Rex v Gondo

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Schreiner JA, Van Den Heever JA, Hoexter JA, Fagan JA, and De Villiers AJA
• Judgment Date: 07 June 1951
• Citation: 1951 (3) SA 509 (A)
• Hearing Date: 29 May 1951

Schreiner, J.A.:

The accused was convicted by a Court consisting of F BEADLE, J., and assessors sitting in the Fort Victoria Sessions on a charge of contravening sec. 4 (c) of the Lotteries Prohibition Act (Chap. 38 of the Revised Statutes), by selling or having an interest in tickets in a lottery known as 'the 10/Snappy Link'. He was sentenced to pay a fine of £5. The learned Judge, under sec. 10 of Chap. 10 of the G Revised Statutes, reserved a question of law for the consideration of this Court in the form,

'Whether in law the 10/ - Snappy Link scheme constituted a lottery within the meaning of the Lotteries Prohibition Act (Chapter 38).'

Lottery is defined in the Chapter as follows:

H ''Lottery' means every lottery in the common and received acceptation of that term, and more particularly every scheme, arrangement, system, plan or device by which any prize or prizes is or are, or is or are intended to be, gained, won, drawn for, thrown or competed for, by lot, dice, or any other mode of chance, either with or without reference to the happening of any uncertain event other than the issue or result of the application or employment of such lot, dice or mode of chance.''Prize' is defined to include money and any right to claim

Schreiner JA

The definition of 'lottery' in Act 9 of 1889 (C) is identical with that in Chap. 38 and the definitions in Law 7 of 1890 (T) and Chap. 143 of the Orange Free State Law Book do not differ in any respect relevant to the present case, so that decisions on those statutes may be helpful. A Neither the Natal Act, 3 of 1902, nor the British statutes define a lottery but, as the definition in Chap. 38 includes 'every lottery in the common and received acceptation of that term,' cases on the Natal and British statutes may also usefully be referred to. In Rex v Lew Hoi and Others, 1937 AD 215 at p. 220, WATERMEYER, A.J.A. (as he then was) B said that the essentials of a lottery under the Transvaal Law were

'(a) some payment by the participant in the form of a stake, (b) in return for this payment or in consequence of it, acquisition by the player of a right to a prize on the occurrence of the event by chance.'

And in Rex v Ellis Brown Limited, 1938 AD 98, a case under the Natal C statute, the same learned Judge said, at p. 100, that the word lottery

'is sometimes used in the wide sense of any distribution of prizes by chance or lot and sometimes in the narrower sense of a scheme whereunder the participants subscribe or contribute something in consideration of the right to receive a prize on the occurrence of a chance event.'

D What is here called the wide sense is, substantially, the dictionary meaning used in the English and Scottish cases; for present purposes it is not important which is used since, as will appear, the element of contribution was present in this case, the sole issue being whether the E factor determining the distribution of prizes was chance.

The nature of the '10/ - Snappy Link' scheme is very clearly described in the following extract from the judgment of BEADLE, J.:

'The participant, whom I will call 'A', receives a form containing three names set out one beneath the other, and identified respectively F with the numerals 1, 2 and 3. No. 1 being the name at the head of the list and No. 3 the name at the bottom of the list. Beneath the bottom name No. 3, a space is provided for the entry of a fourth name. 'A' proceeds to write in his own name in the space provided for the fourth name and enters the numeral 3 opposite it. His own name then becomes identified with the number 3. He then scratches out the numeral 3 G which previously...