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[2019] ZAKZPHC 44
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Premier of KwaZulu-Natal and Others v KwaZulu-Natal Gaming and Betting Board and Others (1366/2015) [2019] ZAKZPHC 44; [2019] 3 All SA 916 (KZP) (4 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION: PIETERMARITZBURG
CASE
NO: 1366/2015
In
the matter between:
THE
PREMIER OF KWAZULU-NATAL
FIRST APPLICANT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE PROVINCE OF KWAZULU-NATAL
SECOND APPLICANT
FOR
FINANCE
AFRISUN
KZN (PTY) LIMITED t/a SIBAYA
CASINO
& ENTERTAINMENT KINGDOM
THIRD APPLICANT
THE
PEOPLES FORUM AGAINST ELECTRONIC
BINGO
TERMINALS
Applicant
for Intervention
FOURTH APPLICANT
PEERMONT
GLOBAL (KZN) (PTY) LIMITED
Applicant
for
Intervention
FIFTH
APPLICANT
and
THE
KWAZULU-NATAL GAMING AND
BETTING
BOARD
FIRST RESPONDENT
SIBUSISWE
NKOSINOMUSA ZULU
SECOND RESPONDENT
PEARL
DAWN ARNOLD-MFUSI
THIRD RESPONDENT
ASHWIN
HIRJEE TRIKAMJEE
FOURTH RESPONDENT
ISOBEL
ELIZE KONYN
FIFTH RESPONDENT
THOKOZANE
IAN NZIMAKWE
SIXTH RESPONDENT
THEMBELIHLE
PRETTY MAPIPA-NDLOVU
SEVENTH RESPONDENT
HEINRICH
OOSTHUIZEN
EIGHTH
RESPONDENT
PETROS
ZAMOKUHLE DLAMINI
NINTH RESPONDENT
NOZIBUSISO
DOROTHY SHABALALA
TENTH
RESPONDENT
GALAXY
BINGO PAVILION (PTY) LTD
t/a
GALAXY
PAVILION
ELEVENTH RESPONDENT
GALAXY
BINGO MIDLANDS (PTY) LTD
t/a
GALAXY MIDLANDS
TWELFTH
RESPONDENT
POPPY
ICE TRADING 18 (PTY) LTD
t/a
POPPY
ICE
THIRTEENTH RESPONDENT
GALAXY
BINGO GATEWAY (PTY) LTD
t/a
GALAXY GATEWAY
FOURTEENTH
RESPONDENT
CHESTNUT
HILL INVESTMENTS 61 (PTY)
LTD
t/a GOLDRUSH PHOENIX
FIFTEENTH RESPONDENT
GOLD
RUSH GAMING (PTY) LTD
SIXTEENTH RESPONDENT
VITUBYTE
(PTY) LTD t/a GOLDRUSH
RICHARDS
BAY
SEVENTEENTH RESPONDENT
GALAXY
BINGO KZN (PTY) LTD
t/a
GALAXY BINGO EMPANGENI
EIGHTEENTH
RESPONDENT
BINGO
ROYALE HILLCREST (PTY) LTD
t/a
BINGO ROYALE
NINETEENTH
RESPONDENT
GOLD
RUSH (PTY) LTD
TWENTIETH RESPONDENT
VITUBYTE
(PTY) LTD
t/a
GOLDRUSH MALVERN
TWENTY-FIRST
RESPONDENT
ALLEXIGENIX
(PTY) LTD
t/a
GOLDRUSH CHATSWORTH
TWENTY-SECOND RESPONDENT
GALAXY
BINGO AMANZIMTOTI (PTY)
LTD
t/a GALAXY AMANZIMTOTI
TWENTY-THIRD RESPONDENT
ZATOPIX
(PTY) LTD
t/a
GOLDRUSH SCOTTBURGH
TWENTY-FOURTH RESPONDENT
GALAXY
BINGO SOUTH COAST
(PTY)
LTD t/a GALAXY BINGO
SOUTH
COAST
TWENTY-FIFTH
RESPONDENT
GALAXY
BINGO EMPANGENI
(PTY)
LTD
TWENTY-SIXTH RESPONDENT
EMIKAMACK
(PTY) LTD t/a
GOLDRUSH
RICHARDS BAY
TWENTY-SEVENTH RESPONDENT
AND
IN THE JOINDER APPLICATION:
AFRISUN
KZN (PTY) LIMITED t/a SIBAYA
CASINO
& ENTERTAINMENT KINGDOM
APPLICANT
and
INTERNATIONAL
GAME
TECHNOLOGY-AFRICA
(PTY) LIMITED
FIRST RESPONDENT
WMS
GAMING AFRICA (PTY) LIMITED
SECOND RESPONDENT
VUKANI
GAMING CORPORATION
(PTY)
LIMITED
THIRD RESPONDENT
J
U D G M E N T
Delivered
on: Thursday, 04 July 2019
Olsen
J
[1]
These review proceedings concern the game of bingo, and in particular
that game played
electronically on Electronic Bingo Terminals
(“EBTs”). Bingo is a game of chance.
Accordingly when played
for a consideration, it features in the
legislation designed to regulate gambling in this country.
[2]
In its traditional form bingo is a game played simultaneously by a
number of participants
each of whom has a card divided into squares,
each square containing a number. A “caller” makes a
random selection
of numbers, one at a time, and calls them out.
If the number features in a square on a player’s card it is
marked.
As I understand the rules, the first player to mark all
the squares on his or her card is the winner and receives a prize.
This form of the game has been referred to as “paper bingo”
or “traditional bingo”.
[3]
To a greater or lesser extent electronic versions of the game of
bingo short circuit
the process of the game, and enliven it by
substituting brightly lit screens for the dullness of paper.
Some elements of
the casino industry have complained, rightly or
wrongly, that EBTs are devices which are simply gambling machines of
the type used
in casinos; and that given the number of machines that
might be allowed in a bingo establishment, bingo operators will
compete
unfairly with casinos
inter alia
because the
investment in infrastructure to support the tourism industry, which
is required to qualify for a casino licence, does
not have to be made
by Bingo operators.
[4]
To put it plainly, the present proceedings have got out of hand.
The papers
extend to well over 3000 pages. When making
arrangements for this case to be set down for argument over 2 days
the
Judge President directed that a core bundle be compiled and
provided. That ran to some 700 pages to which additions were
made after the bundle had been prepared. This is not the first
occasion upon which the present matter has served before this
court.
And unless an order is made now, dismissing the review application
upon the basis that it has become academic, this
will not be the last
occasion that the present matter serves before this court. That
is because, the argument over whether
the case has become academic
aside, I am only to decide certain preliminary issues.
[5]
It is necessary to give an account of the history of the present
matter, both to identify
the issues to be decided, and to facilitate
the furnishing of reasons for those decisions.
[6]
Gambling in South Africa is governed by both national and provincial
legislation.
The KwaZulu-Natal Gaming and Betting Act No. 8 of 2010
(which I will call “the Act”) is at the centre of the
dispute
which has arisen in this case. Section 60
of the Act provides that a licence is required in order to conduct
bingo games. The place at which the games are played is called
a “bingo hall”. The licence required to operate
a
bingo hall is called a “bingo licence”.
[7]
In 2010 the KwaZulu-Natal Gaming and Betting Board (which I will call
the “Board”
or the “Gambling Board”) granted
bingo licences to a number of aspirant proprietors of proposed bingo
halls.
The conditions of those licences did not then permit the
use of EBTs in those halls.
