SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/ Not Reportable
Case no.: 731/2022
In the matter between:
DEEPS BETTING GROUNDS (PTY) LTD t/a
SCOREBET Applicant
and
NORTHERN CAPE GAMBLING BOARD 1st Respondent
CHAIRPERSON OF THE NORTHERN CAPE
GAMBLING BOARD 2nd Respondent
VENGIES GAMING (PTY) LTD 3rd Respondent
Coram: WILLIAMS J et NXUMALO J.
Heard: 18/11/2024.
Delivered: 20/02/2026.
Summary: Review – Promotion of Administrative Justice Act, 3 of 2000 – or The
principle of legality – Mootness.
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ORDER
1. The costs of Part A of this application are to be borne by the three
respondents on an attorney and client scale, jointly and severally.
2. The review application in Part B of this matter is dismissed.
3. The costs of Part B are to be borne by the first respondent and the third
respondent jointly and severally on the attorney and client scale.
JUDGMENT
Williams J
[1] On 6 May 2022, Lever J made an order, relating to the urgent relief in Pa rt A
of this matter, in the following terms:
“1 That pending the determination of the relief sought in part B, the first and third
respondents are interdicted and restrained form implementing and giving
effect to the temporary bookmaker licence awarded to the third respondent by
the first respondent in respect of premises located at Shop No 1 […], 1[...]
C[...] Street, Kimberley, by operating gambling activities from the building
located at the aforementioned premises.
2. Directing that the costs of this application for the relief in Part A be reserved
for determination at the hearing of the application for the relief sought in Part
B.
3. That the first and second respondents ’ attorney file an affidavit setting out the
reasons why it should not pay costs de bonis propriis on a punitive scale.
4. The first and second respondents themselves are to file affidavits setting out
why they should not pay the costs of this application o n a punitive scale
having regard to th is court’s proceedings and attempt to pre -empt these
proceedings.”
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[2] Part B of this matter is a review application in terms of the Promotion of
Administrative Justice Act, 3 of 2000,1 or the principle of legality, which served
before us on 18 November 2024. The relief sought is the reviewing and
setting aside of the decision by the first respondent, the Northern Cape
Gambling Board (“the Board”), taken on or about 23 March 2022, to approve
and grant an application for a bookmaker licence to the third respondent,
Vengies Gaming (Pty) Ltd, (Vengies), in terms of s 26(1)(a) of the Northern
Cape Gambling Act 3 of 2008 , for a site located as described in paragraph 1
of the interim order.
Background
[3] The applicant, Deeps Betting Grounds (Pty) Ltd t/a Scorebet (Scorebet), is the
holder of a number of bookmaker licences and site operator licences in the
Northern Cape.
[4] Scorebet objected to an application by Vengies for a bookmaker licence
relating to premises described in the Northern Cape Provincial Gazette of 7
June 2021, as Erf no 1[...], 1[...] C[...] Street, Kimberley - the first licence
application. The premises were situated within 500 meters of three churches
and one school. It therefore did not comply with Regulation 7(c) of the
Regulations published under the Northern Cape Gambling Act . Regulation
7(c) provides that:
“the Board may not issue a licence to an applicant if the premises from which the
licenced activities will take place, are in the opinion of the Board. . . .
(c) on or in premises which are within 500 meters of a school or place of worship.”
[5] On 23 July 2021 , the Board received a formal communication from Vengies
withdrawing the first licence application.
1 PAJA.
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[6] Without informing Scorebet of the withdrawal by Vengies of its first licence
application, the Board published a second licence application by Vengies in
the Gazette of 18 October 2021. All the details pertaining to the second
application are similar to the first application, except for the inspection periods
and the date by which objections should be lodged, i.e. 16 November 2021.
[7] Scorebet avers that the second licence application only came to its attention
on 20 December 2021 , whereafter it immediately addressed a letter to the
Board res tating its previous objections and requesting the date upon which
any public hearing would be held as well as that it be per mitted to make oral
representations at such a hearing.
[8] No correspondence was received from the Board and on 31 March 2022 ,
Scorebet received an e -mail from an unknown source that the Board had
approved Vengies’ second licence application at its meeting of 23 March 2022
and granted it a temporary licence certificate indicat ing the address on the
certificate as “Shop no 1[…], 1[...] C[...] Street, Kimberley”.
