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[2021] ZAWCHC 86
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Goldrush Group Management (Pty) Limited v Chairperson of the Western Cape Gambling and Racing Board and Others (4793/19) [2021] ZAWCHC 86 (20 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER 4793/19
[REPORTABLE]
In
the matter between;
GOLDRUSH
GROUP MANAGEMENT (PTY) LIMITED
Applicant
And
THE
CHAIRPERSON OF THE WESTERN CAPE GAMBLING
AND
RACING
BOARD
First Respondent
THE
WESTERN CAPE GAMBLING AND RACING BOARD
Second Respondent
VUKANI
GAMING WESTERN CAPE (PTY) LIMITED
t/a
V SLOTS
Third
Respondent
GRAND
GAMING WESTERN CAPE (RF) (PTY) LIMITED
t/a
GRAND
SLOTS
Fourth Respondent
MEMBER
OF THE EXECUTIVE COUNCIL IN THE
PROVINCE
OF WESTERN CAPE RESPONSIBLE FOR
FINANCE
Fifth Respondent
JUDGMENT
DELIVERED ELECTRONICALLY DATED 20 APRIL 2021
KUSEVITSKY,J
Introduction
[1]
This is an application to review and set aside a
decision, taken during or about November 2017, by the Western Cape
Gambling Board,
(“the Board”), to award the Second and
the Third Respondents 1000 limited pay-out machines (“LMSs).
The decision,
which amounts to an administrative action, materially
and adversely affected the Applicant, it claimed in this application
for
review. Consequently, it sought an interim interdict to stop the
First and Second Respondents from implementing the decision.
[2]
The Application was brought in two parts, Part A
and Part B. Part A, which was brought on an urgent basis, was
for the most
part abandoned by the Applicant, the only live issue
remaining between the parties is the question of costs relating to
the urgency
of the application. Part B was fully ventilated, the
initial hearing of which was delayed as as result of the Covid-19
Pandemic.
[3]
For the sake of convenience, I will refer
interchangeably to the First and Second Respondents as the Board, and
to the Third and
Fourth Respondents as V-Slots and Grand Slots
respectively.
Background
[4]
The Western Cape Gambling and Racing Board was
established by section 2 of the Western Cape Gambling and Racing Act,
4 of 1996 (“The
WCGRA”) and has the right to carry on any
gambling or racing activities incidental thereto. The National
Gambling Act, No
7 of 2004, (“the NGA”) establishes
uniform norms and standards applicable to the national and provincial
regulation
and licencing of gambling activities.
[5]
Provincial licensing authorities are defined in
section 1 of the NGA as “
a body
established by provincial laws to regulate casinos, racing, gambling
or wagering
”. The Board was established
in terms of section 2(4) of the WCGRA as the provincial licensing
authority for the Western Cape.
Section 2(4) provides:
“
The
main object of the Board shall be to control all gambling, racing and
activities incidental thereto in the Province subject
to this Act and
any policy determinations of the Executive Council relating to the
size, nature and implementation of the industry.
”
[6]
Section 31 of the WCGRA provides that
applications for,
inter alia
,
limited gambling machine operator licences (which are also known as
route operator licences), may only be applied for pursuant
to an
invitation
from the
Board duly published in the media. The route operator licence is
regulated in section 27(b) of the WCGRA.
[7]
Publication of the invitation to submit
applications is regulated in the national regulations (regulation 17)
which provides that
when a licensing authority intends to invite
applications, the necessary notices shall be published in the manner
prescribed.
The
Decision
[8]
Thus
it came about that the Board, in 2003 advertised and invited
applicants in terms a request for Proposal (“ RFP”),
to
make application for 3 000 limited pay-out machines
[1]
(‘LPMs’) which were available for allocation to at least
three route operators.
[9]
Section
26 of the NGA imposes an obligation on the Minister of Trade and
Industry, who bears the executive authority for the administration
of
the Act, to regulate the LPM industry. Regulations were also
published,
[2]
by the Minister
which stipulate amongst other things the maximum number of LPMs which
may be licenced in each province. In
terms of regulation 2(2)(i), 9
000 LPMs were authorised in the Western Cape.
[10]
In terms of the RFP, 3 000 LPMs were available
for allocation to at least three route operators in the Western Cape.
If the Board
only allocated LPMs to two operators, the Board retained
the right to subsequently allocate the remaining 1000 LPM’s (of
the 3000 LPM’s) either to the existing route operators or to
re- advertise and invite applications for the remaining 1 000
LPMs. I
will return to this aspect later.
[11]
Five applicants applied, including Third and
Fourth Respondents. The Board however only approved two route
operators, namely V-slots
and Grand Slots and allocated to each of
them 1 000 LPMs.
[12]
Then in November 2017, the Board decided to
allocate the remaining available 1 000 LPM’s to the existing
two route operators,
V-Slots and Grand Slots proportionally and did
not re-advertise and invite other applicants to apply for the 1 000
LPM’s.
The
Applicant’s standing to bring this application
[13]
It is this decision by the Board to allocate the
1 000 LPMs proportionally to V-Slots and Grand Slots and not to
re-advertise and
invite applications to apply for a route operator
licence in respect of the 1 000 LPMs, which constitutes an
administrative decision,
which materially and adversely affected
Goldrush, it was contended, as Goldrush, as a reputable and
responsible player in the gambling
industry, would have applied for a
route operators license in respect of the 1 000 LPMs and would have
had a good prospect
to be successful.
[14]
The above decision by the Board in November 2017
is referred to as the impugned decision for purposes of this
application.
[15]
Goldrush
maintains that is entitled to bring this application in terms of
Section 6(1) of PAJA
[3]
because,
in the first instance, it has a sufficient interest in its own right
as a participant in the gambling industry, as well
as an interested
party , which would have applied for a route operator’s
licence for the available 1 000 LPMs –
and would have had a
good prospect to be successful - if the Board had not taken the
impugned decision not to re-advertise the
1 000LPM’s and not to
invite applications for route operators to apply for the LPM’s.
[16]
Goldrush also maintains that it has a public
interest in having the impugned decision subjected to judicial
scrutiny and set aside
on the basis that procedural fairness and fair
and lawful requirements in the Act, National Act and PAJA were
flouted.
