THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 577/2020

In the matter between:

VUKANI GAMING FREE STATE (PTY) LTD                        APPELLANT

and

MR D PILLAY, THE CHAIRPERSON, FREE STATE
GAMBLING, LIQUOR AND
TOURISM AUTHORITY
FIRST RESPONDENT

MR KA DICHABE, THE CHIEF EXECUTIVE
OFFICER, FREE STATE GAMBLING, LIQUOR
AND TOURISM AUTHORITY                                       SECOND RESPONDENT

FREE STATE GAMBLING, LIQUOR
AND TOURISM AUTHORITY                                 THIRD RESPONDENT

RESTIVOX (PTY) LTD                                         FOURTH RESPONDENT

THE MEMBER OF THE EXECUTIVE
COUNCIL FOR THE DEPARTMENT OF
ECONOMIC, SMALL BUSINESS
DEVELOPMENT, TOURISM &
ENVIRONMENTAL AFFAIRS,
FREE STATE PROVINCE                                         FIFTH RESPONDENT

THE ENTITIES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION                               SIXTH RESPONDENT

Neutral citation: Vukani Gaming Free State (Pty) Ltd v Pillay & Others
(Case no 577/20) [2021] ZASCA 137 (6 October 2021)
Coram:
WALLIS,
SALDULKER,
MBATHA
and
MABINDLA-
BOQWANA JJA and UNTERHALTER AJA
Heard:
30 August 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 9h45 on 6 October 2021.

Summary: Administrative law – Review of administrative decision taken by the
Free State Gambling, Liquor & Tourism Authority to grant a limited gambling
machine route operator licence – investigation report backdated – reasons for
decision inadequate – appeal upheld.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Jordaan
and Naidoo JJ, sitting as a court of first instance):
1 The appeal is upheld with costs including the costs of two counsel.
2 Paragraphs 5 and 6 of the order of the Free State Division of the High Court,
Bloemfontein are set aside and replaced with the following order:
‘5. The review application succeeds with costs.
6. The matter is remitted to the third respondent for reconsideration and the
decision is to be made within 90 calendar days of the date of this order.
7. The operation of this order is suspended pending the decision of the third
respondent in terms of paragraph 6 above.’
________________________________________________________________
JUDGMENT
________________________________________________________________

Mabindla-Boqwana JA (Wallis, Saldulker and Mbatha JJA and Unterhalter
AJA concurring):

Introduction
[1] The appellant, Vukani Gaming Free State (Pty) Ltd (Vukani), is part of a
national group of businesses involved in the gaming industry in the Free State
province and is a holder of a route operator licence issued for that purpose. The
fourth respondent, Restivox (Pty) Ltd (Restivox), is part of a similar group. The
two are in competition. On 31 May 2017, the third respondent, the Free State
Gambling, Liquor & Tourism Authority (the Authority), granted a similar licence
to Restivox in terms of s 72 of the Free State Gambling, Liquor and Tourism Act
6 of 2010 (the Act). This appeal follows the dismissal by the Free State Division

of the High Court, Bloemfontein (high court) of Vukani’s review of that decision.
It serves before us with the leave of this Court.

[2] By way of explanation, a route operator licence is a licence granted in terms
of s 64(1)1 of the Act to operate limited pay-out gambling machines (LGMs).
These LGMs are installed in places like restaurants and pubs. They are similar to
slot machines in casinos (but with pay-outs that are for limited amounts). Site
operators are issued with site operator licences in order to operate lawfully.

Factual background
[3] The matter before us has a long-drawn-out history dating back to
February 2011 when the predecessor to the Authority, the Free State Gambling
and Racing Board, issued a Request for Proposals, inviting applications for a
second operator licence in the Free State province. Until then Vukani had been
the only holder of a route operator licence in the province.

[4] On 6 May 2011 Restivox submitted an application to the Authority in
response to the invitation. Public hearings in respect of this application were held
on 7 February 2013. At the public hearings Vukani queried the shareholding
structure of Restivox. In particular, it raised a concern about the inclusion of two
black women who were Free State residents, Anna Makhetha (Makhetha) and
Thato Lion (Lion) as direct shareholders of Restivox, as they were public
servants. Sophia Swartz (Swartz), another Free State resident, who was in
attendance at the public hearings, also questioned her inclusion as an indirect
shareholder of Restivox through Atretone (Pty) Ltd (Atretone), when she was not.

