IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1
DELETE WHICHEVER IS NOT APPLICABLE CASE NO : 108644/2025
(l) REPO RT A BLE:~O ... .u
(2) OF INTER EST TO OTHE R JUDGES: YES ~
(3) REV ISED:
.~1.J..u .J .. i~~
DATE SIGNA TURE
In the matter between:
ITHUBA LOTTERY RF PTY LTD Applicant
And
MINISTER OF TRADE , INDUSTRY AND COMPETITION First Responden t
NATIONAL LOTTERIES COMMISS ION Second Respondent
S IZEKHAYA HOLDINGS RF (PTY) LTD Third Respondent
BOSELE GAMING RF {PTY ) LTD Fourth Respondent
2
WINA NJALO RF (PTY) LTD Fifth Respondent
RINGETA CONSORTIUM RF (PTY) LTD Sixth Respondent
GIYA GAMES HOLDINGS (PTY) LTD Seventh Respondent
UMBULELO LOTTERY SERVICES RF (PTY) LTD Eighth Respondent
LEKALINGA (RF) (PTY) LTD Ninth Respondent
This judgment was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to the parties/their legal representatives bye
mail and by uploading it to the electronic file of this matter on Caselines. The date for
hand-down is deemed to be 27 November 2025.
ORDER
1. The application is dismissed.
2. • The Applicant to pay the costs of the respondents on scale C , including the costs of
two counsel where so employed.
JUDGMENT
TOLMAY J
1. This is an opposed ument application in which the applicant, lthuba Lottery RF (Pty)
Ltd ("lthuba"), seeks to interdict the implementation of the award of the Fourth
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National Lottery Licence to the third respondent, Sizekhaya Holdings RF (Pty) Ltd
("Sizekhaya"), pending the final determination of a review application.
2. The Minister's power to award the Fourth National Lottery Licence is conferred by
s 13 of the Lotteries Act.1 The Request for Proposal (RFP) sets out the requirements
1 57 OF 1997. Section13 reads as follows: Licence to conduct National Lottery.
(1) The Minister may, after consultation with the board, issue one licence at one time authorising a person to
conduct the National Lottery, which for purposes of section 57 will constitute a lottery, in accordance with the
provisions of this Act.
(2) Before a licence is granted under this section-
(a) the Minister shall by notice in the Gazette and in not less than two new spape rs circulating in every
province invite interested parties to apply in writing for a copy of a request for proposal or any other document
which may be made public, and the board shall require payment for any such documents;
(b) the Minister shall be satisfied that-
(i) the applicant for the licence contemplated in subsection (1) has sufficient appropriate knowledge or
experience to conduct the National Lottery, or has unconstrained and continuous access thereto, and w ill be
able to conduct the National Lottery strictly in accordance with this Act, the licence of the National Lottery and
any agreement pertaining to the licence;
(ii) the applicant has the necessary financial and other resources to conduct the National Lottery;
(iii) the applicant will for the duration of the licence show a clear and continuous commitment to the social
responsibility programme contemplated in section 1 O (g) and to the advancement, upliftment and economic
empowerment of persons or groups or categories of persons disadvantaged by unfair discrimination; and
(iv) no political party in the Republic or political office-bearer has any directfinancial interest in the applicant
or a shareholder of the applicant.
or a shareholder of the applicant.
(3) In considering whether to grant the licence, the Minister shall take into account-
(a) whether any person who appears to the Minister to be likely to manage the business or any part of the
business of the National Lottery under the licence, is a fit and proper person to do so;
(b) whether any person for whose benefit that business is likely to be conducted, is a fit and proper person
to benefit from it; and
(c) whethe r any person who is likely to manage the business or any part of the business of the National
Lottery und er the licence or a sports pool, will do so-
(i) with all due propriety and strictly in accordance with the Constitution, this Act, all other applicable law
and the licence for the National Lottery together with any agreement pertaining to the licence;
(ii) so that the interests of every participant in the National Lottery and sports pools are adequately
protected; and
(iii) subject to subparagraphs (i) and (ii), so that the net proceeds of the National Lottery and sports pools
are as large as possible.
(4) A licence granted und er this section shall include the cond itions contemplated in section 14.
(5) The licence contemplated in subsection (1) m ay allow the licensee to appo int another person to conduct
certain lotteries of the National Lottery on behalf of the licensee only with the w ritten approval of the Minister:
Provided that the board has m ade a recommendation to the Minister to allow such appo intment if the person
to be appo inted has satisfied the provisions of section 13 (2) {b) and any other requiremen ts or conditions as
directed by the Minister.
[Sub-s. (5) substituted by s~l2 of 8ct32.o.L2_QJ3 (wef 14 April 2015).)
