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[2011] ZASCA 155
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Casino Enterprises (Pty) Ltd v Gauteng Gambling Board and Others (SCA) [2011] ZASCA 155; 2011 (6) SA 614 (SCA); [2011] 4 All SA 573 (SCA) (28 September 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 653/10
In the matter between:
CASINO ENTERPRISES
(PTY) LTD
…........................................................
APPELLANT
and
THE GAUTENG GAMBLING
BOARD
….......................................
FIRST
RESPONDENT
THE NATIONAL GAMBLING
BOARD
…..................................
SECOND
RESPONDENT
THE MINISTER OF TRADE
& INDUSTRY
…................................
THIRD
RESPONDENT
Neutral citation
:
Casino Enterprises v The Gauteng Gambling Board
(653/10)
[2011] ZASCA 155
(28 September 2011)
Coram:
HEHER,
PONNAN, SERITI JJA, PLASKET and PETSE AJJA
Heard:
23 August
2011
Delivered:
28
September 2011
Updated:
Summary:
Gambling
–
National Gambling Act 7 of 2004
– Gauteng Gambling Act
4 of 1995 – gambling – what constitutes - internet casino
– operated from Swaziland
- whether interaction with players in
Republic gambling in South Africa.
____________________________________________________________________________________
ORDER
On appeal from:
North Gauteng High Court (Pretoria)
(Tuchten J sitting as court of first instance):
The appeal is dismissed.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (PONNAN, SERITI
JJA, PLASKET AND PETSE AJJA concurring):
[1] This is
an appeal against a judgment of Tuchten J sitting in the North
Gauteng High Court with leave of the learned judge. His
judgement has
been reported.
1
[2] The appellant is a
company registered and incorporated in Swaziland. It owns and
operates a land-based casino in and an internet
casino (also referred
to as an online casino) from that kingdom. Both operations are duly
licensed there, trading under the name
Piggs Peak. Neither is
licensed in South Africa.
[3] The real dispute in
this appeal is whether the activities of the internet casino
contravene the gambling laws of this country,
being for present
purposes, the National Gambling Act, 7 of 2004 (‘the NGA’)
and the Gauteng Gambling Act, 4 of 1995
(‘the GGA’), when
gamblers in South Africa gamble on-line.
[4] The genesis of the
dispute was a notification by the first respondent (the Gauteng
Gambling Board) to certain radio stations
broadcasting in Gauteng
that they were prohibited in terms of s 71 (1) of the GGA from
advertising or distributing any information
in the province
concerning the appellant’s internet casino and threatening them
with prosecution in terms of s 71 (3). As
a result the stations
withdrew all advertising that referred to on-line gambling with that
casino and have since refused to air
such advertisements.
[5] The appellant
instituted motion proceedings against the first respondent in this
appeal, the National Gambling Board (the second
respondent) and the
Minister of Trade & Industry (the third respondent). Those
proceedings were referred to trial because expert
witnesses of the
appellant and the first respondent had expressed conflicting views in
their respective affidavits about where
the gambling with the
internet casino took place. The third respondent did not participate
in the trial.
[6] At the trial the
appellant sought declaratory relief to the effect that when persons
in Gauteng gamble with the internet casino,
such gambling takes place
in Swaziland and not in South Africa and that such activities do not
contravene any of the provisions
of either Act.
[7] In the alternative
the appellant claimed a declaration that, when gamblers in Gauteng
gamble on the internet casino, such gambling
is made available to
them on the appellant’s computer servers in Swaziland, and not
in Gauteng in any manner that contravenes
either Act.
[8] The appellant also
sought a declaratory order that any advertising occurring in South
Africa in respect of its Swaziland internet
casino was not unlawful
and did not constitute a contravention of s 15 of the NGA or s 71 (1)
of the GGA.
[9] The parties called
their respective experts, Prof Hazelhurst for the appellant and Prof
S H von Solms for the first and second
respondents, to testify. The
debate was whether gambling with the internet casino takes place
solely in Swaziland or, because of
the essential player input without
which the server in Swaziland would be inactive, both in South Africa
and Swaziland.
[10] The court a quo
dismissed all aspects of the appellant’s claims on the basis
that persons who interact with the casino
engage in gambling in South
Africa and that such gambling is unlawful because the appellant does
not hold a gambling licence in
South Africa.