1 Section 64(1) of the Free State Gambling, Liquor and Tourism Act (the Act) provides that ‘[t]he Authority may,
subject to the provisions of this Act, grant the following licences in respect of gambling, namely –
(a). . .
(b) limited gambling machine operator licences;
(c) limited gambling machine site licences.’

[5] Restivox’s response to these complaints was that Makhetha and Lion were
not civil servants at the time its application was submitted. They took up
employment after the submission of Restivox’s licence application. As regards
the position of Swartz, the explanation was that one Quentin Eister, who held
shares in Atretone, had offered shares to Swartz. Restivox wrongly believed that
Swartz had accepted the shares when she had not. According to Restivox, that
issue was subsequently corrected.

[6] Restivox raised a further issue that Kennedy Khoza (Khoza)’s
shareholding was shown as having increased from 3 percent to 4 percent, which
was not the case. According to Vukani, Khoza, who had initially denied any
knowledge of this increase to Vukani’s attorney, later ‘changed his tune in
support of Restivox’s position’. On the whole, Vukani’s complaint was that
Restivox’s application was deficient and contained misrepresentations. Its
objection regarding these shareholding issues was that Restivox was engaged in
the practice of ‘fronting’ in order to burnish its image with the Authority as a
transformed business.

[7] On 19 December 2013, the Board of the Authority (the Board) refused
Restivox’s application. Restivox took the Board’s refusal on review before the
high court. At the hearing of the review application, on 2 February 2015, the
parties settled the matter on the basis that the Board would reconsider Restivox’s
application. That agreement was made an order of court. The matter went back to
the Board. On 11 June 2015 it reconsidered the application, effectively accepting
Restivox’s explanation as regards the shareholding complaints made by Vukani,
and granted the route operator licence to Restivox.

[8] Aggrieved by this decision, Vukani, launched its own application in
October 2015, to review and set aside the Board’s decision. In that application it

contended that when granting the licence application to Restivox, the Board was
unaware that five directors had resigned from Restivox, leaving only two
directors, Sundri Padayachee (Padayachee) and her son Mergan Naidoo (Naidoo),
who were both Gauteng based. The court reviewed and set aside the Board’s
decision on 8 December 2016 (per Molitsoane AJ and Hancke J concurring). It
found, inter alia, that the Board ‘acted unlawfully and irrationally when it allowed
crucial amendments to the Restivox application and failed to subject the process
to a further public participation’. It referred the matter back for reconsideration
and ordered that an appropriate public hearing process be followed as prescribed.
An application for leave to appeal the court’s decision was dismissed by the high
court on 3 March 2017.

[9] As a consequence of that judgment, Restivox sent a letter dated
4 March 2017 to the Board, addressing the issues raised by Vukani in its review
application and, in particular those relating to changes in directorships. Vukani
again objected to Restivox’s amended licence application on the basis that
deliberate false misrepresentations were, inter alia, made by Restivox in the
original application regarding shareholding and directorships and that
Padayachee and Naidoo were as a result not fit and proper persons as required by
the provisions of the Act. Vukani also complained that Restivox was not entitled
to amend its application without the approval of the Board. The Board responded
to Vukani’s objection in a letter dated 13 April 2017 and held public hearings on
20 April 2017.

[10] The Board decided to refer the issues raised by both parties for forensic
investigation conducted by Gobodo Forensic and Investigative Accounting (Pty)
Ltd (Gobodo). Gobodo provided the Board and/or management of the Authority
with a number of reports, which were the subject of the dispute before us. In
January 2013, it had undertaken a similar investigation covering some of the same

issues and it revived this in May 2017, shortly before the Board made the
impugned decision to grant the licence to Restivox on 31 May 2017. There is a
dispute as to how many reports served before the Board and which of the reports
was taken into account when the Board made its decision on 31 May 2017, as
there were various versions of updated supplementary reports.

[11] Vukani alleges that it discovered that the Board had awarded the licence to
Restivox when applications for site operator licences were advertised by Restivox
on 4 July 2017. As can be seen from the papers, Restivox entered into agreements
with various entities some of which are cited as respondents, as site operators or
applicants for site operator licences.

[12] Having discovered the Board’s decision, Vukani requested access to
information in terms of the Promotion of Access to Information Act 2 of 2000
(PAIA) on 5 July 2017. The Authority failed to provide the necessary
information, so Vukani launched an application in the high court for an order
directing the Authority to furnish it with a response to its PAIA request. This
matter was settled by way of an agreed court order.