[9] Scorebet maintains that the first licence application with premises situated at
1[...] C[...] Street, Kimberley and the tempor ary licence certificate granted to
Vengies at Shop 12, 1[...] C[...] Street, Kimberley, pertain to the same building
which has different entrances, one on Curry Street and the other on C[...]
Street. Irrespective, both entrances are within 500 meters of the three
churches and the school.
[10] In addition, the second licence application which was published in the Gazette
referred to the premises as 1[...] C[...] Street, the same address as the first
application – with the result that prospective objectors to the C[...] Street
entrance, would not have had effective notice of the application by Vengies for
a licence which was ultimately given in respect of the premises on that street.
Grounds of review
[11] The grounds of review are as follows:
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11.1 That in light of Regulation 7(c) , the Board acted ultra vires in making
the impugned decision as the aforementioned regulation prohibits the
granting of a gambling licence in respect of the premises;
11.2 That the Board acted in a procedurally unfair manner by not informing
Scorebet, who had lodged an objection to the first licence
application.That the first licence application had been withdrawn and
would be re-advertised and furthermore by not holding a public hearing
prior to deciding the licence application where an objection had been
lodged; and
11.3 The Board was not properly constituted at the time it considered the
second licence application and reached the impugned decision.
[12] The first and second respondents initially opposed the application, but before
Part A of the application was heard by Lever J, they withdrew their opposition.
Only Vengies still opposes the review application.
[13] Vengies initially opposed on two grounds, namely: that Scorebet does not
have the necessary locus standi to bring the application; and that the grounds
of review are unsustainable.
[14] After the order by Lever J on 6 May 2022, Vengies filed a supplementary
answering affidavit to which Scorebet filed a replying affidavit on 2 September
2022. Thereafter, Scorebet appears to have applied for a trial date only on 17
July 2023 and filed a notice of set down for this hearing on 24 August 2023.
[15] In the meantime, Vengies filed an application to file a supplementary affidavit
on 19 February 2024 to be heard simultaneously with this review application.
[16] After hearing argument, we received Vengies’ further affidavit in the interest of
justice and in an attempt to narrow the issues between the parties.
[17] The essence of Vengie s’ supplementary affidavit is that the matter has
become moot since the gambling licence sought to be set aside was a
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temporary licence which has not been renewed by the Board. The application
would thus have no practical effect and stands to be dismissed.
[18] Having conceded the main ground of review, that is, that the licence was
granted in contravention of Regulation 7(c), the only other ground of
opposition which Vengies persists with i s the doctrine of dirty hands which it
raised in its answering affidavit to a contempt of court application brought by
Scorebet after the order by Lever J was not immediately complied with. The
contempt application was however abandoned. Vengies avers that Scorbet
itself operates gambling establishments within 500 meters of churches and
schools, thus also in contravention of Regulation 7 (c).
[19] Scorebet however persist with the relief sought in the review application.
Mootness
[20] The temporary licence certificate issued to Vengies on 30 March 2022 , states
specifically that “this licence is issued subject to renewal by the Licensees no
later than the last day of March in any year”.
[21] Vengies maintain s that it had applied for the renewal of the C[...] Street,
Kimberley licence together with applications for the renewal of two other
licences in respect of Kuruman and Postmasburg. However, whereas the
Kuruman and Postmasburg licences were approved and renewed by the
Board for the year ending 31 March 2024, the Kimberley licence was not.
Correspondence between Vengies and the Board in this regard is attached to
Vengies’ supplementary affidavit.
[22] The argument by Mr Jagga for Vengies is that , the granting of the relief
sought would be of no practical value and entirely academic. The rule that a
party is not entitled to approach the courts on abstract and academic matters
should apply. He referred in th is regard to National Coalition for Gay and
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Lesbian Equality and Others vs Minister of Home Affairs and Others 2 where
the Constitutional Court held:
“A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on
abstract propositions of law.”
[23] Mr Kruger who appeared for Scorebet, holds an opposite view. He referred us
to Allpay Consolidated Investment Holdings (Pty) Ltd and Others vs Chief
Executive Officer, South African Social Security Agency and Others 3, where
the Constitutional Court held that:
“Once a ground of review under PAJA has been established there is no room for
shying away from it. Section 172(1) (a) of the Constitution requires the decision to be
declared unlawful.”
