THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 648/2021

In the matter between:
GOLDRUSH GROUP (PTY) LTD
APPELLANT

and

NORTH WEST GAMBLING BOARD

FIRST RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL
FOR ECONOMY AND ENTERPRISE
DEVELOPMENT, NORTH WEST
PROVINCE
SECOND RESPONDENT
SANTOSAT (PTY) LTD
THIRD RESPONDENT
SANTOSCAN (PTY) LTD
FOURTH RESPONDENT
GOLDRUSH SLOTS GAMING
NORTH WEST (PTY) LTD
FIFTH RESPONDENT
SANGRO HOLDINGS 1 (PTY) LTD
SIXTH RESPONDENT
PHOKONG INVESTMENTS AND
PROJECTS (PTY) LTD
SEVENTH RESPONDENT
K201985410 (SOUTH AFRICA) (PTY) LTD
EIGHTH RESPONDENT

EDITH MAMOTSE MPHATSE
NINTH RESPONDENT
MPHO RADIKOJANA
TENTH RESPONDENT

Neutral citation: Goldrush Group (Pty) Ltd v North West Gambling Board and
Others (648/2021) [2022] ZASCA 164 (28 November 2022)
Coram:
PONNAN, GORVEN and HUGHES JJA and MJALI and
GOOSEN AJJA
Heard:
2 November 2022
Delivered: 28 November 2022
Summary: Locus standi – shareholder – declaration of rights affecting company –
own interest litigant – principles governing standing – financial interest only –
interests of justice not served – no basis for locus standi.

__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: North West Division of the High Court, Mahikeng (Snyman AJ
sitting as court of first instance):
The appeal is dismissed with costs.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Ponnan and Hughes JJA and Mjali and Goosen AJJA concurring):

[1] This appeal arose from requirements forming part of bingo operator and route
operator licences in the North West Province. Gambling in that province is regulated
by the North West Gambling Act 2 of 2001 (the Act) and overseen by the North
West Gambling Board (the Board). The appellant is Goldrush Group (Pty) Ltd
(Goldrush) which, at the time of the application giving rise to this appeal, held
40 percent of the shares in the third to fifth respondents (the licensee companies).
The balance of the shares in the licensee companies were held by the sixth to tenth
respondents (the local PDI shareholders). The licensee companies were formed for
the purpose of responding to a request for applications (the 2009 RFA) for gambling
licences. Pursuant to their applications, the third and fourth respondents were
granted bingo operator licences and the fifth respondent a route operator licence. At
the instance of Goldrush, the licensee companies appointed a management company,
Goldrush Group Management (Pty) Ltd, a wholly owned subsidiary of Goldrush.

[2] The 2009 RFA for bingo licences contained the following provisions:
a)
‘Local PDI’ was defined as meaning, ‘a natural black person who is a resident
within the North West Province or a juristic person in whom the majority ownership,
employment and beneficiation is held or accrues to natural persons who are resident
in the North West Province’.
b)
‘Resident’ was defined as meaning ‘a natural person who is ordinarily a
resident of the country in terms of the Income Tax Act, 1962 (Act No. 58 of 1962)
as amended, and who is ordinarily a resident of the North West Province and has a
fixed or permanent residential address in the province; provided that such person
was physically residing in the province for a period or periods exceeding twenty four
(24) months prior to the lodgement of the application in terms of this RFA and
remains such for the life of any licence issued in respect of this RFA’.
c)
Under the heading ‘Corporate Structure’, was the following provision:
‘A Bingo Operation must be owned by at least 60% local PDIs. All local PDIs shall
be citizens of the Republic of South Africa and shall reside in the North West
Province.’
For purposes of this matter, the RFA for a Limited Payout Machine contained
identical provisions.

[3] The licences issued pursuant to the 2009 RFA all contained a requirement that
at least 60 percent of the shareholding in a company with a licence must be held by
local PDIs (the local PDI requirement). In addition, 50 percent of the boards of
directors of the licenced entities were required to be made up of local PDIs who had
to be involved in management.

[4] The licences were renewed annually, as is required under s 41 of the Act. The
local PDI requirement has formed part of each renewed licence. In 2015 the Board

issued a further Request for Applications (the 2015 RFA) in which the local PDI
requirement was retained.