(6) In considering whether to grant the licence contemplated in subsection (1 ), the Minister and the board shall
not favour an applicant solely because the applicant or a shareholder or partner of that app licant is an organ
of the State.
4
for the award of the licence. It specifies the objectives and mandates a three-stage
evaluation process, consisting of Pre-Qualification, Technical Evaluation and
Financial and B-BBEE Evaluation. The RFP requires the second respondent ("the
NLC ") to assess all applications and present its findings to an Adjudication
Committee ("AC"). The AC conducts an adjudication and prepares a report for the
Minister. The RFP also requires the appointment of independent quality assurers
("QA").
3. lthuba contends that it seeks interim relief because the Minister's reasons for
awarding the Fourth Licence to Sizekhaya and the Rule 53 record reveal a series
of irregularities which vitiated the Minister's award. According to lthuba, these
alleged irregularities violate its rights to just administrative action and a fair,
competitive and equitable public procurement process. lthuba further alleges that it
has satisfied the requirements of an interim interdict. It argues that the present case
presents the clearest of cases that warrants the granting of interim relief. It alleges
irreparable harm on the ground that by the time its review application is heard,
Sizekhaya would have substantially implemented the award. It further contends that
this situation substantially harms the public interest and the rule of law.
4. Uniform Rule 6(12)(b) requires that a party bringing an urgent application must
explicitly state the grounds for urgency and provide reasons why the applicant
cannot be afforded substantial redress if a hearing is only held in the normal course.
The principles that should be applied in the exercise of the court's discretion on the
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determination of whether a matter is urgent are well established and have been
confirmed in various cases.2
5. The review application was filed on 4 July 2025. Despite that, this application was
only launched on 1 September 2025. The reason offered for this delay is that lthuba
says that it was waiting for the Minister to provide reasons for his decision. It is
difficult to establish why the reasons were required in order to launch the urgent
application, in the light of the fact that it was able to launch the review application.
lthuba could have filed this application with the review application as is done in
matters like this. The urgency is self-created. I wholeheartedly agree with what was
said in Wina Njalo v the Minister of Trade, Industry and Competition and Others:3
"Self-created urgency is fatal to an application. Self-created urgency is urgency
which stems from a deliberate in action until the hour of reckoning. Courts have
consistently refused urgent applications in cases were the urgency relied upon was
clearly self-created with the appropriate order of striking the matter from the roll.
Consistency in striking self-created urgency matters from the roll is important as it
informs the public and legal practitioners that the rules of Court and Practice
Directives can only be ignored at a litigant's peril. "4
6. Despite the above I have decided to determine the application in the interest of
justice because of the public's interest in the matter and to provide some measure
of certainty pending the determination of the review. This decision should not be
2 See for examp le Luna Meubelvervaardigers {Edms) Bpk v Makin and Another 1977(4) SA 135(W); see also
Dynamic Sisters Trading (Pty) Limited and Another v Nedbank Limited (081473/2023) [2023] ZAGPPHC 709
(21 August 2023).
3 (2025)/039592) [2025] ZAGPPHC 517 (21 MAY 2025) (Wina Njalo).
4 Id par 23. See also Commissioner, South African Revenue Services v H aw ker Air Services (Pty) Ltd;
Comm issioner, South African Revenue Services v Hawker Aviation Partnership 2006 (4) SA 292 (SCA) [9].
6
construed as a deviation from the principles applicable to the determination of
urgency.
7. On what basis interdictory relief should be granted needs some consideration. In
Co mmercial Stevedoring Agricultural and Allied Workers' Union and others v Oak
Valley Estates (Pty) Ltd and another6 where the Constitutional Court dealt with a
final interdict the following was said about interdictory relief in general:
"[i]n a constitutional order, interdicts occupy a place of importance. In granting an
interdict a court enforces 'the principle of legality that obliges courts to give effect to
legally recognised rights'. The purpose of injunctive relief is to 'put an end to conduct
in breach of the applicant's rights'. An interdict is intended to protect an applicant
from the actual or threatened unlawful conduct of the person sought to be
interdicted. Thus, for an interdict to be granted, it must be shown , on a balance of
probabilities ... that unless restrained by an interdict, the respondent will continue
committing an injury against the applicant or that it is reasonably apprehended that
the respondent will cause such an injury. "6
8. It is imperative to keep the above in mind when considering whether an interdict
should be granted. The requirements for an interim interdict are by now well-known .
The first is a prima facie right. The threshold for establishing a prima facie right is
stringent, particularly when restraining an organ of state as is the case here.7 It must
5 (2022) 6 BLLR 487 (CC); 2022 (5) SA 18 (CC); 2022 (7) BCLR 787 (CC); 2022 JDR 0494 (CC).