[11] The grounds for the
court’s decision in regard to the GGA were that certain actions
undertaken by the gambler take place
in Gauteng and constitute
gambling as defined by the GGA. Since such gambling does not take
place at licenced premises the actions
of the gambler are unlawful.
[12] With regard to the
NGA the court held that it mattered not that certain elements
identified in ss 5(1)(a)(i) and (ii) take
place in Swaziland since s
11 of the NGA prohibits engaging in or making available ‘the
game as a whole’. The court
found that this takes place when a
gambler presses the spin button and connects interactively with the
servers in Swaziland.
The statutory
prohibitions
[13] The following
provisions of both the Acts are of relevance to this appeal
(1) Section 15 of the NGA
provides:
‘
(1)
A person must not advertise or promote-
(a)
any gambling activity-
(i)
. . .
(ii)
that is unlawful in terms of this Act or applicable provincial law;
or
. . .’
(2) Section 8 of the NGA
provides:
‘
Despite
any other law, a person must not engage in, conduct or make available
a gambling activity except-
(a)
a licensed gambling activity; . . .’
(3) Section 11 of the NGA
provides:
‘
A
person must not engage in or make available an interactive game
except as authorised in terms of this Act or any other national
law.’
(4) Section 71 (1) of the
GGA provides:
‘
(1)
No person shall, by way of advertisement or with intent to advertise,
publish or otherwise disseminate any information concerning
gambling
in the Province in respect of which a licence in terms of this Act is
not in force.’
Section 71 (3) renders a
contravention of ss (1) a criminal offence.
(5) In terms of s 76 of
the GGA:
‘
(1)
No person may gamble on the result of any event or contingency other
than –
(a)
a casino game;
(b)
a bingo game;
(c)
the operation of a gaming machine;
(d)
. . .
(e)
a sporting event.
(2)
No person may gamble on the result of an event or contingency
contemplated in subsection (1) with any person other than the
holder
of a licence who is authorised by such licence to gamble on the event
or contingency concerned.
(3)
Any person who contravenes a provision of subsection (1) or (2) shall
be guilty of an offence.’
[14] At the heart of all
these prohibitions is the concept of ‘gambling’. It will
be necessary in due course to determine
what the legislature meant in
that regard.
[15] With regard to the
prohibitions the following matters were common cause:
1. The appellant has no
licence under either Act to engage in, conduct or make available a
gambling activity as defined.
2. The games played on
the appellant’s website are ‘interactive games’ as
defined in the NGA.
3. The games played on
the website are ‘casino games’ as defined in the GGA.
4. If the games played on
the website are played in the Republic (or the Gauteng Province as
the case may be) they are, subject
to the argument considered below
relating to the application of the legislation to gambling through
the internet, struck by the
prohibitions.
The contentions of the
appellant
[16] Appellant’s
counsel submits that the court a quo erred. Two main strands can be
discerned in his argument to us.
[17] The
first depends upon the common cause premise that neither statute has
extra-territorial application.
2
According to the submission material aspects of any
gambling initiated by a participant in the Republic occur in
Swaziland. In consequence
no offence is committed in this country.
[18] The second turns on
a proposition that neither statute was designed with the internet in
mind. Counsel submits that the evidence
shows that appellant’s
operation of its casino through that medium has consequences that
were not foreseen by the legislature
or catered for in the
legislation: the casino operates, as it were, in cyberspace and does
not have a terrestrial presence in South
Africa; the servers, which
are the directing minds of the casino operation, are located in
Swaziland and all communication between
a player and the casino can
only be effective once processed by the servers there. Most notably,
according to the submission, whatever
game the player selects is
played on the servers and the uncertain future event that is
essential to the nature of gambling occurs
on and is determined by
the workings of the servers. In counsel’s submission such a
relationship between player and operator
is not embraced by the
terminology of either statute and an intention to extend the
prohibitions on terrestrial gambling in the
Republic to such a
situation falls beyond the scope of the legislation. Counsel also
draws attention to the transitional provisions
contained in the
Schedule to the NGA as evidence that the legislature did not have
cross-border internet gambling in mind when
enacting the
prohibitions. I shall consider the force of this submission later in
this judgment.
