Magajane v Chairperson, North West Gambling Board and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Yacoob J and Van Der Westhuizen J
• Judgment Date: 08 June 2006
• Citation: 2006 (5) SA 250 (CC)
• Docket Number: CCT49/0
• Hearing Date: 23 February 2006
• Counsel: N Jagga for the applicant M Donen SC for the respondents
• Court: Constitutional Court

Van der Westhuizen J:

Introduction A

[1] The questions raised by this case include whether, consistent with the constitutional right to privacy, legislation may authorise warrantless inspections of unlicensed premises for the purpose of obtaining evidence for criminal prosecution. The North West Gambling B Act 2 of 2001 (the Act) governs the regulation of gambling activities in the North West Province and establishes and empowers the North West Gambling Board (the Board). Section 65 of the Act lists the powers and functions of the Board's inspectors. [1] The applicant in this case, who was the subject of an inspection conducted pursuant to s 65, challenges the constitutionality of a number of the C provisions of the section, alleging that they violate his rights to remain silent and to privacy and that one provision exceeds the constitutional competence of the provincial legislature.

Background D

[2] Board inspector Jacobus Conradé Erasmus, the second respondent, received a report from another Board inspector that illegal gambling was taking place at an establishment known as Las Vegas Gold, Lichtenburg (Las Vegas Gold). Four days later, on 30 August 2004, Mr Erasmus arranged for undercover agents to visit Las E Vegas Gold and to play on gambling machines using marked 'trap' money. Upon the return and report of the undercover agents, Erasmus led a team of Board inspectors and members of the South African Police Service on a 'raid' of Las Vegas Gold. F

[3] Mr Erasmus and the others did not seek a warrant to enter, search or seize property from Las Vegas Gold. They conducted their activities pursuant to s 65 of the Act.

[4] Section 65 of the Act, entitled 'Powers and functions of inspectors', provides: [2] G

'(1) An inspector shall for the purpose of this Act -

(a)

enter upon any licensed or unlicensed premises which are occupied or being used for the purposes of any gambling activities or any other premises on which it is suspected -

(i)

that a casino or any other gambling activity is being conducted without the authority of a licence, H

(ii)

that persons are being allowed to play or participate in any gambling game or other gambling activities or to play any gambling machine, or

Van der Westhuizen J

(iii)

that any gambling machine or any equipment, device, object, book, record, note, recording or other document used or capable of A being used in connection with the conducting of gambling games or any other gambling activity may be found,

and may, Van der Westhuizen Jafter having informed the person who is deemed or appears to be in charge of the premises of the purpose of his or her visit, make such investigation or enquiry as he or she may think necessary; B

(b)

with regard to any premises referred to in para (a) -

(i)

require the production of any licence or written permission or authorisation to conduct gambling activities from the person who is in control of such premises,

(ii)

question any person who is on or in such premises, and inspect any activities in connection with the conduct of any gambling activity, C

(iii)

examine or inspect any gambling machine, equipment, device, object, book, record, note or other document referred to in para (a) found on those premises and make a copy thereof or an extract therefrom,

(iv)

inspect and examine all premises referred to in para (a) or any premises where gambling devices or equipment are manufactured, sold, distributed, or serviced, wherein any records of such activities are prepared or maintained, D

(v)

inspect all equipment and supplies, in, about, upon or around such premises,

(vi)

seize summarily and remove from such premises and impound any such equipment or supplies for the purposes of examination and inspection,

(vii)

examine, inspect and audit all books, records and documents pertaining to licensed gambling operations, E

(viii)

seize, impound or assume physical control of any book, record, ledger, game device, cash box and its contents, conducting room or its equipment, or gambling operations, and

(ix)

inspect the person, and personal effects present in any gambling facility licensed under this Act, of any holder of a licence or registration issued pursuant to this Act while that person is F present in the licensed gambling facility;

(c)

require any person who is deemed or appears to be in charge of any premises referred to in para (a) -

(i)

to point out any equipment, device or object referred to in that paragraph which is in his or her possession or custody or under G his or her control,

(ii)

to produce for the purpose of examination or of making copies or extracts, all books, records, note[s] or other documents referred to in para (a) which are in his or her possession or custody or under his or her control,

(iii)

to provide any information in connection with anything which has been pointed out or produced in terms of subpara (i) or (ii), and H

(d)

seize and remove any gambling machine, equipment, device, object, book, record, note or other document referred to in para (a) which in his or her opinion may furnish proof of a contravention of any provision of this Act or mark it for the purposes of identification.

