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[2012] ZASCA 92
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Ivanov v North West Gambling Board and Others (312/2011) [2012] ZASCA 92; 2012 (6) SA 67 (SCA); 2012 (2) SACR 408 (SCA); [2012] 4 All SA 1 (SCA) (31 May 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No 312/2011
In the matter between
SVETLOV IVANCMEC IVANOV
…..............................................
Appellant
and
NORTH WEST GAMBLING BOARD
…...............................
1
st
Respondent
INSPECTOR FREDDY
….......................................................
2
nd
Respondent
INSPECTOR PITSO
…............................................................
3
rd
Respondent
THE STATION COMMANDER OF THE
RUSTENBURG POLICE STATION
…..................................
4
th
Respondent
MINISTER OF SAFETY AND
SECURITY
…......................
5
th
Respondent
THE MAGISTRATE OF RUSTENBURG
….........................
6
th
Respondent
Neutral
citation:
Ivanov v North West Gambling Board
(312/2011)
[2012]
ZASCA 92
(31 May 2012)
Coram:
CLOETE, HEHER,
SNYDERS and MHLANTLA JJA and McLAREN AJA
Heard:
14 May 2012
Delivered:
31 May 2012
Summary: Search warrant -
search and seizure - declaration of invalidity of search warrant -
operates retrospectively - search and
seizure invalid
ex
tunc
- application for a
mandament van spolie
appropriate −
appellant
entitled to restoration of machines even though his possession
without a licence would be illegal.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
North West
High Court, Mafikeng (Leeuw JP sitting as court of first instance):
1 The appeal is upheld with
costs, including the costs of two counsel.
2 The order of the court below is
set aside and replaced with the following:
'(a) the rule nisi issued by
Moloto AJ on 30 January 2010 is confirmed;
(b) the search warrant issued by
the sixth respondent on 22
January 2010 is declared
unlawful;
(c) the first, third and fourth
respondents are ordered forthwith
to restore the assets referred to
in annexure 'WGP1' to the first respondent's answering affidavit, to
the applicant;
(d) the first, second, third and
fourth respondents are ordered to pay the applicant's costs jointly
and severally, the one paying
the others to be absolved, such costs
to include the costs consequent upon the employment of two counsel.'
___________________________________________________________
JUDGMENT
___________________________________________________________
MHLANTLA JA
(Cloete, Heher
and Snyders JJA and McLaren AJA concurring):
Introduction
[1] This appeal, with the leave
of the court below, turns on the effect of the declaration of
invalidity of a search and seizure
warrant. It also involves the
question whether the appellant was entitled to institute a spoliation
application and more particularly
whether the fact that his
possession of the goods was and remains illegal, is a bar to his
being restored to possession thereof.
The issues arising on appeal
will best be understood in the light of the background facts that
follow.
Background
[2] The North West Gambling
Board, the first respondent, is a juristic person established in
terms of section 3 of the North West
Gambling Act 2 of 2001 (the
Act). I shall hereafter refer to the first respondent as the Board.
The Act provides for the regulation
of gambling activities in the
North West Province. The Board has, in terms of section 4, certain
powers, including the powers to
oversee gambling activities and
investigate illegal gambling throughout the Province and to exercise
such powers and perform such
functions and duties as may be assigned
to it in terms of the Act and any other law. The Board and the South
African Police Service
(SAPS) agreed to co-operate with regard to the
investigation of illegal gambling in the Province.
[3] On 22 January 2010 Mr Wilfred
Pitso, the third respondent, who is an inspector in the employ of the
Board, inspected the business
premises of Mr Svetlov Ivanov, the
appellant. As it appeared to the third respondent that gambling
activities were taking place
in contravention of the Act, he
requested members of SAPS to conduct further investigations and to
apply for a search warrant.
Pursuant thereto, members of the SAPS
applied for a search warrant from the magistrate, the sixth
respondent, who serves in the
court which has jurisdiction over the
appellant's business premises in Rustenburg. The sixth respondent
issued the search warrant
in terms of sections 20, 21 and 25 of the
Criminal Procedure Act 51 of 1977 (the
Criminal Procedure Act) read
with section 65 (6) to (8) of the Act.
