Vengies Gaming (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd and Others (1214/2022) [2023] ZANCHC 19 (5 May 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

Case NO: 1214/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

Edited: YES/NO

In the matter between:

VENGIES GAMING (Pty) Ltd

Applicant

and

DEEPS BETTING GROUNDS (Pty) LTD

First Respondent

THE CHAIRPERSON: NORTHERN CAPE

GAMBLING BOARD

Second Respondent

THE NORTHERN CAPE GAMBLING BOARD

Third Respondent

Coram: Nxumalo, J

JUDGMENT

NXUMALO J:

INTRODUCTION

1. The applicant in these proceedings is one Vengies Gaming (Pty) Ltd, a company duly registered and incorporated in terms of the laws of South Africa, with its registered office in Kuruman, Northern Cape Province. The first respondent is one Deeps Betting Grounds (Pty) Ltd, also a company duly registered and incorporated in terms of the laws of South Africa. The first respondent’s offices are currently located somewhere in Pretoria East, Gauteng Province.

2. The second respondent herein is the incumbent Chairperson of the Northern Cape Gambling Board, appointed as such in terms of Section 3(5) of the NORTHERN CAPE GAMBLING ACT 3 of 2008.[1] He is cited herein in his official capacity.[2] The third respondent is the Northern Cape Gambling Board, a juristic person established in terms of Section 2 of the PROVINCIAL ACT.[3]

3. According to the explanatory affidavit delivered on behalf of the Chairperson and the Board on 27 June 2022, the Chairperson and the rest of the Board were appointed as such on or about October 2021, until March 2022. Thereafter, his term and that of the rest of the Board was apparently extended to September 2022.

4. Section 15(1) of the PROVINCIAL ACT authorises the Board to exercise the powers, and perform the functions whilst contemporaneously impelling it to carry out the duties specified by or in terms of the PROVINCIAL ACT; or assigned to it in terms of the NATIONAL GAMBLING ACT 7 of 2004[4] or any other law.

THE RELIEF SOUGHT

5. The application is predicated against founding and replying affidavits. In terms of the notice of motion delivered on 06 June 2022, the relief sought by the applicant is three-fold. First, it bade this Court to dispense with the forms, service and time periods prescribed in terms of Uniform Rules of Court and to direct that the matter be heard as one of semi-urgency in terms of rule 6(12).

6. Second, the applicant prayed that this Court forthwith interdicts the first respondent from conducting any bookmaking business from the impugned premises, pending the institution of review proceedings by it, either under the PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 of 2000;[5] or the principle of legality, within 60 days, from the date of the order sought.

7. Third, the applicant also prayed that the third respondent be ordered to forthwith take such steps as a regulator under the Act, to ensure that the first respondent suspends its business, pending the finalisation of the envisaged review proceedings. The notice of motion did not pray for costs.

8. The first respondent delivered an answering affidavit on 21 June 2022, resisting the relief sought and urged this Court to dismiss the motion and award costs against the applicant on a punitive scale. The second and third respondents, for their own part, on 21 June, delivered a notice to abide together with an explanatory affidavit. The applicant and the first respondent both delivered heads of argument on 30 June. The matter was thereafter heard on 01 July 2022, on a semi-urgent basis.

BRIEF STATEMENT OF THE SALIENT BACKGROUND FACTS

9. The applicant and the first respondent claim to be both significant role players in the gambling industry in the Northern Cape Province. According to the applicant, its current gambling licenced premises are situate somewhere in Kuruman, Postmasburg and Kimberley. In addition to the foregoing, it also holds a temporary licence in respect of premises situated at 1[...] C[...] Street, Kimberley. According to the applicant, the said license is the subject matter of some pending litigation unrelated to these proceedings.

10. The first respondent, for its own part, currently holds up to seven bookmaker licences, issued by the Board in terms of Section 50 of the Act. In terms of the said Section, a bookmaker licence is required by any person who directly or indirectly lays fixed-odds bets or open bets with members of the public or other bookmakers, or takes such bets with other bookmakers. The first respondent also averred that it currently conducts bookmaking businesses in terms of only two of its licences at certain licenced premises situated here in Kimberley and Kuruman, respectively. It is common cause that the former licenced premises which are the subject matter of this litigation, are currently situate at 1[…] P[...] M[...] Street, Kimberley.[6]

11. It is apparent from the papers that the said premises are also described as Metropolitan Life Building, Erf 1[...], […]-[…] J[...] Street, Kimberley. This is evinced by the lease agreement apparently entered into between the first respondent and one MMI Group Limited, on or about 26 February 2014. The said lease seems to have commenced on 01 April 2014, with a beneficial

occupation date of 01 March of that year.[7] It is also apparent that the first respondent, in its original application put up its registered place of business as situate at 1[...] P[...] Street, White City, Galeshewe, Kimberley.[8] This address appears to have been of one Mr Rijn Mzwandile Tollie’s home and business address. It is also apparent that the said Mr Tollie, in 2013, when the first respondent originally applied for a temporary license was its sole managing director and 100% shareholder.[9]

12. Subsequently, the Board issued the first respondent with a permanent licence, renewable annually, the latest of which during this hearing, was dated 08 July 2022. For now, suffice it to state that the last licence was subsequently issued by the third respondent to the first respondent for the impugned premises after the institution of these proceedings and whilst judgment was pending on 06 June 2022.

