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[2019] ZANCHC 38
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Desert Palace Hotel Resort (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd and Another (1698/2019) [2019] ZANCHC 38 (30 August 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
1698/2019
Datum verhoor: / Date heard:
23/08/2019
Datum gelewer: / Date delivered:
30/08/2019
In
the matter between:
DESERT
PALACE HOTEL RESORT (PTY) LTD
Applicant
and
DEEPS
BETTING GROUNDS (PTY) LTD
T/
A SCOREBET
First Respondent
THE
NORTHERN CAPE GAMBLING
BOARD
Second
Respondent
Coram:
Sieberhagen, AJ
JUDGMENT
SIEBERHAGEN,
Aj
Introduction
[1]
The Applicant lodged an urgent application seeking an order that:
"2.
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 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 it by the
Second Respondent.
3.
First
Respondent is interdicted from permitting the said 23 Scott Street
premises to be used for the purpose 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.
4.
First
Respondent is interdicted from permitting
any individual in or on the said 23 Scott Street
premises to engage in any gambling
activity other then 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;
5.
First
Respondent is ordered to pay the costs of the
application."
[2]
The First Respondent opposes the application and also filed a
counter application
in which the First Respondent seeks an order
that the Second Respondent be compelled to comply with the order of
the Supreme Court
of Appeal as set out hereunder. The Second
Respondent opposes the relief claimed in the First Respondent's
counter-application.
From a practical point of view, the parties
agreed that only the Applicant's application would be argued in front
me because the
First Respondent's counter-application would be
dependent on the order granted in respect of the Applicant's
application
and therefore this judgment only deals with the
Applicant's application and the relief sought against the First
Respondent.
[3]
At the commencement of the proceedings, I requested the legal
representatives
of the Applicant and First Respondent
to address me on the issue of urgency and
found
that the matter was urgent.
Factual
Background
[4]
The Applicant was granted a casino operator gambling licence by the
Second Respondent.
The Applicant's
licence specifies the premises from which the
Applicant is permitted
to operate as Erf No. 1, Golf
Course Road, Upington.
[5]
According
to the Applicant, at the time of the application for the gambling
licence the
Second Respondent had insisted that the location of the
premises on which the Applicant was going to be entitled to operate
its
gambling activities be not closer than 5 kilometres from the
Upington main road.
[6]
During
February 2018 it came to the attention of the Applicant that a
portion of
Erf 7195 also known as 23 Scott Street, Upington
(hereinafter referred to as "23 Scott Street") had been
rezoned to accommodate
a gambling premises. The Applicant's attorney
queried this and objected to the rezoning at the Dawid Kruiper
Municipality. They
were informed that two objections were received
but that the rezoning was granted subject to specifications as
requested by the
objectors and subject to the requirements of the
Second Respondent.
[7]
At that time, the Applicant was unable to
establish if
an application had been made to the
Second Respondent for a gambling licence at 23 Scott Street. When the
Applicant enquired
at the Second Respondent, Applicant was informed
that that the Second Respondent had
taken the decision
not to allow the First Respondent to operate a
gambling establishment at 23 Scott Street as they were in
contravention of the Northern
Cape Gambling Regulations, Regulation
7(c) and the First Respondent was advised to seek alternative
premises. Regulation 7(c) 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 licence 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.
"
[8]
The
Applicant was satisfied that no gambling licence would be
granted to the
First Respondent in respect of 23 Scott Street
and instructed a professional land surveyor to measure the distances
between both
23 Scott Street and Upington High School and Op die
Voorpos Primary School. According to the land surveyor, the
entrance
of 23 Scott Street is situated 265 meters
from Upington High School and situated 418 meters from Op die
Voorpos
Primary School.
Issues
[9]
It
is the Applicant's case that on 10 July 2019 it had
received information
that the First Respondent was
busy shopfitting the premises at 23 Scott Street as
a gambling
premises. The deponent to the Applicant's
founding papers visited the premises on 12 July 2019 and
could see
such shopfitting taking place. The Applicant
was not aware of the publishing of a gambling licence and therefore
made
enquiries at the Second Respondent through its attorneys on 16
July 2019, 17 July 2019, 22 July 2019, 23 July 2019, 25 July
2019 and 26 July 2019 without any success.
