Deeps Betting Grounds (Pty) Ltd v Desert Palace Hotel Resort (Pty) Ltd and Another

Deeps Betting Grounds (Pty) Ltd (appellant) sought to conduct bookmaker's activities at premises located at Erf 7195, Upington (23 Scott Street). In 2017-2018, there were disputes regarding a gambling licence initially issued for Erf 4965, which Deeps Betting sought to amend to Erf 7195. On 4 March 2019, a settlement agreement (Deed of Settlement) between Deeps Betting and the Northern Cape Gambling Board was made an order of court by the SCA, whereby the Gambling Board was to grant Deeps Betting permission to conduct bookmaker's activities at the premises within 30 days. However, no licence was actually issued. In July 2019, Desert Palace Hotel Resort (Pty) Ltd (first respondent) discovered that renovations at the premises were at an advanced stage and that Deeps Betting was preparing to operate gambling activities. Desert Palace brought an urgent application to interdict Deeps Betting from operating gambling activities without a valid licence. Deeps Betting opposed and filed a conditional counter-application seeking to compel the Gambling Board to issue the licence. The premises were located within 500 metres of Upington High School.

• Whether Deeps Betting could lawfully operate gambling activities at the premises without a valid gambling licence being issued by the Gambling Board
• Whether the settlement agreement made an order of court gave Deeps Betting extant rights to conduct gambling activities despite no licence being issued
• Whether sections 78, 79 and 80 of the Northern Cape Gambling Act No 3 of 2008 prohibited gambling activities without a licence
• Whether regulation 7(c) of the Northern Cape Gambling Regulations prohibiting licences for premises within 500m of a school applied
• Whether the Supreme Court of Appeal had jurisdiction to hear an appeal against the order of Dauds AJ where no petition for leave to appeal had been filed
• Whether the application for leave to appeal against Dauds AJ's order could be brought belatedly via heads of argument without explanation

1. The application for leave to appeal against the order of Dauds AJ dated 13 December 2019 was dismissed with costs. 2. The appeal against the order granted by Sieberhagen AJ was dismissed with costs.

1. Where a high court refuses leave to appeal, an applicant must petition the Supreme Court of Appeal in terms of section 17(2)(b) and sections 21(2) and (3) of the Superior Courts Act 10 of 2013 within the prescribed time period, and cannot circumvent this requirement by seeking to raise the matter belatedly in heads of argument or by attempting to piggyback onto an existing appeal. 2. The principle in S v Safatsa regarding enlarging grounds of appeal applies only where leave to appeal has already been granted and an appellant seeks to add additional grounds; it does not permit an appellant to seek leave to appeal against a separate judgment where leave was refused and no petition was filed. 3. Under sections 78, 79 and 80 of the Northern Cape Gambling Act No 3 of 2008, it is unlawful to engage in gambling activities, possess gambling devices, or operate premises for gambling purposes without a valid gambling licence issued by the Northern Cape Gambling Board. 4. A settlement agreement or court order contemplating the issuing of a gambling licence does not itself constitute permission to conduct gambling activities; an actual licence must be issued by the relevant gambling board before gambling activities can lawfully be conducted. 5. Regulation 7(c) of the Northern Cape Gambling Regulations prohibits the Gambling Board from issuing a licence for premises within 500 metres of a school, and this prohibition must be strictly observed.

The court observed that it was notable that Deeps Betting had not filed an application for contempt of court against the Gambling Board in respect of its failure to comply with the settlement agreement made an order of court, which required the Gambling Board to grant Deeps Betting permission to conduct bookmaker's activities within 30 days. The court also noted that the Gambling Board had stated it would not issue the licence apparently on the ground that doing so would contravene the law (presumably due to the proximity to the school), though this was not fully explored in the judgment. The court further observed that the application for leave to appeal was moved from the Bar and that counsel was understandably hard-pressed to explain why the woefully belated application was not brought timeously in the ordinary way, suggesting criticism of the lack of explanation for the procedural default.

This case clarifies important principles of civil procedure in South African law regarding belated applications for leave to appeal to the Supreme Court of Appeal. It confirms that where a high court refuses leave to appeal, the proper procedure under the Superior Courts Act 10 of 2013 is to petition the SCA within the prescribed time period, and this cannot be circumvented by raising the issue belatedly in heads of argument. The case also reinforces the strict regulatory regime governing gambling activities in the Northern Cape, emphasizing that parties cannot conduct gambling activities without valid licences issued by the relevant gambling board, and that settlement agreements or court orders contemplating the issuing of licences do not themselves constitute permission to operate without the actual licence being issued. The judgment demonstrates that regulatory compliance requirements, particularly the prohibition on gambling premises within 500m of schools, must be strictly observed.