[17]
Goldrush also manages route operators and
site operators in the North West Province, Limpopo Province, KwaZulu
–Natal and
the Free State on behalf of entities in which it
holds substantial interests. It says it commenced with its operations
as a management
company in the gambling industry over 20 years ago
and has shown itself to be responsible and reputable in the gaming
industry.
[18]
It is common cause that Goldrush was not a party
to the initial bid process of 2003 and did not submit an application.
[19]
The Applicant contends that the Board failed to
insist that applications to amend the existing licences of V-Slots
and Grand Slots
be made in terms of the Act; to advertise the
amendment of the licences for the additional 1 000 LPMs in the
Gazette; to permit
interested parties to have adequate notice of the
nature and purpose of the administrative action and to participate in
the proceedings
to either also apply or to make representations in a
public participation process, as is envisaged in section 34(2)(a) of
the WCGRA.
It contends that the Board acted irregularly in not
advertising the available 1 000 LPMs and that the irregularity was
material.
[20]
All of the Respondents challenge the grounds of
review advanced by the Applicant and more specifically, raise two
in
limine
points. Firstly, they question the
Applicant’s standing to bring these proceedings. Secondly, they
question the undue delay
in bringing the review application.
First
and Second Respondents’ submissions
[21]
The Board contends that the decision to roll out
the additional 1 000 LPM’s flows from the RFP. The Applicant
did not apply
for a route operator licence in response to the RFP and
neither did they challenge that process. During 2004, the Board
issued
two route operator licences, one each in favour of the Third
and Fourth Respondents, which authorises the licence holder to roll
out 1 000 LPM’s in the Western Cape.
[22]
On 29 August 2017, the Board resolved to approve
that each licence holder be granted an additional 500 LPM’s.
They say that
that decision flowed from the Board’s 2004
decision and was compatible with the RFP published in 2004.
Third
Respondent’s submissions
[23]
V-Slot similarly contends that the Board was not
legally obliged to advertise for a third route operator licence. It
says that the
RFP issued in 2003 explicitly sets out how the Board
intended to proceed: The relevant portion is the following:
“
If,
once the industry has become established, it appears then the
market and the social and economic conditions then prevailing
in the
Province will accommodate the allocation of further limited
gambling machines, the Board may offer further machines
to existing licensed Operators, against the payment of such
further fees as may be provided for by legislation at that
time, after consulting industry role-players.
Should the Board elect to follow this course and should the
existing licensed Operators not to take up the offer to expand
their operations, the Board may invite licence
Applications from the other entities.”
[24]
Thus when the Board resolved on 29 August 2017 to
approve that each route operator be granted an additional 500 LMP’s,
this
decision flowed directly from the RFP.
[25]
V-Slot also maintains that the interest asserted
by Goldrush is based on an assumption that had the Board not awarded
the additional
LPM’s to the existing route operators, the Board
would have advertised a third route operator licence and Goldrush
would
have been entitled to apply for such route operator licence.
They say that there is no evidence that the Board would have
advertised
for a third operator licence had it not taken the impugned
decision and thus Goldrushs’ basis for its standing is
therefore
purely hypothetical .
[26]
Grand Slots echoes these sentiments. Both parties
relied on
Giant Concerts
CC v Rinaldo Investments (Pty) Ltd and Others
[2012] 3 All SA 57
(SCA)
which sets out the applicable principles that the alleged interest by
a litigant, in order to demonstrate standing, must be real
and not
hypothetical. The court held as follows:
“
[41]
These cases make it plain that constitutional own-interest standing
is broader than the traditional
common law standing
,
but that a litigant must nevertheless show
that his or her rights or interests are directly affected by the
challenged law or conduct.
The authorities show:
(a)
To establish own-interest standing under the Constitution a litigant
need not show
the same “sufficient, personal and direct
interest” that the common law requires, but must still show
that a contested law or decision directly affects his or her
rights or interests, or potential rights or interests.
(b)
This requirement must be generously and broadly interpreted to accord
with constitutional
goals.
(c)
The interest must, however,
be real and not hypothetical
or
academic.
(d)
Even under the requirements for common law standing, the interest
need not be capable
of monetary valuation, but in a challenge to
legislation purely financial self-interest may not be enough –
the interests
of justice must also favour affording standing.
(e)
Standing is not a technical or strictly-defined concept. And there is
no magical formula
for conferring it. It is a tool a court employs to
determine whether a litigant is entitled to claim its time, and to
put the opposing
litigant to trouble.
(f)
Each case depends on its own facts. There can be no general rule
covering
all cases. In each case,
an applicant must show that he or she has the necessary interest in
an infringement or a threatened infringement.
And here a
measure of pragmatism is needed.” (
own
emphasis
)
[27]
From
the above, it is clear that it is sufficient for a litigant to show
that a contested decision directly affects not only its
rights or
interests, but also
potential
rights or interests. This would mean, if one has regard to Goldrush’s
argument, that it
would
have
applied to be a route operator for the available 1 000 LPM’s
had the Board not taken the decision to not re-advertise, that
Goldrush has acquired standing by virtue of a
potential
interest in the outcome of the decision.
[28]
This
of course pre-supposes that Goldrush as an entity, would have been
competent
,
to acquire those rights.
[29]
According
to the above principles, potential interests are sufficient to
establish standing, if they are real and not hypothetical.
However if
one has regard to Goldrush’s argument, it is undoubtedly
speculative. Other than the Applicant’s say-so,
there is no
evidence to suggest that it
would
have
,
applied. But the enquiry should be taken further. It is all very well
for Goldrush to say that it
would
have
,
applied. But was it able to?
[30]
In the
founding affidavit, Goldrush describes itself as a participant in the
gambling industry and also manages route operators
and site operators
in the North West Province, Limpopo Province, KwaZulu-Natal and the
Free State on behalf of entities in which
it holds substantial
interests. It also states that it commenced operations as a
management
company
in the gambling industry over 20 years ago. In the answering
affidavit, Goldrush also states that it holds a national
manufacturers
and suppliers licence of gaming equipment; has vast
experience in the gambling industry and has been involved in the
Goldrush gaming
companies in the Goldrush group since its
incorporation in 2006.