[8]
Section 66 of the Act is to the effect that the manufacturer or
supplier of gaming
equipment (which would include EBTs) has to be
registered by the Board, and its gaming equipment has to be
separately registered
by the Board in accordance with the provisions
of s 59(c) of the Act. Regulation 82 of the regulations
promulgated under
the Act is to similar effect. It is clear
from the Act and the regulations that it is the manufacturer or
supplier of gaming
equipment which applies for the registration of
the equipment, and may indeed apply for its deregistration.
Section 59 of
the Act is to the effect that a licensee (which would
include a bingo operator whose licence permits the use of EBTs)
cannot use
an EBT which is not registered by the Board.
[9]
After conducting hearings,
(a)
on 16 October 2014 the Board approved the registration of seven
Electronic Bingo Terminals
on the application of Vukani Gaming
Corporation (Pty) Limited (“Vukani”) and 40 Electronic
Bingo Terminals on the application
of International Game
Technology-Africa (Pty) Limited (“IGT”); and
(b)
on 15 January 2015 the Board approved the registration of six
Electronic Bingo Terminals
on the application of WMS Gaming Africa
(Pty) Limited (“WMS”).
The
grant of those applications meant that there were now EBTs available
for
lawful
use in bingo halls subject, of course, to the approval of amendments
to the conditions of licences issued to bingo hall proprietors
who
wished to introduce EBTs. (I will call Vukani, IGT and WMS the
“suppliers”.)
[10]
The Gambling Board then granted applications for the amendment of
licence conditions made by
the various operators who feature as the
eleventh to twenty-fifth respondents in the present proceedings.
This was done on
16 January 2015. The decisions to grant those
amended licence conditions have been referred to as the “impugned
decision”
in the present review proceedings, but the term
should be “impugned decisions” as a separate decision was
made in respect
of each application. The impugned decision
allowed each bingo operator to use a specified number of EBTs.
[11]
These proceedings were launched on or about 30 January 2015 by the
Premier of KwaZulu-Natal and
the Member of the Executive Council for
the Province of KwaZulu-Natal responsible for finance. They
sought an order reviewing
and setting aside the impugned decisions.
In addition an interdict was sought restraining the issue of licences
bearing the
amended conditions, and the processing of them in any
manner whatsoever. The grounds upon which the relief was sought
are
not presently of particular relevance. But prominent
amongst them was a contention that the Gambling Board had proceeded
with undue haste in the face of requests or directives from
provincial government that EBTs should not be introduced at that
stage,
inter alia
because it was intended to introduce
amendments to the legislation which would have the effect of reducing
the impact of EBTs on
gambling in the province.
[12]
In the application the Premier and the MEC cited:
(a)
the Gambling Board as first
respondent;
(b)
the individual members of the
Board as second to tenth respondents
(inclusive);
and
(c)
the beneficiaries of the
impugned decisions (i.e. the bingo licensees
whose licence conditions had been amended) as eleventh to twenty-
fifth respondents.
All
save one of the bingo licensees belong to one of two groups.
These groups are referred to in the papers as the Goldrush
respondents and the Galaxy respondents, and the remaining (the
thirteenth) respondent is known as “Poppy Ice”.
[13]
On 3 February 2015 Afrisun KZN (Pty) Limited, which trades as the
Sibaya Casino and Entertainment
Kingdom, applied to be joined as an
applicant in the review proceedings. It eventually became the
third applicant.
(I will call it “Afrisun”).
The Sibaya Casino lies to the north of the town of Umhlanga which is
in turn to the
north of the central business district of Durban.
[14]
Besides adopting such grounds of review as the Premier’s
application had advanced, the
deponent to Afrisun’s affidavit
supporting the application to intervene concentrated on the
contention that EBTs were not
devices facilitating the playing of the
game of bingo, as then defined in the Act. He advanced
Afrisun’s contention
that EBTs were ordinary gambling machines
masquerading as devices for the playing of the game of bingo.
[15]
Two other parties applied to intervene as co-applicants. They
are the Peoples Forum Against
Electronic Bingo Terminals and another
casino operator, Peermont Global KZN (Pty) Limited. These two
parties ultimately played
no part in the proceedings before me,
Peermont having explained in an affidavit that it had launched its
own review proceedings.
[16]
Although I have classified the Premier’s application as the
initiation of the present review
proceedings, it should be observed
that the Premier did not slavishly follow the procedure available
under Rule 53. The Premier
presented the application as an
urgent one, and interim relief was sought to prevent the Gambling
Board from permitting bingo operations
to commence using EBTs.
For that reason the Galaxy respondents delivered an extensive
answering affidavit on 4 February 2015,
a day in advance of these
proceedings serving for the first time before this court. The
main thrust of that answering affidavit
was a challenge to the
proposition that the provincial government (represented in this case
by the Premier and the MEC for Finance)
had any right or power to
interfere in the performance of the Board’s functions regarding
the licences in question, by issuing
directives; let alone any right
to have the Board’s impugned decisions reviewed because the
Board did not obey such directives.
[17]
In the founding affidavit the MEC for Finance had also mentioned the
contention advanced by some
people that EBTs did not qualify as bingo
machines. As I read the founding affidavit the issue was raised
not to advance
the case that as a matter of fact the EBTs did not
qualify as bingo devices, but to raise the issue as to whether the
Board had
acted precipitously, and as to whether the members of it
had applied their minds properly to the issue as to the suitability
of
the available EBTs when deliberating on what became the impugned
decisions. There was particular reference to the case of
Akani
Egoli (Pty) Limited and Others v Chairperson of the Gauteng Gambling
Board and Others
(17891/06)
[2008] ZAGPHC 262
(30 July 2008) in
which it was held that the EBTs considered in that case did not
qualify to be used in bingo halls. In their
answering affidavit
delivered on 4 February 2015 the Galaxy respondents recorded that the
Akani
case, and the evidence available in the
Akani
case,
had to do with a device which was then (in 2015) already seven years
old, and not currently available in the market.
The deponent
stated that over that seven year period technology with respect to
EBTs had advanced significantly.
[18]
This application then served before this court on 5 February 2015
when an order was taken by
consent. Afrisun was granted leave
to intervene “without prejudice to any party to raise any
arguments in this respect”.
The application was adjourned
to 28 April 2015 and directions were given as to when the record was
to be delivered, supplementary
affidavits in terms of Rule 53(4) to
be filed, and further affidavits and all heads of argument to be
delivered. All questions
of costs were reserved.
[19]
On 20 February 2015 (i.e. the last day for delivery of a
supplementary affidavit in terms of
Rule 53(4)) Afrisun delivered an
amended notice of motion and a supplementary affidavit titled
“Supplementary Affidavit in
terms of Rule 53(4)”.
The significant features of these supplementary papers from the
perspective of the matters now
before the court were the following.
(a)
Afrisun did not confine itself
to the relief sought by the Premier against the respondents who were
Bingo hall operators.
In paragraphs 2 to 6 of the amended
notice of motion Afrisun sought orders reviewing and setting aside
the earlier decisions
of the Board to approve the applications for
registration of gaming equipment granted in favour of the suppliers;
to declare the
EBTs manufactured or distributed or sold by the
suppliers as impermissible (that is to say impermissible under law);
and in the
alternative to such a declaratory order, an order
directing the terminals to be produced for inspection by Afrisun
after which
Afrisun should be allowed further time to supplement its
papers.
(b)
The amended notice of motion
was one crafted with a view to the application of Rule 53, requiring
the delivery of the records relating
to the approval of the equipment
supplied by WMS, IGT and Vukani; and the provision of reasons for the
decisions made in favour
of those suppliers. The notice of
motion asserted a right on behalf of Afrisun to amend and to vary the
terms of its motion
in terms of Rule 53(4) after receipt of these
fresh records. I will revert to this topic later.
