THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 142/2020
In the matter between:

DEEPS BETTING GROUNDS (PTY) LTD

APPELLANT

and

DESERT PALACE HOTEL RESORT (PTY) LTD
FIRST
RESPONDENT

THE NORTHERN CAPE GAMBLING BOARD
SECOND

RESPONDENT

Neutral citation: Deeps Betting Grounds (Pty) Ltd v Desert Palace Hotel
Resort (Pty) Ltd and Another (142/2020) [2021] ZASCA 86 (21 June 2021)

Coram:
PETSE AP and MOCUMIE and DLODLO JJA and LEDWABA
and CARELSE AJJA

Heard:
9 March 2021

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 21 June 2021.

Summary: Civil procedure – Superior Courts Act 10 of 2013 – petition to appeal
to the Supreme Court of Appeal not filed – leave to appeal dismissed – Conduct
in contravention of sections 78, 79 and 80 of Northern Cape Gambling Act No 3
of 2008 –no valid gambling licence issued to conduct bookmaker’s activities on
premises.

ORDER

On appeal from: Northern Cape Division of the High Court, Kimberly
(Sieberhagen AJ sitting as court of first instance):

The application for leave to appeal against the order of Dauds AJ dated
13 December 2019 is dismissed with costs.
The appeal against the order granted by Sieberhagen AJ is likewise
dismissed with costs.

JUDGMENT

Ledwaba AJA (Petse AP, Mocumie and Dlodlo JJA and Carelse AJA
concurring):

Introduction
[1] This appeal concerns the order of Sieberhagen AJ, sitting in the Northern
Cape Division of the High Court, Kimberley (the high court), granted in favour
of the first respondent, Desert Palace Hotel Resort (Pty) Ltd (Desert Palace) in
the main application in terms of which the appellant, Deeps Betting Grounds (Pty)
Ltd (Deeps Betting), was interdicted from operating any gambling activities on
Erf 7195, Upington, known as 23 Scott Street, Upington (the premises) unless a
valid gambling licence authorising gambling activities at the premises is issued
by the second respondent, The Northern Cape Gambling Board (Gambling
Board). Deeps Betting applied for leave to appeal against this order which the
high court granted to this Court on 31 January 2020.

[2] Deeps Betting opposed the main application and filed a conditional
counter-application in which it sought to hold the Gambling Board’s Chief
Executive Officer liable for contempt of court and also an order compelling the
Gambling Board to issue Deeps Betting with a gambling licence for the premises,
in the event the main application succeeded. Desert Palace and the Gambling
Board opposed the relief sought by Deeps Betting in the counter-application.

[3] After the main application was heard on 30 August 2019, the high court
made the following order:
‘1.
The first respondent is interdicted from maintaining or operating the premises situated
at Erf 7195, Upington, known as 23 Scott Street, Upington (“23 Scott Street”) for the purpose
of any gambling activity in or on 23 Scott Street is granted to it by the Second Respondent.
2.
The first respondent is interdicted from permitting the said 23 Scott Street premises to
be used for the purposes of any gambling activity other than an informal bet, including but not
limited to bookmaking, unless a valid gambling licence that authorises that gambling activity
in or on 23 Scott Street is granted to them by the second respondent.
3.
The first respondent is interdicted from permitting any individual in or on the said 23
Scott Street premises to engage in any gambling activity other than an informal bet, including
but not limited to bookmaking, unless a valid gambling licence that authorises that gambling
activity in or on 23 Scott Street is granted to them by the second respondent.
4.
The first respondent is to pay the costs of the application.
5.
The parties are directed to approach the registrar to obtain a date for adjudication of the
first respondent’s counterclaim under case number 1698/2019.’

[4] The counter-application was heard by Dauds AJ on 1 November 2019. He
subsequently dismissed it and refused to grant Deeps Betting leave to appeal
against the dismissal of its counter-application. Deeps Betting’s counsel in his
heads of argument relating to the appeal sought leave of this Court to hear the
appeal in respect of the main application together with the 'appeal' against the
order of Dauds AJ in the counter-application. I have put the word 'appeal' in
inverted commas for reasons that will become apparent later.