[31]
The
date of incorporation is noteworthy. This means that Goldrush was not
established at the time that the Board called on invitations
in reply
to its Request for Proposals in 2003 and which is why there could be
no grounds to challenge that decision, a contention
raised by the
Respondents.
[32]
Be
that as it may, the Applicant describes itself as a management
company. The Respondents argue that because of its role as a
manager
of route operators, that it would not have necessarily qualified to
be awarded a route operator licence. They say that its mere
participation in the gambling industry does not constitute a
sufficient interest of the kind that is required to show standing.
[33]
However,
if one has regard to the RFP, a clear distinction is made between an
Applicant
,
and a
Successful
Applicant
in the definition section. An ‘Applicant’ is described as
any registrant who has responded to the Board’s invitation
to
apply for a limited gambling machine operator licence contained in
the RFP, by submitting a Proposal. A ‘Successful Applicant’,
on the other hand, is described as those Applicants to whom the Board
has decided to grant a licence, subject to compliance with
any
conditions which the Board may stipulate, within such period as the
Board may determine. Successful Applicants should also,
according to
the RFP, have the proven ability to finance and operate the Project.
It also states that “
[i]t
shall be an advantage if the Applicant is in a position to satisfy
the Board that it has, either directly or indirectly,
via its
controlling shareholder, holding or associated companies or
management contractor…, gained experience in operating
a
Project of a similar magnitude
.”
[34]
From a
plain reading of these requirements, it seems evident to me that the
successful applicant would be a company, with sufficient
financial
ability; had gained the relevant experience
via
its controlling shareholding, associated companies or management
contractor. On its own version, Goldrush is a management company.
No
evidence was provided that proved that it would have qualified to
apply as a applicant, more so that it would have been
successful
.
Most certainly, as I have stated before, a distinction is made
between applying – and being successful. Even if the allocation
was re-advertised, Goldrush could have applied – but there is
no evidence before me to suggest that it would have been successful,
other than Goldrush’s say so. And this crucial element, in my
mind, extinguishes any potential rights that may have accrued
to
Goldrush, as such a deduction – ‘
that
it would have
been
successful’
-
is speculative and hypothetical and precisely against what the
decision in
Giant
Concerts
wards against. Similarly, as in
Giant
Concerts
,
the Applicant has not demonstrated that it had any serious commercial
interest in the venture. Simply put, the giant leap from
applying to
being granted the award is speculative and does not grant Goldrush an
interest to confer standing and to challenge
the decision.
The
next question is whether Goldrush is able to obtain standing in the
public interest?
[35]
Section 38(d) of the
Constitution permits a litigant to act in the public interest.
[36]
According
to the Fourth Respondent, there is no evidence that Goldrush has
genuinely launched this litigation in the public interest.
In support
of this contention, I was referred to
Ferreira
v Levin NO and Others
[4]
where O’Regan J, in her minority judgment, stated at para 24
thereof the following:-
“
[the
Court] will be circumspect in affording applicants standing by way of
section 7(4)(b)(v) [now section 38(d)] and will require
an applicant
to show that he or she is genuinely acting in the public interest.
Factors relevant to determining whether a person
is genuinely acting
in the public interest will include considerations such as: whether
there is another reasonable and effective
manner in which the
challenge can be brought; the nature of the relief sought, and the
extent to which it is of general and prospective
application; and the
range of persons or groups who may be directly or indirectly affected
by any order made by the court and the
opportunity that those persons
or groups have had to present evidence and argument to the court.
These factors will need to be
considered in the light of the facts
and circumstances of each case”.
[37]
They
contend that none
of
these factors have been addressed in the papers. I agree.
[38]
I was also referred to
the
ratio
of Yacoob J who endorsed the
ratio
of O’Regan J in
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (7) BCLR 775
(CC)
at
par 18. There the Constitutional Court emphasised that the
issue is always whether a person or organisation acts genuinely
in
the public interest. According to the Constitutional
Court, a distinction must be made between the subjective position
of
the person or organisation claiming to act in the public interest on
the one hand, and, whether it is, objectively speaking,
in the public
interest for the particular proceedings to be brought.
[39]
It is clear from the
reading of the papers, that the sole motivation for the review is the
Applicant’s self-interest in the
outcome of the decision.
Was
the delay in instituting this review unreasonable?
[40]
In terms of section
7(1) of PAJA, proceedings for judicial review must be instituted
without unreasonable delay and not later than
180 days after the date
on which the person concerned was informed of the administrative
action became aware of the action and
the reasons for it or might
reasonably have been expected to have become aware of the action and
the reasons. According to the
Applicant, they became aware of
decision only in December 2018.
[41]
When
deciding whether there has been an unreasonable delay, the Court
makes a value judgment dependent on the facts and circumstances
of
the particular case. In
Associated
Institutions Pension Fund Associated Institutions Pension Fund v van
Zyl
2005 (2) SA 302
(SCA), it was emphasised that the Court does not
exercise a discretion when considering this issue, but makes a value
judgment
based on the facts.
[5]
It also emphasised the duty on an applicant to take all reasonable
steps to investigate the reviewability of administrative decisions
as
soon as they are aware of the decision.
[6]
[42]
In
this regard, the Supreme Court of Appeal explained in
Beweging
vir Christelik-Volkseie Onderwys and others v Minister of Education
and Other
[7]
that:-
“
In
general terms, the purpose of the delay rule was, in Louw v The
Mining Commissioner, Johannesburg, rather quaintly
intimated to
be to non-suit a litigant who “wishes to drag a cow which has
been long dead out of the ditch”. More recently,
this Court,
in Gqwetha v Transkei Development Corporation Ltd and
others, gave a fuller explanation of its purpose and
function.
Nugent JA (for the majority) said the following of the rule:
‘
[22]
It is important for the efficient functioning of public bodies (I
include the first respondent) that a challenge to the validity
of
their decisions by proceedings for judicial review should be
initiated without undue delay. The rationale for that longstanding
rule - reiterated most
recently
by Brand JA in Associated Institutions Pension Fund and Others v
Van Zyl and Others 2005 (2) SA 302(SCA)
at 321 –
is two-fold: First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent.