[20]
Afrisun launched applications to join each of the suppliers.
These were opposed.
[21]
Answering affidavits delivered on behalf of the various respondents
objected to Afrisun’s
attempt to expand the proceedings to
review the decisions in favour of the three suppliers. There
were also general objections
to the intervention of Afrisun in the
review proceedings launched by the Premier.
[22]
When the matter then served again before this court on 28 April 2015
an order was made that a
number of issues should be separately dealt
with, and the case set down for adjudication of them on a date to be
arranged with
the registrar. In essence these were the
remaining intervention applications, the objections to Afrisun’s
intervention,
the question as to whether Afrisun should be permitted
to seek relief attacking the registration of the equipment supplied
by WMS,
IGT and Vukani, and the joinder applications relating to
those entities. The case was otherwise postponed sine die.
[23]
These separated issues were argued before me in April 2019.
However the arguments extended
beyond what was contemplated in the
order of 28 April 2015 because of subsequent events. I turn to
those.
[24]
By notice dated 18 November 2016, the Premier and the MEC for Finance
withdrew their application.
In December 2016 Afrisun brought an
application to set aside the withdrawal of the review by the Premier
and the MEC. In
the alternative Afrisun asked that it be
permitted to pursue the application as a party thereto. On 22
June 2018 this court
(Koen J) delivered judgment in that application,
granting the alternative relief, declaring that Afrisun is “entitled
to
pursue the review application … unless and until a court
pursuant to paragraph 1.1 of the order [granted on 28 April 2015]
upholds any argument that would disqualify it from doing so.”
[25]
Prior to that, however, and by Act 4 of 2017, the Act had been
amended with the intention, it
seems, to put it beyond doubt that
EBTs should be permitted to be employed in bingo halls. Because
of the present litigation
the Board’s decision in 2015 to
permit the respondents who are bingo operators to use EBTs was not
implemented. However,
following the amendment, the requisite
licence conditions were altered, licences were issued, and the
requisite processes followed
and permissions granted which had the
effect of the various bingo halls actually offering the game of bingo
utilising EBTs.
All this became the subject of fresh review
proceedings instituted by Afrisun in 2018.
[26]
When Afrisun’s application served before Koen J in June 2018 it
was argued that as a result
of the events just described the review
application which Afrisun wished to pursue had become academic.
The learned Judge
decided that he could not deal with that argument,
dispositive as it might turn out to be of the issue he had to decide,
because
it had not been canvassed in the papers. He continued
(at paragraph 57 of the judgment) as follows.
‘
It
might however be that in the future management of this litigation
attention be directed to defining the factual foundation, whether
by
the exchange of affidavits or some form of stated case, for this
issue also to be addressed.’
[27]
Unsurprisingly in the light of events I have described which
post-dated the original set of papers
in this application, and
perhaps also in the light of the observations made by Koen J, the
Galaxy and Goldrush respondents sought
to deliver supplementary
affidavits, the principal thrust of which was that the issue as to
whether anything done in 2015 was reviewable
had become academic and
moot. The Board itself, which had not as a body previously
taken any part in the proceedings, now
sought also to put in an
affidavit raising,
inter alia
, the fact that the present
application had become academic, and that it ought to be dismissed on
that account. (The Board
also sought leave to withdraw from its
earlier position, that it would abide the decision of this court in
the review proceedings.)
[28]
Afrisun has opposed these attempts to introduce further affidavits,
and in the result the papers
became supplemented with nearly 500
pages more than existed when the Judge President gave permission to
the parties at the pre-hearing
conference to set the matter down for
2 days upon the basis that a core bundle should be produced for the
hearing.
[29]
It is against this background that this judgment must canvass and
decide,
(a)
the issues identified in April 2015 for separate consideration;
(b)
the newly generated interlocutory applications; and, upon the
assumption that the new evidence
is admitted
(c)
the question as to whether these proceedings should be finalised now
upon the basis
that the relief originally sought has become academic
or moot.
AFRISUN’S
RIGHT TO ATTACK THE REGISTRATIONS OF EBT EQUIPMENT GRANTED IN FAVOUR
OF IGT, WMS AND VUKANI
[30]
The first issue to be decided must be whether Afrisun had the right
in these proceedings to challenge
the registration of EBTs at the
instance of the suppliers. This was not relief sought by the
Premier; and neither was this
new relief disclosed to the other
parties when they consented to an order permitting the joinder of
Afrisun in the Premier’s
application, subject to their right to
challenge Afrisun’s claim to be entitled to be joined as a
co-applicant.
[31]
The means by which Afrisun sought to introduce these new challenges
illustrates the difficulty
with the proposition that it was
permissible for it to do so. Having become a co-applicant it
exercised its right under Rule
53 (4) to deliver a supplementary
founding affidavit. It notionally had the right also under that
rule to amend its notice
of motion; but it did not have one. It
therefore delivered a fresh notice of motion. There it sought,
in paragraphs
2 to 6 of its prayer, to introduce the further
decisions it wished to challenge. But of course the records of
those administrative
decisions were not before the court as they were
not required to be delivered under the original notice of motion.
If the
new challenge was to proceed, it would require the records of
another three sets of administrative decisions to be furnished.
To achieve access to those records Afrisun’s so-called amended
notice of motion called upon the Board to deliver the records
of
those three administrative proceedings together with reasons (if
required or desired) within 15 days of receipt of the so-called
amended notice of motion. The document was in effect a notice
of motion starting fresh proceedings against the suppliers
in respect
of the decisions to register machines which had been made in favour
of each of them.
[32]
Rule 53 (4) deals with what an applicant may do after provision of
the record of the proceedings
brought under review by an applicant’s
notice of motion. It reads as follows.
‘
The
applicant may within 10 days after the registrar has made the record
available to him or her, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of his or her notice of
motion and supplement the supporting affidavit.’
Dealing
with the general scheme of things, Madlanga J in his judgment in
Helen Suzman Foundation v Judicial Service Commission
2018 (4)
SA 1
(CC) at para 13 said the following.
‘
The
purpose of rule 53 is to “facilitate and regulate applications
for review”. The requirement in rule 53 (1)
(b) that the
decision-maker file the record of decision is primarily intended to
operate in favour of an applicant in review proceedings.
It
helps ensure that review proceedings are not launched in the dark.
The record enables the applicant and the court fully
and properly to
assess the lawfulness of the decision-making process. It allows
an applicant to interrogate the decision
and, if necessary, to amend
its notice of motion and supplement its grounds for review.’
(References
excluded.)
[33]
In my view any ordinary reading of Rule 53 (4) suggests that what is
to be addressed in a supplementary
affidavit, and if necessary an
amended notice of motion, is the decision which was identified in the
original notice of motion
as the subject of the litigation.
That understanding seems to underlie the description of the process
in the passage from
Helen Suzman Foundation
just quoted above,
although it must be observed immediately that the Constitutional
Court was not in that case seized with the
issue which arises here.
[34]
It is clear that what may legitimately be done under Rule 53(4) may
be done as of right.
Obviously the record of the decision may
reveal grounds of review not stated in the original founding
affidavit. These would
be dealt with in the supplementary
affidavit. It may be revealed that the decision under review
was mis-described, perhaps
as to its precise ambit or as to when it
was made, and so on. That would justify an amendment to the
notice of motion.
I would venture to suggest, although that
issue does not arise in this case, that the notice of motion may be
amended to cite further
respondents if the record reveals
circumstances which render their joinder compulsory.