PROLEGOMENON

13. This application contemporaneously implicates certain competing fundamental rights entrenched in the Constitution; some provisions in the NATIONAL and the PROVINCIAL ACTS and public policy. It is so that in a constitutional supremacy dispensation based inter alia on the rule of law, public policy is now rooted in the Constitution itself and the fundamental values enshrined therein.[10] The judgment thus has to be viewed through the prism of the values of the supremacy of the Constitution and the rule of law because they are the spectacles through which all legal disputes ought to be viewed. It is imperative since any law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled.[11]

14. In terms of Section 9(1) of the Constitution, everyone is equal before the law and has the right to equal protection and benefit of the law. Sections 15 (1) and 18, respectively grant everyone the right to freedom of religion, belief, opinion and association. On the other hand, Section 22 grants every citizen freedom of trade, occupation or profession, subject to regulation by law. Section 24(a) of the Constitution, for its own part, expressly guarantees everyone the right to an environment that is not harmful to their health or wellbeing. Section 25(1) of the Constitution, on the other hand expressly precludes anyone from being deprived of property, except in terms of law of general application.

15. Everyone also has a right to just administrative action; regard being had to Section 33 of the Constitution. Seminally, it is so that a child’s best interests are of paramount importance in every matter concerning the child.[12] The right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a Court

or, where appropriate, another independent and impartial tribunal or forum; is also entrenched in the Bill of Rights, regard being had Section 34 of the Constitution.

16. The foregoing rights may only be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant

factors including those listed in Section 36(1) of the Constitution. Section 39 of the Constitution enjoins this Court to, inter alia, when interpreting the said rights, to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. When interpreting any legislation; and when developing any other law, this Court is also enjoined to promote the spirit, purport and objects of the Bill of Rights.

17. The NATIONAL ACT was promulgated to inter alia provide for the co-ordination of concurrent national and provincial legislative competence over matters relating to gambling and wagering generically and to provide for the continued regulation of those matters. For that purpose, the NATIONAL ACT also established certain uniform norms and standards applicable to national and provincial regulation and licensing of certain gambling activities. The NATIONAL ACT further provides for the creation of additional uniform norms and standards applicable throughout the Republic.

18. For instance, national Regulation 39(1), which delineates unsuitable locations pertaining to licensing of site operators, expressly

stipulates that a provincial licensing authority may deny an application for a site license if the licensing authority deems the

place or location for which the license is sought to be unsuitable for such gambling.[13] Without limiting the generality of the foregoing, Regulation 39(2), for its own part, expressly and unambiguously provides that certain premises may be deemed unsuitable; inter alia to wit: premises inconsistent with national and provincial gambling legislation; premises in respect of which the designated area will be accessible to persons under the age of 18 years; and any other premises where the conduct of gambling would be inconsistent with the public interest and policy of the Republic. Of significance, is that Regulation 39(3), warns provincial licensing authorities to take into account the proximity of churches and the like; schools and children’s playgrounds.

19. The Act, for its own part, was promulgated to inter alia provide for the restriction, Regulation and control of gambling and betting in the Province and to provide for matters incidental thereto. The promulgation of the PROVINCIAL ACT thus remains in recognition of the fact that opportunities for gambling, betting and racing entails particular risks to the inhabitants of the Province which justify the imposition of appropriate restrictions, regulations and controls.

20. It is so that often than not, the jurist is required to interpret a statute to suppress the mischief and to promote the remedy designed for its elimination,[14] without however, applying coercive measures that go wider than is necessary to remedy the mischief in question.[15] Section 34(b)(i) of the Act, for its own part expressly permits the Board to refuse to award a license if it considers that the proposed site is an unsuitable location for the proposed activity, having regard to the respective provisions of both the NATIONAL and PROVINCIAL ACTS. The mischief of both Acts can thus be deduced from their respective preambles.[16]

21. It is within this context that Regulation 7(c) of the Northern Cape Gambling Regulations (2010) should be read. It expressly and unambiguously prohibits the Board from issuing a licence to an applicant, if the premises from which the licensed activities will take place are, in its opinion, inter alia, on or in premises which are within 500 meters of a school or a place of worship. It is also so that the rights and duties pertaining to any license are, subject to the NATIONAL ACT.[17] It is further so that the Board is empowered to refuse to award a license, inter alia, if it considers the use of the proposed premises for the proposed activity would be contrary to the existing zoning laws or rights;

regard being had to Section 34(a)(ii) of the Act.

