IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case no: 19/2024P
In the matter between:
HOLLYWOOD SPORTSBOOK KWAZULU-NATAL (PTY) LTD APPLICANT
and
CAPITEC BANK LIMITED FIRST RESPONDENT
FIRST NATIONAL BANK, A DIVISION OF SECOND RESPONDENT
FIRSTRAND BANK LIMITED
NEDBANK LIMITED THIRD RESPONDENT
ABSA BANK LIMITED FOURTH RESPONDENT
STANDARD BANK LIMITED FIFTH RESPONDENT
BIDVEST BANK (PTY) LIMITED SIXTH RESPONDENT
DISCOVERY BANK LIMITED SEVENTH RESPONDENT
AFRICAN BANK LIMITED EIGHTH RESPONDENT
FINBOND MUTUAL BANK NINTH RESPONDENT
NKHENSANI NGOBENI TENTH RESPONDENT
GIVEN MAHLAULE ELEVENTH RESPONDENT
NSIKAYESIZWE THOBELANI GCABASHE TWELFTH RESPONDENT
SIFUNDO MBHELE THIRTEENTH RESPONDEDNT
SITHEMBILE PRISCILLA NSINDANE FOURTEENTH RESPONDENT
MSAWAKHE VICTOR MKHIZE FIFTEENTH RESPONDENT
LIFT WISEMAN BHEKUBUHL THIYANE SIXTEENTH RESPONDENT
SKHUMBUZO COMFORT MKHIZE SEVENTEENTH RESPONDENT
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SINENHLANHLA SUZAN DUVE EIGHTEENTH RESPONDENT
DELISILE PRETTY MBHELE NINTEENTH RESPONDENT
PHINEAS PHUMLANI MNYANDU TWENTIETH RESPONDENT
MLUNGISI JEROME BASI TWENTY FIRST RESPONDENT
PHUMLANI THEOPHILUS MKHIZE TWENTY SECOND RESPONDENT
SIBONGAKONKE AMOS NENE TWENTY THIRD RESPONDENT
LEBOHANG ISAAC NGWENYA TWENTY FOURTH RESPONDENT
NKOSIKHONA SYDNEY MHLONGO TWENTY FIFTH RESPONDENT
NGCEBO MBUSO MAPHUMULO TWENTY SIXTH RESPONDENT
FEZILE BARBARA MTSHARE TWENTY SEVENTH RESPONDENT
NQOBILE BARBARA LINDA TWENTY EIGHTH RESPONDENT
EMMANUEL NKOSINATHI NENE TWENTH NINTH RESPONDENT
PETRUS CHAUKE THIRTIETH RESPONDENT
AND 140 OTHER RESPONDENTS
Coram: MOSSOP J
Heard: 10 September 2025
Delivered: 10 September 2025
ORDER
The following order is granted:
The rule nisi granted on 5 January 2024 by Henriques J , as amended, is confirmed
against the following respondents:
The 12 to 19th respondents;
The 20th to 29th respondents;
The 31st respondent;
The 33rd to 39th respondents;
The 40th respondent;
The 42nd respondent;
The 44th to 47th respondents;
The 52nd and 53rd respondents;
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The 55th to 57th respondents;
The 59th respondent;
The 60th to 67th respondents;
The 69th and 70th respondents;
The 72nd respondent;
The 74th to 77th respondents;
The 79th and 80th respondents;
The 82nd respondent;
The 84th to 87th respondents;
The 89th and 90th respondents;
The 92nd to 94th respondents;
The 100th respondent;
The 102nd to 105th respondents;
The 109th and 110th respondents;
The 112th to 115th respondents;
The 118th and 119th respondents;
The 121st and 122nd respondents;
The 128th and 129th respondents;
The 130th to 134th respondents;
The 137th to 140th respondents;
The 142nd respondent;
The 155th and 156th respondents;
The 159th respondent; and
The 161st to 169th respondents.
JUDGMENT
MOSSOP J:
Introduction
[1] This is an ex-tempore judgment.
[2] The application was initially brought as an urgent ex -parte application that
identified, and cited, 169 respondents. That number was increased by one after the
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later joinder of a commercial bank as the 170 th respondent. Together with the 170 th
respondent, there are , in all, nine other banks cited, and they are the first to ninth
respondents (the banks). The remaining respondents are all natural persons.
