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[2017] ZAWCHC 133
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Ward v Netbet (Pty) Ltd t/a Sportingbet South Africa (9847/2015) [2017] ZAWCHC 133 (20 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 9847/2015
In the matter between:
DARREN
HAROLD
WARD
Applicant
And
NETBET
(PTY) LTD t/a SPORTINGBET
SOUTH
AFRICA
Respondent
JUDGMENT: MONDAY, 20 NOVEMBER
2017
DESAI,
J:
1.
The respondent is a duly licenced bookmaker. It conducts an internet
sports betting business under the name Sportingbet. The
applicant
bets on a regular basis using Sportingbet’s website.
2.
31 October 2014 was a particularly lucky day for the applicant. He
correctly chose eight winning horses in eight different races
run at
two different venues on the same day. His R100 stake was made up of 2
bets, one R50 bet that all eight horses would win
their races and the
other R50 bet that the eight horses would finish in one or other of
the top places.
3.
It is common cause that the applicant won fairly. However, the
quantum of his winnings is hotly disputed and gives rise to the
present litigation.
4.
The debate, essentially, evolves around the question whether the
applicant is entitled to the amount reflected as a possible
payment
on the betting slip. The betting slip produced in this instance by
Sportingbet reflects a “total possible payment”
of
R4 841 728.28. Beneath that inscription is the clear
indication that limits may be applicable in respect of winnings.
Contending that the limit was R1 000 000.00, Sportingbet
has in fact paid that amount to the applicant. Based upon the
express
amount reflected as a possible payment on the betting slip, applicant
pursues a claim for the balance in these proceedings.
Respondent
denies liability for the payment of the said balance.
5.
In an
in limine
point the respondent sought to exclude the
jurisdiction of this Court to hear the matter. It was contended that
Section 78(1) of
the Western Cape Gambling and Racing Act, Act 4 of
1996 (the Act) ousted the jurisdiction of the court to determine
disputes where
the gambling licence holder refused to make payment of
alleged winnings to the player (that is, the gambler).
6.
If the respondent also relies on its own terms and conditions for the
argument that the jurisdiction of the court has been ousted,
as it
appears it does, the point raised should fail on that ground alone.
The clause upon which it relies – clause 8 –
simply
records that in the event of the respondent not satisfactorily
resolving the player’s complaint, he or she
should
refer
the matter to the Board for a binding decision. Quite patently there
is no agreement to exclude the jurisdiction of the court.
7.
Mr DW Gess, who appeared on behalf of the respondent, argued that if
a dispute between the parties cannot be resolved to the
satisfaction
of the player, Section 78(1) of the Act makes it “peremptory”
for it to be resolved by the Western Cape
Gambling Board (the Board)
in terms of the Act and in accordance with the prescribed procedure.
Mr Gess submitted further that
the “peremptory” wording
of Section 78(1), which provides that the dispute “shall be
resolved” in accordance
with the prescribed procedure, takes
precedence over the statement contained in Regulation 30 (of the
Regulations published in
the Western Cape Provincial Gazette, no.
6495 of Friday, 25 January 2008), which provides that a disputed
payment of a gambling
debt “may be resolved by the Board”.
8.
Section 78(1) of the Act reads as follows:
“
If a licence holder refuses
payment of alleged winnings to a player and the licence holder and
the player are unable to resolve
the dispute to the satisfaction of
the player, the dispute
shall be resolved
in accordance with
the prescribed procedure”. (Emphasis added)
9.
Regulation 30 reads:
“
A disputed claim for payment of
a gambling debt
may
be resolved by the Board in accordance
with this chapter.” (Emphasis added)
10.
Regulation 31 reads:
“
(1) Whenever a licence holder
refuses to pay alleged winnings to a patron or a patron refuses to
pay an alleged debt to a licence
holder, for any reason, and the
licence holder and the patron are unable to resolve the dispute to
the satisfaction of both parties,
the licence holder shall inform the
patron that he or she will refer the dispute to the Board for
resolution, after which the licence
holder shall, within forty-eight
hours, refer the dispute to the Board.
(2) The provisions of subregulation
(1) shall not preclude a patron from lodging a complaint directly
with the Board…”
11.
As Mr AV Voormolen SC, who appeared on behalf of the applicant,
correctly pointed out, the Regulations place an obligation only
on
the gambling licence holder to refer a dispute to the Board for a
resolution. The applicant – the player – was under
no
such obligation. He could have lodged a complaint with the Board by
virtue of Regulation 31(2), but did not have to do so.
12.
It is not in dispute that in this instance the respondent did not
refer the dispute to the Board for resolution.
13.
Moreover Section 34 of the Constitution provides that everyone has
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 tribunal. It follows
that any
provision in law which purports to confer exclusive jurisdiction
should be narrowly construed as it has the result of
ousting the
jurisdiction of competent courts (
see Minister of Police v
Premier, Western Cape 2014(1) SA 1 (CC) at para 20
).
14.
The point
in limine
must accordingly be dismissed.
15.
The applicant opened an account with Sportingbet some time prior to
placing his bets on 31 October 2014. He does not dispute
that in
order to do so he must have checked the box on the website which
signified his assent to Sportingbet’s Standard Terms
and
Conditions which,
inter alia
, include the following provision:
“
The maximum amount that can be
won by one customer in one day’s betting, regardless of stake,
is R1 000 000.00 or
its equivalent in an accepted
currency.”
16.
Central to applicant’s case is that the above standard term
conflicts with the express amount displayed on the betting
slip. It
was argued on his behalf that as a matter of interpretation, the
express term on the betting slip, namely the total possible
payment,
must prevail.
