CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 261/23
In the matter between:
SUNWEST INTERNATIONAL (PTY) LIMITED T/A
GRANDWEST CASINO AND ENTERTAINMENT
WORLD First Applicant
WORCESTER CASINO (PTY) LIMITED T/A
GOLDEN VALLEY CASINO AND LODGE Second Applicant
and
WESTERN CAPE GAMBLING AND RACING BOARD First Respondent
PROVINCIAL MINISTER OF FINANCE,
WESTERN CAPE Second Respondent
Case CCT 285/23
And in the matter between:
EMFULENI RESORTS (PTY) LIMITED T/A
BOARDWALK CASINO AND
ENTERTAINMENT WORLD First Applicant
TRANSKEI SUN INTERNATIONAL LIMITED T/A
WILD COAST SUN Second Applicant
and
EASTERN CAPE GAMBLING BOARD First Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR FINANCE, EASTERN CAPE Second Respondent
Neutral citation: Sunwest International (Pty) Ltd t/a Grandwest Casino and
Entertainment World and Another v Western Cape Gambling and
Racing Board and Another ; Emfuleni Resorts (Pty) Ltd t/a
Boardwalk Casino and Entertainment World and Another v
Eastern Cape Gambling Board and Another [2025] ZACC [18]
Coram: Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J,
Opperman AJ, Rogers J, Theron J and Tshiqi J
Judgment: Kollapen J (unanimous)
Heard on: 4 February 2025
Decided on: 29 August 2025
Summary: Gambling — Western Cape Gambling and Racing Act 4 of 1996
— Eastern Cape Gambling Act 5 of 1997 — proper interpretation
of gambling tax provisions — freeplay credits — whether part of
adjusted gross revenue
Section 167(3)(b)(ii) — general jurisdiction — nature of matters
falling within scope — arguable point of law of general public
importance which ought to be considered — arguable point of law
not transcending the interests of the parties
Section 167(3)(b)(i) — constitutional matters — nature of matters
falling within scope
ORDER
In Case CCT 261/23 Sunwest International (Pty) Ltd t/a Grandwest Casino and
Entertainment World and Another v Western Cape Gambling and Racing Board and
Another:
3
On application for leave to appeal from the Supreme Court of Appeal (hearing an appeal
from the Full Court of the High Court of South Africa, Western Cape Division ,
Cape Town):
1. Leave to appeal is refused.
2. The applicants jointly and severall y must pay the respondents’ costs in
this Court, including the costs of two counsel.
In Case CCT 285/23 Emfuleni Resorts (Pty) Ltd t/a Boardwalk Casino and
Entertainment World and Another v Eastern Cape Gambling Board and Another:
On application for leave to appeal from the High Court of South Africa, Eastern Cape
Division, Makhanda:
1. Leave to appeal is refused.
2. The applicants jointly and severally must pay the respondents’ costs in
this Court, including the costs of two counsel.
JUDGMENT
KOLLAPEN J (Madlanga ADCJ, Majiedt J, Mhlantla J, Opperman AJ, Rogers J,
Theron J and Tshiqi J concurring):
Introduction
[1] This matter concerns two applications for leave to appeal which were heard
together as they raise a common issue. This is whether a loyalty credit named
“freeplay”, awarded by casino operators to selected gambling customers at cashless slot
machines, is included in the taxable revenue of casino operators who issue freeplay.
The answer lies in the proper interpretation of various interrelated provisions of the
KOLLAPEN J
4
Western Cape Gambling and Racing Act 1 (WC Act) and the Eastern Cape Gambling
Act2 (EC Act), which I will call the Acts.
[2] The applicants in both matters are subsidiaries of Sun International (South
Africa) Limited (Sun International) which owns casinos across the country. In the first
matter the applicants are Sunwest International (Pty) L imited and Worcester Casino
(Pty) L imited, both casino operators in the Western Cape (WC applicants). The
applicants in the second matter are Emfuleni Resorts (Pty) L imited and Transkei Sun
International Limited, both casino operators in the Eastern Cape (EC applicants). In
both matters, t he first respondents are the Gambling Boards for their respective
provinces: the Western Cape Gambling and Racing Board (WC Board) and the Eastern
Cape Gambling Board (EC Board). The second respondents in both matters are th e
respective members of the provincial executive responsible for finance: for the Western
Cape, the Minister of Finance, and for the Eastern Cape, the Member of the Executive
Council for Finance (WC Minister and EC MEC respectively).
[3] The applicants are ho lders of casino operator licences granted in terms of the
respective Acts. The Acts regulate gambling and betting taxes paid by casino operators,
such as the applicants, to the respective Boards.
[4] In this Court, the WC applicants seek leave to appeal agai nst the order of the
Supreme Court of Appeal (SCA), which upheld an appeal against an order of the
High Court of South Africa, Western Cape Division, Cape Town ( WCHC). The EC
applicants apply for leave to appeal directly to this Court against the order of the
High Court of South Africa, Eastern Cape Division , Makhanda (ECHC) which
dismissed a similar application for tax relief.
1 4 of 1996.
2 5 of 1997.
KOLLAPEN J
5
Background
[5] To incentivise gambling play, the applicants offer members of their loyalty
programmes, their “Most Valued Guests”, non-cashable and non -transferable credits,
called “freeplay” credits, which take the form of a right to use the applicants’ slot
machines without these players having to pay. The alternative is “cashplay” credits,
issued to a player in exchange for cash. These forms of credits are reflected separately
in a player’s slot account. A player has a choice to play with either form of credit .
Whichever they choose, every time a player plays on the applicants’ cashless slot
machines, there is a concomitant deduction in the relevant part of the slot account to the
rand value of their play.
[6] The present dispute arose following the applicants’ introduction of “BALLY”, a
system used to distinguish between cashplay and freeplay. Prior to the introduction of
BALLY, the system used by the applicants did not separate out freeplay from cashplay.
After BALLY was introduced, the two forms of play could be distinguished, and the
applicants sought to exclude freeplay credits as part of their taxable revenue so that they
were liable only to pay tax on cash play. A dispute between the Boards and the
applicants about whether freeplay should be included in taxable revenue arose, which
ultimately led the applicants in both cases to approach t he respective High Courts for
relief on the proper interpretation of the WC and EC Acts.
[7] The relevant taxing provisions are found in section 64(1) of the WC Act3 and
section 57(4) of the EC Act4 which provide for gambling and betting taxes to be payable
on “taxable revenue” . This is in turn defined in both Acts to mean “adjusted gross
3 Section 64(1) provides:
“From time to time and in the manner prescribed, there shall be paid to the Board gambling and
betting taxes and levies by the holders of licenses as provided for in Schedules III and IV.”
betting taxes and levies by the holders of licenses as provided for in Schedules III and IV.”
4 Section 57(4) provides:
“There shall be paid from time to time and in the manner prescribed into the Provincial Revenue
Fund fees and betting taxes on the bases, at the rates, at the times, in the amounts (if applicable)
and by the holders of licences provided for in Schedules III and IV.”
KOLLAPEN J
6
revenue less admissible deductions as determined under this Act” .5 The definition of
“adjusted gross revenue” (AGR) is found in Part A of Schedule III of both Acts. 6 For
present purposes, the relevant part of the definition of AGR is “the drop”. It is common
cause that we are concerned with the definition of “drop” in relation to cashless
machines. In the WC Act, the drop is defined in item 1 of Part A of Schedule III as “for
cash-less slot machines, the amount deducted from players’ slot accounts as a result of
slot machine play” . The EC Act defines the drop almost identically : “for cashless
gambling machines, the amount deducted from players’ slot accounts as a result of
gambling machines play”. The present dispute centres on whether freeplay, when
utilised by a player, forms part of the “drop” and consequently AGR, for the purpose of
calculating taxable revenue.