6 Id par 19.
7 N ational Treasury And Othe rs v Opposition To Urban Tolling Alliance And Others 2012 (6) SA 223 (CC)
(OUTA) par 44. Econom ic Freedom Fighters v Go rdhan and others and a related m atter, 2020 (6) SA 325 (CC)
par 40 (EFF v Go rdhan).
7
be granted only in the clearest of cases with due consideration being given to the
separation of powers.8 The second requirement is a well-grounded apprehension of
irreparable harm, the third is that the balance of convenience favours the granting
of an interim interdict and lastly that the applicant has no alternative remedy.
9. lthuba's argument was that it had much more than a prima facie right, it has a clear
right. It was therefore argued that there is no need to prove irreparable harm as
would be the case when only a prima facie right is established.9 The same , it was
argued, applies to the requirement of the balance of convenience.10 Only in the
event that the Court should find that there is no clear right will reliance be placed on
a prima facie right.
10. In Economic Freedom Fighters v Gordhan and Others11 the Constitutional Court
said:
"In addition, before a court may grant an interim interdict, it must be satisfied that
the applicant for an interdict has good prospects of success in the main review. The
claim for review must be based on strong grounds which are likely to succeed. This
requires the court adjudicating the interdict application to peek into the grounds of
review raised in the main review application and assess their strength. It is only if a
court is convinced that the review is likely to succeed that it may appropriately grant
the interdict. The rationale is that an interdict wh ich prevents a functionary from
8 Id par 47.
9 Setlogelo v Setlogelo 1914 AD 221 at 227.
10 Hyd ro Holdings (Edm s) Bpk v Minister of Public Works 1977 2 SA 778 (T) at 787A -B, citing Eriksen Motors
(Welkom) Ltd v Protea Motors, Warrenton 1973 3 SA 685 (A) at 691 C-G. See also Ladychin Investments (Pty)
Ltd v SANRA L 2001 3 SA 344 (N ) at 353F/G.
11 Sup ra N ote 7.
8
exercising public power conferred on it impacts on the separation of powers and
should therefore only be granted in exceptional circumstances. "12
11 . This Court must tread carefully when taking 'a peek' into the review grounds as it
must keep in mind that the review court is ultimately the forum that m ust pronounce
on the review grounds. The view of this Court regarding the grounds of review is
limited to an analysis of whether an interim interdict should be granted and is not
binding on the review court. I will now consider the review grounds on this basis.
12. lthuba says that the Minister jettisoned the scoring criteria for a purely subjective
preference. The Minister denies this and points out that the evaluation of bids is not
a mere mechanical exercise.13 It was explained that the Minister was required to
assess not merely raw scores, but the long-term viability, credibility, and national
strategic fit of each business plan. To dem and pure adherence to num erical output
would be to render the executive authority incapable of mak ing a rational decision
for the public good.
13. In G idani //14 the purpose of the RFP process was explained as follows:
"The RFP process ... was not designed to identify how the Minister would make his
decision. Its purpose ... was to identify how the Board wou ld evaluate the competing
bids for the purpose of advising the Minister. The Minister was thereafter required
12 Id par 42.
13 South African N ationa l Road s Agency Ltd v Toll Co llect Consortium 2013 (6) SA 356 (SCA) (12 Septemb er
2013) (Gidan i II).
14 Supra.
9
to make up his ow n mind, by reference to such factors as he m ight properly regard
as significant ... " 15
The scoring by the committees was advisory and the Minister had to make up his
own mind by executing a qualitative assessment of all the relevant factors. The
argument by lthuba is accordingly challenged by the Minister.
14. lthuba argues that the Minister acted unlawfully by awarding the licence based on
financial documents that were conditional and therefore insufficient. Section
13(2)(b)(ii) of the Lotteries Act requires the Minister to "be satisfied" that the
applicant has the necessary financial resources. This is a subjective standard,
assessed objectively for rationality. The Minister's reliance on the RMB Letter of
Comfort and the Genesis Analytics Report must be evaluated in that light. The RMB
letter was conditional, subject to final credit committee approval and the award of
the licence. In Gidani Ill the Court held that such conditionality is commercially
standard and does not negate the substance of the commitment. The Court
accepted that expecting a financial institution to issue an irrevocable funding letter
before final documentation and award would be commercially absurd.16
15. The Minister was awa re of the fact that Sizekhaya's loan facilities were subject to
conditions precedent which included final documentation and the award of the
licence. He accepted that these constituted standard administrative process. The
Court cannot at this point, conclude that his decision was irrational and that lthuba
is correct about the issue of funding. Gidani Ill upheld the principle that the judiciary