[35]
There is authority for the proposition that circumstances may exist
in which it is permissible
for an applicant in review proceedings to
amend the notice of motion under Rule 53(4) to bring under review
decisions not identified
in the original notice of motion. That
is what occurred in
Pieters v Administrateur, Suidwes-Afrika en ‘n
Ander
1972 (2) SA 220
(SWA). The applicant in that matter
had applied under Rule 53 to review the refusal of his application
for a permit to enter
and remain in the country then known as
South-West Africa. He required permission as he had not been
born there. His
application was dismissed in September 1971.
The record of the proceedings was provided. In that record
reference was
made to some five earlier decisions all of which had
the effect of denying the applicant the right to be in the country.
The applicant used the provisions of Rule 53(4) to amend his notice
of motion so as to bring those earlier decisions under review
as
well. Whilst the record supplied by the respondent mentioned
the earlier decisions, it did not constitute a record of
them.
The applicant chose to have this rectified by calling for discovery
of those records. That was resisted by the respondents
inter alia
on the basis that those decisions were not actually brought under
review in the proceedings. The court (Hoexter J) disagreed.
Whilst the decision to compel discovery of the record of the earlier
decisions was made ultimately on the basis that they formed
part of
the record of the 1971 decision, and had accordingly to be produced,
the learned Judge (at 225E-G) appeared to have no
difficulty with the
proposition that the applicant could amend his notice of motion to
bring those earlier decisions under review.
[36]
There are of course a number of features of the
Pieters
case
which distinguish it from the present proceedings. First of
all, the parties to the earlier decisions were the same
as the
parties to the decision identified in the original notice of motion.
Secondly, as I understand the facts, the earlier
decisions were of
the same type as the 1971 decision, and indeed informed the refusal
of the application made in 1971. Here
the position is
different.
[37]
The decisions in favour of the suppliers were not decisions in which
the bingo operators cited
by the Premier had any legal interests.
Likewise, the impugned decisions (i.e. the decision in favour of
bingo operators)
allowing them to use EBTs, brought under review by
the Premier, were decisions in which the suppliers had no legal
interests.
The two decision types are quite separate and were
dealt with in separate and different administrative proceedings.
[38]
The reason why Afrisun would want to bring the decisions in favour of
the suppliers under review
in the same proceedings as the decisions
in favour of the bingo operators were challenged appears to me to be
obvious. Afrisun
wished to make the case against the bingo
operators that the EBTs could not lawfully be regarded as bingo
machines. If they
had been separately registered by the Board
under s 59 of the Act on earlier occasions, those registrations would
at the very least
on the face of it render the use of the machines
lawful in bingo halls. Section 59(c) of the Act reads as
follows.
‘
A
licensee may not use a gaming machine, limited payout machine or
gambling equipment or allow any game to be played on a gaming
machine
or limited payout machine or on or with gaming equipment which –
(a)
…
(b)
...
(c)
has
not been separately registered by the Board.
The
proposition was raised in argument before me, and not contradicted,
that although the section is rendered in the negative, the
effect of
it in the context of the Act is that, once any such equipment is
“separately registered”, bingo operators
are entitled to
use it in their bingo halls.
[39]
In argument on the question of joinder, the suppliers have all
conceded that if it should be
held that Afrisun was entitled as of
right under Rule 53(4) to expand the ambit of the proceedings in this
case by bringing the
Board’s registration and approval of their
machines under review, then their joinder as parties to these
proceedings is necessary.
However they argue, correctly in my
view, that they have no role to play in these proceedings if the
extension of the relief to
them by Afrisun, without the leave of the
court (which was not sought), was impermissible. Of course, as
suppliers of EBTs,
they would have been most satisfied with the
Board’s decision (brought under review by the Premier) to
permit the bingo operators
to install EBTs. By no stretch of
imagination can that be elevated to the status of a legal interest
justifying their compulsory
joinder in these proceedings.
[40]
The Goldrush respondents make the point in their affidavit that the
bingo operators would merely
be passengers in the dispute between
Afrisun and the suppliers. The issue in that dispute is
essentially whether the Board
erred in regarding the EBTs registered
on the application of the suppliers as having the characteristics
justifying their registration
under the Act as it was before it was
amended. That raises technical issues to which the bingo
operators would have nothing
to contribute. The duration of the
proceedings would be extended, according to the Goldrush respondents,
indefinitely; and
the costs (for the bingo operators) would be
increased significantly.
[41]
I have little doubt that all these considerations would have weighed
with the court had Afrisun
chosen to apply for leave to amend its
notice of motion to bring the decisions in favour of the suppliers
under review.
[42]
I conclude that Rule 53(4) cannot be given so broad a construction as
to permit what Afrisun
has sought to do in bringing under review in
the present proceedings three new sets of decisions to which the
existing respondents
(besides the Board) were not parties. I
reach that conclusion on the basis of the considerations which
support it which have
already been discussed above. That means
that the applications to join the suppliers must fail.
OBJECTIONS
TO AFRISUN’S JOINDER :
LOCUS STANDI
[43]
I turn to the issue set out in paragraph 1.1 of the order made on 28
April 2015 as clarified
by the order of Koen J made on 22 June 2018.
Paragraph 1.1 of the order of 28 April 2015 set aside for prior
consideration
the intervention applications of Peermont and The
Peoples’ Forum Against Electronic Bingo Terminals; and the
objections to
Afrisun’s intervention. For reasons already
given there is no need to consider the intervention applications.
The objections to Afrisun’s further participation in these
proceedings must be dealt with, but only with regard to its claims
which affect the bingo operators, given the conclusion I have come to
regarding its claim which affects the rights and interests
of the
suppliers. In his order of 22 June 2018 Koen J clarified the
effect of paragraph 1.1 of the order of 28 April 2015.
‘
Afrisun
(Pty) Limited, having been granted leave to intervene in the
proceedings under case number 1366/15 on 5 February 2015, and
joined
as the third applicant, is declared entitled to pursue the review
application under that case number, unless and until a
court pursuant
to paragraph 1.1 of the order [granted on 28 April 2015], upholds any
argument that would disqualify it from doing
so.’
[44]
Review proceedings under PAJA have as their purpose the vindication
of the right under s 33 of
the Constitution to administrative action
that is lawful, reasonable and procedurally fair. Section 6 (1)
of PAJA is to the
effect that “any person” may institute
proceedings for the judicial review of administrative action.
However
s 38 of the Constitution deals with who may approach a
competent court for appropriate relief upon the basis that a right in
the
Bill of Rights is being infringed or threatened with
infringement. Section 38 of the Constitution must be read
into
s 6(1) of PAJA. (See
Giant Concerts CC v Rinaldo
Investments (Pty) Limited
2013 (3) BCLR 251
(CC) at para 29.)
[45]
Whilst counsel for Afrisun ventured a suggestion in argument that, as
a participant in the gambling
industry, Afrisun had an interest in
seeing that all administrative decisions made by the Gambling Board
in connection with the
gambling industry are made in compliance with
PAJA, that is not the basis upon which Afrisun sought leave to
intervene. In
its founding affidavit in the intervention
application Afrisun asserted
(a)
that
the decisions made in favour of the bingo operators would bring about
that Afrisun would suffer a significant loss of “gross
gaming
revenue”; and
(b)
that
it was a party affected by the decision in that “from the
outset [Afrisun] submitted objections to attempts to
licence
EBTs, and also submitted objections to the applications which
culminated in the decision of the first respondent which
is now
sought to be reviewed and set aside”.
It
is clear that Afrisun claims the right to approach the court on the
basis that it is acting in its own interests, as contemplated
by s
38(a) of the Constitution.
