Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Harms JA, Schutz JA, Navsa JA, Mthiyane JA and Chetty AJA
• Judgment Date: 17 May 2001
• Citation: 2001 (4) SA 501 (SCA)
• Hearing Date: 02 May 2001
• Docket Number: 373/99
• Counsel: N J Treurnicht SC (with him I J Muller) for the appellant. J J Gauntlett SC (with him R G Goodman) for the respondent.

Harms JA: B

[1] This appeal is against the judgment of a Full Court reported as Pinnacle Point Casino (Pty) Ltd v Auret NO and Others 1999 (4) SA 763 (C) and concerns the validity of a decision relating to a casino licence application by the Western Cape Gambling and Racing C Board (the board). The appellant (Akani) and the respondent (Pinnacle Point) submitted competing applications for the grant of such a licence for the southern Cape region in terms of the Western Cape Gambling and Racing Law 4 of 1996 (the provincial Act). On 30 November 1998 the board informed Pinnacle Point that it had been selected as the successful applicant for the grant of the licence and D that, in terms of the request for proposal (the board's invitation for applications for a licence), the licence would not be awarded unless and until all negotiations pertaining thereto had been finalised to the satisfaction of the board. A number of so-called conditions precedent to the award of the licence were set out, only one of which is now relevant and it reads: E

'The successful applicant will obtain and present by 11 January 1999 an irrevocable, unconditional financial guarantee from an acceptable, first class, reputable financial institution regarding the financial commitment to the project of . . . New Property Ventures (Pty) Ltd.'

[2] New Property Ventures (Pty) Ltd owns 30% of Pinnacle F Point's issued share capital and was obliged to provide or underwrite finances for the project in the sum of R22,5 million. Since the required guarantee was not forthcoming, the board granted a number of extensions to Pinnacle Point to enable it to comply with the precondition. Eventually, on 5 February 1999 the board, conscious of its public duty and its obligations to Akani, sent a letter to G Pinnacle Point setting a deadline for 11 May. The deadline was not met, mainly due to the negligence or incompetence of persons attached to Pinnacle Point. Consequently, the board decided on the following day

'to decline to issue the licence to [Pinnacle Point] in view of H the non-performance in respect of the financial guarantees required by the board for the project'

and 'to officially recognise Akani as the successful applicant'.

These decisions gave rise to the present proceedings, which began as an application for their review, principally on the grounds of procedural and administrative unfairness. Some factual issues raised in I the founding affidavit have not been persisted in. However, largely due to the nature of the defence raised by Akani in its answering affidavits, the central question became one of legality and, because of what follows, it will be unnecessary to rule on the fairness of the board's resolution; nevertheless, my prima facie assessment is that if regard is had to all the circumstances the board acted fairly and properly. J

Harms JA

[3] The issue in this case is principally one of interpretation A of the provincial Act and, for reasons that will become apparent, it is fundamental to have regard to its matrix and certain constitutional principles before setting out the further relevant facts and the argument. Since the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993), separation of powers has been a cornerstone of our constitutional dispensation (South B African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC), especially para [22]). This also applies to the separation of powers between the Legislature and the Executive at the national and provincial level. Concerning the latter, the Constitution (s 104) provides that the legislative authority of a province is vested in its provincial legislature and confers on the provincial C legislature, inter alia, the power to pass a constitution and legislation for its province with regard to any matter within a functional area listed in Schedule 4 (ie functional...