[8] The WCHC (sitting as a Full Court) found in favour of the WC applicants and
held that, on a proper interpretation of the provisions, freeplay was not included in the
“drop”.7 The WCHC therefore granted an order that freeplay credits do not form part
of taxable revenue in terms of the WC Act and ordered the WC Board to off-set, against
the WC applicants’ future liability to pay gambling tax, such amount as might be agreed
5 Item 1 of Part A of Schedule III of both Acts.
6 Item 1 of Part A of Schedule III of both Acts provides the definition of “adjusted gross revenue”. The relevant
parts of the definition for present purposes are paragraphs (d) and (e) of the definition. The WC Act provides that
“adjusted gross revenue” means—
“(d) in relation to slot machines, other than those contemplated in subparagraphs (e) and (f)
below operated by a licence holder in the Province , the drop, less fills to the machine
and winnings paid out ; provided that the initia l hopper load shall not constitute a fill
and winnings paid out ; provided that the initia l hopper load shall not constitute a fill
and shall not affect the calculation of adjusted gross revenue;
(e) in relation to slot machines operated by a licence holder in the Province which are
linked via a wide-area progressive system, the drop, less fills to the machine, less any
contributions made by the licence holder which are payable in consequence of such
wide-area progressive system in respect of such slot machines during the tax period,
and less any winnings paid out which are not recoverable from the central fund in terms
of the wide -area progressive system; provided that the initial hopper load shall not
constitute a fill and shall not affect the calculation of adjusted gross revenue; provided
further that where any surplus amount is distributed f rom the central fund to a licence
holder or where any licence holder withdraws from a wide -area progressive system
and in consequence of such distribution or withdrawal recovers or recoups during any
tax period any contribution previously deducted under th is subparagraph, such
contribution so recovered or recouped shall be included in the licence holder’s adjusted
gross revenue in the tax period in which the contribution is recovered or recouped .”
The EC Act provides an identical definition save for using “gambling machines” instead of “slot machines”.
7 Sunwest International (Pty) Ltd v Western Cape Gambling and Racing Board 2021 (2) SA 607 (WCC).
KOLLAPEN J
7
between the parties or proved by the WC applicants. The SCA upheld the WC Board’s
appeal, holding that on a proper interpretation of the provision s, freeplay was included
in the AGR for purposes of calculating gambling taxes.8 This was because the target of
the tax was not the income (or revenue) generated by the applicants, but the gambling
activity itself. The ECHC, which delivered judgment after the WCHC’s judgment but
before the S CA’s decision, dismissed the EC applicants’ application on substantially
the same grounds as those subsequently expounded by the SCA.9
Issues
[9] In this Court, there are two primary issues for determination. The first is whether
this Court has jurisdiction to hear the matter and , if jurisdiction is established, whether
leave to appeal should be granted . The second is whether freeplay is included in the
definition of AGR in both Acts, and thus whether the casino operators are liable to pay
gambling tax on the use of freeplay credits. This turns on the proper interpretation of
“taxable revenue” in the WC and EC Acts, specifically , whether freeplay attracts
liability for gambling tax.
Condonation
[10] The EC applicants apply for condonation for the late filing of the ir application
for leave to appeal. Condonation is not opposed and the delay is adequately explained.
Condonation is granted.
Replying affidavit
[11] The EC applicants sought leave to file a replying affidavit in this Court to address
two claims made by the EC Board in th at Board’s answering affidavit which the
EC applicants contend were not raised in the High Court litigation. The first claim is
8 Western Cape Gambling and Racing Board v Sunwest International (Pty) Ltd t/a Grandwest Casino &
Entertainment World [2023] ZASCA 118 (Supreme Court of Appeal judgment).
9 Emfuleni Resorts (Pty) Ltd t/a Boardwalk Casino & Entertainment World v Eastern Cape Gambling Board ,
unreported judgment of the High Court of South Africa, Eastern Cape Division, Makhanda, Case No 1706/2021
at paras 28, 31-2 and 48-52 (Eastern Cape High Court judgment).
KOLLAPEN J
8
that it is not in the interest s of justice for this Court to hear the matter because there is
litigation on similar issues in other provinces . The EC Board alleges that the
EC applicants are litigating “in stages” to build a precedent in favour of the exclusion
of freeplay from taxation. The second claim is that freeplay has the same characteristics
as non-negotiable chips, in the sense that cards on which freeplay are loaded can be
transferred for value.
[12] The EC Board and EC MEC oppose the application for leave to file the replying
affidavit because, they argue, the EC applicants ought, for two reasons, to have dealt
with the claims upfront in their founding papers. First, the EC applicants ought to have
known of the facts regarding the litigation in other provinces. Second, since the nature
of freeplay is at the heart o f the dispute , the EC applicants’ contention that
non-negotiable chips and freeplay are distinguishable should have been made much
earlier. The EC Board and EC MEC also contend that they will be prejudiced by the
admission of the replying affidavit becaus e they will not have had an opportunity to
respond to it.
[13] The test for whether this Court should admit a replying affidavit is whether it is
in the interests of justice to do so. 10 The applicant must make out a case for the filing
of a replying affidavit.11 Importantly, a party is not entitled to file a reply as of right.12
The EC applicants relied on their affidavit in support of their application to file a
replying affidavit, which itself doubled as the replying affidavit. The essence of the
applicants’ intention to file the replying affidavit is to answer two claims made by the
EC Board. The applicants’ rebuttal to the claims made in the answering affidavit ought
to have been foreseen by the EC applicants, and frankly, ought to have formed part of
their primary case if relevant to it. Their reply does not provide anything new that will
their primary case if relevant to it. Their reply does not provide anything new that will
assist this Court in its disposition of the matter. It is therefore not in the interests of
10 Hotz v University of Cape Town [2017] ZACC 10; 2017 (7) BCLR 815 (CC); 2018 (1) SA 369 (CC) at para 41.
11 Id.
12 African Congress for Transformation v Electoral Commission of South Africa and other cases [2024] ZACC 7;
2024 (8) BCLR 987 (CC) at paras 68-9.
KOLLAPEN J
9
justice for the replying affidavit to be admitted. Leave to file a replying affidavit is
refused.
Leave to appeal
Jurisdiction
[14] Jurisdiction is a “threshold requirement” to be met before this Court can consider
a matter.13 It is not a mere tick-box exercise, a technical hurdle a litigant must overcome
in order to get to the substance of a dispute. Jurisdiction is the “power vested in a court
by law to adjudicate upon, determine and dispose of a matter” .14 It is well established
that jurisdiction must be determined by the pleadings in this Court15 and that the merits
of a matter cannot determine whether a court has jurisdiction to hear it. 16 In what
follows, I deal with jurisdiction on this premise.
[15] The Constitution assigns this Court jurisdiction over a defined set of matters .17
Section 167(3)(b) and (c) provides that the Constitutional Court—
“(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on
the grounds that the matter raises an arguable point of law of general
public importance which ought to be considered by that Court, and
(c) makes the final decision whether a matter is within its jurisdiction.”
