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The mission of the National Gambling Board South Africa (NGB) is to lead the regulation of the gambling industry in the fulfillment of the National Gambling Act (NGA) 7 of 2004 through an effectively regulated and supervised gambling industry that upholds domestic, continental and internationally recognised standards of compliance.

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National Gambling Board V Premier Of Kwazulu-natal 2002 Full

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CONSTITUTIONAL COURT OF SOUTH AFRICA

CaseCCT 15/02

MEMBER OF THEEXECUTIVE COUNCIL

FOR HEALTH,KWAZULU-NATAL Appellant

versus

PREMIER OFKWAZULU-NATAL Respondent

In re:

MINISTER OF HEALTHAND OTHERS Appellants

versus

TREATMENT ACTIONCAMPAIGN AND OTHERS Respondents

Heard on : 6May 2002

Decided on : 6May 2002

Reasons deliveredon : 5 July 2002

JUDGMENT

THE COURT:

[1] This judgment dealswith an application for leave to appeal and coupled with that an application toadduce further evidencein the proposed appeal. Both arose on the periphery ofa major dispute (the TAC case) in which judgment is being delivered contemporaneously.¹ The nature and historyof the dispute in the TAC case appear fully from that judgment. Theseapplications were heard after conclusionof the arguments in the TAC appeal.

[2] The presentapplicant is the Member of the Executive Council for Health (the MEC) in theprovince of KwaZulu-Natal (KZN). He was cited as the fifth respondent in theTAC case in the High Court.

[3] The MEC made commoncause with the other respondents who opposed the application in the HighCourt. He was representedby the same attorney (the State Attorney) and thesame team of advocates. He also made common cause with the other respondentswho, as applicants, applied to the High Court for a certificate in terms ofRule 18 of this Court’s rules.

[4] The respondent inthe present application is the Premier of KZN. His involvement came about inthe following manner. Two days before the application to the High Court wasdue to be heard, a firm of attorneys acting on the instructions of the Premierfiled a notice to the effect that the fifth respondent was appointing them asattorneys of record instead of the State Attorney. The attorneys also filed anaffidavit by the Premier to the effect that he wished to intervene in theproceedings on behalf of thegovernment of KZN. He did not support the applicationfor leave to appeal in the TAC case but supported the application by theTACfor leave to execute the High Court’s order.² The MEC responded byfiling an affidavit contending that he was the fifth respondent, that he didnot support the Premier but supportedthe application for leave to appeal andopposed the application for execution.

[5] When theapplication for a certificate was called in the High Court, two differentsenior advocates appeared, each claimingto represent the government of KZN. The High Court ruled that “the intervention of the Premier of KwaZulu-Natal isallowed”and when asked to elaborate on the meaning of its ruling, held in aseparate judgment that:

“The meaningof the judgment . . . is that the province of KwaZulu-Natal is now representedby the person in whom the ExecutiveAuthority in that province vests and thatis by the Premier of the province himself. In other words the representationof the provinceby the member of the Executive Council for Health has lapsed,the principal has taken over.”

[6] It is against thisorder of the High Court that the MEC now seeks leave to appeal directly to thisCourt, the High Courthaving granted a positive certificate in terms of Rule 18of this Court’s rules. The principle criterion for this Court to grantleaveto appeal directly to it, is whether it would be in the interests of justice todo so.³ We therefore proceed toconsider whether an appeal directly to this Court is in the interests ofjustice.

[7] The dispute in thisapplication is not whether the MEC was the correct party to cite in the TAC application. The realdispute is between the Premier and the MEC as to what stance should beadopted by the government of KZN in the TAC matter. Clearlythis is a purelypolitical dispute which could and should have been resolved at a politicallevel. If the Premier was of the viewthat the MEC was not implementing theprovince’s policy⁴ regarding the issues in the TAC case, he should have dealtwith that at a political level.⁵

[8] The effect of theHigh Court’s ruling was to substitute the Premier for the MEC as a respondentin the TAC case. It is by no means clear that the Court had the power to doso, nor that the dispute was justiciable, more particularly as there hadbeenno substantive application for such relief. It is however unnecessary toexpress a view on these questions because, for reasonsthat follow, it is notin the interests of justice to grant the MEC leave to appeal directly to thisCourt.

[9] On the assumptionthat the matter is indeed justiciable, it is important to note that the Premierand the MEC are bothorgans of state in the provincial sphere of government.⁶ They would therefore bebound by the obligation to co-operative government provided for in Chapter 3 ofthe Constitution. Section41(1)(h) (part of Chapter 3) provides:

National Gambling Board V Premier Of Kwazulu-natal 2002 Masters

“All spheresof government and all organs of state within each sphere must –

. . . .

(h) co-operate with one another in mutual trust and good faith by –

(i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on,matters of common interest;

(iv) co-ordinating their actions and legislation with one another;

(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.”

In the NationalGambling Board case⁷ this Court held that itwill rarely grant direct access to organs of state who have not duly performedtheir obligations to co-operativegovernment. By the same token, the failureto perform those obligations is relevant when deciding whether it is in theinterestsof justice to grant an organ of state leave to appeal directly tothis Court. Therefore, even if the matter is justiciable, theparties haveclearly not complied with their obligations under section 41(1)(h) of theConstitution.

[10] Moreover, the reliefsought in the MEC’s proposed appeal has no practical effect. The MEC wasrepresented in the HighCourt by the same attorney and counsel as the otherrespondents and made common cause with them. Those attorneys and counselappearedin the TAC appeal for the appellants (the respondents in the HighCourt). The case was fully argued on their behalf. The sameattorney andcounsel appeared for the MEC in this application for leave to appeal. Shouldleave be granted and the present appealsucceed, the MEC will have nothing to addin the TAC appeal.

[11] As for the Premier,he did not note an appeal against the High Court’s order. He supported therelief that was grantedand the application for leave to execute and abidedthis Court’s decision on appeal. The judgment and orders in the main appealthus bind the Premier, the MEC and the government of KZN. Should leave toappeal be granted and the Premier be successful in hisproposed appeal, hewould still not be a party to the appeal in the TAC case. It also follows thatno useful purpose would be servedby allowing the Premier to lodge anyadditional evidence.

[12] To sum up, thisapplication concerns a political dispute which could and should have beenresolved at a political level;even if the dispute is justiciable, the partiesdid not comply with their obligations to co-operative government; and theappealwill have no practical value. In the circumstances it is not in theinterests of justice to grant the MEC leave to appeal.

[13] Both parties soughtto proceed with an issue which should not have been brought to this Court andboth failed to comply withtheir obligations to co-operate in government. Inthe circumstances no order as to costs should be made.

National Gambling Board V Premier Of Kwazulu-natal 2002 Edition

Order

[14] The application bythe MEC for leave to appeal and the application by the Premier to adducefurther evidence are both dismissed.

Chaskalson CJ Langa DCJ Ackermann J Du Plessis AJ GoldstoneJ Kriegler J Madala J

National Gambling Board V Premier Of Kwazulu-natal 2002 Olympics

Ngcobo J O’Regan J Sachs J Skweyiya AJ

For the Appellants: MTKMoerane SC, P Coppin and B Vally instructed by

theState Attorney, Pretoria

For theRespondent: DN Unterhalter instructed by the Larson Bruorton &Falconer Inc, Durban