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2024
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[2024] ZANCHC 84
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Vengies Gaming (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd and Others (1214/2022) [2024] ZANCHC 84 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO:
1214/2022
Reportable:
YES / NO
Circulate
to Judges: YES
/ NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates:
YES / NO
Edited:
YES / NO
In
the matter between:
VENGIES
GAMING (PTY) LTD
Applicant
and
DEEPS
BETTING GROUNDS (PTY) LTD
First Respondent
THE
CHAIRPERSON: NORTHERN CAPE
GAMBLING
BOARD
Second Respondent
THE
NORTHERN CAPE GAMBLING BOARD
Third Respondent
Coram
:
Nxumalo, J
JUDGMENT
NXUMALO
J:
[1]
This is an
application for leave to appeal to the Full Court of this
Division.
[1]
The applicant in
these proceedings is one Vengies Gaming (Pty) Ltd, a company duly
registered and incorporated in terms of the
laws of South Africa,
with its registered office in Kuruman, Northern Cape Province.
The first respondent is one Deeps Betting
Grounds (Pty) Ltd, also a
company duly registered and incorporated in terms of the laws of
South Africa. The first respondent’s
offices are
currently located somewhere in Pretoria East, Gauteng Province.
[2]
The second
respondent herein is the incumbent chairperson of the Northern Cape
Gambling Board, appointed as such in terms of Section
3(5) of the
NORTHERN
CAPE GAMBLING ACT
3
of 2008.
[2]
He is cited
herein in his official capacity.
[3]
The third respondent is the Northern Cape Gambling Board, a
juristic person established in terms of Section 2 of the
PROVINCIAL
ACT
.
[4]
[3]
The
applicant sought leave to appeal against the judgment and order of
this Court delivered on 05 May 2023. The impugned order
dismissed the urgent application that was launched by the applicant
with costs. The dismissed motion prayed that this court
forthwith interdict the first respondent from conducting any
bookmaking business from the impugned premises, pending the
institution
of review proceedings by the applicant, either under the
PROMOTION
OF ADMINISTRATIVE JUSTICE ACT
3 of 2000
;
[5]
or the principle
of legality, within 60 days, from the date of the order sought. The
foreshadowed review application pertains to
the setting aside of the
first respondent’s bookmaker licence that was granted to the
first respondent by the third respondent
some time back in 2014.
[4]
The applicant also prayed that the third respondent be ordered to
forthwith
take such steps as regulator under the Act, to ensure that
the first respondent suspends its business, pending the finalisation
of the envisaged review proceedings. The notice of motion did
not pray for costs.
[5]
Section
15(1) of the
PROVINCIAL
ACT
authorises the Board to exercise certain powers and perform specific
functions whilst contemporaneously impelling it to carry out
the
duties specified by or in terms of the
PROVINCIAL
ACT
; or
assigned to it in terms of the
NATIONAL
GAMBLING ACT
7 of 2004
[6]
or any other law.
[6]
The reasons
for the dismissal of the application by this court are clearly set
out in the impugned judgment, the fulcrum of which
resides at
paragraphs 67 to 72 thereof.
[7]
[7]
The grounds of the foreshadowed appeal
are that this Court erred in
finding that:
7.1
the applicant did not make out a case for an interim
interdict on the
basis that there is a similar or satisfactory remedy or protection by
another ordinary remedy;
7.2
the prevention, combating and investigation of
crimes; the
maintenance of public order; protecting and securing the inhabitants
of the Republic and their property; upholding
and enforcing the law
falls squarely within the province of the police constitutionally and
that this was the most decisive factor
that came to bear in the
exercise of the court’s general discretion to grant or refuse
the relief sought; and
7.3
an order directing the second respondent to take
steps to ensure that
the first respondent suspends its business pending finalisation of
the foreshadowed review proceedings before
the process contemplated
in Section 38 of the
PROVINCIAL ACT
, would not only deny the
first respondent the fundamental right to lawful administrative
action, but would amount to a usurpation
of the powers of the Board,
contra
the principle of separation of powers.
[8]
The applicant therefore contended that
this court ought to have:
8.1
considered
and followed the judgment by Lever J, in the unreported matter of
Deeps
Betting Grounds (Pty) Ltd v Vengies Gaming (Pty)
Ltd
and Another
[8]
handed down
ex
tempore
on 06 May 2022, wherein Justice Lever under similar facts granted an
interim interdict;
8.2
in line with the above stated judgment, held that
upon
prima facie
proof of non-compliance with regulation 7(c), an interim interdict
should follow coupled with an order directing the second respondent
to take steps necessary to ensure that the first respondent do not
continue to operate, pending the finalisation of the intended
review
proceedings;
8.3
considered the
dictum
set out in
Hotz and Others v
University of Cape Town
2017 (2) SA 485(SCA)
; to
wit
:
“
[35
…
[36]
There may also be instances where, in the case of a statutory breach,
a criminal prosecution, in appropriate circumstances, will provide an
adequate remedy, but there are likely to be few instances
where that
will be the case.”
