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The minutes of the Gambling Board meeting stated that MEC was to be informed about this decision, but she had not been informed of it. On the following Monday, she, as MEC, had extended the previous Board's term of office until a new Board was appointed and in place. That new Board had since been approved by Cabinet and would be sworn in shortly. She reiterated that she had, at that time, known nothing about the decision on the Friday. When she had heard what had happened, she, together with the executive and legal team, took the decision to put the whole Board on cautionary suspension.

She had informed the Board, in two letters, that this Board should take no decisions of this nature in its last two months of office. The Board had clearly blatantly ignored the letters. Ms Scott then filed for an interdict and also retracted her extension of term of office of the board. The current situation was not to do with the suspension of the Board, but its decision to issue the EBTs. Not only was this contrary to instructions, but there was also no technical report stating how the decision was made nor the criteria used to select EBTs.

At the moment, there was no regulatory guidance from the National Board and the provinces were "doing their own thing". She reminded the Committee that the lottery as a whole was managed by the Lotteries Act. The National Lotteries Board was not doing its job. In Mpumalanga, there had been approval of something that was not a lottery, and no action was being taken.

She herself had received many applications for extension of licences that also wanted to include lotteries, but she had refused them. Ms Scott also told the Committee that internet gambling could not be regulated on a provincial level. The Minister of Trade and Industry had excellent ideas on managing internet gambling through the banking sector. The only reason the internet gambling was allowed in South Africa SA was that it was easy for it to happen although the country was not receiving the revenue, and owners of the internet gambling activities were from abroad, were not paying tax to South Africa and were taking South African money.

South Africa did not have the same strict regulations as other countries. Ms Scott also felt that the Open Bet was a contentious issue that should never been allowed in South Africa. She said that the book makers were acting as parasites on people who were supposed to get the total bet, so the one industry was preying on and feeding off another. Failing to protect the industry that paid the provincial revenues was serious.

The provinces were asking the national level to take Open Bet out of legislation, and this, she asserted, was not only her own opinion but was shared by Phumelela Gaming and other horse race authorities. She told the Committee that one way the Open Bet could be allowed was by imposing high taxation so that Open Bet could become less favourable, but she suggested that she did not want to take that route whilst Open Bet was still acknowledged at national level.

He agreed with Ms Scott that the provinces were being left to do their own thing, and said he thought that there was not enough interaction between the National Gambling Board and the provincial Gambling Boards, adding that it also seemed as if the provincial gambling boards did not like interference from the National Board. He stated that, from a legislative point of view, there must be a stronger involvement of the National Gambling Board on a provincial level.

Mr Macpherson asked for the specifics on the Public Protector's report and also wanted clarity as to how the provinces were dealing with EBTs. He informed the Committee that in October he received a letter from the Minister that confirmed that no gambling framework existed, but this problem was resolved by the National Gambling Council which had then stated that no further EBTs would be rolled out until the framework was put in place.

Mr Macpherson wanted to know if there was any communication between the Committee and the Minister regarding EBTs, as there were conflicting statements made by the both the Committee and the Minister on the moratorium and the issuing of EBTs. Ms Scott noted that, having received the report from the Public Protector, she had instituted her own forensic investigations on all allegations raised.

With all due respect, she had cooperated with the Public Protector. She had a meeting set up with the Regional Head of the Public Protector's office, to inform the Public Protector about progress on her own forensic investigation. The first was the financial disclosure by the Gambling Board, to avoid any conflict of interest, and the second had to do with allegations that members of the Board had interests in bingo operations.

The forensic investigation was being done by Internal Audit. To date, Ms Scott had cooperated with the Public Protector. A meeting would be held with the Public Protector in the second week of April. Mr Barry Wilkinson, Deputy Manager: Gaming and Betting, KwaZulu Natal Provincial Government, advised that he believed that there was some interaction between the National and Provincial gambling boards, as the Gambling Review Council's report had shown the difference in the regulation of gambling at national and provincial level.

The provinces harnessed gambling to get benefits like profit, investments, tourism among many. He also stated that all provincial board were represented on the national level. Ms Zodwa Ntuli,Deputy Director General, Department of Trade and Industry, informed the Committee that the draft policy, which had already been tabled before the Portfolio Committee and the Select Committee, stated that it would be important to strengthen coordination between Parliaments at national and provincial level.

This policy had been submitted for Cabinet approval and, if adopted, would have to then go to public consultation. He asked how many of those slot machines were situated outside the casino areas. He also stated that in the Western Cape there was a movement saying that outside-metro casinos were not profitable, and questioned if there had been similar claims in KZN, and asked for the view of the MEC on this point. He also sought clarity on the current case, its applicant, and the claims.

Ms Scott said that she did not know how many machines were outside casino areas. She also said that Limited Payout Machines LPMs were found in liquor stores and bars, and slot machines in casinos, rather than being found in the community.