Secondly, and in my view
more importantly, there is a public interest element in the finality
of administrative decisions and the
exercise of administrative
functions. As pointed out by Miller JA in Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit
van
Kaapstad 1978 (1) SA 13 (A) at 41E-F (my
translation):
‘
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed
– interest reipublicae ut sit finis litium. .
. .
Considerations of this kind undoubtedly constitute part of the
underlying reasons for the existence of this rule.’
[23]
Underlying that latter aspect of the rationale is the inherent
potential for prejudice, both to the efficient functioning
of the
public body and to those who rely upon its decisions, if the validity
of its decisions remains uncertain. It is for that
reason in
particular that proof of actual prejudice to the respondent is not a
precondition for refusing to entertain review proceedings
by reason
of undue delay, although the extent to which prejudice has been shown
is a relevant consideration that might even be
decisive where the
delay has been relatively slight (Wolgroeiers Afslaers, above, at
42C).”
[43]
The Fourth Respondent
submits that Goldrush has delayed unreasonably in bringing this
application for the following reasons: the
impugned decision was
taken by the Board in August 2017; the Applicant does not state when
it became aware of the impugned decision
and its position was not
clarified in reply. It submits that the law does not permit a
litigant to be supine and then belatedly
institute a review; it must
take reasonable measures in order to ascertain what the state of
affairs is. In this regard,
the Applicant failed to take
any measures until December 2018 in order to determine the allocation
of the further 1 000 LPMs; this
notwithstanding the terms of the RFP.
[44]
It argued that it was
also clear that the Applicant has delayed unreasonably in instituting
this application, based on what has
been set out in its answering
affidavit.
[45]
On 4 December 2018 the
Applicant addressed correspondence to the Board requesting
confirmation,
inter
alia
, as to whether
the Board has or intends to increase the number of LPMs.
[46]
On 12 December 2018 the
Applicant addressed further correspondence to the Board requesting
reasons for its decision. In that letter
it states that at least five
reasons were given as to why the Board’s decision was unlawful.
The Applicant undertook to institute
a review application within 30
days from the date of the letter and sought reasons for the purposes
of instituting such an application.
The Applicant requested an
undertaking from the Board in order to “avoid having to bring
an urgent application to interdict
the allocation and authorisation
of the further LPMs to the existing licence holders pending the
outcome of the review application”.
The Applicant requested a
response as a matter of urgency.
[47]
On 21 December 2018 the
Board responded to the Applicant advising that it could not accede to
the request for an undertaking on
the basis that a decision had
already been taken during November 2017. It says that despite this,
the Applicant took no further
measures until some 2,5 months later.
[48]
On 5 March 2018, the
Applicant addressed correspondence to Grandslots and V-Slots
advising,
inter
alia
, that unless
an undertaking was given by 8 March 2019, the Applicant would take
all steps necessary to protect its interests, including
the launch of
a review with Part A interdictory relief. On 8 March 2019 Grandslots
responded rejecting the undertaking sought.
[49]
Notwithstanding the
above, the application was only instituted on 25 March 2019.
[50]
An applicant does not
have a minimum period of 180 days within which to institute a review.
It must institute without unreasonable
delay. As the Applicant has
not sought condonation nor explained its delay, the consequence of a
finding that it delayed unreasonably
is decisive, it argued.
[51]
Goldrush states that it
was unaware of the impugned decision and also unaware of the facts
and reasons which led to the impugned
decision, until December 2018.
It also contends that, as it was not a party to the initial
application for route operator licences
in terms of the RFP, and the
additional 1 000 LPM’s were not advertised in 2017, Goldrush
was unaware of the impugned decision.
It says that when the Board
made the decision, it failed to inform Goldrush of its decision-
however they fail to state on which
basis the Board was obliged to
notify a party, who was not party to the proceedings, of its
decision
.
[52]
Goldrush then, in broad
terms, states that it did not fail to institute review proceedings
not later than 180 days after the date
when it was informed of the
impugned decision as envisaged in section 7 (1)(a) of PAJA.
[53]
In its reply, it merely
averred that “
it
has dealt fully with the events when the impugned decision came to
its attention and that there was no other way in which the
Applicant
could have been aware of the decision before the date it became aware
of it”
.
However, in a further supplementary affidavit filed, the Applicant
annexed a power point presentation, as proof that it had met
with the
CEO of the Board, on 13 December 2017, to discuss the desirability of
a third operator to operate as a route operator
in the Western Cape.
They maintain that the CEO of the Board did not disclose to them that
the Board had already made the impugned
decision to allocate the
additional LPM’s to the existing operators about three months
before.
[54]
It is common cause that
the application for review was filed on 25 March 2019. The Applicant
further does not disclose when and
how it obtained knowledge in
December 2018 of the Board’s 2017 decision. The Power Point
presentation is undated but curiously,
under the heading
“
Conclusion
”,
the presentation ends with the following:
“
Our
appeal is for the Board to amend its LPM policy to 3 Operators.”
[55]
It is not in dispute
that the Board approved two route operators for the roll-out in 2003
and then made a decision to allocate a
further 1 000 LPM’s
between them in August 2017. It therefore cannot be coincidental that
a pitch was made by the Applicant
to the Board, on its version, on 13
December 2017 to appeal to the Board to consider amending its policy
to three operators.
Any other deduction would be absurd, since
the Board’s policy had been two operators since the allocation
in 2003, and had
been the case for 14 years hence. Thus the timing of
the so-called presentation, some 4 months after the impugned decision
was
taken by the Board, together with the ‘appeal’, leads
to the inescapable conclusion that the Applicant must have known
about the decision at or about December 2017.
[56]
According
to First and Second Respondents, the Applicant has failed to disclose
how and when it obtained knowledge in December 2018
of the Board’s
decision taken in August 2017. I was referred to the matter of
Opposition
to Urban Tolling Alliance and others v The South African National
Roads Agency Ltd and Others
[8]
,
which summarised the principles that apply to delays under PAJA:
“
At
common law application of the undue delay rule required a two stage
enquiry. First, whether there was an unreasonable delay and,
second,
if so, whether the delay should in all the circumstances be condoned.
Up to a point, I think, s 7(1) of PAJA requires the
same two stage
approach. The difference lies, as I see it, in the legislature’s
determination of a delay exceeding 180 days
as per se unreasonable.