13 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) ; 2001 (1) BCLR 36 (CC) (Boesak) at para 11. See also
Fraser v ABSA Bank Ltd [2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) (Fraser) at para 35.
14 Ewing McDonald & Co Ltd v M&M Products [1990] ZASCA 115; 1991 (1) SA 252 (A) at 256F-G and Gallo
Africa Ltd v Sting Music (Pty) Ltd [2010] ZASCA 96; 2010 (6) SA 329 (SCA) at para 6.
15 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 75 and My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2015 (12) BCLR 1407
(CC); 2016 (1) SA 132 (CC) at para 132.
(CC); 2016 (1) SA 132 (CC) at para 132.
16 Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC) at para 155.
17 Sections 167(3), (4) and (5) of the Constitution. Section 167(4) governs exclusive jurisdiction and
section 167(5) governs confirmation proceedings. These provisions are not relevant for the purpose of this matter.
KOLLAPEN J
10
[16] There are two separate but related aspects of the jurisdiction-assigning provision.
The first aspect, section 167(3)(b), assigns the substantive jurisdiction of the Court, and
the second aspect, section 167(3)(c), clothes it with the power to determine wh ether a
matter falls within its jurisdiction. To make this determination, this Court may consider
procedural requirements in order for an application to properly serve before it in
accordance with this Court’s rules. By way of example, this Court may con sider
procedural issues such as service and condonation prior to making the decision whether
a matter falls within its jurisdiction. Section 167(3)(c) is a necessary provision, because
it is dispositive of the question of how this Court can conclude that it either has or lacks
jurisdiction.
[17] The import of the substantive component , section 167(3)(b), is that the
jurisdiction of this Court is not boundless. This Court has the jurisdiction to decide
constitutional matters and, since the enactm ent of the Constitution Seventeenth
Amendment Act,18 it has what has been termed “general jurisdiction” over a limited
class of other matters. As this Court said in Fujitsu:19
“The whole point that the drafters of the Constitution Seventeenth Amendment Act
sought to make was that, if a matter does not raise a constitutional issue, there should
be stringent requirements before it can be entertained by this Court. These stringent
requirements serve a good purpose, to ensure that non-constitutional matters that come
before this Court truly deserve the attention of the highest court in the land.”20
[18] Section 167 requires this Court to operate within the boundaries of the powers
assigned to it by law. When it does so , it shows fidelity to the Constitution and the
principle of the separation of powers. And so, while this Court is the apex court, the
provisions of the Constitution on how judicial authority is assigned must be honoured.
provisions of the Constitution on how judicial authority is assigned must be honoured.
In doing so, this Court must first determine, regard being had to section 167(3), whether
18 Of 2012.
19 Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd [2023] ZACC 20; 2023 (6) SA 327 (CC );
2023 (9) BCLR 1054 (CC).
20 Id at para 90.
KOLLAPEN J
11
a matter is within its jurisdiction as the final arbiter in respect of that decision in terms
of the Constitution.21 Equally, in taking that decision, this Court should be minded that
it “has the power to protect its own jurisdiction and is under a constitutional duty to do
so”.22
[19] To recap, the core dispute between the parties is whether, on a proper
interpretation of the Acts, freeplay forms part of taxable revenue. The applicants submit
that this matter engages this Court’s jurisdiction, b oth on the grounds that it is a
constitutional matter and also that it is one which raises an arguable point of law of
general public importance which this Court ought to consider . I consider both those
claims to jurisdiction below.
Constitutional jurisdiction
[20] This Court has jurisdiction over “constitutional matters”. On many occasions,
the inevitable difficulty of conceptualising this limited form of jurisdiction in a system
where the Constitution is supreme has occupied this Court.23 In Fraser, this Court held,
aptly:
“To attempt to define the limits of the term ‘constitutional matter’ rigidly is neither
necessary nor desirable. Philosophically and conceptually it is difficult to conceive of
any legal issue that is not a constitutional matter within a system of constitutional
supremacy. All law is after all subject to the Constitution and law inconsistent with the
Constitution is invalid.”24
21 Section 167(3)(c) of the Constitution.
22 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) ( Pharmaceutical Manufacturers ) at
para 51.
23 See id at para 44; Van der Walt v Metcash Trading Ltd [2002] ZACC 4; 2002 (4) SA 317 (CC); 2002 (5) BCLR
454 (CC) at para 32; and Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC) ; 2011 (5)
BCLR 453 (CC) at para 124.
BCLR 453 (CC) at para 124.
24 Fraser above n 13 at para 36.
KOLLAPEN J
12
[21] Nonetheless, this Co urt has made clear that “[w]hile the conception of a
constitutional matter is broad, the term is of course not completely open”.25 In NVM,26
this Court held:
“To a greater or lesser extent, the rights guaranteed in the Bill of Rights cover the whole
field of human existence. Almost any case could be framed as touching on one or other
fundamental right. This is not enough to make the case a constitutional matter.”27
[22] This Court has repeatedly held that a matter cannot “somehow morph into a
constitutional issue through the simple facility of clothing it in constitutional garb”. 28
In Jiba,29 this Court offered guidance, holding that “[f]or a constitutional issue to arise
the claim advanced must require the consideration and application of some
constitutional rule or principle in the process of deciding the matter”. 30 Similarly, in
NVM, this C ourt affirmed that in order for a case to be a constitutional matter “the
resolution of a constitutional issue must be reasonably necessary in order to determine
the case’s outcome”.31
[23] The applicants contend that this is a constitutional matter because the SCA and
ECHC failed in their section 39(2) duty to interpret the legislation in accordance with
the spirit, purport and object s of the Bill of Rights. They submit that the lower courts
preferred an interpretation which renders the Acts unconstitutional despite there being
a reasonable alternative interpretation which avoids that finding.32 This is so, say the
25 Id at para 39.
26 NVM obo VKM v Tembisa Hospital [2022] ZACC 11; 2022 (6) BCLR 707 (CC).
27 Id at para 92.
28 Mbatha v University of Zululand [2013] ZACC 43; 2014 (2) BCLR 123 (CC); (2014) 35 ILJ 349 (CC) at
para 222.
29 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) BCLR 919 (CC).
30 Id at para 38. “Constitutional issue” is analogous terminology to “constitutional matter”. Other analogous
terminology includes “constitutional issue of substance” and “constitutional question”. See, for example, Fedsure
Life Assurance Ltd v Greater Johannesburg Tran sitional Metropolitan Council [1998] ZACC 17; 1998 (12)
BCLR 1458 (CC); 1999 (1) SA 374 (CC) at para 59 and Minister of Public Works v Kyalami Ridge Environmental
Association [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) at para 23.
31 NVM above n 26 at para 88.
32 Section 39(2) of the Constitution provides:
KOLLAPEN J
13
applicants, because the manner in which the S CA and ECHC interpreted the Acts fails
to promote the right to equality and the right not to be arbitrarily deprived of property.
[24] This Court has held that the interpretation of legislation in conformity with the
constitutional duty to promote the spirit, purport and objects of the Bill of Rights, or the
failure to do so, is a constitutional matter.33 Section 39(2) creates a mandatory canon
of statutory interpretation, 34 requiring e very court to interpret statute s “through the
prism of the Bill of Rights”.35 This Court must carry out its own section 39(2) duty and
it may also assume constitutional jurisdiction to scrutinise other courts in the exercise
of their section 39(2) duty to ensure that the law develops in a manner consistent with
the Constitution.36 The failure of a court to adhere to its section 39(2) obligation risks
reversal by this Court.