[5] Goldrush said that when the licensee companies began to operate, it
experienced difficulty in persuading the local PDI shareholders to make their agreed
financial contributions to running the licensee companies. As a consequence, it said,
the licensee companies operated at a loss for at least the first three years during which
Goldrush incurred the running expenses. This led to tensions between Goldrush and
the local PDI shareholders. Attempts to mediate the disputes failed. In 2013, after
restructuring, Goldrush became a 40 percent shareholder in all of the licensee
companies.

[6] In 2018, the Greater Rustenburg Community Foundation, a Non-
Governmental Organisation which was one of the local PDI shareholders in the
licensee companies, wished to dispose of its approximately 4 percent shareholdings
to a competitor. Goldrush exercised its pre-emptive right under the shareholders’
agreements governing the licensee companies and purchased those shares. This
resulted in Goldrush holding between 43.45 and 44 percent of the shares. The local
PDI requirement was accordingly no longer met since the shareholding of local PDIs
fell below the specified 60 percent.

[7] Goldrush informed the Board of these acquisitions on 10 September 2018.
This prompted a response from the Board pointing out that the sale had resulted in a
contravention of the local PDI requirement. It accordingly invited Goldrush to
‘revisit your stance’. The attorneys for Goldrush responded, asserting that the local
PDI requirement was ‘invalid and unenforceable’. They elaborated:

‘The requirements and conditions imposed in these provisions go well beyond what is provided
for in the legislation governing Broad-Based Black Economic Empowerment and the Codes of
Good Practice on Broad-Based Black Economic Empowerment published on 11 October 2013.
The Board does not have the authority to apply higher black ownership targets than those set out
in the B-BBEE Codes or impose criteria requiring shareholders to reside in a particular province
or locality.
Goldrush accordingly respectfully declines your invitation to revisit its transaction. We request
you reconsider your position to the acquisition taking into consideration what we have said above.’
The Board reminded Goldrush that, in the RFA, the licensee companies had
committed to ensure that 60 percent of their shareholdings would be made up of
local PDIs and that since then their licence conditions had echoed that requirement.
It demanded that Goldrush ensure that the licensee companies comply. Thus were
the battle lines drawn.

[8] An internal review of that decision was launched under s 90 of the Act. After
the Board failed to comply with the requisite time limits, it emerged that the
management of the Board, and not the Board itself, had taken the decision. That
decision therefore did not meet the criteria for an internal review. When this became
clear, the internal review was not persisted in.

[9] The licences were due to expire on 31 March 2019. The licensee companies
applied to renew their licences. In the annual renewal process, the Board proposed
the reimposition of the local PDI requirement. Goldrush objected. At its meeting of
28 March 2019, the Board decided not to renew their licences. The reason given was
that they had ‘contravened [the local PDI requirement] and the RFA’ when the local
PDI shareholding fell below 60 percent. The decision was conveyed to Goldrush on
29 March 2019, two days before the new licensing period commenced. The effect of
this was that the licensee companies had to cease operations two days later.

[10] Goldrush caused the licensee companies to approach the High Court for
urgent relief. The first part sought to permit them to continue operating pending the
finalisation of the second part. The latter involved a review of the decision of the
Board refusing to renew the licences. This second part would have had to be
preceded by an internal review by the Tribunal before being determined by the court.
Instead of finalising that application, agreement was reached that:
a)
the Board would renew the licences.
b)
the licensee companies would comply with the local PDI requirement by
complying with the 60 percent local PDI requirement within 60 days, failing which
the licences would be cancelled. This was embodied in a consent order of
18 April 2019;
c)
the High Court could be approached directly.

[11] There was no consensus in the papers as to what was envisaged by this last
provision. Goldrush contended that the High Court could be approached for a
declarator as to whether the local PDI requirement could lawfully be imposed by the
Board. On the other hand, the Board understood that it meant only that the licensee
companies could approach the High Court to review the decision of the Board
without first complying with the internal review procedure. What was common
cause is that neither the licensee companies nor the Board would have accepted any
adverse decision of the Tribunal. As such, following the procedure for internal
review would simply have delayed the inevitable determination by the High Court.

