Poppy Ice Trading 18 (Pty) Limited v KwaZulu-Natal Gaming and Betting Board

• Jurisdiction: South Africa
• Judge: Koen J
• Judgment Date: 10 October 2016
• Docket Number: 4818/16P
• Hearing Date: 12 August 2016
• Court: KwaZulu-Natal Division, Pietermaritzburg

Koen J:

Introduction:

[1]

Poppy Ice Trading 18 (Pty) Limited (hereinafter referred to as 'Poppy Ice') seeks orders (in what hereinafter shall be referred to as 'the main application') which can be summarized as follows:

(a)

to review the delay by the KwaZulu-Natal Gaming and Betting Board (hereinafter referred to as 'the Board' [1] ) to implement its decision dated 16 January 2015 (hereinafter referred to as 'the impugned decision') by deciding various applications of Poppy Ice submitted to it pursuant to the impugned decision, as unreasonable; and consequent thereon.

(b)

to claim various forms of relief to implement and give effect to the impugned decision, including amongst others amending bingo licences issued to it under the KwaZulu-Natal Gaming and Betting Act 8 of 2010 ('the Act') to authorise the use of electronic bingo terminals ('EBTs') at its proposed bingo hall in Ladysmith. [2]

[2]

Ex facie the Notice of Motion the specific relief claimed is as follows:

'1.

The forms and service provided for in the Uniform Rules of Court are dispensed with and it is directed that the application is heard as one of urgency in terms of Uniform Rule of Court 6(12)(a).

2.

It is declared that the electronic bingo terminals ("EBTs") listed in Annexure "A" hereto have been certified in terms of Regulation 138(1) [3]of the regulations under the KwaZulu-Natal Gaming and Betting Act 8 of 2010 and that the first respondent has been provided with the relevant certifications.

3.

It is declared that the first respondent has delayed unreasonably in deciding on and the applicant is entitled to decisions from the first respondent in respect of the following applications duly lodged by the applicant;

3.1

The amendment of the applicant's bingo licence to include 90 EBT's (and associated equipment);

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3.2

Granting the applicant a licence of compliance approving and registering the EBT's for use at the applicant's Ladysmith premises;

3.3

The approval of the floor and surveillance plan at the applicant's said premises.

4. 4.1

Declaring that the first respondent has unreasonably delayed the decision to grant International Game Technology-Africa ("IGT") leave to transport the 60 EBT's to the applicant in Ladysmith.

4.2

Ordering the first respondent to take a decision to grant leave to IGT to transport the 60 EBT's to the applicant in Ladysmith, within 14 days hereof.

5.

The first respondent is ordered to take decisions in respect of the applications referred to in paragraph 3 above, within 14 days or such other time period as may be determined by this Court.

6.

The first respondent is ordered to take all necessary steps within two months of the date of this order to test the said EBT's, and if found satisfactory, to authorize the switching on of such equipment.

7.

The applicant is granted such further or alternative relief as may be appropriate.

8.

The first respondent is ordered to pay the costs of this application, but only if it should oppose. Should the second respondent oppose, costs will be sought against her, alternatively not.'

[3]

By the time the application came to be argued the relief in the main application was opposed by the Board and the Member of the Executive Council for Finance, KwaZulu-Natal (hereinafter referred to as 'the MEC'). [4] Two casino owners namely Peermont Global (KZN) (Pty) Limited (hereinafter referred to as 'Peermont') [5] and Afrisun (Pty) Limited t/a Sibaya Casino and Entertainment Kingdom (hereinafter referred to as 'Afrisun'), [6] as well as The People's Forum Against Electronic Bingo Terminals (hereinafter referred to as 'The Forum') [7] also sought to intervene in the main application, as they too opposed the relief claimed. Their applications for intervention were in turn opposed by Poppy Ice on the basis that they had not shown a sufficient interest to permit their intervention in the main application. The MEC, Peermont and Afrisun also counterclaimed conditionally for orders that pending the final determination

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of various applications pending before this court [8], the Board should inter alia be interdicted and restrained from issuing licenses or implementing the impugned decision.

[4]

Following the aforesaid developments, Poppy Ice in a draft order annexed to its Heads of Argument gave notice that it would ask for the following relief:

'1.

The intervention applications are dismissed with costs, including the costs of two counsel.

