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[2010] ZAGPPHC 543
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De Jager and Another v Minister of Safety and Security N.O. and Others (68993/09) [2010] ZAGPPHC 543 (23 February 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NUMBER: 68993/09
DATE:
23 FEBRUARY 2010
In
the matter between:
COLIN
JOSEPH DE
JAGER
...........................................................................................
First
Applicant
SOUTH
ROCK TRADING 20
CC
..............................................................................
Second
Applicant
And
THE
MINISTER OF SAFETY AND SECURITY
N.O
..............................................
First Respondent
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE N.O.
…....................................................
Second
Respondent
THE
PROVINCIAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE FOR
THE
GAUTENG PROVINCE N.O.
….......................................................................
Third
Respondent
THE
CHAIRPERSON:
GAUTENG
GAMBLING BOARD N.O.
….............................................................
Fourth
Respondent
CASINO
ASSOCIATION OF SOUTH
AFRICA
........................................................
Intervening
Party
JUDGMENT
LOUW
J
The
parties
The
first and second applicants are owners of businesses in Carletonville
and Fochville within the local municipality of Merafong.
It is in
dispute whether “
gaming
”,
as defined, is taking place at these premises.
The
first respondent is the Minister of Safety and Security, the second
is the National Commissioner of the SAPS and the third is
the
Provincial Commissioner. I shall refer to the first to third
respondents jointly as “the Police”.
The
fourth respondent is the Gauteng Gambling Board which exists in terms
of the Gauteng Gambling Act.
The
last party to this application is the intervening party, the Casino
Association of South Africa which I shall herein refer to
as “CASA”.
Urgency
and the intervention of CASA
Firstly
,
I find the application to be urgent. An interim interdict was issued
in the urgent court on 24 November 2009 which order allowed
the
applicants to carry on there businesses until 8 December 2009.
On 8 December 2009 the matter was heard by me and I reserved
judgment.
As
on 8 December 2009 I am of the view that the matter was urgent.
I reserved judgment and extended the interdict until the
date of my
judgment. If the activities carried on by the applicants are
prima facie
unlawful, then that should not be allowed to continue. On the
other hand, if the businesses are
prima
facie
lawful, then that should be so
decided and an interim interdict granted until the main application,
in terms of which the applicants
seeks various decelerators, have
been decided.
Secondly
,
CASA relied as authority for their intervention on the proposition
that a trader who sustains damage through the illegal trading
of
another, which is expressly prohibited by statute, suffers an
infringement of his rights which entitles him to an order
interdicting
the continuance of such illegal trading.
[1]
I
therefore find that CASA has a material and substantial interest in
the outcome of these proceedings. Accordingly the leave
to
intervene is granted.
Issues
in dispute
Apart
from the application of the
Criminal Procedure Act
, 51 of
1977, (the CPA) with which I shall deal hereunder, the two main
issues in dispute are the following:
-
Whether the applicants’ machines are “gaming machines”
as contemplated in the
Gauteng Gambling
Act
, 4 of 1995 and - or the
National
Gambling Act
, 7 of 2004.
-
Even if the machines are found to be such, the factual question is
whether they were in fact
used
for gambling.
The
CPA
The
relevant parts of the
Criminal Procedure Act
provides as
follows:
“
20
State may seize certain articles
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a)
which is concerned in or is on
reasonable grounds believed to be concerned in the commission or
suspected commission of an offence,
whether within the Republic or
elsewhere;
(b)
which may afford evidence of the
commission or suspected commission of an offence, whether within the
Republic or elsewhere; or
(c)
which is intended to be used or is
on reasonable grounds
believed to
beintended to be used in the commission of an
offence.
21
Article to be seized under search warrant
(1) Subject to
the provisions of sections 22, 24 and 25, an article referred to in
section 20 shall be seized only by virtue of
a search warrant issued—
(a)
by a magistrate or justice, if it appears to such magistrate or
justice from information on oath that there are reasonable grounds
for believing that any such article is in the possession or under the
control of or upon any person or upon or at any premises
within his
area of jurisdiction; or
(b)
by
a judge or judicial officer presiding at criminal proceedings, if it
appears to such judge or judicial officer that any such
article in
the possession or under the control of any person or upon or at any
premises is required in evidence at such proceedings.”
