Van Rooyen v Chairperson: Northen Cape Gambling Borad and Others (1272/2006) [2006] ZANCHC 55 (6 November 2006)

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[2006] ZANCHC 55
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Van Rooyen v Chairperson: Northen Cape Gambling Borad and Others (1272/2006) [2006] ZANCHC 55 (6 November 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1272/2006
Case
Heard: 30/10/2006
Date
delivered: 6/11/2006
In
the matter between:
M
M B VAN ROOYEN APPLICANT
and
THE CHAIRPERSON: NORTHERN CAPE
GAMBLING BOARD FIRST RESPONDENT
THE MEC FOR
FINANCE AND
ECONOMIC
AFFAIRS SECOND RESPONDENT
PEERMONT GLOBAL (PTY) LTD
THIRD RESPONDENT
LEITHLO (PTY) LTD FOURTH
RESPONDENT
Coram:
Olivier J
JUDGMENT
OLIVIER
J:
The
applicant, mr Matthys Machiel Basson van Rooyen, applied for an
interdict barring the first respondent, the chairperson of the
Northern Cape Gambling Board (
“the
Board”
) from
proceeding with public hearings in respect of a casino licence in
Kuruman and from
“taking
any further steps or doing any such other thing as may be relevant
to the casino applications”
,
pending the finalisation of his application under case number 770/06
(which has been set down for hearing on 2 March 2007 and
will
hereinafter be referred to as the
“main
application”
).
The
“casino applications”
alluded to were the proposals of Peermont Global (Pty) Ltd (the
third respondent) and Leithlo (Pty) Ltd (the fourth respondent)
for
the grant of a licence to operate a casino within the Kuruman area.
Neither of these respondents entered opposition to the
application
for interim relief (the
“interim
application”
). The
second respondent, the member of the Executive Council responsible
for finance and economic affairs in the Northern Cape
Province,
eventually withdrew his opposition in the interim application and
indicated that he would abide by the Court’s decision.
The
relief claimed in the notice of motion in the main application is a
declaratory order that policy directives laid down by the
second
respondent were not amended and is still in force, alternatively
that the applicant should be furnished with certain information
regarding the amendment of such policy. As will also appear in what
follows, the policy indicated that the province’s third
casino
licence would be allocated in the Colesberg area (and not in the
Kuruman area).
The
applicant’s aim with the interim relief was therefore clearly to
stop all proceedings in the consideration of the proposals
of the
third and fourth respondents to be granted the licence to operate a
casino in the Kuruman area.
The
interim application was brought on an urgent basis on 30 October
2006. It was not disputed that the application was indeed
of an
urgent nature and it was accordingly dealt with as such. After
hearing argument and perusing the papers in both applications
I
dismissed the applicant’s interim application with costs and
indicated that my reasons would follow. These are my reasons.
BACKGROUND
In
Provincial Gazette Extraordinary no 264 of 29 September 1997 the
Premier’s Notice No 7 of 1997 was published under the title
“Policy directives for
gambling and related matters in the Northern Cape Province”
.
In paragraph 1.3 of the introduction thereto it was stated that the
directives
“constitute
policy determinations within the meaning of section 2 (2) of the
Northern Cape Gambling and Racing Act, No 5 of 1996”
.
In
paragraph 5 it was stated that the maximum permissible number of
casino licences in this province would be three, that Kimberley,
Upington and Colesberg
“have
been identified as suitable for casino developments”
and that licences would therefore be awarded in only those areas.
Paragraph
7 of the notice will probably be of specific importance in the main
application and reads as follows:
“
In order to
ensure some degree of certainty to potential investors, the
provincial government undertakes the following:
the
spirit and context of current provincial policy will remain for a
minimum of ten (10) years, unless national norms require otherwise,
and
there
will be no change in levies or fees as set out in schedule 3 for a
minimum of five (5) year period.”