2.

The counter-applications of the second respondent and the first and second intervening applications are dismissed with costs, including the costs of two counsel.

3.

It is declared that the electronic bingo terminals ("EBTs") listed in Annexure "A" to the notice of motion have been certified in terms of Regulation 138(1) of the regulations under the KwaZulu-Natal Gaming and Betting Act 8 of 2010 and that the first respondent has been provided with the relevant certifications.

4.

It is declared that the first respondent has delayed unreasonably in deciding whether to grant the following applications duly lodged by the applicant:

4.1

The amendment of the applicant's bingo licence to include 90 EBT's (and associated equipment);

4.2

Granting the applicant a licence of compliance approving and registering the EBT's for use at the applicant's Ladysmith premises;

4.3

The approval of the floor and surveillance plan at the applicant's said premises.

5.

It is declared that the first respondent has delayed unreasonably in deciding whether to grant the application duly lodged by International Game Technology Africa (Pty) Ltd to transport 60 EBT's to Ladysmith.

6.

The first respondent is ordered to take decisions on the applications referred to in paragraph 3 and 4 above within 14 days of this order.

7.

The first respondent is ordered to take all necessary steps within two months after the installation of the EBT's, and if found satisfactory, to authorize the switching on of such equipment.

8.

The first and second respondents are ordered to pay the applicant's costs, including the costs of two counsel.' [9]

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[5]

All the relief Poppy Ice seeks presupposes the legal validity of, flows from and will entail the implementation of the impugned decision.

[6]

A plethora of legal issues were raised in the papers filed and in argument before me. In view of some of these being decisive of the relief claimed, I shall deal only with those arguments in this judgment.

The 'MEC's review':

[7]

The impugned decision is also the subject of a review application brought by the Premier of KwaZulu-Natal and the MEC under case number 1366/15 (hereinafter referred to as 'the MEC's review') in which Poppy Ice is one of the respondents.

[8]

The MEC's review was launched on 30 January 2015. [10] Peermont and Afrisun have also sought leave to intervene as co-applicants in that review. The parties to the MEC's review and those seeking to intervene are awaiting the allocation of a hearing date in respect of their intervention and the review itself.

[9]

There is, on the papers filed in the MEC's review, a dispute as to the scope of the impugned decision. Peermont contends that the impugned decision included the

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registration of EBTs in respect of various bingo licenses, the amendment of the licence conditions to authorise the use of EBTs in bingo halls, and a specification of the number of EBTs authorised for use under each licence. That view is also advanced by various respondents in the MEC's review, namely respondents forming part of what is termed the Galaxy Group of bingo operators. Included in that challenge is whether EBTs provide the game of bingo as defined in the Act. Poppy Ice and the bingo operators forming part of the Goldrush Group ('the Goldrush parties'), however contend that the impugned decision was a decision only to authorise the use of EBTs (in vacua) at various sites, was not one to register particular EBTs, and was oblivious to the actual machines to be utilised at the sites. The Board had, according to these parties, already registered EBTs when it granted the manufacturers' applications for registration as it was obliged to have regard to the manufacturers' registrations when it took the impugned decision. Accordingly, Poppy Ice and the Goldrush parties contend that the question whether the EBTs provide the game of bingo as defined in the Act does not arise in the review of the impugned decision.

[10]

It is unnecessary, and indeed would be undesirable for me to decide the dispute as to the scope of the impugned decision for the purpose of the MEC review. That is an issue that the court hearing that review will have to determine. For the purpose of this application, it is sufficient that I take note of the fact that various parties and parties seeking to intervene in that review challenge the validity of the impugned decision on the basis that EBTs do not provide the game of bingo as defined in the Act. That is a live issue in that review.

The intervention of Peermont and Afrisun and The Forum: [11]

[11]

Peermont, Afrisun and The Forum have applied for leave to intervene in the main application on the basis of their direct and substantial interest in the validity of the impugned decision, and as the review thereof raises substantially the same questions of

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fact and law as in the MEC's review. Peermont and Afrisun contend in the MEC's review that the EBTs referred to in the impugned decision cannot lawfully be operated under a bingo licence.

[12]

Rule 12 of the Uniform Rules of Court [12] provides for intervention in the following terms:

'Any person entitled to join as a plaintiff or liable to be joined as a defendant in...