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2023
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[2023] ZAFSHC 358
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Restivox (Pty) Ltd t/a Crazy Slots Free State v Cronje t/a Fisherman's Bar (2334/2023) [2023] ZAFSHC 358 (14 September 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case number:
2334/2023
In
the matter between:
RESTIVOX
(PTY) LTD t/a CRAZY SLOTS FREE STATE
Applicant
and
EDUARD
WILLEM CRONJE t/a FISHERMAN'S BAR
Respondent
HEARD
ON:
20 JULY 2023
JUDGEMENT BY:
LOUBSER, J
DELIVERED
ON:
14
SEPTEMBER 2023
[1]
This is an opposed application where the applicant prays for the
following relief in its
notice of motion:
1.
That the respondent is to forthwith grant the applicant access to the
premises
known as Fisherman’s Bar, situated at 9 Dreyer Laan,
Roodewal, Bloemfontein, and to permit the applicant when attending on
the said premises, to remove 4 Limited Payout Machines from such
premises.
2.
That, in the event that the respondent refuses to permit the
applicant access
to the said premises on demand for removal of the
said Limited Payout Machines, the Deputy Sheriff is authorised to
enter upon
the said premises together with representatives of the
applicant for the purposes of removing the said machines from the
said premises.
3.
That the respondent be ordered to pay the applicant the sum of
R37 857.00
4.
That the respondent be ordered to pay the costs of this application.
[2]
The facts on which the applicant relies for this relief, appears from
the founding affidavit,
deposed to by its manager. According to her,
the applicant is the holder of a route operator licence issued to it
in terms of the
provisions of section 71 of the Free State Gambling
and Liquor Act.
[1]
This licence permits the applicant to make available limited gambling
machines for play at licenced sites.
[3]
It is further stated in the founding affidavit that altogether three
written agreements
were concluded between the applicant and the
respondent to pave the way for the Fisherman’s Bar to become a
licenced site
in order for it to obtain limited gambling machines
from the applicant. The first of these agreements was concluded on 10
November
2021, and is referred to as a Cost to Pay by Site Operator
agreement. In terms thereof, the applicant became authorised by the
respondent to apply to the Free State Gambling Board for a site
operator’s licence on behalf of Fisherman’s Bar. The
costs of the application incurred by the applicant would be paid back
to the applicant by the respondent from date of operation
of the
machines over a period of 52 weeks from the date on which the site
becomes operational. The amount so paid by the applicant
would be
regarded as an interest free loan.
[4]
On the same day, the second agreement was also concluded. This
agreement is referred
to as a Route and Site Operator agreement, and
it makes provision for a site data logger to be installed by the
applicant on the
site of the respondent to enable the monitoring of
the gaming activities on the site by the applicant. The data so
collected will
determine the amount owing by the respondent to the
applicant for the use of the machines, which amount will be
calculated on the
basis of the gross win on the machines, less the
remuneration to which Fisherman’s Bar is entitled to in terms
of the agreement.
Should the agreement be terminated, the respondent
is obliged to permit the applicant to remove the gaming machines,
since the
machines would remain the sole and exclusive property of
the applicant.
[5]
The third agreement was concluded on 27 October 2022, and is styled
“Addendum
to Route Operator and Site Operator Agreement”.
A reading of the terms thereof shows that it is actually a loan
agreement
envisaged by the Cost to Pay by Site Operator agreement,
and referred to earlier herein. In terms of this loan agreement, the
respondent
has to pay back all costs of the licence application and
the renewal costs of the licence to the applicant. An annexure to the
loan agreement sets out all the cash disbursements already incurred
by the applicant on behalf of the respondent prior to and on
the date
of the installation of the first gaming machines. The total of these
disbursements is indicated as the sum of R37 857.00,
repayable
over a period of 52 weeks in weekly instalments of R728.02 each. In
the event of default, the full amount outstanding
would become due
and payable.
[6]
Clause 3.6 of this loan agreement stipulates that the applicant shall
have the right
to remove the gaming machines should the respondent
fail to make payments on any amounts due to the applicant for three
consecutive
weeks.
[7]
It is further stated in the founding affidavit that the applicant
installed four Limited
Payout Machines at the Fisherman’s Bar
pursuant to the Route and Site Operator agreement. However, the
respondent failed
to pay to the applicant the amount that was due to
it in terms of this agreement, and as a result, the applicant
cancelled the
agreement on 14 March 2023. The manager of the
applicant says in the founding affidavit that the applicant is, in
the premises,
not entitled to possess the gaming machines any longer.
In addition, the respondent remains indebted to the applicant in the
amount
of R37 857.00 in terms of the loan agreement, she says.
[8]
In his answering affidavit, the respondent does not dispute the
existence of the three
agreements on which the applicant relies, nor
does he dispute the terms of the respective agreements. He also does
not dispute
the fact that he is still in possession of the four
Limited Gaming Machines installed by the applicant. Furthermore, he
does not
dispute his non-payment of amounts allegedly owing to the
applicant, but those allegations he deny only on the premise that he
has no knowledge thereof, or that it is actually the applicant who is
in breach of contract, and not himself.