15 Id par 24.
16 Id par 54.
10
must defer to the executive's evaluation of expert and economic advice, confirming
that "even to a Court holding a different view. .. [this] would not constitute an
appearance of irrationality'' .17
16. The Minister, when considering financial viability relied on the Genesis Analytics
Report, which affirmed the credibility and viability of Sizekhaya's structured funding
plan. The absence of a finalised loan agreement on its own did not render the tender
non-compliant, it was supported by expert analysis. In Gidani Ill the Court observed
expecting any commercial entity to commit irrevocably by letter before final
contractual documentation would be absurd.18
17. There is no merit in the argument that the Minister acted unlawfully by awarding the
licence without fully committed financing. The Lotteries Act requires the Minister to
"be satisfied' that the applicant has the necessary financial resources. This entails
forming a rational opinion and does not require absolute certainty or unconditional
documentation as was held in Gidani Ill.
18. lthuba relies on Gidani II for support of the argument that any conditional funding is
unlawful. That judgment concerned a specific factual matrix, namely, the Minister's
failure to interrogate the solvency risk posed by a fixed rand commitment and the
unlawful imposition of a resolutive condition. It did not establish a general rule that
conditional funding is, per se, irrational or non-compliant. The facts are
distinguishable from Gidani II. There is no fixed and committed bond, no unlawful
17 Id par 67.
18 Id par 58.
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performance bond, and no failure to interrogate risk.19 Therefore the facts of this
case are distinguishable from what happened in Gidani II.
19. The next complaint is that the appointment of the quality assessors (QA) was
irregular. lthuba says that the first QA was MMB Consulting (MMB) however their
report reveals that it was never instructed to "conduct reviews of the RFP
evaluations and adjudication processes to ensure that all criteria were applied
consistently and impartially to all Applicants". MMB records it did not "express an
opinion or assurance conclusion". lthuba points out that the MMB report reveals that
it deferred to the conclusions of the AC, rather than making any independent
assessment of the process. For these reasons lthuba says MMB failed to fulfil the
function of an independent external QA. The second QA process was according to
lthuba also defective. The requirement was that it should be independent, but it was
not as it was composed of Department of Trade, Industry and Competition personnel
and the Minister's counsel and other advisers.
20. lthuba alleges that the appointment of the Ministerial Committee (MC) was
unlawfully constituted because it was not provided for in the RFP. However, it
provided for the inclusion of advisers and this entitlement was confirmed in both
Gidani II 20and Gidani 1//.21
19 G idani II par 59,62 and 63.
20 G idani II par 67 and 68.
21 G idani Ill par 68.
12
21. In relation to the aforementioned complaints it must be said that lthuba must prove
that the Minister's exercise of his discretion was irrational and not only whether it
came from a contested source. In Minister of Home Affairs and Others v Scalabrini
Centre and Others22 the SCA explained:
"But an enquiry into rationality can be a slippery path that might easily take one
inadvertently into assessing whether the decision was one the court considers to be
reasonable. As appears from the passage above, rationality entails that the decision
is founded upon reason - in contra-distinction to one that is arbitrary - which is
different to whether it was reasonably made . All that is required is a rational
connection between the power being exercised and the decision, and a finding of
objective irrationality will be rare. "23
Applying the aforesaid to this case, it cannot be said that the appointment of the MC
was unlawful or irrational. There is also no evidence before me that the Minister
abdicated his statutory function.
22. lthuba furthermore raises the issue of failure to conduct a fitness and propriety
assessment. Section 13(3)(a) and (b) of the Lotteries Act, provides that, before
awarding a license, the Minister "shall take into account ... whether any person who
appears to the Minister to be likely to manage the business or any part of the
business of the National Lottery under the licence, is a fit and proper person to do
so; [and]... whether any person for whose benefit that business is likely to be
conducted, is a fit and proper person to benefit from it".
22 Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2025] 3 All SA 827.
23 2013 (6) SA 421 (SCA) par 65.
13
23. Chapter 9 of the RFP provides inter alia that applicants are required to undergo an
independent probity assessment by the State Security Agency (SSA). lthuba says
the Minister and the NLC failed to comply with Chapter 9 and the Minister failed to
consider whether Sizekhaya was fit and proper. The complaint was that Sizekhaya
has significant foreign shareholding and the SSA could not screen foreign persons
or entities for fitness and propriety, and that no alternative objective mechanism for
screening such persons was employed. The only fitness and propriety assessment
of foreign nationals involved a notice sent to Sizekhaya and other bidders on 27
September 2024, in which they were asked whether-"Any individual shareholders
or directors of the individual applicant or any direct or indirect shareholders of the
applicant were under investigation or had been found guilty of any criminal offence
in any Jurisdiction, and if so, to provide details thereof" For these reasons lthuba
says the Minister's decision was irregular.