(2) When performing any function in terms of ss (1), an inspector may be accompanied by and avail himself or herself of the services of I an assistant, interpreter or any police official.

(3) An inspector shall in respect of any provision of this Act or any regulations promulgated thereunder be deemed to have been appointed a peace officer in accordance with s 334 of the Criminal Procedure Act 1977, as amended for the purposes of ss 40, 41, 44, 46, 47, 48, 49 and 50, of the said Act.' J

Van der Westhuizen J

[5] According to Mr Erasmus's affidavit in the High Court, he and his colleagues entered the building. Erasmus introduced himself to the A applicant, Mr Isaac Metsing Magajane, the manager of the Las Vegas Gold. Pursuant to s 65(1)(b)(i) of the Act, [3] Erasmus asked Magajane to produce a gambling licence or similar written authorisation. Magajane did not produce any authorisation. It is common cause that Las Vegas Gold was B not licensed or otherwise authorised to be a gambling establishment. Erasmus then informed Magajane that he possessed evidence of illegal gambling and that he intended to search, inspect and seize gambling equipment, records and other items. He showed Magajane the relevant sections of the Act and handed him lists of the raiding officials and C of materials that could be seized. Erasmus searched the cash register, which contained the marked money spent by the undercover agents. He seized R4 890 from the cash register and R24 120 from a safe. Erasmus and one of his colleagues photographed some of the gambling machines on the premises. An inventory list indicates that there were 60 machines. A police officer [4] then arrested the applicant D and three employees for conducting a casino without a licence in violation of the Act. [5] Erasmus seized the gambling machines by locking the premises.

The High Court E

[6] Mr Magajane launched an urgent application in the High Court in Mmabatho against the chairperson of the North West Gambling Board, Mr Erasmus and the MEC for Finance and Economic Development of the North West Province. The applicant sought a declarator that the entry, search and seizure violated s 65 of the Act or in the alternative that provisions of s 65 were F unconstitutional. [6] He also sought the return of the seized property. [7] The High Court dismissed the application with costs. [8]

[7] As a preliminary matter, the respondents objected to the failure of the applicant to join the Board itself as a party. They contended that joinder was necessary as the applicant sought a G declaration of invalidity for

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statutory provisions that the Board depends on to pursue its statutory function. The respondents A claimed that this failure was fatal to the application. The High Court overruled this objection. Relying upon s 23(1) of the Act, which provides that service on the chairperson of the Board constitutes service on the Board, the Court held that there existed no need to cite both the chairperson and the Board as separate parties. [9] B

[8] The applicant asserted that the second respondent had exceeded his powers under s 65 of the Act by (1) utilising the section to 'raid' the premises rather than to inspect, examine or investigate; (2) seizing money from a safe; and (3) seizing every piece of equipment found on the premises. The High Court rejected each assertion in turn, holding that: (1) the second respondent was C authorised by s 65 to enter the premises without prior notification, to require the production of a licence or other authorisation to conduct gambling activities and to seize objects used for gambling; (2) the statute permits the seizure of cash and a cash box, which would include a safe; and (3) the second respondent did not seize and remove all the gambling machines and equipment. D

[9] In the alternative, the applicant raised three constitutional arguments. Firstly, he submitted that s 65(1)(b)(ii) and (c)(iii) violated his right to remain silent, as it empowered Mr Erasmus to question him and to require him to provide certain information. He pointed to the absence E of a proviso rendering information obtained or gathered in this manner excluded from being used against him in an ensuing criminal proceeding.

[10] The High Court held that s 65(1)(b)(ii) and (c)(iii) does not violate the right to remain silent. The two subsections concern the procurement of evidence or information, not the admissibility of evidence. The issue of whether any information F provided under s 65 could be...