In a ruling that marks a turning point in the long drawn legal battle between Growmine Africa, Gambling Authority, and Ithuba Solutions since 2022, Growmine Africa has lost a case in which they challenged the legality of a decision by the Gambling Authority to terminate its national lottery license negotiations.
On the 26th of July 2021, the Gambling Authority terminated Growmine Africa (Pty) Ltd as the preferred bidder for the multi-billion Pula national lottery because the latter failed to raise P100 million for the national rollout plan. The revocation meant that Growmine, a 100 percent citizen-owned company with the largest consortium ever, would not operate Botswana’s first-ever national lottery, in favour of the reserve bidder, Ithuba Solutions (Pty) Ltd.
Growmine Africa, trading as Dineo tsa Pula, was announced as the preferred bidder for the national lottery on the 4th of June 2020, while Ithuba Solutions was named the reserve bidder for the purpose of awarding the first ever Botswana National Lottery for a period of ten years.
The Authority indicated then that the selection of Growmine Africa was subject to successful negotiations and the conclusion of a Licence agreement between the Authority and Growmine as the preferred bidder. Interestingly, the Gambling Authority announced on the 26th of July that negotiations between itself and Growmine were unsuccessful, and consequently, the Authority took a decision to revoke Growmine’s status as the preferred bidder.
In the announcement, the Authority said the failure of the negotiations emanated from Growmine’s failure to satisfy the Authority on a key, non-negotiable requirement as per the Request for Application (RFA) for a licence to operate the National Lottery as well as a key undertaking made in their application and in presentations to the Evaluation Committee. The authority did not however go into details.
Consequently, the Growmine board unanimously decided to appeal the Gambling Authority decision to the highest office, being that of the Minister of Investment, Trade and Industry, Kgafela Mmusi.
In a case where the preferred bidder is unsatisfied with the Authority’s decision, as was the case with Growmine, the RFA allowed for the bidder to appeal the decision with the Minister, after which the matter may be taken to Court, if the Minister decides not to overturn Gambling Authority’s decision.
Growmine’s review application challenged the legality of the gambling Authority, and the Attorney General’s decision to terminate the national lottery license negotiation with itself.
Growmine’s application was opposed by both the Authority and the Attorney General, with the AG going a step further by filing an interlocutory application to declare Growmine’s application invalid, and for it to be struck out.
Further to that, Ithuba Solutions, which was the third respondent, further filed a notice of irregular step against the review application. The notice evinced that Growmine’s notice of motion failed to call upon the decision-makers, to dispatch a record of proceedings sought to be corrected, contrary to the preemptory review requirements.
In the newly filed amended notice of motion of 13 September 2023, Growmine specifically sought an order to be granted leave and condonation in terms of Order 61 Rule 8 of the Rules of the High Court. This was after it failed to file these review proceedings within four months after handing down the Attorney General’s decision that he did not have the jurisdiction to determine Grow Mine’s appeal.
Growmine wanted the Court to order Gambling Authority and Ithuba Solutions to: stop lotto license negotiations and review and set aside Gambling Authority’s decision to terminate license negotiations with Growmine and the revocation of its preferred bidder status.
Just like the previous other applications, this amended notice of motion elicited an avalanche of fury responses from the Authority, Attorney General and Ithuba Solutions. The Gambling Authority filed a notice of opposition on the 28th of September 2023, and further filed an Order 33 notice of application to declare the amended notice of motion as being irregular and that it must be struck out.
The Attorney General filed its notice of opposition and the notice to raise a point of law on the 20th of October 2023 in which it challenged the application for leave to file a review application out of time as being contrary to Order 31 (5) of the Rules of the High Court.
However, Gambling Authority filed a substantive Order 33 application to strike out Growmine’s notice of motion on the 2nd of February 2024. It sought the amended notice of motion to be declared irregular and be struck out.
In his ruling Justice Dr Ookeditse Maphakwane said there is no doubt that Grow Mine’s review application filed on the 28th of July 2022 was filed out of time and by at least one month. He said in terms of preemptory nature of Order 61 rule 8, once the four-month period has expired the affected application must seek leave from Court before the review application is launched. In hermeneutic terms arising from interpreting Order 61 rule 8, this means seeking leave prior to the filing of the review application was a legal prerequisite.
What Growmine sought through the amended notice of motion of 13 September according to Justice Maphakwane, is a strange relief that combines both leave and condonation.
He said the sought relief acknowledges that Growmine’s review application was already filed as at 28th of July 2022 and what was being sought was therefore leave and condonation over such review application filed out of time. Therefore, the decisive question according to the ruling is at what stage may leave be sought by Grow Mine in terms of Order 61 rule 8 and whether such provision has room for condonation application as well as in the event of an already filed application.
According to the ruling, an application for leave or condonation as characterised cannot be filed after the review application has already been filed as is in this case. Justice Maphakwane said the resultant effect is that in the absence of prior leave being obtained from the Judge, such review is legally invalid and cannot be resuscitated by such purported breather of condonation.
Further, Justice Maphakwane ruled that under Order 61 rule 8 of the High Court, it is impermissible and improper for an application to conflate the leave, condonation and substantive review application as what was required for leave to be sought prior to filing of a review application filed out of time.
“It therefore follows that the applicant (Growmine)’s condonation application cum leave is wholly invalid and noncompliant with Order 61 rule 8 of the High Court as it was launched after the review application was filed. Once such an application has been filed without the requisite leave, it is legally invalid such that the Court no longer has discretion to condone such non-compliance,” ruled Justice Maphakwane.
He added that arising from such reasoning, Grow Mine’s application for condonation has to fail. “It fails because of no compliance with Order 61 rule 8 which required leave to be sought prior to the review application being launched. It fails also because condonation application was incompetent,” he ruled.
