Weare and Another v Ndeble NO and Others (8337/06) [2008] ZAKZHC 89; 2008 (5) BCLR 553 (N) (29 February 2008)

Weare and Another v Ndeble NO and Others (8337/06) [2008] ZAKZHC 89; 2008 (5) BCLR 553 (N) (29 February 2008)

Section 22(5) of the Regulation of Racing and Betting Ordinance 28 of 1957 restricts the issuing of bookmakers’ licences to natural persons and, in certain circumstances, partnerships. The court found that this differentiation is not rationally connected to the legitimate governmental purpose of controlling gambling and protecting the public, as effective control could be achieved through other means, such as requiring a responsible representative for juristic persons. The exclusion of juristic persons from licensing constitutes unfair discrimination and is inconsistent with section 9(1) of the Constitution. The court held that juristic persons are entitled to equality rights under the...

Citation
[2008] ZAKZHC 89
Parties
Applicant: Michael Weare; Applicant: Betting World (Pty) Ltd; Respondent: Mr Joel Sibusiso Ndebele N.O.; Respondent: Kwazulu-Natal Gambling Board; Respondent: Kwazulu-Natal Bookmakers’ Control Committee; Respondent: Mandisi Bongani Mabuto Mpahlwa N.O.; Respondent: National Gambling Board
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
29 February 2008
Case Number
8337/06
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Section 22(5) of the Regulation of Racing and Betting Ordinance 28 of 1957 (KwaZulu-Natal) is declared inconsistent with section 9(1) of the Constitution and invalid, with the declaration of invalidity suspended for three months.
Judges
Rall AJ
Legal Topics
Equality Clause, Bookmaker Licensing, Unfair Discrimination, Provincial Vs National Legislation, Suspension of Invalidity, Interpretation of Statutes
Constitutional Law Administrative Law Equality Clause Bookmaker Licensing Unfair Discrimination Provincial Vs National Legislation Suspension of Invalidity Interpretation of Statutes

Case Brief

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Parties

Michael Weare

Applicant

Betting World (Pty) Ltd

Applicant

Mr Joel Sibusiso Ndebele N.O.

Respondent

Kwazulu-Natal Gambling Board

Respondent

Kwazulu-Natal Bookmakers’ Control Committee

Respondent

Mandisi Bongani Mabuto Mpahlwa N.O.

Respondent

National Gambling Board

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether section 22(5) of the Regulation of Racing and Betting Ordinance 28 of 1957 is inconsistent with section 9(1) of the Constitution.
  2. 2 Whether juristic persons are entitled to be issued bookmakers’ licences in KwaZulu-Natal.
  3. 3 Whether the Ordinance is in conflict with the National Gambling Act and/or the KwaZulu-Natal Gambling Act.

Ratio Decidendi

Section 22(5) of the Regulation of Racing and Betting Ordinance 28 of 1957 restricts the issuing of bookmakers’ licences to natural persons and, in certain circumstances, partnerships. The court found that this differentiation is not rationally connected to the legitimate governmental purpose of controlling gambling and protecting the public, as effective control could be achieved through other means, such as requiring a responsible representative for juristic persons. The exclusion of juristic persons from licensing constitutes unfair discrimination and is inconsistent with section 9(1) of the Constitution. The court held that juristic persons are entitled to equality rights under the...

Court Disposition

Section 22(5) of the Regulation of Racing and Betting Ordinance 28 of 1957 (KwaZulu-Natal) is declared inconsistent with section 9(1) of the Constitution and invalid, with the declaration of invalidity suspended for three months.

Orders

  • The applicants’ failure to comply with Rule 16A is condoned.
  • Section 22(5) of the Regulation of Racing and Betting Ordinance, No 28 of 1957 (KwaZulu-Natal) is declared inconsistent with section 9(1) of the Constitution and invalid.