[9]
The respondent’s defence that he has no knowledge, primarily
relates to the R37 857.00
he allegedly owes in terms of the loan
agreement. He says that he has no knowledge of the disbursements and
charges incurred by
the applicant in obtaining his operating licence
and the renewal thereof. This he says despite the fact that he has
signed the
loan agreement on 27 October 2022 which includes the
annexure setting out all the disbursements and charges paid on his
behalf.
This defence raised by the respondent, therefore has no
merit.
[10]
The respondent’s defence of breach of contract by the applicant
relates to his alleged
failure to pay the total gross win, les the
remuneration to which the Fisherman’s Bar is entitled to, in
terms of the Route
and Site Operator agreement. As mentioned earlier,
this agreement entitled the applicant to cancel the agreement and to
remove
its machines in the event of the respondent failing to pay his
fees for the machines.
[11]
The respondent further states in his answering affidavit that he was
at all times willing to
pay, but only if the applicant rectified its
breach of contract. He himself is therefore not in breach, he says.
[12]
The respondent then sets out the breach of contract committed by the
applicant. Firstly, the machines provided
by the applicant, were not
up to standard, he says. However, he does not provide any facts at
all to show why the machines were
not up to standard. As a
consequence, this allegation carries no weight. Secondly, the
respondent makes the blunt allegation that
“the curtains were
not hung”. Again he does not provide any information at all in
this regard, and therefore this allegation
is also not convincing.
Thirdly, the respondent alleges that he was not afforded the
opportunity by the applicant to attend courses
as a site operator,
which formed part of the agreement.
[13]
In the last-mentioned respect, the Route and Site Operator agreement
provides as follows in clause
6.2 thereof: “The Route Operator
shall at its expense, provide for the Site Operator and its employees
such training in the
operation, repair, maintenance of Gaming
Machines and the Site Data Logger as the Route Operator may determine
to be appropriate.”
The obligation to provide training is
therefore subject to a determination by the applicant that the
specific training is appropriate,
and it is not an obligation that
the applicant had to fulfil irrespective of the circumstances. This
alleged breach by the applicant
therefore cannot be labelled as a
breach in the true sense of the word.
[14]
In addition, the respondent alleges that the necessary signs have not
been erected by the applicant,
and that the area around the machines
has not been “finalised” by the applicant. Clause 6.1 of
the agreement falls
in the same category as clause 6.2, and provides
as follows: “The Route Operator shall, at its expense, supply
and maintain
at the Site such point of sale materials, fixtures,
signs and promotional materials as the Route Operator may from time
to time
determine to be appropriate.” For the same reasons
mentioned in relation to clause 6.2, an alleged breach in this
respect
can also not be labelled as a breach in the true sense of the
word.
[15]
Lastly, the respondent alleges that no invoices were delivered by the
applicant. Here he contradicts
himself. Earlier in his answering
affidavit, he did mention that he was not provided with formal
invoices, but he added that he
only received a text message with the
relevant figures. His defence in this respect is therefore neither
here nor there.
[16]
The applicant filed a replying affidavit in which the respondent’s
allegations of breach
by the applicant are denied. In particular, it
is denied that the respondent or his employees never received any
training from
the applicant, and a training form signed by an
employee of the respondent is attached to the affidavit to prove that
training
was provided by the applicant. The applicant also pointed
out that it had no obligation to provide curtains for the machine
area.
Furthermore, the applicant annexed to its replying affidavit
photographs of signs it had erected in the gambling area, as well as
photographs showing that it has demarcated the gambling area from the
rest of the tavern.
[17]
In the aforegoing, this Court has to find that the respondent has
failed to raise any valid defence
to the applicant’s claim for
removal of the machines and for payment. For this reason, the issue
of reciprocal obligations
between contracting parties does not arise.
In addition, the defences were raised in such a bald and sketchy
manner that it cannot
be find that a real, genuine or
bona
fide
dispute of fact between the parties became established on the papers.
In such a case in motion proceedings a Court may proceed
on the basis
of the correctness of the applicant’s version if it is
satisfied as to the inherent credibility of the applicant’s
factual averments.
[2]
[18]
The application must therefore succeed. I can find no reason why
costs should not follow the
result, and the following order is
therefore made:
1.
The respondent is ordered to forthwith grant the applicant access to
the premises
known as Fisherman’s Bar, situated at Roodewal,
Bloemfontein, and to permit the applicant to remove four Limited
Payout Machines
from such premises.
2.
In the event of the respondent refusing such access to the applicant,
or refusing
the applicant to remove the said machines, the Deputy
Sheriff is authorised to enter the said premises together with
representatives
of the applicant, and to remove the said machines.
3.
The respondent is ordered to pay to the applicant the sum of
R37 857.00.
4.
The respondent is ordered to pay the costs of the application.
P. J. LOUBSER, J
For
the applicant:
Adv.
J. Ferreira
Instructed
by:
Cliffe
Dekker Hofmeyr Inc., Sandton
c/o
Noordmans Inc., Bloemfontein
For
the respondent:
Adv.
N. van der Sandt
Instructed
by:
Willie
J Botha Inc. Bloemfontein
[1]
Act
6 of 2010
[2]
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
(AD)
at 635 A-B