Before the effluxion of 180 days, the first enquiry in applying s
7(1) is still whether the delay (if any)
was unreasonable. But after
the 180 day period the issue of unreasonableness is pre-determined by
the legislature; it is unreasonable
per se. It follows that the court
is only empowered to entertain the review application if the
interests of justice dictates an
extension in terms of s 9. Absent
such extension the court has no authority to entertain the review
application at all. Whether
or not the decision was unlawful no
longer
matters.
The decision has been ‘validated’
by the delay. That of course does not mean that, after the 180 day
period, an enquiry
into the reasonableness of the applicant’s
conduct becomes entirely irrelevant. Whether or not the delay was
unreasonable
and, if so, the extent of that unreasonableness is still
a factor to be taken into account in determining whether an extension
should be granted or not.”
[57]
The Board argues that the decision under attack
in the present proceedings was taken more than 2½ years ago.
The Applicant’s
failure to make full disclosure on when exactly
and how it obtained knowledge thereof strongly suggests that it
became aware thereof
at an earlier date than claimed.
It has not brought its case within
the confines of PAJA, nor has it sought condonation for the failure
to do so. They claim that
no case has been made out in terms of
section 9(2) of PAJA.
Since
the Applicant has failed to adequately deal with the delay, least
still make out a case for condonation, this court is not
duty bound
to consider the validity or not of the impugned decision.
[58]
The
delay rule is a principle that flows directly from the rule of law
and its requirement for certainty. The Constitutional Court
has held
that there is a strong public interest element in both certainty and
finality of administrative decisions and the exercise
of
administrative functions
[9]
. It
is also a long-standing rule that a legality review must be initiated
without undue delay and that courts have the power (as
part of their
inherent jurisdiction to regulate their own proceedings) to either
overlook the delay or refuse a review application
in the face of
undue delay.
[10]
[59]
In
Valor
IT v Premier, North West Province and Others
[11]
,
the following was stated with regard to delay:
‘
Whether
a delay is unreasonable is a factual issue that involves the making
of a value judgment. Whether, in the event of the delay
being found
to be unreasonable, condonation should be granted involves a
‘factual, multi-factor and context-sensitive’
enquiry in
which a range of factors – the length of the delay, the reasons
for it, the prejudice to the parties that it may
cause, the fullness
of the explanation, the prospects of success on the merits –
are all considered and weighed before a
discretion is exercised one
way or the other.’
[60]
Now as stated before, there is no application for
condonation before me. The investigation into the reasonableness of
the delay
has nothing to do with the Court’s discretion,
whether, in all the circumstances of the case, the delay was
reasonable. On
the facts, no full explanation for the delay has been
advanced. I am therefore of the view that on the first leg of
the enquiry,
the delay is, in my view, unreasonable.
Should
the delay, given all the circumstances, be condoned?
[61]
The second leg of the enquiry is to consider, in
assessing whether the delay should be overlooked, is whether there is
potential
prejudice to the affected parties and the prospects of
success on the merits. It is trite that a failure to bring a review
within
a reasonable time may cause prejudice to a respondent.
[62]
In
reviewing and considering whether to set aside an administrative
decision, courts are imbued with a discretion, in the
exercise
of which relief may be withheld on the basis of an undue and
unreasonable delay causing prejudice to other parties,
notwithstanding
substantive grounds being present for the setting
aside of the decision.
[12]
[63]
In the first instance, the decision was taken at
the end of 2017, almost 3 ½ years ago. The application for
review was launched
almost 2 years later. No doubt the Third and
Fourth Respondents would have implemented the practical measures
pursuant to the decision.
[64]
The
question is whether there is success on the merits. I am not going to
repeat the submissions made by the Respondents in reliance
of their
contention that that they were not legally obliged to advertise for a
third operator licence - this by virtue of what
was contained in the
RFP which set out how the Board proposed to deal with further
allocation of LPM’s. I do however want
to investigate the
reasonableness of the Board, in following that procedure.
[65]
According to the RFP, the initial invitation was
that a licence with a maximum of three operators would each be
allocated 1 000
limited gambling machines to be exposed for play in
the Province. If fewer than three Applicants were found suitable for
licencing,
then the Board reserved the right to increase the number
of machines allocated per Applicant proportionally, subject to the
Norms,
or to re-advertise and invite other applications.
[66]
The RFP also duly considered future expansion.
The RFP stated that ‘
[p]rospective
Operators should also take note of the options which the Board has
identified regarding the possible future expansion
of the industry in
the Western Cape. If, once the industry has become established, it
appears that the market and the social and
economic conditions then
prevailing in the province will accommodate the allocation of further
limited gambling machines, the Board
may offer further machines to
existing licenced Operators…. Should the Board elect to follow
this course and should the
existing licenced Operators not take up
the offer to expand their operations, the Board may invite licence
applications from other
entities
.”
[67]
First of all, it seems to me that the provision
of re-advertising was only made in the event that the existing
Operators did not
take up the offer to expand their operations. This
approach seems reasonable on the face of it. Fewer than the initial
allotted
LPM’s were granted to the successful applicants. It
seems probable that the Board had this provision in place as a
measure
of expedience, having satisfied itself that the current
Operators were reputable and experienced, that the remaining LPM’s
would be offered to them. The Board also made sure to insert
provisions, that in the event that the existing Operators chose not
to take up the Offer that an invitation would be extended to other
entities, through the provision made for re-advertising.
[68]
According
to the Fourth Respondent, even though the Board retained a discretion
in the manner in which it dealt with the further
roll-out of the
LPM’s, it was argued that V-Slots and Grand Slots had a
legitimate expectation, based on the RFP to expect
the Board to
provide them with a right of first refusal. The objective facts
however do not support this contention.
[69]
Regulation
3(1) provides that, subject to sub-regulation 2, the maximum number
of LPMs which may be allowed by a provincial licencing
authority to
be operated on a single site, must be five. This is commonly known as
a Type A licence. Regulation 3(2) provides that
the Board may on good
cause shown and upon application by a provincial licencing authority,
approve the operation of LPMs in excess
of 5 machines and not subject
to the
provisio
that “
such
application must be made in respect of every site for which limited
pay out machines in excess of five is sought
.”