On
1 February 1999, and by means of a similar notice, proposals for a
casino licence for Colesberg were invited. It was common
cause that
there had been no reaction to this invitation.
As
long ago as during 2002 attorneys (purporting to act on behalf of
Desert Dune Hotel and Casino) approached the then Premier of
this
province and the Board with a suggestion that the licence which was
originally allocated to Colesberg be relocated to Kuruman,
where
their client was interested in operating a casino.
After
numerous enquiries they were informed, on 22 November 2005, that a
decision had been taken to relocate the third licence from
Colesberg
to Kuruman. A copy of the relevant resolution of the Executive
Council of this province can be found in the papers in
the main
application. It is dated 14 September 2005 and reads as follows:
“
THIRD
CASINO LICENCE
RESOLVED:-
That the Executive
Council approves the granting of the third casino licence to
Kuruman.”
(The other two licences
having been allocated to Kimberley and Upington.)
Thereupon
the attorneys on more than one occasion attempted to obtain
information about this decision, as well as copies of certain
documentation. The applicant’s case was that, in order for him to
submit a proposal for the licence for the Kuruman area, he
was
entitled to such information to enable him to ensure that the
abovementioned directives had been properly amended and that
the
process of relocating the third licence to Kuruman was legally
valid. The main contention on his behalf in this regard was
that he
was required to submit a non-refundable deposit of R500 000,00 with
his proposal for the licence and that it could not
be expected of
him to make such a huge financial commitment without the assurance
that the relocation of the third casino licence
was valid.
The
requests for information elicited no response (as was sadly also the
case with a substantial part of the other correspondence
which the
attorneys had directed to,
inter
alia
, the Premier’s
office).
On
26 December 2005 (and again by means of a notice published in a
Provincial Gazette) proposals for a casino licence for the Kuruman
area were invited. On 15 February 2006 the attorneys (once again
stating that they were acting on behalf of Desert Dune Hotel
and
Casino) addressed a letter to the Board in which it was stated that
this notice had come to their attention
“recently”
.
As
will be referred to again in what follows, it is the applicant’s
case that the attorneys had in fact been acting on his behalf.
What
is of importance for the moment is that the applicant had therefore
by then been aware of the invitation for proposals for
the licence
in the Kuruman area. In fact, the initial closing date (for the
submission of such proposals) of 28 February 2006
was extended to 31
March 2006 at the request of the same attorneys.
It
is also of interest to note that, in the letter of 15 February 2006,
the attorneys made the unqualified statement that they had
been
instructed
“to draft
and submit an application
(for the licence)
”
.
No mention was at that stage made of the earlier requests for
information.
No
such proposal for the licence was, however, submitted before the
extended closing date or behalf of either the applicant of Desert
Dune Hotel and Casino. Instead the applicant persisted in his
attitude that he was entitled to the information regarding the

relocation of the licence before submitting a proposal and he
eventually filed the main application on 27 June 2006. It is clear
that a deliberate decision had been taken not to submit a proposal
(for the licence).
On
19 October 2006 the first respondent published (in a local
newspaper) a notice that public hearings were to take place on 31
October 2006 and 1 November 2006 in respect of the proposals of the
third and fourth respondents. The first and second respondents
thereupon refused to furnish an undertaking not to continue with the
hearings or with the consideration of the proposals of the
third and
fourth respondents (pending the finalisation of the main
application) and the applicant then approached the Court with
the
interim application.
REQUIREMENTS FOR
INTERDICT
“
It
is trite law that in order to obtain an interim interdict an
applicant has only to show:
a
right which, though
prima
facie
established, is open to some doubt;
a
well-grounded apprehension of irreparable injury;
the
absence of ordinary remedy;
and that the balance
of convenience is in favour of granting interim relief ….…”
(see
Video Rent and Another v
Flamingo Film Hire
1981
(3) SA 42
(C) at 44E)
RIGHT
It
is not required of or appropriate for a Court in an application of
this nature to consider the merits of the main application
with a
view to make a final and binding ruling in respect thereof (see
Mariam v Minister of the Interior and Another
1959 (1) SA 213
(T) 218C-E and
Holtzhausen
and Another v Gore NO and Others
2002 (2) SA 141
(C) at 159C-D, and compare
Geyser
v Nedbank Ltd and Others In re Nedbank Ltd v Gyser
2006 (5) SA 355
(W) at 360A-E).
