THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No.68/2000
In the matter between:
THE NATIONAL GAMBLING BOARD
Appellant
and
THE FREE STATE GAMBLING BOARD
1st Respondent
THE PREMIER OF THE FREE STATE
PROVINCE
2nd Respondent
THE MEMBER OF THE EXECUTIVE
COMMITTEE FOR ECONOMIC AFFAIRS
FINANCE AND REVENUE OF THE FREE STATE
3rd Respondent
THE MINISTER OF ECONOMIC AFFAIRS
OF THE RSA
4th Respondent
THE MINISTER OF SAFETY AND SECURITY
OF THE GOVERNMENT OF THE RSA
5th Respondent
99 OTHER RESPONDENTS
6th to 104th Respondent
Court:
VIVIER, HARMS, SCHUTZ, SCOTT and CAMERON JJA
Heard:
19 MARCH 2001
Delivered:
26 MARCH 2001
Subject:
Gambling: special licences for gambling machines
JUDGMENT

HARMS JA/
HARMS JA:
[1] Is a special gambling licence, say for slot machines, issued in
terms of the Free State Gambling and Racing Act 6 of 1996 so special that its
other provisions or those of the National Gambling Act 33 of 1996 do not
apply to it?  Lichtenberg JP answered the question in the affirmative.
Dissatisfied, the National Gambling Board sought leave to appeal but despite
his finding that there were reasonable prospects of success the learned Judge
refused leave because, according to him, the Board had no interest in the
matter and therefore no locus standi.  The Board then sought the leave of this
Court which in turn referred the application for argument and the parties were
instructed to argue the merits of the appeal at the same time.
[2] Casinos, racing, gambling and wagering (excluding lotteries and
sports pools) are functional areas of concurrent national and provincial
legislative competence (schedule 4 of the Constitution) which means that both
the national and provincial legislatures have original legislative competence in
respect of these matters and the one does not have precedence over the other.
In interpreting such legislation regard should be had to s 150 of the
Constitution:
“When considering an apparent conflict between national and provincial legislation, or between
national legislation and a provincial constitution, every court must prefer any reasonable

interpretation of the legislation or constitution that avoids a conflict, over any alternative
interpretation that results in a conflict.”
Only in the case of a real conflict the one may prevail over the other, which
one depending upon the circumstances (s 146 of the Constitution; cf s 126(3)
of the interim Constitution).  As will become apparent there is, as far as this
judgment is concerned, no such conflict.
[3] The National Gambling Board (hereinafter referred to as “the
National Board”) is a body established by the National Gambling Act (“the
National Act”) and, with a view to the effective regulation of certain matters
relating to casinos, gambling and wagering, one of its objects is to promote
uniform norms and standards applying generally throughout the Republic (s
10(a)).  In order to achieve its objects -
“(a)
. . .
(b)
the Board shall from time to time advise the Minister on the maximum number of any kind
of gambling licences to be awarded in the Republic or in any one province;
(c)
the Board may advise and provide guidelines to the provincial authorities on the regulation
and control of gambling or wagering activities, including-
(i)
the manner and nature of the regulation and control of gambling
activities in general or in connection with a specific gambling activity;
(ii)
the granting, issuing, suspension, withdrawal and amendment of
gambling licences;

(iii)
the criteria to be complied with before any gambling licence is
granted;
(iv) -(vi)
. . .
(vii)
the types, minimum standards and qualities of gambling equipment
which may be used by any licensee; . . ..”
(S 11 with added underlining.)  It should already be noted that the Act does
not define or limit the concept of “gambling licence” although “gambling” is
defined in very wide terms to include the playing of any game played with
gambling machines or gambling devices for money (s 1).
[4] The National Act also provides for a general policy underlying
gambling in the Republic.  The following paragraphs of s 13(1) are of
significance for present purposes:
“(1)
Subject to the provisions of this Act, gambling in the Republic shall be regulated in
accordance with the following principles:
. . .
(i)
matters relating to gambling activities shall be performed in accordance with
norms and standards determined by the Minister, with due regard to the findings and
recommendations of the Board, by regulation made in terms of section 17 (1) (b);
. . .
(k)
the maximum number of gambling machines, other than gambling machines in
casinos, which may be licensed in the Republic or in any particular province shall be prescribed
by regulation made in terms of section 17;

(l)
gambling machines referred to in paragraph (k) shall be linked to a central
electronic monitoring system for the purposes of the monitoring and detection of significant events
associated with each gambling machine;
. . ..”
[5] During 1998, before any regulations were made in terms of s 17
and before a central electronic monitoring system was established, the Free
State Gambling and Racing Board (“the Free State Board”) invited
applications for special licences for the operation of slot machines  (a type of
gambling machine) in the Free State for a period of one year.  A large number
of applications were made and deposits paid.  This upset the National Board
and it prevailed upon the Free State Board to launch an application in the High
Court for a declaratory order to the effect (although not so worded) that it was
not entitled to issue special licences before the promulgation of the s 17
regulations and the functioning of the central monitoring system.   The National
Board was joined as the first respondent and it filed an affidavit in support of
the relief sought.  Apart from other interested public bodies and functionaries,
each of the ninety-nine applicants was cited as further respondents.  One of
them (the fourteenth respondent) brought a counter-application for an order
obliging the Free State Board to consider all the pending applications for
special licences without delay and to inform the applicants of the outcome of