[4] On 29 January 2010, Inspector
Freddy (the second respondent) and other members of the SAPS, as well
as the third respondent
and some employees of the Board, went to the
premises of the appellant to execute the search warrant. They
confirmed that the appellant
was in possession of gambling machines
and other gambling devices despite the fact that he did not have the
requisite licence and
was not authorised by the Board to possess the
machines − in effect contravening the provisions of
section
9(1)
of the
National Gambling Act 7 of 2004
.
1
Possession and use of machines
without a valid licence are offences under section 82 of the Act.
2
[5] As these events were
unfolding, the appellant launched an ex parte application in the
Rustenburg Magistrates' Court on an urgent
basis. He sought an order,
inter alia ‘cancelling’ the search warrant and directing
the members of SAPS to restore
possession of his business premises to
him. In his affidavit, he averred that he was the owner of
Max-a-Million Casino and that
the warrant was invalid. The magistrate
granted an order for the restoration of his business premises but –
correctly –
made no order that affected the validity of the
warrant. The order was brought to the attention of the police
officers who were
still in the process of executing the search
warrant but they continued with the search and seizure operation.
They locked the
premises and informed the appellant that they would
continue the following day. The appellant was arrested and taken to
the Rustenburg
police station where he was given a written notice to
appear in court on 1 February 2010 on a charge of illegal gambling.
[6] On 30 January 2010, the
second and third respondents as well as other police officers and
employees of the Board returned to
the appellant's premises and
seized the machines and equipment which appeared to be gambling
machines. This caused the appellant
to institute an ex parte
application in the North West High Court, Mafikeng against the first
to fifth respondents, on an urgent
basis. In his founding affidavit,
the appellant attacked the validity of the search warrant. He
averred, inter alia, that he was
‘conducting a business’
at the premises; that the magistrate had issued a spoliation order on
29 January; that the
police officers had ignored the court order and
had seized some of his goods; and that they had returned on that day
and were in
the process of loading machines into the truck. He stated
that he would be obliged to obtain permits from the Board to
transport
the machines back to the premises – thereby tacitly
admitting that the machines were gambling machines.
3
The appellant sought an order,
inter alia, declaring the search warrant null and void and directing
the respondents to restore the
machines to him with immediate effect.
[7] The matter came before Moloto
AJ, who granted a rule nisi with immediate effect pending the return
day, declaring the search
warrant null and void and ordering the
first to fifth respondents to restore possession of the machines to
the appellant. The respondents
complied with the order and returned
the machines to the appellant. These machines are still in his
possession.
[8] The respondents opposed the
confirmation of the rule nisi. The third respondent deposed to an
affidavit on behalf of the respondents
save for the sixth respondent.
He objected to the manner in which the appellant had launched the
application. He stated that the
appellant had failed to comply with
the provisions of section 35 of the General Law Amendment Act 62 of
1955,
4
as no notice had been given to
them. He conceded that the warrant might have been defective however
he stated that the respondents
were justified in their actions and
had met the requirements of
sections 20
,
21
and
25
of the
Criminal
Procedure Act; that
the appellant had contravened the provisions of
section 9(1)
of the
National Gambling Act and
that he was conducting
an illegal casino contrary to the provisions of section 50(1)
5
of the Act. He averred that by
virtue of section 79 of the Act, the gambling machines and other
articles that were used in the commission
of the offence were liable
to forfeiture upon the appellant's conviction. He therefore sought
that the rule nisi be discharged
and the appellant be ordered to
return the machines to the Board.
[9] The application was postponed
on various occasions. It was eventually heard by Leeuw JP. After
considering the issues, the learned
judge president discharged the
rule nisi in part. She declared the warrant invalid for being too
general and vague and accordingly
set it aside. Relying on the
decision of
Oudekraal
Estates (Pty) Ltd v City of Cape Town,
6
she held that the search and
seizure were not unlawful as the search warrant, albeit invalid, had
not yet been set aside when the
police executed it and that it had
empowered them to conduct the search and seizure.
[10] The judge president further
held that the appellant was not entitled to a spoliation order and
that he had adopted the wrong
procedure and relied on a wrong cause
of action. She ordered the appellant to return the machines to the
respondents with the qualification
that he was only entitled to the
return of the items which he might lawfully possess. Having found
that the appellant had not displayed
the utmost good faith required
of an applicant in an ex parte application, the judge president
ordered the appellant to pay costs
on a punitive scale. She later
granted leave to appeal to this court.
