benefit.

17.6 A tax on income is imposed on an improved financial position. The underlying principle is that a person whose financial position has improved is required to share a portion of the increase with the fiscus. It would violate the principle of rationality and section 25(1) of the Bill of Rights if a gaming levy were to be imposed in circumstances where there has been no increase in revenue on the part of the person liable to pay the gaming levy. In other words, if a licensee is no better off in a financial sense as a result of a particular transaction, it would be arbitrary to require the licensee to pay a tax on its neutral financial position. That would also amount to an arbitrary deprivation of property.

H. RESPONDENTS CASE

[18] The Board submits the following:-

18.1 It is common cause that a player may utilize Freeplay credits in order to participate in a play which may result in the winning of a jackpot. In terms of Regulation 73(3) jackpot pay-outs have to be subtracted in the calculation to determine gross gaming revenue. Thus, the utilisation of Freeplay credits has a significant impact on the reduction of gross gaming revenue.

18.2 To exclude Freeplay credits from the calculation of gross gaming revenue would defeat the object of the legislature, because it is from revenue that the levy must be calculated and paid. To allow Freeplay credits not to be included in gross gaming revenue, the pool of money making up the gross gaming revenue is reduced.

18.3 The Tribunal reasoned that it is important to appreciate what is going on in a gaming machine, and not to focus on how SISA administratively treats Freeplay credits. The Tribunal reasoned that Freeplay credits have the result that a player is thereby allowed to gamble and within the machine a Freeplay credit is regarded as the equivalent of money. What happens in the machine is not irrational. Freeplay credits are included the definition of drop as the definition provides for all credit amounts to be deducted from the player’s account.

18.4 Regulation 73(2) expressly refers to “credit slips”. The credit slips are for either cash, chips or tokens. The inclusion in Regulation 73(2) of “credit slips” for “cash, chips or tokens” is a strong indication of the legislative intent to include any kind of credit in the calculation of gross gambling revenue. It is abundantly clear from Regulation 73(2) that the credit slips may either be exchanged for cash, but may also be exchanged for chips or tokens which will or may then in turn be utilized to play games and to participate further in gambling activities. Under these circumstances it would be absurd and clearly against the object of Regulation 73(2) to exclude Freeplay credits from the calculation of gross gambling revenue.

18.5 The background facts, and the correspondence exchanged between the Board and SISA, shed light on how it came about that SISA only recently decided to adopt the position that it intends to exclude the Freeplay credits from the calculation of gross gaming revenue. In this regard the following is important:-

a) During 2013 SISA commenced utilising a new casino management system, called Bally.

b) This new management system had an additional functionality which the previous casino management system did not have.

c) The additional functionality was namely the ability of the new casino management system to distinguish between “cashable” and “non-cashable” play

d) SISA then decided to exclude “non-cashable” revenue from its gross gambling revenue

e) SISA was inconsistent in that Sun City did not deduct Freeplay from the calculation of gross gaming revenue, but the Carousel did so.

18.6 There is a dispute between SISA and the Board on the influence which the inclusion, or the exclusion, of Freeplay credits would have on the calculation of gross gaming revenue. This issue is explained as follows:

a) When the Board made its decision there was no evidence put before the Board regarding how the exclusion, or the inclusion of Freeplay credits would influence the calculations.

b) However, in its replying affidavit before the Tribunal, SISA contended for the first time that its research and calculations have shown that for the value of each R1.00 of Freeplay credits, it generated gross gaming revenue of R12.70.

c) The Board responded to this new issue in a further affidavit wherein it denied SISA’s new contentions, and referred to its own calculations which showed that the Board will receive better than increased revenue over a period where Freeplay credits are included in the calculation of gross gaming revenue, than would be the position if these are to be excluded.

18.7 SISA has a choice whether they want to utilise Freeplay or not. Therefore it is not unlawful deprivation of property.

[19] Counsel for the Board, Mr Van der Merwe submitted that SISA has to establish a reviewable irregularity. He said the Court is not on the merits entitled to interfere, even if the Court comes to the conclusion that the decision of the administrative body was wrong. Mr Van der Merwe, denied that either the Board or the Tribunal committed a reviewable irregularity and submitted that Freeplay credits have to be included in the calculation of gross gambling revenue.

I. EVALUATION

[20] The answer to the question, whether Freeplay should be included in the calculation of gaming levies is found within the legislative framework referred to in paragraphs 11 - 14 supra. In terms of Section 87(1) (a) of the North West Act, SISA who is the holder of a licence, has to pay a gaming levy. The basis on which the levy is calculated is found in Regulation 73. Regulation 73(1) provides that a licencee is to pay a gaming levy at a rate set out in the table “depending on the licencee’s gross gaming revenue”. (own emphasis). There is a table which explains how the levy is calculated from the licencee’s taxable revenue. Regulation 73(3), explains how the gross gaming revenue is calculated in relation to gaming machines.