“
22 Circumstances in which
article may be seized without search warrant
A police official
may without a search warrant search any person or container or
premises for the purpose of seizing any article
referred to in
section 20—
(a)
if the person concerned consents to such search for and the
seizure of the article in question, or if the
person who may consent to the search of the container or premises
consents to
such search and the
seizure of the article in question; or
(b)
if he on reasonable grounds believes—
(i)
that a search warrant will be issued
to him under paragraph (a) of section 21(1) if he applies for such
warrant; and
(ii)
that the delay in obtaining such
warrant would defeat the object of the search.”
The
essence of the applicants’ case is that the Police acted from
an improper or ulterior motive. This is best set out
in the
applicants’ heads of argument:
“
4.
Accordingly, it is apparent from the
Respondents’ own evidence that it was not necessary for them to
seize more than two machines
in issue as evidence. The seizure of all
of the Applicants’ machines on the premises on which the
searches were conducted
was conducted for an improper purpose –
to effectively close down the Applicants’ business without
having to go through
the prior formality of a criminal trial.”
This
contention is further elaborated in the applicants’ replying
heads of argument from which I quote paragraphs 6, 7 and
8:
“
6
.
First, it was conceded by counsel for the Fourth Respondent (“the
Gauteng Gambling Board”) that it was not the
nature
of the machines found on the Applicants’ premises that would
determine the outcome of a criminal trial, but
the
purpose for which the machines were used
.
If the machines were being used in circumstances where the customers
paid money with a prospect of obtaining a
financial
gain
,
then the Applicants might be engaged in “gambling activity”.
On the other hand, if this was not the purpose
for which the machines
were being utilised, a criminal trial would not succeed.
[2]
7.
In this respect, the Applicants state (
FA p23, para 52.2
)
that:
“
52.2
[M]y and the second applicants’ businesses are conducted in
such a way that it does not fall foul of that legislation
as –
(i)
the equipment is operated for
entertainment purposes;
(ii)
does not allow any outcome other
than the opportunity to play a further game; and
(iii)
an
opportunity to play a further game is limited to that which the
National Act contemplates
.”
[3]
[emphasis
added].
8.
In this context the nature of the machines will be of only peripheral
relevance and minimal evidentiary value in the pending
criminal
trial. The real issue will be whether the Applicants are
affording their customers an opportunity to obtain a financial
gain
over and above the cost of playing the game. That will depend
upon the
testimony of witnesses
, not the nature of the seized
equipment.”
The
applicants rely strongly on the
Highstead
decision
[4]
.
The
Highstead
decision was distinguished in
AK
Entertainment cc v Minister of Safety and Security
[5]
as follows:
“
The
Highstead Entertainment case supra was decided on the assumption that
the purpose of the search warrant is to obtain articles
which it is
believed may be of use in proving a criminal case; and it was held,
on the facts of that case, that the State was already
in possession
of all the evidence it needed (at 393C-E). In the present matter no
criminal proceedings are pending.
More
importantly the
applicant
has not
established,
or even alleged, why the respondents cannot use the powers of seizure
for the purposes mentioned in s 20, ie if the
articles are concerned
in or are intended for use in the commission of an offence
.
The applicant's case, on the affidavits, proceeded on the basis that
the articles are not required as evidence because the State
had all
the
evidence it needed. The
respondents denied that the police were precluded from seizing the
applicant's equipment in order to procure
evidence for a prosecution.
I do not consider it necessary to decide whether the respondents are
correct. For as there was no allegation
by the applicant that the
police could not seize the articles for either of the other purposes
referred to in s 20, the respondents
were not called upon to deal
therewith.
The
result is, quite simply, that the applicant has not established that
the seizure of its gambling equipment will be impermissible
for all
of the purposes of s 20.