[12] Goldrush then approached the North West Division of the High Court,
Mahikeng (the high court), for the following order:
‘1.
It is declared that the imposition by the First Respondent of conditions on licences issued
in terms of the North West Gambling Act 2 of 2000 requiring the licensee to ensure that all times

during the subsistence of the licence, at least 60 percent equity ownership in the licensed entity is
held by Previously Disadvantaged Individuals who reside in the North West Province is unlawful
and invalid.
2.
The First Respondent and Second Respondent are directed to pay the costs of the
application.’
The application was opposed by the first and seventh respondents and was dismissed
with costs by Snyman AJ. This appeal is with her leave.

[13] The Board opposed the application on a number of grounds. These included
that:
a)
Goldrush had no locus standi to seek the relief in question. Any application
should have been brought by the licensee companies.
b)
There was a fatal non-joinder of other companies holding licences.
c)
The application for a declarator was inappropriate in the circumstances. A
review application should have been brought.
d)
There was an unreasonable delay in bringing the application since the local
PDI requirement had formed part of the 2009 RFA and had been embodied in the
licences in 2009 and in all the following years.
e)
There was no basis for the contention of Goldrush that the local PDI
requirement could not lawfully be imposed by the Board in the light of the B-BBEE
legislation.

[14] The issue of locus standi is generally decided without reference to the merits.
As Hoexter and Penfold put it:

‘In common with the doctrines of ripeness and mootness, the question of standing is traditionally
a liminal enquiry divorced from the substance of the case.’1
This is because, as explained in Oudekraal Estates (Pty) Ltd v City of Cape Town
and Others,2 quoting with approval what was said in Wade Administrative Law:3
‘The truth of the matter is that the Court will invalidate an order only if the right remedy is sought
by the right person in the right proceedings and circumstances.’4
The Constitutional Court has fashioned an exception to the separation of standing
from the merits of a matter in Giant Concerts CC v Rinaldo Investments (Pty) Ltd
and Others:5
‘[T]he interests of justice under the Constitution may require courts to be hesitant to dispose of
cases on standing alone where broader concerns of accountability and responsiveness may require
investigation and determination of the merits. By corollary, there may be cases where the interests
of justice or the public interest might compel a court to scrutinise action even if the applicant's
standing is questionable. When the public interest cries out for relief, an applicant should not fail
merely for acting in his or her own interest.’6

[15] How this enquiry is to be approached lacks clarity as explained by Hoexter
and Penfold, in their treating of Giant Concerts:
‘Later in the judgment the court added as an apparent afterthought that when a party has no
standing, “it is not necessary to consider the merits, unless there is at least a strong indication of
fraud or other gross irregularity in the conduct of a public body”.’7

1 Hoexter and Penfold Administrative Law in South Africa 3 ed (2021) at 676.
2 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] ZASCA 48; 2004 (6) SA 222 (SCA); [2004] 3
All SA 1 (SCA).
3 Wade Administrative Law 7th ed (by H W R Wade and Christopher Forsyth) at 342-4.
4 Oudekraal Estates para 28.
5 Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC 28; 2013 (3) BCLR 251 (CC).
6 Ibid para 34.
7 Hoexter and Penfold at 677. Their emphasis, quoting from Giant Concerts para 58.

As they point out, the Constitutional Court itself seems to have adopted divergent
approaches to these dicta.8 In Tulip Diamonds FZE v Minister for Justice and
Constitutional Development,9 Van der Westhuizen J understood the exception as
limiting the locus standi enquiry to whether fraud or gross irregularity had been
shown once he concluded that own-interest standing was lacking. And in Areva NP
Incorporated in France v Eskom Holdings SOC Ltd,10 Zondo J, for the majority, said
that a court ‘should only enter the merits in exceptional cases or where the public
interest really cries out for that’.11 On the other hand, the minority in Areva saw it as
in the public interest to look into the lawfulness of conduct of a state-owned entity
where vast sums of money would result from the award of a tender. It seems to me
that Tulip Diamonds and the majority view in Areva binds this Court. As such, if
own-interest standing is lacking, that will determine the present matter without
entering the merits. This is because there is no averment, let alone any indication,
that fraud or gross irregularity attends on the conduct of the Board.