[21] Thus in terms of Regulation 73, the gaming levy to be paid by SISA depends on SISA’s gross gaming revenue. The word revenue is defined in the Oxford Living Dictionary to be, “Income, especially when of an organisation and of a substantial nature” and the Cambridge dictionary defines revenue as, “the income that a government or company receives regularly”.

[22] Because revenue means ‘income’, it stands to reason that a licencee has to pay a levy on its income which is the amount it receives from the player less the amount paid out to a winning player. I agree with Mr Cockrell that as Freeplay is a non-cashable credit loaded by SISA to its loyalty customer’s card for which SISA receives no quid pro quo from the player, that SISA’s revenue does not increase when a player plays with Freeplay credit. Hence, it cannot be interpreted in the definition of drop, to be an “amount deducted from the players slot account” when calculating the licencee’s gross gaming revenue. Therefore Freeplay does not form part of the drop.

[23] To elaborate further, should a player only play using his Freeplay credit and loses the credit, in such circumstances SISA does not earn a gaming revenue as SISA created the credit which is not redeemable for cash, SISA does not gain additional revenue. The increase in revenue to SISA will only arise when the player after depleting his free credit continues to play using his own money and loses. In those circumstances the player’s own money forms part of the drop when calculating the gross gaming revenue as it increases the licencee’s gross gaming revenue. Similarly, If a player wins a jackpot, Freeplay should be excluded from the calculation of a drop because the licencee does not increase his revenue.

[24] In the case of Teemane supra, the Court considered whether Freeplay must be included in the calculation of the gaming levy payable by licencees under the Northern Cape Gambling Act 3 of 2008. In that case, the relevant regulations provided that a levy was payable on the ‘gross win’, defined as ‘gross receipts’, less payments to patrons. At issue was whether Freeplay credits constituted ‘receipt’ for the purposes of this calculation. The Northern Cape Gambling Board had taken a decision that Freeplay did constitute ‘receipts’. On review, the High Court held that the Northern Cape Gambling Board’s decision was materially influenced by an error of law. It held as follows:

“Freeplay cannot form part of ‘gross receipts’ for the simple reason that the applicant does not receive anything when a Freeplay credit is used in its casino. The purpose of Regulation 2 is to impose a levy on the revenue that a licensee receives. It is common cause that no revenue results from the use of a Freeplay credit in the applicant’s casino. Therefore, I find that the applicant is correct in its submissions on the plain-language interpretation of Regulation 2”.

[25] The same reasoning applies in casu. The purpose of Regulation 73(3) is to impose a levy on revenue, which means that there must be some financial benefit to the licencee.

Where no financial benefit is received, it is inconceivable that a levy could be payable. Mr Van der Merwe submitted that the Teemane judgment is distinguishable because the Northern Cape Regulations refer to gross receipts (as the equivalent of drop) while the North West Regulation considers the definition of drop with electronic or automatic machines. This submission is in my view flawed. The Northern Cape Regulation refers to a ‘gross win’ and not ‘gross gambling revenue’. Hence the North West

Regulation provides a stronger basis for the interpretation of Regulation 73 to exclude Freeplay as it expressly provides, that the levies payable depends on the licencee’s gross gaming revenue. The Teemane judgment in my view correctly supports the contention that if your financial position has not improved, then you don’t pay a gaming revenue. (own emphasis)

[26] Mr Van der Merwe submitted that the Board will receive an increased revenue over a period where Freeplay credits are included in the calculation of gross gaming revenue than when it is excluded. It is not relevant that the Board’s revenue will increase. What is relevant is whether the inclusion of Freeplay increases the licencee’s gross gaming revenue. (own emphasis). As stated supra, SISA’s position cannot improve when Freeplay is issued as it cannot be exchanged for cash and there is no quid pro quo from the player.

[27] Mr Van der Merwe submitted that there is a bona fide dispute whether Freeplay reduces or increases gross gaming revenue and the Court must apply the Plascon Evans rule and reject SISA’s submission. The issue of whether Freeplay increases or decreases gaming tax is irrevelant to the legal debate. As stated supra, the interpretation of Regulation 37 is the key to unlocking the question of whether Freeplay should be included or excluded when

calculating the gross gaming revenue. Similarly what happens in the machine is not relevant when considering the interpretation of Section 73.

[28] The Board’s reference to the wording of Regulation 73(2) is misconstrued as 73(2) deals with table games and is irrelevant. Furthermore the fact that SISA had included Freeplay before it introduced its new management system, Bally does not strengthen the Board’s case as the new system brought to light that SISA’s revenue does not increase when a player plays with Freeplay credit.