24. The SSA and not the Minister determines the appropriate procedure. It was neither
unlawful nor irrational for the Minister to rely on the information provided to him by
the SSA.
25. The further issue raised in this regard was the financial interest of political office
bearers. The central issue under section 13(2)(b )(iv) of the Lotteries Act, as
expanded by the RFP , is whether any political office-bearer holds a direct or indirect
financial interest in the applicant or its shareholders. The Lotteries Act only
referenced a direct financial interest, but the RFP refers to both a direct and indirect
financial interest. This prohibition is designed to prevent undue influence or benefit
14
by political office-bearers in the licensing process. lthuba's allegations centre on
Deputy President Paul Mashatile and his alleged associations with Ms . Khumo
Bogatsu, Mr. Moses Tembe , and Mr. Sandile Zungu. The legal question is whether
these relationships give rise to a disqualifying financial interest.
26. In order to substantiate its argument lthuba relies on the definition of 'financial
interest' as explained in Stellenbosch Farmers Winery Ltd v Distillers Corporation
(SA) LtcP4 where a financial interest in a business was defined as follows:
"the relationship betwee n a person and the business in question whe re he is so
circumstanced w ith respect to it that his financial position is affected by it either
beneficially or detrimentally". 25
27. Deputy President Mashatile, on the evidence presently available, does not have any
direct or indirect shareholding in Sizekhaya or is a party to any contractual
arrangement that would lead to a direct financial interest. As far as an indirect
financial interest is concerned, it was argued on behalf of the Minister that to
determine that will require an investigation. There is no evidence before this Court
to justify such a conclusion at this point the complaint is based only on the existence
of political proximity and social association.
28. In the Minister's heads of argument, it is conceded that Ms . Bogatsu, Mr. Tembe
and Mr. Zungu may hold indirect financial interest in Sizekhaya. For present
24 1962 (1) SA 458 (A). See also D urban Add-Ve ntures Ltd v Premier, Kwazulu-Natal (no 1) 2001 1 SA 384 (N ).
25 ID at 476H .
15
purposes it cannot be found that the Minister's determination of fitness and propriety
was unlawful or irrational. He relied on disclosures, legal advice and made a
decision based on the information available to him.
29. lthuba is aggrieved that the QA process was not timeously completed. It says that
neither the first Quality Assurance Report nor the second one was completed or
provided to the Minister before he received the AC 's recommendations. Clause
8.2.4 of the RFP provided as follows:
"The NLC shall appoint one or more independent external quality assurers to
conduct reviews of the RFP evaluations and adjudication processes to ensure that
all criteria were applied consistently and impartially to all Applicants. These reviews
may be conducted during the evaluations and adjudication processes. The NLC
shall appoint a further independent quality assurer nominated by the Minister to
review the NLC 's processes after the NLC has concluded its adjudication of the
bids, but before the NLC makes its recommendations to the Minister."
30. lthuba argues that while the RFP does not expressly say that the same applies to
the first report, it does so by clear implication and the materiality of non-compliance
with peremptory requirements is assessed in terms of whether the relevant conduct
frustrates the purpose of the impugned provision. The Minister does not deny the
sequence of the reports but says that clause 8.2.4 of the RFP does not prescribe a
rigid procedural formula, nor does it elevate sequencing to a jurisdictional fact. The
Minister's duty, it was argued, under section 13 of the Lotteries Act is not one of
flawless procedural choreography but of rational satisfaction. The Minister
16
considered the AC 's recommendations alongside both Quality Assurance Reports
and consulted with the AC and QAC before making his decision.
31. In Al/pay Co nsolidated Investm ent H oldings (Pty) Ltd A nd O thers v Ch ief Executive
Officer, South African Social Security Agency, And Others 26 (A l/pay 1) the
materiality principle was affirmed and it was explained as follows:
"Under the Constitution there is no reason to conflate procedure and merit. The
proper approach is to establish, factually, whether an irregularity occurred. Then the
irregularity must be legally evaluated to determine whether it amounts to a ground
of review under PAJA. This legal evaluation must, where appropriate, take into
account the materiality of any deviance from legal requirements, by linking the
question of compliance to the purpose of the provision, before concluding that a
review ground under PAJA has been established.
Once that is done, the potential practical difficulties that may flow from declaring
the administrative action constitutionally invalid must be dealt with under the Just
and equitable remedies provided for by the Constitution and PAJA. Indeed, it may
often be inequitable to require the rerunning of the flawed tender process if it can
be confidently predicted that the result will be the same .
