HIGH COURT OF SOUTH AFRICA
(GAUTENG DJVISION, PRETORIA)
CASE NO: 085280/2025
(I) REPORTABLE: NO
(2) OF INTERE ST TO OTHER .JUDGES: NO
(3) REVI SED.
SlG NATlJRE
ECONOMIC FREEDOM FIGHTERS
In the matter between:
LEKALINGA (RF) (PTY) LTD
and
THE MINISTER OF TRADE, INDUSTRY
AND COMPETITION
BOARD OF THE NATIONAL LOTTERY
COMMISSION
NATIONAL LOTTERY COMMISSION
SIZEKHA YA HOLDINGS (RF) (PTY) LTD
SCIENTIFIC GAMES ANDANI (PTY) LTD
Intervening Party
Applicant
First Respondent
Second Respondent
Third Respondent
Fourlh Respondent
Fifth Respondent
2
ITHUBA LOTTERY (RF) (PTY) LTD Sixth Respondent
WINA NJ ALO (RF) PTY LTD Seventh Respondent
RINGETA CONSORTIUM (RF) (PTY) LTD Eighth Respondent
GIY A GAMES HOLDINGS (PTY) LTD Ninth Respondent
UMBULELO LOTTERY SERVICES (RF) (PTY) LTD Tenth Respondent
ECONOMIC FREEDOM FIGHTERS
In the matter between:
ITHUBA LOTTERY (RF) (PTY) LTD
and
THE MINISTER OF TRADE, INDUSTRY
AND COMPETITION
NATIONAL LOTTERY COMMISSION
SIZEKHAYA HOLDINGS (RF) (PTY) LTD
BOSELE GAMING (RF) (PTY) LTD
WINANJALO (RF) (PTY) LTD
RINGETA CONSORTIUM (RF) (PTY) LTD
GAMES HOLDINGS (PTY) LTD
LOTTERY SERVICES (RF) PTV LTD
LEKALINGA (RF) (PTY) LTD
CASE NO: 108644/2025
Intervening Party
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
3
Summary: Leave to intervene in ex;sting litigation in order to raise an issue of
constitutional invalidity of a statutory provision - issue so closely
related to remainder of subject matter as to constitute direct and
substantive interest- other.factors considered was the need to avoid
multiplicity of actions, the fact that no other party, except the
successful bidder in a set of applications for the review of the award
of a licence, opposed the application and that there were no
compelling interests of.justice demanding that leave to intervene
should be refused. The existing case managed proceedings in the
main applications would not be disturbed if leave is granted and
considerations of convenience and limited judicial resources also
favoured the application for intervention. Leave granted. Costs to be
costs in the cause.
ORDER
1. The intervening party is granted leave to intervene in Case No
085280/2025 and case no 108644/2025 as the second applicant in
each matter in order to pursue the issue of constitutionality of
section 13(2)(b)(iv) of the Lotteries Act 57 of 1997, as delineated
in the applications for intervention.
2. Costs of the applications for intervention, shall be costs in the
causes in the respective review applications.
4
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading it
to the electronic file of this matter on Caselines. The date of handing-down is
deemed to be 26 May 2026.
DAVIS, J
Introduction
[1] On 28 May 2025 the Minister of Trade, Industry and Competition (the
Minister) decided to award the Fourth Lottery Licence and Sports Pool Licence
(the licence) to Sizekhaya Holdings (RF) (Pty) Ltd (Sizekhaya). The period of the
licence is for eight years.
[2] In case no 085280/205 Lekalinga (RF) (Pty) Ltd (Lekalinga) launched an
application for the review and setting aside of the award.
[3] In case no 108644/2025 Ithuba Lottery (RF) (Pty) Ltd (Ithuba) launched a
similar application for the review of the award.
[ 4] In two other applications 1, two other unsuccessful bidders also launched
review applications in respect of the award. All four review applications are to be
heard simultaneously during the second week of this court's June/July recess.
There are multiple respondents in each of the four applications, including the
Minister and the National Lottery Commission (the NLC).
1 Case no: 228028/2025 and Case no: 017623/2026
5
[5] The Economic Freedom Fighters (the EFF) seeks leave to intervene in the
applications of Lekalinga and lthuba . The basis for the relief is that the EFF
wishes to raise issues relating to the constitutionality of section 13(2)(b )(iv) of
the Lotteries Act2 at the hearing of the review applications.