Background facts
[5] The following factual background is common cause and important for the
proper understanding of this appeal. In 2017 Deeps Betting filed three
applications against the Gambling Board relating to a gambling licence issued to
Deeps Betting in respect of Erf 4965 in Upington. There was also a dispute
regarding whether due process was followed when the licence was issued.

[6] In the said applications Deeps Betting sought an order to amend the erf
number on the licence to read Erf 7195, Upington, 23 Scott Street. It is not
necessary for the adjudications of this appeal to deal in detail with the said
applications. In the urgent application filed on 15 December 2017, Deeps Betting
sought a declaratory order that the Gambling Board should grant a licence to it to
conduct bookmaker’s activities on the premises.

[7] On 9 March 2018 Stanton AJ dismissed the urgent application and later
granted Deeps Betting leave to appeal to this Court. On 9 March 2019, shortly
before the appeal against the order of Stanton AJ was heard, Deeps Betting and
the Gambling Board reached a settlement and their Deed of Settlement, signed
on 27 February 2019, was made an order of court on 4 March 2019 by this Court.1

[8] In the Deed of Settlement the parties, inter alia, agreed that:
‘2.1
[W]ithin 30 (thirty) days after the signing of this Agreement, the Gambling Board shall
grant to Deeps Betting permission to conduct its bookmaker’s activities at the property known
as Erf 7195, also known as 23 Scott Street, Upington, situated in the //Khara Hais Municipality,
Division Gordonia, Northern Cape Province.
2.2
In lieu Deeps Betting will immediately – upon the signature of this document –
withdraw its appeal and inform the Registrar of the Supreme Court of Appeal without delay of
the Settlement.’

1 See: Deeps Betting Grounds (Pty) Ltd v The Northern Cape Gambling Board Case no: 492/18 (SCA).

It is clear that in terms of the Deed of Settlement the Gambling Board was
required to grant Deeps Betting permission to conduct bookmaker’s activities at
the premises before the end of March 2019.

[9] In February 2018, before the judgment in Deeps Betting's urgent
application was delivered, Desert Palace became aware that the premises was to
be rezoned and utilised for gambling activities. Consequently, on 23 February
2018, it wrote to the Dawid Kruiper Municipality (the municipality) to object to
the proposed rezoning. On 28 February 2018, the municipality responded taking
note of Desert Palace’s objection and informed the latter that the rezoning
application had been granted. In July 2019 Desert Palace was informed that the
renovations on the premises were at an advanced stage and shop fittings were
installed at the premises. Desert Palace made enquiries and addressed a letter to
Deeps Betting and the Gambling Board, but did not receive a satisfactory
response. It then filed an urgent application, the main application, in the high
court against Deeps Betting and the Gambling Board was cited as the second
respondent. Deeps Betting opposed the main application and, as already
mentioned, filed a conditional counter-application.

[10] The Gambling Board filed a notice to abide the decision in the main
application, but opposed the relief sought by Deeps Betting in the counter-
application. In the counter-application before Dauds AJ, Deeps Betting sought an
order in the following terms:
‘The 2nd Respondent (Northern Cape Gambling Board) be ordered to immediately comply with
the order of the Supreme Court of Appeal dated 04 March 2019 and paragraph 2.1 thereof [the
SCA order] and grant to the Applicant [the 1st Respondent herein, namely, Deeps Betting
Grounds (Pty) Ltd] any licence needed to conduct its bookmaker’s activities at the property
known as Erf 7195, also known as 23 Scott Street, Upington, situated in the //Khara Hais
Municipality, division Gordonia, Northern Cape Province.’
The counter-application was dismissed with costs and the application for leave to
appeal suffered a similar fate.

Application for leave to appeal
[11] Since Deeps Betting’s counsel in his heads of argument applied that this
Court should also hear the 'appeal' in respect of the order of Dauds AJ in the
counter-application, this Court dealt first with Deeps Betting’s application for
leave to appeal against the order of Dauds AJ in respect of the dismissal of its
counter-application. Counsel invoked Safatsa2 to argue that the appellant has a
right to ask this Court to allow him to bring such an application at this very late
stage.3 The application was strongly opposed by Desert Palace and the Gambling
Board. The Gambling Board in its heads of argument submitted that this Court
did not have jurisdiction to hear the 'appeal' against the judgment of Dauds AJ
and that Deeps Betting should have, within one month of the refusal of its
application for leave to appeal, first sought leave in terms of s 17(2)(b)the
Superior Courts Act4 to appeal against the judgment of Dauds AJ which it
admittedly failed to do.

