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

The first to third appellants held casino licences and the fourth appellant held a route operator licence in the Western Cape. All licences were subject to conditions imposed by the Western Cape Gambling and Racing Board (the Board) under the Broad-Based Black Economic Empowerment (B-BBEE) framework. The licences were renewable annually. On 13 July 2017, the Board imposed new conditions requiring licensees to achieve and maintain an overall rating of Level 4 in terms of the Tourism Scorecard under the B-BBEE framework. Prior to this decision, the appellants had voluntarily exceeded this level, having achieved Level 1, 2 or 3 status. The appellants made representations in September 2016 proposing alternative conditions that would enable individual monitoring rather than an industry-wide blanket condition. Despite recommendations from the Board's ad-hoc committee and CEO that licensees be rated individually, the Board imposed the same Level 4 condition on all licensees without individual evaluation of commitments and achievements.

• Whether the Western Cape Gambling and Racing Board had the power under section 53(2) of the National Gambling Act 7 of 2004 to impose further or different conditions on gambling licences
• Whether the jurisdictional facts necessary for the exercise of the power under section 53(2) were satisfied when the Board imposed a blanket Level 4 B-BBEE condition on all licensees without individual evaluation
• Whether the Board's failure to consider the specific commitments and achievements of individual licensees rendered the decision unlawful under the principle of legality
• Whether the Board's decision was reasonable and justifiable as required by section 53(2)
• Whether the conditions imposed were necessary to address the matters contemplated in section 53(1)(a) and (b) of the National Gambling Act

The appeal was upheld with costs, including costs of two counsel. The order of the High Court was set aside. It was declared that the Board's decisions to impose the Level 4 B-BBEE condition on each of the appellants' licences were unlawful and invalid. These decisions were reviewed and set aside. The respondents were ordered to pay costs jointly and severally.

Where section 53(2) of the National Gambling Act empowers a provincial licensing authority to impose further or different conditions on gambling licences, this power only arises after the authority has: (1) considered the licensee's previous commitments regarding black economic empowerment; and (2) reviewed the licensee's achievements in relation to those commitments. The power to impose conditions is limited to imposing reasonable and justifiable conditions only to the extent necessary to address the statutory matters. This requires an individual evaluation of each licensee and cannot be satisfied by imposing blanket industry-wide conditions without regard to individual circumstances, commitments and achievements. Where jurisdictional facts required for the exercise of a statutory power are not satisfied, the power does not arise and any decision purporting to exercise that power is ultra vires and unlawful under the principle of legality.

The Court observed that while a decision-maker may validly develop a policy relating to a discretion, it must nevertheless evaluate whether it is appropriate to apply the policy in the circumstances of individual cases. The Court noted that the appellants had been commended for their voluntary commitment to the B-BBEE framework and had achieved Level 1 or 2 status, voluntarily exceeding the Level 4 requirement before it was imposed. The Court gave an example that if a licensee has consistently exceeded a policy minimum and met its own commitments, the power to impose further conditions may not arise. The Court made strong observations about a related matter heard in 2016 in the Gauteng Division where judgment remained outstanding for over six years, describing this as 'a state of affairs to be strongly deprecated' and directed that it be reported to the Judicial Conduct Committee of the Judicial Service Commission. The Court emphasized that judicial service delivery requires hearing matters, deciding them, rendering reasoned judgments within a reasonable time.

This case establishes important principles regarding the exercise of statutory discretion by administrative bodies in South Africa. It confirms that when legislation requires consideration of individual circumstances before imposing conditions, decision-makers cannot apply blanket policies without individual evaluation. The judgment clarifies that jurisdictional facts must be satisfied before a statutory power arises, and that even where a body may develop general policies, these must be applied with consideration of individual circumstances where the statute requires it. The case reinforces the principle of legality under the Constitution - that state bodies may exercise no power beyond that conferred by law. It provides guidance on the interpretation of provisions requiring conditions to be imposed only 'to the extent necessary' to achieve statutory objectives. The case is significant in the gambling law context but has broader application to administrative decision-making where individual assessment is statutorily required.