Assessing the materiality of comp liance with legal requirements in our
administrative law is, fortunately, an exercise unencumbered by excessive formality
It was not always so. Formal distinctions were drawn between 'mandatory' or
'peremptory' provisions on the one hand and 'directory' ones on the other, the former
needing strict compliance on pain of non-validity, and the latter only substantial
26 2014 (1) SA 604 (CC) (ALLPAY 1 ).
17
compliance or even non-compliance. That strict mechanical approach has been
discarded. Although a number of factors need to be considered in this kind of
enquiry, the central element is to link the question of compliance to the purpose of
the provision. In this court O'Regan J succinctly put the question in ACDP v
Electoral Commission as being 'whether what the applicant did constituted
compliance with the statutory provisions viewed in the light of their purpose'. This
is not the same as asking whether compliance with the provisions will lead to a
different result. "27(Footnotes omitted).
32. At this stage the alleged procedural deviation cannot be said to have frustrated the
purpose of the RFP or rendered the Minister's decision irrational.
33. lthuba says that the licence was negotiated before the award was made contrary to
clauses 8.2.5 and 8.2.6 of the RFP that provides as follows:
"8.2.5. The Minister may, after consultation with the NLC , make a final decision to
award the Licence to the Successful Applicant.
8.2.6. Thereafter, the final terms of the Licence Agreement will be finalised by the
Minister with the Successful Applicant after consultation with the NLC , with specific
terms and conditions agreed upon by both parties within the parameters of the RFP
and the Lotteries Act."
The argument was that before entering licence negotiations, the Minister had to
have already decided on the successful applicant. The subsequent licence
27 Id par 28 -30.
18
negotiations were intended merely to "finalise" licence terms, not to provide an
additional period within which the Minister could decide upon the successful
applicant.
34. It was argued on behalf of the Minister that lthuba's reliance on the timing of licence
negotiations echoes the procedural objection raised in Gidani Ill, where it was
contended that the Minister could not have considered a financial report dated after
the award decision. The Court rejected that argument, holding that the Minister had
already satisfied himself of the relevant facts through prior consultations and merely
requested a formal record of that information and says that the same principle
applies here. Emphasis was placed on the extensive engagement with the NLC , the
AC and the MC .I agree that for purposes of this application this Court cannot
conclude that the process followed was irrational or unlawful.
35. The onus is on lthuba to prove on a balance of probabilities that it has a clear right
to an interim interdict. It did not succeed in proving such a right. The onus is less
onerous to prove the existence of a prima facie right as the right may be open to
some doubt but the other requirements for an interim interdict now come into play.
In W ebster v MitchelP.8 it was explained that:
"The right to be set up by an applicant for a tem porary interdict need not be shown
by a balance of probabilities. If it is ''prima facie established though open to som e
doubt" that is enough.
28 1948 (1) SA 11 86 (W). See also Kn ox D 'A rcy Ltd v Jam ieson 1995 (2) SA 579 (W) at 592H -593B.
19
The proper manner of approach I consider is to take the facts as set out by the
applicant, together with any facts set out by the respondent which the applicant
cannot dispute, and to consider whether, having regard to the inherent probabilities,
the applicant could on those facts obtain final relief at the trial. The facts set up in
contradiction by the respondent should then be considered. If serious doubt is
thrown upon the case of the applicant he could not succeed in obtaining temporary
relief, for his right, prima facie established, may only be open to "some doubt". But
if there is mere contradiction, or unconvincing explanation, the matter should be left
to trial and the right be protected in the meanwhile, subject of course to the
respective prejudice in the grant or refusal of interim relief ''29
36. lthuba relies on the right to just administrative action to support its argument that it
is entitled to an interim interdict. In Outa30, the Constitutional Court explained that
an interdict restraining a state organ should only be granted in the clearest of cases.
lthuba however relied on South African Informal Traders Forum and Others v City
of Johannesburg and Others; South African National Traders Retail Association v
City of Johannesburg 31 (SA Informal Traders) to support the argument that an
interim interdict could be granted where an applicant demonstrates prospects of
success on review.
37. The facts underpinning the decision in SA Informal Traders is clearly distinguishable
from the facts in this matter. There the Constitutional Court held that a prima facie
29 Id at 189.
30 Outa par 65.
31 2014 (4) SA 371 (CC) (SA Informal Traders).
