Highstead Entertainment (Pty) Ltd t/a 'The Club' v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: King J
• Judgment Date: 15 May 1992
• Docket Number: 5272/92
• Court: Cape Provincial Division
• Hearing Date: 12 May 1992
• Citation: 1994 (1) SA 387 (C)

E King J:

It is an offence in terms of the Gambling Act 51 of 1965 (s 6(1) read with s 8(d)(i)) to permit the playing of any game of chance for stakes at any place under the control or in the charge of the permitter.

Applicant is in control of premises known as 'The Club' at the corner of F High Level Road and St John's Road, Sea Point, Cape Town, where two games, 'Ace High' - a card game - and 'American Poker 11-Supercard' - a machine-operated game, are played.

There is pending in this Court, and due to be heard on 10 August 1992, a criminal prosecution of the controlling director of applicant, Mr G van der Merwe, and the manager of the establishment, Mr D Gertzen, on a charge G of having contravened the aforesaid s 6(1) and the issue which the Court will be required to determine is whether the aforesaid games are games of chance. What is a game of chance is not defined in the Act.

The relief sought in this application is an interdict which will restrain the respondents pending the determination of the aforesaid criminal proceedings

'(a)

H from seizing or causing to be seized any equipment belonging to the applicant at the premises in St John's Road, Sea Point, Cape Town, on the purported basis that the games "Ace High" and "American Poker 11-Supercard" ("the games") constitute or are suspected of constituting games of chance within the meaning of the Gambling Act 51 of 1965; I

(b)

from arresting or causing to be arrested any of the applicant's employees or patrons on the purported basis that the games constitute or are suspected of constituting games of chance within the meaning of the Gambling Act;

(c)

from issuing or causing to be issued any search warrant or warrant J of arrest for the purposes referred to in (a) and (b) above.'

King J

A The relief sought is in the form of a temporary interdict; it seeks the preservation of the status quo pending the final determination of the rights of the parties (ie applicant and the State; the respondents are all State officials and are cited as such); the interdict, if granted, will not affect or influence the issue to be determined at the criminal trial. B See Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others 1989 (1) SA 195 (A) at 200J-201C; see also Joubert (ed) The Law of South Africa vol 11 para 321.

The requisites of an interim interdict are well known. These are:

(a)

a prima facie right;

(b)

a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; C

(c)

that the balance of convenience favours the granting of an interim interdict;

(d)

that there is no other remedy available to the applicant.

As to the existence or otherwise of a prima facie right, both applicant and respondents have furnished the opinion of an expert witness, Associate D Professor P Salemink of the University of South Africa on behalf of applicant and Dr B J N Blight of London University on behalf of respondents. Counsel were agreed that it was not possible to decide on the papers which expert opinion should prevail and I am satisfied that applicant has made out a prima facie case, based on the opinion of E Professor Salemink. It need hardly be emphasised that this finding in no way indicates any prejudgment of the issue to be decided by the criminal Court or any conclusive predilection for one view above the other.

A consideration of the remaining requisites set out above, which to a considerable extent interrelate, necessarily involves reference to the F facts disclosed in the affidavits in the context of what the interdict seeks to avoid, namely the seizure of applicant's equipment, the arrest of applicant's employees and/or patrons and the issuing of any search warrant for these purposes.

Operations similar to that conducted by applicant have been conducted by companies controlled by Van der Merwe at Rivonia in Sandton for nearly a G year and at Morningside in Durban for some three months. Applicant has been in business since 30 November 1991. Applicant has expended nearly R5 million in the acquisition or refurbishment of its premises. It is not in issue that the seizure of applicant's equipment and/or the arrest of its employees or patrons will result in applicant having to close down its H operation. Applicant employs about 100 persons; it has some 2 000 registered members and a daily patronage of about 300. It is a substantial operation with, in addition to the initial cost of establishment, a monthly running cost of some R600 000. Applicant has contractual commitments to staff and in respect of the leasing and servicing of its equipment. Applicant has purchased additional premises and has spent a I substantial sum on advertising. Mr Van der Merwe has said on affidavit that a closure of applicant's business pending the outcome of the criminal proceedings would be a 'financial disaster' which 'may very well lead to (applicant's) demise and inevitable liquidation'. This is not challenged by respondents.

J On the other hand, it is the attitude of third respondent that insofar as

King J

A the activities indulged in at applicant's premises are games of chance, applicant, its employees and its patrons are committing what prima facie amounts to a criminal offence and that the law should be allowed to take its course in the sense that respondents should not be prevented from acting in terms of the relevant sections of the Criminal Procedure Act 51 of 1977, if so advised. It is said that it will not be in the public B interest for applicant to continue with operations the same as those which form the subject of a criminal charge and further that this 'will...