[13] On 20 November 2017, Vukani lodged its review application before the
high court. The Authority failed to file a complete Rule 53 record as required. No
transcript of the proceedings at the meeting of 31 May 2017 was provided as part
of this record. At Vukani’s request, the Authority furnished two affidavits signed
by the first respondent, (Pillay) and the second respondent (Dichabe), stating that
the meeting of 31 May 2017 was not recorded and therefore a transcript of that
meeting was not available. This turned out not to be entirely accurate. In his
opposing affidavit, Pillay said that while the meeting had not been recorded
shorthand notes had been taken. He attached a document purporting to be a typed
version of the notes. A copy of the handwritten notes was only made available

pursuant to an interlocutory application brought by Vukani in terms of Rule
35(12). These notes were not in shorthand, but written in a somewhat illegible
handwriting with no signature or name of the author.

[14] These notes assumed significance in the light of Pillay’s explanation of
what was before the Authority at its meeting on 31 May 2017, when the decision
to award the licence to Restivox was taken. He said that the Authority had
received a report from Gobodo on 16 May and this was the report before the
Authority at the 31 May meeting, during which a presentation was given by
Alberto Torres (Torres) of Gobodo. This appeared to be borne out by the notes,
which recorded that Torres made a presentation at the outset in which he said that
the report in question was supposed to be dated 15 May, but due to an error in
their offices it was dated 10 May. A report bearing that date formed part of the
record.

[15] This version of events began to unravel when Torres filed a confirmatory
affidavit. In it, he said that Gobodo had provided the Authority with the following
reports:
‘A draft investigation report dated 30 January 2013;
A supplementary report for discussion purposes dated 17 May 2017;
A supplementary report dated 31 May 2017, which was presented to the FSGLA Board meeting
held on 31 May 2017; and
A final supplementary report dated 7 June 2017, which was issued to the management of the
Authority.’
The glaring omission from this affidavit was any reference to a report dated 10
May 2017.

[16] After Torres filed his affidavit, Pillay deposed to a further affidavit saying
that he had not been aware of the further report of 7 June 2017. Pursuant to
Torres’ averment, he enquired about the report and was advised by Torres that it

had been requested by the management of the Authority for audit purposes. This
report, according to him, was never tabled at any Board meeting. In any event, on
the date of the said report, so he alleged, the Board had already made a decision
to award the licence to Restivox and the report could have in no way been
considered for purposes of awarding the licence.

[17] When the Rule 53 record was delivered, Vukani complained that the
Gobodo reports dated 17 May 2017, 31 May 2017 and 7 June 2017, as well as the
draft investigation report dated 30 January 2013, had not been included as part of
the record. This prompted Vukani to seek disclosure of these three versions of the
report along with a copy of the short-hand notes, under Rule 35(12). The
Authority initially refused to disclose the Gobodo reports, forcing Vukani to bring
an interlocutory application to compel which was settled by way of an agreed
order on 16 May 2019.

[18] Vukani questioned the authenticity of the handwritten notes, in particular,
that they were neither signed nor certified. It also pointed to the strangeness of
these notes surfacing in the Authority’s answering affidavit, whereas Pillay and
Dichabe had earlier indicated on oath that no recording of the Board discussions
of the meeting of 31 May 2017 existed. Vukani also pointed out various
anomalies concerning the Gobodo reports, including the differences between
Pillay’s and Torres’ versions as to which report served before the Board on
31 May 2017. According to Vukani, it was not likely that the Board would have
had a complete report before it, as the report dated 31 May 2017 (as per Torres’
affidavit) appeared incomplete and was described by him as a supplementary
report.

[19] The review application served before Jordaan and Naidoo JJ in the high
court. On 5 December 2019, the high court dismissed the application with costs

including those occasioned by the employment of two counsel, where so
employed. The court also granted, in Vukani’s favour, costs of the PAIA
application that had stood over. The findings of the high court in regard to the
review application were, inter alia, the following:
‘… From the notes of the proceedings of the board on 31 May 2017 it appears that the report
then considered was the report dated 10 May.
…In the notes it is recorded that Mr Torres who presented and explained the report indicated
that the report was mistakenly dated 10 May. To include such an insignificant remark in the
recordal of the meeting as a fabricated afterthought is highly improbable. The inclusion of that
gives credence to the notes and negates the suspicion of it being tailored to suit the Board.
Whether the notes are compatible to a rendition of shorthand notes is unknown and speculative.
…The fact that the notes are not certified and signed may be contrary to statutory prescripts
but that fact does not necessarily preclude the court from having regard to it. According to its
contents, it refers to various issues that were investigated and the results of the investigations,
most of which were directed at the complaints raised by Vukani. The content of the notes gives
some reassurance as to its reliability and credibility. It therefore has to be accepted that it was
the report dated 10 May 2017 that was discussed and dealt with at the meeting of 31 May 2017.
Since that report is identical to the report of 7 June 2017, there can be no mention of relevant
considerations flowing from the 7 June report not having been taken into account. What is
more, the slight differences in the reports as pointed out by Vukani are not material at all. All
the reports come to the same conclusion in respect of all the aspects investigated.’
It is the appeal from this decision of the high court which is before us.