[46]
The fact that Afrisun participated in the hearings which preceded the
impugned decisions cannot
on its own afford Afrisun standing.
As pointed out in
Giant Concerts
(para 56):
‘
It
is not logical to assert that an own-interest standing qualification
arises from participation in a process if the objection
remains
hypothetical and academic.’
[47]
What Afrisun relies upon to render its objection to the decisions
made by the board, and its
interest in intervening in these review
proceedings, real and not academic, is the detrimental effect upon
its gaming revenues
which it claims will result from the use of EBTs
in bingo halls.
[48]
However fanciful claims of potential prejudice are not sufficient to
justify a conclusion that
a claim to standing is premised on real
interests, as opposed to ones which are hypothetical or academic.
In this case
all of the bingo halls which were beneficiaries of the
impugned decisions were cited, and the relief sought by Afrisun
covers all
of them, even those whose distance from Afrisun’s
casino is such that they could not reasonably be expected to have any
effect
on Afrisun’s gambling revenues. All of the
beneficiaries of the impugned decisions were originally cited in this
matter
by the Premier and the MEC for Finance, based on their claim
of
locus standi
to object to the approvals of any licence
conditions authorising the use of EBTs in KwaZulu-Natal.
Afrisun does not approach
the court with the same standing as that
claimed by the original two applicants. It had to establish its
standing with respect
to each of the impugned decisions. In my
view it failed to do so.
[49]
In submitting its objections during the course of the process which
resulted in the impugned
decisions, Afrisun identified five of the
bingo operator respondents as being within its “catchment
area”, and as likely
to cause it the loss of gaming revenue to
which I have already referred. They are the eleventh,
fourteenth, fifteenth, nineteenth
and twentieth respondents.
Counsel for the respondents conceded in argument that there is enough
on the papers to justify
the conclusion that Afrisun has standing to
challenge the decisions made in favour of those respondents.
[50]
However they argue correctly that all the other bingo operator
respondents fall outside what
might be called Afrisun’s sphere
of interest.
[51]
Reverting to paragraph 1.1 of the order made on 28 April 2015, the
challenge to Afrisun’s
standing to intervene to seek relief
against the bingo operator respondents other than the eleventh,
fourteenth, fifteenth, nineteenth
and twentieth respondents, must be
upheld.
THE
REMAINING INTERLOCUTORY APPLICATIONS
[52]
I deal first with an interlocutory application which resides in the
original papers, the so-called
“Rule 30 Application”.
After the application to join it had been served on WMS, it delivered
a notice in terms
of Rule 6(5)(d)(iii) notifying Afrisun of questions
of law upon the basis of which WMS intended to opposed the
application to join
it in the review proceedings. Afrisun
objected, complaining (according to its founding affidavit in the
application in terms
of Rule 30 subsequently launched) that
(a)
the notice was delivered late;
and
(b)
the notice traversed issues of
fact as well as issues of law.
[53]
The complaint that the notice deals with matters of fact as well as
law is without merit.
The notice delivered by WMS did not call
upon the court to make any decisions on fact. A respondent
wishing to employ the
sub-rule is entitled to raise questions of law
which arise from or in the factual matrix revealed in the founding
papers.
I can see nothing wrong in mentioning a fact (believed
to be part of that matrix) in the notice in order to contextualise
and better
explain the question of law the respondent seeks to
describe and define. If the identification of a question of law
arises
from a misunderstanding or misstatement of the facts revealed
in the founding papers that does not render the notice invalid.
It would render it ineffectual for the respondent’s purposes
when the court rules that the question of law does not arise
in the
case.
[54]
In my view the notice delivered by WMS was wholly in compliance with
the sub-rule. It raised
no issues of fact. It raised
questions of law arising from facts already before the court at the
time when the notice was
delivered.
[55]
The founding affidavit in the Rule 30 application was attested to by
the attorney acting for
Afrisun. In it he claimed that there
was prejudice to Afrisun because he (the attorney) had already
written to the presiding
Judge seeking dates to have the matter set
down. He complained, as I have said, that the notice raised
factual issues and
not just legal ones. There was no merit in
those complaints when they were made. The attorney had to have
known that
the issues raised by WMS would have to be dealt with in
the application to join the suppliers, come what may. They were
nothing
new. One is driven to the conclusion that what was
sought to be achieved in the Rule 30 application was the silencing of
WMS. In my view the Rule 30 application was at best misguided,
and at worst a designedly obstructive tactic of a kind which
our
courts ought to frown upon.
[56]
The application in terms of Rule 30 must be dismissed. As WMS
has accepted that its notice
was delivered late I propose to grant an
order condoning that fact, despite my uncertainty as to whether such
condonation is necessary.
(The notice of motion initiating the
joinder proceedings was defective,
inter alia,
because it did
not notify WMS of the date by which notice to oppose had to be
delivered.)
[57]
I turn to the applications to admit further evidence in supplementary
affidavits. On 26
February 2019 the Galaxy respondents
delivered an application for leave to file their supplementary
affidavit, asking that Afrisun
pay the costs of the application only
if it be opposed. The Goldrush respondents delivered a similar
application on 8 March
2019 seeking similar relief, and condonation
if it was required for the late delivery of the affidavit. The
Board delivered
an application on 28 February 2019. I will deal
with its application separately.
[58]
The Galaxy respondents sought by their affidavit to place before the
court evidence of three
circumstances which had arisen after the
papers in the main application had been completed. They were
the amendment to the
Act, the judgment of Koen J handed down on 22
June 2018 and the institution by Afrisun in September 2018 of review
proceedings
against,
inter alia,
the Galaxy respondents in
which Afrisun sought orders setting aside the various decisions made
in 2018 (i.e. after the amendment
of the Act) which brought about
that the bingo halls could operate using EBTs. Its affidavit
asserted that the facts that
it wished to place before the court went
to the question as to whether the present review proceedings had
become academic and as
to whether, in the circumstances, Afrisun
should be permitted to continue with the present application.
[59]
The application by the Goldrush respondents was in all material
respects the same as that of
the Galaxy respondents, although the
affidavit it sought to have admitted expanded a little upon the
argument as to why the present
proceedings have become moot.
[60]
Afrisun opposed both of these applications. It complained that
they had come too late,
that they would obstruct the proposed hearing
and that the issue as to whether the present proceedings had lost
their purpose,
and had become moot, should be dealt with when the
merits of the review application came to be argued later.
[61]
I accept the proposition that the supplementary affidavits were
delivered late. Counsel
for Afrisun has argued, correctly in my
view, that the affidavits could have been delivered earlier, given
that the parties knew
certainly by October 2018 that they wished to
place further affidavits before the court. However the facts
stated in the
affidavits are uncontentious, and each of them was
within the knowledge of Afrisun from the moment the fact arose.
Afrisun
was able to produce an affidavit answering the material
raised in the supplementary affidavits delivered by the Galaxy and
Goldrush
respondents, and I am satisfied that there was no disruption
to the proceedings before me that mattered. There was time
enough
for all parties to prepare on and deal with the issue raised
in the supplementary affidavits, that is to say the contention that
the present proceedings have become academic and moot and should be
stopped now. The matters raised in the supplementary
papers
were fully argued before me. An order admitting the
supplementary affidavits of Goldrush and Galaxy must accordingly
be
made.
[62]
The position with regard to the Board is slightly different. It
had decided at the outset
to abide the decision of this court in the
review application. It was of course entitled to apply to court
for leave to oppose
and to file answering papers, such leave being
required because it was well out of time on both counts.
However in my view
it was not entitled to do so as late as it did,
and expect to have its delay condoned, insofar as the papers it
wished to deliver
went to issues unconnected with the contention
that, since the papers in the application had been finalised, the
issue raised in
the review proceedings had become academic.
