Gambling Authority pokes holes on Ithuba’s interdict application

Thuli Johnson accuses Ithuba of seeking to expand its lottery empire from South Africa to Botswana

The Gambling Authority has dismissed a court application for a temporary interdict of its negotiations with national lottery preferred bidder Grow Mine Pty ( LTD) as “premature”.

In its replying affidavit to the application brought by South African lottery Company Ithuba Solutions, which was early this year announced as

the reserve applicant in the national lottery bid, Gambling Authority says it has not made a final decision on who will be awarded the national lottery license. Citizen owned consortium Grow Mine was announced as the preferred applicant, having satisfied all evaluation and adjudication requirements. Should Grow Mine successfully complete its negotiations with the Authority, it would then be referred to as the successful ap

plicant and given the national lottery license. As the reserve applicant, Ithuba will be approached for negotiations in the event Grow Mine fails to conclude licence agreement negotiations with the Gambling Authority. In its response to the Ithuba application, the Gambling Authority, through Armstrong Attorneys explained that it has not made any final decision on the national lottery.

It has neither concluded negotiations with

Grow Mine nor turned down Ithuba or any other applicant.“The Authority has not even commenced negotiations with Grow Mine. Negotiations may start in November, but are unlikely to be completed by end of year,” said Gambling Authority Chief Executive Officer ( CEO) Thuli Johnson in his answering affidavit.

Ithuba had also argued that it had a prima facie right to an interdict because the Gambling Authority’s selection of its preferred and reserve applicants was unlawful and susceptible to review.

In response, the Authority argued that there was no need for an interdict because Ithuba’s right to institute judicial review proceedings was not threatened or breached.

“Even if the Authority’s decision was susceptible to review, which we deny, that alone cannot generate sufficient prima facie right to grant an interim interdict.

“Ithuba is actually seeking to protect its naked commercial interest. But this is at most a hope and not a right, such that it cannot be protected by an interdict,” argued Johnson. He added that there was no prospect, that Ithuba would suffer irreparable harm if interim relief was refused since the Authority had not made a final decision.

“At this stage, it is simply too early to say that irreparable harm would result if negotiations continue. If negotiations with Grow Mine fail, the Authority will commence negotiations with Ithuba.

“On the contrary, an interdict would extinguish the existing possibility of the national lottery being awarded to Ithuba,” said Johnson.

He cited Section 48 of the Gambling Authority Act as an internal remedy through which Ithuba can appeal to the Minister in the event the national lottery license is awarded to Grow Mine.

He dismissed as “spurious”, Ithuba’s reasons for not exhausting internal remedies, one of which was that an appeal to the Minister would be academic and a fait accompli. “Such arguments are legally unsustainable; and regrettably appear to impugn the integrity of the Minister,” he said. Should internal remedies fail, Johnson said Ithuba can then institute judicial review proceedings through the courts.

Johnson challenged Ithuba to prove that the balance of convenience was skewed in its favour, given the manifest weakness of the merits of its application. He said an interim interdict, if granted, has potential to compromise the interests of both the Gambling Authority and Batswana; adding that it was important for the national lottery licence process to be completed as soon as possible, given that it had delayed over the past three years.

“Proceeds from the national lottery are intended to fund national projects such as charities, sports development, arts & culture and youth empowerment.

“These are of greater importance than the naked commercial interest that Ithuba seeks to protect as it expands its lottery empire from South Africa to Botswana,” Johnson said.

He accused Ithuba of jumping the gun and creating its own artificial urgency by launching premature proceedings, which imposed a heavy burden on the Authority, other respondents and the courts.

He faulted Ithuba for failing to show prima facie right and establish irreparable harm; denying its duty to first appeal to the Minister and ignoring the manifest harm to the public interest caused by further delaying the lottery process.

“The court has a duty, grounded in the separation of powers, to respect the exercise of statutory powers by public bodies and officials.

“Where an applicant seeks to restrain statutory powers ahead of final adjudication, relief should only be granted in the clearest of cases. The Ithuba case falls short of that standard”, Johnson contested.

The case is before Judge Omphemetse Motumise of the Gaborone High Court.