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[2021] ZASCA 86
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Deeps Betting Grounds (Pty) Ltd v Desert Palace Hotel Resort (Pty) Ltd and Another (142/2020) [2021] ZASCA 86 (21 June 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 142/2020
In
the matter between:
DEEPS
BETTING GROUNDS (PTY) LTD
APPELLANT
and
DESERT PALACE
HOTEL RESORT (PTY) LTD FIRST
RESPONDENT
THE
NORTHERN CAPE GAMBLING BOARD
SECOND
RESPONDENT
Neutral
citation:
Deeps
Betting Grounds (Pty) Ltd v Desert Palace Hotel Resort (Pty) Ltd and
Another
(142/2020)
[2021] ZASCA 86
(21 June 2021)
Coram:
PETSE AP and MOCUMIE
and DLODLO JJA and LEDWABA and CARELSE AJJA
Heard:
9 March 2021
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 21 June 2021.
Summary:
Civil procedure –
Superior
Courts Act 10 of 2013
– petition to appeal to the Supreme Court
of Appeal not filed –
leave
to appeal dismissed – Conduct in contravention of
sections 78
,
79
and
80
of
Northern
Cape Gambling Act No 3 of 2008 –no valid gambling licence
issued
to
conduct bookmaker’s activities on premises.
ORDER
On
appeal from:
Northern
Cape Division of the High Court, Kimberly (Sieberhagen AJ sitting as
court of first instance):
1
The
application for leave to appeal against the order of Dauds AJ dated
13 December 2019 is dismissed with costs.
2
The
appeal against the order granted by Sieberhagen AJ is likewise
dismissed with costs.
JUDGMENT
Ledwaba
AJA (Petse AP, Mocumie and Dlodlo JJA and Carelse AJA concurring):
Introduction
[1]
This
appeal concerns the order of Sieberhagen AJ, sitting in the
Northern
Cape Division of the High Court, Kimberley (the high court), granted
in favour of the
first respondent, Desert Palace Hotel Resort (Pty) Ltd (Desert
Palace) in the main application in terms of which
the appellant,
Deeps Betting Grounds (Pty) Ltd (Deeps Betting), was interdicted from
operating any gambling activities on Erf 7195,
Upington, known as 23
Scott Street, Upington (the premises) unless a valid gambling licence
authorising gambling activities at
the premises is issued by the
second respondent, The Northern Cape Gambling Board (Gambling Board).
Deeps Betting applied for leave
to appeal against this order which
the high court granted to this Court on 31 January 2020.
[2]
Deeps
Betting opposed the main application and filed a conditional
counter-application in which it sought to hold the Gambling Board’s
Chief Executive Officer liable for contempt of court and also an
order compelling the Gambling Board to issue Deeps Betting with
a
gambling licence for the premises, in the event the main application
succeeded. Desert Palace and the Gambling Board opposed
the relief
sought by Deeps Betting in the counter-application.
[3]
After
the main application was heard on 30 August 2019, the high court made
the following order:
‘
1.
The first respondent is
interdicted from maintaining or operating the premises situated
at
Erf 7195, Upington, known as 23 Scott Street, Upington (“23
Scott Street”) for the purpose of any gambling activity
in or
on 23 Scott Street is granted to it by the Second Respondent.
2.
The first respondent is
interdicted from permitting the said 23 Scott Street premises
to be
used for the purposes of any gambling activity other than an informal
bet, including but not limited to bookmaking, unless
a valid gambling
licence that authorises that gambling activity in or on 23 Scott
Street is granted to them by the second respondent.
3.
The first respondent is
interdicted from permitting any individual in or on the said
23 Scott
Street premises to engage in any gambling activity other than an
informal bet, including but not limited to bookmaking,
unless a valid
gambling licence that authorises that gambling activity in or on 23
Scott Street is granted to them by the second
respondent.
4.
The first respondent is to
pay the costs of the application.
5.