Issues on appeal
[20] The main grounds for review raised by Vukani were that: (a) the Authority
was biased in favour of Restivox, was reasonably suspected of bias or acted in
bad faith; (b) the Authority failed to take into account relevant factors and to apply
its mind properly to the matter, including by taking its decision on the basis of a
draft (an incomplete) report which was furnished to it by Gobodo for the first time
at the Board meeting of 31 May 2017, which could have in no way been
considered before the impugned decision was made; (c) by failing to consider that

Restivox had deliberately made false statements by including two local black
women as shareholders in Restivox, when they had never been such. Also,
Restivox gave disingenuous or inaccurate explanations for these falsehoods; (d)
the impugned decision should be taken to have been made without good cause,
as the Authority failed to provide adequate reasons, or any reasons at all, until
called upon by Restivox to do so for purposes of their answering affidavit. The
decision was accordingly unreasonable.

[21] Vukani’s central argument on appeal was that the similarities in the reports
dated 10 May 2017 and the one dated 7 June 2017 coupled with the fact that the
report of 31 May 2017 was incomplete, led to an inescapable conclusion that the
Authority backdated the report of 7 June 2017, which was the final supplementary
report, to 10 May 2017. It produced this altered version in an attempt to indicate
that the Authority had sight of the final Gobodo report well before the meeting of
31 May 2017, at which the decision was made to award the licence to Restivox.

[22] Both the Authority and Restivox contended that the backdating of the
report was a new issue, not raised by Vukani on the papers. Accordingly, they
argued that they could not properly respond to these issues in their answering
affidavits. It was however acknowledged by the Authority’s attorney, who
appeared before us, that the issue was raised in argument in the high court, but
rejected on the basis that it was not on the papers.

[23] The Authority and Restivox argued further that the existence of the
Gobodo reports made no difference as the issues in dispute that turned on the
shareholding and directorships in Restivox, had been resolved. In any event, they
submitted, all the reports were the same in relation to the issues in dispute. The
report of 7 June 2017 raised nothing new that the Board would not have known
when they made their decision on 31 May 2017. It was further contended on

behalf of Restivox that all the issues that Vukani raised were simply a rehash of
what had properly been answered by Restivox.

Discussion
[24] The immediate issue to be addressed concerns the Gobodo reports.
According to Torres, there were altogether four reports prepared by Gobodo,
namely those of 30 January 2013, 17 May 2017, 31 May 2017 and 7 June 2017.
Although Pillay said that the report on which the Authority based its decision was
the report dated 10 May 2017, though not mentioned by Torres, no supplementary
affidavit from him was provided to deal with the additional report that he did not
mention. This was very peculiar.

[25] The purpose of the 2013 investigation was to establish whether Restivox
‘included any disqualified entities or persons or other factors relating to the
probity of its owners, directors and managers, in terms of the …national and
provincial legislation.’ All the 2017 reports were supplementary to the 2013
report. If the report that served before the Board was that dated 10 May 2017,
what was the purpose of the reports dated 17 and 31 May 2017 respectively?
Especially strange was that the report of 17 May was far shorter than the
ostensibly earlier report of 10 May. Why an existing complete report should have
been abbreviated in this way was never explained.

[26] Torres’ affidavit said nothing about the report dated 10 May 2017. If this
was an error, only Torres could rectify it, not Pillay. To compound the problem,
not only did Pillay fail to mention the other reports, particularly those generated
after 10 May 2017, he contradicted Torres as to which report was considered by
the Board on 31 May 2017. According to Torres, the report dated 31 May 2017
was presented by Gobodo at that meeting. Pillay alleged that Gobodo provided

the Authority with a final report on 16 May 2017. According to Torres, the final
report was submitted on 7 June 2017.

[27] It was contended on behalf of the Authority that the report dated
17 May 2017 was the executive summary of the report dated 10 May 2017. This
is not the case. The 17 May report contains 48 pages of detailed content some of
which is repeated in other reports including the report dated 10 May 2017. In fact,
the report of 10 May 2017 has its own executive summary. It is also remarkable
that both the reports of 17 and 31 May 2017 are water marked as draft reports.