[16] Before us, counsel for Goldrush simply submitted that, because it was a
shareholder whose ability to deal with its shareholding was circumscribed by the
local PDI requirement, it had standing. The submission in its heads of argument was
likewise terse in the extreme:
‘Goldrush is a shareholder in each of the licensee companies. It plainly has a direct and substantial
interest in determining the legality of the continued imposition of a requirement that limits that
shareholding to 40 percent and that imposes criteria prescribing the identity of its fellow

8 Ibid at 677-9.
9 Tulip Diamonds FZE v Minister for Justice and Constitutional Development [2013] ZACC 19; 2013 (10) BCLR
1180 (CC); 2013 (2) SACR 443 (CC).
10 Areva NP Incorporated in France v Eskom Holdings SOC Ltd and Others [2016] ZACC 51; 2017 (6) SA 621 (CC);
2017 (6) BCLR 675 (CC).
11 Ibid para 41.

shareholders. Its interests or potential interests are accordingly directly affected by the
unlawfulness sought to be impugned.’
Counsel for Goldrush was invited to provide authority for the contention that, in
circumstances such as this, being a shareholder in the licensee companies clothed it
with the requisite locus standi. He was unable to provide any. In the heads of
argument, reliance was placed on the matter of Giant Concerts.

[17] In that matter, Giant Concerts CC (Giant) had got wind of the intention of a
municipality to sell immovable property by private treaty to Rinaldo Investments
(Pty) Ltd (Rinaldo). Giant approached the municipality, saying that it wished to
purchase the property. The municipality met with Giant who claimed that it would
use the property for the same purpose and pay a higher price but refused to name its
price or reveal to the municipality its plans for utilising the property. Not satisfied
with this, the municipality concluded the envisaged agreement with Rinaldo.
Aggrieved by this decision, Giant approached the High Court to set aside the sale. It
succeeded but that decision was reversed on appeal by this Court on the basis that
Giant lacked locus standi.

[18]  The Constitutional Court held that this was an own-interest application as
envisaged under s 38(a) of the Constitution which provides:
‘Anyone listed in this section has the right to approach a competent court, alleging that a right in
the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are -
(a)
anyone acting in their own interest.’
The question, accordingly, was whether Giant had standing on that basis.

[19] The Constitutional Court accepted the correctness of the approach of this
Court in Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works
and Others,12 saying:
‘“[A]dversely affects” in the definition of administrative action was probably intended to convey
that administrative action is action that has the capacity to affect legal rights, and that impacts
directly and immediately on individuals. The effect of this is that Giant, as an own-interest litigant,
had to show that the decisions it seeks to attack had the capacity to affect its own legal rights or its
interests.’13
It was clear that Giant’s sole interest was commercial. The Constitutional Court held:
‘[Where] a litigant acts solely in his or her own interest, there is no broad or unqualified capacity
to litigate against illegalities. Something more must be shown.’14
After reviewing the relevant case law, the Constitutional Court summarised the
approach to be taken to own-interest standing in constitutional matters:
‘[C]onstitutional own-interest standing is broader than the traditional common law standing, but .
. . a litigant must nevertheless show that his or her rights or interests are directly affected by the
challenged law or conduct. The authorities show:
(a)
To establish own-interest standing under the Constitution a litigant need not show the same
“sufficient, personal and direct interest” that the common law requires, but must still show that a
contested law or decision directly affects his or her rights or interests, or potential rights or
interests.
(b)
This requirement must be generously and broadly interpreted to accord with constitutional
goals.
(c)
The interest must, however, be real and not hypothetical or academic.
(d)
Even under the requirements for common law standing, the interest need not be capable of
monetary valuation, but in a challenge to legislation purely financial self-interest may not be
enough - the interests of justice must also favour affording standing.

12 Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6)
SA 313 (SCA); [2005] 3 All SA 33 (SCA) para 23.
13 Giant Concerts para 30.
14 Ibid para 35.

(e)
Standing is not a technical or strictly-defined concept. And there is no magical formula for
conferring it. It is a tool a court employs to determine whether a litigant is entitled to claim its
time, and to put the opposing litigant to trouble.
(f)
Each case depends on its own facts. There can be no general rule covering all cases. In
each case, an applicant must show that he or she has the necessary interest in an infringement or a
threatened infringement. And here a measure of pragmatism is needed.’15
The Constitutional Court concluded that Giant lacked standing, even given the broad
approach articulated above.

