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

• Jurisdiction: South Africa

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

2000 (4) SA p68

Citation	2000 (4) SA 68 (W)
Case No	2597/99
Court	Witwatersrand Local Division
Judge	Claassen J
Heard	March 28, 2000; March 29, 2000; March 30, 2000; March 31, 2000
Judgment	April 10, 2000
Counsel	R L Selvan SC (with him T Ossin) for the plaintiff.; J Kaplan for the defendant.

Flynote : Sleutelwoorde B

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Section 50 of regulations promulgated in terms of Act — Where s 50(1) and (2) of regulations provides that licensee may question person on licensed premises suspected of contravening provisions of C regulations and, where licensee has reasonable cause for believing that there has been such contravention, may take that person into custody and detain person until arrival of police officer, suspicion must be reasonable suspicion and reasonable cause for believing meaning honest belief founded on reasonable grounds that questioning and detention D justified — Concept involving both subjective and objective element — Scheme of s 50 indicating that reasonable suspicion that contravention occurred must first be entertained before patron may be questioned in terms of ss (1) — Questioning procedure intended to be precursor to any suspicion ripening into degree of certainty which would entitle the official to entertain reasonable cause for believing that contravention has been perpetrated as contemplated in E ss (2) — Purpose of questioning must be to obtain correct facts and to grant patron concerned opportunity to explain her or his conduct — Only after questioning objectively establishes existence of reasonable cause for believing that contravention has been perpetrated may suspect be detained until arrival of police. F

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Cheating — Mere placing or increasing bet after acquiring knowledge of outcome of game not necessarily constituting cheating within definition in s 1 of regulations promulgated in terms of Act — Whether or not it will constitute 'cheat move' depending upon intention with which bet placed — Unlawfulness cannot purely be G objectively determined and must be coupled with subjective test of intention.

Gaming and wagering — Gambling — Gauteng Gambling Act 4 of 1995 — Section 50 of regulations promulgated in terms of Act — Section 50(3) of regulations ultra vires enabling section of Gauteng Gambling Act — Subsection (3) seeking to regulate quantity of evidence necessary H to establish criminal and civil liability following upon detention under ss (2) — Enabling Act not in any way empowering regulations which seek to inhibit or restrict normal evidential course of litigation which may follow upon excess use of their powers by casino's officials.

Headnote : Kopnota

Where s 50(1) and (2) of the regulations promulgated in terms of I the Gauteng Gambling Act 4 of 1995 and published in General Notice 570 of 1997 (the regulations) provides that any licensee may question any person in her or his licensed premises suspected of contravening the relevant provisions of the regulations and, where the licensee has reasonable cause for believing that there has been such a contravention, may take that person into custody, J

2000 (4) SA p69

inform the police and detain such person in the A establishment in a reasonable manner until the arrival of a police officer, the suspicion must as of necessity be a reasonable suspicion. A reasonable cause for believing means an honest belief founded on reasonable grounds that the questioning and the detention were justified. The concept involves both a subjective and objective element. The scheme of s 50 indicates that a reasonable suspicion that a contravention had occurred must first be entertained B by the casino official before a patron may be questioned in terms of ss (1). The provision entitling the official to question the patron is the first step in the contemplated sequence of events. The questioning procedure is intended to be the precursor to any suspicion ripening into a degree of certainty which would entitle the official to entertain reasonable cause for believing that a contravention had been perpetrated as contemplated in ss (2). Only if such belief exists C subjectively in the mind of the official and based upon reasonable and objective facts are detention and arrest in terms of ss (2) authorised. Subsections (1) and (2) contemplate a sequential progression towards the truth. The purpose of the questioning must be (i) to obtain the correct facts and (ii) to grant the patron concerned an opportunity to explain her or his conduct. Should she or he give a D satisfactory and/or innocent explanation of the suspicious conduct, it would end the need for further investigation. Only after questioning objectively establishes the existence of a reasonable cause for believing that a contravention has been perpetrated may the suspect be detained until the arrival of the police. (At 75G - H and 75J - 76D.)