20
right may be established by demonstrating prospects of success in the review. That
case however concerned applicants who sought to protect an existing, conceded
right to trade in specified stalls. There was no dispute over their entitlement and the
City expressly conceded unlawful conduct. The interim relief sought in that case
was intended to preserve the applicants' possession of specific trading stalls
pending the final hearing, because the interim solution offered by the city would
have forced the traders to settle for relocation to unspecified stalls. The Court
therefore treated the interim application as one to protect an acknowledged,
ongoing substantive right, not merely a right to have a decision reviewed.
38. lthuba does not seek that kind of status-quo protection. The right that lthuba seeks
to protect is disputed by the Minister, the NLC and Sizekhaya. The principle
enunciated in Outa that more than the right to just administrative action is required
before interim relief can be granted should be applied and the interdict should only
be granted in the clearest of cases in order to acknowledge and respect the
separation of powers. The following was said in Outa in relation to the granting of
an interim interdict:
"Under the Setlogelo test the prima facie right a claimant must establish is not
merely the right to approach a court in order to review an administrative decision. It
is a right to which, if not protected by an interdict, irreparable harm would ensue. An
interdict is meant to prevent future conduct and not decisions already made . Quite
apart from the right to review and to set aside impugned decisions, the applicants
should have demonstrated a prima facie right that is threatened by an impending or
21
imminent irreparable harm. The right to review the impugned decisions did not
require any preservation pendente life. "32
39. lthuba disagrees with the Minister's decision in what is essentially a polycentric
exercise of the Minister's powers. The Minister and the NLC interpreted the RFP in
a certain manner, whether it was correct or not is not for this Court to determine. In
Bel Porto School Governing Body and Others v Premier, Western Cape , and
another 33 the Constitutional Court said:
''The role of the Courts has always been to ensure that the administrative process
is conducted fairly and that decisions are taken in accordance with the law and
consistently with the requirements of the controlling legislation. If these
requirements are met, and if the decision is one that a reasonable authority could
make , Courts would not interfere with the decision. "34
40. The SCA in Logbro Properties CC v Bedderson NO and Others35 explained citing
Hoexter36 with approval:
" ... a judicial willingness to appreciate the legitimate and constitutionally ordained
province of administrative agencies; to admit the expertise of those agencies in
policy-laden or polycentric issues; to accord their interpretation of fact and law due
respect; and to be sensitive in general to the interests legitimately pursued by
32 Outa par 50.
33 2002 (3) SA 265 (CC).
34 Id par 87.
35 2003 (2) SA 460 (SCA).
36 Cora Hoexter 'The Future of Judicial Review in South African Administrative Law' (2000) 117 SAU 484 at 501
-2, citing A Cockrell "'Can You Paradigm?" -Another Perspective on the Public Law/Private Law Divide' •
1993 Acta Juridica 227.
22
administrative bodies and the practical and financial constraints under which they
operate. This type of deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate corruption and maladministration. It ought to be
shaped not by an unwillingness to scrutinise administrative action, but by a careful
weighing up of the need for - and the consequences of -judicial intervention.
Above all, it ought to be shaped by a conscious determination not to usurp the
functions of administrative agencies; not to cross over from review to appeal
[quoted from Hoexter, par [64] below, at 501 -2]. "37
41 . The above illustrates that the Outa principle should apply and that this Court.
considering the factual matrix of this case cannot find that a clear or prima facie right
exists.
42. This application has an element of deja vu as ten years ago with the award of the
Third National Lottery Licence in Gidani (Pty) Limited v Minister of Trade and
lndustry,36 (Gidani I) the same scenario played out in court. Aggrieved by the
Minister's decision to award the licence to lthuba Holdings, Gidani sought an interim
interdict pending a review. The Court in Gidani I had the following to say:
"What Gidani actually seeks to protect is something different. Gidani is worried that
if lthuba is allowed to prepare itself to take up its responsibilities on 1 June 2015 by
entering into contracts and making other financial commitments, lthuba will create,
as it were, facts on the ground and position itself better to make an argument to a
37 Id par 21 -22.
38 2014 JDR 2659 (GP).
23
reviewing court that upon a finding of invalidity in relation to the Minister's decision,
the award of the license to lthuba should not be set aside because of the great
prejudice to lthuba and because of the dislocation to the administration of the lottery
that this would cause. "39 And "But I am by no means convinced that a market
participant in this high risk high reward industry which chooses to spend money on
risk will receive much judicial sympathy in the context described. I think that the
weight which Gidani ascribes to the alleged risk to its commercial interests is
overstated. "40
43. The risk faced by lthuba is similarly a commercial risk which is part and parcel of
this high-risk industry. One should also not loose sight of the fact that Sizekhaya
already started with the implementation plans during June 2025. It says that the
Commencement Transition Plan and the preparatory steps towards the Transition
Period did not commence on 2 September 2025 but immediately after Sizekhaya
concluded the Licence Agreement in May 2025. This has been known to lthuba
Lottery since at least May 2025.