The
crucial question for the purposes of the interim application was
whether the applicant
prima
facie
had a legal right
which he was entitled to protect or enforce in the main application
and which could be frustrated or prejudiced
should the hearings take
place or should any further steps be taken regarding the third and
fourth respondents’ applications
for the casino licence.
Mr
Sibeko, who appeared on behalf of the first respondent, raised the
question whether the applicant had shown that he was, in his
own
name, entitled to the relief that he is claiming in the main
application. This would obviously also have affected his
locus
standi
in the interim
application.
Mr
Sibeko’s point in this regard was that it appeared from the
annexures to the applicant’s founding affidavit in the main

application that
“his”
attorneys had, in their correspondence, throughout stated that they
were acting on behalf of
“Desert
Dune Hotel and Casino”
.
In his founding affidavit in the interim application the applicant
simply described himself as
“an
adult businessman”
.
In reply, and in reaction to the first respondent’s remarks
regarding the applicant’s
locus
standi
(and the question
whether he, in his personal capacity, had a right which had to be
protected), the applicant referred to his founding
affidavit in the
main application, in which he had simply averred that he was in the
process of establishing a company which would
be named
“Desert
Dune Hotel and Casino”
.
Even
then the applicant did not, however, state what his interest in the
company was going to be and how he in his personal capacity
could be
affected by the events pertaining to the relocation of the third
licence. It is, in any event, trite that an applicant
should make
out his case regarding,
inter
alia, locus standi
in
the founding affidavit (see
Eagles
Landing Body Corporate v Molewa NO and Others
2003 (1) SA 412
(T) at 423I-424H).
It
is so that a copy of the founding affidavit in the main application
was annexed to the applicant’s founding affidavit in the
interim
application, but the applicant (in his founding affidavit in the
interim application) never referred thereto in regard
to his
locus
standi
or in an attempt
to show why he, in his personal capacity, had a right which had to
be protected (see
Swissborough
Diamond Mines v Government of the RSA
1999 (2) SA 279
(T) at 324F-G). Even if he had, however, one would
still have had to speculate about what exactly his interest in the
company
was going to be (and this was not cleared up in reply).
Although
it might be so that the applicant’s attorneys had been instructed
to effect the establishment of a company by such a
name, it is clear
that such a company has not yet been formed. Insofar as the
intention might have been to let the company submit
a propsal for
the licence, this would therefore in any event not have been
possible (and is still not possible), regardless of
whether the
information sought in the main application had been supplied before
the closing date or not.
It
was never explained why the attorneys would, since as long ago as in
April 2002, have stated repeatedly that they were a acting
on behalf
of Desert Dune Hotel and Casino, if they had known very well that no
such legal entity existed. The question then is
whether there was
(and is) a firm or an association with this name (which has not yet
been registered as a company) and, if so,
what the applicant’s
interest therein is.
In
reply the applicant also stated that he would in any event as an
individual and a
“law
abiding tax paying citizen of a democratic South Africa have a
constitutional right”
to approach the Court to ensure that the Board acts
“in
a transparent and fair manner”
.
Insofar
as the applicant might in this regard have been relying upon the
provisions of section 38 of the Constitution he would still
have had
to prove that, as an individual and in his personal capacity;
“
(a) he
has a direct and substantial interest;
(b) in
the right which is the subject-matter of this litigation;
(c) which is not
merely a commercial or financial interest, but which constitutes a
legal interest; and
(d) which could be
prejudicially affected by the outcome of the litigation.”