[29] Mr Van der Merwe submitted that Freeplay is beneficial to SISA as the player gambles more and that SISA is incorrect when it alleges that the player doesn’t give value for credit. He submitted further that there are contradictions in SISA’s approach. On the one hand it alleges that there is no direct benefit as it is a credit and not earned from the player and on the other hand it alleges that it derives long term benefits. He submitted that if SISA benefits then Freeplay must form part of the gross gaming revenue. That it is a long term marketing tool and SISA cannot achieve the advantages and avoid the consequences. I agree with Mr Cockrell’s submission that at the time when Freeplay is issued, SISA does not receive a benefit as there is no quid pro quo. Further as stated supra, when Freeplay is depleted, the player plays with his own money otherwise a case of double tax would arise.

[30] Accordingly, Freeplay credits do not form part of gross gaming revenue as the purpose of Regulation 73(1) is to impose a levy on the revenue that a licencee receives and SISA receives no revenue from the use of Freeplay credits. Accordingly, on the plain language interpretation, and within the framework of the Constitution, I am of the view that the decision made by the Board and the Tribunal was materially influenced by an error of law as contemplated under the provisions of Section 6(2)(d) of PAJA. On this ground the administrative action of the Board and the Tribunal stand to be reviewed and set aside. In the circumstances, it is not necessary for this Court to consider SISA’s other grounds for review.

J. SUBSTITUTION

[31] The next issue for consideration is whether this Court should substitute the Tribunal and the Board’s decision.

[32] The applicant submitted that substitution would be appropriate for the following reasons:-

32.1 This Court is in a good position as the Tribunal and the Board to make a decision. The decision turns on a purely legal question, namely the proper interpretation of the Act and the Regulations in the light of the Constitution;

32.2 There would thus be no purpose in remitting the issue to the Tribunal for reconsideration, and it would be just and equitable for this Court to grant an order of substitution.

[33] The Board submitted that in the event that the review succeeds, this is not a matter where the Court ought to usurp the function and substitute the decision with one of its own. The appropriate remedy, unless this is an “exceptional case” is to refer the matter to the functionary. This is not an exceptional case[2].

[34] The Constitution Court recently restated the principles regarding substitution in Trencon Construction (Pty) Limited vs Industrial Development Corporation of South Africa Limited and Another[3]. The Court held that when considering whether to order substitution, a Court must begin by asking itself (a) whether it is in as good a position as the administrator to make a decision and (b) whether the decision of the administrator is a foregone conclusion.

Thereafter, a Court should consider other factors such as delay, bias or the incompetence of the administrator. The overriding

consideration is whether substitution would be just and equitable.

[35] Our Courts have generally in accordance with the provisions of Section 8(1)(c)(ii)(aa) of PAJA, referred the matters back to the relevant administrative body and only in exceptional cases substituted the decision of the administrative body. When applying the guidelines provided in Trencon supra, I am of the view that this Court is in as good a position as the Board to make the decision as the decision rests on the interpretation of Regulation 73 which is purely a legal question. Secondly, I am of the view that, given this Court’s decision and the reasons provided supra on the review, the outcome is a foregone conclusion.

[36] Furthermore, I am of the view that to refer the matter back to the Board will cause an undue delay. When considering the facts and circumstances of this case, it would be fair and equitable to all the parties to order substitution as prayed for in the Notice of Motion.

K. ORDER

[37] In the result, I grant the following order:

37.1 That the decision of the North West Gambling Review Tribunal (the Tribunal’s decision) taken on or about 5 December 2016, in which the Tribunal dismissed the applicant’s review application and required the applicant to pay all costs of the second and third respondents is hereby set aside.

37.2 That the Tribunal’s decision is hereby substituted with a decision in the following terms:-

37.3 That the decision of the North West Gambling Board, which decision is recorded in its letter of 12 February 2016, to the effect that Freeplay credits constitute a part of the drop for the purpose of the computation of gross gaming revenue in terms of Regulation 73(3) of the North West Gambling Regulations is hereby set aside

37.4 The Board’s Decision is substituted with a decision in the following terms:-

37.5 The respondents are directed to pay the costs on a joint and several basis, the one paying the others to be absolved, which costs are to include the costs of two counsels.

________________

N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 15 MARCH 2018

DATE OF JUDGMENT

: 25 MAY 2018

ADVOCATE FOR APPLICANT : ADV COCKRELL (SC)

ADV N. FERRERA

ADVOCATE FOR RESPONDENT : ADV M.P VAN DER MERWE

ATTORNEYS FOR PLAINTIFF : NIENABER & WISSING

(Instructed by: Cliffe Dekker Hofmeyer Inc)

ATTORNEYS FOR DEFENDANT : MAPONYA INC.

[1] Unreported judgment of the Northern Cape Division of the High Court, Kimberley 22 September 2017

[2] Vodacom (Pty) Ltd & Another v Nelson Mandela Bay Municipality & Others 2012(3) SA 240 (ECP)

[3] 2015(5) SA 245 CC