[24] The distinguishing feature between AllPay and this matter is that there was a
live controversy between the parties when the Allpay matter was heard.
[25] It is very seldom that a court would make an order that would have no effect.
In Mohammed and Another v President of the R epublic of South Africa and
Others (Society for the Abolition of the Death Penalty in South Africa and
Another Intervening),4 the Constitutional Court held , although in that case a
United States citizen had already been deported to stand trial in the US, that it
would not necessarily be futile for the court to pronounce on the illegality of
the governmental conduct, since there were important issues of legality and
policy involved and that the findings of the C ourt could have a bearing on the
case before the US Court. 5 Another matter where the Court was prepared to
review and set aside the decision of a School Governing Body, where the
learner who had been found guilty of serious misconduct had already left the
school, is that of Antonie v Governing Body , Settlers High School and
2 2000, (2) SA 1 (CC) para 21 (footnote 18) . See also Mamabolo v Rustenburg Regional Local
Council 2001 (1) SA 135 (SCA) para 8.
Council 2001 (1) SA 135 (SCA) para 8.
3 2014 (1) SA 604 (CC) para 25.
4 2001 (3) SA 893 (CC).
5 Ibid para 70.
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Others6. The Court in th at instance took into account that the Governing
Body’s decision and sanction would be permanently recorded on the learner’s
school record and may negatively impact on her personality, dignity and self -
esteem.7 The Court thus ha s a discretion to decide a moot issue in
accordance with what the interests of justice require.8
[26] No such considerations are applicable in casu. It is settled law, and the
respondents have conceded that the granting of the licence to Vengies was in
contravention of Regulations 7( c) and there is therefore no need to entertain
this issue any further.
[27] I may also mention at this stage that Regulation 7( c) has been amended in
the Provincial Government Gazette no 2 671 of 24 March 2024, some 9
months before this application was heard. It now reads as follows:
“7. The Board may not issue a licence to an applicant if the premises from which
the licenced activities will take place are…
(c) On or premises which are within 100 m of a school or an existing place of
worship.”
The doctrine of unclean hands
[28] The argument on behalf of Vengies is that Scorebet is itself con ducting
licenced activities at premises within 500 meters of place s of worship and
schools and that the court should therefore not c ome to Scorebet ’s
assistance. Having found that the matter has become moot , I do not intend to
spend much time on this issue.
[29] The fact of the matter is that Vengies has alleged that Scorebet has been
granted a licence for premises which contravenes the prescripts of Regulation
7(c). Scorebet denies these allegations. The granting of this licence as far as I
6 2002 (4) SA 738 (C).
7 Ibid para 2.
8 Normandien Farms (Pty) L td v South African Agency for Promotion of Petroleum Exportation and
Exploitation SOC Ltd and Another 2020 (4) SA 409 (CC) paras 47 and 48.
9
am aware , had not yet been taken on review when the present application
was heard. The issue of the invalidity of Scorebet’s licence is thus best left for
the reviewing court to decide upon, if and when it is faced with such an
application.
Costs
[30] The costs relating to both Part A of the application as well as Part B thereof
need to be considered. According to Lever J’s order in Part A, the attorneys
for the first and second respondents as well as the first and second
respondents themselves had to su bmit reasons by way of affidavit why they
should not bear the costs of Part A de bonis propriis and on the attorney and
client scale, respectively.
[31] The reasons for the order relating to the costs of Part A are as follows. The
first and second respondents stated in their opposing affidavit, before they
withdrew their opposition, that the first respondent had not yet issued
certificates of employment in terms of s 57 and s 70 of the Northern Cape
Gambling Act, to Vengies and have also not inspected the premises as the
pre-conditions for gambling activities to commence. It however transpired on
the mo rning of the hearing that in the meantime and despite t he pending
application, the first respondent had granted the certificates and permissions
referred to and that in fact Vengies had started trading.
[32] The first and second respondents have not given any explanation for their
conduct in the face of the pending application. They have displayed an utter
disregard not only of the rights of Scorebet , but also of the authority of the
court.
[33] Although Lever J did not require of Vengies to provide an explanation why it
should not be saddled with a punitive cost order in regard to Part A of the
application, it has shown just as much disrespect and disregard for the court
processes by commencing trading while Part A of the application was
pending. I see no reason why Vengies should not be ordered together with
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the first and second respondents to bear the costs of Part A of the application
on the scale as between attorney and client.
