Briedenhann v Peermont Global (Eastern Free State) (Pty) Ltd (5839/2008) [2008] ZAFSHC 147 (4 December 2008)

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[2008] ZAFSHC 147
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Briedenhann v Peermont Global (Eastern Free State) (Pty) Ltd (5839/2008) [2008] ZAFSHC 147 (4 December 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 5839/2008
In the case between:
JOHANNES
GIDEON BRIEDENHANN
Plaintiff
and
PEERMONT
GLOBAL (EASTERN FREE STATE)
PTY
LTD
Defendant
______________________________________________________
JUDGMENT:
VAN DER MERWE, J
HEARD
ON:
13 NOVEMBER 2008
______________________________________________________
DELIVERED ON:
4 DECEMBER 2008
[1] When the plaintiff
left the casino operated by the defendant in Bethlehem at
approximately 23h00 on 17 May 2008, he had in his
possession a cheque
drawn on that day by the defendant in favour of the plaintiff in the
amount R289 950,00 (“the cheque”),
representing the plaintiff’s
winnings at the roulette tables. On 19 May 2008 however, the
defendant countermanded the cheque,
resulting in the plaintiff’s
present action for provisional sentence based on the cheque.
[2] The cheque therefore
represents a gambling debt between immediate parties. At common law
a gambling debt is not enforceable
and cannot be recovered through
the courts. However, section 16(1)(a) of the National Gambling Act,
No 7 of 2004 (“the Gambling
Act”) provides that despite any
provision of the common law or any other law than the Gambling Act, a
debt incurred by a person
in the course of a gambling activity that
is licensed in terms of the Gambling Act or a provincial law, is
enforceable in law.
It is not disputed that the defendant operates a
licensed casino.
[3] On the other hand
section 16(1)(c) of the Gambling Act provides that a debt incurred by
a person in the course of any gambling
activity that is unlawful in
terms of the Gambling Act or applicable provincial law is not
enforceable in law. The common law
principle of unenforceability of
a gambling debt therefore remains applicable in such a case. A
provincial law is defined in the
Gambling Act as an Act of a
provincial legislature concerning the regulation of casinos,
gambling, racing or wagering and includes
subordinate legislation
made in terms of such Act. The applicable provincial legislation is
the Free State Gambling and Racing
Act, No. 6 of 1996 (“the Free
State Act”) and the regulations thereunder, namely the Free State
Gambling and Racing Regulations,
1998 (“the Regulations”).
Roulette is a casino game in terms of the Free State Act and the
Regulations. As is to be expected,
cheating at a casino game is
prohibited by both the Free State Act and the Regulations. Section
85(1) of the Free State Act
inter
alia
provides that no person shall allow anyone to conduct, carry on or
operate any cheating or shall contravene the rules of any game
with
the intention of obtaining any pecuniary advantage directly or
indirectly, whether for himself or herself or any other person.

Section 160 of the Regulations
inter
alia
provides that no person may claim, collect or take or attempt to
claim, collect or take money or anything of value in or from any

gaming activity, with the intent to defraud, without having made a
wager contingent thereon or claim, collect or take an amount
greater
than the amount won. It follows that a debt incurred in the course
of a gambling activity that involved cheating is unlawful
and
therefore unenforceable.
[4] The defendant’s
case is that the plaintiff cheated at the roulette tables with the
help of one of the defendant’s employees,
one Mr Charles Seitshiro,
in the exercise or furtherance of a conspiracy to do so. It is clear
in my view that if this allegation
is proved, the debt represented by
the cheque would be unenforceable, as was properly conceded by the
counsel for the plaintiff.
The question for decision therefore is
whether the defendant has satisfied the onus to show that in the
principal case the probabilities
are against the plaintiff, taking
also into account that in the principal case the burden of proof on
this defence will rest on
the defendant.
