1. The plaintiff owns and operates a land based casino tn Swaziland. It also operates an online1 casino from Swaziland. It is licensed Under Swazi law to do so. This case concerns its online casino operation.

2. The plaintiff advertised its online casino through radio stations broadcasting in the province of Gauteng. The first defendant ("the GGB") warned the broadcasters to atop broadcasting the plaintiffs advertisements. The GGB asserted that the plaintiff was not licensed to conduct a casino in Gauteng and that its internet casino operation was thus conducted in contravention of S 77(1) of the Gauteng Gambling Act 4 of 1995 ("the Provincial Act") and the National Gambling Act 7 of 2004 ("the National Act"). Section 77(1) reads, to the extant relevant:

No person shall gamble at any place other than the licensed premises.

66. In my view the flaw in the argument is the following: the critical elements identify a game which is a gambling game. Once the critical elements exist, the game in question is a gambling game and thus, for present purposes, an interactive game. Section 11 does not merely prohibit engaging in or making available the critical elements. The section prohibits engaging in or making available the game as a whole, it matters not in my view whether the critical elements are to be found or are generated within the borders of South Africa or not Section 11 proscribes in my view both engaging in the game, which happens each time a garnbler presses the spin button, and making available the game, which takes place at least when the plaintiffs servers in Swaziland make it possible for the gambler in Gauteng to connect interactively with them though the Internet.20

67. I agree with counsel for the defendants that in using the terms "engage in" and "make available" the legislature was using simple non-technical language. I am fortified in my conclusion by the statements of the plaintiff itself on its webpages to describe what it offers through its online casino.

NB Tuchten

Judge of the High Court