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The respondent filed the notice to oppose on 9 March promising to file its answering affidavit on 18 March at 16H The answering affidavit was, however, served and filed on the on 19 March On 24 March , the applicants filed their replying affidavit, confirmatory affidavits and heads of argument. The respondent could not file its heads of argument and the matter proceeded on 27 March Secondly, whether the deviation from the prescribed time limits would not prejudice the respondent.
The principle, however, is the same. In the Caledon matter, the respondent was brought to court within 24 hours notice. The court felt that the time was so short that the respondent could not even file an answering affidavit. In casu the respondent was afforded 9 working days within which to file its answering papers. I agree with the submission by Mr Dickerson when he says the respondent has failed to demonstrate that it had been prejudiced by bringing this application by way of urgency.
It is further clear from the above facts that the applicants have succinctly demonstrated the loss they and members of their staff were suffering and continuing to suffer. I therefore hold that the applicants satisfied the requirements of rule 6 12 in bringing this application by way of urgency. Reasons for failure to approve the requests :. The applicants deny that they require the approval of the board in order for them to operate.
Regulation 59 7 provides as follows:. Apart from the profit sharing between a route operator and site licence holder in terms of the agreement between them approved by the board, no route operator may hold a financial interest in the holder of a gambling machine site licence. Regulation 60 8 reads as follows:. No gambling machine site licence may be held by a route operator or by any entity where such route operator has a financial interest: Provided this shall not apply to the profit split between such route operator and gambling machine site licence holder in terms of an agreement between them which has been approved by the board.
He submits that all the Act requires is what is provided in section 49 1 b that there should be an association between the route operator and the site operator. He submits that even regulation 59 7 and regulation 60 8 which are relied upon by the respondent as requiring that the SSAs between the first applicant and the other applicants be approved by the board do not say so. He argues that in interpreting regulation 59 7 of the Act, one has to have regard to its heading and the content of the sub-regulations.
The reading of the sub-regulations indicate that regulation 59 7 concerns the profit sharing between the route and site operators, stipulating further that no route operator may hold financial interest in the holding of a gambling machine licence. He submits therefore that the regulation is not concerned with the approval of SSAs. It prohibits the route operator from deriving any interest or benefit from a site operator other than the profit share which is spelt out and approved by the respondent.
It is the profit share which is the subject of the regulation and it is an exclusionary regulation because it is aimed at stipulating that a route operator may not get anything more than a profit share which has been approved by the respondent.
It requires that no gambling site licence may be held by a route operator or any entity with which such route operator has a financial interest. In other words route operators may not be site operators and it has an exclusionary clause as well which provides that this shall not apply to the profit split between such route operator and gambling machine site licence holder in terms of an agreement between them which has been approved by the board.
That is spelt out in the SSA form which was drafted by the respondent. He contends that even the averment made in the founding affidavit to the effect that regulation 59 7 does not require all the agreements to be individually approved by the board was not controverted by the respondent.
In closing he submitted that the respondent has already approved the nature and format of the SSAs and that is what is required under the Act and Regulations. When the applicants applied to the respondent to approve their licences, the board did all that was required of it in terms of the Act and the Regulations to satisfy that they qualify for the licences hence it approved them.
The respondent therefore on the strength of that approved the SSAs between Luck and the applicants. These SSAs are the same with the SSAs signed between the first applicant and the other applicants except for the variations alluded to above. Therefore, Mr Dickerson submits that there is no need for the respondent to go back to the same process because inevitably the same result would be achieved.
Indeed, the respondent approved them and it was only then that the first applicant and his site operators started to operate the LGMs. Even Luck and its site operators had to seek the approval of their SSAs by the respondent. It was only after such approval that they started to operate. He submits that the plain literal and grammatical meaning should first be applied in interpreting regulation 59 7.
The heading and the provisions of regulation 59 7 pertain to profit sharing. The literal interpretation of regulation 59 7 leads to that conclusion only. Nothing can be read beyond its grammatical meaning. With respect to Mr Motau , I disagree with him when he says that the plain, literal and grammatical meaning of this regulation requires that the respondent should first approve the SSAs.
As pointed out by Mr Dickerson, the heading of the regulation does not refer to the approval of gambling machine site licence except that it deals with the requirements for holding such a licence. The language used in this regulation is clear and unambiguous.
It prohibits the holding of a financial interest in the gambling machine licence by a route operator or any entity. The proviso which is there excludes the profit split which has already been approved by the board between a route operator and a site operator. There is nothing in the reading of the section which requires that the board should first approve the profit share first. As alluded to, it prohibits the holding of financial interest excluding profit share which is contained in the agreement approved by the respondent.
I therefore do not agree with the interpretation given by Mr Motau. To me both regulation 59 7 and regulation 60 8 of the Act deal with the prohibition of holding a financial interest by a route operator. Such split share is contained in the licences of all the site operators which have been approved by the respondent. Furthermore, most of those LGMs were supplied by the first applicant.
All that is needed is to have them reconnected to the CEMs. It was further submitted that the existing link to the CEMs and the site logger will continue to operate as before. The monitoring service provider, Zonke Monitoring Systems Pty Ltd would just reflect the first applicant as the relevant route operator rather than Luck.
This criticism is based on the response of the respondent regarding the duration it would take in processing the requests. Paragraph 3 of the response referred to reads:. You would appreciate that in the light of the unprecedented nature of the application in question, the ECGBB will, amongst other things, create the necessary administrative systems for the consideration of the requests in question.