(see
Vandenhende v Minister
of Agriculture, Planning and Tourism, Western Cape, and Others
2000 (4) SA 681
(C) at 690I-691A and 694H-695I)
The
applicant did not in my view make out a case that he as an
individual and in his personal capacity had the required
“interest”
to have
locus standi
,
or in fact to show which of his constitutional rights (as an
individual) had been infringed upon or was being threatened.
The
applicant in any event failed to show that his right (assuming that
he had such a right) to approach the Court in the main application,
or whatever rights he intended to enforce or protect in the main
application, would be prejudiced if the hearings were continued
or
if any further steps were taken in the consideration of the third
and fourth respondents’ proposals. Even if the Board should
in
the meantime grant the licence to either the third or the fourth
respondent, the applicant would still have the right to proceed
with
the main application and could then apply for the setting aside of
the grant of the licence (provided of course that he can
make out a
case that the process which had been followed in relocating the
licence had rendered the Board incompetent to grant
any licence).
As
regards the merits of the main application the applicant’s case
seems to be that the relocation of the third licence to Kuruman
would not have been competent on a proper reading of the directives
as they stand, that an amendment of the directives themselves
would
therefore have been a prerequisite and that such an amendment would
have had to be published (like the directives were).
When
regard is had to the papers in the main application it is clear that
there had been no interest at all in the casino licence
for
Colesberg and that a detailed investigation and recommendations had
preceded the decision taken by the Executive Council to
relocate the
third licence to Kuruman. The findings that were made in the
investigation (and the recommendations) have expressly
been adopted
as reasons for the decision to relocate the third licence.
It
also appears from the papers in the main application that there had
been a danger of the national government withdrawing the
third
casino licence (which it had originally allocated to this province),
which would obviously have resulted in a loss of all
the benefits of
such a licence, not only to the provincial government, but also to
the inhabitants of the Kuruman area.
In
my view these facts
prima
facie
necessitated the
relocation of the licence. The relocation of the third licence to
an area where it would best benefit the province
and its inhabitants
would certainly have been in accordance with
“national
norms”
(see paragraph
7 (a) of the directives), which would apparently have entitled the
second respondent to relocate the third licence
without any
amendment.
Mr
Coetzee, who appeared on behalf of the applicant, could not refer me
to any prescribed requirement that such a decision to relocate
would
have had to be published (let alone be published in the form of an
amendment of the policy directives).
As
regards the contention that it should have been brought to the
notice of the public that the third licence had been relocated,
mr
Sibeko drew my attention to the fact that, in the notice which had
been published on 26 December 2005 (and in which proposals
for the
Kuruman licence were invited), the following was expressly stated:
“
11.
Maximum
permissible number of casino licences to be issued in the Province in
terms of policy directives and other related matters
in the Province.
A maximum of 3
casino licences will be issued in the Northern Cape.
The
following location has been identified as suitable for casino
development.
In
the Policy Directives for Gambling and related matters published
under Premier’s Notice 7 on
(
sic
)
29 December 1997,
Kimberley, Upington and Colesberg were identified as suitable for
casino development. Due to the failure to attract
investment in the
Colesberg area, the Colesberg casino licence has been relocated to
Kuruman including a surrounding 100 km zone.”
This
statement would have made it very clear to the public that the
licence had been relocated. In my view the applicant has therefore,
quite apart from the problem regarding his
locus
standi
(in both the
applications) and the question whether he in his personal capacity
has a right to be protected, not made out a case
that the fact that
the 10 year period mentioned in paragraph 7 (a) of the directives
had not yet expired had necessitated a formal
and published
amendment of the directives.
The
applicant’s case was in essence based upon the premise that he
would have forfeited the R500 000,00 submittal fee (that
the
notice of 26 December 2005 required proponents to pay) if he had
submitted a proposal and it later appeared that the licence
had not
validly been relocated.
