S v Ramos

• Jurisdiction: South Africa
• Judge: Yekiso J and Gess AJ
• Judgment Date: 19 January 2005
• Citation: 2005 (2) SACR 459 (C)
• Docket Number: A83/04
• Hearing Date: 19 January 2005
• Counsel: N Jagga for the appellant. L Badenhorst for the respondent.
• Court: Cape Provincial Division

Yekiso J et Gess AJ:

[1] The appellant was charged in the magistrate's court, Goodwood, with contravening s 67(1)(c) of the Gambling and E Racing Law (Western Cape) 4 of 1996. We shall, in the course of this judgment, refer to this piece of legislation simply as the Gambling Act.

[2] The allegation by the State, at the time, was that, during the period 1998 up to and including 15 October 1998, and at or near Paradise Entertainment Centre, Voortrekker Road, Goodwood, the appellant wrongfully and intentionally had in his possession 48 gambling devices without the appropriate licence. F

[3] Possession of gambling devices, as defined, without a licence is prohibited in terms of s 67(1)(c) of the Gambling Act unless such possession is for the sole purpose of demonstration, promotion within the industry or for such other purpose as the Gambling Board may authorise from time to time. G

As is the case with any other legislation, the Gambling Act contains a number of definitions. The definitions pertinent to these proceedings are those relating to the terms 'gambling device' and 'slot machine'.

[4] The term 'gambling device' is defined in the Gambling Act as 'any equipment or thing used, or designed to be used, irrespective H of the actual use to which it is put at any time, directly or indirectly, in connection with gambling'.

[5] The term 'slot machine', on the other hand, is also defined in a rather lengthy definition, the material portion thereof being I

'. . . any mechanical, electrical, video, electronic or other device, contrivance or machine used in connection with a gambling game which, upon insertion of money, a token or a similar object therein, or upon payment, whether directly or indirectly, by or on behalf of a player of any consideration whatsoever that is required, is available to be played or operated and the playing or operation of which, whether by reason of the skill of the player or operator or the application J

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of the element of chance or both, may deliver to the person playing or operating the machine cash, tickets, receipts or tokens to A be exchanged for cash or merchandise or anything of value whatsoever, other than unredeemable free games, or may entitle such person to receive such cash, tokens, merchandise or thing of value, whether the pay-off is made automatically from the machine or in any other manner whatsoever'.

(Our emphasis.) It would seem the reference to the term 'anything of value whatsoever' is deliberately intended to cover a B wide range of activities in which monetary value is an element.

[6] At a criminal trial subsequently held on 16 November 1999, the appellant was acquitted of the charges preferred against him, such acquittal having been at the close of the defence case without any C evidence having been led. An application for the discharge of the appellant at the close of the State case was refused, the magistrate probably having been of the view that the defence had a case to answer. At the conclusion of the proceedings, no order was made with regard to the disposal of the 48 gambling devices seized from the appellant by the SA Police Service. D

[7] Prior to the commencement of trial, the defence served on the State a request for further particulars in terms of s 87(1) of the Criminal Procedure Act 51 of 1977. The request for further particulars, the response to which was to become a decisive issue at trial, reads as follows: E

[7.1]

'Does the State allege that the gambling device which forms the subject of this charge relates to a game which permitted the person playing the game to receive money or property or cheques or credits or tokens to be exchanged for money or merchandise or anything of value whatsoever? If so, the State is required to state exactly what benefit was received by the person so playing the game.' F

[7.2]

In response to this question, the State indicated that it did not allege that the charge related to the playing of a game as set out in any of the respects set out in the request for further particulars, which, incidentally, was couched substantially in line with the wording of the provision in the Gambling Act which constitutes G the basis of the offence with which the appellant was charged.

[7.3]

The second leg of the request for further particulars reads as follows:

'Does the State allege that the person playing the game received unredeemable free games.' H

[7.4]

In response to this question, the State contended that it alleged that the person playing the game received unredeemable free games.