[25] It cannot however be the case that any allegation of a lower court’s failure to
interpret legislation in line with the Bill of Rights, without more, raises a constitutional
matter. If the mere invocation of section 39(2) were sufficient, parties could invariably
seek to frame their case as one in which the courts below failed in their section 39(2)
duties, thus automatically engag ing the jurisdiction of this Court. In this way, t he
interpretation of all legislation by lower courts would potentially fal l within the
jurisdiction of this Court . The effect of this would be to give this Court essentially
“When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
For the purposes of this matter, the discussion will be confined to the part of section 39(2) concerning the
interpretation of legislation.
interpretation of legislation.
33 See, for example, Fraser above n 13 at para 38; S v Shaik [2007] ZACC 19; 2007 (12) BCLR 1360 (CC); 2008
(2) SA 208 (CC) at para 83; MEC Department of Agriculture, Conservation and Environment v HTF Developers
(Pty) Ltd [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) at para 19; S v Liesching [2016]
ZACC 41; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 (CC) at para 21; and Competition Commission of South
Africa v Standard Bank of South Africa Ltd [2020] ZACC 2; 2020 (4) BCLR 429 (CC) at para 39.
34 Woolman “Application” in Woolman and Bishop (eds) Constitutional Law of South Africa Service 5 (2013)
at 87.
35 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd [2000] ZACC
12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) at para 21.
36 Seedorf “Jurisdiction” in Woolman and Bishop (eds) Constitutional Law of South Africa Service 5 (2013) at 10.
KOLLAPEN J
14
plenary jurisdiction under its constitutional jurisdiction and run the danger of allowing
the simple clothing of an issue in constitutional attire to engage our jurisdiction.
[26] The experience of the German Federal Constitutional Court, the
Bundesverfassungsgericht (GFCC), in how it has grappled with a similar issue may
provide some useful basis for comparison.37 The GFCC, like this Court, has ostensibly
restricted jurisdiction over constitutional matters in a system of constitutional
supremacy where the Constitution pervades all law. 38 In conceptualising an approach
to its limited jurisdiction, the GF CC in 1964 developed a test known as the Heck
Formula:
“The . . . specific function of the [GFCC] would not be achieved if it were to review
court decisions on questions of law in an unrestricted way like an appellate court, just
because an incorrect decision could possibly affect the constitutional rights of the
parties concerned. . . . Only when a court decision violates specific constitutional law,
may the [GFCC] interfere on the basis of a constitutional complaint. Specific
constitutional law has not been violated merely when a judgment has been incorrectly
decided in terms of the ordinary law; instead the mistake of the lower court must lie in
its disregard for constitutional rights.”39 (Emphasis added.)
[27] What emerges from this test is that the GF CC has looked to its function in
determining whether it will hear a matter, thus dividing the task of developing the law
between it and all other courts. 40 Only when a lower court’s interpretation concerns a
disregard for its constitutional function should the supervisory role of the GF CC be
triggered.
[28] With th at app roach in mind, it may be useful to have regard to this Court’s
jurisdiction over the decisions of lower courts in interpreting legislation against the
37 Id at 110 and 115.
38 Id at 110.
39 BVerfGE 18, 85, 92-3.
37 Id at 110 and 115.
38 Id at 110.
39 BVerfGE 18, 85, 92-3.
40 Seedorf above n 36 at 112-14.
KOLLAPEN J
15
backdrop of its function. Allowing the simple clothing of an issue in constitutional garb
to engage our jurisdiction would run counter to the function of this Court. This Court
has affirmed its “responsibility of being the ultimate guardian of the Constitution and
its values”.41 This important role was summed up in Pharmaceutical Manufacturers:
“The Constitutional Court occupies a special place in this new constitutional order. It
was established as part of that order as a new Court with no links to the past, to be the
highest court in respect of all constitutional matters, and as such, the guardian of our
Constitution.”42
[29] Of course, this Court alone cannot have, and does not have, the exclusive
responsibility to ensure that all law is compliant with the Constitution. 43 The
Constitution envisions a constitutional division of labour . This Court shares, with all
other courts, fora and tribunals, the duty to ensure compliance with the Constitution ,
while retaining ultimate jurisdiction as the highest court in respect of constitutional
matters.44 It does not then second-guess the decisions of lower courts where no
constitutional matter arises.
[30] This Court, in considering the question of whether its jurisdiction is engaged on
the basis of an invocation of section 39(2), will refrain from finding that it has
jurisdiction to interfere with the decision of a lower court where the allegation is in
substance no more than that the court reached an incorrect decision. This much was
said in Fraser:
41 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA
147 (CC); 1999 (7) BCLR 725 (CC) at para 72.
42 Pharmaceutical Manufacturers above n 22 at para 55.
43 Seedorf above n 36 at 108 and 116 . See also O’Regan “On the Reach of the Constitution and the Nature of
Constitutional Jurisdiction: A Re ply to Frank Michelman ” in Woolman and Bishop (eds) Constitutional
Conversations (Pretoria University Law Press, Cape Town 2008) 63 at 77:
“The principle of recognising the importance of the Constitution living in other courts
throughout our legal system is to make sure that the rights and provisions of the Constitution
live in our law in a real way.”
44 S v Pennington [1997] ZACC 10; 1997 (4) SA 1076 (CC); 1997 (10) BCLR 1413 (CC) at para 10.
KOLLAPEN J
16
“A contention that a lower court reached an incorrect decision is not, without more, a
constitutional matter. Moreover, this Court will not assume jurisdiction over a
non-constitutional matter only because an application for leave to appeal is couched in
constitutional terms. It is incumbent upon an applicant to demonstrate the existence of
a bona fide constitutional question. An issue does not become a constitutional matter
merely because an applicant calls it one.”45
[31] Of course, in a system of constitutional supremacy, it may at times be difficult
to discern when an incorrect decision becomes a genuine constitutional matter. While
the Constitution is supreme and is the overriding grundnorm that permeates all law, it
nonetheless does not always hold the answer to all legal questions.46 This is not to say
that a system of constitutional supremac y can allow for bifurcated or parallel legal
systems where some areas of law are touched by the Constitution, while others remain
untouched.47 But within its normative framework, the Constitution affords considerable
latitude for conflicting outcomes to be arrived at , as a result of non -constitutional
considerations, which are equally consistent with its prescripts .48 There are decisions
which the Constitution “neither prohibits nor demands”49 be made in a certain direction
and in which consideration of constitutional factors, or differing weights attached to
those factors, would not plausibly affect the outcome.
[32] What is the import of this for this Court assuming constitutional jurisdiction on
the basis of an allegation of a section 39(2) failure? There may be instances where this
Court could come to a different conclusion to the courts below, but that different
conclusion would not be the result of this Court’s consideration of constitutional factors
and neither conclusion would be inconsistent with the Constitution. This Court should
and neither conclusion would be inconsistent with the Constitution. This Court should
ask, in assessing the decision of a lower court, whether the re is a plausible case for
45 Fraser above n 13 at para 40.
46 Du Plessis “Interpretation” in Woolman and Bishop (eds) Constitutional Law of South Africa Service 5 (2013)
at 152-4 and 158 and Seedorf above n 36 at 118-19.
47 See Pharmaceutical Manufacturers above n 22 at para 44.
48 See Seedorf above n 36 at 118-19 and Du Plessis above n 46 at 153.
49 Seedorf id at 118-19.
KOLLAPEN J
17
supposing that a proper consideration of constitutional factors could lead to a different
outcome.