[11] Against that background the
appeal raises two issues. They are:
(a) whether the declaration of
invalidity of the search warrant could transform a bona fide search
that was executed under a warrant
into a spoliation; and
(b) whether as a result of the
declaration of invalidity of the search warrant, the appellant is
entitled to unqualified restoration
of the machines the possession of
which without a licence is prohibited by the Act.
Findings
[12] It is common cause that the
search warrant is invalid and that the appellant is not a holder of
any licence issued under the
Act. Counsel for the appellant conceded
that most of the machines seized from the appellant are gambling
machines. In my view the
learned judge president rightly came to the
conclusion that the search warrant was invalid and accordingly
cancelled it. She however
erred when she held that the order
declaring the search warrant invalid did not affect the lawfulness of
the search and seizure.
(a)
Reliance on Oudekraal
[13] As indicated earlier in my
judgment, the judge president found support in
Oudekraal
when she held that an unlawful
act was capable of producing legally valid consequences for as long
as the unlawful act was not set
aside. Counsel for the respondents
correctly conceded that the court below’s reliance on
Oudekraal
was misplaced as that case dealt
with the validity of administrative acts. The issue of a warrant is
not an administrative act.
It was so held by Langa CJ in
Thint
(Pty) Ltd
v
National Director of Public
Prosecutions
;
Zuma
v
National Director of Public Prosecutions
,
7
where he stated:
'
In
supplementary written submissions filed after the close of the
hearing, the State submitted that the decision to issue a search
warrant is an administrative one which falls within the terms of the
Promotion of Administrative Justice Act 3 of 2000
. The applicants, on
the other hand, submitted that it is a judicial discretion and does
not fall within the scope of administrative
action. This latter
approach accords more with the jurisprudence of this court.’
(b)
Effect of the
declaration of invalidity of the search warrant
[14] Counsel for the respondents
submitted that the search and seizure were lawful as the warrant had
not been declared invalid
when the police executed it and that it
remained valid until set aside on review. In my view this submission
cannot prevail. ‘A
warrant is no more than a written authority
to perform an act that would otherwise be unlawful.’
8
It must comply with the statutory
provisions. If it is subsequently declared invalid, the invasion of
privacy and the search and
seizure cannot retain the lawfulness
thereof as the essence of what made the dispossession lawful, falls
away. As Harms DP stated
in
Cadac
(Pty) Ltd v Weber
-
Stephen
Products Co
:
9
'The declaration of
invalidity operates retrospectively and not prospectively. This means
that once a warrant is set aside it is
assumed that it never existed,
and everything done pursuant thereto was consequently unlawful.'
[15] Put differently, the
lawfulness of the search and seizure is dependent on the legality of
the search warrant. This must necessarily
be so as the warrant
provides the justification for the search and seizure. If the warrant
is declared null and void, it means
that there was no basis in law
for the search and seizure, which were therefore invalid
ex tunc
.
In this case, the police had no authority to seize the appellant's
goods, albeit that they acted in good faith and believed that
they
had the power to search in terms of the warrant. Once the order of
invalidity was issued, the necessary consequence is that
the police
acted unlawfully.
[16] The matter was put beyond
doubt by the decision of the Constitutional Court in
Betlane
v
Shelly Court CC.
10
In that case, the registrar had
issued a writ of execution in favour of the respondent, contrary to
rule 49 (11) of the Uniform
Rules of Court, which requires it to be
issued by the court which granted the order. The applicant was
evicted on the strength
of the writ of execution which was later
declared unlawful and set aside. The applicant applied for a
spoliation order. Mogoeng
J held in para 36:
'Ordinarily, an
eviction that is carried out pursuant to an invalid writ of execution
amounts to spoliation. The evictee would therefore
be entitled to
restitution
.'
However, a restoration order was not granted as the premises were
already occupied by a bona fide third party.
[17] It follows that it was
competent for the appellant in this case to apply for a spoliation
order. The court below accordingly
erred when it concluded that the
appellant had used a wrong procedure and relied on a wrong cause of
action. I now turn to the
issue of spoliation.
(c)
Spoliation application
[18] Counsel for the appellant
submitted that the court below applied the wrong principles when
considering the application. He
contended that in spoliation
proceedings, the lawfulness of the possession of the applicant for
the spoliation order is irrelevant.