8.4
distinguished between the drawn out process that
criminal steps
entail compared to the swift and immediate effect of an interdict to
stop a
prima facie
illegal activity such as the matter at
hand; and
8.5
considered the first respondent’s laconic
response to the
evidence by the applicant that the first respondent’s business
is conducted in contravention of regulation
7(c) and the thereto,
that
prima facie
, the business is operated in contravention of
regulation 7(c) and given this Court’s findings in paragraph 22
of the impugned
judgment that an interim interdict is warranted.
[9]
This Court opined as follows in the
said paragraph:
“
[22]
The contention by the first respondent that Regulation 7(c) does not
prevent it from operating
in terms of a licence issued to it possibly
in contravention with same is thus simply absurd. The absurdity is so
glaring that
it could have never been contemplated by the legislature
when it passed the legislation to which the Regulations are
subsidiary.
Apposite in this regard is the maxim:
“Interpretatio quae parit absurdam non est admittenda”-
legislation was not meant
to be absurd or anomalous. This court says
no more.”
[9]
[10]
The applicant in sum contended that laying criminal charges
against
the second respondent as contemplated in Section 76(1) of the
NORTHERN CAPE GAMBLING ACT
does not constitute an adequate
alternative remedy.
[11]
The second respondent, who was the only party which opposed
this
motion for leave to appeal, did so on two main grounds. First, that
the applicant’s failure to institute the review
application
means it is not in the interests of justice to hear this leave to
appeal application; alternatively, that it should
be dismissed for
the same reason. Second, that the applicant has not established
either ground for the granting of leave to appeal
contemplated in
Section 17(1)
of the
SUPERIOR COURTS ACT
10 of 2013
.
[12]
Section 17(1)
of the
Superior Courts Act, expressly
and unambiguously
stipulates
inter alia,
that leave to appeal may only be given
where a judge or judges concerned are of the opinion that the appeal
would have a reasonable
prospect of success; or there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on
the matter under consideration. T
o
this must be added the consideration that in this subsection the word
“
would”
is used in determining the conclusion in regard to the reasonable
prospect of success of the appeal to which the judge or judges
must
come to before leave to appeal can be granted.
[13]
It
has been well said by the Supreme Court of Appeal that leave to
appeal, especially to the SCA, must not be granted unless there
truly
is reasonable prospect of success.
[10]
It follows from the foregoing that there must be a sound, rational
basis for the conclusion that there are prospects of success
on
appeal-
Four
Wheel Drive Accessory Distributors CC v
Rattan
NO
2019
(3) SA 451
(SCA)
at
463F
.
[11]
[14]
The
principles that emerge from
Four
Wheel Drive Accessory Distributors CC v Rattan NO
(supra)
and
Independent
Examinations Board v Umalusi
[12]
amongst
others, require that the court test the grounds on which leave to
appeal is sought against the facts of the case and
the applicable
legal principles to ascertain whether an appeal court “
would”
interfere in the decision against which leave to appeal is
sought.
[13]
If
the appellants ‘had simply failed to make out a proper case’
in their original founding papers for the relief sought,
leave to
appeal should be refused.
[14]
[15]
Important factors this Court took into consideration in the
determination of the “interim interdict” application was
the legal effect of the order sought and the availability
of any
other adequate remedy. This Court concluded that
even
though the relief sought is couched as an interim relief in form, it
is final in substance, and that another adequate remedy
is
available.
Another important factor taken into
consideration was the undue delay in launching the interdictory
proceedings. Notably,
the impugned license was granted in 2014.
[16]
This Court
is of the opinion that the unreported matter of
Deeps
Betting Grounds (Pty) Ltd v Vengies Gaming (Pty)
Ltd
and Another
[15]
handed down
ex
tempore
on 06 May 2022 by Lever J is factually dissimilar and therefore
distinguishable from the matter
in
casu
.
It is so because the learned Judge in that matter actually
interdicted and restrained the Board (First Respondent) and Vengies
(Third Respondent) from:
“…
implementing
and giving effect
to a temporary bookmaker
license awarded to the Third Respondent by First Respondent…
in respect of certain premises, by
operating gambling activities from
buildings located at those premises.”
In
casu
, this
Court was sought to order the Board, in the interim, to ensure that
Deeps Betting “suspends its business, pending the
finalisation
of the envisaged review proceedings”.