The facts
[19] In my view it is
unnecessary to analyse the evidence of the respective experts. They
were agreed on all the substantial facts
relating to the modus
operandi of the internet casino.
[20] A reasonably brief
description of the process taken from the expert summary of Prof
Hazelhurst will suffice. He is describing
how the gambling software
set up and operated by the appellant works from a technical
perspective:
‘
2.3.
There are two major components of the software. Programs run on the
servers in Swaziland. Someone who wishes to play Casino
software
installs some software on his own computer. The software on the
server and on the player’s computer communicate
over the
internet.
2.4.
. .
2.5.
. .
2.6.
I shall use as an example the working of a
slot
machine type game
since this is the one for which I inspected the code. However, I
understand how some of the other games work,
and there is nothing in
principle different from a computational perspective.
2.7.
. .
2.8.
For the purpose of this description, there are three key computers in
an interaction between a player and the system in Swaziland:
the
player’s own computer, and two servers in Swaziland.
(a)
The player’s own
computer.
From a
technical perspective, the player could be anywhere in the world. But
for the purpose of this discussion, I shall assume
that he is in
Gauteng. The software on the player’s computer includes program
modules that for each game displays appropriate
images, takes
instructions from the player which are communicated to the server,
and takes results of games from the server and
communicates them to
the player by displaying them on the screen.
(b)
Two servers that
provide the gaming services.
I
shall call these the gambling server (GS) and the database server
(DS). (This is a simplification of the system as there are several
servers and hardware devices involved).
2.9.
The gaming server.
On
the gaming server, separate programs relevant to my example run, with
different responsibilities. In principle, these programs
could run on
different computers if the workload required it. The programs are:-
(a)
A program which I shall call the workload manager (WM). It is
responsible for communication with the player, for load balancing
and
for choosing which game to play. When the WM receives a request from
the player’s computer, it will validate the request
by checking
the player’s credentials and ensuring that the message has not
been corrupted in its transmission over the internet,
and choose the
appropriate game module to activate.
(b)
Programs which actually implement the games (slots in this case, but
it could be another game). A separate program runs for
each game on
the system. It is only these game programs which understand the
details of the games and the gambling that will take
place.
For
the purpose of the example, I focus on the module that implements a
slot game.
2.10.
The database server.
The database server
is responsible for the safe, reliable storage of all important data
in the system. This includes player information
and the history of
all games played.
2.11.
The player’s computer communicates through the internet with
the gaming server, which communicates with the database
server. The
player and player’s computer are ignorant of the existence of
the database server and do not communicate with
it.
2.12.
The servers are based in Swaziland.
2.13.
This type of architecture is a common architecture for electronic
commerce and is known as a multi-tier architecture.
Example
operation
2.14.
The player must acquire a copy of the
player
software and install
it on his computer – this can either be downloaded or installed
from compact disc (CD) or Digital Versatile
Disc (DVD). There is also
a
Flash
version of the software which
allows the user to access the online casino directly through his web
browser. Essentially, the software
components are automatically
downloaded transparently to the player as they are needed. The mode
of acquisition of software is
up to the player.
2.15.
The player logs in and authenticates himself. The Workload Manager
will be responsible for managing the authentication process
at the
game server.
2.16.
Each player has what I shall call a “wallet” in the Piggs
Peak system. This is the amount of money which is available
to the
client to play with. I have been informed that at any time the client
may close his wallet and transfer the money back to
his bank account.
Before playing any games, the player must have a positive balance in
his wallet.
2.17.
The player is presented with a choice of games to play and then
chooses which game to play. The paragraphs below describe
what
happens when the client chooses a typical slot game.
2.18.
The player’s screen displays the game. In the case of the slots
game, these are very colourful images which show the
initial
positions of the slots as well as the “paylines” that the
player can choose in response to the game. These
are essentially the
bets the player may make.
2.19.
The following sequence of events occurs. . . .
(a)
The player decides which paylines to choose and the stakes, and
presses
Spin
.
From this point, until stage 2.19(h), the player’s computer
will display spinning wheels/slots.
(b)
The player’s computer records the information about the game
choices in an
XML
data structure, and then sends
this structure with the player’s credentials encrypted using
the
SSL
protocol over the internet to
the game server. From this point until stage 2.19(h), no processing
takes place on the player’s
computer other than the displaying
of spinning wheels/slots. At this point the player’s program
acts
asynchronously
of
the server computers.
