Gambling board’s Tsogo Sun conditions unlawful
Stringent decisions made by the Western Cape Gambling & Racing Board relating to Tsogo Sun Gaming’s casino operating licences and its Broad-Based Black Economic Empowerment (B-BBEE) framework have been declared unlawful and invalid.
A Cape Times report says this comes after the SCA upheld an appeal application by the Caledon, Garden Route and Mykonos casinos – which fall under the Tsogo Sun group in the Western Cape – arguing that new conditions imposed by the board were done ‘in blanket fashion’ instead of doing individual assessments that would apply to each licensee (see Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board & Another).
The conditions required the appellants to ‘achieve an overall rating of level four in terms of the tourism scorecard’ and to submit related documentation to the board.
The conditions imposed by the board required the appellants to achieve and maintain a level four status under the B-BBEE framework.
According to court documents, the section which was declared unlawful and invalid by the SCA read that the licence holder shall achieve an overall rating of level four in terms of the tourism scorecard, and should submit to the board ‘three calendar months before the expiry date of its licence, a B-BBEE rating verification certificate which is not older than 12 months, from an accredited institution, along with its renewal application of the relevant licence.’
The Cape Times report says SCA Judge Trevor Govern ruled: ‘There is no dispute that decisions of the board amount to administrative action under the Promotion of Administrative Justice Act 3 of 2000 (Paja). This means that such decisions are susceptible of review under both Paja and the principle of legality. As to the latter, it is trite that the board, being a statutory body, is limited to the powers accorded to it in legislation. If an entity exceeds the powers accorded it in making a decision, the decision is unlawful. It has no power to make the decision and such decision would be ultra vires. Sadly, the board appears to have elevated what is really a policy into an immutable rule which it applied indiscriminately to all licence holders regardless of their circumstances.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