[28] A close analysis of the reports of 31 May 2017 and 7 June 2017 shows that
the latter was a cleaning up of the former. Examples of this can be found in the
indexes of the reports. The report of 7 June includes new sub-headings, such as
paragraph 12 at page 64. There is substantial improvement of language and
correction of errors in the later 7 June report. Substantive changes can be noted
in various places such as paragraphs 14.1.2 at page 67 of the report and 16.4.3. In
paragraph 14.1.2 of the 31 May 2017 report, a statement is made that a request
had been made for the provision of undisclosed or contingent liabilities. The same
paragraph in the 7 June 2017 report reflects that a letter had been received from
Restivox’s auditors confirming that there were no undisclosed or contingent
liabilities.

[29] Furthermore, in paragraph 16.4.3 of the 31 May report a request was to be
made to Restivox to provide an updated sensitivity analysis. The same paragraph
in the 7 June report indicates that the updated financials, had been received and a
comment was made about them appearing to be reasonable. Another example is
paragraph 23.3 of the 31 May report, which has nine sub-paragraphs while the
7 June report has twelve. Paragraph 23.4.3, stating ‘[i]n our view, Restivox’s
responses are reasonable and satisfactory’ is not contained in the earlier report of

31 May 2017. Paragraph 25 of the 31 May report is differently worded from the
7 June report.

[30] There are other significant peculiarities noted from the 10 May report.
Paragraphs 1.9.7 and 15.1.6 of the 10 May report, which are identical to the 7 June
report, make reference to a letter dated 15 May 2017 that was provided by
Restivox. The date on this letter is post 10 May 2017. This letter is also mentioned
in the same paragraphs of the 31 May report, although the paragraphs are
differently worded. It makes no sense that a letter dated 15 May 2017 would be
mentioned in a report of 10 May 2017. It is however logical that the letter would
have been provided prior to the 31 May and 7 June reports.

[31] It is inexplicable how a report dated 10 May 2017, allegedly produced
before the reports of 17 and 31 May, could contain all the modifications from the
31 May report that appear in the 7 June report. The materiality of those changes
is not the issue. The mere presence of the modifications made between 31 May
and 7 June in a report seemingly produced on 10 May is what is concerning. It
appears that the Authority was sent an electronic copy of the 7 June report which
would make it possible to change the date from 7 June to 10 May. It was not
explained why a specific report was required for audit purposes, as averred by
Pillay, when the report of 31 May was available.

[32] The Authority could not provide answers to these problems in argument.
The contention that the backdating of the report was not on the papers was not
helpful. Restivox would not be in the position to provide any answers to these
questions as they lay at the Authority’s door. The question of which version
served before the Board at the meeting of 31 May 2021 was always queried by
Vukani. The letter dated 11 March 2019 from Vukani’s attorneys to the
Authority’s attorneys confirmed as much. Vukani’s argument, therefore, that the

report of 10 May 2017 was a backdated version of the report of 7 June 2017
remained uncontroverted. There is no possibility of error on the papers. The
Authority’s attorney was unable to get around this. It is not clear why the
Authority would go to the lengths of tampering with the date on Gobodo’s report,
if not to make it appear that the Board considered a final report when making a
decision on 31 May 2017.

[33] Pillay alleged that the report considered on 31 May 2017 was submitted to
the Authority by Gobodo on 16 May 2017 (oddly a day before the 17 May 2017
supplementary report which he was silent on). This rather peculiar date was not
connected to any event, although it was prior to the meeting of 24 May, where
the minutes record that the authority had not had time to consider the report, and
therefore postponed the proceedings to 31 May. The handwritten notes, the origin
and scribe of which were not identified, which attributed to Torres that
‘he…indicated that the report submitted to the Authority was supposed to be
dated 15th of May 2017 but due to error from their office it was dated
10th May 2017’ were inconsistent with Torres’ affidavit. Contrary to Pillay’s
assertion, Torres did not confirm the correctness of his affidavit. Instead he gave
an irreconcilable version. There was no basis for the high court to reject Torres’
affidavit as he was the director responsible for the investigation of the Restivox
application and presented the Gobodo report at the Board meeting of 31 May.
The high court erred by not scrutinising the version given by the Authority and
holding that Torres must have made a mistake in his affidavit. It consequently
erred by finding that the resemblance of the reports of 10 May and 7 June was a
factor in favour of the Authority. To the contrary, the issue of the similarity
between the reports was against it for the reasons mentioned above.