22. The contention by the first respondent that Regulation 7(c) does not prevent it from operating in terms of a licence issued to it possibly in contravention with same is thus simply absurd.[18] The absurdity is so glaring that it could have never been contemplated by the legislature when it passed the legislation to which the Regulations are subsidiary. Apposite in this regard is the maxim Interpretatio quae parit absurdam non est admittenda- legislation was not meant to be absurd or anomalous. This Court says no more.

BRIEF EXPOSITION OF THE RELEVANT FACTS AND LAW

23. Section 39(1) of the Act, does not only prohibit a license under the Act from being transferred to another person, but it also expressly and unambiguously prohibits its removal from the licensed premises to other premises. Section 39(2)(b) of the Act, contemporaneously stipulates that, if the holder of a license desires to remove such license from the licenced premises to any other premises, whether permanently or temporarily, such license holder must make an application to the Board for the removal of such license.

24. Section 36(1)(c) of the Act, expressly and unambiguously stipulate, inter alia, that a license must specify the premises at, in or from which the licensee is permitted to operate. It is common cause that the Board initially issued the first respondent with a temporary license sometime in September 2013. The said license was apparently predicated against its registered premises being situate at situate 1[...] P[...] Street, Galeshewe, Kimberley. The first respondent subsequently relocated its business to the impugned premises.

25. Of significance in this regard is what the explanatory affidavit delivered on behalf of the Board and its Chairperson stated. Both state that they were not privy to the previous discussions that might have ensued between their predecessors and the first respondent, with regard to the granting of the impugned licence.

26. The following can, inter alia, be surmised from the said affidavit; to wit: The Board granted a temporary bookmaker licence to the first respondent on 20 September 2013 whilst its business was registered at the abovementioned address somewhere in Galeshewe. The first respondent thereafter relocated to the current premises. That it appears that no objections were received from interested and affected parties as contemplated in Section 29 of the Act. He was advised that the impugned premises are currently situate as follows from the following schools and/or places of worship contra Regulation 7(c) - 62 meters from Boston College; 408 meters from Universal Church; 330 meters from the Presbyterian Church; and 349 meters from Sparkies Educare.

27. The Chairperson disclosed that he only became aware that the impugned licence was granted to the first respondent contra regulation 7(c) when the issue was raised by the applicant in the contempt of Court application whereafter he informed all the other Board members, including its relevant officials. Nothing indicates that he or any other Board member could reasonably have acquired any knowledge with regard to the said license, because neither the Chief Executive Officer or any member of the Board, were informed of the allegations in respect of the said license when they were appointed.

28. The Board’s investigation revealed the following. The first respondent applied for bookmaking licenses to operate from the following towns Kimberley; Kuruman and Postmasburg, with its principal place of business situated at 1[...] P[...] Street, Galeshewe, Kimberley. During the time of the said application, the sole shareholder of the first respondent was one Mr RM Tollie. The said application was duly published in the provincial gazette on 12 August 2013, without any objections.

29. Thereafter, the impugned licence was issued on 20 September 2013. The relevant minutes do not indicate whether or not the Board considered compliance with Regulation 7(c). On or about 25 February 2014, the following year, the first respondent entered into a lease agreement pertaining to the impugned premises, to which it has since relocated. To the explanatory affidavit,

the relevant Provincial Gazette dated 12 August 2013, and the minutes of the Board dated 04 September 2013 are inter alia attached. The second and third respondent in sum contended that absent an order of a Court of competent jurisdiction, the third respondent is legally constrained by law to rescind the impugned decision.

30. The applicant in this regard contended that regard being had Google Maps, the impugned premises and activities fall within the prohibited 500 meters of certain schools or places of worship, contra Regulation 7 (c); viz: 50 meters from Boston City Campus, currently situated at 9[...] P[...] M[...] street; 326 meters from St Mary’s Cathedral,

situated at 7[...] D[...] T[...] road since 15 March 1928; 254 meters from Kimberley Presbyterian Church, situated at N[...] M[...] street since 19 May 1839; 314 meters from Truth Baptist Church, situated at 1[...] L[...] street; 315 meters from Sparkies Educare, situated at 3[...] S[...] street; Boston College since 13 September 2013; and 442 meters from Sol Plaatje University, situated at 1[...] S[...] P[...] drive.

31. The first respondent, for its own part, laconically averred that it bears no knowledge of the correctness of the abovementioned measurements and maintained that same is in any event irrelevant. This notwithstanding, it however quibbled with the fact that the applicant did not state whether any of the abovementioned sites were situated where they are alleged to be, at the time the impugned license was granted or how the third respondent, at the time interpreted or applied the said Regulation; which may in due course be revealed in the foreshadowed rule 53 review application record.

