AK Entertainments CC v Minister of Justice and Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 13 December 1993
• Citation: 1994 (1) SACR 362 (E)
• Hearing Date: 13 December 1993
• Counsel: D A Kuny SC (with him G Bursey) for the applicant M J Lowe for the first respondents L Roberts SC (Attorney-General)(with him A van Dyk) for the second respondent
• Court: Eastern Cape Division

Jones J:

This is an application for a declarator about the legality of the applicant's business activities. The applicant operates the business of what it describes as an entertainment centre at a beach front hotel in J East

Jones J

A London, offering the public the opportunity to play games similar to those played at casinos.

It commenced business on 16 November 1993. Shortly thereafter Captain Calitz of the South African police not surprisingly interested himself in the nature of the applicant's business. He formed the opinion that the B applicant was acting in contravention of the provisions of the Gambling Act 51 of 1965, as amended inter alia by the Gambling Amendment Act 144 of 1992, and he threatened to take steps to prevent it from continuing to do so. But he agreed to give the applicant the opportunity of bringing this application prior to taking such steps. The application is accordingly brought as a matter of urgency. C

The applicant seeks an order declaring that the applicant's business known as Rascals Entertainment Centre is not being conducted in contravention of the provisions of the Gambling Act. The relief is opposed by the joint first respondents in their capacity as the Ministers in the Government of the Republic of South Africa responsible for the control of gambling and D the enforcement of law and order. It is also opposed by the Attorney-General, but on a different basis and without reference to the merits of the legal dispute between the applicant and the joint first respondents. The attitude of the Attorney-General is that I should exercise my discretion not to issue a declaratory order. This is because E it might have an effect upon uncompleted criminal proceedings arising out of the prosecution of other persons for the conduct of a similar though not identically run business which was peviously operated by the other persons with the same equipment at the same premises at the same hotel.

F The relevant provision of the Gambling Act is s 6(1). That section provides

'6(1) . . . no person shall permit the playing of any gambling game at any place under his control or in his charge and no person shall play any such game at any place or visit any place with the object of playing any such game.'

G A 'gambling game' is defined in s 1 as

'. . . any game, irrespective of whether or not the result thereof is determined by chance, played with playing-cards, dice or gambling devices for money, property, cheques, credit or anything of value (other than an opportunity to play a further game), including, without H derogating from the generality of the foregoing, roulette, bingo, twenty-one, black-jack, chemin de fer and baccarat;'

For the purposes of this application the facts about the nature of the games played at the applicant's entertainment centre and the rules under which they are played are common cause. The parties do not seek to suggest that they are not. This does not, of course, affect the Attorney-General's I right to attempt to go behind those facts or to controvert them in any future criminal proceedings which he may decide to initiate. He is not a party to the agreement between the applicant and the joint first respondents on the facts upon which the present application is based. But he is also not in a position to dispute those facts in this application as J distinct from some future criminal prosecution where the evidence given

Jones J

A of the facts may be challenged in cross-examination or contradicted by other evidence.

The agreed facts are contained in para 9 of the founding affidavit filed by one Kashula on behalf of the applicant. That paragraph reads:

'9.1

Customers enter the centre via the only door where they encounter B a notice board spelling out the main principles of the centre. . . .

9.2

Once the customers have entered the door, they are approached by the doorman who enquires as to whether or not they intend partaking in any of the games. In the event of the response being C in the affirmative, customers are required to familiarise themselves with the rules and procedures of the centre. Each and every customer who will be partaking in any game is required to sign a copy of the centre's rules and procedures, wherein he acknowledges that he is familiar with such rules and procedures. . . . D

9.3

Should a customer wish to partake in any machine game, he approaches the cashier's cage which is within the centre. At the cage is another sign which is identical to the sign at the entrance . . . . The customer then informs the cashier of the value of the opportunities with which he/she wishes to play. The E customer then pays for, and is issued with, an "opportunity voucher" reflecting the value of the opportunities which have been purchased by the customer.

9.4

The cashier, alternatively, one of the attendants, will "key into" the machine the value of the opportunities purchased.

9.5

F The customer is then at liberty to play games.

9.6

The machines are such that it is possible to win opportunities to play further games.

9.7

In the event of a customer wishing to change machines while he/she has credits to play further games, he/she may approach one of the G attendants and his/her credits will be keyed into the machine of his/her choice whereupon...