[6] Of all the multiple parties involved, only Sizekhaya opposes the leave
sought by the EFF. The basis of this opposition, as set out in Sizekhaya's heads
of argument, was that the EFF's intervention " ... will complicate and prolong the
resolution of the main application [by J inserting a constitutional challenge with
all its attendant procedural steps in a case where no such challenge arises for
decision in the main application ".
[7] It needs to be pointed out at this early stage of the judgment already that
the EFF made it very clear that it does not seek to introduce new evidentiary
material to that already delivered by the various other parties and what is
contained in the record, but wishes to only advance legal argument in support of
its contentions. It undertook to fall in with the case management directives
already issued in respect of the exchange of heads of argument.
The test for leave to intervene
[8] Rule 12 of the Uniform Rules, which provides the mechanism whereby a
party may seek leave to intervene in an already existing matter, provides as
follows; "Any person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may ... apply for leave to intervene ... The court may upon
such application make such order, including any order as to costs and give such
directions as to further procedure ... as to it may seem meef '. By virtue of the
provisions of Rule 6(14 ), this mechanism also applies to applications.
2 57 of 1997.
6
[9] Intervention is treated as a particular facet of joinder3.
[IO] The customary test for intervention is that the party seeking to intervene
must demonstrate a direct and substantial legal interest in the subject matter of
the case and that it has some right which may be affected by the order that the
court may grant in the main proceedings .4
[11] In Peermont Global (KZN) (Pty) Ltd v Afrisun KZN (Pty) Ltd t/a Sibaya
Casino and Entertainment Kingdom5 it was stated that an applicant seeking
intervention need not satisfy the court that it will succeed with the case it seeks
to advance but that it is sufficient if it can indicate allegations which, if they are
proven in the main application, would entitle it to succeed.
[12] In addition, in Smyth v Investec Bank Ltd5 the Supreme Court of Appeal,
with reference to Herbstein & Van Winsen-The Civil Practice of the High Courts
of South Africa7 stated that intervention is also competent on the basis of
convenience .
[13] Both parties also referred to the judgment in Gory v Kolver NO and Others8
(Gory). Therein it was stated that "in eve,y case [a court] must ultimately decide
whether or not to allow intervention by considering whether it is in the interests
of justice to grant leave to intervene "9. The judgment also confirmed that the
considerations applicable to Rule 12 "are not wholly appropriate to a case
involving an order of constitutional validity of a statute ... " 10. I shall deal with the
parties' opposing submissions based on this judgment later.
3 United watch and Diamond Campany {Pty) Ltd v Diso Hotels Ltd 1972 (4) SA 409 (C) at 415C.
4 SA Riding for the Disabled Association v Regional Land Claims Commissioner 2017 (S) SA 1 (CC).
5 (2020) 4 All SA 226 (KZP).
5 2018 (1) SA 494 (SCA) at SllF.
' VOi 1 5th Ed (2009) at 225-6.
8 2007 (4) SA 97 (CC).
9 Ibid at par 13.
10 Ibid at pat 12.
7
The subject matter of the main applications
[14] As already stated, the main applications are for the review of the Minister 's
decision to award the licence to Sizekhaya.
[15] In Ithuba's founding affidavit, reference was made to the Request for
Proposals (RFPs) for the licence. The RFP stated that successful applicant was
required to be an entity ring-fenced for the duration of the licence period for the
sole purpose of operating the National Lottery and Sports Pools. Before awarding
the license to any such applicant, the Minister was obliged to be satisfied that no
political party or political office-bearer in South Africa had a direct or indirect
financial interest in or is a significant shareholder in such an applicant. This was
mentioned as a "key consideration" in par 2.4.1.4 of the RFP.
[16] Ithuba's attack on the award is, inter alia, that the Minister had failed to
perform the required assessment in this regard and only attempted to do so after
the fact. In fact, after having received and analysed the Minister's reasons
delivered on 5 August 2025, Ithuba in a supplementary founding affidavit,
referred to the following extract from the Minister's reasons: "On 23 June 2025,
which was after the licence was awarded, AmaBhungane reported that Ms
Khumo Bogatsu, a director and co-owner of Bellamont Gaming, which is a
shareholder of Sizekhaya, was the Deputy president 's sister-in-law. it also
claimed that two individuals involved in Sizekhaya, Messrs Zungu and Tembe,
were closely connected to the Deputy President. On 24 June 2025, I instructed
the NLC to investigate the matter to determine whether there was in fact a
contravention of section J 3(2)(b)(iv) of the Lotteries Act ".