32. It is so that there is no evidence from the papers delivered, whether the removal of the impugned license from 1[...] P[...] Street, Galeshewe, to P[...] M[...] Street, was preceded by any application to do so to the Board. This is particularly disconcerting; regard being had to the express and unambiguous provisions of Section 39(3), (5) and (6) of the Act; to wit:

“(3) For the purpose of an application contemplated in subsection (2), the provisions of Sections 17, 28 and 29, read with the changes required by the context, apply.

(4) In addition to any investigation done in terms of this Act, the Board must also do such investigations as may be prescribed by Regulations under the National Gambling Act, when considering an application contemplated in terms of subsection (2).

(5) A licence may not-

(a)….

(b) be removed from the licenced premises concerning another premises, unless the Board is satisfied that the other premises are or will on completion be suitable for the purpose for which they will be used

under the licence.

(6) …

(7) Upon granting an application for the removal of licence to other premises, the Board must-

(a) issue a new licence to the licensee, referring to the new premises as the licenced premises; and

(b) cancel the original licence.”[19]

33. Sections 17, 18 and 29 of the Act, respectively require the Board to conduct investigation and to levy investigative costs in respect of licences or certificates; and or cause to be carried out enquiries for the purpose of achieving the objectives of the Act; and or to conduct hearings for such applications in appropriate circumstances. Needless to state, had the foregoing been adhered to, whether or not the impugned licence flies in the face of Regulation 7(c), would have been long put to bed.

34. Rule 6(12)(a) of the Uniform Rules of Court regulates urgent applications. As alluded above, the applicant approached this Court urgently. It was therefore imperative to determine this issue preliminarily. This rule empowers the Court or a Judge to dispense with the forms and service provided for in the rules and to dispose of such matter at such time and place and

in such a manner and in accordance with such procedure as it deems fit.

35. Rule 6(12)(b), for its own part, requires an applicant to set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that applicant could not be afforded substantial redress at a hearing in due course. The cardinal preliminary question, therefore, is: Has the applicant set forth explicitly the circumstances which it averred rendered this matter urgent and the reasons why it claims that it could not be afforded substantial redress at a hearing in due course?

36. It is so that an applicant in an urgent application must set out the facts which demonstrate why the matter is so urgent that it cannot be considered in the ordinary course of proceedings. In other words, the applicant has to demonstrate why, should the matter not be heard as one of urgency, it would not be able to obtain substantial relief in due course. It is also so that it is expected of an applicant in urgent matters to demonstrate why the Court should condone the truncated timeframes set out in the notice of motion.

37. It is so that once an applicant becomes aware of a state of affairs which in its opinion demands urgent relief, it may not take its time in instituting proceedings, nor may it follow such a relaxed time frame in its notice of motion that it militates against any notion of urgency. To this extent, it was pointed out for the applicant that when it became aware that the first respondent’s licenced premises were within the prohibited proximity to a handful of schools and places of worship contra Regulation 7(c), it invited the first respondent to explain under oath, why it did not disclose its business address to this Court, in another unrelated contempt matter in which the parties were litigating against each other.

38. That the third respondent did not even respond to the foregoing query. It was submitted further that, the first respondent approached this Court with unclean hands as it purposely did not disclose to this Court that it operates from premises which fall foul of the very Regulation it vociferously sought to protect. That it is common cause that the first respondent did not honour the said invitation and elected not to file a replying affidavit in that matter. That the applicant has demonstrated that it, since the hearing of the contempt application, through its legal representatives, sought input from the third respondent by inviting it to disclose whether they are aware of the contravention of Regulation 7(c) and why, if it is aware, no steps were taken to rectify the invalidity that clings to the first respondent’s licence.

39. It was pointed out that the applicant, when it became aware of the situation, invited the first respondent to under oath explain why it did not disclose its business address to Court and whether it contravened the relevant Regulation, to no avail. That the response by the first respondent’s attorney was dismissive and avoided the issue at hand. In this regard, this Court was referred to an electronic mail dated 27 May 2022, by the first respondent’s attorney, referred to as annexure EV14 in these proceedings. That upon receipt of the answer by the first respondent’s attorney and the non-response of the third respondent, the wheels were set in motion and the present applicant drafted.

40. The applicant further contended that the decision of the third respondent to issue the first respondent a bookmaker license falls to be urgently reviewed and set aside as same offends the provisions of Regulation 7(c) of the provincial Regulations.

41. It was in sum submitted for the applicant that the matter was inherently urgent as the current location of the impugned premises amounts to a continuous and flagrant contravention of the said regulation. That, should this Court not urgently come to the applicant’s assistance, it would impliedly be condoning an illegality on the basis that same has continued for many years. That it would also imply that if an evil is not nipped in the bud quickly, it may be allowed to continue indefinitely.