[20] The approach to a consideration of own-interest standing is that the challenge
made by Goldrush must be accepted as being justified.16 It is clear that, at best for
Goldrush, its interest is purely financial. It seems to me that, as a result, part of item
(d) of the summary of the Constitutional Court in Giant Concerts predominates in
the present matter:
‘[P]urely financial self-interest may not be enough - the interests of justice must also favour
affording standing.’
Even accepting, therefore, that the financial interest asserted by Goldrush might be
‘directly affected by the unlawfulness sought to be impugned’, it is necessary for the
interests of justice to tip the scales in favour of Goldrush for it to have locus standi.

[21] It was necessary for Goldrush to establish that it had the requisite standing.
Despite this, and having relied on Giant Concerts, it neither provided focussed
evidence or made any submissions concerning the interests of justice. Not only that,
but, tellingly, the seventh respondent opposed the application. In its answering
affidavit it claimed that the application was ‘launched mala fide in an attempt to

15 Ibid para 41. References omitted.
16 Giant Concerts para 32; Ritz Hotel Ltd v Charles of the Ritz and Another 1988 (3) SA 290 (a) at 307H-I; Jacobs en
‘n Ander v Waks en Andere 1992 (1) SA 521 (A) at 536A-B.

serve [Goldrush’s] own interest.’ This assertion was met with a deafening silence,
despite the replying affidavit employing four paragraphs to address the averments in
the relevant paragraph of the answering affidavit embodying that claim. This was a
clear invitation to Goldrush to advance any other interests which the application
sought to promote. The invitation to do so was unfortunately declined.

[22] If something other than financial self-interest is required, the result of a
complete lack of averments or argument dealing with the broader interests of justice
has the result that Goldrush failed to make out a case for its standing. But leaving
aside the lack of direct evidence or submissions, on a conspectus of the papers
themselves, I take the view that no such case emerges. There are a number of reasons
for this conclusion.

[23] Firstly, there is no explanation in the papers why, after the urgent application
by the licensee companies resulted in the agreement, it was not they who pursued
the present application. In fact, it seems that Goldrush considered that it represented
the licensee companies in bringing the application. I say this because at least two
passages in the founding papers suggest a conflation of the identities of Goldrush
and the licensee companies:
‘a)
As per the agreement with the Board, Goldrush and the licensee companies do not seek the
internal review of the decision of 29 March 2019, but have rather agreed that the High Court be
approached directly to seek a declarator as to the lawfulness of the local PDI requirement.
b)
There is a live dispute between Goldrush, the licensee companies and the Board as regards
the legality of the local PDI shareholding requirement.’
The irony of these submissions is that the licensee companies nowhere indicated any
support for the present application or the contention that the local PDI requirement
is unlawful and not binding on them. On the contrary, at least the seventh respondent,

a local PDI shareholder, opposed it. Far from citing them as co-applicants, Goldrush
joined the licensee companies and the local PDI shareholders as respondents.

[24] Secondly, it was conceded by counsel for Goldrush that the licensee
companies would have had locus standi to seek the relief. This concession was
correctly made. After all, it is they who are subject to the local PDI requirement and
whose licence renewals were put at risk by Goldrush for non-compliance. The
scheme of the Act makes it clear that the relationship created by the grant of a licence
is one between the Board and the licensee. There is no legal relationship between a
shareholder of a company holding a licence and the Board. Goldrush seems to have
appreciated this at the time in citing the licensee companies as the applicants in the
urgent application and not itself participating as a party.

[25] Thirdly, the relief sought will affect all licence holders in the province. One
has no idea of the attitude of any licence holders other than the licensee companies.
It is so, however, that, as the Board submitted, the effect of Goldrush succeeding
would, as it were, meddle in the legal relationship between the Board and all of the
licensees. I am minded that this primarily bears on the question of joinder, on which
I express no view. However, it is also a factor which has a bearing on whether the
interests of justice would be served in according standing to Goldrush in this matter.

[26] A final consideration is that Goldrush asserted that it had accepted the
provisions in the RFA concerning local PDIs ‘on the assumption that the local
persons/entities it would partner with would work closely with Goldrush to build the
business and would fairly meet their commitments as shareholders to contribute
financially and to the productivity of the operations of the companies. Unfortunately,
this did not materialise, as explained hereunder.’ But, as was pointed out by counsel

for the Board, Goldrush had a right to invoke the provisions of s 163 of the
Companies Act 71 of 2008 if it felt that the majority shareholders were engaging in
oppressive conduct.

