Phumelela Gaming and Leisure Limited v Gauteng Gambling Board and Others (41790/2019) [2025] ZAGPJHC 818 (21 August 2025)

Case Note

Phumelela Gaming and Leisure Limited v Gauteng Gambling Board and Others
Case number 41790/2019, Gauteng Local Division, Johannesburg
[2025] ZAGPJHC ___ (21 August 2025)

Reportability

This judgment is reportable because it makes a significant contribution to South African administrative-law jurisprudence on two fronts. First, it clarifies that repayment of monies exacted under an unlawful administrative act does not constitute a “debt” for purposes of the Prescription Act 68 of 1969, thereby adopting the ratio of the Supreme Court of Appeal in Petersen v SASSA and extending it to PAJA reviews. Secondly, it underscores the limits of delegation: a statutory board that merely rubber-stamps a committee’s recommendation without demonstrable independent consideration acts unlawfully and its decision is reviewable under section 6(2)(e)(iii) and 6(2)(i) of PAJA. Given the frequency with which specialised regulatory boards employ disciplinary committees, the reasoning has wide institutional significance and is plainly of interest to other courts and practitioners.

Cases Cited

• Imperial Bank Limited v Barnard and Others NNO 2013 (5) SA 612 (SCA)
• Four Tower Investments (Pty) Ltd v Andre’s Motors 2005 (3) SA 39 (N)
• Dumasi v Commissioner, Venda Police 1990 (1) SA 1068 (V)
• Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C)
• Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC)
• Petersen and Others v South African Social Security Agency 2025 (3) SA 153 (SCA)
• South African Broadcasting Corporation (SOC) Limited v Motsoeneng [2024] JDR 3246 (GJ)
• Khumalo and Another v Member of the Executive Council for Education, KwaZulu-Natal 2014 (5) SA 579 (CC)
• Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC)
• Opposition to Urban Tolling Alliance v South African National Roads Agency Limited 2013 (4) SA 639 (SCA)
• 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others 2020 (6) SA 428 (GJ)
• Business Unity South Africa v Minister of Higher Education and Training [2016] JDR 0004 (LC)
• City of Tshwane Metropolitan Municipality v New GX Enviro Solutions and Logistics Holdings (Pty) Ltd [2021] JDR 1299 (GJ)
• Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA)
• President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC)
• Hayes v Minister of Finance and Development Planning, Western Cape 2003 (4) SA 598 (C)
• Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)
• Man in One CC v Zyka Trade 100 CC [2022] JDR 0704 (FB)
• Krogman v Van Reenen 1926 OPD 191
• Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D)
• Summer Season Trading 63 (Pty) Ltd v City of Tshwane [2021] JDR 0291 (GP)

Legislation Cited

• Promotion of Administrative Justice Act 3 of 2000
• Prescription Act 68 of 1969
• Gauteng Gambling Act 4 of 1995
• Constitution of the Republic of South Africa, 1996 (sections 34, 172)

Rules of Court Cited

• Uniform Rule 53
• Uniform Rule 28
• Uniform Rule 30A

HEADNOTE

Summary

The applicant, Phumelela Gaming and Leisure Limited, sought to review and set aside the Gauteng Gambling Board’s decision of 29 May 2019 finding it guilty of breaching Condition 10 of its race-meeting licence and fining it R5 million (half suspended). Phumelela, now in business rescue and no longer licensed, amended its relief to concentrate on repayment of the R2.5 million paid. The Board opposed the amendment, advanced prescription and undue-delay defences, and maintained that the court should remit rather than substitute.

Windell J dismissed those objections. Drawing on recent appellate authority, she held that a repayment claim pursued as just and equitable relief in review proceedings is not a “debt” under the Prescription Act, and therefore does not prescribe in three years. The review was launched within PAJA’s 180-day window; any subsequent delay in prosecution was explained and non-prejudicial.

On the merits the court found that the Board had abdicated its decision-making function: the rule 53 record revealed no evidence that it independently considered the disciplinary committee’s findings. This failure to apply its mind rendered the decisions unlawful under section 6(2)(e)(iii) and 6(2)(i) of PAJA.

Key Issues

Whether the repayment relief had prescribed under the Prescription Act.
Whether the review and subsequent amendment were unreasonably delayed.
Whether the Board unlawfully delegated or abdicated its decision-making power to the disciplinary committee.
What remedy was just and equitable given that Phumelela was no longer licensed.

Held

The repayment claim is not a “debt” and therefore did not prescribe.
The review was instituted within statutory time; prosecution delays were excusable and non-prejudicial.
The Board failed to apply its mind and unlawfully rubber-stamped the committee’s recommendations; its decisions are reviewable and fall to be set aside.
Just and equitable relief required restitution: the Board must refund the fine with interest; remittal or substitution was neither competent nor practical.