42. The fact that the business has been in existence for a period of time cannot trump this reality or establish a justification for the contravening conduct. That the applicant acted with reasonable haste to have this rectified. That in the premise, the matter is and remains sufficiently urgent to be considered, at the very least, as a semi-urgent matter and for rule 6(12) to be invoked.

43. Mr Jagga, for the applicant further submitted that this matter is one where even if the applicant could have been criticised, the interest of justice is such that it demands that the matter be considered urgently because every day that goes by there is a continuous non-compliance because the licence may be valid in fact but not in law.

44. That the Constitution and the principle of legality demands that a person cannot operate on a ‘catch me if you can basis’. That it is so even if the Board said it did not even know that the first respondent was a bookmaker licence holder before the contempt proceedings or something to that effect or that the Chairperson only became aware of a bookmaker licence that was granted to the first respondent, when this was first raised by the applicant in the contempt of Court application.

45. That this Court has a discretion to be exercised judicially. The Court should not close its eyes and say, for eight years there has been a problem and you only approach this Court now on an urgent basis. That, that would mean the problem will continue forever. He submitted further, that on the papers, there is an illegality that is occurring and that the applicant has adequately explained why it only acted at the time it did.

46. The first respondent, for its own part, contended as follows in sum. That this application is not urgent at all because the first respondent has been trading from its site for years, since June 2014. That its business is clearly visible from the street as is evident from the photograph of the outside of the premises taken from the street, attached and marked CD2. That both Mr Vrysoulis, the deponent to founding and replying affidavits and the applicant’s attorney, Mr Bertie Honiball, were both well aware that the first respondent has been trading from its premises situated at P[...] M[...] Road, for approximately eight

(8) years.

47. That the foregoing notwithstanding, they indolently failed to bring this application timely. That notably absent from Mr Vrysoulis’ affidavit is any statement by him as to when he became aware of the fact that the first respondent had been issued with a bookmaker licence for the premises situate at P[...] M[...] Road and was trading from the premises in terms of the bookmaker licence.

48. That, as a matter of fact, Mr Vrysoulis and other associates, employees and or agents have been to the first respondent’s business in P[...] M[...] Road on several occasions before inter alia during August 2022, which is almost two years ago. That on that occasion, he was also seen on the premises by other persons who have filed confirmatory affidavits to that effect. In the premise, it was submitted for the first respondent that the applicant has been sitting on its hands since.

49. That it follows from the foregoing that once an applicant became aware of the alleged state of affairs which in its opinion demanded urgent relief, it should not have taken its time in instituting these proceedings. Nor should it have followed such relaxed timeframes in its notice of motion that it militates against any notion of urgency. That lodging this application urgently

amounted to an abuse of process and therefore should be struck from the roll with costs for lack of urgency.

50. On behalf of the first respondent, Mr Kruger submitted as follows inter alia. That the question is not what prima facie appears illegal. The question at this stage of urgency is whether substantial redress can be obtained in due course and the

answer to that is yes. That is the end of the matter. Whether the application is mounted on the principle of legality or predicated against the provisions of the PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 of 2000 (PAJA), the question, when dealing with urgency, is not concerned with the merits of the case. The question concerned is whether the applicant following the ordinary processes and time frames would obtain substantial redress. If the answer to that is yes, that is the end of the matter.

51. It was submitted for the first respondent also that to the extent that the applicant has been “sitting on its hands” for an inordinately long time only to lodge this application urgently amounted to an abuse of process and thus fell to be struck from the roll for lack of urgency.

52. It is common cause that at the time this application was lodged, the first respondent’s application for the annual renewal of its impugned licence for the year 2022, was still pending. To this extent, the applicant contended that the renewal of the impugned license by the third respondent will perpetuate an illegality. That it is so since the said licence makes it clear that same is issued subject to amongst others, the provisions of the Regulations. The applicant submitted that, it follows from the foregoing that in the interim, the license conditions implied that the impugned business may not be conducted on premises that offends Regulation 7(c). Thus the fact that the first respondent managed to do so with impunity for eight and half years cannot elevate the said business to being conducted lawfully.[20]

53. That Section 15(1) of the PROVINCIAL ACT, does not only expressly permit the Board to exercise its powers and to perform its functions in terms of the Act or assigned to it in terms of the NATIONAL ACT, it also impels it to carry out its duties specified by same. The Board is also empowered to inter alia conduct or cause to be conducted hearings, investigations or enquiries of an application for a license under the Act and the revocation or suspension of a license issued under this Act, if it is necessary for the achievement of the objective of the Act.

54. It can be deduced from the very definition of an interdict that it is not a remedy for the past invasion of rights, but is concerned with the present or the future.[21] It is against this backdrop that this Court there and then determined that the matter was sufficiently urgent to be enrolled and heard as such. Thereafter however, the adjudication of the motion urgently was rendered moot or fell away for the following reason.