Afrisun was, for instance, confronted with a new extensive set of
facts concerning
its gaming revenue, and so on, directed at making a
very belated further challenge to its contention that it had standing
to seek
the relief it did against the bingo operators.
[63]
Nevertheless, I do consider that it was permissible for the Board to
deliver affidavits setting
out what has been done since the Act was
amended, to the extent that it may have a bearing on the issue as to
whether the proceedings
have become academic and moot. Indeed,
as the judge seized with that issue, I would have been disappointed
if the Board,
an organ of State responsible for the administration of
these matters, had not placed the material facts before the court.
[64]
I accordingly propose to admit the Board’s papers into
evidence, and to condone their late
delivery, but on the footing that
the only material disclosed in those affidavits which is to be
considered in this judgment is
that which goes to the issue as to
whether this review has become academic and moot.
[65]
In reaching these decisions as to the admission of supplementary
papers I have kept in mind what
was said in
Afrisun KZN (Pty)
Limited t/a Sibaya Casino and Entertainment Kingdom v KwaZulu-Natal
Gaming and Betting Board and Others
(14370/2017P) [2018] ZAKZPHC
49 (5 October 2018), to which I was referred by counsel for Afrisun.
’
11.
Over time, various tests have been posited for the introduction of
affidavits additional to those
allowed as of right. It has been
recognised that this is not simply for the asking. However, the
test or approach is
not capable of being reduced to a finite list
with boxes to be ticked. Each case depends on its own facts.
It is trite
that the court has a discretion whether or not to do so.
That discretion must be exercised judicially. The most reliable
guiding principle in exercising that discretion is fairness to all
the parties.’
I
am in respectful agreement with that analysis. I would simply
add that the decision made must be one which serves the interests
of
justice, and that in the present context, the most prominent feature
of the interests of justice is fairness to the parties.
HAS
THIS REVIEW BECOME ACADEMIC?
[66]
Counsel for Afrisun argues that the question as to whether or not
this review should end merely
for having become moot or academic
should be dealt with when the merits of the review are argued.
He argues that the issue
is not just one of law, but one of fact, and
that insufficient facts are before the court. However he did
not contradict
the proposition contended for by the Board and the
bingo operators that if I should decide that there is sufficient
material before
the court to support a conclusion that the review has
become moot, an appropriate order should be made now, and not later.
I agree with that proposition. If, on the facts before the
court, the law ordains that this court should not entertain the
relief sought in the review application because it has no practical
effect, then delaying the decision does offence to the administration
of justice, and would be prejudicial to the parties who will incur
further very substantial costs preparing for and presenting
argument
on the merits of this case, an exercise in futility.
[67]
It is convenient to commence the consideration of this topic by
stating (and in some instances
re-stating) certain facts which can be
dealt with briefly.
(a)
Prior
to the making of the impugned decisions each of the affected bingo
hall operators had bingo hall licences.
(b)
As
contemplated by the Act, each licence was subject to
conditions.
(c)
One
of the conditions was that the licence should permit the holder to
perform the activities listed on a Schedule B. Schedule
B
described the permitted activity as “traditional bingo”
(i.e. so-called “paper bingo”) and, presumably
for the
sake of clarity, a note indicated that “this excludes
electronic bingo terminals”.
(d)
Each
licence was subject to the condition that it would remain in force
until the 31
st
March of the year succeeding the one during which it was issued
unless for some reason it lapsed or was cancelled earlier.
(e)
The
impugned decisions involved the approval of applications for
electronic bingo terminals which had been brought by the affected
respondents. In the case of each respondent a specified number
of bingo terminals was permitted.
(f)
The
notification of the impugned decision relating to each respondent
given in writing by the Board to each respondent, recorded
the
following.
‘
All
relevant licence conditions will be amended accordingly in due course
and your office will be notified accordingly on the outstanding
fees
payable.’
(g)
In each case the impugned
decision did not on its own generate a right on behalf of the bingo
hall operator to install EBTs and
conduct bingo games using them.
Each impugned decision was in effect a decision in principle, as it
required a number of
further administrative functions to be performed
or decisions to be made to get to the point where a licence with
appropriate conditions
for the use of EBTs could be issued.
(h)
None
of these further decisions was taken until after the Act was amended
in 2017, and no bingo licence having the effect of permitting
the
offering of the game of bingo using EBTs was issued before the Act
was amended.
[68]
It is convenient, to avoid getting bogged down in the intricacies of
the gambling legislation
(including regulations and rules), to look
to Afrisun’s notice of motion in the review application it
launched in 2018 for
an account of the type of decisions which had to
be made, and permissions granted, in order to issue what might be
called a viable
bingo licence permitting the use of EBTs. The
licensee must apply for approval of its floor plan. It must
obtain the
Board’s approval of its internal control system.
It must obtain the Board’s approval of its surveillance system
and the surveillance system plan. If there are amendments,
those must likewise be sanctioned by the Board. The Board
must
grant its approval for the transport of EBTs to the bingo hall site.
When they are installed there in accordance with
the plan, the Board
must certify the installations. I am sure that the requirements
for approval, and the processes to be
followed, are somewhat more
complex than this brief summary suggests, extracted, as it is, merely
from a copy of the notice of
motion in the 2018 review proceedings
which has been put up with the supplementary papers.
[69]
As already mentioned, the only relief sought against the bingo hall
respondents is that the impugned
decision in favour of each of them
dating from January 2015 should be reviewed and set aside. The
principal ground for this
relief advanced by Afrisun is that the Act
in the condition in which it stood in January 2015 did not permit the
use of EBTs, or
certainly those which had been approved by the Board
on the applications of the suppliers, in bingo halls. As
mentioned earlier,
despite the fact that there were conflicting views
on whether Afrisun’s interpretation of the Act was correct, the
Act was
amended
inter alia
to put it beyond doubt that the use
of EBTs was indeed lawful. The question as to whether the
amended Act has achieved that
purpose is not an issue in the present
application. In the present matter what is left of the
principal issue raised by Afrisun
is the question as to whether such
EBTs
were
permissible under the Act prior to its amendment.
(It is perhaps interesting to note that the deponent to Afrisun’s
founding and supplementary founding affidavits stated that if the
amendments proposed in what was then an amendment Bill had been
introduced, the use of EBTs of the type he was talking about in 2015
would have been permissible. As far as I can see there
is no
difference that matters between the relevant provisions of the Bill
and the amendments actually enacted.)
[70]
Afrisun also based its application to review the impugned decisions
on what might be called process
related or procedural grounds.
The merits of those procedural grounds are not before me for
decision. All that need
be said is that they relate exclusively
to the quality of the decision making process which resulted in the
making of the impugned
decisions in January 2015.
[71]
The Goldrush and Galaxy respondents, and the Board, argue that the
relief sought against the
bingo hall operator respondents is moot and
has no practical effect. The points made and facts relied on by
these respondents,
drawn from all three supplementary affidavits, may
be summarised as follows.
(a)
Bingo
hall licences were renewed in March 2018 in accordance with the
amended Act, containing provisions which permitted the use
of EBTs.
(b)
Bingo
licences lapse every year and have to be renewed.
(c)
Whatever
the position may have been in January 2015 when the impugned
decisions were made, the licences issued in March 2018 contained
conditions stipulated in the light of the law as it stood as a result
of the amendment to the Act.
(d)
Setting
aside the impugned decisions would have no effect, and would be a
meaningless order made without purpose, as the rights
of the affected
bingo operator respondents to use EBTs is dependent not on the
impugned decisions made in 2015 under the Act before
it was amended,
but on the decisions made to issue licences which sanctioned the use
of EBTs in the light of the provisions of
the amended legislation.