[33] This question is not concerned with the merits of the interpretation contended for
but with the subject-matter of the claim.50 For the purposes of jurisdiction, this Court
merely considers whether it is plausible to suppose that constitutional considerations
could lead to a different ou tcome. If that threshold is met, this Court will then have
jurisdiction to entertain the merits and determine whether or not those constitutional
considerations do indeed lead to a different outcome. If it is not plausible to suppose
that constitutional factors could lead to a different outcome, and that the outcome would
be determined by other matters, such as factual issues or non -constitutional points of
law, the matter will not be a constitutional matter.
[34] This approach is consistent with how this Cou rt has conceptualised
“constitutional matters” in NVM and Jiba.51 Similarly, in Boesak, the issue at hand was
factual and the outcome could not plausibly have been affected by constitutional
considerations.52 The Court held that “the Constitution must be implicated in some way
before such a finding can be said to raise a constitutional issue within the jurisdiction
of this Court”.53 In recognising that there are some decisions which remain part of a
single constitutional legal order but which may not turn on the Constitution for an
answer, this Court should ask whether the lower court has acted within its constitutional
bounds.
[35] This Court may assume jurisdiction on the basis of its supervisory role in terms
of section 39(2) where a lower court has failed to take constitutional considerations into
account at all and where such consideration s could plausibly lead to a different
50 See Fredericks v MEC for Education and Training, Eastern Cape [2001] ZACC 6; 2002 (2) SA 693 (CC); 2002
(2) BCLR 113 (CC) at para 11.
(2) BCLR 113 (CC) at para 11.
51 See [22].
52 Boesak above n 13 at paras 23 and 29.
53 Id.
KOLLAPEN J
18
outcome.54 Similarly, where a court has considered the Constitution and the allegation
is that it has misdirected itself or not accorded those considerations sufficient weight ,
this Court will have jurisdiction where it is plausible to argue that this Court , by
attaching adequate weight to those constitutional considerations, could reach a different
outcome.55
[36] How does this Court assess, for the purposes of jurisdiction, whether
constitutional considerations could plausibly lead to a different outcome ? This Court
has previously expressed itself on invocations of section 39(2) that have engaged its
jurisdiction. These instances provide some useful guidance on the types of factors this
Court can consider. These are no more than indicators and do not purport to be decisive.
[37] In a number of cases, this Court has assumed jurisdiction on th e basis of a n
alleged section 39(2) failure after having determined that fundamental rights may be
implicated by an interpretation and having due regard to the potential seriousness of the
implication at stake.56 At the heart of the assumption of jurisdiction is that where these
factors are present, it is plausible that proper consideration of constitutional factors
could lead to a different outcome. For example, in Fraser the applicant contended that
the interpretation of section 26(6) of the Prevention of Organised Crime Act 57 by the
SCA failed to promote his right to a fair trial. This Court considered that “the right to
have a criminal trial begin and conclude without unreasonable delay and the right to
legal representation, as aspects of the right to a fair trial, may not be ignored in the
interpretation”.58 In this way, constitutional considerations or the weight attached to
54 However, an important principle relevant to this consideration was articulated by this Court in Phumelela
Gaming and Leisure Ltd v Gründlingh [2006] ZACC 6; 2006 (8) BCLR 883 (CC); 2007 (6) SA 350 (CC) where
it was held at paras 27-8 that even if the lower court “does not expressly give consideration to the impact of the
Bill of Rights . . . [i]t should however not be lightly assumed that the Court did not take this into account”.
55 See Chagi v Special Investigating Unit [2008] ZACC 22; 2009 (2) SA 1 (CC); 2009 (3) BCLR 227 (CC) at
para 14.
56 See, for example, Links v Department of Health, Northern Province [2016] ZACC 10; 2016 (4) SA 414 (CC);
2016 (5) BCLR 656 (CC) at para 22 and Maswanganyi v Minister of Defence and Military Veterans [2020] ZACC
4; 2020 (4) SA 1 (CC); 2020 (6) BCLR 657 (CC) at para 32.
57 121 of 1998.
58 Fraser above n 13 at para 45.
KOLLAPEN J
19
them plausibly had something to say about how the disputed interpretation ought to be
resolved and this Court’s jurisdiction, in the context of section 39(2), was triggered.
[38] It may also be plausible to suppose that proper consideration of constitutional
factors would lead to a different outcome where the interpretation of the legislation in
question is closely linked to a constitutional objective. For example, this Court has on
a number of occasions been concerned with the interpretation of the National Credit Act
(NCA).59 This Court has considered the link between the NCA and the constitutional
objectives the NCA seeks to achieve in assessing whether its constitutional jurisdiction
was engaged .60 In light of the important constitutional purposes of the legislation,
interpretations of the provisions plausibly brushed up against the normative framework
of the Constit ution and it was arguable that the Constitution had to be taken into
account. Although the interpretations in these cases did not ultimately turn on a specific
right or constitutional rule , for jurisdictional purposes it was sufficient that this Court
considered that the normative framework of the Constitution plausibly had something
to say about how the disputed interpretation ought to be resolved.
[39] In sum, the threshold question to be answered in every matter where this Court’s
jurisdiction is sought to be invoked under section 167(3)(b)(i) through section 39(2) is
whether there is a plausible case for supposing that a proper consideration of
constitutional factors could lead to a different outcome. If there is, the allegation of the
section 39(2) failure raises a constitutional matter.
[40] With this in mind, let me return to the matter at hand and the applicants’
contention that the courts below failed in their section 39(2) duty. With respect to the
right to equality, the applicants initially claimed that including freeplay in the
right to equality, the applicants initially claimed that including freeplay in the
calculation of taxable revenue irrationally differentiates between holders of casino
59 34 of 2005.
60 See Sebola v Standard Bank of South Africa Ltd [2012] ZACC 11; 2012 (5) SA 142 (CC); 2012 (8) BCLR 785
(CC) at para 36; Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) ; 2014 (4)
BCLR 400 (CC) at para 16; and Nkata v FirstRand Bank Ltd [2016] ZACC 12; 2016 (4) SA 257 (CC); 2016 (6)
BCLR 794 (CC) at paras 94-6.
KOLLAPEN J
20
licences whose business includes cashless slot machines, like themselves, and all other
holders of gambling licences. This was said to be so because it obliged casinos to pay
tax differently in respect of cashless slot machines as against any other gambling
activity. Consequently, the interpretation opted for by the SCA and ECHC unjustifiably
and unreasonably limited their constitutional right to equality under section 9(1) of the
Constitution. The applicants abandoned this argument during the oral hearing, and
correctly so. Nothing further need therefore be said about it.
[41] The applicants also argue that the S CA and ECHC’s interpretation of the Acts
fails to promote the right not to be arbitrarily deprived of property , because the
interpretation imposes a tax liability on casino operators on monies that they have not
received.
[42] What is evident from both the SCA and ECHC judgments is that neither ignored
constitutional considerations in their interpretations of the Acts and were alive to the
normative framework of the Constitution. 61 They nonetheless found against the
applicants. This Court must ask whether it is plausible that its consideration of the
spirit, purport and objects of the Bill of Rights could lead to a different outcome on
appeal or whether it could merely come to a different decision on the basis of
non-constitutional factors.