[3] The applicant seeks confirmation of a rule nisi initially granted to it on 5
January 2024 by Henriques J (the rule). Such confirmation is sought only as against
certain of the respondents. The rule was subsequently varied by Ncube J on 12
January 2024 , by Sibiya J on 15 January 2024 and by Nirghin AJ on 23 January
2024. On 4 March 2024, Z P Nkosi J discharged the rule in respect of four of the
respondents, confirmed it against many of the other respondents and extended it in
respect of the balance of the respondents . Then, on 30 May 2024, Hadebe J
confirmed the rule against another 5 respondents.
[4] By virtue of these decisions, the respondents against which relief is sought
has been winnowed down as the matter has progressed. Of th e initial 170
respondents, relief is now claimed against the following r espondents, who have all
actively opposed its confirmation by the delivery of answering affidavits and are
represented before me today by their counsel, Ms De Beer:
The 12 to 19th respondents;
The 20th to 29th respondents;
The 31st respondent;
The 33rd to 39th respondents;
The 40th respondent;
The 42nd respondent;
The 44th to 47th respondents;
The 52nd and 53rd respondents;
The 55th to 57th respondents;
The 59th respondent;
The 60th to 67th respondents;
The 69th and 70th respondents;
The 72nd respondent;
The 74th to 77th respondents;
The 79th and 80th respondents;
The 82nd respondent;
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The 84th to 87th respondents;
The 89th and 90th respondents;
The 92nd to 94th respondents;
The 100th respondent;
The 102nd to 105th respondents;
The 109th and 110th respondents;
The 112th to 115th respondents;
The 118th and 119th respondents;
The 121st and 122nd respondents;
The 128th and 129th respondents;
The 130th to 134th respondents;
The 137th to 140th respondents;
The 142nd respondent;
The 155th and 156th respondents;
The 159th respondent; and
The 161st to 169th respondents.
[5] The order granted by this court shall accordingly only relate to these
respondents.
The applicant’s case
[6] The applicant is a well known South African sports betting company. While it
accepts bets in respect of , inter alia, the outcome of live sporting events, it also
conducts an online betting platform. For a short while, which was a period of just
over a week, the applicant accepted bets on an online game on its betting platform
called ‘Betgames Instant Lucky 7’ (the impugned game). To be entirely accurate, the
impugned game was online for the period 22 December 2023 to 31 December 2023.
[7] The impugned game was not dissimilar to the national lottery, despite the
applicant’s vehement statement in its replying affidavit that:
‘[i]t is denied that the Lucky Seven Game is similar to the lotto.’
The applicant appears to have forgotten that this is precisely how it described the
impugned game in its founding affidavit:
‘[t]he Game is similar to taking a lotto ticket ….’
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[8] In any event, a punter wishing to play the impugned game was first required
to have an account with the applicant with sufficient money in it to cover the extent of
the bet: there was no gambling on credit permitted. The money standing to the credit
of the punter in his account with the applicant could be used to purchase multiple
numbers in a draw conducted by the impugned game . The numbers having been
selected, the punter could the n determine how many times the selected numbers
would appear in the draw s to come. It was possible to use the same numbers up to
50 times. The consideration that had to be paid for the bet would then be calculated
and, if acceptable to the punter, the bet would be placed. I n ideal circumstances, the
punter’s account with the applicant would be debited with the value of the
consideration for the placement of the bet.
[9] While there may have been a resemblance to the national lottery , unlike the
national lott ery, the draw did not happen once or twice a week : there was a new
draw happening every 30 seconds.
[10] But there was a problem inherent in the impugned game. That weakness
had nothing to do with the respondents and everything to do with those that
designed the game (which was not the applicant, but a third party company). The
problem was that the game failed to deduct the value of the consideration linked to
the bet from the punter’s account. This, ultimately , meant that the punter could
gamble for free and at no risk, for it cost him nothing to acquire his numbers in the
draws but he could still win. When the punter won, the winnings were paid into his or
her account with the applicant.
[11] The respondents must have noticed the weakness in the impugned game,
and they exploited it. In the week that the impu gned game was available, just over
R13 million was collectively won by the 10th to 169 th respondents. One example
suffices as to what occurred. The 12th respondent stated in his answering affidavit
suffices as to what occurred. The 12th respondent stated in his answering affidavit
that he played the impugned game for approximately four days. He deposited R50
on 28 December 2023 and R850 the next day. He estimates that he placed about 40
bets and won R443 700. Having won that money, he withdrew it from his account
and transferred it to his personal banking account held with one of the banks cited in
the application.
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[12] The winnings of the 12 th respondent are at the one extreme of the spectrum
of what was won. At the other end of the spectrum is the respondent who won R3
000.