[10]
A local attorney's services was obtained and she attended at
the office of the Second
Respondent in Kimberley on 30 July
2019 and established that no gambling licence was granted for
23 Scott Street.
Paragraph 4 of the letter from the local attorney to
the Applicant's attorney reads as follows:
"Needless to say, after
finally being able to discuss the matter with Advocate Heidi Dipico
in her capacity as Acting CEO,
who accepted our application in terms
of PAIA, (a copy of which is attached), it was confirmed by Ms Dipio
that no licence was
granted for said premises (see
the attached e-mail dated 23 July
2019)
confirming same, thus no advertisement was placed
to their knowledge, with respect to your enquiry regarding the Deed
of
Settlement in the Supreme Court, as signed by their attorney and
which you enquired as to whether same was authorized by the Board,
it
is our understanding that they did not consent to same per Regulation
7."
[11]
Subsequent thereto the Applicant's attorney addressed a letter
to the First Respondent on 30
July 2019 requesting an undertaking
by 2 August 2019 that the First Respondent will not open
a gambling
operation at 23 Scott Street, because they
were not issued with a gambling licence for the said premises, and
failing which, the
Applicant would approach the Court on an urgent
basis interdicting the First Respondent from conducting
unlawful
gambling operations.
[12]
In response thereto, the Applicant recieved a letter from the First
Respondent's attorney on 31 July
2019, in which
inter alia
the
following were stated:
"2. Secondly,
the Board has obviously not provided your
client with
all the relevant facts. There is a very long
history to our client ultimately opening its bookmaker business this
coming
Friday. Our client is the holder of a
bookmakers licence to operate such a business
in the
area.
We suggest that you or your
client contact the Gambling Board and ask for a
thorough brief on the history
of their dispute
with our client relating to the premises. This we
suggest especially since
your client has apparently and
already decided to proceed to court with an
interdict. We suggest
you do this because
not only will such an application be opposed, but also because your
application will be absent
such facts based upon
-
with respect
-
an
incorrect and rather naive grasp understanding of our client's
rights.
As far as our client is
concerned their opening this coming Friday has got nothing to do with
your client, especially since the
past litigation did not
involve it. ... "
[13]
The
Applicant brought this application on 5 August
2019, stating that
the First Respondent
does not have a gambling licence
for 23 Scott
Street and that if the First Respondent intends to
go ahead with its unlawful conduct, it would constitute an
irremediable breach
of the clear rights of the Applicant. The
Applicant had no other satisfactory remedy to prevent the breach
because, although
the First Respondent's conduct amounted
to a criminal offence, the South African Police Service does not have
the power
to close the First Respondent's proposed illegal activities
and only a criminal investigation could be applied for, which would
take a substantial time to conclude.
[14]
In opposition to the Applicant's application, the First Respondent
states that the Second Respondent
asserted that Regulation 7(c)
of the Northern Cape Gambling Regulations prohibits the conducting of
bookmaking activities
from 23 Scott Street because it is located
directly opposite Upington High School.
[15]
The First Respondent had a different interpretation of what the true
import of the Regulation meant
and therefore launched proceedings
against the Second Respondent under case number 3018/2017 in this
Court to compel the Second
Respondent to provide the First Respondent
with the necessary authorisations, including a gambling licence, to
conduct bookmaker
activities at 23 Scott Street. The First
Respondent's application was dismissed, but the Court
a
quo
granted leave to appeal to the
Supreme Court of Appeal.
[16]
Shortly before the scheduled hearing in the Supreme Court of
Appeal, the First and Second
Respondents settled the matter.
The Deed of Settlement was made an order of the Supreme Court of
Appeal on 4 March 2019.
The Court order reads as
follows:
"Having read the record of
the proceedings in the said Court on an appeal from the
judgment of the Northern Cape
Division of the High
Court of South Africa, Kimberley, delivered
on 09 MARCH
2018 (Case number 3018/2017) and having read the
Deed of Settlement filed by the parties THEREAFTER, on this day, the
following
order is made:
The Deed of
Settlement attached hereto, marked annexure
11A"
is made an order of court."
[17]
Paragraphs 2 and 2.1 of the Deed of Settlement contains the following
clauses:
"2.
In full and final settlement of
all claims the parties have against each other and concerning
the subject matter
of appeal referred to above:
2.1
within 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.
[18]
It is the First Respondent's case that as a result of the
court order of
the Supreme Court of Appeal, the First
Respondent cannot have any stronger right to operate its bookmaking
activities from the
premises, because by sanctioning the Settlement
Agreement the five Justices of Appeal must have acquainted themselves
with the
merits of the application before making the order of court
and making sure of the legality of not only its content
but also its effect.
