The North West Gambling Board (the Board) invited applications for bingo licences in the North West Province pursuant to the North West Gambling Act 2 of 2001 and published a Request for Applications (RFA) in October 2015. The Board received applications from various entities including Jonoforce (Pty) Ltd, Latiano 560 (Pty) Ltd, Galaxy Bingo Moruleng (Pty) Ltd (previously Metro Gaming and Entertainment) and Galaxy Bingo North West (RF) (Pty) Ltd. After a public hearing process, the Board granted bingo licences to Jonoforce and Latiano. Peermont Global (North West) (Pty) Ltd, a casino operator in the province, objected to the licences on the basis that bingo operations would negatively impact its casinos. The Galaxy entities applied for licences but were unsuccessful. Both Peermont and the Galaxy entities challenged the Board's decisions through internal review proceedings before the North West Gambling Review Tribunal (the Tribunal), which dismissed their applications. They then launched review applications in the high court, which also dismissed their applications. The applicants appealed to the Supreme Court of Appeal.
All three appeals dismissed with costs, including costs of two counsel.
The binding legal principles established are: (1) An administrative decision-maker's election to follow a particular procedure that accords with statutory requirements stands unless competently challenged and set aside. A party cannot rely on an unchallenged administrative decision as a ground of review (applying Oudekraal and Merafong principles). (2) Where an administrative body is given discretion to determine procedures and requirements, interested parties must comply with those requirements within prescribed timeframes. Non-compliance cannot later be relied upon as procedural unfairness. (3) The test for whether compliance with statutory requirements is material is whether what was done constituted compliance with the provisions viewed in light of their purpose, not rigid textual compliance (applying African Christian Democratic Party v Electoral Commission). (4) In administrative law review, the distinction between appeal and review must be maintained. A reviewing court may not substitute its assessment of facts or weighing of evidence for that of the decision-maker. Contestable factual matters are not grounds for review. A decision is reviewable for mistake of fact only where the facts are material, objectively established, and objectively verifiable. (5) Where legislation uses broad language such as including games operated 'in whole or in part by electronic means', courts should interpret this according to the clear legislative intention and not restrictively based on historical or traditional understandings. (6) Administrative processes may properly be conducted in stages, with different issues determined at different stages. Review of decisions may be premature if they relate to approvals that have not yet been sought or granted. (7) In evaluating competitive applications, administrative bodies may properly use scoring as a guide but are not bound by arithmetic scoring alone. They may exercise discretion considering broader policy objectives, provided this does not amount to fettering of discretion and each application is independently considered. (8) Transformation objectives including B-BBEE, opening sectors to new entrants, and empowerment of PDIs, particularly women, are legitimate policy considerations that may rationally be given significant weight in licensing decisions. (9) The test for bias is objective: whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the adjudicator did not bring an impartial mind to bear on the adjudication. Asking clarifying questions, even if uncomfortable for an applicant, does not establish bias.
The Court made several non-binding observations: (1) Makgoka JA noted that to the extent Hendricks J in the interim interdict judgment suggested the Board was obliged to provide the amended RFA to Peermont without more, that was incorrect. (2) The Court observed that the definition of 'bingo' in the North West Act differs significantly from the National Act definition, making the decision in Akani Egoli (which concerned the National Act) distinguishable and not directly applicable. (3) Musi AJA noted that although the Tribunal applied the wrong (pre-constitutional) standard of review using the 'so grossly unreasonable' test rather than the modern reasonableness/rationality standards in PAJA, its decision was nonetheless correct as it amounted to a proper review and the substantive conclusion was one a reasonable decision-maker could reach. (4) The Court commented that EBTs come in many configurations and whether a particular EBT complies with the definition of bingo depends on technical evaluation of the specific machine. (5) The Court noted that while s 32(3) of the North West Act only permits exclusion of specified categories of information (financial capacity, prospective employees' names, business plans), paragraph 4.6 of the RFA appeared to exclude more than this, suggesting it may be ultra vires s 32. However, absent a challenge to the RFA, it stood and had to be applied. (6) The Court observed that granting a corporate entity an interest-free loan (as in the Galaxy entities' funding model) is 'indeed strange' and warranted questions from the Board. (7) Musi AJA commented that the consolidated scores in the Latiano matter were incorrectly calculated but noted this was not determinative given the two-stage evaluation process employed by the Board.
This case is significant in South African administrative and gambling law for several reasons: (1) It clarifies the distinction between appeal and review, emphasizing that reviewing courts should not usurp the functions and decision-making powers of administrative agencies. A reviewing court should guard against substituting its own view for that of the decision-maker. (2) It provides guidance on procedural fairness in administrative processes involving competitive applications, particularly regarding disclosure of confidential information and the balance between transparency and protection of applicants' commercial interests. (3) It establishes important principles regarding the timing of judicial review - not all steps in an administrative process are immediately reviewable, and some challenges may be premature if prejudice can be cured in the process itself or if the process has not been completed. (4) It interprets the definition of 'bingo' in the North West Gambling Act broadly to accommodate technological developments in gaming, distinguishing the narrower definition in the National Gambling Act. (5) It clarifies the two-stage process in the evaluation of licensing applications - the use of scoring mechanisms followed by discretionary evaluation considering broader policy objectives. (6) It affirms the importance of transformation objectives including B-BBEE, opening the sector to new entrants, and empowerment of previously disadvantaged individuals, particularly women, as legitimate considerations in licensing decisions. (7) It confirms that administrative bodies are entitled to adopt and apply policy considerations provided they do not fetter their discretion and independently consider each application. (8) It establishes that material mistakes of fact are only reviewable if they are objectively verifiable and not contested, and that reviewing courts should not delve into contested factual matters which would blur the distinction between appeal and review.
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