[5] It is not necessary
in this case to provide more than a cursory exposition of the game of
roulette. The game is played with
the use of a table layout and a
roulette wheel. Both the table layout and the roulette wheel have 37
compartments numbered 0 to
36. The table layout and roulette wheel
are operated by a croupier or dealer. For each table there is also
an inspector whose
main duty is to detect and correct any errors
made. Bets are normally placed by placing casino chips on a number
or combination
of numbers on the table layout. A roulette ball is
then spun around the roulette wheel. While the ball is spinning the
dealer
at some stage will call “no more bets”, signifying that no
further bets will be accepted. When the ball slows down it falls

into one of the compartments on the roulette wheel, thus indicating
the winning number for the particular game of roulette. A
marker
(“dolly”) is then placed on the winning number on the table
layout whereafter the dealer pays out the winning bets in
accordance
with the odds coupled to each particular winning bet.
[6] This case however
concerns so-called call bets. Call bets are placed by the player by
giving to the dealer sufficient cash
or chips and announcing or
calling the bet, that is the number or numbers on which the call bet
is made and the type of call bet.
The bet is accepted when repeated
by the dealer who then places the bet against a marker button, as
opposed to the player placing
the bet directly on the table layout.
Adjacent to the roulette wheel is a tray with marker buttons for this
purpose. A call bet
can of course also not be placed after the dealer
has called “no more bets.” For present purposes it is only
necessary to
refer to the call bets “to the full maximum” and “to
the half maximum”. A call bet to the full maximum requires R4
000,00
per number called and in the case of a call bet to the half
maximum, R2 000,00 per number is required. The effect of an accepted

call bet to the full maximum is that of R4 000,00 in chips placed in
specified combinations on the number called as well as on
eight
numbers surrounding that number on the table layout. If a call bet
to the full maximum was made on the winning number, there
will
therefore be a payout of R39 200,00. If a call bet is made to the
full maximum on two numbers, therefore requiring R8 000.00,
the
result of only one of the numbers being a winning number will be the
amount of R35 200.00, as the R4 000.00 placed on the losing
number is
lost. The position with a bet to the half maximum is the same
subject thereto that only the amount of R2 000,00 is bet
per number
bet to the half maximum, with resultant lower payout.
[7] The roulette tables
relevant hereto are tables ARO3 and AR04. Legislation requires that
the defendant place surveillance equipment
in the casino. In the
result two closed circuit television cameras were installed in
respect each of the said two roulette tables.
Each camera has its
own dedicated digital video recorder which records automatically and
continuously on a 24 hour basis. The
cameras are also linked to
audio devices positioned at the said tables. On inspection of the
recordings thus made, the defendant
detected three incidents which
the defendant alleges constitute incidents of cheating in the
furtherance of a conspiracy to do
so between the plaintiff and Mr
Seitshiro. The first incident referred to by the defendant took
place on 14 May 2008 at table
AR03, commencing at approximately 21h15
with Mr Seitshiro being the inspector at the time. The second
incident referred to took
place at approximately 13h45 on 17 May 2008
at table AR03 whilst Mr Seitshiro again was the inspector. The third
incident that
the defendant relies on in this connection took place
at about 14h49 on 17 May 2008 at table AR04, whilst Mr Seitshiro was
the
dealer. During each incident Mr Seitshiro changed bets to the
advantage of the plaintiff, according to the defendant.
[8] For the reasons that
follow, I believe that the second incident mentioned, is decisive of
the matter. I therefore deem it unnecessary
to deal with the
aforesaid first and third incidents.
[9] According to the
defendant the surveillance recordings show that the second incident
took place as follows:
“
Time
Event
13:44:56 The
dealer, Ms Lydia Mkhwanazi, spins the roulette ball.
The
Plaintiff is standing at AR03 and the inspector, Mr Seitshiro, is
standing between AR04 and table BJ04.
13:45:08
The dealer announces final bets.