Relevant regulations have since been promulgated (RG 6977
published in the Government  Gazette of 21 December 2000) but they do not
affect the outcome of the appeal.
their applications. 1
[6] The Court below dismissed the Free State Board's application
and granted the counter-application.  In order to understand its reasoning it is
necessary to turn to the Free State Gambling and Racing Act (to be referred
to as the “Free State Act”) under which the Free State Board was established.
Chapter 3 deals with licencing.  Section 21 states that no licence can be
granted under the Act unless the Free State Board takes cognisance of the
provisions of or norms and standards determined under the National Act and
recommendations of the National Board under that Act which may relate to the
granting of such licence.  The word “licence” is defined in s 1 as a licence
referred to in s 23 and the latter lists the kinds of licences that may be granted,
including casino and limited gaming machine operator or site licences.  (As an
aside, gaming machines are defined in similar terms as gambling machines in
the National Act.)  Section 24 deals with the general requirements of licence
applications, s 25 with application fees, s 26 with objections, s 27 with the fact
that applications and objections should be open to public inspection, s 28 with
investigations and police reports and s 29 with temporary licences in respect
of incomplete premises.  The special requirements relating to the types of

licences listed in s 23 are set out successively in sections 30 to 37.
[7] Thereupon follows s 38 which deals with special licences:
“(1)
Notwithstanding any other provision of this Act, the board may, on application in the
manner determined by the board, issue to any person, for specified dates, a special licence,
subject to such conditions as the board may determine.
(2)     The provisions of sections 24 and 26 shall not apply in respect of an application referred
to in subsection (1).”
Special licences are not listed in s 23.  Relying upon the opening phrase of ss
(1), the Court below held that this section stands completely independently of
the rest of the Act;  the provisions of the National Act and the Free State Act
relating to the gambling industry as a whole could not be applicable to special
licences; consequently, special licences for gambling machines can be granted
irrespectively of any other provision of the Free State Act or those of the
National Act.
[8] Before considering the reasoning, it is necessary to determine
whether the Free State Board's invitation to the public to apply for special
licences which would be valid for a period of one year was in any event
beyond its competence.  A licence for a period of say, one year, is not one for
“specified dates”.   A date in the context of s 38 is a specified day and not an
extended period such as a year.  The consequences of a contrary approach
can be illustrated by way of a simple example.  The National Act provides in

s 13(1)(j) that the maximum number of casino licences that may be granted in
the
Free State is four. (It was not suggested that this created a conflict with the
Free State Act.)  However, on the Free State Board's approach, if it so wishes,
it may grant any number of casino licences provided it is done under s 38 for
“specified dates”, even be they ten or fifty years.   The object of the section
is to make provision for ad hoc licences and not to enable the Board to
circumvent the other provisions of the Act.  It follows that the Free State
Board was not entitled to invite or consider applications, and eventually issue,
special licences for a period of a year.
[9] Reverting to the judgment of the Court below, the fallacy which
underlies it is to be found in the assumption that a special gambling licence is
not a gambling licence as envisaged by s 23, and that s 21 does not apply to
it.  In my judgment such a licence is only special in the sense that it is be for
specified dates.  The opening words of s 38(1), “notwithstanding any other
provision” must be read in context and, if so read, merely qualify “for
specified dates”.   The “other” excluded provisions are those like s 29 which
deals with temporary licences in respect of incomplete premises or s 52 which
deals in general terms with the duration of licences; both are inapplicable to

special licences.  Because of the limited term and operation of special licences,
the Free State Board may determine the manner of the application (s 24 is
excluded), and the formalities relating to objections do not apply (s 26 is also
excluded).  But since it remains a gambling licence it has to comply with the
general provisions of the Act.   Were it otherwise, serious anomalies would
arise.  Contraventions of licence conditions would not be punishable because
s 86, which deals with offences relating to licences, refers to licences in general
terms.  Likewise, any person disqualified to hold a licence in terms of s 22
would nevertheless be qualified to hold a special licence.
[10] Since s 21 obliges the Free State Board to take cognisance of the
provisions of or norms and standards determined under the National Act, the
next question to consider is whether it has done so.  The underlined words in
s 11 (referred to in par 3 above) make it abundantly clear that the National Act
is intended to apply to any kind of gambling licence.  Whether specially or
otherwise licenced, the maximum number of gambling machines is to be
prescribed in ministerial regulations and to be linked to a central monitoring
system.   Unless the necessary regulations prescribe the maximum number of
gambling machine licences for the Free State and until the central monitoring
system is in place, the Free State Act could not have been implemented in
relation to gambling machines.   By undertaking to issue special licences in the