All that is required of the
applicant is for him or her to prove that he or she was in peaceful
and undisturbed possession of the
disputed property and that he was
deprived of his possession against his will. Counsel for the
respondent, on the other hand, supported
the finding of the court
below. He submitted that the lawfulness of possession had to be
considered as the appellant is prohibited
by the Act as well as the
National Gambling Act from
possessing gambling machines or gambling
devices without a licence. In support of this submission counsel
called in aid the decision
of the full court of the North West High
Court in
Schoeman
v Chairperson of the North
West Gambling Board
.
11
[19] In my view the submission on
behalf of the respondents is devoid of merit. The historic background
and the general principles
underlying the
mandament van spolie
are well established. Spoliation is the wrongful deprivation of
another's right of possession. The aim of spoliation is to prevent
self-help. It seeks to prevent people from taking the law into their
own hands. An applicant upon proof of two requirements is
entitled to
a
mandament van spolie
restoring the
status quo
ante
.
The first, is proof that the applicant was in possession of the
spoliated thing. The cause for possession is irrelevant –
that
is why possession by a thief is protected. The second, is the
wrongful deprivation of possession. The fact that possession
is
wrongful or illegal is irrelevant as that would go to the merits of
the dispute.
[20] In
Nino
Bonino v De Lange
,
12
Innes CJ enunciated the principle
underlying the
mandament
van spolie
as follows:
'It is a fundamental
principle that no man is allowed to take the law into his own hands;
no one is permitted to dispossess another
forcibly or wrongfully and
against his consent of the possession of property, whether movable or
immovable. If he does so, the
Court will summarily restore the
status
quo ante,
and
will do that as a preliminary to any inquiry or investigation into
the merits of the dispute.'
[21] In
Kelly
v Wright; Kelly v Kok
,
13
the lessor had leased to two
joint lessees a flat without first obtaining the consent of the
controller of manpower as required
by War Measure 74 of 1945. Rent
was paid monthly.
Wright
had been given notice to vacate
the flat forthwith whilst
Kok
was given some six weeks notice.
The lessor applied in the magistrate’s court for the ejectment
of the lessees. The application
was dismissed on the basis that
insufficient notice of ejectment was given. The effect of the court’s
decision was that the
lessees who had committed an offence remained
in possession. The lessor appealed against that decision and
submitted that he would
be committing an offence if the court allowed
the lessees to remain in occupation. In this regard, he found support
in the decision
of
Gopal
v Cohen
.
14
In that matter Neser J (Maritz
and De Villiers JJ concurring ) said at 288:
‘
I
am of the opinion, moreover, that there is a further ground for
granting an order of ejectment. Every day appellant resides on
or
occupies the property she is committing a criminal act and if
respondent permits appellant to remain on the property she commits
a
criminal act. It may well be that respondent cannot be held to be
permitting the appellant to occupy the property if the Court
rules
that she is not entitled to an order of ejectment against the
appellant, but if the Court does so rule the Court is in effect
permitting appellant to remain on the property and by so doing to
continue committing criminal acts. It would clearly be against
public
policy to countenance a breach of the law which is declared by
statute to constitute criminal conduct.’
Tindall
ACJ held that the approach of the court was in conflict with the
decision in
Jajbhay
v Cassim
15
and
overruled it. He went on to say at 529:
‘
I
am unable to accept as correct the alternative ground given in
Gopal
v Cohen,
for
ejecting the lessee in that case. It does not seem to me that by
refusing the decree of ejectment the Court would be permitting
or
countenancing the commission of an offence by the lessee or would be
acting against the requirements of public policy. In my
opinion the
requirements of public policy in a case like
Gopal
v Cohen
would
be satisfied by enforcing the criminal law’
[22] Turning to the case before
him, Tindall ACJ said at 530:
‘
The
refusal to eject the lessees can hardly prejudice the lessor in
respect of prosecution; she apparently was liable to prosecution
in
any event and if she should be prosecuted it is not likely, even if
she be legally liable to further prosecution, that she would
thereafter be prosecuted a second time, seeing that she has taken
legal steps to attempt to eject the lessees. As for the lessees
they
also apparently are liable to prosecution. Assuming against them that
as long as they remain in occupation they will be liable
to
punishment as for a continuous offence, it cannot rightly be said
that the Court, by refusing to eject them, will be permitting
or
countenancing the commission of an offence by them. It does not seem
to me that considerations of public policy demand intervention
by a
civil court; such considerations will be satisfied by proceedings in
a criminal court.’