13:45:10
The Plaintiff proceeds to AR04 (from AR03) and, at the same time, Mr
Seitshiro stands closer to AR04, and gives his undivided
attention to
AR04.
13:45:14
The dealer announces "no more bets thank you” and waves her
hands above the table.
13:45:15
The Plaintiff puts down R8 000 in cash next to the dealer and calls
"fourteen and twenty three to the full max"
'
13:45:16 The
roulette ball drops in number 3
13:45:19 The
dealer announces "change only, nothing goes" -thus,
declaring the bet a no bet and that the cash will only
be changed for
chips and not accepted for a bet. Whilst doing this, the dealer
places the money on the change block (where money
or chips are kept
for changing).
13:45:21
Mr Seitshiro says "two, seventeen"
13:45:23
The dealer places the dolly and announces "three red". Mr
Seitshiro then says "two, seventeen" again
twice.
13.45:27
The dealer asks the Plaintiff "two, seventeen to the half'?
13:45:28
The Plaintiff responds "uh”.
13:45:29 The
dealer asks the Plaintiff again "two and seventeen to the half'?
13:45:32
The Plaintiff replies "fourteen and three" and gestures by
spreading three fingers.
13:45:33 The
dealer repeats to Mr Seitshiro "fourteen and three"?
13:45:39
Mr Seitshiro tells the dealer something inaudible, and the dealer
says "two" in response. The Plaintiff tries
to call Mr
Seitshiro, saying "sorry'' .
13.45:52
Mr Seitshiro says something inaudible to the dealer, throws the 2 x
white full max bet markers, and instructs the dealer
again "two,
seventeen". At this time, the Plaintiff walks to AR03, but
watches
AR04.
13:45:56
The dealer places the full max bet markers on 2 and 17, as
instructed by Mr Seitshiro.
13:46:00
The dealer asks Mr Seitshiro if she can count the cash. He says yes.
At the same time, the Plaintiff walks back to ARO4,
13:46:04
Mr Seitshiro has his right hand on the value chip tray. The
Plaintiff looks at him, and Mr Seitshiro then turns his hand
upside
down with his palm facing upward.
13:46:09
Mr Seitshiro stands back and the Plaintiff walks to AR03.
13:46:15
The dealer starts counting the cash.
13:46:16
Mr Seitshiro also proceeds to AR03. Mr Seitshiro and the Plaintiff
look at one another.
13:46:31
Mr Seitshiro returns to AR04. The Plaintiff observes the proceedings
on AR04 whilst standing at AR03. Mr Seitshiro and
the Plaintiff
repeatedly look at one another and then at the table.
13:49:07
The dealer finishes counting the cash and places the chips for the
winning bet.
13:56:00 The
dealer pays out R19 400 (38 x R500 and 4 x R100) - for the winning
combinations of number 2 that covered number 3.
“
[10] As a result of the
winning combinations attached to a bet to the full maximum on number
2, that also covered number 3, the
plaintiff collected a payout of
R19 400,00. Had the plaintiff’s call bet of 14 and 23 been
properly accepted, he would have
lost R8 000,00.
[11] The response of the
plaintiff to the facts so alleged, was very limited. He said that on
the recordings provided and inspected
before the replying affidavit
was filed, the conversations are unclear, “(gesprekke onduidelik)”.
He did not however say that
the audio recordings did not contain
what the defendant set out. He denied the allegation that at
13:45:52 he kept an eye on table
AR04 whilst walking to AR03. He
denied that the recordings contained any indication thereof that the
plaintiff and Mr Seitshiro
looked at each other as alleged and he
denied that any gestures were exchanged between himself and Mr
Seitshiro.
[12] It appears to me
that the exposition of the incident in question set out above, is the
result of painstaking and meticulous
inspection and analysis of video
and audio recordings for the very purpose of using it in court.