Even
if it had to be assumed, for the moment, that the process had been
flawed (and even invalid) the question would still remain
whether
any later acts and decisions (like for instance the granting of a
licence) would also be invalid (compare
Oudekraal
Estate (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at 244B-D).
The
applicant did not even attempt to make out a case to the effect
that, had he submitted a proposal and had the licence been awarded
to him (or to Desert Dune Hotel and Casino), the award of the
licence would have been invalid because of the flawed procedure

followed in relocating the licence.
Even
if it is to be assumed, however, that this would indeed have been
the result, the contention that the submittal fee would in
such
circumstances be
“non-refundable”
was never substantiated. When perusing the contents of the notice
of 26 December 2005 myself, the closest I could find to
any
provisions which could arguably have this result is paragraph III C
of Part two of the notice, which reads as follows:
“
All
costs and expenses incurred by Proponents and their Participants
relating to their proposals will be borne by the Proponents.
The
Northern Cape Gambling and Racing Board is not liable to pay such
cost and expenses or to reimburse or to compensate Proponents
and
their Participants
under
any circumstances
,
including the rejection of any or all proposals or the cancellation
of the RFP or the Project itself.”
(My emphasis)
In
passing I have to say that I find it strange that the applicant
would have been prepared to risk forfeiting a sum of R500 000,00
in the event of the cancellation of the request for proposals or the
cancellation of the project itself, but not on the basis of
the
relocation of the licence proving to be fatally flawed.
Be
that as it may, the question would be whether the phrase
“under
any circumstances”
would justify such a forfeiture in circumstances where it turns out
that the relevant authorities had themselves been instrumental
in
the fact that a licence could not have been granted validly.
I
find it completely inconceivable that this could ever be so. It
would mean that the party who had been responsible for the fact
that
a licence could not have been legally granted (but who had
nevertheless invited proposals for the granting of such a licence)
would in effect benefit from its own failure to follow the correct
procedure prior to such invitation. Such a result would indeed
be
absurd and such an interpretation of the words
“under
any circumstances”
should therefore not be applied.
It
is equally inconceivable that the parties to paragraph III C of the
notice could have intended the phrase to also cover the case
where
the granting of a licence eventually turns out to have been invalid,
and indeed because of the fact that one of them (the
Board) had in
effect never been competent to invite proposals for a licence in the
Kuruman area (compare
Galloon
v Modern Burglar Alarms (Pty) Ltd
1973 (3) SA 647
(C)).
It
would seem as though most of the information mentioned in the
alternative claim in the main application is at this stage at the
disposal of the applicant and it was in my view not explained,
either by the applicant himself or in argument on his behalf, how
such information (or in fact any outstanding information) is going
to assist the applicant in any way.
IRREPARABLE INJURY
The
applicant also failed to show that, should the hearings continue or
further steps be taken regarding the consideration or granting
of
the licence, it would cause the applicant irreparable harm or
injury.
Should
he be able, either in the main application or at a later stage, to
prove that the relocation of the licence to Kuruman is
flawed to
such an extent that such further steps could not have been validly
taken he could apply for the review of such steps.
BALANCE OF
CONVENIENCE
The
“harm”
of later having to approach the Court on review is by far outweighed
by the income (in the form of levies and fees) which provincial
government would inevitably forfeit through a delay in the granting
of the licence and the job opportunities and economic benefits
which
would in the meantime have had to be put on hold; not even
mentioning the harm which would have resulted should the national
government have withdrawn the third licence.
CONCLUSION
It
was for these reasons that I came to the conclusion that the
applicant was not entitled to the relief claimed in the interim
application.
The
unfortunate fact that the letters by the applicant’s attorneys
were on a number of occasions not even responded to is, although
deplorable, not relevant to the facts of the interim application and
there was consequently no reason why the costs of the application
should not follow the result.
________________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant: Adv W Coetzee
Instructed
by: Duncan & Rothman, KIMBERLEY
For
1
st
Respondent: Adv L T Sibeko
Instructed
by: Job Attorneys, KIMBERLEY