Trade, industry and competition minister Parks Tau and the National Lotteries Commission (NLC) have failed in their bid to appeal a judgment that found that the issuing of a temporary Lotto licence favoured Ithuba.
The high court in Pretoria on Wednesday dismissed Tau and the NLC's application for leave to appeal its May 21 ruling.
Judge Sulet Potterill dismissed the application with costs as she ruled that there was no reasonable prospect that another court could find that the minister's delays in announcing the winning bidder for the fourth national lottery licence did not constitute failure to take action.
Tau unsuccessfully argued that the court erred in finding that the minister had failed to provide “justifiable reasons” for the delay. The minister had also argued that the court erred in exercising the remedial power by suspending the order of invalidity for the temporary lottery licence for only five months.
This means the temporary licence, which would fill the period between the end of the third national lottery licence and the start of the fourth licence, could only be issued for five months and not 12 months as per the initial plan to issue the licence to Ithuba Lottery.
The May court application was brought by Wina Manje, one of the bidders, as it wanted the court to compel Tau to name the winning bidder for the lucrative lottery licence and review the minister's failure to award the licence, estimated to be worth more than R100bn over an eight-year period.
Wina Manje CEO Dawid Muller said on Wednesday: “We welcome the decision handed down by the high court in the minister's application for leave to appeal. The outcome confirms our position and upholds the principles of fairness, transparency and accountability that are fundamental to this RFP [request for proposal] process.”
Tau subsequently awarded a temporary licence to Ithuba Holdings, which ran the third lottery licence instead of its related entity, Ithuba Lottery, which had applied for the temporary licence.
It appears that this temporary licence, which has ensured that there was no Lotto blackout from June 1, would remain in place and operational unless it gets challenged.
I am satisfied that the period of five months for the suspension was based on the facts before the court and that another court will not come to a different conclusion
— Judge Sulet Potterill
“I am satisfied that there are no reasonable prospects that another court would come to another conclusion on any of the issues [on the temporary licence] ... there are no compelling reasons why this appeal should be heard,” said Potterill in her ruling.
She also indicated that Tau's appeal was moot as Sizekhaya Holdings was appointed the fourth lottery licence operator on May 28.
Potterill also dismissed the NLC's appeal, stating that she was satisfied that a fair and transparent process was not followed in relation to the bid and awarding of the temporary licence which the court found favoured Ithuba.
The judge ruled that no other court would rule differently and that there was “no compelling reason to grant leave to appeal”.
“I am satisfied that the period of five months for the suspension was based on the facts before the court and that another court will not come to a different conclusion. I am further satisfied that the minister awarded the temporary licence RFP, the order was against the minister and no appeal thereof lies with the NLC,” stated Potterill.
Tau had argued that in the specialised space like the lottery, it was natural and unavoidable that the bid would favour Ithuba as it already had infrastructure across the country as it operated the last lottery licence and that this was not deliberate from his part.
Nortons law firm MD Anthony Norton, who represented Wina Manje, stated after the court ruling: “Wina Njalo opposed the application for leave to appeal on the basis that the issues were moot and that the NLC had pre-empted its rights to seek leave to appeal in that it had it had applied to the high court to extend the five-month suspension period.”
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