THE FACTS

Phumelela, holder of a Gauteng race-meeting licence since 2002, historically supplied bookmakers with televised racing content. Condition 10 of its licence obliged it to provide “visual broadcasts for betting purposes” at cost, subject to Board approval. After legislative amendments in 2002, Phumelela believed bookmakers could source broadcasts independently and sought removal of the condition, later abandoning that bid.

A 2014 complaint by bookmaker associations alleged that Phumelela breached Condition 10 by charging commercial rates for the “Tellytrack” channel. The Board consolidated that complaint with Phumelela’s earlier licence-condition application, refused withdrawal, and issued an interim pricing directive—later reviewed and set aside by a Full Court for procedural unfairness.

Thereafter the Board initiated fresh disciplinary proceedings. A disciplinary committee chaired by the second respondent adopted the bookmakers’ wide reading of Condition 10, found Phumelela in breach and recommended a R10 million fine (half suspended). On 29 May 2019 the Board endorsed guilt and imposed a R5 million penalty on the same terms. Phumelela paid R2.5 million forthwith, “without prejudice”, and launched review proceedings in November 2019. During the litigation Phumelela entered business rescue, transferred its racing operations, and narrowed its prayer to repayment of the fine already paid.

THE ISSUES

The court had to decide, first, whether Phumelela’s newly asserted repayment relief was time-barred by prescription or by undue delay, and whether an amendment introducing that relief should be permitted. Secondly, it had to determine if the Board’s decisions on guilt and sanction were reviewable on PAJA grounds—specifically for failure to apply its mind and unlawful delegation. Finally, the court considered the appropriate just and equitable remedy in circumstances where remittal was impossible because Phumelela was no longer subject to the Board’s jurisdiction.

ANALYSIS

Windell J began with prescription, applying the Constitutional Court’s reasoning in Njongi and the SCA’s fresh authority in Petersen v SASSA. She held that repayment sought as ancillary relief in review litigation flows from the court’s public-law remedial power under section 172(1)(b) of the Constitution, and therefore does not constitute a “debt” subject to the Prescription Act. On undue delay, the review had been introduced within PAJA’s 180-day outer limit; later procedural pauses were attributable to disputes over the adequacy of the rule 53 record and to the exigencies of business rescue. Because the Board showed no prejudice, the delay doctrine did not bar relief.

Turning to the merits, the judge scrutinised the record. It contained the disciplinary committee’s voluminous material but no contemporaneous evidence of the Board’s deliberations. No minutes, memoranda or reasons were forthcoming, and the Board’s answering affidavit relied on broad, post-hoc confirmations. Relying on authorities such as SARFU and Hayes, the court held that a statutory body must make its own decision; blind adoption of a recommendation amounts to abdication. The absence of a genuine decision-making process rendered the Board’s actions irrational and unlawful under section 6(2)(i) of PAJA.

Finally, regarding remedy, the court assessed what relief would be just and equitable. Remittal was futile: Phumelela no longer held a licence, and the Board no longer had jurisdiction over it. Substitution was equally impracticable because the disciplinary charge had become moot. The only effective vindication was to set aside the impugned decisions with retrospective effect and order repayment of the fine plus interest. This outcome aligned with the corrective principle and avoided unjust enrichment by the regulator.

REMEDY

The court reviewed and set aside both the finding of guilt and the sanction. It ordered the Gauteng Gambling Board to refund the R2.5 million already paid, together with interest from 29 May 2019, and to pay Phumelela’s costs on the High Court’s Scale C. Windell J emphasised that restitution was the natural sequel to invalidity and that nothing in equity or practicality militated against repayment.

LEGAL PRINCIPLES

This judgment entrenches several important principles. First, where repayment is sought purely as a facet of just and equitable relief in a review, it does not constitute a “debt” under the Prescription Act; the ordinary three-year bar therefore does not apply. Secondly, administrative decision-makers may solicit advice but must retain and visibly exercise their own discretion; wholesale adoption of a committee’s recommendation without demonstrable independent assessment constitutes an abdication reviewable under PAJA. Thirdly, in crafting remedies courts must prefer restitution where the impugned decision has produced a tangible financial transfer, unless countervailing prejudice or public-interest factors are shown. Finally, delay in the institution or prosecution of review proceedings will defeat a claim only where it is inexcusable and prejudicial; explanation coupled with absence of prejudice suffices to maintain the matter.

These principles collectively reinforce accountability of regulatory bodies, safeguard the corrective function of administrative law, and clarify the inter-relationship between PAJA remedies, constitutional powers and the law of prescription.