absence of the regulations and a central monitoring system, the Free State
Board acted prematurely and beyond the scope of its authority.  I do realise
that this interpretation may limit the field of application of special licences but
that would fit into the general scheme of the Act.  I do not believe, for
instance, that these licences were ever intended to be issued in respect of a
casino.
[11] It follows that the Court below erred in dismissing the Free State
Board's application and in granting the counter-application.  Instead, it should
have issued a declaration in favour of the Free State Board and the counter-
application should have been dismissed.
[12] A complicating factor in upholding the appeal at this stage is that
the Free State Board (the original applicant) declined to appeal and that the
National Board (a respondent which did not ask for relief but supported the
application) wishes to do so.  As mentioned, Lichtenberg JP held that the
National Board had no interest in the litigation and that it can therefore not
appeal.
“The question of locus standi is in a sense a procedural matter, but it is also a matter of
substance. It concerns the sufficiency and directness of interest in the litigation in order to be
accepted as litigating party (Wessels en Andere v Sinodale Kerkkantoor  Kommissie van die
Nederduitse Gereformeerde Kerk, OVS 1978 (3) SA 716 (A) at 725H; Cabinet of the
Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369

(A) at 388B-E). The sufficiency of interest is 'altyd afhanklik van die besondere feite van elke
afsonderlike geval, en geen vaste of algemeen geldende reëls kan neergelê word vir die
beantwoording van die vraag nie . . . .' (Jacobs en 'n Ander v Waks en Andere 1992 (1) SA
521 (A) at 534D).”
Gross and Others v Pentz 1996 (4) SA 617 (A) 632 B-D.  The learned Judge
relied upon the fact that it does not lie within the competence of the National
Board to grant special licences. That misses the point.  That Board cannot
issue any gambling licences, special or otherwise.  It nevertheless has a direct
and material interest in the matter.  Such interest appears from the provisions
of s 21 of the Free State Act.  Moreover, its interest is apparent from its
objects and functions, some of which have already been mentioned.  It is
deeply involved in the administration of and policing under the National Act.
It has a say before generally applicable regulations may be promulgated.
[13] A related argument upheld by the Court a quo is that since this
Board was not an applicant, neither the dismissal of the application nor the
grant of the counter-application were orders made against it; it has nothing to
appeal against.  The point is without substance.  Since I have held that the
National Board has an interest in the order and that it was adversely affected
thereby, it has to follow that it is entitled to appeal.  That would have been the

position even if it were not a party to the application because it is recognised
that a third party may, depending on his interest in the matter, appeal against
a judgment in a suit inter alios, i e between other parties (Voet 49.1.3; Kethel
v Kethel's Estate 1949 (3) SA 598 (A) 602;  Amalgamated Engineering
Union v Minister of Labour 1949 (3) SA 637 (A) 652).  As the latter case
illustrates, it happens not infrequently that a court of appeal orders the joinder
of a non-party for purposes of the appeal.  That person can then join either as
appellant or respondent or may abide the decision of the court.  The fact that
the National Board was not originally cited as co-applicant is also of no
consequence.  Parties with joint interests may be joined either as applicants or
respondents: cf Isaacs Beck's Theory and Principles of Pleadings in Civil
Actions 5th ed 14.  For instance, if a co-owner wishes to interdict a third party
from infringing their joint proprietary rights, he can join the other co-owner
either as applicant or respondent, and in either event the interdict will be
granted in favour of both owners.
[14] It follows that the Court below  erred in dismissing the application
for leave to appeal.  The National Board is entitled to its costs in this regard in
that Court against all those who had joined in opposition.  Normally it would
also have been entitled to such costs in this Court.  The case before us justifies
a departure from the normal rule.  Entwined with the application for leave to

appeal is a misconceived application for condonation which relates to the
proceedings before the Court below and which is of no concern to us.  In
addition the application does not comply with the rules because it is not
succinct and to the point and was accompanied by a mass of unnecessary
documents.  To signify our disapproval I propose to make no order in relation
to these costs.
[15] In respect of the main application, a costs order  was made
against the Free State Board in favour of the applicants for licences who took
part in the proceedings. The National Board did not ask for costs and
consequently no order was made for or against it.  It is bound by that election.
In the absence of an appeal by the Free State Board and since the National
Board has no interest in the costs order against the Free State Board, this order
has to stand.
[16] The costs of the appeal should be borne by those respondents
who took part in the appeal.  They are Respondents fourteen, seventy-eight
and ninety.  The costs of two counsel are justified.
[17] In the result the following order is made:
(a)
The application for leave to appeal is granted, each party to bear its own
costs.
(b)
The appeal is upheld to the extent that par 1(a) and 2 of the order of the

Court below are set aside and substituted with an order
(i) declaring that the applicant is not entitled to consider or award the
special slot machine licences applied for by the 6th to 104th respondents
(ii) dismissing the counter-application of the fourteenth respondent.
(c)
The costs of the application for leave to appeal before the Court below
(including the costs of two counsel) are to be paid by the 14th, 23rd,
26th, 37th, 42nd, 46th, 59th, 78th, 85th and 90th respondents jointly.
(d)
The costs of appeal (including the costs of two counsel) are to be paid
by the 14th, 78th and 90th respondents jointly.
____________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
VIVIER JA
SCHUTZ JA
SCOTT JA
CAMERON JA