It only
remains to add in this regard that in the Highstead Entertainment
case supra the applicant believed, and alleged, that
its activities
were lawful and it claimed a
temporary
interdict pending the outcome of a criminal case that would have
determined whether or not it was trading legally. In
this matter the
applicant concedes that it is carrying on business in contravention
of the Gambling Act and it seeks an order pending
a decision of the
Board on an application for a licence, alternatively pending a
decision of the Constitutional Court on the co-existence
of the three
statutes to which I have earlier referred.“
(my
emphasis)
The
facts and the nature of the machines
The
first and second applicants are carrying on business in Fochville and
Carletonville under trading names such as Las Vegas Entertainment
and
Pink Panther Entertainment. According to applicants they offer
amusement which do not amount to “gambling”
as defined.
I shall briefly deal with the relevant legislation hereunder.
It is further common cause that the first
and second applicants have
the same kind of machines at there respective premises.
On
23 September 2009 police officials from the Randfontein Police
Station accompanied by members of the fourth respondent, without
warrant, seized 144 of the first applicants machines. It is
common cause that all the machines, at both applicants premises,
are
the same as to the nature thereof and what these machines are capable
of.
The
police had two of these machines examined by an expert Mr Marimuthu
and he concluded that both machines are “gaming machines”.
The Gauteng Gambling Act, 4 of 1995, defines a “gaming
machine”. The essence of this definition is that after a person
has paid money to play that machine, such a person may receive cash
or anything of value after having successfully operated the
machine.
In
s 1
of the
National Gambling Act, 7 of 2004
, the term “gambling
machine” is defined as:
“
Any
mechanical, electrical, video, electronic, electro-mechanical or
other device, contrivance, machine or software, other than
an
amusement machine, that-
(a) is available
to be played or operated upon payment of a consideration; and
(b)
may, as a result of playing or operating it, entitle the player or
operator to a pay-out, or deliver a pay-out to the player
or
operator;”
The
Gauteng Gambling Act defines “gambling” as follows:
“
the
wagering of a stake or money or anything of value on the unknown
result of a future event at the risk of losing all or a portion
thereof for the sake of a return, irrespective of whether any measure
skill is involved or not and encompasses all forms of gaming
and
betting, but excludes the operation of a machine contemplated in
sub-section (3) or (4), provided that the responsible member
may, on
the recommendation of the Board declare certain games of skill not to
be gambling.”
The
applicants also had some of their machines tested by an expert, Mr
O’Neill. He came to the conclusion that the machines
are
not gaming machines or gambling machines as defined in the relevant
National and Provincial Legislation. He however points
out in
par 7 of his opinion that what is determinative, apart from the
ability of a machine to perform a function such as gambling,
it also
has to be shown that the machine was utilised in a specific manner.
Having
regard to these conflicting opinions, it is of crucial importance to,
on the facts of this case, determine whether these
machines at the
applicants premises were used for gambling or gaming.
During
argument on behalf of the applicants this was also advanced. Mr
Levenberg SC argued that the test is not what the machines
are, i.e.
what they are capable of, but how they are used. It seemed that
none of the other parties to this application had
any problem with
this proposition.
It
then becomes crucial to look at any evidence of how these machines
were used. The first to third respondent produced an
affidavit
by Mr Gomez stating that he has for at least two years frequented one
of the applicants’ establishments i.e. Las
Vegas/Mermaid.
He clearly states that he starts operating the machine by paying
which payment is then loaded as a credit
on a magnetic stick.
He further states in his affidavit at par 6:
“
Win
or lose after I finished playing I take the stick to the counter and
they will then pay out what an amount is credited on it
.“
Mr
Gomez further states that he personally saw a person winning R 15 000
in this way.
The
applicants put up no evidence by any customer to gainsay the version
of Mr Gomez. If innocent activities were going on
at these
premises the applicant could surely have produced the affidavits of
many of their customers to state exactly that.
One must take
into account that over the number of years that this activity was
going on, thousands of people must have being playing
at these
premises. It is astounding that the applicants could not put up
the affidavit of any customer who took part in these
“innocent”
activities.