When she had entered office, there had been 22 bingo operators in KZN, but since then, unbeknown to her, over the last few months a lot more had become functional, through LPMs, and not through EBTs. The case essentially sought to make the EBT approvals that were issued on the Friday mentioned earlier invalid, but she could not say more, as the case was sub judice.

Mr Nkomo agreed that no substantive details could be given. The MEC was asking that the decision of the Board be set aside. The Board Members were challenging their suspension by the MEC, despite the fact of the written communications between the MEC, Premier and Board warning the Board not to make important decisions in their last two months of office.

Ms Ntuli told the Committee that there was a need to ensure that electronic bingos were not in the catchment areas and that they did not affect the casinos. The Chairperson thanked the MEC for the information. She also informed the Committee that 40 casino licences were issued at the national level for all nine provinces.

KwaZulu had used all five that it was allocated, although other provinces had not done this; this was something that perhaps the Committee could look into. EBTs fall in a vacuum as they did not have limitation on their winnings. He informed the Committee that KZN did not have the same problem as Western Cape on outside-metro casinos not making profit. Ms Ntuli confirmed that 40 casino licence were indeed issued for all the provinces, and now North West needed one but the national body was unable to take back unused licences from other provinces as there was no regulation on this matter.

One of the recommendations of the Gambling Review Commission had been that if a licence was issued but not used within a certain period, it could be taken back from that province. She also informed the Committee that the national body allocated a number of licences to the provinces but did not determine if those licences were utilised, or how, and when they must be utilised. She also informed the Committee of the Minister's draft policy on gambling, which focused on the existing modes of gambling, and on how these modes could be strengthened and regulated.

The Chairperson asked what the national legislation said about EBTs. The policy of the country envisaged traditional bingos, since the National Gambling Council had imposed a moratorium so that if a slot machine took the form of an EBT, it must not be recognised until a framework had been formulated to recognise it as slot machine. Even despite that moratorium, some provinces still went ahead and amended their provincial legislation, contrary to the national policy.

She further added that the EBTs and slot machines had unlimited winnings. The Chairperson wanted to know if there was any incentive for a Gambling Board, when it issued gambling licences extensively, and whether the revenues would go directly to the province. Mr Macpherson wanted to know how the Committee could take Open Bet out of legislation, seeing that the Constitutional Court had ruled in favour of it, in , in the Phumelela case. This reasoning was sought to be extrapolated to the procurement activities of Transnet.

Some of its actions are administrative. Others are not. Thus, so proceeded the argument, when Transnet invites tenders for the supply of locomotives, it acts administratively. But when it invites tenders for toilet paper or, as in this case, gold watches, it does not. I fail to see how such a distinction is to be drawn, particularly where, as in this case, the purchase of watches is clearly incidental to the exercise of Transnet's general powers.

The gold watches are bought so that they may be used to secure the loyalty of employees, much as salaries are paid to secure their services. For the reasons given I am of the view that the actions of Transnet in calling for and adjudicating tenders constituted administrative action, whatever contractual arrangements may have been attendant upon it. If that were correct, every applicant for a permit would likewise have no right or interest.

For instance, reasons given may tell a tenderer that his goods did not comply with the specification. He, knowing that they did comply, would then be able to take the matter further. Without reasons he might be without remedy. It is inconceivable that the applicant can be allowed to put in a completely non-responsive tender, accept that such tender has been rightly rejected and then thereafter be heard to complain about the process and a right to have the process set aside so as to enable a fair tender process to thereafter unfold to give it a second bite at the cherry.

A tenderer not meeting those requirements has no interest in the outcome of the tender because it would never be entitled to be awarded the tender in the first place. Admittedly the facts in Giant Concerts differ from the facts of this case but, in my view, the principles are the same. In Giant Concerts the importance of the interest required was stated thus:. The very point of that process is to identify objections, to afford them expression, and then to evaluate and consider them.

It is not logical to assert that an own-interest standing qualification arises from participation in a process if the objection remains hypothetical and academic. This Court went on to say that:. It said:. 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.

It does not appear to me that this is a case which cries out for that. In saying this, I am not suggesting that on the merits the challenge is necessarily without merit but I do so because: a the two bidders appear to have been neck and neck in the competition for the tender; b both bidders were accepted as technically capable of doing the job properly; and c time is of the essence in regard to the installation and replacement of the steam generators and, if the steam generators are not installed and replaced on time, there may be severe consequences for the country in regard to nuclear energy.

Furthermore, Areva has been working on the project for the past two years and there is not much left before the time by when the installation and replacement of the generators is required to have been completed. That direct and substantial interest means that its existing bid must qualify to be entitled to be considered in a subsequent bidding process, fairly conducted, and that its consideration has fair prospects of success.