44. The interest of lthuba must be weighed against the public interest that the lottery
will not be interrupted unless the review succeeds. Although lthuba did not initially
give any undertaking to make up any losses that Sizekhaya or the lottery may suffer,
it gave a very limited undertaking during the hearing. This undertaking was limited
to an amount of R50 million for the losses that Sizekhaya may suffer but subject to
39 Gidani I par 46.
24
conditions, and only if such losses can be proven . The offer did not cover any other
losses and Sizehaya indicated that the offer was wholly inadequate.
45. lthuba referenced numerous failures by the Minister, the NLC and the different
committees to comply with the procedural requirements and thus resulting in a
decision by the Minister which lthuba says should be reviewed and set aside. These
failures are disputed by both the Minister and the NLC . In Gidani /141 the same
Judge that refused the interim interdict ultimately reviewed and set aside the
Minister's decision and remitted it to the Minister for reconsideration. This illustrates
that lthuba has an effective alternative remedy available to it. The matter ended up
in court again and in Gidani Ill the review was dismissed.42
46. The granting of another temporary licence as suggested by lthuba is not a viable
option. The appointment of a temporary licensee requires a competitive process. As
is illustrated by the litigation in Wina Nja/o 43 there can be no certainty that it will be
possible to run a properly competitive temporary licence process that results in the
appointment of a temporary licensee if the implementation of the Fourth Licence is
interdicted. Without a temporary licensee the National Lottery cannot operate and
this will be prejudicial to the public interest.
47. The relief sought in the review is instructive. lthuba seeks in the review application
remittal to the Minister and not substitution as the preferred bidder. This confirms
~, [2015) ZAGPP H C.
42 G idani (Pty) Ltd v Minister of Trade and Industry and Others (65337 /2015) [2016) ZAG PPHC 609 (13 May
2016).
43 Wina Njalo par 79.
25
that the review court is asked to enforce a procedural right and not a substantive
entitlement to the licence. This is indicative of the fact that there is no irreparable
harm that needs to be prevented by the granting of an interim interdict. The ability
of the Minister to conduct a fresh, fair licensing process is not extinguished by
Sizekhaya's expenditure or operational entrenchment. Even if the award is set
aside, the Minister remains empowered to initiate a new licensing process, which
fully vindicates lthuba's procedural right under section 33 of the Constitution.
lthuba's own prayer for remittal demonstrates that the only injury it faces is the delay
in a procedural reassessment of the bids.
48. The balance of convenience does not favour lthuba. The public interest militates
against the granting of the interdict. It is in the public interest that the Lottery should
continue uninterrupted. There is nothing before this Court to indicate that Sizekhaya
is not in a position to comply with its obligations in terms of the licence. On the
papers before me it is uncontradicted that so far it has been taking all the necessary
steps to be able to administer the National Lottery from June 2026. If the process is
interdicted now it will lead to a very real possibility that the National Lottery will be
interrupted. This will lead to the good causes supported by it to suffer harm. lthuba
did not establish any inconvenience to itself. It asserts only its right to lawful
administrative action as the right it seeks to protect through the interim interdict and
relies on a combination of review grounds pleaded in its review application and
additional grounds set out in its founding affidavit to contend that it has strong
prospects of success in the review application.
49. lthuba did not meet the requirements for an interim interdict. It did not show a clear
right. In considering a prima facie right, the other requirements for an interim
26
interdict come into play. There is no indication that lthuba will suffer irreparable
harm if the interdict is not granted and the balance of convenience does not favour
lthuba. The review court can still grant adequate relief. This was illustrated in the
Gidani matters.
50. As a result, the application should be dismissed with costs.
The following order is made:
1. The application is dismissed.
2. The Applicant to pay the costs of the respondents on scale C , including the costs of
two counsel where so employed.
A PP EARANCES :
~
RTOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For Applicant: Adv A COCKRELL SC; Adv M MBIKIWA & Adv J DAVIS instructed by
Roodt Mkhabela Attorneys Inc.
27
For First Respondent: Adv IV MALEKA SC ; Adv JA MOTEPE SC & Adv KO MAGANO
instructed by Malatji & Co Attorneys.
For Second Respondent: Adv N MAE NET JE SC ; Adv 8 LEKOKOTLA & Adv N SAKATA
instructed by Malatji & Co Attorneys.
For Third Respondent: Adv N RAJAB-BUDLENDER SC ; Adv I CURRIE & Adv N
LUTHULI instructed by Cliff Dekker Hofmeyer.
Date of hearing: 28 - 29 October 2025.
Date of judgment: 27 November 2025.