55. The first respondent on 19 July 2022, whilst this judgment was still pending, lodged an interlocutory application seeking to reopen the proceedings for the purpose of admitting evidence of its renewed license dated 08 July 2022. This application was served on the applicant. This notwithstanding, the applicant elected not to oppose same or to seek any alternative relief it might have deemed meet in the circumstances. Nor did it seek to amend its motion or file any supplementary affidavit. In our law, an applicant may be allowed to amend its cause of action by filing supplementary affidavits.[22]

Point In Limine

56. It is so that every motion must be predicated against facts upon which the applicant relies for the relief sought, regard being had to rule 6(1). By parity of reason, a respondent is entitled to raise an objection in limine that the founding affidavit does not make out a prima facie case for the relief claimed.[23] The respondent in sum contended as follows in this regard.

57. That on the face of the notice of motion and affidavit, the applicant seeks an interim interdict pending the applicant instituting a review application within 60 days of the date of the order sought being granted. That the foregoing notwithstanding, the applicant does not explain why in the meantime, the respondent should be restrained from operating its business or why it requires 60 days to institute the said review proceedings. That directing the Board to ensure that the first respondent suspends its business, pending the finalisation of the review proceedings would be incompetent and unlawful.

58. That the fact that the first respondent continues trading in terms of the impugned licence does not undermine, obstruct or curtail the applicant’s right to institute the foreshadowed review proceedings. That the relief sought would effectively suspend or revoke its licence as contemplated in Section 38 without following the procedure contemplated therein and would also predetermine the outcome of same. That even if the Board were to invoke Section 38 of the Act, same does not provide for the prohibition of operating in terms of an impugned license, whilst the contemplated process is underway. That in the premise, the relief sought is so nonsensical and bad in law such that it fell to be dismissed with costs preliminarily.

59. The applicant, for its own part, pointed out that to the extent that it remains incontrovertible that the first respondent is conducting business in contravention of Regulation 7(c), there can simply not even be a question of whom the balance of convenience favours. That the prejudice the first respondent stands to suffer is nullified by the fact that its business, every day it continues, contravenes Regulation 7(c). That if this is weighed against the prejudice the applicant suffers and society as a whole, should the first respondent not be ordered to close its business, goes without saying.

60. That the applicant is a role player in the industry and the gambling industry as a whole would be prejudiced should the first respondent not be interdicted from operating in the interim. That the applicant is currently adhering to an interim interdict on the very same grounds. That if the order sought is not granted there is an inherent risk that various role players would lose faith in the industry if the application of Regulation 7(c) is not applied consistently. More so, society would be prejudiced

if this is not consistently applied.

61. This Court is constrained to agree with the first respondent in this regard, for the following reasons. First, granting the relief sought in terms of the second prayer and ordering the Board to forthwith take such steps to ensure that the first respondent suspends its business, pending the finalisation of the foreshadowed review proceedings, before the process contemplated in Section 38 of the Act, would not only deny the respondent the fundamental right to an administrative action that is lawful, reasonable and procedurally fair by pre-empting the outcome of the said process, but would also amount to a usurpation of the powers of the Board, contra the principle of separation of powers.

62. It is trite that the doctrine of separation of powers is an inherent characteristic element of our modern constitutional dispensation. As the Constitutional; Court has indicated, the doctrine recognises the functional independence of the three branches of government while checks and balances associated with doctrine prevent the branches from usurping each other’s powers.[24] In President of the Republic of South Africa v SARFU, the Constitutional Court confirmed that the administration is “that

part of government which is primarily concerned with the implementation of legislation” and contemporaneously indicated that such implementation is the hallmark of administrative action. That it is by implementing legislation that the public service

performs its constitutional duty loyally to execute “the lawful policies of the government of the day.”[25]

63. Section 38(1) of the Act implicitly precludes the Board, from suspending or revoking a license issued in terms of the Act before an investigation by a disciplinary committee finds that any of the grounds listed in the said Section exist. No such committee, at least so it is not said, has been established yet. Where the Board proposes to suspend or revoke a license, the Board is

obliged to serve a written notice on the licensee stating inter alia that the licensee may within 30 days make written representations about the matter to the Board; or notify the Board in writing of the intention of the licensee to make oral representations and the effect of Section 38(3) of the Act. This process has not taken place.