17.
In the alternative, the applicant relies upon variation, waiver and
on the representation purportedly made by Sportingbet on
the betting
slip. The respondent denies making any representation to the
applicant that he would be paid R4 841 728.28
and his
opposition in this regard is premised upon the
caveat subscriptor
principle.
18.
Mr Voormolen SC argued that there is no basis in law to ignore the
express written term of the contract which appears on the
betting
slip. That term declares the total payment possible. Insofar as the
betting slip conflicts with the standard term upon
which the
respondent relies, the court should not prefer an interpretation that
leads to impractical, unbusinesslike or oppressive
consequences (see
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
SCA at para 26
).
19.
It was submitted that the interpretation favoured by the respondent
is unbusinesslike in that it involved the payment of a stake
which
was disproportionate to the maximum amount of the winnings. The
applicant stated in his affidavit that there would be no
benefit to
him or any other person taking a bet, to wager R100 if he could
achieve the same result, that is winning R1 000 000.00
by
wagering a much smaller sum.
20.
The respondent did not demonstrate under what circumstances a payout
of R4 841 728.28 would be possible and on its
version it
seems that such a payout was not possible at all. Mr Voormolen SC
pointed out that this was not a businesslike interpretation
of the
express indication on the betting slip.
21.
Counsel for the applicant also dismissed the suggestion that the
possible payout on the betting slip was the product of a mathematical
calculation performed by a computer as an unsound basis for
interpreting the contract. Arguing that the interpretation process
is
objective, and not subjective (see
Endumeni
supra
para 18
), it was contended that Sportinbet’s subjective
knowledge about the workings of the computer could not be ascribed to
the
punter. That is indeed so. However, the punter, in this instance
the applicant, should have known that a payment in the amount stated
on the betting slip was not possible. It was subject to the limit as
suggested on the slip itself.
22.
In order to properly understand whether or not the applicant was
bound by the term that all winnings are limited per punter
to the
amount of R1 000 000.00 one has to look at the Standard
Terms and Conditions of the respondent, the manner in
which the
applicant acceded to it, the procedure adopted by a punter when
placing each separate bet and, of course, the specific
references to
limits on winnings during the course of that procedure. If the court
accepts that the term relating to a limit binds
the punter, then the
application stands to be dismissed.
23.
It is patently apparent that the applicant must have been reasonably
familiar with the respondent’s website. He opened
his account
with the respondent in or about March 2014. Since that date until 31
October 2014 the applicant placed at least 530
bets with the
respondent. On each occasion his attention would have been drawn to
the terms of the respondent with regard to limits,
especially the
condition which limited the maximum amount that can be won by any one
customer in one day’s betting.
24.
When opening the account, the applicant was required to sign his
assent to the terms and conditions of the respondent by placing
a
tick in a box indicating that he agreed to those terms and
conditions. They were at all material times available to be inspected
on the website of the respondent simply by clicking on an icon.
25.
When signing the document by placing an electronic tick in the box,
the applicant placed himself in the same position as a person
who had
physically signed the document. He is bound by the maxim
caveat
subscriptor
, whether or not he actually took the trouble to read
the terms or not (see
Christie…The Law of Contract in South
Africa, 5
th
edition, 206 p174 – 179
).
26.
The applicant does not dispute that he must have indicated that he
accepted the respondent’s terms and conditions by placing
a
tick in the box at the time that he opened his account with the
respondent. Nor does he dispute that the Standard Terms and
Conditions applicable are those relied upon by the respondent. He
says he did not read the terms. However, he does not dispute that
the
words “please note limits may be applicable on your winnings”
were displayed on the bottom of the betting slip.
27.
In any event, clause 9 of the respondent’s terms and conditions
is headed “Maximum Payout” and provides in
clause 9.1 as
set out in paragraph 15
supra
.
28.
It appears that once a bet is placed by the punter, the computer
software then applies the odds, automatically calculating the
potential payout but directly below the amount stated the warning
appears that limits are applicable on winnings. What is probably
important is also the following. That warning is placed directly
above the icon “place bet”. In other words, the limits
indicator is drawn to the attention of the client immediately before
each and every bet is placed.
29.
Besides the indication on the betting slip of the limit on winnings,
once a bet is placed the particulars of the bet are displayed
together with the words “limits may be applicable on your
winnings”.
30.
It seems to me that the respondent takes all reasonable steps to
ensure that the client assents to the terms and conditions
before the
account is opened and both prior and subsequent to the placing of any
bet the punter is told about the limits on winnings.
31.
Moreover there is no conflict between the Standard Terms and
Conditions and the terms of each separate transaction concluded
between the respondent and the punter when a bet is placed. There is
no express or tacit term that the applicant was entitled without
qualification or limitation, to payment of the maximum possible
payout reflected on the betting slip.
32.
The applicant also sought at some stage to rely on a variation,
waiver or alleged representation made by the respondent in the
betting slip. I agree with Mr Gess that there was no such
representation and the doctrines relied upon by the applicant are not
of any assistance to him.
33.
I am accordingly of the view that the maximum possible payout for any
betting transaction was always subject to and qualified
by the
limitations contained in clause 9 of the respondent’s Standard
Terms and Conditions. The suggestion that applicant
was in this
instance entitled to the maximum possible payment is artificial and
has no regard for the process of placing the bet,
the recordal of the
betting slip itself and to the limitation clauses contained in
respondent’s standard terms.
IN
THE RESULT APPLICANT’S CLAIMS ARE DISMISSED WITH COSTS.
……………………
DESAI,
J