[34] The problems in this case were exacerbated by the fact that there was no
proper explanation as to what was considered by the Board before making the

decision to award the licence to Restivox. Pillay’s affidavit, read with the
handwritten notes and the minutes, went no further than alleging that the Board
deliberated on the application, amendments to the application, objection lodged,
public hearing, Gobodo report and all relevant documents.’ This was not helpful.
The Authority was requested by Vukani to provide reasons under s 5(1) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) on 5 July 2017. This
failure also prompted Restivox to ask for reasons in a letter dated 14 August 2018,
complaining about the prejudice that it would suffer due to lack of reasons.
Reasons were provided over a year after the request was made by Vukani and
they were wholly inadequate.

[35] As pointed out by Hoexter2 ‘. . . reasons are not really reasons unless they
are properly informative. They must explain why action was taken or not taken;
otherwise they are better described as findings or other information’. The
rationale for giving reasons is to enable an aggrieved party to understand the
reasoning behind the decision and decide whether or not to challenge it. Reasons
should constitute more than mere conclusions. They should refer to the relevant
facts, the applicable law and the processes leading to the conclusions.3 Recently
in Maxrae Estates (Pty) Ltd v Minister of Agriculture, Forestry and Fisheries &
Another,4 this Court held that the mere mention that a ‘discretion has been
exercised for the given purpose was not sufficient. The court was constrained to
intervene where the decision maker had ignored the relevant factors and taken
into account irrelevant considerations’. What factors the Board took into account
in this instance, it is not clear.

2C Hoexter Administrative Law in South Africa (2012) at 461.
3Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) BCLR 1 (CC); 2019 (1) SA 21 (CC)
para 69. See also Minister of Environmental Affairs and Tourism and Another v Phambili Fisheries (Pty) Ltd
[2003] 2 All SA 616 (SCA); 2003 (6) SA 407 (SCA) para 40.
4Maxrae Estates (Pty) Ltd v The Minister of Agriculture, Forestry and Fisheries & Another [2021] ZASCA 73
para 17.

[36] The importance of reasons was highlighted in Koyabe v Minister of Home
Affairs as follows:
‘63. Although the reasons must be sufficient, they need not be specified in minute detail, nor
is it necessary to show how every relevant fact weighed in the ultimate finding. What
constitutes adequate reasons will therefore vary, depending on the circumstances of the
particular case. Ordinarily, reasons will be adequate if a complainant can make out a reasonably
substantial case for a ministerial review or an appeal.
64. In Maimela, the factors to be taken into account to determine the adequacy of reasons were
succinctly and helpfully summarised as guidelines, which include –
“[t]he factual context of the administrative action, the nature and complexity of the action, the
nature of the proceedings leading up to the action and the nature of the functionary taking the
action. Depending on the circumstances, the reasons need not always be ‘full written reasons’;
the ‘briefest pro forma reasons may suffice’. Whether brief or lengthy, reasons must, if they
are read in their factual context, be intelligible and informative. They must be informative in
the sense that they convey why the decision-maker thinks (or collectively think) that the
administrative action is justified”.
The purpose for which reasons are intended, the stage at which these reasons are given, and
what further remedies are available to contest the administrative decision are also important
factors. The list, which is not a closed one, will hinge on the facts and circumstances of each
case and the test for the adequacy of reasons must be an objective one.’5

[37] The reasons provided by the Authority were a far cry from what could be
considered reasonable. Much can be said about the fact that Restivox provided
answers to Vukani’s objections, as appears in various reports. This was however
not the issue. The issue was how the Board arrived at its conclusion to award the
licence to Restivox. The Authority did not tell us. It simply listed documents or
information that the Board had at its disposal.

5 Koyabe v Minister of Home Affairs [2009] ZACC 23; 2009 (12) BCLR 1192 (CC); 2010 (4) SA 327 (CC) para
63-64.

[38] Whether or not the Gobodo reports made a difference to the substantive
issues was also not the issue. The Board called for an independent investigation
of the Restivox application and therefore was bound to take into account the
Gobodo reports as part of the decision-making process. The questions raised on
the suspected tampering with the reports cannot be ignored. They raised doubts
about the validity of the process. As demonstrated above, it was difficult to accept
that the report of 10 May 2017 was genuine.

