Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1)

JurisdictionSouth Africa
JudgeLevinsohn J
Judgment Date27 February 1997
Citation1997 (4) SA 494 (N)
Docket Number242/97
Hearing Date21 February 1997
CounselN Singh (with him K Govender) for the applicants D A Gordon for the respondents
CourtNatal Provincial Division

Levinsohn J:

On 24 January 1997 Hurt J granted a rule nisi together with interim interdicts as A follows:

'1. A rule nisi is issued in terms of para 1 of the notice of motion, returnable on 17 February 1997.'

(Paragraph 1 of the notice of motion reads as follows: B

'(a)

that the respondents are interdicted and restrained from:

(i)

seizing and attaching any equipment, apparatus or machines which are being used in the conduct of the gambling businesses of the members of the first applicant, alternatively the business of the second applicant known as Crown Casino in Pietermaritzburg; C

(ii)

causing the closure of the said businesses of the members of the first applicant, alternatively the business of the second applicant known as Crown Casino in Pietermaritzburg; and

(iii)

causing the prosecution of:

(aa)

the members of the first applicant, alternatively the second applicant; D

(bb)

the third applicant;

(cc)

the employees referred to in annexures SC5 and SC6;

arising from the continued operation of the said businesses;

pending any legislation which the Provincial Parliament of the province of KwaZulu-Natal may E promulgate to regulate the gambling industry in this province, relating to the period prior to the finalisation of the macro-plan referred to in s 6 of the KwaZulu-Natal Gambling Act 10 of 1996 and the full and proper regulation of the gambling industry in terms of the said Act, F alternatively pending the proper publication of notices after the first respondent has acted in terms of s 96 of the above Act by bringing s 95(1) thereof into operation;

(b)

insofar as s 3 read with s 95 of the above Act prohibits the carrying on of gambling operations during the above period, it is declared to be unconstitutional; G

(c)

alternatively to (b) hereof an order reviewing and setting aside the decision of the sixth respondent, recommending that all gambling activities cease in the province on 24 January 1997, as well as the decision of the first respondent to accept the said recommendation; H

(d)

that the first and sixth respondents pay the costs of this application together with such other respondent that opposes this application.')

'2. Pending the final determination of this application, the respondents are interdicted and restrained from: I

(a)

seizing or attaching any equipment, apparatus or machine which is being used in the conduct of the gambling businesses of the members of the first applicant whose names and places of business appear on the list which appears at pages 76, 77 and 78, being annexure SC4 to the founding affidavit;

(b)

causing the closure of any of the businesses or places of business of the persons referred to on the said list; J

Levinsohn J

(c)

causing the prosecution, under the provisions of the KwaZulu-Natal Gambling Act 10 of 1996, A KwaZulu-Natal, of

(i)

any of the members of the first applicant whose names appear on the said list;

(ii)

the second applicant;

(iii)

the third applicant; or B

(iv)

any of the employees of the persons whose names appear on the said list or any of the persons whose names are listed in annexures SC5 and SC6 to the founding affidavit.

3(a) The respondents are directed to deliver any further affidavits which they may desire to file in the application by not later than 16:00 on 7 February 1997; C

(b) The applicants are directed to deliver their replying affidavits (if any) by not later than 16:00 on 14 February 1997.

4. This order is made without prejudice to the respondents' contentions that: D

(a)

the first applicant has no locus standi to make this application; or

(b)

the application should not be treated as an urgent application.'

The matter came before me on the extended return date, namely 21 February 1997. After hearing argument I reserved judgment. I would have preferred to have taken a longer time to E formulate the reasons for the decision that I have come to in this case but it seems to me, however, that the public interest will not be served if judgment is unduly delayed.

I turn at once to review in broad outline the case made out in the applicants' founding affidavit. The applicants' principal deponent is Mr Stanley Carruthers. He has an interest in the F Pietermaritzburg Entertainment Centre CC which carries on a gambling business called the Crown Casino in Pietermaritzburg. Mr Carruthers is also the chairman of the first applicant which calls itself the Gaming Association of South Africa (Kwa-Zulu Natal) (GASA). This is a voluntary association formed by a number of gaming operators in the KwaZulu-Natal province. Its objects are set out in clause 6 of its Constitution and I quote para 6(a), (b), (c) and (d) G thereof:

'(a)

To render to, for and on behalf of its members any services of a mutual aid character where there is no motive of any gain or profit such as arises out of a business undertaking.

(b)

To acquire and/or protect rights and concessions for its members to operate entertainment H and/or gaming and/or gambling centres within the Province of KwaZulu/Natal and to make recommendations to the KwaZulu/Natal Legislative Assembly with regard to the issue and operation of entertainment and/or gaming and/or gambling centres' licences and rights and any other relevant matters falling within the ambit of the above.

(c)

To protect the interests of its members operating as stated above and for this purpose to do I all such acts and deeds as may be necessary to give effect thereto.

(d)

To maintain and promote honourable practice amongst its members in their operations as stated above and in their dealings with each other and with the authorities, the State, the Province of KwaZulu/Natal and the general public.' J

Levinsohn J

According to Carruthers, the first applicant has 62 members, and these members carry on A gambling operations in KwaZulu-Natal. Most of them have gambling machines. Some have gambling tables.