[19]
The First Respondent denies the Applicant's arguments
that the gambling activities
and the bookmaking
activities at 23 Scott Street are
unlawful. According to the First Respondent,
the Second
Respondent is in contempt of the Supreme Court of Appeal's order, the
court order stands and because
the order has
not been overturned, the licence simply must be
issued.
[20]
As a result of the Second Respondent's contempt of
the court order
and the fact that the First
Respondent was suffering significant financial
losses, the First
Respondent informed the Second Respondent that it
would be opening its doors at 23 Scott Street
on
Friday 2 August 2019. The First
Respondent was advised to litigate
further
with the Second Respondent should it wish to aver
that such activities are unlawful.
[21]
The First Respondent states that the Supreme Court of Appeal's order
operates against the whole
world to the
extent that it provides rights to the First
Respondent. According to the
First Respondent
it is entirely because of the Second Respondent's
refusal to comply
with the court order that the
physical gambling licence has not been issued, but that that does not
mean that the bookmaking activities
of the First Respondent are
unlawful.
[22]
In addition thereto, the First Respondent
avers that "Deeps Betting"
is a sport betting
facility and will not impact upon the
Applicant's operations unless it also
operates such an
activity, but even then there is no basis for the
complaint.
Arguments
of behalf of the parties
[23]
It was submitted on behalf of the Applicant, that the
Applicant is
entitled to an interdict because the
Applicant has a clear right and because the First
Respondent is not
entitled to act unlawfully,
without a gambling licence in competition
with Applicant's
gambling operations.
[24]
In substantiation of the Applicant's clear right, it was argued that
the Supreme Court of Appeal
merely rubberstamped the Deed of
Settlement by making the court order without proper consideration
of the merits
of the matter and without giving
reasons for the Court order approving the
settlement
agreement, which sets aside the trial court's judgment.
According to the Applicant, the judgment of
the
Court a
quo
under
case number 3018/2017 is a judgment in
rem
and accordingly the Supreme Court of
Appeal could not have set aside the judgment by only a
settlement agreement
between the litigating
parties on appeal
[1]
.
[25]
It was also argued that the Applicant has proved an injury actually
committed or reasonably apprehended
as stated in paragraphs 13 and
14 of the Applicant's founding affidavit which
reads as follows:
"13.
Any unlawful gambling in the Northern Cape Province,
especially in the Upington
area infringes upon Applicant's
abovementioned rights as a lawful licenced gambling operator, it also
amounts to unlawful competition
with Applicant's gambling
activities, irrespective of what form the illegal
gambling activities take.
14.
It is much more convenient for gamblers to gamble at premises in the
town of Upington than
having to travel more than 5
kilometers to Applicant's premises outside Upington. It is therefore
paramount interest
to Applicant that only lawful gambling is
permitted in Upington itself."
.
[26]
Lastly it was submitted that there is the absence
of similar protection
by any other ordinary remedy as a result
of the fact that neither the South African Police Service
nor the Second Respondent
have the authority to grant
the relief claimed in this application.
[27]
Counsel on behalf of the First Respondent submitted that the First
Respondent's conduct is not unlawful
because the order of
the Supreme Court of Appeal affords rights to the First
Respondent and until
such time as the Supreme Court of
Appeal's order is overturned, the First Respondent's
activities are not
unlawful.
[28]
It was submitted that the Applicant had failed to prove that it
suffers harm as a result
of the First Respondent's conduct and
merely made generic statements to that effect. The Applicant
should have
approached the Second Respondent, who could
have taken further steps against the First Respondent and
therefore the
Applicant also failed to satisfy the Court that
there is an absence of similar protection by any
other
ordinary remedy.
[29]
With regard to the Applicant's submission in respect of the Court a
quo's
judgment
in rem,
it
was submitted on behalf of the First Respondent, that the judgment
under case number 3018/2017 did not pronounce upon either
party's
interpretation of Regulation 7(c) and therefore it cannot be
suggested that the judgment was a judgment
in
rem.
Applicable
Law and application of Law to the facts
[30]
The requirements
[2]
for the right to claim a final interdict are:
30.1 a clear right;
30.2 an injury
actually committed or reasonably apprehended; and
30.3 the absence
of similar protection by any other ordinary remedy.