64. The simple fact is that the Board cannot undo whatever illegality which is alleged until same is set aside by a Court with competent

jurisdiction. Not even in the interim. It is so due to the presumption of regularity in our administrative law, to wit: “omnia praesumuntur rite esse acta.”[26] The fact remains that until the impugned licence is set aside by a Court of competent jurisdiction, it exists in fact and remains capable of having legally valid consequences, even if it is as a result of a so-called incontrovertible illegality, as argued for the applicant.[27]

65. Put otherwise, an obvious illegality can simply not be ignored as it has been authoritatively stated in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others; viz:[28]

“For those reasons it is clear, in our view, that the Administrator's permission was unlawful and invalid at the outset. Whether he thereafter also exceeded his powers in granting extensions for the lodgement of the general plan thus takes the matter no further. But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the

permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator's approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? In our view, it was not. Until the Administrator's approval (and thus also the consequences of the approval) is set aside by a Court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending on the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful act is capable of producing legally valid

consequences for as long as the unlawful act is not set aside.”[29]

66. It can be deduced from the foregoing that the factual existence of an administrator’s permission was enough to support the various subsequent administrative actions that have been taken. Significantly, the apex Court pointed out that to the extent that the case did not involve any attempt to act cohesively, this solution did not threaten the rule of law in anyway.[30] To the contrary, in the case of a direct challenge in proceedings for judicial reviews, the Court always has a discretion whether to grant or withhold a remedy of setting aside- discretion that allows it to avoid or minimise injustice when legality and certainty are in tension with each other.[31]

Whether there is a similar or satisfactory remedy or protection by any other ordinary remedy

67. Even though the relief sought is couched as an interim relief in form, it is final in substance because it finally takes away the right of the respondent to operate its business for sixty days. But accepting for a moment that the applicant has a prima facie or even a clear right; or the relief sought is competent, it still had to demonstrate the absence of a similar or satisfactory remedy or protection by any other ordinary remedy. It is imperative since in our law an alternative remedy must be adequate in the circumstances; be ordinary and reasonable; be a legal remedy; and grant similar protection.[32] It is also so that an applicant must, as a general rule, first exhaust other available remedies, especially regard being had to the four corners of the applicable statute. Of significance is that regard being had to the facts and circumstances of each case, criminal sanctions may be an adequate alternative remedy.[33]

68. Section 76(1) of the Act, for its own part, expressly creates some offences and penalties pertaining to persons who contravene the provisions of the Act itself or any condition of a licence or hinders or obstructs any police official whilst taking steps for the prevention or investigation of an offence under the Act. It also expressly criminalises and penalises the making of any false statement in any application or return under this Act.

69. Of significance is that anybody who is found guilty of any of the offences listed in Section 76(1) on conviction is liable to a fine not exceeding R10 000 000.00 or to imprisonment for a period not exceeding 10 years or both such fine and imprisonment. The foregoing notwithstanding, in the event of a conviction, the Court may impose a penalty not exceeding twice the amount of such fine or the period of such imprisonment, or both such fine and imprisonment.

70. It follows from the foregoing that if it is so that the first respondent is indeed operating its business from unlicensed premises, the provisions of Section 76 and 80(1) of the Act might ipso facto be implicated. The latter expressly and unambiguously prohibits: (a) any person from permitting any premises under that person’s control to be used for the purposes of a restricted gambling activity, unless that gambling activity in, on or from those premises has been authorised in terms of a license under the Act or the NATIONAL GAMBLING ACT>; or (b) permitting an individual in or on any premises under that person’s control to engage in a restricted gambling

activity, unless that maintaining or operating any premises for the purposes of a restricted gambling activity, unless that gambling

activity in, on or from those premises has been authorised in terms of the Act or the NATIONAL ACT.

71. It is clear from the foregoing that substance of the relief sought by the applicant in these proceedings is just a police station away. It is so because prevention, combating and investigating of crimes; the maintenance of public order; protecting and securing the inhabitants of the Republic and their property; upholding and enforcing the law, falls squarely within the province of the police, constitutionally.[34] This was the most decisive factor, as it ought to be, that came to bear in the exercise of this Court’s general discretion to grant or refuse the relief sought.[35]

CONCLUSION:

72. Whilst this Court has a wide discretion to refuse an interim interdict even if the requisites have been established, on the other hand, it is so this Court has no discretion to grant an interim interdict if all the requirements have not been established.[36] This Court had to have full regard to the disparate and incommensurable features in this case, in coming to this decision. This Court’s discretion is not unfettered – it is judicial and must be exercised according to law and upon established facts.[37]

73. It is against this backdrop that this Court concluded that to the extent that there is a similar or satisfactory remedy or protection by another ordinary remedy, the application fell to be dismissed with costs.

ORDER:

74. In the premise, the following order is granted:

a. THE APPLICATION IS DEEMED TO BE URGENT AND THE APPLICANT’S NON-COMPLIANCE WITH THE FORMS, SERVICE AND TIME PERIODS PRESCRIBED IN TERMS OF THE UNIFORM RULES IS CONDONED AND THE MATTER IS ENROLLED AND HEARD URGENTLY;

b. THE APPLICATION IS DISMISSED WITH COSTS.