[43] The applicants’ case boils down to a contention that t he ECHC and the S CA
reached an incorrect decision on the interpretation of the Acts. It is not plausible to
suppose that proper consideration of constitutional factors could lead to a different
outcome on whether or not freeplay is included in the definit ion of AGR in the Acts.
This Court does not plausibly have anything to add about the prescriptive framework of
the Constitution in resolving this matter. Further consideration of the right not to be
arbitrarily deprived of property could not plausibly le ad to a different outcome on the
arbitrarily deprived of property could not plausibly le ad to a different outcome on the
interpretation. It would likewise not be plausible to argue that the Acts are closely
61 Supreme Court of Appeal judgment above n 8 at para 24 and Eastern Cape High Court judgment above n 9 at
paras 31-2, 38 and 48-52.
KOLLAPEN J
21
linked to a constitutional objective, the consideration of which could lead to a different
outcome. The Acts are concerned with the reg ulation of gambling and the imposition
of gambling tax and are not intimately linked with broader constitutional objectives.
The interpretation issue does not raise a constitutional matter and our constitutional
jurisdiction cannot be located there.
[44] The applicants advance another reason why they say that the matter engages this
Court’s constitutional jurisdiction. The applicants submit that the proper interpretation
and scope of a taxing provision is a constitutional matter since a provincial legislature’s
power to impose tax and levies derives from section 228(1) of the Constitution.62
[45] This matter does not concern the power of a provincial government to collect tax
in any sense that triggers constitutional concerns.63 Every case on the interpretation of
a tax provision in a sense involves a question as to whether the revenue authority is
entitled to recover tax, since the taxpayer is invariably arguing that no or less tax is
owing than on the revenue authority’s interpretation of the legislation. But not every
question concerning the interpretation of fiscal legislation is a constitutional matter, and
in this matter the issue is purely one of the proper interpretation of the Acts.
[46] None of the issues raised by the applicants are constitutional matters. The sole
issue that arises and which is dispositive of the dispute is whether freeplay is included
62 Section 228(1) of the Constitution provides:
“(1) A provincial legislature may impose—
(a) taxes, levies and duties other than income tax, value-added tax, general sales tax, rates
on property or customs duties; and
(b) flat-rate surcharges on any tax, levy or duty that is imposed by national legislation,
other than on corporate income tax, value -added tax, rates on property or customs
duties.”
other than on corporate income tax, value -added tax, rates on property or customs
duties.”
63 Compare the central issue that had to be decided by this Court in Casino Association of South Africa v Member
of the Executive Council for Economic Development, Environment, Conservation and Tourism [2023] ZACC 39;
2024 (5) BCLR 611 (CC), which concerned the question whether a Provincial Executive’s delegated legislative
power to impose provincial taxes or levies was in breach of section 228(1) of the Constitution and the prin ciple
of separation of powers.
KOLLAPEN J
22
in the definition of taxable revenue . Th at is not a matter that engages this Court’s
constitutional jurisdiction.
General jurisdiction
[47] The applicants claim that this matter also raises an arguable point of law of
general public importance, which this Court ought to consider and determine in terms
of section 167(3)(b)(ii) of the Constitution.
[48] The Constitution Seventeenth Amendment Act extended this Court’s jurisdiction
to deal with arguable points of law of general public importance which this Court finds
that it ought to consider. This expansion must be understood in the context of the
Constitution and its values. It seems to me, then, that section 167(3)(b)(ii) does not
seek to transform the Constitutional Court into a generalist appellate court for all
matters.64 If this were so, section 167(3)(b)(ii) could simply have ended with “any other
matter”. But it goes further, by qualifying which types of matters constitute “other
matters” that this Court will consider. 65 The extension of jurisdiction only gives this
Court the power to entertain appeals within this defined category.
[49] Section 167(3)(b)(ii) is concerned with those matters that may not be
constitutional matters, but which, by virtue of raising an arguable point of law that has
importance to the public and would be in the interests of justice for this Court to
consider, have implications for a legal system in which the Constitution is the supreme
law. This Court, as the ultimate guardian of the Constitution and its values, has the
authority only to deal with points of law that meet this standard. No fine line can be
drawn in this respect. As this Court held in Paulsen,66 general jurisdiction must be
determined on a case by case basis. 67 It is a matter of degree, but non -constitutional
64 This is precisely the function of the SCA.
65 Fujitsu above n 19 at para 89.
64 This is precisely the function of the SCA.
65 Fujitsu above n 19 at para 89.
66 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC).
67 Id at para 23.
KOLLAPEN J
23
matters which do not rise to this standard can comfortably find finality in the S CA.
Accordingly—
“not all litigants who knock on this Court’s doors will be given the opportunity to argue
their case, either orally or in writing. We are directed by the Constitution as to which
matters should be adjudicated by this Court.”68
[50] In Paulsen, the first case considering this Court’s extended jurisdiction after the
Constitution Seventeenth Amendment Act, it was held:
“Reduced to bare essentials, [section 167(3)(b)(ii)] provides f or this Court to grant
leave if—
(a) the matter raises an arguable point of law;
(b) that point is one of general public importance; and
(c) the point ought to be considered by this Court.”69
[51] The three grounds listed above are conjunctive. All three requirements have to
be satisfied for the matter to engage this Court’s general jurisdiction. I will consider
each of the grounds in turn and consider whether they are satisfied , based on what the
applicants have pleaded.
Arguable point of law
[52] The obvious starting point in this exercise is for the applicant s on the pleadings
to identify the arguable point of law. 70 This leg of the test for general jurisdiction is
bifurcated: “the point must be one of law; and it must be arguable” .71 The applicants
identify the arguable point of law as the constitutionally compliant interpretation of the
Acts. This closely mirrors the basis on which the applicants seek to engage our
68 Economic Freedom Fighters v Gordhan [2020] ZACC 10; 2020 (6) SA 325 (CC); 2020 (8) BCLR 916 (CC) at
para 30.
69 Paulsen above n 66 at para 16.
70 Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd [2019] ZACC 14; 2019 (7) BCLR
850 (CC) (Tiekiedraai) at paras 30-1.
71 Paulsen above n 66 at para 20.
KOLLAPEN J
24
constitutional jurisdiction. Be that as it may , it is trite that legislation must be
interpreted in a constitutionally compliant manner . On its own, this does not raise an
arguable point of law. My reading of the applicants’ pleadings reveals that the arguable
point of law they appear to rely on is that freeplay is not included in a casino operator’s
AGR and consequently does not form part of its “taxable revenue” for purposes of the
determination of gambling tax in terms of the Acts.
[53] This is a point of law, not fact ,72 because it concerns the policy and normative
content behind the imposition of gambling tax, and no evaluation of the facts is required
to determine the point.73 Is it arguable? This Court has held that in order to be arguable,
“a point of law must have some prospects of success”. 74 It must carry some degree of
merit, substance, and have a measure of plausibility.75 This requires this Court to make
a value judgement on the particular cir cumstances of the case. 76 In my view, the fact
that different divisions of the High Court and the SCA have expressed divergent views
on the point suggests that the point of law is arguable, and I shall so assume.
General public importance
[54] A matter is of general public importance if it transcends the narrow interests of
the litigants and implicates the interests of a significant part of the public.77 An indicator
of this is that the point carries substantial and broad -based consequences and effect s,
and it will likely bear upon the public interest. 78 This does not mean that it should or
72 It is certainly not a point of law which is mixed in with factual points, as was the concern with the point raised
in Competition Commission of South Africa v Media 24 (Pty) Ltd [2019] ZACC 26; 2019 (5) SA 598 (CC); 2019
(9) BCLR 1049 (CC) at paras 134-5.