This is referred to as a Type licence.
[70]
Regulation
13 makes it clear that the roll out of the LPM’s would be done
in three successive and distinct stages and the
next phase could only
be commenced once the first phase had been implemented. Initially, a
provincial licencing authority may roll
out no more than 50% of the
total number of LPMs allocated to that province in Phase 1. Phase 2
provides that a provincial licencing
authority may roll out no more
than a further 35% of the total number of LPMs allocated to the
province. It also states that
Phase 2 shall not commence until the
regulation 13(2) criteria dealing with a socio-economic impact study
have been met to the
satisfaction of the National Minister.
[71]
The
Board maintains that it did not allocate the full number of LPMs
permitted under Phase 1, which would have been 4 500. It originally
decided to award 3 000, but ended up awarding only 2 000 and
ultimately, a further 1 000 in August 2017.
[72]
The
Board contends that it offered the additional 1 000 LPM’s to
the existing licence route operators, because the RFP had
required
them to; and in any event, that these route operators had a
legitimate expectation for the Board to offer them any additional
licences. I will start with the latter contention.
[73]
Objectively,
there is no evidence on the record, that the Third and Fourth
Respondents expected the Board, to without more, offer
any additional
licences to them in terms of the RFP. To the contrary. According to
the Board, on 14 June 2013, the Fourth Respondent
addressed
correspondence to the Board, enclosing a proposal that the Board,
inter
alia
,
increase the allocation of LPM’s to existing route operators.
In that proposal , Grand Slots recommended that the Board
consider
increasing the number of LPMs allocated to each of the route
operators in the province to 1 500, which, it states, will
still
retain the total machines licenced below the 50% threshold required
by the regulations and would not require a socio-economic
impact
study. If Grand Slots had a legitimate expectation to have been
awarded additional licences in terms of the RFP, they most
certainly
did not pursue it when that request was ostensibly refused.
Interestingly however, the proposal also contained the following
with
regard to the possibility of inviting licence applications from other
prospective route operators. It stated:
“
We
do not believe that it will be in the province’s interests to
invite licence applications from other prospective route
operators
given that the Grandslots and V-Slots are entrenched in the market
and will have a significant advantage over any newcomer.
As a result
newcomers will
find
it difficult to establish commercially viable businesses and to
deliver on the provinces objectives for licensing of LPM’s.
[74]
In
terms of the RFP
[13]
,
the
Board was obliged to consider SMME development, the extent to which
the project provides opportunities for the development of
Small,
Medium and Micro business enterprises.
[75]
We
know that on 14 June 2017, and pursuant to a meeting held on 3 May
2017 between the Board and Grand Slots, that the Board invited
Grand
Slots to submit a written proposal to the Board, which it duly did,
requesting an additional allocation of LPMs. In terms
of this
recommendation, it
inter
alia
requested the Board consider an incremental increase of licences to
each route operator once the initial allotted number of licences
had
been rolled out in accordance with bid commitment and any
subsequent amendments.
[14]
[76]
V-Slots
made similar representations, highlighting the Board’s
articulated objectives in respect of the LPM industry by ‘enhancing
economic growth and development in the Western cape, particularly
through the stimulation of the small and medium-sized business
sectors’.
[15]
V-Slots ended the proposal by acknowledging that they knew that the
Board was considering submissions made by their fellow route
operator
and requested ‘
as
part of its assessment regarding the possibility of the expansion of
the LPM sector, that they respectfully request that, to
the extent
that this process results in the adoption and implementation of a new
policy position, that such policy be crafted in
a manner as to
ensure parity of treatment between both route operators, in order to
ensure that the playing
field
remains level’
.
[77]
From
the content of these letters, it is not readily apparent that the
route operators, as a matter of course, assumed that they
were
entitled to or expected to be awarded, any additional LPM licences
that may have become available. This is also apparent from
the
Minutes of the Board meeting of 19 July 2017 where there was an
acknowledgement that a request had been received by Grand Slots
and
V-slots (reiterating that the latter had submitted a request in the
past but had been requested to re-submit an updated representation.)
The Minute also recorded that they did not believe that there was any
expectation for the Board to resolve the matter. Thus, the
argument
that the Board was constrained to offer the additional LPMs’ to
only the Third and Fourth Respondents cannot be
sustained.
[78]
On
1 August 2017, the Board resolved to approve an additional 500 LPMs
to each route holder. Based on the proposals and the Minutes
of the
various meetings, it is apparent that the Board had the belief that
it was competent for them to have offered the additional
LPM’s
to the existing route operators, without advertising same, since they
were still well below the 50% threshold required
by the
National Gambling Regulations in
terms of Phase1 of the
roll-out. It also meant that an additional socio-economic impact
study would not be required.
[79]
According
to the Board, three further impact studies were in fact conducted.
However the motivation it seemed for the allocation,
revolved more
around the expedience of the process – and the belief that the
Board assumed that what they were doing, was
right. But was it
procedurally fair?
[80]
It
is trite that a court does not have wide ranging discretion to
substitute its opinion for that of the functionary.
The
standard of review is that of rationality, as laid down in the
Constitutional Court in
Pharmaceutical
Manufacturers Association of SA and another: in re Ex parte President
of the Republic of South Africa and others
[16]
where the court held
[17]
that the exercise of public power by functionaries should not be
arbitrary and that decisions must be rationally related to the
purpose for which the power was given.
[81]
The
rationality threshold is laid down in
Pharmaceutical
Manufacturers
as
follows:
[18]
“
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all pubic power by members of the Executive
and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution, and
therefore
unlawful. The setting of the standard does not mean that the courts
can or should substitute the opinions as to what
is appropriate, for
the opinions of those in whom the power has been vested. As long as
the purpose sought to be achieved by the
exercise of public power is
within the authority of the functionary, and as long as the
functionary’s decision, viewed objectively,
is rational, a
court cannot interfere with the decision simply because it disagrees
with it, or considers that the power was exercised
inappropriately. A
decision that is objectively irrational is likely to be made only
rarely but if this does occur, a court has
the power to intervene and
set aside the irrational decision.”
[82]
Rationality
is a less onerous standard than that of reasonableness.