(c)
The Workload Manager on the game server receives the packet from the
client computer, validates the packet as being genuine,
and based on
the packet and the workload of the system allocates the player’s
choice of game to the appropriate game program.
A message is sent to
the game program using a standard network send routine.
(d)
The game program then takes the information stored in the XML record
about the player’s choices and plays the game on
the game
server according to the rules of the game. The game module calls a
pseudo-random number generator routine that introduces
the factor of
chance into the game.
(e)
Once the game has been played and the results are known, the game
program processes the results into the database by doing a
call (over
the network) to the database server, which performs a set of
SQL
(database) commands as a
transaction. The transaction records the outcome of the game, updates
the player’s balance in his
wallet, and retrieves the updated
balance.
(f)
The confirmed game result and updated balance are sent to the
Workload Manager.
(g)
The Workload Manager packages the results, encrypts the data and
sends the results and updated balance back to the player’s
computer.
(h)
The player’s computer receives and decrypts the packet and
dislays the results on the player’s computer.
2.20.
It is important to point out that in this process, once the player
presses “Spin”, he has no control over the
outcome of the
game. Once the packet with his choice has been sent to the game
server, the behaviour of the player and/or the program
on the
player’s computer is irrelevant, and has no effect on the game
being played and the results of the game.
2.21.
If the player’s computer is switched off or struck by lightning
or if there is a network failure, there will be no consequences
for
the outcome of the game. The various components of the server will
continue to operate, the game will continue to play, the
result will
be determined, and the player’s status will be updated. The
game server will attempt to send a message to the
client computer
with the result, which will not be received. However, the non-receipt
of the message will have no effect on the
outcome. At a later stage,
should the player log in to the system, he will be informed of the
outcome. Even if he never logs in
again, the gaming records and
status of his wallet will have changed.
2.22.
. .
2.23.
. .
2.24.
. .
2.25.
Based on this analysis, I believe that the following actions occur in
the province:
(a)
The player may initiate the moving of money between his “wallet”
in the casino and his bank account;
(b)
The player decides which game to play, which bets to make, and what
stakes to play;
(c)
The player presses (in this case) “Spin” (other games
require other actions). This initiates a sequence of actions
which
includes the sending of the data packet to the server and the
spinning wheels being displayed on the screen.
2.26.
Based on this analysis, I believe the following actions take place in
Swaziland:
(a)
Verification of the player’s credentials;
(b)
Records of monetary transactions are kept;
(c)
The player’s “wallet” is kept;
(d)
The state of the current game and all game history is kept;
(e)
The games are offered;
(f)
The games are played by the game server interpreting any instructions
from the player;
(g)
The outcomes of the games are determined;
(h)
The effect of the outcome on the player’s balance and status is
determined.’
[21] The materiality of
the facts in the summary (inasmuch as any action takes place in or
out of the Republic) depends not on the
opinion of the expert witness
but upon what, in the context of the respective statutes, is meant by
the concept of ‘gambling’.
Any aspect that is irrelevant
to the proper meaning, eg the place of pay-out, can be ignored.
The meaning of
‘gambling’ under the statutes
The NGA
[22] An express purpose
of the NGA, as stated in the preamble, is ‘to safeguard people
participating in gambling . . . against
the adverse effect of
gambling’, and to that end to establish norms and standards
applying throughout the Republic with regard
to gambling so that
(inter alia)
‘
*
gambling activities are effectively regulated licensed, controlled
and policed;
.
. . .
* society and the economy
are protected against over-stimulation of the latent demand for
gambling.’
These norms and standards
are embodied in the national gambling policy which is set out in
Chapter 2 of the Act. In general, having
regard to the content and
structure of the NGA three main aims can be identified as the reason
for the regulation and control of
gambling:
1. The protection of the
public against the potentially harmful effects of gambling.
2. The protection of
licensed gambling activities against competition from unlicensed
operators.
3. The protection of the
income which the State derives from the licensing of gambling.
