Akani Egoli (Pty) Ltd t/a Gold Reef City Casino v Liu Quin Ping

• Jurisdiction: South Africa
• Citation: 2001 (4) SA 238 (W)

Akani Egoli (Pty) Ltd t/a Gold Reef City Casino v Liu Quin Ping
2001 (4) SA 238 (W)

2001 (4) SA p238

Citation	2001 (4) SA 238 (W)
Case No	A5027/2000
Court	Witwatersrand Local Division
Judge	Cloete J, Van Oosten J and Mlambo J
Heard	February 22, 2001
Judgment	February 27, 2001
Counsel	J L Kaplan for the appellant.; A Kalla for the respondent.

Flynote : Sleutelwoorde B

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Cheating — Gambler placing bet before dealer had gathered up cards from previous round — Gambler claiming that he had not placed late bet on previous round but had been placing bet on next round — No legislation precluding plaintiff from placing bet when he did. C

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Detention of gambler in terms of reg 50 of regulations promulgated in terms of Act — Gambler detained on suspicion of cheating — Individual elements of gambler's conduct, whether taken singly or cumulatively, not leading reasonable person to conclude that D gambler probably guilty of contravening reg 48 — Subjective belief of the casino's employees not assisting casino in satisfying objective element of test postulated in reg 50(2), namely reasonable cause for believing that gambler had committed offence — Once established that there was no reasonable cause for believing that contravention committed by the gambler, self-evident that detention unreasonable as E contemplated in reg 50(3) — Concept of 'unreasonable' in reg 50(3) converse of 'reasonable cause for believing' in reg 50(2) — Regulation 50(3) affording no greater protection — Has effect of shifting onus, but nothing more.

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Detention of gambler in terms of reg 50 of regulations F promulgated in terms of Act — Standard of proof — Standard of proof contemplated in reg 50(3) to be held to remain same as in all civil matters, even where criminal conduct alleged, despite odd phrase 'clear and convincing evidence' — Phrase appearing to relate solely to quality of evidence, not to degree of conviction engendered in trier of fact. G

Headnote : Kopnota

The respondent had claimed damages from the appellant in a Provincial Division for wrongful arrest and contumelia. The appellant had sought to justify its actions in detaining the respondent by invoking reg 50 of the regulations promulgated in terms of the Gambling Act 4 of 1995 (Gauteng), in that it alleged that H there had been reasonable cause for believing that the respondent had placed a late bet in a game of mini-Baccarat in contravention of reg 48. The respondent had averred that he had not placed a late bet on the previous round but had been placing a bet on the next round.

Held, that there was no legislation which precluded the plaintiff from placing the bet when he did. There was evidence of other I players also placing bets before the dealer had gathered up the cards from the previous round. The individual elements of the plaintiff's conduct, whether taken singly or cumulatively, could not have led a reasonable person to conclude that the plaintiff had probably been guilty of contravening reg 48. The subjective belief of the appellant's employees did not assist the appellant in satisfying the objective element of the test postulated in reg 50(2), namely that there J

2001 (4) SA p239

was reasonable cause for believing that the respondent had committed an offence. (Paragraphs [11], [12] and [13] at A 243C/D - G.)

Held, further, that, once it had been established that there was no reasonable cause for believing that a contravention had been committed by the respondent as required by reg 50(2), it was self-evident that his detention had been unreasonable as contemplated in reg 50(3). The one concept ('unreasonable' in reg 50(3)) was the B converse of the other ('reasonable cause for believing' in reg 50(2)). Regulation 50(3) afforded no greater protection. It had the effect of shifting the onus, but nothing more. The standard of proof contemplated in reg 50(3) had to be held to remain the same as in all civil matters, even where criminal conduct was alleged, despite the odd phrase 'clear and convincing evidence': this phrase appeared C to relate solely to the quality of the evidence, not to the degree of conviction it had to engender in the trier of fact. The position was therefore that, if a court was left in doubt as to whether the licensee or his officers, employees or agents had had reasonable cause for believing that there had been a contravention, the lessee etc would not D be liable at common law for wrongful detention; but where, as in the present case, the evidence established that there had been no reasonable cause for believing that there had been a contravention, it necessarily followed that the detention had been unreasonable and liability attached. (Paragraph [14] at 243G/H - 244C.)

The decision in the Witwatersrand Local Division in Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 confirmed.

Cases Considered

Annotations

Reported cases E

Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A): dictum at 136A - B applied

Cronjé v Pelser 1967 (2) SA 589 (A): dictum at 592H - 593A applied

Herniman v Smith (5) [1938] 1 All ER 8 (HL): referred to

Hicks v Faulkner (8) 8 QBD 171 (HL): considered F

Leibo v Buckman Ltd and Another [1952] 2 All ER 1057 (CA): referred to

Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W): confirmed on appeal

Molteno Bros v South African Railways 1936 AD 408: dictum at 417 applied G

Penny v Walker 1936 AD 241: dictum at 260 applied

S v Ghoor 1969 (2) SA 555 (A): dictum at 557G applied

S v Kaplin and Others 1964 (4) SA 355 (T): dictum at 358A - C applied.

Statutes Considered

Statutes

The Gauteng Gambling Act 4 of 1995

Regulations

The Gauteng Gambling Regulations, regs 1, 48 and 50. H

Case Information

Appeal from a decision in the Witwatersrand Local Division (Claas- sen J), reported at 2000 (4) SA 68. The facts relevant to the appeal appear from the reasons for judgment.

J L Kaplan for the appellant.

A Kalla for the respondent. I

Cur adv vult.

Postea (February 27).

Judgment

Cloete J:

[1] The defendant was ordered by the Court a quo to pay to the plaintiff J

2001 (4) SA p240

Cloete J

damages of R12 000 for wrongful arrest and contumelia. [*] The defendant now, with the A leave of the Court a quo, appeals against the merits of the award. There is no cross-appeal against the quantum.

[2] The plaintiff was playing mini-Baccarat in the Salon Privé of the casino operated by the defendant at Gold Reef City. He was taken to an 'interviewing room' and detained by employees of the defendant for several hours. The defendant has sought to B justify the detention by invoking the provisions of reg 50 of the regulations promulgated in terms of the Gauteng Gambling Act 4 of 1995. Regulation 50 reads as follows:

'(1) Any licensee, or his or her officers, employees or agents may question any person in his or her licensed premises suspected of contravening any of the provisions of this chapter or of s 74 of the C Act.

(2) Any licensee or any of his or her officers, employees or agents who has reasonable cause for believing that there has been a contravention of this chapter or of s 74 of the Act by any person may take that person into custody, inform the South African Police Service and detain such person in the...