[17]
The
applicant’s reliance on the
obiter
dictum
in
Hotz
and Others v University of Cape Town
(supra)
was
also misconceived. That case is distinguishable because it
dealt with the grant of a final and not an interim interdict
contra
in casu
.
It is trite in our law that the discretion of a court to refuse
a final interdict when its three requisites are present
is very
limited and depends exclusively upon the question whether the
alternative remedy is adequate.
[16]
The following is appositely stated in
Hotz
(
supra
):
“
[29]
The law in regard to the grant of a final
interdict is settled. An applicant for such an order must show
a
clear right; an injury actually committed or reasonably apprehended;
and the absence of similar protection by any other ordinary
remedy. Once the applicant has established the three requisite
elements for the grant of an interdict, the scope, if any,
for
refusing relief is limited. There is no general discretion to refuse
relief. That is a logical corollary of the court
holding that
the applicant has suffered an injury or has a reasonable apprehension
of injury and that there is no similar protection
against that injury
by way of another ordinary remedy. In those circumstances, were the
court to withhold an interdict, that would
deny the injured party a
remedy for their injury….”
[17]
[18]
On the
other hand, a court has a wide discretion to refuse an interim
interdict even if the requisites have been established. This
means
that the court is entitled to have regard to a number of disparate
and incommensurable features in coming to a decision.
The discretion
is a judicial one which must be exercised according to law and upon
established facts.
[18]
A
court however has no discretion to grant an interim interdict if its
four requirements have not been established.
[19]
[19]
As alluded above, it is so that an application for leave to
appeal
must demonstrate that the appeal
would
have a reasonable
prospect of success or that there are compelling reasons why the
appeal should be heard. As far as compelling
reasons and prospects of
success are concerned, the merits remain vitally important and are
often decisive –
Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd
2020 (5) SA 35
(SCA)
at para 2
.
[20]
Having fully considered and dispassionately examined the application
for leave to appeal, this Court is not satisfied that leave to appeal
should be granted.
[21]
In the premise, the following order is made:
(A)
LEAVE TO APPEAL IS HEREBY DISMISSED WITH COSTS.
JUDGE APS NXUMALO
NORTHERN CAPE DIVISION
KIMBERLEY
Counsel
for the Applicant:
ADV
N JAGGA
Instructed
by:
Van
de Wall Inc.
Kimberley
Counsel
for the First Respondent:
ADV
M Kruger
Instructed
by:
Elliott
Maris Attorneys
Kimberley
Counsel
for Second and Third Respondent:
ADV
B BABUSENG
Instructed
by:
Towell
& Groenewaldt Attorneys
Kimberley
[1]
In
terms of
Section 1
of the
Superior
Courts Act
10 of 2013
- a “
Full
Court
”
in relation to any Division, means a court consisting of three
judges.
[2]
Hereinafter
referred to simply as “
the
Act/ the Provincial Act
”
[3]
Hereinafter
referred to as “
the
Chairperson
”
[4]
Hereinafter
referred to as “
the
Board
”
[5]
Hereinafter
simply referred to as “
PAJA
”
[6]
Hereinafter
referred to as “
the
National Act
”
[7]
Vengies
Gaming (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd and Others
(1214/2022)
[2023] ZANCHC 19
(5 May 2023)
[8]
Case
number 732/2022
[9]
Vengies
Gaming (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd and Others
,
(supra) fn 7
[10]
MEC
for Health, EC v Mkhitha
(unreported
SCA 1221/15 dated 25 November 2016)
[11]
See also
S
v Smith
2012
(1) SACR 567
(SCA) para 7
[12]
2021 JDR 0091 (GP); [2021] JOL 49499 (GP)
[13]
Van
den Heever NO and others v RC Christie Inc and others
(Leave
to Appeal)
[2023] JOL 58032 (GJ)
[14]
Global
Environmental Trust and others v Tendele Coal Mining (Pty) Ltd and
others (Centre for Environmental Rights as
Amici Curiae)
[2021]
JOL 49548 (SCA)
[15]
Case
number: (732/2022)
[16]
Setlogelo
v Setlogelo
1914
AD 221
AT 227;
see
also
Chevron
SA (Pty) Ltd v Awaiz at 110 Drakensburg CC & Another
[2008] JOL 21162
(T) para 80
[17]
Footnotes
omitted
[18]
Benoni
Town Council v Meyer
and
Others
1961 (3) SA 316 (W) 326
[19]
Sweets
from Heaven
(Pty)
Ltd and Another
v
Ster Kinekor Films
(Pty)
Ltd and Another
1999
(1)
SA 796
(W) para 11