The respondent, according to the applicants, has the necessary capacity to deal with this matter as it is a mere clerical exercise which could be dealt with expeditiously as the circumstances require. Because the requests were unprecedented, the board had to consider them. The respondent ascribes the delay to the applicants who had failed to furnish the information required from them.
The attitude of the respondent is that it cannot create a bad precedent and sacrifice regulatory compliance at the expense of expediency. Mr Motau submits that the respondent still stands by its reasons as contained in the letter dated 8 February He submits that the reasons submitted are adequate in the circumstances and that the application stands to be dismissed with costs. The applicants rely on the provisions of section 6 2 g read with section 6 3 of PAJA in submitting that the reasons furnished by the respondent are inadequate.
For that reason the applicants request that the provisions of section 5 3 be invoked. Section 5 3 provides that if an administrator fails to furnish adequate reasons for its administrative action, it must be presumed in any proceedings for judicial review that the administrative action was taken without a good reason. Section 5 3 is subject to the provisions of section 4 which are not applicable herein.
The applicants premise their argument on the history of the matter as dealt with above and the inadequacy of the reasons advanced by the respondent for not acceding to the request and the inability to give an indication as to when it would consider the requests. I have already dealt with the said reasons above and the response of the respondent thereto.
I shall be overburdening this judgment if I were to recount them. The latter submission is based on the reasoning of the board that it was considering whether it should refuse the applicants their requests in order to make their sites available to a second route operator. He submitted that that is an impermissible objective and consequently an ulterior motive within the meaning of section 6 2 e ii of PAJA.
He came to that conclusion because the respondent did not take steps to initiate the process of licensing a second route operator. That process would take a period of more than a year. By that time the term of the applicants would have come to an end. The demise of Luck cannot be attributed to them. They have suffered and continue to suffer as articulated above. They have paid their dues in respect of their licences to the respondent.
The negotiations with the board started in October till to date. These negotiations did not bear fruit for reasons advanced. It is further clear from the evidence adduced by the respondent that it is not likely to make a decision any time soon if one has regard to the fact that the respondent does not know how it is going to handle the requests of applicants.
I repeatedly asked Mr Motau during argument as to when does the respondent think it would make a decision regarding the requests. He could not indicate as to when. It is further not clear what action the respondent is to take once all the necessary information is placed before it. That is understandable because the outcome would depend on the information and the report of the committee that is investigating the requests by applicants.
The inevitable result is that the respondent would accede to the request. I say so because unprecedented as it is, the other applicants are valid licence holders of LGMs. They have not transgressed the conditions of their licences. Even Luck itself did not transgress the licence approved by the board. The plight of the other applicants is as a result of Luck being liquidated, something which neither the first applicant nor the other applicants can be blamed for.
Neither of the parties is the author of this situation. It really eludes my mind as to what it is that the respondent needs to investigate in this matter. I am not in the least trying to trivialise this situation. I am aware of the responsibility of the respondent in fulfilling the objectives of the Act, its giving effect to the regulation and specifically its responsibility to prevent any unorthodox manner in its controlling of the gambling industry in the Eastern Cape.
Unprecedented as it is, the issue of the requests in my view needs no investigation. What is it that has to be investigated in the backdrop of what has occurred leading to the other applicants, through no fault of their own, finding themselves without a route operator.
There is nothing therefore to be investigated about them. The LGMs they own and the premises in which they are situated are still intact and have been approved by the respondent. The Site Data Logger and its connection to the Central Electronical Monitoring System which monitors and reports to a route operator in this instance the first applicant can be connected at any time through the use of a computer as alleged by the applicants and not denied by the respondent.
This also does not need any investigations by the respondent. What crowns it all is that the duration left for the licences of the applicants is less than a year. It is so because no wrong or fault can be attributed to them. Even if the SSAs can be approved that would not result in a bad precedent. If there was no space for affiliation with the first applicant I would agree with the proposition by the respondent of considering putting the matter to tender.
The consideration by the respondent of unfair competition is with respect not applicable in casu. The circumstances and the exigency of the matter merit that respondent should have considered the requests on an urgent basis. Accordingly, with the benefit of the input before the board the court was in as good position as the board to reach a decision and the court was moreover faced with the inevitability of the outcome if the board were once again called upon fairly to decide the matter.
Equitable considerations favoured the first respondent including cognisance of the delay in the matter which had in part been caused by the board. The situation the other applicants find themselves in does not concern their licences. It does not even concern any transgressions of the Act or the regulations. Their licences are valid but for the liquidation and lapsing of the licence of Luck who was their route operator.
There is no semblance of evidence suggesting that after the investigations the respondent seeks to conduct, the board would not approve the SSAs they concluded for the remainder of their licences which is less than a year. It would be remiss on my part if I were to refer back this matter for the respondent to investigate or open it to tender. That process is indefinite. The respondent is not able to estimate how long it would take to complete the process and decide on the requests.
Time is not on the side of the respondent or the applicants. The uniqueness of the requests at hand does not merit that and it is inconceivable and not supported by facts that to substitute the decision of the respondent would lead to setting a bad precedent. It is apparent that if these requests were to appear before the board of the respondent it would approve the requests. This exact phrase. In the article. Headings only. In the first paragraph.
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