The parties are directed
to approach the registrar to obtain a date for adjudication
of the
first respondent’s counterclaim under case number 1698/2019.’
[4]
The
counter-application was heard by Dauds AJ on 1 November 2019. He
subsequently dismissed it and refused to grant Deeps Betting
leave to
appeal against the dismissal of its counter-application. Deeps
Betting’s counsel in his heads of argument relating
to the
appeal sought leave of this Court to hear the appeal in respect of
the main application together with the 'appeal' against
the order of
Dauds AJ in the counter-application. I have put the word 'appeal' in
inverted commas for reasons that will become
apparent later.
Background
facts
[5]
The
following factual background is common cause and important for the
proper understanding of this appeal. In 2017 Deeps Betting
filed
three applications against the Gambling Board relating to a gambling
licence issued to Deeps Betting in respect of Erf 4965
in Upington.
There was also a dispute regarding whether due process was followed
when the licence was issued.
[6]
In the
said applications Deeps Betting sought an order to amend the erf
number on the licence to read Erf 7195, Upington, 23 Scott
Street. It
is not necessary for the adjudications of this appeal to deal in
detail with the said applications. In the urgent application
filed on
15 December 2017, Deeps Betting sought a declaratory order that the
Gambling Board should grant a licence to it to conduct
bookmaker’s
activities on the premises.
[7]
On 9
March 2018 Stanton AJ dismissed the urgent application and later
granted Deeps Betting leave to appeal to this Court. On 9
March 2019,
shortly before the appeal against the order of Stanton AJ was heard,
Deeps Betting and the Gambling Board reached a
settlement and their
Deed of Settlement, signed on 27 February 2019, was made an order of
court on 4 March 2019 by this Court.
[1]
[8]
In the
Deed of Settlement the parties, inter alia, agreed that:
‘
2.1
[W]ithin 30 (thirty) days after the signing of this Agreement, the
Gambling Board shall grant
to Deeps Betting permission to conduct its
bookmaker’s activities at the property known as Erf 7195, also
known as 23 Scott
Street, Upington, situated in the //Khara Hais
Municipality, Division Gordonia, Northern Cape Province.
2.2
In lieu Deeps Betting will immediately – upon the signature of
this document –
withdraw its appeal and inform the Registrar of
the Supreme Court of Appeal without delay of the Settlement.’
It
is clear that in terms of the Deed of Settlement the Gambling Board
was required to grant Deeps Betting permission to conduct
bookmaker’s
activities at the premises before the end of March 2019.
[9]
In
February 2018, before the judgment in Deeps Betting's urgent
application was delivered, Desert Palace became aware that the
premises was to be rezoned and utilised for gambling activities.
Consequently, on 23 February 2018, it wrote to the Dawid Kruiper
Municipality (the municipality) to object to the proposed rezoning.
On 28 February 2018, the municipality responded taking note
of Desert
Palace’s objection and informed the latter that the rezoning
application had been granted. In July 2019 Desert
Palace was informed
that the renovations on the premises were at an advanced stage and
shop fittings were installed at the premises.
Desert Palace made
enquiries and addressed a letter to Deeps Betting and the Gambling
Board, but did not receive a satisfactory
response. It then filed an
urgent application, the main application, in the high court against
Deeps Betting and the Gambling Board
was cited as the second
respondent. Deeps Betting opposed the main application and, as
already mentioned, filed a conditional counter-application.
[10]
The
Gambling Board filed a notice to abide the decision in the main
application, but opposed the relief sought by Deeps Betting
in the
counter-application. In the counter-application before Dauds AJ,
Deeps Betting sought an order in the following terms:
‘
The
2
nd
Respondent (Northern Cape Gambling Board) be ordered to immediately
comply with the order of the Supreme Court of Appeal dated
04 March
2019 and paragraph 2.1 thereof [the SCA order] and grant to the
Applicant [the 1
st
Respondent herein, namely, Deeps Betting Grounds (Pty) Ltd] any
licence needed to conduct its bookmaker’s activities at the
property known as Erf 7195, also known as 23 Scott Street, Upington,
situated in the //Khara Hais Municipality, division Gordonia,
Northern Cape Province.’