[72]
There is another fact which in my view ought to be taken into account
before considering the
merits of the argument that the review
application should end now as it has become moot. In its
affidavit answering the supplementary
papers tendered by the Goldrush
and Galaxy respondents and by the Board, Afrisun stated that as a
matter of fact the Board “remains
alive to the difficulty of
the impugned decisions and actively seeks to avoid making decisions
affected by the impugned decisions”.
As an example of
this, Afrisun referred to a series of documents which had been
produced as part of the record in the 2018 review
proceedings called
“Audit Details Reports”, in which the Board records that
the decisions dealt with in those reports
do not relate to the
impugned decisions of January 2015. These reports deal with a
series of decisions necessary to be made
in order to issue licences
permitting the use of EBTs in accordance with the provisions of the
amended Act.
[73]
Afrisun’s argument is that the relief it seeks setting aside
the impugned decisions has
a practical effect as the existing
licences were granted consequent upon the impugned decisions.
It argues that the substantive
validity of the impugned decisions is
a precondition for the validity of the decisions made after the
amendment of the Act to issue
licences containing conditions
permitting the use of EBTs. (See
Oudekraal Estates (Pty)
Limited v City of Cape Town and Others
2004 (6) SA 222
(SCA) at
para 31.) Whether that is so depends upon the provisions of the
legislation.
[74]
Section 30 of the Act provides for applications for licences, and s
60 is to the effect that
no person may “maintain premises where
the gambling game of bingo is played” without either a casino
licence or a bingo
licence. Regulation 28 deals with the issue
of licences where such an application is granted. Regulation
28(5) reads
as follows.
‘
Unless
the Act provides that a licence or registration expires on 31
December, every licensee or registrant must, no earlier than
1
January and no later than 1 February of every year, make application
for renewal of the licence or registration on 1 April of
that year
and must simultaneously pay to the Board the fee prescribed in
Schedule 2 to the Act.’
(Regulations
28(6) and (7) deal respectively, with the circumstance that a licence
is issued at a time where compliance with Regulation
28(5) is not
possible, and where a registration is renewable annually on its
anniversary date. They are not applicable here.)
[75]
Section 39 of the Act (headed “Renewal of Licence”)
provides that a licence other
than a temporary licence “remains
in force until the date of renewal”. It lapses on the
date of renewal if the
licensee fails to apply for renewal as
required by s 39(2) of the Act.
[76]
Section 30A of the Act (inserted by the amending Act of 2017) deals
with conditions of licences.
Section 30A(1) reads as follows.
‘
The
Board may, after first affording the licence holder or registrant an
opportunity to make representations, impose conditions
which are-
(a)
clear
and unambiguous;
(b)
objectively
measureable; and
(c)
reasonably
achievable,
upon
the issue of any licence or certificate of registration,
or
upon the renewal of any licence
or certificate of
registration.’
(My
emphasis)
[77]
In terms of s 60(3) of the Act a bingo licence must specify the
number of EBTs authorised for
use and in terms of s 60(2) (which
deals with the issue of bingo licences and conditions) the conditions
may stipulate “requirements
in relation to the gaming equipment
placed, used and operated” in the bingo hall, and “any
devices or electronic bingo
terminals which may be used to play
bingo”.
[78]
These provisions, and especially s 30A, reveal that insofar as the
conditions of licences are
concerned, and in this case, particularly
bingo licences, the question as to the conditions upon which such
licences are issued
must be considered not only when the licence is
first issued, but on the occasion of each renewal thereof. One
of the objectives
of the Board is to ensure that “all gambling
authorised under this Act is conducted in a manner which promotes the
integrity
of the gambling industry and does not cause harm to the
public interest”. (Section 6(a) of the Act.)
Bearing
in mind that, inevitably, mistakes may be made, the
performance of that important function would be undermined if it was
not within
the power of the gambling board to revisit conditions such
as whether EBTs should be permitted, and in what number, upon the
occasion
of the renewal of licences. The fact that it is a
requirement of any such alteration that the licensee should first be
heard
reinforces the proposition that changes to conditions may be
made which do not necessarily enjoy the support of the licensee.
[79]
I accordingly conclude that where s 30A of the Act provides that the
Board “may”
impose conditions upon the renewal of any
licence, the word “may” must be taken “to signify
an authorisation
to exercise a power coupled with a duty to do so
when the requisite circumstances are present.” (See
Joseph
and Others v City of Johannesburg and Others
2010 (4) SA 55
(CC)
at para 73.) The bingo hall operators were all licence holders
before the impugned decisions were made in January 2015.
They
only acquired licences which actually entitled them to install EBTs
when the decisions to bring that about were made after
the amendment
of the Act. Those licences were accordingly renewals with
altered conditions. Upon the occasion of those
renewals the
Board had to be satisfied that the conditions with regard to the
installation of EBTs were appropriate at that time.
The Board’s
decisions with regard to those conditions were not dependent on the
validity of the impugned decisions dating
from 2015. As Afrisun
itself has pointed out in its papers, when the Board made its
decisions in 2018 to grant the licences
under which electronic bingo
is now played, it proclaimed that it was doing to without reliance on
the impugned decisions.
There is no reason to reject that given
that it was in fact the duty of the Board to proceed in that fashion
in 2018 when it issued
licences with new conditions sanctioning the
use of EBTs.
[80]
In the circumstances I conclude that a ruling in favour of Afrisun in
these review proceedings
against bingo hall operators would have no
practical effect.
[81]
It remains to consider the law applicable to circumstances such as
these.
[82]
In
Afriforum NPC and Others v Eskom Holdings Soc Ltd and Others
[2017] 3 All SA 663
(GP) Murphy J (at para 107) held that
mootness
‘
usually
arises from events arising or occurring after an adverse decision has
been taken or a lawsuit has got underway, usually
involving a change
in the facts or the law, which allegedly deprive the litigant of the
necessary stake in the pursued outcome
or relief. The doctrine
requires that an actual controversy must be extant at all stages of
review and not merely at the
time the impugned decision is taken or
the review application is made.’
[83]
In
Comair v Minister of Public Enterprises
2016 (1) SA 1
(GP)
at para 14 Fabricius J put it this way.
‘
It
is clear that the relevant principle is that courts should not decide
matters that are abstract or academic, and which do not
have any
practical effect, either on the parties before the court or the
public at large. Courts of law exist to settle concrete
controversies and actual infringement of rights, and not to pronounce
upon abstract questions, or give advice on differing contentions.
The same principle has been stated to mean that one should rather not
deal with vague concepts such as “abstract”,
“academic”
and “hypothetical” as yardsticks. The question
rather ought to be a positive one, i.e.
whether a judgment or order
of the court will have a practical effect and not whether it will be
of importance for a hypothetical
future case.’
[84]
Problems of “mootness” arise most frequently in appeal
cases where a longer lapse
of time since the issue arose renders it
more likely that the facts have altered, or that the law has changed,
with the result
that “the issues are of such a nature that the
decision sought will have no practical effect or result, …”
(section 2(a)(i)
of the
Superior Courts Act, 10 of 2013
). The
dangers of a court of first instance overlooking the requirement that
the relief sought from it must have practical
effect were stressed in
Minister of Justice v Estate Stransham-Ford
2017 (3) SA 152
(SCA). In paragraph 22 of the judgment Wallis JA said the
following.
‘
Since
the advent of an enforceable Bill of Rights, many test cases have
been brought with a view to establishing some broader principle.