On the facts of the present case the present bid put up by the applicant does not meet the requirements. That much is common cause. Therefore on the bid document as it currently stands the applicant cannot establish that it has a direct and substantial interest in the outcome of this litigation. As was said in Giant Concerts it does not mean that an unlawful decision remains an illogical consequence.

If the right person in the right proceedings seeks the right remedy the decision may well be subject to review and setting aside. The applicant is not the right person and these are not the right proceedings and it does not, in these proceedings, seek the right remedy. In approaching that question Mr Nash's contention that the fee agreement is unlawful must be assumed to be correct.

If it is correct, then some amounts that have been paid to Mr Mostert as curator may have to be disgorged and repaid to the Sable Fund. Any resulting surplus accruing in the Sable Fund will fall to be distributed in accordance with a scheme of apportionment of surplus under s 15B of the PFA. As Mr Nash claims to have been a member of the Sable Fund before the impugned transactions were undertaken and Midmacor was the principal employer, they would potentially at least be entitled to benefit from such an apportionment.

That seems to me to be more than sufficient to give them own-interest standing to pursue these proceedings. He then characterises their respective positions as a charade. That overlooks two things. First, it ignores the requirement that the allegations by the parties claiming standing must be accepted as correct, as standing is an issue to be determined in limine before the merits are addressed. Second, it requires us to enter upon and determine the merits of Mr Mostert's contentions about the nature of the arrangements and determine whether they were unlawful, criminal or a charade.

As noted in [6], it is inappropriate for us to do so. That is not the question before us; it is before another court and it is impossible to resolve the factual disputes on these papers. The issue is the validity of the fee agreement between the curator and the FSB. There are no trustees to protect the interests of persons such as pensioners, former members or a former principal employer. The invalidity of the fee agreement is directed at recovering funds for the Sable Fund that would in turn form part of a surplus in the fund available for distribution in accordance with a surplus-apportionment exercise.

That provides a sufficiently direct and substantial interest in the outcome of the litigation to confer standing on Mr Nash and Midmacor. It lies in s 5 8 of the FI Act, which provides:. This section is clearly addressed to the question of standing and not necessarily a possible review regime distinct from PAJA, an issue debated in argument that we do not need to decide.

It is couched in wide language 'any person' and requires only that good cause be shown for challenging a decision or action by either the curator or the Registrar. The conclusion of the fee agreement is an action by the curator and the FSB in connection with the control and management of the Sable Fund. The claim that they lacked locus standi to bring these proceedings must be rejected.

And the rule applies to wrongful acts which affect the public as well as to torts committed against private individuals. It concerns the question whether the specific litigant who is before the court is the person who should be allowed to challenge the validity of the action in question. There are various reasons for imposing restrictions on the specific litigant who may approach a court for relief. Firstly, the concern for scarce state resources spent on adjudicating and defending such actions requires the exclusion of mere busybodies from challenging every conceivable action of the state.

Secondly, because of the doctrine of stare decisis , it is important that the courts be presented with the most capable arguments on the specific legal issues at stake; not everyone will be capable of doing so. Thirdly, the court has a specific role to play in the trias politica model. Should there be no or few restrictions on standing, it would have an effect on the role of the court vis-a-vie the other branches of government.

One approach to these difficulties would be to impose stringent requirements in relation to standing, allowing only those who are personally and directly affected to challenge the validity of administrative action.

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For instance, reasons given may tell a tenderer that his goods did not comply with the specification. He, knowing that they did comply, would then be able to take the matter further. Without reasons he might be without remedy. It is inconceivable that the applicant can be allowed to put in a completely non-responsive tender, accept that such tender has been rightly rejected and then thereafter be heard to complain about the process and a right to have the process set aside so as to enable a fair tender process to thereafter unfold to give it a second bite at the cherry.

A tenderer not meeting those requirements has no interest in the outcome of the tender because it would never be entitled to be awarded the tender in the first place. Admittedly the facts in Giant Concerts differ from the facts of this case but, in my view, the principles are the same. In Giant Concerts the importance of the interest required was stated thus:. The very point of that process is to identify objections, to afford them expression, and then to evaluate and consider them.

It is not logical to assert that an own-interest standing qualification arises from participation in a process if the objection remains hypothetical and academic. This Court went on to say that:. It said:. 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. It does not appear to me that this is a case which cries out for that. In saying this, I am not suggesting that on the merits the challenge is necessarily without merit but I do so because: a the two bidders appear to have been neck and neck in the competition for the tender; b both bidders were accepted as technically capable of doing the job properly; and c time is of the essence in regard to the installation and replacement of the steam generators and, if the steam generators are not installed and replaced on time, there may be severe consequences for the country in regard to nuclear energy.

Furthermore, Areva has been working on the project for the past two years and there is not much left before the time by when the installation and replacement of the generators is required to have been completed. That direct and substantial interest means that its existing bid must qualify to be entitled to be considered in a subsequent bidding process, fairly conducted, and that its consideration has fair prospects of success. On the facts of the present case the present bid put up by the applicant does not meet the requirements.