I
therefore find on an overwhelming balance of probabilities that
gaming and gambling were taking place at these premises in
contravention
of the relevant legislation.
The
Highstead case
As
stated before the applicants rely very strongly on this decision.
In that case machines were seized at the applicants premises
in Sea
Point, Cape Town. The applicant sought a temporary interdict to
prohibit further search and seizure pending the outcome
of a criminal
trial. That criminal trial had already been set down for
hearing by the High Court within a relevantly short
period from the
date of the application.
The
court found that the purpose of a search warrant is the procurement
of articles which is reasonably necessarily to prove a criminal
case.
The court referred in general terms to s 20 and 21 of the CPA without
referring specifically to s 20 (a) and (c), which I
have quoted
above. The essence of the judge’s reasoning is captured in the
following paragraph
[6]
:
“
The
purpose of a search warrant is the procurement of articles which it
is reasonably believed may be of use in proving a criminal
case –
Cine Films (Pty) Ltd and Others v Commissioner of Police and Others
1971
(4) SA 574 (W)
.
As far as the pending criminal case is concerned there can be no need
to procure any further articles for such use as, according
to third
respondent, the State was ready as at 4 May 1992 to proceed with its
case, the postponement to 10 August being granted
at the instance of
applicant. Insofar as may be necessary applicant has indicated its
willingness to make any admissions necessary
so as to ensure that all
that will be in issue at the criminal trial is whether the two games
are or are not games of chance in
terms of the Gambling Act. It
cannot be said that any further search or seizure is necessary in
respect of the pending prosecution
or, for that matter, any future
prosecutions which could possibly eventuate in respect of applicant’s
continued activities.
The issue of a warrant for this purpose would
be unnecessary for the achievement of the purposes set out in ss 20
and 21 and the
issuing official would not be acting bona fide , but
with an ulterior, improper motive.”
If
the learned judge found that the procurement of evidence is the
only
purpose of the search and seizure, I respectfully differ from that
conclusion. The wording of s 20(a) and (c) of the CPA
are
clear.
The
Highstead
case can also be distinguished from the present
facts as follows:
1. The attorneys for
the applicant in that case commenced correspondence with the police
even prior to the commencement of its business,
so as to ascertain
the view of the police in regard thereto.
2. It was found that
the applicant in that case conducted the business in a genuine
belief, based on legal advice, that it was operating
within the law.
3. In regard to the
criminal prosecution the it was found that the applicants would co -
operate fully and make the necessary admissions
in order to,
obviously, shorten the proceedings.
4. The trial in the
High Court was set down for a date approximately three months from
the date of the hearing of that application.
5.
In that case there was no evidence of anyone who had received money
in the process of playing the machines.
To
my mind these are substantial differences. I find that the
conduct of the Police in this case did not take place as a result
of
an ulterior or improper reason or motive. In the present case
the evidence was that the case was set down for hearing
in the
magistrate’s court during January 2010. What is of
crucial importance is the evidence of Mr Gomez. Therefore,
in
essence what the applicants ask this court to do is to give them
permission to continue to conduct their illegal activities
pending
the outcome of an action for declaratory relief to be instituted and
finalised.
I
am not prepared to do that especially in the light of my finding that
the applicants did not make out a
prima
facie
case that legal activities were
conducted at these premises. Quite clearly the applicant has no
prima facie
right to trade illegally. In the light of this finding the
other requirements of an interim interdict fade into insignificance.
I
however also fully agree with what was stated in the
Sema
case.
[7]
In that case an
order similar to the one sought by the applicants in this matter was
refused. The court held that what
the applicants wished to
achieve by way of an interim interdict was for the court to issue an
order in terms of which they will
be able to operate their illegal
gambling business in contravention of the law, without any
interference from relevant authorities.
It
was further said in that case:
“
Inhabitants
of the Republic who wish to establish new gaming institutions or who
wish to continue with
G
unlawful gambling activities in contravention of the Gambling Act
have only themselves to blame if they are closed down and suffer
financial loss in the process.
[8]
”
Although
the requirement of irreparable harm favours the Applicants, the
balance of convenience does not. There is a strong
public
interest to protect people from illegal gambling. The police
have to do their work, which is, amongst others, to enforce
the law.