Moreover, these recordings were
made available to the plaintiff and
inspected by him and his advisors before the replying affidavit was
made. As mentioned above,
it resulted in a nonchalant response from
the plaintiff. In my judgment the probabilities on this point are
against the plaintiff
and the matter must be decided on the basis
that the defendant will probably establish at the trial that the
incident took place
as set out above.
[13] Upon analysis of the
incident on this basis it is important to note that Mr Seitshiro
stood closer to and gave his undivided
attention to the table in
question, namely AR04. It is therefore highly improbable that Mr
Seitshiro could have been unaware thereof
that the plaintiff
attempted the call bet after the dealer called “no more bets thank
you” and that he could have been unaware
thereof that the dealer
consequently declared the plaintiff’s bet a no bet. Mr Seitshiro
had no reason at all to call any numbers,
in fact it is common cause
that in these circumstances he should have seconded the dealer’s
announcement of no bet. Mr Seitshiro
called or announced the numbers
2 and 17 in these circumstances approximately 6 seconds after the
plaintiff’s call of 14 and
23. It is hardly possible that Mr
Seitshiro could have been confused about these numbers, as was lamely
suggested by the plaintiff.
Notably, Mr Seitshiro’s announcement
was made after the winning number had been ascertained and without
any protest or expression
of dissatisfaction from the part of the
plaintiff. Only after Mr Seitshiro’s announcement of a call of 2
and 17, did the plaintiff
attempt to have the call changed to 14 and
the winning number 3, which indicates that the plaintiff attempted to
get more help
from Mr Seitshiro. In these circumstances also the
plaintiff’s assertion that the dealer was inexperienced, in fact
counts against
the plaintiff on the probabilities.
[14] In the final
analysis the question is whether on the probabilities the conduct of
Mr Seitshiro and the plaintiff must be ascribed
to incompetence on
the part of Mr Seitshiro and inadvertence on the part of the
plaintiff, as he alleged, on the one hand, or whether
it was
deliberate conduct. In this regard counsel for the plaintiff pointed
out that upon inspection of the relevant surveillance
recordings the
defendant detected that many other errors were made at the roulette
tables. This is true, but all the other incidents
referred to,
except the three referred to above, involved errors of calculation in
relatively small amounts. None involved the
changing of a bet. On
behalf of the plaintiff stress was also laid thereon that it is
common cause that the plaintiff participated
in 229 games of roulette
on 17 May 2008 and that close inspection of the surveillance
recordings in this regard only revealed the
two incidents that the
defendant relies on in respect of that date. It is however
undisputed that prior to the abovementioned
incident the plaintiff
had a net loss on each of the two roulette tables totalling
approximately R21 000,00. Also on the probabilities
both the
plaintiff and Mr Seitshiro were aware of the arrangement that upon a
player winning more than R10 000,00, the particular
player and/or
table is placed under scrutiny by the defendant. In the result I
believe that the probabilities appearing from the
conduct of Mr
Seitshiro and the plaintiff are decisive and that the probabilities
favour the conclusion that they acted deliberately.
[15] Deliberate conduct
of this kind can hardly be regarded as a co-incidence. The
probabilities in my view favour the inference
that Mr Seitshiro
stepped in in the manner that he did during the aforesaid incident as
a result of an arrangement or understanding
between himself and the
plaintiff to assist the plaintiff contrary to the rules of the game
and of the casino, when the opportunity
presents itself. That, in my
book, is a conspiracy to cheat.
[16] It follows that
provisional sentence must be refused.
[17] The following orders
are made:
1. Provisional sentence
is refused with costs.
2. The provisional
sentence summons stands as simple summons, it is deemed that notice
of intention to defend was delivered on date
of this judgement and
the rules of Court in respect of a civil action apply to further
process.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of the
plaintiff: Adv. A. J. R. van Rhyn SC
Instructed by:
Cooper Majiedt
BLOEMFONTEIN
On behalf of the
defendant: Adv. S. W. Burger
Instructed by:
McIntyre & Van
der Post
BLOEMFONTEIN
/em