JUDGE APS NXUMALO

NORTHERN CAPE DIVISION

KIMBERLEY

05 MAY 2023

Counsel for the Applicant: ADV N JAGGA Instructed by: Van de Wall Inc. Kimberley Counsel for the First Respondent: ADV M KRUGER Instructed by: Elliott Maris Attorneys Kimberley Counsel for Second and Third Respondents: ADV B BABUSENG Instructed by: Towell & Groenewaldt Attorneys Kimberley

[1] Hereinafter referred to simply as “the Act/ the Provincial Act”

[2] Hereinafter referred to as “the Chairperson”

[3] Hereinafter referred to as “the Board”

[4] Hereinafter referred to as “the National Act”

[5] Herein after simply referred to a “PAJA”

[6] In paragraph 53, of the founding affidavit, the applicant averred that the first respondent’s business is situated at 19 Phakamile Mabija Street, Kimberley. This

allegation is evaded by the latter in paragraph 97 of its answering affidavit, where the respondent averred as follows: “Ad paragraphs 52 and 53 of the founding affidavit 97. The content of these paragraphs are denied. The Applicant did not conduct its own investigation after not having received a response from the Gambling Board to annexure EV4 to establish where the First Respondent’s Kimberley business is located, it had known this for years and it even states the address in the answering affidavit of 10 May 2022.”

[6] In paragraph 53, of the founding affidavit, the applicant averred that the first respondent’s business is situated at 19 Phakamile Mabija Street, Kimberley. This

allegation is evaded by the latter in paragraph 97 of its answering affidavit, where the respondent averred as follows:

“Ad paragraphs 52 and 53 of the founding affidavit

97. The content of these paragraphs are denied. The Applicant did not conduct its own investigation after not having received a response from the Gambling Board to annexure EV4 to establish where the First Respondent’s Kimberley business is located, it had known this for years and it even states the address in the answering affidavit of 10 May 2022.”

[7] pp230-266, Vol 3

[8] p157, second and third respondent’s explanatory affidavit

[9] pp159; 178 and196, ibid

[10] Barkhuizen v Napier 2007 (7) BCLR 691 (CC); 2007 (5) SA 323 (CC)

[11] Sections 1(c) and 2 of the Constitution of the Republic of South Africa, 1996

[12] Section 28(2) of the Constitution.

[13] GNR.1425 of 21 December 2000: Regulations on Limited Playout Machines as amended by GG 29602 of 06 February 2007

[14] Glen Anil Development Corporation LTD v Secretary for Inland Revenue 1975 (4) SA 715 (A) 727H-728A

[15] Sefalana Employee Benefits Organisation v Haslam and Others [2000] ZASCA 1; 2000 (2) SA 415 (SCA), at Para 8

[16] The wrongs intended to be redressed by a statute; gist or real purpose and object thereof. It is so that the mischief of a statute is often embedded in its preamble- Stephens v Cuckfiel RDC 1960 (2) QB 373

[17] Section 20 of the Act

[18] See paragraph 31, p58, Answering Affidavit

[19] Emphasis supplied.

[20] See paragraphs 33-38, pp106-107, Replying Affidavit

[21] Minister of Health v Drums & Pails Reconditioning 1997 (3) SA 867 (N) 876

[22] Berg v Gossyn (1) 1965 (3) SA 702 (O)

[23] Nedbank v Hoar 1988 (3) All SA 193 (E)

[24] South African Association of Personal Injuries Lawyers v Heath [2000] ZACC 22; 2001 (1) SA 883 (CC) at 21 et seq

[25] Section 197(1), Constitution

[26] Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004(6) SA 222 (SCA), at paras (26) -(27); see also, Ngqele v King Sabata Dalindyebo Municipality & Others [2011] 8 BLLR 817 (ECM)

[27] Merafong City Local Municipality v AngloGold Ashanti Limited 2017 (2) SA 211 (CC), at Para (43)

[28] 2004(6) SA 222 (SCA) at para 48, per Howie P and Nugent JA

[29] Emphasis supplied

[30] At paragraph 39, ibid

[31] At para 36, ibid

[32] Defensor Electronic Security Systems (Pty) Ltd and others v Africa Community Media (Pty) Ltd and Another [2022] JOL 55436 (FB), at para (30); see also, Van der Merwe NO and others v Drenched Boxing (Pty) Ltd and Others [2021] 3 All SA 281 (WCC), at Para 43; see also, Minister of Law and Order v Committee of the Church Summit 1994 (3) SA 89 (BGD); [1994] 4 All SA 448 (BG), at para 99

[33] FAWU v Scandia 2001 (3) SA 613 (SCA)

[34] Section 205(3) of the Constitution of the Republic of South Africa, 1996

[35] Beecham Group v BM Group 1977 (1) SA 50 (T) at 57

[36] Sweets from Heaven v Ster Kinekor Films 1999 (1) SA (W), at para 11

[37] Benoni Town Council v Meyer 1961 (3) SA 316 (W) 326