The legitimate business interest of the members of CASA will also be
damaged.
Another
remedy, taking into account that the applicants have so traded for a
number of years, is that they could have followed the
legal route and
could have applied for a license.
Seizure
without a search warrant
I
further have to be satisfied that the search and seizure without a
search warrant was justified by s 22(b)(i) and(ii).
In
this regard the deponent of the Police states as follows:
“
26.
In order to police illegal gambling activities effectively, the
members of the SAPS are required to act swiftly and without
giving
notice, because as soon as any information of a planned raid of
illegal activities is reported, operational experiences
in the past
indicated and proved that where such raid is planned, information is
leaked to the persons and/or entities who conduct
illegal gambling
activities and/or who are in possession of illegal gambling machines
and/or devices, and when members of the SAPS
and/or inspectors of the
Gambling Board are about to visit and/or inspect any premises, such
notice allows them an opportunity
to close their business and/or to
remove any gambling devices and/or portions thereof and to chase the
members of the public away,
in a very short period of time, and long
before the police and/or the inspectors of the Gambling Board can
arrive at the premises.”
“
28.
I further confirm that reliable information was received by the SAPS
on the morning of 23 September 2009, whereafter a team
of SAPS
members was quickly assembled together with two Gambling Board
Inspectors to attend and inspect the premises known as 777
Las Vegas
Entertainment (No. 3 Pretorius Street, Fochville, being one of the
illegal gambling businesses of the First Applicant),
Lucky 7, and
Fochville Hotel in Fochville. It was further established that
as soon as the members of the SAPS and the inspectors
of the Gambling
Board arrived at the premises of 777 Las Vegas Entertainment at 3
Pretorius Street, Fochville, all the other entities
referred to,
managed to close their premises and remove their illegal gambling
machines and devices before the police could inspect
their respective
premises.”
This
evidence was not seriously disputed by the applicants in their
replying affidavit. On the basis of this evidence I find
that
this requirement has also being satisfied.
In
the circumstances the application stands to be dismissed.
I
therefore order as follows:
1.
The application is dismissed with costs
2.
The costs will include the costs of two
counsel, where two counsel were employed.
AA
LOUW
JUDGE
OF THE HIGH COURT
ADV
FOR APPLICANT: Adv P Levenberg SC
Adv
N Jagga
ATTORNEYS
FOR APPLICANT: David Kotzen Attorneys
ADV
FOR FIRST TO THIRD RESPONDENT: Adv DJ Joubert
ATTORNEYS
FOR RESPONDENT: State Attorneys
ADV
FOR THE FOURH RESPONDENT: Adv FJ Nalane
ATTORNEYS
FOR THE FOURTH RESP: Manamela Marobela & Associates Inc
ADV
FOR THE INTERVENING PARTY: Adv DA Preis SC
Adv
AJ Daniels
ATTORNEYS
FOR THE INTERVENING
PARTY:
Webber Wentzel Attorneys
[1]
Modern
Appliances Ltd v African Auctions and Estates (Pty) Ltd 1961(3) SA
240 (W) at 241 F – 242 G
Bophuthatswana
Transport Holdings v Matthysen Bus Vervoer 1996(2) SA 166 (A) at 173
– 4.
[2]
The
Court is referred to the relevant sections of the National Gambling
Act 7 of 2004 (“the NGA”) and the Gauteng
Gambling Act 4
of 1995 (“the GGA”), which are recited in the
Applicants’ Founding Affidavit at
p14-19,
para 33-38
.
[3]
These
allegations by the First Applicant are confirmed by a member of the
Second Applicant. (
FA
p36, para 4
).
[4]
Highstead
Entertainment (Pty) Ltd t/a “The Club” v The Minister of
Law and Order and Others 1994(1)SA 387 (C)
[5]
1995(1)SA
783 (E)
[6]
at
393 B - E
[7]
Sema
and Another v Minister of Safety and Security and Others 1995(2) SA
401 (OPD)
[8]
At
405