[31]
Although both counsel furnished supplementary arguments in respect of
the question as to whether
the judgment of the Court
a
quo
under case number 3018/2017 must
be considered a judgment
in rem
or
not, I will not be dealing with this dispute between the
parties, because this Court is not tasked with determining
whether the Supreme Court of Appeal could have made the Deed of
Settlement an order of Court. This is an
issue that should be dealt with
by the parties in the Supreme Court
of Appeal.
[32]
In determining whether the First Respondent was acting unlawfully as
alleged by the Applicant, I
need to refer to sections 21(1), section
36(1), section 40, section 50 and section 80(1)(a) of the
Northern Cape Gambling
Act
[3]
which reads as follows:
“
21.(1)
The Board may, in writing under this Act grant
-
………
.
(h) a bookmaker licence;
and...." A
"36.(1)
license must specify
-
(a)
the
identity of the licensee;
(b)
the
activities that the license premits the licensee to engage in,
conduct or make available to the public; and
(c)
the
premises at, in or from which the licensee is permitted to
operate.
"
“
40.
(1) A license holder, an
employee of the license holder or a person acting on behalf of the
license
holder must, on demand by an inspector or
a police officer, produce the license or
certificate
concerned.
(2) A
lisense holder must at all times prominently display a license
issued in terms of this Act on
the licensed premises."
"50.
A bookmaker
license is required by any
person who directly or
indirectly lays fixed-odds bets or
open bets with members of the public or other bookmakers, or takes
such bets with other bookmakers."
"Unlicensed
used of premises unlawful
80.(1)
No person may
-
(a)
maintain or operate any premises for
the purposes of a restricted gambling activity, unless that gambling
activity in, on or from
those premises has been authorized in terms
of a license under this Act or the National Gambling Act."
[33]
Having regard to the abovementioned sections of the Northern Cape
Gambling Act, I cannot agree with
the First Respondent's argument
that as a result of the order of the Supreme Court of Appeal, the
bookmaking activities of the
First Respondent are lawful.
[34]
In the matter of
Desert Palace Resort
(Pty) Ltd v Northern Cape Gambling Board
[4]
the following were stated:
“
[11]
The Act does not define what a
11licence" is but
merely states
that it means a licence "issued" in terms of section 26.
Section 26(1) makes provision for
eleven kinds of licences.
Section 26(2) requires of any licence that it be in writing.
Critically a licence holder
has a duty to display the licence on the
licensed premises (section 45) and on demand to produce the "licence
or certificate
concerned" (section 46). Self-evidently this
would not be possible without a licence holder being physically
in possession
of a document capable of being displayed or produced.
[12]
The licence we are concerned with, as
mentioned earlier, is a "casino operator licence". It is
defined as "any licence
issued in terms of section 48".
Section 48 requires of such licences that they "be issued' that
they are
"link(ed) to the premises
specified in the licence" and that they "authorise
...
the playing in or on the
premises or such parts of the premises as are specified in the
licence.
. . ".
[13]
So,
unless
the “issued” licence
describes the "premises" from
where the casino is to operate, it
will not comply with section 48. In my view the preceding
paragraphs provide strong indications that the Legislature intended a
"holder of a licence" as contemplated in section
81 of the
Act to be capable of physically possessing a valid licence in the
form of a document issued to it by the Board. Not only
that, but its
contents must display the authority granted to the casino
operator........
[15]
................
It follows
that for a casino operator to be a "holder
of a licence" the Board
must not only have approved
its application for a licence, but also
have physically issued
a document to it."
[35]
It is not in dispute that the First Respondent does not have a
gambling licence (an issued document)
and therefore is currently
acting in contravention of section 80(1)(a) of the
Northern Cape Gambling Act. I also cannot
accept the submission made
in First Respondent's supplementary note indicating that the Court a
quo
[5]
had found in paragraph 31 of the judgment that the First Respondent
was a holder of a licence and therefore allowed to conduct
such
activities in Upington. Paragraph 31 of the judgment reads as
follows:
"In essence, Deeps Bettig
is requesting that a letter from the Gambling Board to
Deeps Betting, dated 13 February
2018, is admitted into
evidence. Paragraph 2 of the letter reads as follows:
"We hereby wish to
inform you that your application for
annual renewal of your Bookmaker
licence for the following towns
Kimberley, Postmasburg, Upington, Colesburg, De Aar, Kuruman,
Springbok were approved by
the Board."
[36]
In paragraph 36 of the judgment, the Court a
quo
specifically stated that she was not
persuaded that the letter dated 13 February 2018 bolters the First
Respondent's application.