73 Id at para 143.
74 Paulsen above n 66 at para 22.
75 Id at para 21.
73 Id at para 143.
74 Paulsen above n 66 at para 22.
75 Id at para 21.
76 See id at para 23, where this Court provided examples of factors which may be of assistance on this question.
77 Id at para 26.
78 Id at para 25, quoting SAJ v AOG (Petition 1 of 2013) [2013] KESC 19 (KLR) at para 2; Steyn v
Gnecchi-Ruscone (Application 4 of 2012) [2013] KESC 11 (KLR) at para 58.
KOLLAPEN J
25
will implicate the interests of society as a whole , but “it must implicate the interests of
a section of the public, large enough to be regarded as of general importance”.79
[55] The applicants contend that the law point is of general public importance because
it plainly transcends the narrow interests of the parties and implicates the interests of a
significant part of the public. This is no more than a restatement of the test o n this
aspect of general jurisdiction .80 The applicants make the claim that the correct
interpretation of the Acts will affect casino operators nationally, and it will impact on
the fiscus of the Western Cape and of the Eastern Cape. I am unable to agree that the
arguable point of law transcends the narrow interests of the parties for three reasons.
[56] First, nothing before us indicates that this issue is of relevance to other casino
operators. A litigant must identify in clear language what it is that make s the point of
law o ne of general public importance .81 No evidenc e was adduced to indicate that
freeplay is in widespread use or “common -place”,82 that other casino operators use
similar software to the BALLY system or that other casino operators offer freeplay at
all. In oral argument, counsel for the applicants conceded that the papers are silent on
whether any other casino groups have a similar sort of offering such as freeplay that
would invoke the same kind of questions. If it is so that this issue is confined to Sun
International, no evidence was adduced to assess Sun International’s share of the
industry for this Court to conclude that a determination of this issue could have industry-
wide effects. In any event , I will show later that there is no thing to indicate that this
issue will affect other casinos in the Sun International group aside from those before us.
79 Tiekiedraai above n 70 at para 40.
80 Paulsen above n 66 at para 26.
81 Id.
79 Tiekiedraai above n 70 at para 40.
80 Paulsen above n 66 at para 26.
81 Id.
82 See Mokone v Tassos Properties CC [2017] ZACC 25; 2017 (5) SA 456 (CC); 2017 (1) BCLR 1261 (CC) at
para 16.
KOLLAPEN J
26
[57] It is simply not enough to make the bold claim that this matter affects the interests
of other casino operators. In Clicks Retailers ,83 this Court considered whether an
allowance under section 24C(2) of the Income Tax Act 84 was available to Clicks
Retailers (Pty) L imited (Clicks), a retailer that operated a retail loyalty programme.
There, in assessing whether the point of law was of general public importance, this
Court considered how the decision in the matter would not only implicate the interests
of Clicks but the tax treatment of loyalty programmes of other retailers who offer similar
rewards programmes such as DisChem, Pick n Pay, Ster-Kinekor and Exclusive Books.
In that matter, the similarities of those rewards programmes to the Clicks loyalty
programme were specifically pleaded and the broad public impact was clearly
identified.85 This is not what the applicants have done here.
[58] A bald and unsubstantiated assertion, as we have here, that the arguable point of
law is of general public importance falls short of demonstrating the public importance
that the point of law triggers. This Court must ultimately be satisfied on the basis of the
evidence before it that indeed the arguable point of law transcends the interests of the
parties and has the degree of impact contemplated by this aspect of the test.
[59] Of course, it is possible that parties may litigate to protect their own interests but
that the questions they raise m ay be of wider public importance. In Ascendis Animal
Health,86 this Court said:
“These questions undoubtedly go beyond the narrow interests of the parties. It is not
disputed that the applicant approached this Court with these questions to safeguard its
own interests. However, that does not denude the legal questions of their objective
public importance. Any order given by this Court will have a wider impact in the arena
of patent litigation . Accordingly, the infringement action and the subsequent order
of patent litigation . Accordingly, the infringement action and the subsequent order
83 Clicks Retailers (Pty) Ltd v Commissioner for the South African Revenue Service [2021] ZACC 11; 2021 (4)
SA 390 (CC); 2021 (10) BCLR 1102 (CC).
84 58 of 1962.
85 Clicks Retailers above n 83 at para 27.
86 Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation [2019] ZACC 41; 2020 (1) SA 327
(CC); 2020 (1) BCLR 1 (CC).
KOLLAPEN J
27
arising from it may bind only the parties; however, there is a general public interest in
this decision that goes beyond the narrow interests of the parties because it requires the
interpretation of section 61 of the [Patents] Act [57 of 1978].”87 (Emphasis added.)
[60] This brings me to the second hurdle the applicants face, which is that the
interpretive issue before us is remarkably narrow. Unlike in Ascendis, no wider public
importance flows from the interpretation. The point of law before us is confined to the
interpretation of the relevant provisions of the WC and EC Acts. The applicants have
not argued tha t it is constit utionally impermissible to tax f reeplay as a fundamental
principle removed from the text of any legislation. The applicants accept that a ruling
of this Court would not automatically exclude f reeplay from the calculation of taxable
revenue in other contexts, overruling the text of other provincial statutes. In any event,
the text of other provincial statutes is not identical to the WC and EC Acts. As a result,
based on the pleadings, the impact of this Court’s interpretation of the Acts and the
resultant impact on casino operators or gambling boards is confined to its impact on the
parties before us.
[61] Compare this to this Court’s finding of jurisdiction in Big G Restaurants.88 The
matter concerned whether income derived from patrons of c ertain Spur and Panarottis
restaurants was deductible by the Spur or Panarottis restaurateur in terms of
section 24C(2) of the Income Tax Act. It turned on whether a contract that imposes an
obligation to incur future expenditure is so interlinked to a co ntract in terms of which
income is earned, that the income earned in terms of the latter contract can be held to
be income that accrues in terms of the former contract. In deciding that the matter
engaged this Court’s general jurisdiction, this Court considered that a determination of
engaged this Court’s general jurisdiction, this Court considered that a determination of
the issue was likely to affect Spur franchisees throughout South Africa. 89 Not so here.
In this matter, the applicants have failed to show that other Sun International casino s,
aside from those before us, would be affected by a decision of this Court on this issue .
87 Id at para 37.
88 Big G Restaurants (Pty) Ltd v Commissioner, South African Revenue Service [2020] ZACC 16; 2020 (6) SA 1
(CC); 2020 (11) BCLR 1297 (CC).
89 Id at para 14.
KOLLAPEN J
28
This narrow ambit means the point of law does not transcend the interests of the parties
and cannot be said to be of general public importance.
[62] The high-water mark of the applicants’ claim in relation to the importance of this
matter for other casino operators and gambling boards is that this Court’s ruling may be
of interest to parties litigating on similar issues in other provinces. That it may be of
interest does not automatically elevate the point of law into one of general public
importance. There must be some form of substantial and broad-based consequence and
effect arising from the disposition of the point of law that transcends the interests of the
parties.