[39] In conclusion on this issue, given the unexplained incongruences, the
inadequacy of reasons and the late production of records, some of which do not
correspond with the facts, the decision taken by the Board cannot be sustained.
This is worsened by the fact that the Board appeared not to have had a complete
report when it made its decision. Added to that, the report of 31 May which was
presented by Gobodo at the meeting, on close scrutiny, appears to have had
outstanding matters which were only resolved later, if regard is to be had to the
7 June report. For those reasons, Vukani’s impugning of the Board’s decision is
supported by the presumption in s 5(3)6 of PAJA. It should accordingly not stand.

[40] As to remedy, Vukani sought substitution of the decision of the Board in
the notice of motion and in its heads of argument. Counsel for Vukani did not
press for this in argument, correctly so, as it would not have been an appropriate
remedy in the circumstances. He, however, contended that if the Court were to
order remittal of the matter, Pillay and Dichabe should not be present in the
deliberation process as they were the individuals behind the uncooperative and
obstructive conduct of the Authority.

6 Section 5(3) of PAJA provides: ‘If an administrator fails to furnish adequate reasons for an administrative action
it must, subject to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for
judicial review that the administrative action was taken without good reason.’

[41] Insofar as Pillay’s position is concerned, the position is clearer. He gave
dubious explanations as to how the decision was made on 31 May 2017. While
Pillay is the chairman of the Board, we were told that there would be no difficulty
with someone else chairing the meeting in his absence. As for Dichabe, the Chief
Executive Officer, it is not clear how he can be excluded from the meeting. In
any event, the person appearing to be prominent in the disputed conduct of the
Authority in the review process is Pillay.

[42] Finally, counsel for Restivox requested that, the status quo in relation to
the position of site operators be maintained if the matter were to be remitted to
the Board for reconsideration. He contended that the reviewing and setting aside
of the high court order would affect site operators, many of whom are small
businesses who rely on the income they derive from the LGMs installed at their
sites. He submitted that the Court is entitled to make a just and equitable order in
terms of s 172(1)(b) of the Constitution by preserving the status quo in the interest
of the economy while a decision is being made by the Board. Further, the Board
should be given a short period in which to consider the remitted issues.

[43] I do not foresee any difficulty with this request. The facts of this case are
peculiar. Given the time this litigation has taken, considered against the hardship
that may result in the immediate application of the order to many people, it seems
just and equitable to give a suspended order. It also appears just and equitable to
give the Board a limited period in which to make the decision, so as to overcome
any prejudice that may be suffered by any of the parties. The issues that should
be determined are also narrow, they relate to the objections raised by Vukani.

[44] As to costs, counsel for Vukani requested that the costs order that was
granted by the high court in its favour, in respect of the PAIA application, be set
aside and substituted for an order awarding it costs on a scale as between attorney

and client. He further submitted that costs on the punitive scale are also warranted
in respect of the review application and that Pillay and Dichabe be ordered to pay
part of the costs awarded against the Authority personally.

[45] It is established that costs are largely treated as a matter for the court’s
discretion. No sufficient basis has been laid in this case to alter the costs awarded
by the high court in respect of the PAIA application. Similarly costs on a scale as
between attorney and client as well as personal costs orders against Pillay and
Dichabe are not warranted in this case. It bears mention that there is a growing
trend of parties seeking costs against state officials in their personal capacities.
This kind of relief is not for the mere asking, it is an order that would be defensible
only in exceptional circumstances. I am not convinced that this is such a case.

[46] In the result, the following order is made:
1 The appeal is upheld with costs including the costs of two counsel.
2 Paragraphs 5 and 6 of the order of the Free State Division of the High Court,
Bloemfontein are set aside and replaced with the following order:
‘5. The review application succeeds with costs.
6. The matter is remitted to the third respondent for reconsideration and the
decision is to be made within 90 calendar days of the date of this order.
7. The operation of this order is suspended pending the decision of the third
respondent in terms of paragraph 6 above’.

_________________________
N P MABINDLA-BOQWANA
JUDGE OF APPEAL

APPEARANCES

For the appellant:

P B J Farlam SC (with him C D Pienaar)
Instructed by:

Lovius Block, Bloemfontein

For the first to third respondents:
N W Phalatsi & Partners, Bloemfontein
For the fourth respondent:

B Roux SC (with him M Smit)
Instructed by:
Cliffe
Dekker
Hofmeyr
Attorneys,
Sandton

Noordmans Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
6 October 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal
Vukani Gaming Free State (Pty) Ltd v Pillay & Others (577/2020) [2021] ZASCA 137
(6 October 2021)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with
costs including the costs of two counsel, an appeal against the decision of the Free
State Division of the High Court, Bloemfontein (the high court)

The appeal concerned a review application brought by the appellant, Vukani Gaming
Free State (Pty) Ltd (Vukani) concerning the validity of the decision taken by the third
respondent, the Free State Gambling, Liquor and Tourism Authority (Authority) to
grant the route operator licence to the fourth respondent, Restivox (Pty) Ltd (Restivox)
in terms of s 72 of the Free State Gambling, Liquor and Tourism Act 6 of 2010 (the
Act).