The
counter-application was dismissed with costs and the application for
leave to appeal suffered a similar fate.
Application
for leave to appeal
[11]
Since
Deeps Betting’s counsel in his heads of argument applied that
this Court should also hear the 'appeal' in respect of
the order of
Dauds AJ in the counter-application, this Court dealt first with
Deeps Betting’s application for leave to appeal
against the
order of Dauds AJ in respect of the dismissal of its
counter-application. Counsel invoked
Safatsa
[2]
to argue that the appellant has a right to ask this Court to allow
him to bring such an application at this very late stage.
[3]
The application was strongly opposed by Desert Palace and the
Gambling Board. The Gambling Board in its heads of argument submitted
that this Court did not have jurisdiction to hear the 'appeal'
against the judgment of Dauds AJ and that Deeps Betting should have,
within one month of the refusal of its application for leave to
appeal, first sought leave in terms of s 17(2)
(b)
the
Superior Courts Act
[4
]
to appeal
against the judgment of Dauds AJ which it admittedly failed to do.
[12]
Deeps
Betting’s application based on
Safatsa
is devoid of merit. It is generally accepted that an appeal should be
restricted to specified grounds of appeal. In
Safatsa
this Court dealt with a ground not covered by the terms of the leave
granted by the trial court and emphasised that the appellant
had no
right to argue the appeal on grounds not covered in the notice of
appeal. Nevertheless, the court accepted that an appellant
may apply
to an appellate court to enlarge the ambit of the appeal.
Importantly, the court further clarified that this special
dispensation does not, for example, cover a situation where leave has
been granted to appeal against sentence only and the appellant
then
seeks to appeal against the conviction as well.
[13]
In
Harlech-Jones
Treasure Architects CC v University of Fort Hare
[5]
,
a case where a similar argument to that raised by Deeps Betting was
advanced, the court said:
‘
It
is, however, important to note the following:
(1)
In terms of
s 29(4)
(b)
, where the Court of a Provincial or
Local Division has refused leave to appeal against its judgment or
order, it is the
Supreme Court of Appeal
that must be
approached for such leave (ie in terms of
s 21(2)
and (3), by way of
application in the form of a petition addressed to the Chief Justice,
to be considered by Judges designated
by the Chief Justice). There is
no provision in the Act for a Full Court of a Provincial Division to
grant leave to appeal (save,
impliedly, where it sits as a Court of
first instance).
(2)
In excluding the grounds of appeal referred to in paras [41] and [43]
above, Jones J to that extent refused leave to appeal.’
(Emphasis added.)
[6]
[14]
The
matter before us is distinguishable from what obtained in
Safatsa
,
where additional grounds of appeal were entertained. In this case,
Desert Palace does not seek to augment its grounds of appeal
against
the judgment of Sieberhagen AJ. What it seeks to do is to piggyback
on this appeal in an attempt to bring its application
for leave to
appeal against the order of Dauds AJ in circumstances where not even
the slightest attempt has been made to explain
the inordinate delay
in doing so.
[15]
Desert
Palace applies to this Court to hear the appeal against the judgment
of another Judge where leave to appeal was refused.
In terms of the
Superior Court Act, Deeps Betting should first have petitioned this
Court. Deeps Betting not only failed to do
so but also failed to
proffer a satisfactory explanation supported by cogent reasons as to
why the petition was not filed. Instead,
it was content to raise the
issue for the first time in its heads of argument. As a result, the
belated application for leave to
appeal, if it is such, should fail.
Appeal
on merits of the main application
[16]
Deeps
Betting’s main argument for challenging the order of
Sieberhagen AJ, is that in terms of this Court's judgment (referred
to in paragraph 7 above) in terms of which the settlement agreement
was made an order of court, it has extant rights and its conduct
in
opening its gambling business at the premises was not unlawful.