16
[23] Van Blerk JA in
Yeko
v Qana
17
outlined the requisites for the
remedy and stated:
'The very essence of
the remedy against spoliation is that the possession enjoyed by the
party who asks for the spoliation order
must be established. As has
so often been said by our Courts the possession which must be proved
is not possession in the juridical
sense; it may be enough if the
holding by the applicant was with the intention of securing some
benefit for himself. In order to
obtain a spoliation order the
onus
is on the applicant
to prove the required possession, and that he was unlawfully deprived
of such possession. As the appellant admits
that he locked the
building it was only the possession that respondent was required to
establish… For, as
Voet,
41.2.16, says, the
injustice of the possession of the person despoiled is irrelevant as
he is entitled to a spoliation order even
if he is a thief or a
robber. The fundamental principle of the remedy is that no one is
allowed to take the law into his own hands.
All that the
spoliatus
has
to prove, is possession of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted.'
[24] In
Bon
Quelle (Edms)
Bpk
v
Munisipaliteit
van Otavi
,
18
it was said that the
mandament
van spolie
is a
possessory remedy, the limited and exclusive function of which is to
restore the
status quo
ante
and it therefore
matters not that the spoliator might have a stronger claim to
possession than the person spoliated or that the
latter has indeed no
right to possession. The principle is simple: possession must first
be restored to the person spoliated irrespective
of the parties’
actual rights to possession.
[25] It is clear from all these
authorities that questions of illegality or wrongfulness of the
spoliator’s possession are
irrelevant. The former has to be
determined by the criminal courts; and the latter concerns the merits
of the case which are irrelevant
– unless the applicant claims
a substantive right to possession and thereby in effect forces an
investigation of the issues
relevant to the further relief claimed.
19
That situation did not arise in
this case.
[26] Applying the principles
outlined in these authorities, it is clear that the findings by the
full court in
Schoeman
20
are wrong. In that case, the
police obtained a search warrant. They searched the business premises
of the applicant and seized various
items. There was no dispute that
the machines were gambling machines; that they were in the
applicant’s
possession
and that he did not hold any licence or permit issued by the Board to
possess the machines. In his application, the applicant
sought an
interim order declaring the search warrant unlawful and directing the
respondents to restore possession to him of all
the items seized. The
court dismissed his application on the basis that
section 9
of the
National Gambling Act precluded
him from possessing the machines
without a licence. The full court in dismissing the appeal relied on
the decision of Carlisle
J in
Yuras
v District Commandant
of
Police
,
Durban
21
and held that the appellant was
not entitled to an order for restoration of his machines until he
produced an appropriate licence.
[27] This conclusion by the full
court in
Schoeman
is wrong and is overruled. The appellant,
who was in undisturbed and peaceful possession, was entitled to the
restoration of his
machines once the search warrant was declared
unlawful and set aside. The question of lawfulness or illegality was
irrelevant.
Furthermore, the court’s reliance on
Yuras
is misplaced as that case involved an issue relating to consequences
flowing upon the conviction of a wrongdoer and where goods
used in
the commission of an offence had been seized.
[28] In
Yuras
, the police
had set up a trap. The applicant unlawfully and without permission
bought unwrought gold from a police officer. He
was arrested and the
gold was seized. The applicant was convicted of buying gold in
contravention of the Exchange Control Regulations
as he was not an
authorised dealer. He subsequently instituted an application claiming
a refund of the money paid for the gold
during the transaction,
alternatively that the gold be returned to him in the event of his
being able lawfully to possess or lawfully
deal therewith. The court
held that the applicant was not authorised to have the gold and had
not established ownership thereof.
Carlisle J accordingly dismissed
the application stating that he could not relieve the applicant of
the consequences of his illegal
conduct by restoring possession of
the gold to him.
(d)
Public Policy
considerations
[29] Counsel for the respondents
confirmed that no criminal proceedings were pending against the
appellant. He however urged this
court to have regard to public
policy considerations as we are dealing with legislation that had
been enacted in the public interest.