8
[17] Ithuba further alleges that the investigation to this issue remams
incomplete, despite the imminent commencement of the licence period and a
Parliamentary question in this regard 11 .
[ 18] Ithuba further complains that the record indicated a lack of assessment of
indirect interests in Sizekhaya and that the Minister's own reasons indicate that
the Adjudication Committee had only investigated direct interests and not also
indirect interests.
[19] In its founding affidavit, Lekalinga expounded on the critical nature of this
requirement as follows; "It ensures the independence of the National Lottery,
prevents political interference and safeguards the integrity of a public institution
responsible for allocatingfundsfor charitable and developmental purposes. Any
financial benefit, however indirect, risks distorting this mandate and undermines
public confidence in the operation of the licence ".
[20] Despite the above considerations, Lekalinga complained that, prior to the
award of the licence, media statements made on behalf of the Minister and probity
checks performed by the NLC, only referred to direct interests and made no
reference to indirect interests.
[21] The EFF's current application for intervention was already foreshadowed
by the reference in Lekalinga 's founding affidavit that , on the day the Minister
had announced the award, The EFF had issued a media statement to the effect
that the major shareholder in Sizekhaya was a company called Goldrush and that
that company and two other individuals "have connections to political parties ".
These concerns were echoed in other media publications at the time.
11 No 5954 of 7 Novembe r 2025.
9
[22] In its supplementary founding affidavit, Lekalinga adopted the
submissions made by the EFF in its application for leave to intervene regarding
the Deputy President's "family connections" to Sizekhaya through Bellamont
Gaming, other allegations made regarding the chronology of the registration of
Bellamont Gaming and Sizekhaya, as well as the "inadequacy" of section
13(2)(b )(iv) of the Lotteries Act m addressing the issue of indirect political
interests as required by the RFP.
Evaluation
[23] Relying on Gory the EFF submitted that it need not satisfy the "orthodox"
substantial-interest-test, but because an application regarding constitutionality of
a statute operates under section 172 of the Constitution 12 in rem, a "broader
interests-of-justice overlay" applies. Whilst it is correct that Gory found that the
interests of justice should play a role in the exercise of a court's broader
discretion, it in fact found that such interests may trump an application for
intervention, even where direct and substantial interest has been demonstrated.
[24] The stronger argument of the EFF is that it, as an opposition party, has the
necessary standing to hold the executive accountable and to ensure that
constitutional prescripts and the rule oflaw is upheld 13. This will include the right
to challenge the constitutionality of legislation involving political office bearers.
[25] Sizekhaya conceded the EFF 's standing to challenge the constitutional
validity of legislation, but argued that the issues of standing and rights to
intervene should not be conflated. Sizekhaya was of the view that the EFF would
be free to launch separate proceedings wherein it could raise the constitutional
12
This section provides that a High Court may make an order that a statutory provision in inconsistent with the
Constitution and therefore lnvalld . Such a declaration must, however be confirmed by the Constitutional Court
before it becomes operative. Pending such confirmation, interim relief may be granted.
13
before it becomes operative. Pending such confirmation, interim relief may be granted.
13
Economic Freedom Fighters ond Others v Speaker of the National Assembly 2018 (2) SA 571 (CC) and
Democratic Alliance and Others v National Director of Public Prosecutions 2012 (3) SA 486 (SCA).
10
validity or interpretation of the section sought to be impugned, but that such
litigation should be kept separate from the review applications. This raises the
issues of convenience and the preference of avoidance of multiplicity of actions.
[26] Lastly, the EFF contended that the judgment in Democratic Alliance v
President of the Republic of South Africa and Others (Economic Freedom
Fighters intervening)14 illustrates what the courts' approach should be to a matter
of this nature. In that matter the DA sought a review of ministerial conduct, but
without challenging the statutory framework. The court granted the EFF leave to
intervene to raise constitutional issues not raised by the DA. The EFF argues
that the same happened in President of the Republic of South Africa v Office of
the Public Protector and Others (Economic Freedom Fighters intervening)15.