[13] The applicant has monitoring systems in place, and those systems picked up
what was regarded as suspicious levels of winnings and, as a result, the brief life of
the impugned game came to an end, and it was removed from the applicant’s online
platform.
[14] The applicant now claims that it is entitled to the return of all the winnings
that the respondents received via the impugned game . Upon discovering what had
occurred, the respondents were telephoned by representatives of the applicant, who
read from a prepared script, and requested the respondents to repay their winnings.
Almost all the respondents refused to do so and indicated that if the applicant
wanted their winnings back, it would have to sue them. The applicant obliged and
that is why this matter is before me today. In seeking the relief claimed in the
application, the deponent to the applicant’s founding affidavit stated that:
‘I submit there is no prejudice to the respondents from such an order.’
[15] In claiming repayment of the respondents’ winnings, t he applicant places
some emphasis upon its standard terms and conditions (the conditions) . The
conditions must accordingly enjoy some scrutiny. The conditions are drawn to the
attention of a punter when an account with the applicant is opened.
[16] The conditions deal thoroughly with the issue of what constitutes a valid bet.
They provide that a valid bet is, inter alia, one that has been made with available
funds in the punter’s account after all preceding bets have been correctly allocated to
that account. A cautionary admonishment is to be found in the conditions:
‘If you have any doubts as to whether a bet has been accepted and is accordingly valid you
should view your list of “pending” bets or check with a member of Hollywoodbets’ staff.’
should view your list of “pending” bets or check with a member of Hollywoodbets’ staff.’
[17] As far as the mechanism of betting is concerned, the conditions , significantly
in my view, contain the following clause:
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‘Customers can only bet up to the amount held within their account. No credit bets will be
accepted by Hollywoodbets. A customer shall not, at any time, use any amount that has
been incorrectly credited to his betting account as a result of
- an incorrect deposit entry (whether done erroneously or deliberately and
fraudulently),
- a prohibited betting transaction,
- an incorrect result or
- incorrect for any reason in which does not rightfully accrue to him.
Hollywoodbets shall be entitled to void any and all winning betting transactions where
applicable and claim from the customer all amounts wage red on unsuccessful betting
transactions.’
[18] The conditions go on to state that the applicant will return all stakes on void
bets placed and that:
‘All winnings paid under a void bet will be forfeited and refundable to Hollywoodbets on
demand by Hollywoodbets.’
[19] The conditions also provided that:
‘Should funds be paid to you in error, it is your responsibility to immediately notify
Hollywoodbets of the error. Any money paid to you as a result of the error and prior to the
notification of Hollywoodbets, whether linked to the error or not, shall be deemed to be
invalid and will be repayable by you to Hollywoodbets and you are deemed to agree and
accordingly to hereby authorise Hollywoodbets to deduct from your account the sum of the
money incorrectly paid into your account.’
The relief claimed
[20] Whilst the orders granted by various courts within this division have changed
and corrected some of the ancillary relief initially claimed by the applicant, it is true to
say that the substantive relief claimed by the applicant has remained the same.
[21] In summary, t he banks were interdicted and restrained from permitting any
withdrawals or transfers to be made from the bank accounts of such respondents as
banked with them. A schedule was prepared by the applicant that specified which of
the respondents banked with which of the banks joined in the application. All the
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bank accounts of the respondents with the banks cited were frozen and the banks
were ordered:
‘… not to permit any activity of any nature to be transacted on the accounts.’
[22] The banks were furthermore directed, within 4 hours of the interim order
being granted, to furnish the applicant with full particularity of the account holders
cited as respondents in the application , and, in the event of any withdrawal or
transfer of money having occurred prior to the granting of the interim order, were
directed to provide full particularity of the amount involved , when the transfer was
made and to whom it was made. Finally, as regards the banks, they were directed to
pay to the applicant, within seven days of the granting of the interim order , the
amounts standing to the credit of each respondent that banked with it to the value of
an amount identified in a schedule in which each respondent’s winnings were
separately itemised.
[23] The respondents , on the other hand, were interdicted from operating their
banking accounts with the banks ‘limited to the outstanding balances set out in
annexure “PI 3” as at 04 January 2024.’ I am not sure that I understand what this
means.
The respondents’ defence
[24] The respondents who delivered answering affidavits used a template to do
so. The affidavits are all substantially the same , save for the amounts that each
person was alleged to have won , how much was in their account with the applicant ,
and how many days they played the impugned game.