[17]
Despite
the fact that the Deed of Settlement had indeed been made an order of
court, the Gambling Board did not actually issue Deeps
Betting with a
licence in compliance with that order. The Deed of Settlement
explicitly states that within 30 (thirty) days after
signature, the
Gambling Board shall grant Deeps Betting permission to conduct its
bookmaker’s activities at the premises.
It is common cause
between the parties that Deeps Betting has to date not been issued
with the requisite licence by the Gambling
Board. On the contrary,
the Gambling Board stated in its papers that it will not issue Deeps
Betting with the requisite licence
for the premises apparently on the
ground that doing so would contravene the law.
[18]
It is
interesting that Deeps Betting has not filed an application for
contempt of court against the Gambling Board in respect of
its
failure to grant it permission or to issue it with the licence.
Sections 78, 79 and 80 of the Northern Cape Gambling Act
[7]
(the Act) state that it is unlawful to engage in gambling activities,
possess gambling machine devices and to operate on any premises
for
purposes of gambling activities without a licence.
[19]
The
premises is situated within 500 metres of Upington High School.
Regulation 7(
c
)
of the Northern Cape Gambling Regulations
[8]
(the Regulations) reads as follows:
‘
7. Location of gambling and betting premises.The Board may not issue a licence to an applicant if the
premises from which the licensed activities will take place, are, in the opinion of the Board
–
.
.
(c)
on or in premises which are within 500 m of a school or a place of worship.’
On
a simple reading of this regulation, the location of the premises
offends against reg 7(
c
) of the Regulations.
[20]
The
order of Sieberhagen AJ interdicts Deeps Betting from conducting
gambling activities unless a valid gambling licence has been
issued,
authorising gambling activities on the premises. Such a licence has
not been issued. In terms of the clear provision of
ss 78, 79 and 80
of the Act read with reg 7(c) of the Regulations, Deeps Betting would
be acting unlawfully if it conducts business
at the premises without
a licence. Thus its reliance on this Court's order referred to in
paragraph 17 above is misplaced. The
order itself contemplates that
Deeps Betting should be issued with a licence by the relevant
Gambling Board before it can lawfully
engage in gambling activities.
[21]
I
therefore make the following order:
1
The application for leave to appeal against the order of Dauds AJ
dated 13 December
2019 is dismissed with costs.
2
The appeal against the order granted by Sieberhagen AJ is likewise
dismissed with costs.
A P LEDWABA
ACTING
JUDGE OF APPEAL
APPEARANCES
For
the Appellant:
S Grobler SC
Instructed
by:
Van
de Wall Inc, Kimberley
Honey
Attorneys, Bloemfontein
For
the First Respondent:
E Grobbelaar
Instructed
by:
Morkel
De Villiers, c/o Engelsman Magabane, Kimberley
Symington
& De Kok, Bloemfontein
For
the Second Respondent:
G Ngcangisa
Instructed
by:
The
State Attorney, Kimberley
The
State Attorney, Bloemfontein
[1]
See:
Deeps
Betting Grounds (Pty) Ltd v The Northern Cape Gambling Board
Case no: 492/18 (SCA).
[2]
S v Safatsa and Others
1998
(1) SA 868 (A).
[3]
The
application was moved from the Bar and unsurprisingly counsel was
hard-pressed to enlighten us as to why this woefully belated
application was not timeously brought in the ordinary way.
[4]
Superior
Courts Act 10 of 2013
.
[5]
Harlech-Jones Treasure
Architects CC v University of Fort Hare
2002 (5) SA 32 (E).
[6]
Para 51.
[7]
Northern Cape
Gambling Act No 3 of 2008.
[8]
‘
Northern
Cape Gambling Regulations GN 5,
Provincial
GN
1290, 18 March 2009.’