That much is common cause. Therefore on the bid document as it currently stands the applicant cannot establish that it has a direct and substantial interest in the outcome of this litigation. As was said in Giant Concerts it does not mean that an unlawful decision remains an illogical consequence. If the right person in the right proceedings seeks the right remedy the decision may well be subject to review and setting aside.

The applicant is not the right person and these are not the right proceedings and it does not, in these proceedings, seek the right remedy. In approaching that question Mr Nash's contention that the fee agreement is unlawful must be assumed to be correct. If it is correct, then some amounts that have been paid to Mr Mostert as curator may have to be disgorged and repaid to the Sable Fund.

Any resulting surplus accruing in the Sable Fund will fall to be distributed in accordance with a scheme of apportionment of surplus under s 15B of the PFA. As Mr Nash claims to have been a member of the Sable Fund before the impugned transactions were undertaken and Midmacor was the principal employer, they would potentially at least be entitled to benefit from such an apportionment.

That seems to me to be more than sufficient to give them own-interest standing to pursue these proceedings. He then characterises their respective positions as a charade. That overlooks two things. First, it ignores the requirement that the allegations by the parties claiming standing must be accepted as correct, as standing is an issue to be determined in limine before the merits are addressed. Second, it requires us to enter upon and determine the merits of Mr Mostert's contentions about the nature of the arrangements and determine whether they were unlawful, criminal or a charade.

As noted in [6], it is inappropriate for us to do so. That is not the question before us; it is before another court and it is impossible to resolve the factual disputes on these papers. The issue is the validity of the fee agreement between the curator and the FSB. There are no trustees to protect the interests of persons such as pensioners, former members or a former principal employer. The invalidity of the fee agreement is directed at recovering funds for the Sable Fund that would in turn form part of a surplus in the fund available for distribution in accordance with a surplus-apportionment exercise.

That provides a sufficiently direct and substantial interest in the outcome of the litigation to confer standing on Mr Nash and Midmacor. It lies in s 5 8 of the FI Act, which provides:. This section is clearly addressed to the question of standing and not necessarily a possible review regime distinct from PAJA, an issue debated in argument that we do not need to decide.

It is couched in wide language 'any person' and requires only that good cause be shown for challenging a decision or action by either the curator or the Registrar. The conclusion of the fee agreement is an action by the curator and the FSB in connection with the control and management of the Sable Fund. The claim that they lacked locus standi to bring these proceedings must be rejected.

And the rule applies to wrongful acts which affect the public as well as to torts committed against private individuals. It concerns the question whether the specific litigant who is before the court is the person who should be allowed to challenge the validity of the action in question. There are various reasons for imposing restrictions on the specific litigant who may approach a court for relief.

Firstly, the concern for scarce state resources spent on adjudicating and defending such actions requires the exclusion of mere busybodies from challenging every conceivable action of the state. Secondly, because of the doctrine of stare decisis , it is important that the courts be presented with the most capable arguments on the specific legal issues at stake; not everyone will be capable of doing so. Thirdly, the court has a specific role to play in the trias politica model. Should there be no or few restrictions on standing, it would have an effect on the role of the court vis-a-vie the other branches of government.

One approach to these difficulties would be to impose stringent requirements in relation to standing, allowing only those who are personally and directly affected to challenge the validity of administrative action.

The consequence of such an approach, which casts the court in the role of settler of private disputes in the public law field the same as in private law is of course that many serious legal breaches by state authorities will go by without any person being able to challenge their validity. In my view that decision had no direct negative effect vis-a-vis the applicant. Mr Rall also suggests that the extremely short time period within which the applicant was given to respond a period of some four days was suggested was also something worthy of review because had a more generous open tender process been followed the registered owner of the property and here I assume he refers to the Trust could have entered the process and put in a properly responsive bid.

In my view neither of these submissions have merit. Vahed J. Case information. Date of Judgment : 9 November Tel: Ref: M Govender. Minerals, coal, sugar, and grain are exported, and oil is refined and piped to Johannesburg. After World War I Durban changed from a prim Victorian town to a modern metropolis with skyscrapers and multistoried buildings.

Durban with adjacent Pinetown has a larger Indian population than white; the area contains one of the largest concentrations of Indians in South Africa. Ntuzuma, Umlazi , and Embumbulu districts to the immediate west were developed as black mostly Zulu commuter suburbs. Many blacks were moved from Durban to these areas in the late s under apartheid policies.

Durban is administered by the Ethekwini municipality. Durban Article Media Additional Info. Print Cite verified Cite. While every effort has been made to follow citation style rules, there may be some discrepancies. Please refer to the appropriate style manual or other sources if you have any questions.

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