[25] The respondents uniformly deny that they have behaved in an unlawful
manner. Each of them rejects the notion that they have acted fraudulently or, in the
alternative, that they have committed theft by claiming their winnings and paying
them out into their bank accounts held with one of the banks cited . They claim that
they simply did as they were allowed to do and did not break any rules and stress
that they each:
that they each:
‘… bet only with funds I initially deposited, and after that, with the funds, (sic) I won.’
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[26] They complain that they have been prejudiced by the interim order granted
against them and state that as a consequence of the freezing of their respective
accounts, their debit orders on their bank accounts were not met, and they have now
acquired a negative entry on their credit bureau record. The respondents, without
exception, do not see why they should have to repay their winnings.
[27] Having heard argument this morning, I stood the matter down to allow me to
gather my thoughts . I also requested counsel to definitively produce a list of
respondents who were still actively involved in the matter. This they then did, and I
am accordingly indebted to Mr Reddy and Ms De Beer for their kind assistance.
Analysis
[28] Black’s Law defines a wager as:
‘1. Money or other consideration risked on an uncertain event; a bet or gamble.
2. A promise to pay money or other consideration on the occurrence of an uncertain
event.’1
[29] A wager itself has three component parts: the consideration , being the
amount wagered, the existence of risk and a prize.2 It matters not whether the result
of the wager might be determined by the skill of the player or the element of chance,
or both.
[30] It appears to me that two of the abovementioned components of a proper
wager are absent on the facts of this case. Firstly, there was no consideration paid
by any of the respondents to reap the benefits that they won. While they may have
selected numbers which ordinarily would require them to pay therefore, due to the
inadequacy of the impugned game, no consideration was collected from their
accounts by the applicant. Thus, the respondents were able to gamble for free. That
leads to the second component that is missing: there was no risk attached to what
was wagered. Because the consideration was not deducted, it made no difference
whether the punter lost. A loss would have no financial consequence for a punter
1 Black’s Law, 9th edition.
1 Black’s Law, 9th edition.
2 Rose, I. Nelson; Loeb, Robert A. (1998). ‘Blackjack and the Law ’ (1st ed.). Oakland, CA: RGE Pub.
p. 109.
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because, in reality, the punter did not lose anything because he or she did not pay
the consideration necessary to take the wager . Once it was realised by the
respondents that winnings could be obtained for no consideration, each of the m
simply increased their bets in order to maximise their winnings.
[31] It appears to me that the applicant’s conditions , already discussed,
comprehensively cover a situation in which an invalid bet occurs and specifically
provides for the applicant’s entitlement to recover any winnings gained from such an
invalid bet.
[32] From the aforegoing, it is evident that the applicant’s principal complaint is
that nothing was wagered by the respondents. They gambled without paying for the
right to do so. This is a serious and potentially deadly argument that the respondents
were required to address. They did not do so in their answering affidavits . Whilst
they have said that they always had enough in their accounts with the applicant to
cover their bets, that, with respect, is not the issue. What is the issue is that the
respondents g ambled for free. Because of the standardised way in which the
answering affidavits were prepared, if the answering affidavit upon which all the
other answering affidavits was based did not address this issue, none of the other
affidavits did either. I cannot be sure which answering affidavit was the template for
the others. But the fact is that none of the answering affidavits deal with this crucial
issue. I must conclude that the respondents have not dealt with it because they are
not able to refute it.
[33] The applicant has suggested that there was a conspiracy amongst the
respondents to defraud it. It is suggested by the applicant that because each
respondent who put up an answering affidavit indicated that they told other people
about the ease with which winnings could be earned when playing the impugned
game, this evidences the existence of a criminal conspiracy. I am not able to accept
game, this evidences the existence of a criminal conspiracy. I am not able to accept
that argument. None of the respondents indicated who they specifically told about
the impugned game, and it is therefore not possible to know whether the persons
that they admitted telling are also respondents in this matter. It is conceivable that
they told persons who did not access the impugned game. The respondents are
scattered over the length and breadth of the province of KwaZulu -Natal and, indeed,
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this country, and are not confined to a specific area, nor has any relationship been
established that links them one to the other. I am accordingly unable to come to the
conclusion pressed for by the applicant.
[34] I am, furthermore, on the facts of this case not prepared to find that a fraud
was committed upon the applicant. For a fraud to exist there must be a
misrepresentation. I do not discern any such misrepresentation. If it is suggested that
the misrepresentation relates to the fact that no consideration was paid, I still cannot
accept that the respondents made any misrepresentation. They had no control over
whether the consideration was deducted from their account. That was a power held
by the applicant. I asked Mr Reddy, who appears for the applicant, to address me on
this aspect this morning. Ultimately, he agreed that there was no fraud.
