Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board and Another

The first to third appellants held casino operator licences and the fourth appellant held a route operator licence in the Western Cape, all issued and regulated by the Western Cape Gambling and Racing Board. These licences were subject to conditions and renewed annually. On 13 July 2017, the Board decided to amend existing licence conditions by imposing a new requirement that each licensee must achieve and maintain an overall Level 4 Broad-Based Black Economic Empowerment (B-BBEE) rating under the Tourism Scorecard (or a generic scorecard for route operators). The appellants challenged only paragraph 6.2 of the amended conditions, contending that it unlawfully imposed an industry-wide, blanket requirement without assessing their individual commitments to, and achievements in, B-BBEE. The appellants had in fact already exceeded the required level, having voluntarily achieved Level 1 or 2 ratings, and supported the objectives of B-BBEE. The High Court dismissed their review application, and they appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order declaring the Board’s decisions to impose paragraph 6.2 of the licence conditions unlawful and invalid, reviewing and setting them aside. Costs were awarded against the respondents, including the costs of two counsel.

This judgment is significant for South African administrative and regulatory law because it affirms that regulatory authorities may not impose blanket, industry-wide licence conditions where the empowering statute requires an individualized assessment. It clarifies the limits of provincial gambling boards’ powers under s 53 of the National Gambling Act and reinforces the principle of legality by emphasising the need for jurisdictional facts before statutory powers may be exercised, even in pursuit of transformative objectives such as B-BBEE.