[23] As this
Court recognised in the
Lotto
case
3
it is notorious that gambling is no respecter of
international boundaries. Adequate protection of the public against
exploitation
requires proper regulation and licensing. In construing
the NGA as a remedial statute designed to meet the challenges posed
by,
for example, the internet as a developing platform for
cross-border gambling activities its terms should be understood in a
broad
rather than a narrow sense where such extension is feasible.
See eg
Slims (Pty) Ltd and Another v Morris NO
1988 (1) SA 715
(A) at 734D-F.
[24] Counsel for the
respondents referred to dicta in judgments from the United States
concerning internet gambling. In
The People of the State of New
York v World Interactive Gaming
185 Misc. 2d 852
, 714 N.Y.S. 2d
844 the Attorney-General applied inter alia to interdict the
respondent from operating within or offering to residents
of New York
State gambling over the internet. The central issue was whether the
State could enjoin a foreign corporation legally
licensed to operate
a casino offshore from offering such gambling to internet users in
New York. The State constitution contained
a prohibition against
unauthorised gambling. The Court said (at para 9):
‘
Respondents
argue that the Court lacks subject matter jurisdiction, and that
Internet gambling falls outside the scope of New York
state gambling
prohibitions, because the gambling occurs outside of New York state.
However, under New York Penal Law, if the person
engaged in gambling
is located in New York, then New York is the location where the
gambling occurred [
See,
Penal
Law § 225.00
(2)].
Here, some or all of those funds in an Antiguan bank account are
staked every time the New York user enters betting information
into
the computer. It is irrelevant that Internet gambling is legal in
Antigua. The act of entering the bet and transmitting the
information
from New York via the Internet is adequate to constitute gambling
activity within the New York state.
Wide
range implications would arise if this Court adopted respondents’
argument that activities or transactions which may
be targeted at New
York residents are beyond the state’s jurisdiction. Not only
would such an approach severely undermine
this state’s
deep-rooted policy against unauthorized gambling, it also would
immunize from liability anyone who engages in
any activity over the
Internet which is otherwise illegal in this state. A computer server
cannot be permitted to function as a
shield against liability,
particularly in this case where respondents actively targeted New
York as the location where they conducted
many of their allegedly
illegal activities. Even though gambling is legal where the bet was
accepted, the activity was transmitted
from New York. Contrary to
respondents’ unsupported allegation of an Antiguan management
company managing GCC, the evidence
also indicates that the
individuals who gave the computer commands operated from WIGC’s
New York Office. The respondents
enticed Internet users, including
New York residents, to play in their casino.’
Although as the extract
makes clear, the New York statute was in terms different from those
under consideration here, the practical
policy that underlies the
dictum is equally valid in the Republic,
vis-a-vis
the need to
counter potentially harmful communications generated and transmitted
from beyond the country’s borders. The question
is whether such
reasoning can be reconciled with the terms of the NGA and the GGA.
[25] Counsel for the
appellants referred us to a number of foreign authorities which, he
submitted, supported the contention that
his client operated its
casino in Swaziland and not in South Africa. I do not find any
directly in point as this appeal clearly
turns on the terms of the
two statutes under consideration and the application of the facts to
those statutes. I would however
echo the words of Jonathan Parker LJ
in 800-
Flowers Trade Mark
[2002] F.S.R.12 at para 136:
‘
The
implications of Internet use for issues of jurisdiction are clearly
wide-ranging, and will need to be worked out with care both
in
domestic and in private international law . . . I do venture to
suggest that the essence of the problem is to fit the factual
circumstances of Internet use into the substantive rules of law
applying to the many and very different legal issues that the
Internet affects. It is therefore unlikely, and it is nowhere
suggested, that there will be one uniform rule, specific to the
Internet,
that can be applied in all cases of Internet use.’
We are of course, not
concerned with a case of private international law, but the suggested
approach certainly has relevance to
the domestic law that we must
consider and to the manner in which I propose to confront the
problem.
[26] Section 3 of the NGA
provides:
‘
An
activity is a gambling activity if it involves-
(a)
placing or accepting a bet or wager in terms of section 4 (1);
(b)
[not relevant];
(c)
making available for play, or playing-
(i)
bingo or another gambling game in terms of section 5; or
(ii)
[not relevant].’
[27] According to s 4:
‘
(1)
A person places or accepts a bet or wager when that person-
.