Carruthers and his fellow gaming operators were ordered to cease their respective operations by 24 January 1997 on pain of suffering the penalties which are laid down by the B KwaZulu-Natal Gambling Act 10 of 1996 (for ease of reference I shall refer to this Act as 'the Act'). The applicants' case essentially is that the Act is in conflict with the fundamental right set forth in s 26(1) of the interim Constitution. More particularly, it is said that the outright ban on C operating with effect from 24 January 1997 offends against that right. The deponent to the affidavit points to s 6 of the Act. In terms of this section the KwaZulu-Natal Gambling Board is enjoined to 'develop a macro-plan for the licensing of route and site operators'. This macro-plan is in terms of s 6(3) and is to be finalised and referred to the Minister within six D months of the date of the Board's first meeting. The deponent to the affidavit refers to this period of six months as 'an interim period' in which no one will be entitled to apply for a licence because the criteria therefor have not been formulated. In the result the Legislature ought not to have prohibited the existing operators from plying their trade but should have devised some E system of temporary licensing during this so-called interim period. These are the bare bones of the contention that is said to be the genesis of the right to obtain an interdict against the Provincial Government. The applicants' deponent sets out in some detail the prejudice that its members and employees will suffer if they are forced to stop operating forthwith. F

Apart from the abovementioned contention, the applicants' case is that the decision of the Premier of KwaZulu-Natal (the first respondent) wherein he accepted the recommendations of the sixth respondent (the KwaZulu-Natal Gambling Board) that all gambling activities should cease by 24 January 1997, be reviewed and set aside. G

The application is opposed by the first respondent and opposing affidavits were delivered. I do not propose to summarise these affidavits in any detail save to mention that the gravamen thereof is aimed at disputing that the applicants make out a case that any provision of the Act offends the interim Constitution in respect of the fundamental right to engage in the economic H activity or indeed any other right. Furthermore the fact that there might be a period of time before the criteria upon which gambling can become a lawful economic activity within the Province does not mean that during such period there is any invasion of the s 26 right. Insofar I as the reviewable administrative action is concerned the respondents place in issue that any case has been made out in that regard. The respondents have adduced evidence dealing with the considerations of a balance of convenience or balance of prejudice as these concepts are understood in applications for interim interdicts. These will become relevant in the event of this Court considering whether the interim relief granted by Hurt J ought to be extended for any reason. J

Levinsohn J

In considering the constitutionality of the Act it is, I think, necessary to review the various A milestones, legislative or otherwise, which ultimately culminated in the passing of the Act.

Historically all forms of gambling, except horseracing, were prohibited in the...

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5 practice notes
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ...dicta in para [98] applied I Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548): referred to Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211): referred to J 2007 (2) SACR ......
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ... ... in an instrumental manner asexamples to others if the deterrence is set at levels beyond what is ... operation incontravention of the KwaZulu-Natal Gambling Act 10 of 1996 on certainpremises ... Further,his gaming machines were seized and destroyed. The NDPP ... Bank of SA Ltd t/a Wesbank v Commissioner, South AfricanRevenue Service and Another; First ... 702): dictain para [98] appliedGaming Association of South Africa (KwaZulu-Natal) and Others v ... South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA ... ...
  • KV v WV
    • South Africa
    • Invalid date
    ...ZAWCHC 318: referred to Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548): referred Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): applied Mnyandu v Padayachi 201......
  • Post-Constitutional Legal Developments in the South African Gambling Law through Judicial Precedent
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 Mayo 2019
    ...(TPD) 1996-5-10 case no 6235/96 11-14). 22 S 13(1)(a) Act 33 of 1996. 23 Gaming Association (KwaZulu-Natal) v Premier of KwaZulu-Natal 1997 4 SA 494 (N) 499C-H. 24 Atlantic Slots v MEC for Economic Affairs, North West supra 178H-J. 25 Rèan International Supply Company (Pty) Ltd v Mpumalanga......
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4 cases
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ...dicta in para [98] applied I Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548): referred to Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211): referred to J 2007 (2) SACR ......
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ... ... in an instrumental manner asexamples to others if the deterrence is set at levels beyond what is ... operation incontravention of the KwaZulu-Natal Gambling Act 10 of 1996 on certainpremises ... Further,his gaming machines were seized and destroyed. The NDPP ... Bank of SA Ltd t/a Wesbank v Commissioner, South AfricanRevenue Service and Another; First ... 702): dictain para [98] appliedGaming Association of South Africa (KwaZulu-Natal) and Others v ... South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA ... ...
  • KV v WV
    • South Africa
    • Invalid date
    ...ZAWCHC 318: referred to Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548): referred Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): applied Mnyandu v Padayachi 201......
  • KV v WV
    • South Africa
    • KwaZulu-Natal Division, Pietermaritzburg
    • 13 Septiembre 2019
    ...stood to be construed. See Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548) at 501B; and L du Plessis Re-Interpretation of Statutes (Butterworths 2002) at 239 – 42. It is not surprising that the......
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