But none have been brought in circumstances where the cause of action
advanced had been extinguished before judgment at first instance.
There have been cases in which, after judgment at first instance,
circumstances have altered so that the judgment has become moot.
There the Constitutional Court has reserved to itself a discretion,
if it is in the interests of justice to do so, to consider
and
determine matters even though they have become moot. …’
The
learned Judge proceeded as follows in paragraph 25 on the subject of
the Constitutional Court deciding to hear a case notwithstanding
that
it has become moot.
‘
When
a court of appeal addresses issues that were properly determined by a
first-instance court, and determines them afresh because
they raise
issues of public importance, it is always mindful that otherwise
under our system of precedent the judgment at first
instance will
affect the conduct of officials and influence other courts when
confronting similar issues. A feature of all
the cases referred
to in the footnotes to paragraph [22] above is that the appeal court
either overruled the judgment in the court
below or substantially
modified it. The appeal court’s jurisdiction was
exercised because “a discrete legal issue
of public importance
arose that would affect matters in the future and on which the
adjudication of this court was required”.
The High Court
is not vested with similar powers. Its function is to determine
cases that present live issues for determination.’
[85]
I have found that these review proceedings, directed as they are at
the impugned decisions made
in January 2015, no longer present live
issues for determination.
THE
ORDER AND COSTS
[86]
Afrisun is the only remaining applicant. I propose to dismiss
the review application, of
which it has taken sole charge since the
first and second applicants withdrew.
[87]
Insofar as costs are concerned, despite the fact that Afrisun
purported to adopt such grounds
of review as had been advanced by the
first and second applicants, I do take the view that it would be
unfair to burden Afrisun
with costs incurred before it launched its
application to join in the proceedings.
[88]
In my view Afrisun ought to have realised that the application had
become moot and purposeless
as soon as the Act was amended.
[89]
The parties have not drawn my attention to any reserved costs
which might require separate
attention.
[90]
Finally, on the issue of costs, and out of an excess of caution, I
must record that the costs
orders I make are intended to supplement
and not to contradict any costs orders that have already been made
under the present case
number.
I
MAKE THE FOLLOWING ORDERS.
1.
The
late delivery by WMS Gaming Africa (Pty) Ltd of its notice in terms
of Rule 6(5)(d)(iii) is condoned and the third applicant’s
application under Rule 30 is dismissed with costs.
2.
(a)
The applications to deliver supplementary affidavits made by the
eleventh, twelfth, fourteenth,
eighteenth, twenty third, twenty fifth
and twenty sixth respondents (the “Galaxy respondents) and the
thirteenth, fifteenth,
sixteenth, seventeenth, twentieth, twenty
first, twenty second, twenty fourth and twenty seventh respondents
(the “Goldrush
respondents”) are granted.
(b)
The third applicant is
ordered to pay the costs incurred by
the opposition to these
applications.
3.
In the application by
the first respondent launched by notice of motion dated 28 February
2019 the following order is made.
(a)
The application for
leave to deliver an affidavit is granted.
(b)
The application is
otherwise dismissed.
(c)
There will be no order
as to costs in the application.
4.
(a)
The objection to prayers 2 to 6 of the third applicant’s
amended notice of motion is upheld,
and those prayers are struck out.
(b)
The
application to join the three respondents cited in the
joinder application launched by
notice of motion dated 11 March 2015 is dismissed with costs.
5.
The
objection to the third applicant’s standing to pursue review
proceedings against the Galaxy and Goldrush respondents other
than
the eleventh, fourteenth, fifteenth, nineteenth and twentieth
respondents is upheld.
6.
(a)
The main review application is dismissed.
(b)
The
third applicant is ordered to pay the costs of the
eleventh to twenty seventh
respondents incurred after 3 February 2015 to the extent that such
costs have not been dealt with separately
above.
(c)
The
costs incurred by the eleventh to twenty seventh
respondents in objecting to the
additional relief referred to in paragraph 4 (a) of this order shall
be included in those recoverable
in terms of paragraph 6 (b) of this
order.
(d)
There
will be no order as to the first respondent’s costs in
the main review application.
7.
All
costs orders set out above shall include the costs of two counsel
where employed, and any costs that have been reserved.
Olsen
J
Date of Hearing:
WEDNESDAY,
17 APRIL 2019; &
THURSDAY, 18 APRIL 2019
Date of Judgment:
THURSDAY, 04 JULY 2019
For the Third Intervening
Applicant:
Mr N Singh SC with Mr T Dalrymple
Instructed by:
Knowles Husain Lindsay Inc.
Intervening Third
Applicant’s Attorneys
c/o Cajee
Setsubi Chetty Inc
195 Boshoff Street
Pietermaritzburg
KwaZulu-Natal
(Ref.: Mr
Essa) (Tel: 033 – 345 6719)
Email:
grs@khl.co.za
/
asifessacsc@mweb.co.za
)
For the 1
st
Respondent: Mr A Potgieter SC with Mr K
Gounden
Instructed by:
Venns Attorneys
1
st
Respondent’s Attorneys
281 Pietermaritz
Street
Pietermaritzburg
KwaZulu-Natal
(Ref.: I
Chohan/Sharika)
(Tel.: 033 –
355 3131)
For 11
th
, 12
th
,
14
th
,
18
th
, 23
rd
,
25
th
, & 26
th
Respondents:
Mr M Pillemer SC with Mr P Farlam SC
Instructed by :
Edward Nathan Sonnenbergs
11
th
,
12
th
14
th
,
18
th
,
23
rd
,
25
th
&
26
th
Respondents’
Attorneys
ENS House, 1 North Wharf Square
Loop Street
Foreshore
Cape Town
(Tel: 021 – 410 2500 /
021 424 8088)
(Email:
jzieff@ensafrica.com)
c/o Tatham Wilkes Ic
200 Hoosen Haffejee Street
Pietermaritzburg
KwaZulu-Natal
(Ref.: Mr H
Drummond) (Tel.: 033 – 345 3501)
For 15
th
16
th
,
17
th
, 20
th
,
21
st
, 22
nd
, 24
th
& 27
th
Respondents:
Mr B Roux SC with Ms M Smit
Instructed by:
Cliffe Dekker Hofmeyr Inc.
15
th
,
16
th
,
17
th
,
20
th
,
21
st
,
22
nd
,
24
th
&
27
th
Respondents’ Attorneys
(Tel: 011 –
562 1000)
c/o Ayoob
Attorneys
Suite 2, SDC Centre
495 Church Street
Pietermaritzburg
KwaZulu-Natal
(Ref.: Mr AKA
Ayoob)
(Tel.: 033 –
342 7175)
For 1
st
Respondent in
the joinder application:
Mr S Budlender SC with Mr E Webber
Instructed by:
Bowman Gilfillan
1
st
Respondent’s
Attorneys in the joinder application
11 Alice Street
Sandton
Johannesburg
(Ref.: Lyndal Anderson / Max
Taylor)
(Tel.: 011 – 669 9000)
(Email:
lyndal.anderson@bowmanslaw.com
max.taylor@bowmanslaw.com
)
For 2
nd
Respondent in
the joinder application:
Mr I Miltz SC with Mr M Williams
Instructed by:
Werkmans Attorneys
2
nd
Respondent’s Attorney in the
joinder application
The Central, 96
Rivonia Road
Sandton
Johannesburg
(Ref.: P
Burger/ne) (Tel.: 011 – 535 8143)
c/o
Stowell & Co.
295 Pietermaritz
Street
Pietermaritzburg
KwaZulu-Natal
(Ref.: Sarah
Myhill / Sumaya)
(Tel.: 033 –
845 0500)