. . (c) stakes or accepts a stake of money or anything of value with
one or more other persons on any contingency; or
.
. .’
[28] Section 5 provides:
‘
(1)
An activity is a gambling game if-
(a)
it meets the following criteria:
(i)
it is played upon payment of any consideration, with the chance that
the person playing the game might become entitled to, or
receive a
pay-out; and
(ii)
the result might be determined by the skill of the player, the
element of chance, or both; or
(b)
[not relevant].’
[29] No express
definition of the term ‘gambling’ is included in the Act
but the intention is made clear, particularly
in s 5. Very much in
accord with the common law – see eg
Rademeyer v Evenwel
1971
(3) SA 339
(T) – the elements of gambling are-
(i)
payment of a consideration (stake, bet or wager)
(ii)
the chance (contingency) of becoming entitled to or receive a pay-out
(the uncertain future event).
Once those criteria are
satisfied in the context of s 4(1) the player who places the stake is
gambling and (since gambling is necessarily
a reciprocal activity)
the other party or parties who make the gambling game available or
accept the wager (who may be different
persons) is or are likewise
engaged or involved in a gambling activity. These criteria do not
vary according to whether one is
considering a terrestrial encounter
between player and casino or whether the meeting takes place in
cyberspace.
The GGA
[30] In this Act
‘gambling’ is defined in s 1 as follows:
‘”
gambling”
means the wagering of a stake of 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 of skill is involved or not and
encompasses all forms of
gambling and betting, but excludes the operation of a machine
contemplated in subsection (3) or (4): Provided
that the responsible
Member may, on the recommendation of the board, declare certain games
of skill not to be gambling;’.
From this definition it
is clear that the essence of ‘gambling’ under the GGA is,
as under the NGA, the staking of a
consideration on an uncertain
future event.
[31] So also the aims
which the provincial legislation seeks to achieve, as spelled out in
the preamble to the GGA accord in substance
with those that inform
the interpretation of the NGA.
[32] There is an obvious
concurrence in reasoning between the two Acts as to when gambling can
properly be said to take place.
[33] Having determined
that gambling takes place when a player places a stake upon an
uncertain chance it becomes necessary to decide
whether and, if so,
at what point in the course of the operations described in para 20
that fulfilment is achieved. In my view
the key facts are those
contained in paras 2.19(a), 2.20 and 2.21 of the summary.
[34] According to these
facts the stake is irrevocably placed on the outcome of the player’s
chosen gambling game (and the
gamble is under way) at the moment that
he or she activates the ‘Spin’ button (or its
equivalent). The fact that any
or all of the actions described by
Prof Hazelhurst may occur in Swaziland after or as a consequence of
that activation is, it seems
to me, irrelevant to the central issue
as none of those actions changes the reality that the player at his
or her computer has
in South Africa committed himself or herself to
staking money on the chance. That takes place where the player is (in
South Africa)
and not in Swaziland.
[35] Such an
interpretation satisfies the aims of the statute: the prospective
player is ‘seduced’ in South Africa,
he or she takes and
activates the crucial decision to gamble here, he or she is
impoverished here; the internet casino intrudes
upon the field of
licensed operators here and it does so without payment of dues to the
State. The legislature is concerned with
substance, not form, and if
gambling takes place in South Africa it is of no consequence what
means are employed to facilitate
it and whether those means are
employed outside the country.
[36] Moreover the
appellant ‘makes’ such games ‘available’ to
prospective players in South Africa. The purpose
of the Act is to
control the effect of gambling on South Africans in South Africa
whatever the source of the temptation may be.
In so far as the
intention of the appellant is to use the internet casino to introduce
South Africans to the ‘delights’
of direct gambling from
their homes (or places of business) it places no strain upon the
ordinary meaning of the expression to
treat the placing and
maintenance on the web of an internet casino which is readily
accessible to such persons as acts of making
gambling available in
South Africa. The appellant’s advertising on its web-site
informs the interested viewer that
‘
In
just a few easy steps you can start playing all your favourite casino
games from the comfort of your own home’ and
‘
Imagine
being able to enjoy all your favourite slot machine games in your own
personal cozy abode where you can just relax and be
at home.’