He urged us not to restore the
machines to the appellant but to grant a preservation order in favour
of the Board. In this regard,
counsel referred us to the decisions of
Zuma v National
Director of Public Prosecutions
;
Thint (Pty) Ltd v National
Director of Public Prosecutions
22
and
Sello
v Grobler.
23
[30] These cases do not assist
the respondents as the facts thereof are distinguishable from the
facts of the instant case. In
Thint
,
criminal proceedings were pending, hence the grant of a preservation
order. Similarly the reliance on
Sello
is misplaced as that case did not
involve a spoliation application.
24
[31] In this matter there are
remedies available to the Board. One would have expected it to have
taken steps to obtain a new search
warrant immediately after Leeuw JP
had declared the warrant invalid. Nothing precluded it from doing so.
It can do so now. A period
of 15 months has elapsed since the order
was made by Leeuw JP and yet no action has been taken against the
appellant. I am aware
of the order by Hendricks J on 3 June 2010 that
pending the outcome of the application, the machines were to remain
in the appellant’s
possession; but that order could not prevent
the execution of a new and valid warrant − which would have
rendered the application
academic (except for the question of costs).
(e)
Abuse of Court Process
[32] It remains for me to deal
with the issue relating to the allegation that the appellant has
abused the court process. Counsel
for the respondents submitted that
the appellant had, in ex parte proceedings, failed to disclose all
the material facts. He contended
that Moloto AJ would not have
granted the order had this been done. There is no merit in this
submission. In my view, the appellant
had a duty to disclose only
what might influence the outcome of the spoliation application, that
is, he had to establish the existence
of the two requirements
mentioned above. These were alleged in his founding affidavit. He had
no duty to prove the lawfulness of
his possession. As already stated,
the issues raised on behalf of the respondents related to the
lawfulness of the possession and
are irrelevant for the purposes of
the application. There is no doubt that the appellant has succeeded
in establishing that he
was in peaceful and undisturbed possession of
the machines and that he was unlawfully deprived of that possession.
[33] There is however a
legitimate criticism with regard to the use of ex parte proceedings
in this case. Even on ordinary principles,
there was no reason why
notice should not have been given to the respondents. But in
addition, the provisions of
section 35
of Act 62 of 1955 had to be
complied with as the respondents are all organs of state. The
appellant was bound in terms of that
section to afford the
respondents notice of the application. There was accordingly no
justification for ex parte proceedings for
this reason as well. The
appellant however, cannot be non-suited because of this. In my view
costs should follow the result.
[34] For all these reasons the
appeal must succeed. In the result the following order is made:
1 The appeal is upheld with
costs, including the costs of two counsel.
2 The order of the court below is
set aside and replaced with the following:
'(a) the rule nisi issued by
Moloto AJ on 30 January 2010 is confirmed;
(b) the search warrant issued by
the sixth respondent on 22
January 2010 is declared
unlawful;
(c) the first, third and fourth
respondents are ordered forthwith
to restore the assets referred to
in annexure 'WGP1' to the first respondent's answering affidavit, to
the applicant;
(d) the first, second, third and
fourth respondents are ordered to pay the applicant's costs jointly
and severally, the one paying
the other to be absolved, such costs to
include the costs consequent upon the employment of two counsel'.
___________________
NZ MHLANTLA
JUDGE OF APPEAL
appearances:
For
Appellant: J p de Bruin SC (with him N Jagga)
Instructed
by: Vardakos Attorneys,Vereeniging
Correspondents: Honey Inc,
Bloemfontein
Respondents: M Donen SC (with him
ZZ Matebese)
Instructed by: Mketsu &
Associates Inc, Pretoria
Correspondents: Matsepes Inc,
Bloemfontein
1
Section
9(1)
of the
National Gambling Act 7 of 2004
provides:
‘
(1)
Despite any other law, a person must not–
(a)
import,
manufacture, supply, sell, lease, make available, possess, store or
alter a gambling machine or gambling device, or transport
or
maintain such a machine or device except to the extent contemplated
in
section 23(4)
, unless that person is authorised to do so in terms
of this Act or applicable provincial law;
(b)
possess or make available for play a gambling machine or gambling
device for use in a gambling activity unless registered ownership
or
possession of the machine or device has been transferred to that
person in terms of section 23(6).'