[19]
A rationality review is essentially “
about
testing whether there is a sufficient connection between the means
chosen and the objective sought to be achieved
”.
[20]
[83]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[21]
the Constitutional Court considered the proper meaning of section
6(2)(h) of PAJA in light of the constitutional obligation upon
administrative decision makers to act “
reasonably
”.
[84]
The
approach to be adopted when a court is asked to review and set aside
a decision by a functionary is formulated as follows in
Allpay
Consolidated Investment Holdings (Pty) Ltd & Others v Chief
Executive Officer, SASSA
[22]
:
“
[28]
Under the Constitution there is no reason to
conflate procedure and merit. The proper approach is to establish,
factually, whether
an irregularity occurred. Then the irregularity
must be legally evaluated to determine whether it amounts to a ground
of review
under PAJA. This legal evaluation must, where appropriate,
take into account the materiality of any deviance from legal
requirements,
by linking the question of compliance to the purpose of
the provision, before concluding that a review ground under PAJA has
been
established.
[29]
Once that is done, the potential practical difficulties that may
flow
from
declaring the administrative action
constitutionally invalid must be dealt with under the just and
equitable remedies provided for
by the Constitution and PAJA. Indeed,
it may often be inequitable to require the re-running of the flawed
tender process if it
can be confidently predicted that the result
will be the same.
[30]
Assessing
the materiality of compliance with legal requirements in our
administrative law is, fortunately, an exercise unencumbered
by
excessive formality. It was not always so. Formal distinctions were
drawn between ‘mandatory’ or ‘peremptory’
provisions on the one hand and ‘directory’ ones on the
other, the former needing strict compliance on pain of non-validity,
and the latter only substantial compliance or even non-compliance.
That strict mechanical approach has been discarded. Although
a number
of factors need to be considered in this kind of enquiry, the central
element is to link the question of compliance to
the purpose of the
provision. In this Court O’Regan J succinctly put the question
in ACDP v Electoral Commission as being
“whether what the
applicant did constituted compliance with the statutory provisions
viewed in the light of their purpose”.”
[23]
[85]
In my
view, there does not seem to be any
mala
fides
in having adopted that process. Was it rational and procedurally fair
for the Board to have assumed that it was perfectly acceptable
to
award the same two route operators with licences, despite their own
pledge to support small and medium enterprises? The answer
in my
view, is no. If one has regard to the earlier proposal by Grandslots
to the Board, there was a clear intention to monopolise
the LPM
industry in the province. This issue must have been discussed, since
it did not feature in the updated proposal of June
2017. According to
the Applicant, if one has regard to the basis of allocation of
licences by the Board – that they exhibit
a good compliance
record – then they would continue to be awarded licences to the
detriment of other hopeful route operators.
This, they say, is
contrary to section 54 of the National Gambling Act in that the
allocation of the additional LPMs ‘ was
likely to substantially
affect competition in the gaming industry generally in respect of the
proposed activity in the province,
and that approving the application
would result in the Applicant, alone or in conjunction with a related
person, achieving market
power.’
[86]
Thus,
the impugned decision, not only supported the market power and
monopoly of the two operators, but also ensured that they were
the
only two route operators in the province. This was contrary to
section 54 of the National Gambling Act and procedurally unfair
as
envisaged in section 6(2)(c) of PAJA. The Board was obliged to
consider these factors. On this basis alone, I would be obliged
to
err in favour of the Applicant in this regard and find that the
Board’s decision is reviewable under section 6(2)(e)(iii)
of
PAJA on the basis that it failed to properly consider relevant
considerations in deciding to approve Grand Slots and V-Slots
additional licences. In the circumstances, I find it unnecessary to
traverse the remaining grounds of review.
The
effect
[87]
As
I have stated before, the question of prejudice is always factor in
considering whether a court is to exercise its discretion
in a
review.
In
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
[24]
, the Constitutional Court held as follows:
“
[46] Section
237 of the Constitution provides that:
“
All
constitutional obligations must be performed diligently and without
delay.”
Section 237
acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent
compliance with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality.
[47] This
requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality
. People may base their actions on the assumption of the
lawfulness of a particular decision and the undoing of the decision
threatens
a myriad of consequent actions.
” (own emphasis)
[88]
There is therefore need for parties to have
certainty when they contract with organs of state. There needs
to be predictability
and finality in decision–making between
contractants and organs of state. In
Pepkor
Retirement Fund v Financial Services Board
2003 (6) SA 38
,
the court observed the following:
“
[32]
Hitherto, where jurisdiction is not in issue and there is no obvious
transgression of the boundaries within which the functionary
has been
empowered to make decisions, our courts have not permitted a review
solely on the basis of a material mistake of fact
on the part of the
person who made the decision. Judicial intervention has been limited
to cases where the decision was arrived
at arbitrarily, capriciously
or
mala
fide
or
as a result of unwarranted adherence to a fixed principle or in order
to further an ulterior or improper purpose; or where the
functionary
misconceived the nature of the discretion conferred upon him and took
into account irrelevant considerations or ignored
relevant ones; or
where the decision of the functionary was so grossly unreasonable as
to warrant the inference that he had failed
to apply
his
mind to the matter:
Johannesburg
Stock Exchange v Witwatersrand Nigel Limited and Another
1988
(3) SA 132
(A)
at 152C-D;
Hira
and Another v Booysen and Another
1992
(4) SA 69
(A)
at 93B-C. There are decisions in other jurisdictions, however, which
go further.
“
[47]
In my view a material mistake of fact should be a basis upon which a
court can review an administrative decision. If legislation
has
empowered a functionary to make a decision, in the public interest,
the decision should be made on the material facts which
should have
been available for the decision properly to be made. And if a
decision has been made in ignorance of facts material
to the decision
and which therefore should have been before the functionary, the
decision should (subject to what is said in para
[10] above) be
reviewable at the suit of
inter
alios
the
functionary who made it - even although the functionary may have been
guilty of negligence and even where a person who is not
guilty of
fraudulent conduct has benefited by the decision. The doctrine of
legality which was the basis of the decisions
in
Fedsure,
Sarfu
and
Pharmaceutical
Manufacturers
requires
that the power conferred on a functionary to make decisions in the
public interest, should be exercised properly ie on
the basis of the
true facts; it should not be confined to cases where the common law
would categorize the decision as
ultra
vires
.
