The National Gambling Board v The Free State Gambling Board

The Free State Gambling and Racing Board invited applications for special licences for the operation of slot machines in the Free State for a period of one year, under section 38 of the Free State Gambling and Racing Act 6 of 1996. Ninety-nine applications were made and deposits paid. The National Gambling Board objected, arguing that such licences could not be issued before regulations were promulgated under section 17 of the National Gambling Act 33 of 1996 and before a central electronic monitoring system was established. The Free State Board then launched an application in the High Court for a declaratory order to this effect, with the National Board joined as first respondent and filing supporting papers. One of the applicants (the fourteenth respondent) brought a counter-application seeking an order compelling the Free State Board to consider all pending applications without delay. The High Court (per Lichtenberg JP) dismissed the Free State Board's application and granted the counter-application, holding that section 38 special licences stood independently of other provisions of the Free State Act and the National Act. The court also held that the National Board had no locus standi to appeal.

• Whether special gambling licences issued under section 38 of the Free State Gambling and Racing Act are subject to the provisions of the National Gambling Act 33 of 1996 and other provisions of the Free State Act
• Whether 'specified dates' in section 38(1) of the Free State Act permits licences for extended periods such as one year
• Whether the National Gambling Board has locus standi to appeal despite not being the original applicant and despite the dismissal not being formally against it
• The proper interpretation of section 38 of the Free State Act in light of the opening phrase 'notwithstanding any other provision of this Act'
• The interaction between concurrent national and provincial legislative competence in the gambling sphere under Schedule 4 of the Constitution

The application for leave to appeal was granted, with each party bearing its own costs. The appeal was upheld. Paragraphs 1(a) and 2 of the High Court order were set aside and substituted with: (i) a declaration that the Free State Board was not entitled to consider or award the special slot machine licences applied for by the 6th to 104th respondents; and (ii) dismissal of the fourteenth respondent's counter-application. Costs orders were made against various respondents who participated in opposing the application for leave to appeal and the appeal itself, including costs of two counsel.

A 'special licence' under section 38 of the Free State Gambling and Racing Act remains a 'gambling licence' subject to the general provisions of the Act and to compliance with norms and standards under the National Gambling Act as required by section 21 of the Free State Act. The phrase 'notwithstanding any other provision of this Act' in section 38(1) must be read in context and merely qualifies the provision for 'specified dates', excluding only those provisions incompatible with the temporary ad hoc nature of such licences (such as sections 24, 26, 29 and 52), not all other provisions of the Act. 'Specified dates' in section 38 means specific days, not extended periods such as one year. A provincial gambling board cannot issue gambling machine licences until national regulations prescribe the maximum number of such licences and a central electronic monitoring system is established, as required by sections 11 and 13(1)(k) and (l) of the National Gambling Act. A statutory body with regulatory oversight functions and a direct and material interest in the subject matter has locus standi to appeal, even if not the original applicant and even if the order was not formally made against it.

The court observed that the interpretation limiting special licences to specified dates rather than extended periods fits the general scheme of the Act, noting it did not believe such licences were ever intended to be issued in respect of casinos. The court noted that if special licences were completely independent of other provisions, serious anomalies would arise: contraventions of licence conditions would not be punishable under section 86, and persons disqualified from holding licences under section 22 would nevertheless be qualified to hold special licences. The court commented that parties with joint interests may be joined either as applicants or respondents, using the example of co-owners seeking an interdict. The court expressed disapproval of the misconceived condonation application and the failure to comply with rules requiring succinct applications, departing from the normal costs rule to reflect this disapproval.

This case is significant for establishing the interaction between national and provincial gambling legislation under the constitutional framework of concurrent legislative competence (Schedule 4). It demonstrates the application of section 150 of the Constitution, which requires courts to prefer interpretations that avoid conflict between national and provincial legislation. The case clarifies that provincial gambling boards cannot use special licensing provisions to circumvent national regulatory frameworks, norms and standards. It also establishes important principles regarding locus standi, confirming that regulatory bodies with statutory oversight functions have sufficient interest to appeal even when not original applicants, and that third parties with direct and material interests may appeal judgments inter alios. The judgment provides guidance on statutory interpretation of 'notwithstanding' clauses, holding they must be read contextually rather than as creating complete independence from other statutory provisions.