[27] This Court has recognised the standing of shareholders in certain matters.
Although not drawn to our attention, in Trinity Asset Management (Pty) Ltd and
Others v Investec Bank Ltd and Others,17 the principle has been established that a
shareholder is entitled to accurate information from the board of a company
concerning a proposal to be put to shareholders at a general meeting of the company.
As a result, shareholders were held by this Court to have locus standi to apply for an
interdict preventing a meeting from proceeding when the information to be placed
before that meeting in support of a resolution to ratify an agreement concluded by
the company was inaccurate and misleading. As will be appreciated, however, this
clearly does not provide authority for the contention of Goldrush in the present
matter.

[28] All of this means that Goldrush is left with an attempt to found standing on
the fact that it has a purely financial interest in the relief sought. There is no basis on
which to find that this is one of those exceptional cases where the public interest
cries out for a court to enter into the merits of the matter. The result is that the
substantive issues aired in the application do not arise for consideration. Despite the
high court having dealt with the matter differently, the order granted by it cannot be
assailed. The appeal must be dismissed and that order must stand. The costs should
follow the result.

17 Trinity Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others [2008] ZASCA 158; 2009 (4) SA
89 (SCA); [2009] 2 All SA 449 (SCA).

[29] In the result, the appeal is dismissed with costs.

____________________
T R GORVEN
JUDGE OF APPEAL

Appearances

For appellant:
B Roux SC (with him I B Currie)
Instructed by:
Cliffe Dekker Hofmeyr Incorporated, Johannesburg

Noordmans Attorneys, Bloemfontein

For first respondent:
M P Van der Merwe SC
Instructed by:
M E Tlou Attorneys and Associates, Mahikeng

Bezuidenhouts Incorporated, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 November 2022
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Goldrush Group (Pty) Ltd v North West Gambling Board and Others
(648/2021) [2022] ZASCA 164 (28 November 2022)

Today the Supreme Court of Appeal dismissed an appeal from  a judgment of
Snyman AJ in the North West Division of the High Court, Mahikeng (the high court).
The appeal arose from requirements forming part of bingo operator and route
operator licences imposed by the North West Gambling Board (the Board). The
appellant, Goldrush Group (Pty) Ltd (Goldrush), held 40 percent of the shares in
three companies which had been awarded licences by the Board (the licensee
companies). The other 60 percent of the shares in the licensee companies were held
by the sixth to tenth respondents (the local PDI shareholders). Both in the request
for applications and in the resultant licences, there was a requirement that the
licensed entity must be owned by 60 percent local PDIs, being citizens of the
Republic of South Africa residing in the North West Province.

Disputes arose between Goldrush and the local PDI shareholders in the licensee
companies. Things came to a head when a local PDI shareholder offered its
approximately 4 percent shareholding to a competitor of Goldrush, prompting
Goldrush to invoke a pre-emptive right to purchase those shares. This ultimately

resulted in the Board refusing to renew the licences on the basis that the licensee
companies no longer complied with the 60 percent local PDI shareholding
requirement.

Goldrush approached the high court for relief declaring the 60 percent local PDI
requirement to be unlawful and invalid as conflicting with the Broad-Based Black
Economic Empowerment Act and the Codes of Good Practice on Broad-Based Black
Economic Empowerment. The Board took the point that Goldrush lacked the
requisite standing to approach the high court for that relief. The high court dismissed
the application on the merits.

The Supreme Court of Appeal held that it was necessary to decide the question of
the locus standi of Goldrush initially. The only basis proffered by Goldrush was that
it was a shareholder in the licensee companies and that the limitation on dealing with
its shareholding was detrimental to it. This, then, amounted to own-interest litigation
where the only interest was financial. Applying the principles in the matter of Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC 28; 2013 (3)
BCLR 251 (CC), the Supreme Court of Appeal concluded that Goldrush did not make
out a case that the interests of justice tipped the scales in favour of it being accorded
locus standi. It was accordingly held that Goldrush lacked the requisite standing and
that the high court had correctly dismissed the application, albeit on a different basis.
For those reasons, the appeal was dismissed with costs.