2
Section
82(1) of the Act provides:
‘
(1)
Any person who–
…
(xiii)
is in possession of any gambling machine, table or device
contemplated in section 66(1) and this section and is not-
the
holder of an appropriate licence;
registered
in terms of section 60(1);
authorised
by the Board to use such device for social gambling; or
authorised
by the Board to transport such machine, table or device in or
through the Province as contemplated in section 66C(2);
(xiv)
uses gambling device or amusement machine otherwise than in
accordance with the provisions of the Act;
…
is
guilty of an offence and on conviction (unless otherwise expressly
provided elsewhere in this Act) be liable to a fine or to
imprisonment for a period not exceeding 10 years or to both a fine
and such imprisonment.’
3
Section
66A(1) of the Act provides:
‘
A
person shall not-
(a)
conduct
or permit the playing of any gambling game or conduct or permit any
gambling in or on any premises under his or her control
or in his or
her charge; or
(b)
be
directly or indirectly involved in the operation of any gambling
business;
without
an appropriate licence, and this will include transportation of
gambling machines or devices or the handling of such without
the
written approval from the Board.’
4
Section
35 provides:
‘
Notwithstanding
anything to the contrary contained in any law, no court shall issue
any rule
nisi
operating
as an interim interdict against the Government of the Union
including the South African Railways and Harbours Administration
or
the Administration of any Province, or any Minister, Premier or
other officer of the said Government or Administration in
his
capacity as such, unless notice of intention to apply for such rule,
accompanied by copies of the petition and of the affidavits
which
are intended to be used in support of the application, was served
upon the said Government, Administration, Minister, Premier
or
officer at least seventy-two hours, or such lesser period as the
court may in all the circumstances of the case consider reasonable,
before the time mentioned in the notice for the hearing of the
application.’
5
This
section prohibits anyone from conducting a casino without a licence.
6
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA) para
26.
7
Thint
(Pty) Ltd
v
National Director of Public Prosecutions
;
Zuma v
National Director of Public
Prosecutions
2009 (1) SA 1
(CC) para 89.
8
National
Director of Public Prosecutions v Zuma
2008
(1) SACR 258
(SCA) para 76.
9
Cadac
(Pty) Ltd v Weber
-
Stephen Products Co
2011 (3) SA 570
(SCA) para 18.
10
Betlane
v Shelly Court CC
2011 (1) SA 388
(CC).
11
Schoeman
v Chairperson of the North West Gambling Board
[2005]
ZANWHC 81.
12
Nino
Bonino v De Lange
1906 TS 120
at 122.
13
Kelly
v Wright; Kelly v Kok
1948 (3) SA 522(A)
at 528-530.
14
Gopal
v Cohen
1946 TPD 283.
15
Jajbhay
v Cassim
1939 AD 537.
16
See
also
De Jager v Farah and Nestadt
1947(4) SA 28(W) at 35 and
Sithonga v Minister of Safety and Security
2008 (1) SACR 376
(TkHC) at 390G-391F.(The passage at 391A-B is wrong − see
Setlogelo v Setlogelo
1914 AD 221
at 227.)
17
Yeko
v
Qana
1973 (4) SA 735
(A) at 739D-G.
18
Bon
Quelle (Edms) Bpk
v
Munisipaliteit van Otavi
1989
(1) SA 508
(A) at 512A-B: ‘Die mandament van spolie is 'n
besitsremedie waarvan die beperkte en uitsluitlike funksie is om die
herstel
van die
status quo ante
te bewerkstellig (
Oglodzinski
v Oglodzinski
1976 (4) SA 273
(D) op 274F-G) en daarom kom
dit nie daarop aan dat die spoliator 'n sterker aanspraak op besit
as die gespolieerde mag hê
nie of dat laasgenoemde inderdaad
geen reg op besit het nie. Die beginsel is eenvoudig:
spoliatus
ante omnia restituendus est
ongeag die partye se daadwerklike
regte op besit.’
19
See
Street Pole Ads Durban (Pty) Ltd v
Ethekwini Municipality
[2008] ZAGPHC 33
;
2008
(5) SA 290
(SCA) para 15.
20
See
n 11 above.
21
Yuras
v District Commandant of Police, Durban
1952 (2) SA 173
(N) at
178.
22
See
n 7 above, paras 220-223.
23
Sello
v Grobler
2011 (1) SACR 310
(SCA).
24
Ibid
para 10.