In her view the letter constituted a
renewal of the temporary licences and cannot be considered an
approval in respect of Erf 7195,
or an authorisation to conduct
gambling activities on Erf 7195.
[37]
The order of the Supreme Court of Appeal remains in force until set
aside. The settlement agreement
stipulates that the Second Respondent
must within thirty days after the signing of this
agreement, grant to the First
Respondent permission to conduct its
bookmakers' activities at the property known as Scott Street
23, failing
which the First Respondent
would be entitled to approach a Court for the
enforcement
of the order through
contempt proceedings.
[6]
[38]
Nothing prevented the First Respondent from proceeding with contempt
proceedings against the Second
Respondent, but instead the First
Respondent was advised to continue with their gambling activities
without a gambling licence
and to only litigate with the Second
Respondent should the Second Respondent wish to assert that such
activities would be unlawful.
If First Respondent's conduct is lawful
as alleged by the First Respondent, it is unclear why the First
Respondent launched an
urgent counter-application against the Second
Respondent as soon as they were in receipt of the Applicant's
application.
[39]
In respect of the Applicant's averments that the First Respondent's
conduct infringes upon Applicant's
rights as a lawful licenced
gambling operator and therefore amounts to unlawful competition with
the Applicant's gambling activities,
the First Respondent does
not deny that the Applicant is prejudiced by the First
Respondent's conduct.
In paragraph 5 of the First Respondent's
answering affidavit, the following were
stated:
"It is an abuse, motivated
by the obvious intention to protect for Desert Palace a
monopoly. The court should not be
fooled by the terms of the Notice
of Motion, and a facade argument that Deeps Betting will be allowed
to conduct business in the
event of it doing
so
lawfully. That is
not the aim. It wants to close Deeps Betting business down urgently
because of the financial detriment it will
(lawfully) suffer.
There is, firstly, no urgency to the application."
[40]
In addition thereto, the First Respondent did not respond to the
Applicant's founding papers where
it was stated that the Applicant
has no other satisfactory remedy, but merely argued that the
Applicant could have filed
a complaint at the Second Respondent. It
is however not in dispute, that neither the South African Police
Service, nor the Second
Respondent can make any order interdicting
the First Respondent from continuing with its bookmaking activities
at 23 Scott Street.
[41]
As a result of the abovementioned, I am satisfied that the
Applicant has met the requirements
for a final interdict. This
interdict would however not have a final effect on the gambling
activities of the First Respondent
because the interdict will only be
enforceable until a valid gambling licence authorising gambling
activity in or on 23 Scott Street
is granted by the Second Respondent
to the First Respondent.
[42]
In addition thereto, I need to emphasize
that the Court
cannot condone the First
Respondent's conduct of operating bookmaking activities without a
licence (a physically issued document),
because as enforcer of the
law it goes against the conviction of
the community and public
policy
[7]
.
[43]
No reasons were advanced why the costs should not follow the event
and I can find no reason to differ
from the general principles in
this regard.
I make the following order:
1.
AN
ORDER IS GRANTED IN TERMS OF PRAYERS 2, 3, 4 AND 5 OF THE
APPLICANT'S NOTICE OF MOTION DATED 5
AUGUST 2019;
2.
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.
AS
SIEBERHAGEN
ACTING
JUDGE
Obo
the Applicant:
Adv. E.S. Grobbelaer (oio
Engelsman Magabane Inc)
Obo
the 1
st
Respondent:
Adv. S. Grabler SC (oio Van
De Waff Inc)
Obo
the 1
st
Respondent:
Adv Ngcangisa (oio State
Attorney)
[1]
Airports Company South Africa v Big Duty Free (Pty) Ltd and others
[2018] ZACC 33a
[2]
Setlogelo v Setlogelo
1914 AD 22l
at 227
[3]
Act 3 of 2008
[4]
[2007] 3 All SA 573
(SCA) at page 577 and .579
[5]
Case number 3018/2017 - delivered on 9 March 2018
[6]
Eke v Parsons (CCT214/14)
[2015] ZACC 30
;
2015 (11) BCLR 1319
(CC);
2016 (3) SA 37
(CC) (29 September 2015)
[7]
Liebenberg v Frater NO and Others, Drakenstein Municipality v Frater
NO and Others (6214/2010, 19763/2010)
[2010] ZAWCHC 203
(23
September 2010) -par 15.