Although these statements
no doubt contain some hyperbole, they also identify an essential
truth in what the appellant is doing:
the opportunity to gamble is
being offered to
the would-be player
wherever it finds him or her with a computer link to the internet,
which usually means in the home or office.
[37] It is now necessary
to consider an argument tentatively offered by Mr Ginsburg relating
to the interpretation of ‘gambling’,
‘gambling
activities’ and ‘gambling games’ in the NGA. As I
understood him, in so far as this case concerns
gambling through the
medium of the internet, the legislative intention is unformed (or at
least, inchoate) and cannot be construed
to proscribe such activities
(save to the limited extent of s 11). This is because Item 5 of the
Schedule to the Act expressly
provided for the establishment of a
committee to consider and report on national policy to regulate
interactive gambling within
the Republic and required the Minister,
within two years of the effective date of the Act (1 November 2004)
to introduce legislation
in Parliament to regulate such gambling.
Such legislation was introduced by the National Gambling Amendment
Act 10 of 2004 but
has yet to be put into operation.
[38] Given the broad and
undefined scope and effect of the transitional provisions, our
obligation is to interpret the body of the
statute as we find it,
particularly when it is, as I see it, unambiguous in its terms. We
cannot be diverted by the subsequent
caution (or hindsight) of the
legislature into watering down its plain meaning by reliance on
amending provisions that have not
been, and may never be, brought
into operation. Even then the scope for interpreting an earlier law
by reference to legislative
intention in a later statute (albeit an
amending one) is limited:
Clan Transport Co (Pvt) Ltd v Road
Services Board
1956 (4) SA 26
(SR) at 33H-34E;
Woodley v
Guardian Assurance Co of SA Ltd
1976 (1) SA 758
(W) at 764B-F. It
cannot be said (and counsel did not argue) that the amendment
‘proceeded on the assumed basis that the
earlier Act had a
particular meaning, and by so proceeding it tacitly interpreted the
earlier legislation’:
Clan Transport
at 34E.
[39] That the appellant
neither ‘engages in’ nor ‘makes available’
the gambling activities offered on its
casino website was maintained
by its counsel with no great enthusiasm, rightly so, as I see it. To
‘engage in’ means
to ‘participate in’ or ‘be
involved in’ any form of business (Concise OED 472). To ‘make
available’
means to ‘render accessible for use’ or
‘place at one’s disposal or within one’s reach’;
see
Reynolds Brothers Ltd v Chairman, Local Road Transportation
Board, Johannesburg and Another
1985 (2) SA 790
(A) at 802. The
‘engagement’ and the ‘making available’ both
take place wherever the participant finds
him- or herself, which, as
the introductory material on the website makes clear, is the
appellant’s stated intention.
[40] The conclusions at
which I have thus arrived have the effect that persons in South
Africa who gamble with the appellant as
well as the appellant in its
interactive participation contravene the provisions of ss 8 and 11 of
the NGA and ss 76 (2) of the
GGA. The consequence is that
advertisement of information concerning the activities of the
appellant’s casino is prohibited
by s 15 (1) of the
first-mentioned and s 71 (1) of the last-mentioned statute.
[41] The court a quo was
for these reasons correct in its dismissal of the action instituted
by the appellant. The parties have
agreed that no order for costs
should follow the result of this appeal.
[42] In consequence an
order is made that the appeal be dismissed.
________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANT: P Ginsburg SC
(with him E W Dunn SC and I Miltz SC)
Hack Stupel & Ross,
Pretoria
Lovius Block,
Bloemfontein
1
st
and 2
nd
RESPONDENTS: I A M Semenya SC (with him V Maleka SC and N
Nharmuravate)
Mdlulwa Nkuhlu Inc,
Sandton
Symington & De Kok,
Bloemfontein
3
rd
RESPONDENT: No appearance
1
Casino
Enterprises (Pty) Ltd (Swaziland) v Gauteng Gambling Board and
Others
2010 (6) SA 38
(GNP).
2
This
Court has so held in relation to the GGA:
Casino Enterprises
(Pty) Ltd (Swaziland) v The Gauteng Gambling Board
(91/07)
[2008] ZASCA 31
(28 March 2008) at para 16.
3
Online
Lottery Services (Pty) Ltd and Others v National Lotteries Board and
Others
2010 (5) SA 349
(SCA) at 357C.