Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board and Another (89/2021) [2022] ZASCA 102; 2023 (2) SA 305 (SCA) (24 June 2022)

Parties

Procedural Posture

Review Application / Appeal From Western Cape Division of the High Court

Legal Issues

1. 1 Whether the Western Cape Gambling and Racing Board was empowered to impose a licence condition requiring licensees to maintain a Level 4 B-BBEE certification.
2. 2 Whether the jurisdictional facts for imposing such licence conditions were satisfied under section 53(2) of the National Gambling Act.
3. 3 Whether the Board unlawfully applied a blanket industry-wide condition without individual evaluation of licensees.

Ratio Decidendi

The Supreme Court of Appeal held that the Western Cape Gambling and Racing Board failed to comply with the requirements of section 53(2) of the National Gambling Act when it imposed a blanket Level 4 B-BBEE condition on all licensees. The Board did not individually evaluate the commitments and achievements of each appellant, nor did it demonstrate that imposing further or different conditions was necessary to address the matters referred to in the Act. The Board's approach amounted to the unlawful elevation of policy into a binding rule, thereby fettering its discretion and acting ultra vires. The jurisdictional facts for the exercise of the power to impose the impugned conditions were...

Court Disposition

Appeal upheld; the Board's decisions to impose the Level 4 B-BBEE licence conditions on the appellants were declared unlawful and invalid, reviewed and set aside.

Orders

• The appeal is upheld with costs, including costs of two counsel where so employed, to be paid jointly and severally by the respondents.
• The order of the court a quo is set aside and substituted with a declaration that the Board's decisions to impose the Level 4 B-BBEE licence conditions on the appellants are unlawful and invalid.