The mere placing or increasing of a bet after acquiring knowledge of E the outcome of a game will not necessarily constitute cheating within the definition of that word in s 1 of the regulations. By the time a so-called 'late bet' is placed, the result of the game is already known because the cards have been dealt and are visible to all. Placing the late bet cannot therefore constitute a 'cheat move' within the concept of para (a) of the definition of the word 'cheat' in s 1. A late bet might affect the amount or frequency of payment in F a game within the concept of para (b) of the definition of the word 'cheat'. Whether or not it will constitute a cheat move will depend upon the intention with which the bet was placed. The unlawfulness of the timing of the placing of the late bet cannot be determined purely by looking at s 48(d) of the regulations because one will have to ascertain whether or not the placement of such a late bet was intended to be an unlawful attempt to affect the amount G or frequency of payment in such a game. Unlawfulness in this instance cannot be determined purely objectively and must therefore be coupled with a subjective test of intention. The concept of a 'late bet' is neither expressly nor by implication included in the prohibition contained in s 48(d). If the legislature intended the concept of a late bet to be included in the prohibition of s 48(d) it could have included a late bet in the definition H clause as it has done with the concept of cheat. There is no clear legislative foundation for a contention that a so-called 'late bet' constitutes an illegality and/or a contravention of s 48(d). (At 78F - I and 80H/I - 81A/B.)

Section 50(3) of the regulations, which provides that the taking into custody and detention of a person does not render the licensee criminally or civilly liable unless it is established by clear and I convincing evidence that the taking into custody and detention were unreasonable under all the circumstances, is ultra vires the enabling section of Gauteng Gambling Act 4 of 1995. All the objects of the Act can be attained without such a provision. Subsection (3) seeks to regulate the quantity of evidence necessary to establish criminal and civil liability following upon a detention under ss (2). The enabling Act does not in any way empower regulations which seek to inhibit or restrict J

2000 (4) SA p70

the normal evidential course of litigation which may follow upon an excess use of their powers by a casino's officials. A (At 84A/B, 84H, 85C, 85E - F and 85H.)

Cases Considered

Annotations

Reported cases

Gates v Gates 1939 AD 150: dictum at 155 applied B

Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A): dictum at 858A applied

Moses v Minister of Law and Order 1995 (2) SA 518 (C): applied

Ochse v King William's Town Municipality 1990 (2) SA 855 (E): applied

Prinsloo and Another v Newman 1975 (1) SA 481 (A): applied

R v Mphalela 1928 TPD 748: dictum at 751 - 2 applied C

S v Arenstein 1967 (3) SA 366 (A): dictum at 381E applied

S v De Blom 1977 (3) SA 513 (A): dictum at 529A applied

S v Gampel Brothers & Barnett (Pty) Ltd and Another 1978 (3) SA 772 (A): dictum at 783H - 784A applied

S v Oberholzer 1971 (4) SA 602 (A): dictum at 610H applied

S v Schoenfeld 1963 (4) SA 77 (T): referred to D

Stapelberg v Afdelingsraad van die Kaap 1988 (4) SA 875 (C): applied

Tödt v Ipser 1993 (3) SA 577 (A): applied

Union Government and Another v Bolstridge 1929 AD 240: referred to.

Statutes Considered

Statutes

The Gambling Act 4 of 1995 (Gauteng)

Regulations

The Gambling Regulations (Gauteng), ss 1, 48(d) and 50. E

Case Information

Civil trial in an action for damages. The facts appear from the reasons for judgment.

R L Selvan SC (with him T Ossin) for the plaintiff.

J Kaplan for the defendant. F

Cur adv vult.

Postea (April 10).

Judgment

Claassen J:

The plaintiff is a 45 year old Chinese businessman. He is also a qualified medical practitioner G from China but not registered as such in South Africa. He is an ardent gambler. He visits casinos two or three times per week and places what he calls 'medium size bets' of approximately R20 000 per night. He alleges to be well known to casino staff in Sun City, Carousel and other casinos. This allegation is to an extent borne out by the fact that the defendant granted him the privileges of gambling in the Salon H Privé of the defendant's newly opened Gold Reef City Casino during November 1998. The Salon Privé gambling hall is frequented only by the large gamblers regarded by casinos as 'good customers'.

The background I

The plaintiff claims damages from the defendant for wrongful arrest and contumelia arising out of two incidents which occurred...