[63] Other instances where this Court has found that a point of law is of general public
importance are illustrative . In Diener,90 which concerned the interpretation of
provisions of the Companies Act 91 dealing with the ranking of claims fo r the
remuneration and expense of business rescue practitioners, this Court held that the
interpretation had “a significant impact on credit providers, and therefore the public”.92
In Shiva Uranium ,93 which concerned the interpretation of section 139(3) of the
Companies Act, this Court considered the public importance of the power to appoint a
replacement for a business rescue practitioner appointed by a court . Given the
important role business rescue practitioners play in business rescue proceedings , a
“common phenomenon of our corporate life”, there was public interest in clarity
regarding the statutory provisions governing their appointment.94 In Coronation,95 this
Court considered exemptions under section 9D of the Income Tax Act . There, the
90 Diener N.O. v Minister of Justice and Correctional Services [2018] ZACC 48; 2019 (2) BCLR 214 (CC); 2019
(4) SA 374 (CC).
91 71 of 2008.
92 Diener above n 90 at para 30.
(4) SA 374 (CC).
91 71 of 2008.
92 Diener above n 90 at para 30.
93 Shiva Uranium (Pty) Ltd v Tayob [2021] ZACC 40; 2022 (2) BCLR 197 (CC); 2022 (3) SA 432 (CC).
94 Id at para 26.
95 Coronation Investment Management SA (Pty) Ltd v Commissioner, South African Revenue Service [2024]
ZACC 11; 2024 (6) SA 310 (CC); 2024 (9) BCLR 1128 (CC).
KOLLAPEN J
29
question was of “significant importance to the South African economy”.96 In Capitec,97
this Court considered the interpretation of section 16(3)(c) of the Value -Added Tax
Act98 and held that the case raised questions that “ transcend Capitec’s interests and
indeed the interests of banks”.99
[64] There is no indication that the answer to the interpretive question in respect of
the Acts before us will have an impact of the kind discussed. Here, we cannot conclude
that the question transcends the interests of Sun International’s casinos in the
Eastern Cape and Western Cape. It is an even further ask to suggest that it affects
casinos outside of the Sun International stable. In addition, freeplay is only available
to a select few of their patrons – some of the Most Valued Guests . The issue will not
impact all Sun International customers nor will it have a significant impact on the
general populace.100
[65] There is a third reason the point does not transcend the narrow interests of the
parties. The applicants’ appeal to the public impact of gambling taxes on the provincial
fiscus does not in itself elevate the arguable point of law to one of general public
importance. If this were so, the interpretation of any taxing provision, no matter how
narrow its impact, would invariably satisfy th e requirement of general public
importance. Only the EC MEC provides some evidence that gambling revenue forms
an important component of the Eastern Cape Provincial Government’s financial
resources. We are thus left to speculate regarding the impact of gambling revenue on
the financial resources of provincial governments outside of the Eastern Cape. The
96 Id at para 46.
97 Capitec Ltd v Commissioner, South African Revenue Service [2024] ZACC 1; 2024 (4) SA 361 (CC); 2024 (7)
BCLR 841 (CC).
98 89 of 1991.
99 Capitec above n 97 at para 50.
100 Compare this to Paulsen above n 66 at para 27:
99 Capitec above n 97 at para 50.
100 Compare this to Paulsen above n 66 at para 27:
“It is manifest that both the proper interpretation of the NCA on the issues raised . . . will have
a significant impact on the general populace. As noted in Kubyana, the NCA ‘regulates
commercial activity undertaken by many people and institutions on a daily basis. The issues at
stake are therefore of fundamental importance to many South Africans’.”
KOLLAPEN J
30
proposition that the interpretation of the Acts will impact the W estern Cape and
Eastern Cape provincial fiscuses does not, in itself, raise the point of law to the threshold
of one of general public importance. Although the outcome of the matter may have
consequences for provincial revenue-raising in the E astern Cape and W estern Cape,
these knock-on effects do not change the nature and importance of the question at hand
– a question of interpretation of two provincial gambling statutes which affects only the
interests of the parties before us.
[66] It is plain that “[n]othing of general or wider importance” flows from the issue
before us.101 If this matter were to engage this Court’s jurisdiction on the basis pleaded
by the parties, it would have the result that the requirement of general public importance
found in section 167(3)(b)(ii) would set the bar unacceptably low. There must be a
purpose behind the prescriptive wording contained in section 167(3)(b)(ii). And this
Court is obliged to protect that purpose.
[67] For all these reasons, I find that the arguable point of law is not of general public
importance. Having failed to meet this threshold req uirement, the matter does not
engage this Court’s general jurisdiction.
Ought to be considered
[68] “Ought to be considered” adds a further requirement to be met once it is
established that a matter raises an arguable point of law of general public importance.102
This aspect of the test depends on the interests of justice. 103 However, if a matter fails
on either of the first two legs, as in this matter, the “ought to be considered” enquiry
does not arise. This Court does not have jurisdiction, in the interests of justice, to
101 Tiekiedraai above n 70 at para 13.
102 See id at para 18 where this Court held that the litigant “must show more than that interesting and arguable
questions of importance arise. It must show why the interests of justice require them to be decided in this
litigation”.
103 See Paulsen above n 66 at para 18 where this Court held:
“[A] holding that a matter raises an arguable point of law of general public importance does not
inexorably lead to a conclusion that the matter must be entertained. Whether the matter will, in
fact, receive our attention will depend on the interests of justice.”
KOLLAPEN J
31
consider an arguable point of law that is not of general public importance. This matter
is clearly not the type of matter that the Constitution empowers or requires us to consider
under section 167(3)(b)(ii).
Conclusion
[69] This is an ordinary ma tter of statutory interpretation, affecting the narrow
interests of the parties before us. This matter does not engage this Court’s constitutional
or general jurisdiction. Therefore, the applicat ions for leave to appeal must be
dismissed.
[70] We record that the written submissions for the first respondent in the W estern
Cape case were prepared by John Newdigate SC, a well -respected advocate from the
Cape Bar, who sadly passed away before the hearing of the matter in this Court.
Costs
[71] The respondents have been successful in this Court. It is just an d equitable for
the applicants to be ordered to pay the respondents ’ costs in this Court, including the
costs of two counsel.
Orders
[72] In Case CCT 261/23 Sunwest International (Pty) Ltd t/a Grandwest Casino and
Entertainment World and Another v Western Cape Gambling and Racing Board and
Another the following order is made:
1. Leave to appeal is refused.
2. The applicants jointly and severally must pay the r espondents’ costs in
this Court, including the costs of two counsel.
[73] In Case CCT 285/23 Emfuleni Resorts (Pty) Ltd t/a Boardwalk Casino and
Entertainment World and Another v Eastern Cape Gambling Board and Another the
following order is made:
KOLLAPEN J
32
1. Leave to appeal is refused.
2. The applicants jointly and severally must pay the respondents’ costs in
this Court, including the costs of two counsel.
In Case CCT 261/23
For the Applicants:
For the First Respondent:
For the Second Respondent:
In Case CCT 285/23
For the Applicants:
For the First Respondent:
For the Second Respondent:
I Goodman SC and M Kruger instructed
by Webber Wentzel
V Ngalwana SC and N Khooe instructed
by Marais Muller Hendricks
Incorporated (the written submissions
having been prepared by J A Newdigate
SC)
R T Williams SC and H Cassim
instructed by Office of the State
Attorney, Cape Town
I Goodman SC and M Kruger instructed
by Webber Wentzel
H J de Waal SC and N C de Jager
instructed by Tshangana Le Roux
Incorporated
H J de Waal SC and N C de Jager
instructed by Office of the State
Attorney, Johannesburg