In February 2011, the predecessor to the Authority, the Free State Gambling and
Racing Board, issued a Request for Proposals, inviting applications for a second
operator licence in the Free State Province. Restivox submitted an application in
response to the Authority’s invitation. At the public hearings held on 7 February 2013,
Vukani queried, among others, the inclusion of two black women, Anna Makhetha
(Makhetha) and Thato Lion (Lion) who were Free State residents, in the Restivox’s
shareholding structure, as they were allegedly public servants. Vukani also questioned

the shareholding of another Free State resident, Sophia Swartz (Swartz) who was
included as an indirect shareholder of Restivox through Atretone (Pty) Ltd, when she
was not. Restivox’s response was that the two women had taken up employment as
public servants after it had submitted its application and that it had wrongly believed
that Swartz had accepted an offer of shares from one Quentin Eister. It subsequently
corrected this error. The Board of the Authority (Board) rejected Restivox’s application.

This was followed by a series of review applications by Restivox, and Vukani at
different times, following reconsidered decisions of the Board. In the process, the
Board referred the issues raised by the parties for forensic investigation by appointing
Gobodo Forensic and Investigative Accounting (Pty) Ltd (Gobodo) to conduct such
investigation. On 31 May 2017 it awarded the route operator licence to Restivox.

Aggrieved by that decision, on 20 November 2017, Vukani lodged the review
application, which was the subject of the appeal. The Authority failed to file a complete
Rule 53 record as required. No transcripts of the proceedings of the meeting of 31 May
2017 was provided as part of this record. The chairperson of the Board, Mr D Pillay
(Pillay) and the Chief Executive Officer (CEO), Mr K A Dichabe (Dichabe), who were
first and second respondents respectively indicated on affidavit that the meeting of 31
May 2021 was not recorded and therefore a transcript of the meeting was not
available. Mr Pillay, in his opposing affidavit, however, indicated that shorthand notes
had been taken. He also indicated that the Authority had received a report from
Gobodo on 16 May 2017 and this was the report that served before the Authority at its
31 May meeting, during which a presentation was given by Alberto Torres (Torres) of
Gobodo. This appeared to be borne out by the notes, which state that the Gobodo
report presented to the Board was erroneously dated 10 May 2017, instead of 15 May
2017. Vukani questioned the authenticity of the alleged handwritten notes.

Pillay’s version as to the Gobodo reports that served before the Board differed from
Torres’ who mentioned in his confirmatory affidavit that the Board and/or management
of the Authority had been presented with four reports, namely, a draft investigation
dated 13 January 2013, a supplementary report dated 17 May 2017, a supplementary
report dated 31 May 2017, which was presented to the Board at the meeting of 31 May
2017 and a final report dated 7 June 2017. The glaring omission from his affidavit was
any reference to a report dated 10 May 2017.

Vukani’s argument on appeal was that the similarities between the reports of 10 May
2017 and 7 June 2017 coupled with the fact that the report of 31 May 2017 was
incomplete led to an inescapable conclusion that the Authority backdated the report of
7 June 2017, which was the final supplementary report. This was done in order to
indicate that the Board had the final Gobodo report well before 31 May 2017, when it
awarded the licence to Restivox. The Authority and Restivox contended, inter alia, that
the Gobodo reports made no difference as the issues before the Board (relating to
Vukani’s objections) had been resolved by the Restivox and the Board and they raised
nothing new.

The SCA found that on close analysis, of the reports of 31 May and 7 June 2017, the
latter was a cleaning up of the former. It could not be possible that the report dated 10
May 2017 (which was identical to the report of 7 June 2017) could contain the exact
updated information as the report of 7 June. It also made no sense that it was
necessary to obtain reports dated 17 and 31 May (which were incomplete) if the report
dated 10 May 2017 was a final report. The Authority failed to provide answers to these
questions. The SCA held that the high court erred by not scrutinising the version
offered by the Authority. It further found the reasons given by the Authority for the
decision to award Restivox the licence, to be wholly inadequate. In the result, the SCA
substituted the high court’s decision with an order reviewing and setting aside the
Board’s decision and remitting the matter to the Authority for reconsideration.