[35] My reluctance to find that there was fraud is also based upon the fact that
motion proceedings are generally not designed to permit a court to easily make
findings of fraud. 3 As Seegobin J said in Commissioner for the South African
Revenue Services v Sassin and others:4
‘Our courts have consistently held that it would be unwise to decide a disputed issue of
whether fraud was committed on motion proceedings without the benefits inherent in the
hearing of oral evidence, including discovery of documents, cross -examination of witnesses,
and so forth.’
[36] Before concluding, I feel that something should be said about the interim
relief granted to the applicant. Firstly, I am not able to comprehend why all
transactions on the respondents’ bank accounts had to be frozen. It could not have
been known what was in each respondent’s bank account at the time that the ex
parte application was brought and it is entirely possible that there were funds in a
respondent’s bank account in excess of the amounts that needed to be repaid to the
applicant. The interim order prevented the respondents from accessing those
applicant. The interim order prevented the respondents from accessing those
additional funds. It would have been preferable if the hold on each respondent’s
bank account was clearly defined to be in respect of the amount allegedly owed by
the respondent to the applicant, instead of the prohibiting of all transactions.
3 Korff v Scheepers en Andere 1962 (3) SA 83 (W) at 85.
4 Commissioner for the South African Revenue Service v Sassin and others [2015] ZAKZDHC 82;
[2015] 4 All SA 756 (KZD) para 47.
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[37] Secondly, the applicant’s previously mentioned submission that the order
that it claimed would not occasion any prejudice to the respondents cannot be
allowed to pass without comment. What has been stated in the previous paragraph
establishes the obvious prejudice to the respondents.
[38] Thirdly, the application was moved ex parte, and the banks were directed to
repay the amounts owed to the applicant by each respondent within seven days of
the granting of the interim order. It is therefore conceivable that such payment could
have been extracted from a respondent’s bank account without him or her receiving
any notice at all. This would fly in the face of the audi alteram partem principle
ingrained in our law. In my view, it would have been appropriate to divide the relief
claimed into a part A and a part B, with part A preserving the status quo pending the
determination of the relief claimed in part B, being the order to repay the amounts
unlawfully won.
[39] Despite these misgivings, the interim relief claimed was granted and cannot
now be undone.
Conclusion
[40] I accordingly find that the wagers placed by the respondents through the
impugned game were not valid wagers . It must follow therefore that the respondents
were not entitled to the winnings that they received from the impugned game and
that they must be returned to the applicant. The rule must accordingly be confirmed
against the respondents mentioned at the commencement of this judgment.
[41] It follows that the applicant has achieved its aim and has been successful,
despite it, ultimately, being responsible for the deficiency in the impugned game. I,
reluctantly, find that it is entitled to its costs, which form part of the rule.
Order
[42] The following order is granted:
The rule nisi granted on 5 January 2024 by Henriques J , as amended, is confirmed
against the following respondents:
The 12 to 19th respondents;
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The 20th to 29th respondents;
The 31st respondent;
The 33rd to 39th respondents;
The 40th respondent;
The 42nd respondent;
The 44th to 47th respondents;
The 52nd and 53rd respondents;
The 55th to 57th respondents;
The 59th respondent;
The 60th to 67th respondents;
The 69th and 70th respondents;
The 72nd respondent;
The 74th to 77th respondents;
The 79th and 80th respondents;
The 82nd respondent;
The 84th to 87th respondents;
The 89th and 90th respondents;
The 92nd to 94th respondents;
The 100th respondent;
The 102nd to 105th respondents;
The 109th and 110th respondents;
The 112th to 115th respondents;
The 118th and 119th respondents;
The 121st and 122nd respondents;
The 128th and 129th respondents;
The 130th to 134th respondents;
The 137th to 140th respondents;
The 142nd respondent;
The 155th and 156th respondents;
The 159th respondent; and
The 161st to 169th respondents.
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_____________________________
MOSSOP J
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APPEARANCES
Counsel for the applicant: Mr T Q Reddy
Instructed by: Grant and Swanepoel Attorneys
Incorporated
Suite 1, The Mews
Redlands Estate
George MacFarlane Lane
Pietermaritzburg
Counsel for the respondent: Ms B De Beer
Instructed by: Shabangu Attorneys
191 Jabu Ndlovu Street
Pietermaritzburg