[89]
What
therefore becomes of Applicant’s questionable standing and
delay in its filing of its application, pursuant to my finding
that
the November 2017
[25]
decision
was procedurally unfair and unreasonable?
[90]
It
was said in
Giant
Concerts
that
the issue of
locus
standi
is
separate from the merits and will usually be dispositive of an own
interest litigant’s claim.
[26]
The Court went on to say that—
“
an
own-interest litigant may be denied standing even though the result
could be that an unlawful decision stands. This is
not
illogical. As the Supreme Court of Appeal pointed out, standing
determines solely whether
this
particular
litigant is entitled to mount the challenge: a successful challenge
to a public decision can be brought only if
‘the right remedy
is sought by the right person in the right proceedings
.’
However, this Court
immediately qualified the general principle that an own-interest
litigant’s challenge of a public decision
may be dismissed
solely on the basis that the litigant lacks
locus standi
.
It said:
“
To this
observation one must add that the interests of justice under the
Constitution may require courts to be hesitant to dispose
of cases on
standing alone where broader concerns of accountability and
responsiveness may require investigation and determination
of the
merits. By corollary,
there may be cases
where the interests of justice or the public interest might compel a
court to scrutinise action even if the applicant’s
standing is
questionable
. When the public interest cries
out for relief, an applicant should not fail merely for acting in his
or her own interest.”
(own emphasis)
[91]
I am therefore of the view that in the interest
of justice, and despite the Applicant’s shortcomings dealt with
earlier, that
the Applicant’s application for review must
succeed. I am however of the view, that given the passage of time,
that the roll-out
of the additional LPM’s would already have
been implemented, or substantially implemented. It would therefore be
prejudicial
for the site operators if their
status
quo
were to be disturbed by these findings.
[92]
With regard to costs, the Respondents argued that
the costs pursuant to the urgent interdict sought in Part A should be
borne by
the Applicant, given that there was no urgency and that, in
any event, I was advised that the interdict was abandoned. The
Applicant
is therefore not entitled to these costs.
[93]
In the circumstances, I make the following order:
The
decision taken by the Western Cape Gambling Board in November
2017
[27]
to allocate the
remaining 1 000 limited pay out machines proportionally to the Third
and Fourth Respondents as licenced operators
is reviewed and set
aside.
This
order shall not affect existing LPM’s that have already been
allocated and installed at licenced site routes pursuant
to the 2017
decision.
In
the event that there are non-operational LPM licences that are
licenced and have not been allocated to a site, the Board
is
ordered to advertise same should it be prudent to do so.
Save
for the costs of Part A, the First, Second, Third and Fourth
Respondents are ordered jointly and severally to pay the costs
of
the application.
DS
KUSEVITSKY
Judge
of the High Court, Western Cape Division
Counsel
for the Applicants: Advocate B Roux
Instructed
by: Cliffe Decker Hofmeyr Inc.
Counsel
for 1
st
and 2
nd
Respondent: Advocate RT
Williams SC
Instructed
by: Fairbridges Wertheim Becker Attorneys
Counsel
for the 3
rd
Respondent: Advocate Ismail Jamie SC
Instructed
by: Edward Nathan Sonnenberg Inc.
Counsel
for the 4
th
Respondent: Advocate Karrisha Pillay SC
Instructed
by: Bernard Vukic Potash AND Getz Attorneys
[1]
A
limited pay-out machine is defined in section 1 of the NGA as “a
gambling machine with a restricted prize as described
in section 26.
[2]
The
Minister made regulations on LPMs which were published in Government
Gazette 21 945 dated 21 December 2000.
[3]
Promotion
of Administrative Justice
Act
3 of 2000
[4]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Other
1996 (1) SA 984 (CC)
[5]
Para
47.
[6]
Para
51.
[7]
Beweging
vir Christelik-Volkseie Onderwys and others v Minister of Education
and other
[2012] 2 All SA 462
(SCA) at para 45.
[8]
[2013]
4 All SA 639
(SCA) at para 26
[9]
Altech
Radio Holdings (Pty) Ltd and Others v City of Tshwane Metropolitan
Municipality (1104/2019)
[2020] ZASCA 122
(5 October 2020) para 16;
Khumalo and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC) PARA 47;
Associated Institutions Pension Fund v Van Zyl
2005 (2) SA 302
at 46
[10]
Altech
op
cit
at para 18; Khumalo
op
cit
at par 44
[11]
[2020]
ZASCA 62
;
[2020] 3 All SA 397
(SCA) para 30; Altech
ibid
para 20
[12]
OudeKraal
Estates (Pty) Ltd v The City of Cape Town and Others (25/08);
[2009]
ZASCA 85
(3 September 2009)
[13]
Clause
3 under Economic and Community benefits
[14]
paragraph
2 of Grandslots letter dated 14 June 2017
[15]
paragraph
10 of their undated proposal
[16]
[2000] ZACC 1
;
2000
(2) SA 674
(CC).
[17]
At
paragraph 85.
[18]
At
paragraph 90.
[19]
See
Bel
Porto School Governing Body v Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at paragraph 46; In
New
National Party of South Africa v Government of the Republic of South
Africa
[1999] ZACC 5
;
1999
(3) SA 191
(CC), different results followed depending on the
applicable standard. Yacoob J held that the standard was rationality
which
the legislation met whereas O’Regan J considered that
the standard was the higher one of reasonableness.
[20]
Minister
of Defence and Military Veterans v Motau and
Others
2014 (5) SA 69
(CC) paragraph 69.
[21]
2004
(4) SA 490 (CC).
[22]
2014
(1) SA 604
(CC) at paras 28-30.
[23]
African
Christian Democratic Party v Electoral Commission & Others
[2006] ZACC 1
;
2006
(3) SA 305
(CC) at paragraph 25.
[24]
(CCT
10/13) [2013] ZACC49;
2014 (3) BCLR 333
(CC);
2014 (5) SA 579
(CC)
(18 December 2013)
[25]
The
actual date of resolution was 29 August 2017
[26]
Areva
at paragraph 40 of Zondo J’s judgment
[27]
According
to the Notice of Motion, however the actual date is 29 August 2017