[27] Similarly, in the present matter, the EFF seeks leave to raise a
constitutional issue not initially raised by the applicants in the review
applications. It contends that this issue might impact on this court's
determination of the lawfulness of the Minister's conduct, should the statutory
framework be found to have been inconsistent with the Constitution.
Conclusion
[28] Having considered aJI of the above, I am of the view that the EFF should
be granted leave to intervene. In reaching this conclusion, I have taken the
following factors into account: firstly, any order granted in the review
applications which may be taken without the consideration of the constitutional
validity of the section in terms of which the Minister has exercised his decision ,
might impact on the rights of the EFF to challenge executive conduct. This would
particularly be the case in the event where the reviews may be unsuccessful,
which would entrench a position which might then remain unchallenged for a
14 [2020] 3 All SA 747 (GP).
15 [2018] 1 All SA 576 (GP).
11
period of eight years. In that sense, I find that the EFF has sufficiently
demonstrated a direct and substantial interest in the subject matter described
earlier and that it has some right which may be adversely affected by an order
which may be granted in the review applications.
[29] Secondly, once the EFF' s legal standing to challenge legislative provisions
involving political office bearers is acknowledged, as I think it must, then it will
be more convenient to allow the ventilation of such challenges within an existing
factual framework in already pending litigation, particularly when refusing to do
so will result in a multiplicity of actions and possibly duplication of usage of
scarce judicial resources.
[30] The issue of convenience must, of course be subject to practicalities. In the
present instance however, all that would procedurally be added to the present
litigation, would be the presentation of legal argument in addition to that which
will in any event otherwise feature before this court in the reviews themselves.
There would be no further procedural delays and no separate hearings of the
disputes would be necessary.
(31] A further factor which I took into account was that none of the other parties
opposed the intervention. In fact, as indicated above, Lekalinga even adopted
some of the EFF's contentions. That being the case, it would be inimical to
deprive the EFF of participation in the main mauer/s and to prevent it from
advancing those contentions itself.
(32] Lastly, there are no interests of justice factors which militate against
granting leave to intervene, as there may have been in Gory. In fact, I consider
the position to be the opposite.
12
[33] Having reached the above conclusions and, having regard to the nature of
the points raised by the EFF, l do not consider it necessary to order the joinder of
other parties as initially proposed by the EFF in its notice of motion. Counsel for
the EFF also readily conceded this. In respect of the constitutional point raised,
Rule 16A will however still to be complied with. The burden is on the EFF to do
so.
Costs
[34] Sizekhaya argued that, should leave to intervene be granted, that the
Biowatch-principle should apply and that it should not be ordered to pay the costs
of the application. The EFF argued that the opposition to its application was
frivolous and demanded costs. In the exercise of the court's discretion, I find that
the costs of the application for leave to intervene, should follow the success of
the relief sought by the EFF in the main applications , now that it has been joined.
Order
(35] In the premises , the following order is granted:
1. The intervening party is granted leave to intervene m Case No
085280/2025 and case no 108644/2025 as the second applicant in each
matter in order to pursue the issue of constitutionality of section
13(2)(b)(iv) of the Lotteries Act 57 of 1997, as delineated in the
applications for intervention.
2. Costs of the applications for intervention, shall be costs in the causes
in the respective review applications.
Date ofHearing: 14 May 2026
Judgment delivered: 26 May 2026
APPEARANCES:
Case no: 085280/2025
For the intervening party:
Judge of the High Court
Gauteng Division , Pretoria
Adv M Ka-Soboto together with
Adv T Masvikwa
Attorney for the intervening party: England Slabbert Attorneys Inc.
For the Applicant:
For the Fourth Respondent:
Attorney Fourth Respondent:
Case no: 108644/2025
For the Applicant:
c/o Lautenberg Morris Attorneys , Pretoria
No appearance
Adv F Snyckers SC together with
Adv I Currie
Cliffe Dekker Hofrneyr, Johannesburg
c/o Asger Gani Attorneys, Pretoria
No appearance
For the Third Respondent: Adv F Snyckers SC together with
Adv I Currie
Attorney for the Third Respondent: Cliffe Dekker Hofmeyr, Johannesburg
c/o Asger Gani Attorneys, Pretoria
14