[34] With regard to the costs of Part B, the review application, the argument by Mr
Jagga, was that Scorebet should bear the costs of Part B , due to persisting
with the application despite the mootness of the matter.
[35] It does however not follow automatically that Scorebet should pay the costs of
Part B. Mr Kruger has referred us to Hull v Free Market Foundation (Southern
Africa) and Others9, wherein it was stated that it cannot be regarded as a hard
and fast rule that the withdrawing party bear the costs. The Court has to make
a proper allocation of costs in the exercise of its discretion. In Hull, the
application had become moot and the applicant had withdrawn the application
and the matter eventually turned solely on the issue of costs. The court in Hull
relied heavily on the principles enunciated in Serwada v Minister of Home
Affairs for RSA 10 which also concerned the withdrawal of an application
because of mootness. The relevant considerations relating to costs would be
inter alia , the merits of the application, the manner in which the parties
conducted themselves and which of the parties took unnecessary steps or
adopted a wrong procedure.
[36] In casu the conduct of Vengies can be summarised as follows:
36.1 In its opposing affidavit, Vengies denied that the distances between the
premises and churches and schools were within 500 meters.
36.2 In a supplementary affidavit filed by Vengies on 16 August 2022, it
maintained that the board has a discretion to grant licences to
applicants with premises within 500 meters of churches and schools.
36.3 In the supplementary affidavit in which the mootness of the matter was
raised, dated 19 February 2024, Vengies concedes that there is ample
and binding authority on Regulation 7(c) and that this Court does not
have to decide the issue. In effect conceding that Regulation 7(c) does
have to decide the issue. In effect conceding that Regulation 7(c) does
9 (2021/39689) [2023] SAGPJHC 103 (8 February 2023).
10 [2011] JOL 27643 (ECM) (23 August 2011).
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not confer any discretion on the Board when it considers and
adjudicates applications for gambling licences. In the matter of Desert
Palace Hotel Resort (Pty) Ltd v Deeps Betting Grounds (Pty) Ltd t/a
Scorebet and Another, heard in this Division under case no 1698/2019,
Dauds AJ on 13 December 2019 , held that Regulation 7(c) places a
prohibition on the establishment or operation of gambling activities
within a radius of 500 meters of a school or place of worship. This
interpretation was confirmed by the Supreme Court of Appeal.
36.4 In his heads of argument dated 20 February 2024 , it was finally
conceded by Mr Jagga that Vengies premises fall within 500 meters of
schools and churches as contemplated by Regulation 7(c), therefore
conceding that the Boards’ issuing of the licence to Vengies breached
Regulation 7(c) and was therefore unlawful.
36.5 I may also mention that the affidavit raising mootness was filed some
10 months after Vengies became aware of the fact that the licence, the
subject matter of this review, had not been renewed by the Board. The
conduct of Vengies is to say the least, lamentable.
[37] It is clear from the above that the review application would have succeeded
on the merits had it not been for the eventual mootness of the matter. Vengies
was well aware of this fact but persisted with its vexatious opposition on the
merits for about 20 months before making the necessary concessions. Even if
Scorebet had withdrawn the application after receiving the supplementary
affidavit, by then the bulk of the costs in this application would already have
been incurred and the issue of costs would in any event have to be
adjudicated.
[38] In light of the above, I see no reason why Scorebet should be made to bear
the costs of the review application. In fact the Board, which is responsible for
setting this application in motion with its unlawful issuing of the licence and
Vengies through its conduct should in my view bear the cost s of Part B of the
Vengies through its conduct should in my view bear the cost s of Part B of the
application on the attorney and client scale.
[39] In the result, the following order is made:
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1. The costs of Part A of this application are to be borne by the three
respondents on an attorney and client scale, jointly and severally.
2. The review application in Part B of this matter is dismissed.
3. The costs of Part B a re to be borne by the first respondent and the third
respondent jointly and severally on the attorney and client scale.
________________________
CC WILLIAMS
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I CONCUR
________________________
APS NXUMALO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For Applicant: Adv M Kruger
On instruction of: Edward Nathan & Sonneberg
c/o Elliot Maris Attorneys
For 1st and 2nd Respondents: Towell & Groenewaldt Attorneys
For 3rd Respondent: Adv N Jagga
On instruction of: Van de Wall Inc.