[7.5]

The term 'unredeemable free games' is, similarly, defined in the Act. The definition of the term is also rather a lengthy I one and, for purposes of this judgment, we propose citing the definition of the term concerned in full, which reads as follows:

'Unredeemable free game means an opportunity, won by successfully playing a game, to play a further game without the payment of any J

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consideration normally required to play such game, which cannot be redeemed by, distributed or transferred to the person who has A won such opportunity or any other person for any other purpose than to use such opportunity, without interruption, to continue playing the type of game in respect of which the opportunity was won, on the same machine, device or apparatus as that on which the opportunity was won, and which excludes an opportunity which can, in any manner, be converted into money, property, cheques, credit, prizes, eligibility B for other prizes or anything of value.'

But what is clear from the evidence is that a player can interrupt the game whilst the smart card is still loaded with credits won; once this happens, a player is issued with a hand-written voucher which would record credits not utilised; over and above the unutilised credits, a player could purchase further credits which would then be C added on the existing credits and thereafter continue playing further games despite such interruption.

Thus, an 'unredeemable free game' would involve an 'opportunity to play a further game, or to continue to play the type of game in respect of which the opportunity has been won, without interruption, on the D same machine, device or apparatus as that on which the opportunity was won . . .'.

[8] The effect of the responses by the State to the request for further particulars was such that it placed the possession of the gambling devices seized from the appellant outside the ambit of the prohibition provided for in the Gambling Act or the prohibition for use of such gambling devices without a licence as required in terms of the E Gambling Act. These responses, in effect, rendered the charge-sheet defective in that it lacked the essential averment necessary to constitute or sustain an offence. Despite this apparent defect, the F State did not, at any stage of the proceedings, apply for an amendment of the charge-sheet to bring the particulars so supplied in conformity with the essential elements of the charge, nor did the defence object to the charge as not disclosing an offence as contemplated in s 85 of the Criminal Procedure Act.

[9] In the criminal trial, the State led the evidence of an expert in the design, operation and use of gambling devices in the G person of one Adriaan Gabriel Swart, whose evidence, aptly summarised in the submissions by Mr Jagga, counsel for the appellant, is to the effect that he is a technical manager in the employ of Universal Distributors of Nevada SA; that he is fully knowledgeable in the operation of the gambling machines utilised in the gambling industry; H that he inspected the machines seized from the appellant; that the machines he inspected were manufactured by his company and that they were manufactured for purposes of gambling only; once he inspected the gambling machines, he found that they were exclusively designed to be used for gambling in the gambling industry and that they were altered I in an attempt to circumvent the provisions of the Gambling Act. The evidence by this witness was at variance with the State's reply to the appellant's request for further particulars supplied to the defence.

[10] In the course of cross-examination, several statements were put to J

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this witness. These statements included stickers which, it appears, were placed on the machine devices indicating that the machine A devices were for purposes of entertainment only and that possession thereof was not for purposes of gambling. The response by the witness was that the fact that such stickers could have been placed on these devices did not alter the nature of the machine devices, did not influence the outcome of the game played, nor do such stickers render B such machines less a gambling device as was intended by the manufacturer. Finally, on a statement put to the witness that the devices were incapable of giving any value whatsoever other than an unredeemable free game, the witness responded that nothing prevents the person from redeeming the credits transferred on the smart card issued to him and thus giving value to such credit. Apart from a further C statement put to this witness that the appellant had employed the services of the electronic engineer to adapt the machines so as to comply with the provisions of the Gambling Act, no further statement was put to this witness, nor was his opinion challenged on the basis of an opinion different from the one expressed by this witness. D

These responses were elicited by questions and statements put to this witness and, as such, became part of the body of evidence tendered.

[11] Apart from the evidence of Swart, the State also tendered the evidence of one Rudolf Jasper Coetzee. Coetzee, so it appears on the basis of the evidence tendered, is a member of...