CIV/T/40/78
IF THE HIGH COURT OP LESOTHO
In the Matter of:
RALIMPE RAPEEAME Plaintiff
v HOLIDAY INN Defendant
JUDGEMENT
Delivered by the Hon. Mr. Justice F.X. Rooney
on the 5th day of Hay, 1980.
The Plaintiff's declaration contained the following paragraphs.
" 3. On Saturday the 11th February, 1978,
the Plaintiff was gambling in the Defendant's public premises and in the course of such gambling he (Plaintiff) won Ten Thousand Rand (10,000-00) on A One Rand (R1.00) gambling slot machine which was ringing and showing the following four numbers: 7777.
4. The Defendant through his mechanic, reversed the above mentioned numbers and refused to pay the Plaintiff the sum of R10,000-00.
5. Thereafter the Defendant through his
employees or agents immediately expelled the Plaintiff from the Defendant's premises or precincts and banned him (Plaintiff) from going to the Defendant's place in the future to either gamble, drink or intertain himself in any way whatsoever."
In addition to his claim for payment of R10,000, interest and costs, the plaintiff sought an order setting aside the defendant's decision to bar him entry to the Holiday Inn, Maseru.
When the action came up for hearing on the 1st April, 1980 having heard arguement, I dismissed the claim for damages and by consent ordered the setting aside of the defendant's prohibition against the plaintiff entering the Holiday Inn Casino at Maseru. I reserved the question of costs and indicated that I would give my reasons for dismissing the main action at a later date.
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The defendant filed no exception to the declaration and in its plea stated
" AD PARAGRAPH 3 :
Save and except that Defendant admits that on the date alleged it possessed a "Big Ben" slot machine, each and every allegation in this paragraph is denied as if specifically traversed and Plaintiff is put to the proof thereof.
More specifically, Defendant denies that Plaintiff inserted any coins whatsoever into the slot machine"
It will be seen therefore that the defendant did not raise as any part of its defence that the plaintiff's claim for damages was unenforceable at law. M. Olivier for the defendant said that this was in accordance with his instructions as his client did not wish as a matter of policy, to rely on the fact that the plaintiff's main action arose out of a gaming transaction. However, this Court took the view that if the claim of the plaintiff was unenforceable at law there was no cause of action before it. Furthermore, I consi-dered that if a gaming transactions of the nature described in the declaration were not enforceable on the grounds of public policy
then this Court would not assist the plaintiff. (Tucker v. Conn 1952(3) S.A. 478). The Defendant could not avoid the issue of
enforceability by declining to raise it.
In England where all contacts or agreements by way of gaming or wagering are declared null and void and unenforceable by statute (Gaming Act 1845. S. 18), the courts have consistently resisted attempts indirectly to enforce wagering contracts (See Hill v William Hill (Park Lane) Ltd. 1949 A.C. 530). An English Court can take the point of its own motion although the defendant does not plead the section, (Chitty on Contracts 24th edition 3819, note 68). Although no
statutory prohibition against gaming exists in Lesotho and the English practice is said to be founded upon the basis that the courts will not help to defeat the objects of the legislature, I consider that this Court must adopt a similar attitude to any attempt to avoid a
rule of common lew. (Tucker v Conn, supra).
3/ The leading ....
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The loading South African case on gaming and wagering at Common Law is Gideon V. Van Der Walt 1952(1) 262 in which Fogan J.A. delivered the judgement of the Appellant Division commencing at 265. Having regard to the older authorities including Grotius and Voet it is clear that gaming transactions are not illegal, but, as a matter of public policy unenforceable. A gaming debt could not be sued on nor could the money if paid be reclaimed.
Voet in XI. 5 deals with the attitude of the Roman Law to gamblers and in particular illustrates the abherrence with which the Romans regarded games of pure chance. He says (2) "to be a gambler was accounted by the Jurists of Rome among defects of disposition, just as much as it was deemed a disgrace for anyone to turn out a wire-biber or a glutton or an impostor or liar or a litigious person". (Ganes translation) ...
This Roman austerity did not survive in the law of Holland. Nevertheless, the disgrace or 'turpitudo' remained to the extent that the courts would not entertain gambling claims. In Wille's Principles of South African Law' 4th edition at 316 the learned author says of wagering contracts that they are contrary to public policy since people are not allowed to use their property to their own injury without any benefit to the general public. The authority cited is Grotius.
Mr. Samuels sumbitted that public policy is not a static formula incapable of revision. He drew my attention to various enactments in force in Lesotho which indicate a change in public attitudes to gambling. In particular there is the Casino Act (No. 26 of 1969). Section 3 of the Act exempts specified statutes and the provisions of any other law prohibiting the promotion or operation, of or the participation in gaming, betting or lotteries from any Casino established under the Act. Subject to certain controls, the Act provides for the establishment of casinos whose main function is the promotion of gambling. Other legislation which permits, if it does not encourage, gaming and wagering includes the Lotteries Act (10 of 75) end the Betting Control Act. But, there is nowhere to be found in any of these measures anything which purports to amend the common law as to the enforceability of gaming contracts.
4/ In fisher .....
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In Fisher v Straiton 1920 W.L.J. 53 de Villiers J.P. referring to betting contracts at 57 said ' ....... although they
may not be illegal they are sponsiones lacking in that element of seriousness and deliberation which is essential to our law. This is apparently also the law in Scotland.
The learned Judge went on to consider if the statute law regulating certain forms of gambling in force in the Transvaal altered the situation and he concluded*
" It does not follow that, because bookmakers are taxed, the legislature intended that they should bo able to recover in a court of law. The view of the legislature scene to have been, while not approving of wagering engagements as serious contracts, in view of the infirmity of human nature, to allow such engagements to be entered into under strictly limited circumstances, in the meantime imposing a tax upon them which would be a source of revenue to the Province and would bE some extent discourage the practice.
While I do not think that it was ever the intention of the Lesotho legislature to discourage the practice of gambling by taxing the proceeds, it is certainly the case that it did not enact any change in the law which would render a betting contract enforcemable by the courts as if it was a serious agreement.
It is interesting to compare the attitude of the English courts to lawsuits arising from gaming and wagering before the passing of the Gaming Acts. Although by the common law of England wagers were valued and could be enforced by the winner the rule was not much liked by the courts who refused to enforce wagers on many grounds (Chitty supra 3318 ). No doubt it was felt that the courts had more serious business to attend to than adjudicating upon the disputes of gamblers. (Robinson v Mearns (1825) 6 D & R.K.B. 26).
On the question of costs, I take the view that the defendant ought to have excepted to the declaration at the earliest opportunity and should not have asked for particulars or allowed the matter to have gone to trial. Its reluctance to raise the issue of enforceability and its wish to have the matter decided upon the facts should not be the occasion of additional expense to the plaintiff who was unsuccessful on this issue. Subject to what I have added below, the defendant is entitled to such costs as it would have been awarded if it had filed an exception, and no more.
5/ The
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The order setting aside the banning of the plaintiff from the casino was made by consent. The right of the defendant to exclude the plaintiff from the promises depends on Section 24 of the Casino Act. No finding has been made on this issue by this Court. Nevertheless, in consenting to the setting aside of the order, I an entitled to assume that the defendant concedes that its action in this regard could not bo supported. Thus the plaintiff was partly justified in taking these proceedings. For this reason I reduce the amount of costs awarded to defendant by 20% and make no order in favour of the plaintiff.
F.X. ROONEY
JUDGE 5th May, 1980.
For Plaintiff . Mr. Samuel For Defendant . Mr. Oliveir
