National Gambling Amendment Bill, 1999: briefing

A. INTRODUCTION

1. The principle of extending the date for the disposal of shareholdings of organisations with which the State is concerned was fully canvassed by

the National Assembly and NCOP during the debates on the Gambling Matters Amendment Bill in March and April 1999.

2. The same issue will again come before the two Houses as part of the consideration of the Gambling Matters Second Amendment Bill. It is not a new issue, but simply a clarification or remedial exercise. It should therefore be seen as being akin to a mere formality.

B. CRITICAL IMPLICATIONS OF ANY DELAY

3. It is of national interest that this amendment be passed as soon as possible. Unnecessary delays will hold these implications:

C. SEQUENCE OF EVENTS

4. The National Gambling Act, 1996 was passed during June 1996 and came into effect on 18 April 1997.

5. Section 13(1)(f) of that Act in its original form prohibited the holding of any financial interests in gambling activities after 10 May 1999 by the State and organisations with which the State is concerned.

6. That section contemplated, among others, the disposal of the indirect shareholdings in casino resort group Sun International of these entities:

7. Those shareholdings are a legacy of the past, in that the gambling laws of the former homelands did not prohibit their governments and government agencies from holding shares in gaming activities.

8. The North West and Eastern Cape provincial authorities approached national government early in 1999 and, on the basis that they would not be able to realise full value if they had to dispose of those shares in the remainder period through to 10 May 1999, proposed an extension of that cut-off date.

9. In consequence, the Gambling Matters Amendment Act, 1999 was passed during April 1999. It amended section 13 (1 )(f) of the National Gambling Act by providing, among others, for the prohibition of the holding of financial interests in gambling activities by the State and organisations with which the State is concerned from a date to be determined by the responsible Minister.

10. The responsible Minister, being the Minister of Trade and Industry, has since by Proclamation determined 10 May 2003 as the new cutoff date.

11. It is important to note that:

D. THE ISSUE

12. The national legislature intended the amendment of the National Gambling Act to cater for the extension of the date by which; among others, the NWDC, TDC and CPDB has to dispose of their shareholdings in the Sun International group.

13. That intention is clear from the explanatory memorandum that accompanied the Gambling Matters Amendment Act in its Bill form.

15. It is uncertain whether the drafting of the pertinent paragraph in the Gambling Matters Amendment Act, competently captures that intention.

16. Some are satisfied that the drafting correctly captures and conveys that intention of the legislature. Others are concerned that the drafting is unclear, or perhaps even technically deficient.

17. If the detractors' position should be correct, the effect would be that, through the choice of wording, the NWDC would inadvertently have been excluded from the extended date for the disposal of its shareholding in the gaming group. The same concern does not apply to the TDC and CPDB.

18. Such a confusion or oversight regarding NWDC would result in:

E. THE SOLUTION

19. The prospect of those unintended consequences should not be permitted, as that would conflict with the legislature's express intention with the amendment of the National Gambling Act by means of the Gambling Matters Amendment Act, 1999.

20. In order to address the issue, the Gambling Matters Second Amendment Bill has been introduced into the Parliamentary process. The passing thereof will not raise any new principle. Instead, at best it will amount to a clarification of the national legislature's intention with the Gambling Matters Amendment Act. At worst, it will amount to the correction of a technical error in the drafting of the Gambling Matters Amendment Act which failed to correctly convey the legislature's intention.

21. Therefore : nothing has changed since the debates on the Gambling Matters Amendment Bill during March and April 1999. The principle remains the same: the NWDC, then under judicial management was no longer required to dispose of that shareholding by 10 May 1999. The NWDC, still under judicial management, is still not required to dispose of that shareholding before the new cut-off date, since determined by the Minister of Trade and Industry as 10 May 2003.

22. The solution is apparent: national interest requires the restatement of the legislature's intention by means of the expeditious passing of the Gambling Matters Second Amendment Bill.