[12] Deeps Betting’s application based on Safatsa is devoid of merit. It is
generally accepted that an appeal should be restricted to specified grounds of
appeal. In Safatsa this Court dealt with a ground not covered by the terms of the
leave granted by the trial court and emphasised that the appellant had no right to
argue the appeal on grounds not covered in the notice of appeal. Nevertheless, the
court accepted that an appellant may apply to an appellate court to enlarge the
ambit of the appeal. Importantly, the court further clarified that this special
dispensation does not, for example, cover a situation where leave has been
granted to appeal against sentence only and the appellant then seeks to appeal
against the conviction as well.

2 S v Safatsa and Others 1998 (1) SA 868 (A).
3 The application was moved from the Bar and unsurprisingly counsel was hard-pressed to enlighten us as to why
this woefully belated application was not timeously brought in the ordinary way.
4 Superior Courts Act 10 of 2013.

[13] In Harlech-Jones Treasure Architects CC v University of Fort Hare5, a
case where a similar argument to that raised by Deeps Betting was advanced, the
court said:
‘It is, however, important to note the following:
(1) In terms of s 29(4)(b), where the Court of a Provincial or Local Division has refused leave
to appeal against its judgment or order, it is the Supreme Court of Appeal that must be
approached for such leave (ie in terms of s 21(2) and (3), by way of application in the form of
a petition addressed to the Chief Justice, to be considered by Judges designated by the Chief
Justice). There is no provision in the Act for a Full Court of a Provincial Division to grant leave
to appeal (save, impliedly, where it sits as a Court of first instance).
(2) In excluding the grounds of appeal referred to in paras [41] and [43] above, Jones J to that
extent refused leave to appeal.’ (Emphasis added.)6

[14] The matter before us is distinguishable from what obtained in Safatsa,
where additional grounds of appeal were entertained. In this case, Desert Palace
does not seek to augment its grounds of appeal against the judgment of
Sieberhagen AJ. What it seeks to do is to piggyback on this appeal in an attempt
to bring its application for leave to appeal against the order of Dauds AJ in
circumstances where not even the slightest attempt has been made to explain the
inordinate delay in doing so.

[15] Desert Palace applies to this Court to hear the appeal against the judgment
of another Judge where leave to appeal was refused. In terms of the Superior
Court Act, Deeps Betting should first have petitioned this Court. Deeps Betting
not only failed to do so but also failed to proffer a satisfactory explanation
supported by cogent reasons as to why the petition was not filed. Instead, it was
content to raise the issue for the first time in its heads of argument. As a result,
the belated application for leave to appeal, if it is such, should fail.

5 Harlech-Jones Treasure Architects CC v University of Fort Hare 2002 (5) SA 32 (E).
6 Para 51.

Appeal on merits of the main application
[16] Deeps Betting’s main argument for challenging the order of Sieberhagen
AJ, is that in terms of this Court's judgment (referred to in paragraph 7 above) in
terms of which the settlement agreement was made an order of court, it has extant
rights and its conduct in opening its gambling business at the premises was not
unlawful.

[17] Despite the fact that the Deed of Settlement had indeed been made an order
of court, the Gambling Board did not actually issue Deeps Betting with a licence
in compliance with that order. The Deed of Settlement explicitly states that within
30 (thirty) days after signature, the Gambling Board shall grant Deeps Betting
permission to conduct its bookmaker’s activities at the premises. It is common
cause between the parties that Deeps Betting has to date not been issued with the
requisite licence by the Gambling Board. On the contrary, the Gambling Board
stated in its papers that it will not issue Deeps Betting with the requisite licence
for the premises apparently on the ground that doing so would contravene the
law.

[18] It is interesting that Deeps Betting has not filed an application for contempt
of court against the Gambling Board in respect of its failure to grant it permission
or to issue it with the licence. Sections 78, 79 and 80 of the Northern Cape
Gambling Act7 (the Act) state that it is unlawful to engage in gambling activities,
possess gambling machine devices and to operate on any premises for purposes
of gambling activities without a licence.

[19] The premises is situated within 500 metres of Upington High School.
Regulation 7(c) of the Northern Cape Gambling Regulations8 (the Regulations)
reads as follows:

7 Northern Cape Gambling Act No 3 of 2008.
8 ‘Northern Cape Gambling Regulations GN 5, Provincial GN 1290, 18 March 2009.’

‘7.   Location of gambling and betting premises.-
The Board may not issue a licence to an applicant if the
premises from which the licensed activities will take place, are, in the opinion of the Board –
. .
(c) on or in premises which are within 500 m of a school or a place of worship.’
On a simple reading of this regulation, the location of the premises offends against
reg 7(c) of the Regulations.

[20] The order of Sieberhagen AJ interdicts Deeps Betting from conducting
gambling activities unless a valid gambling licence has been issued, authorising
gambling activities on the premises. Such a licence has not been issued. In terms
of the clear provision of ss 78, 79 and 80 of the Act read with reg 7(c) of the
Regulations, Deeps Betting would be acting unlawfully if it conducts business at
the premises without a licence. Thus its reliance on this Court's order referred to
in paragraph 17 above is misplaced. The order itself contemplates that Deeps
Betting should be issued with a licence by the relevant Gambling Board before it
can lawfully engage in gambling activities.

[21] I therefore make the following order:

The application for leave to appeal against the order of Dauds AJ dated 13
December 2019 is dismissed with costs.
The appeal against the order granted by Sieberhagen AJ is likewise
dismissed with costs.

_____________________
A P LEDWABA
ACTING JUDGE OF APPEAL

APPEARANCES

For the Appellant:

S Grobler SC
Instructed by:
Van de Wall Inc, Kimberley
Honey Attorneys, Bloemfontein

For the First Respondent:

E Grobbelaar
Instructed by:
Morkel De Villiers, c/o Engelsman
Magabane, Kimberley
Symington
&
De
Kok,
Bloemfontein

For the Second Respondent:

G Ngcangisa
Instructed by:
The State Attorney, Kimberley
The State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

21 June 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Deeps Betting Grounds (Pty) Ltd v Desert Palace Hotel Resort (Pty) Ltd and Another
(142/2020) [2021] ZASCA 86 (21 June 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing the application to hear
the appeal in respect of the order of Dauds AJ and the appeal against the order of Sieberhagen AJ from
the Northern Cape Division of the High Court, Kimberly (high court).

In 2017, the appellant (Deeps Betting) filed three applications against the Gambling Board relating to a
gambling licence issued to Deeps Betting in respect of Erf 4965 in Upington where Deeps Betting
sought an order to amend the erf number on the licence to read Erf 7195, Upington, 23 Scott Street
(the premises). In one of the applications, Deeps Betting and the Gambling Board subsequently reached
an settlement which was made an order of court by this Court in terms of which the Gambling Board
was to grant Deeps Betting permission to conduct bookmaker’s activities at the premises before the
end of March 2019. The gambling licence was not issued.

Later the respondent, (Desert Palace) learnt that the premises was to be rezoned for gambling activities
and filed an application in the high court, which is the subject of this appeal, to interdict Deeps Betting
from operating any gambling activities on the premises, unless a valid gambling licence had been
issued. Deeps Betting filed a conditional counter-application to the main application, seeking to hold the
Gambling Board’s CEO liable for contempt of court and seeking an order to compel the Gambling Board
to issue Deeps Betting with a gambling licence for the premises, in the event the main application
succeeded. The high court through Sieberhagen AJ found in favour of Desert Place in the main
application and Dauds AJ dismissed the counter-application and refused leave to appeal.

The SCA when it dismissed the application for leave to appeal against the order of Dauds AJ stated
that it is generally accepted that an appeal should be restricted to specified grounds of appeal and in
terms of the Superior Court Act 10 of 2013. The SCA further said Deeps Betting should have first
petitioned the SCA and it failed to furnish the Court with cogent reasons as to why the petition was not
filed. On the merits of the appeal the Court held that in terms of sections 78, 79 and 80 of the Northern
Cape Gambling Act 3 of 2008 and regulation 7(c) of the Regulations, Deeps Betting would be acting
unlawfully if it conducted business at the premises without a licence.
~~~~ends~~~~