Neither the Casino Act nor the Gaming and Gambling Policy require casino operators to undertake an environmental impact assessment (EIA) but when Moonlite Casino at Gaborone Hotel sought to relocate to the i-Towers Complex in the new CBD, that was one of the requirements that the Casino Control Board (CCB) asked it to meet. A hop and a skip down the road from the i-Towers is Masa Square which has been trying to open a casino of its own. Currently, this effort is being spearheaded by a company called Three Partners Resorts. The latter is opposed to Moonlite Casino relocating to the CBD.
Developments gathered pace at the March 23, 2016 meeting that Moonlite and Three Partners Resorts representatives held with members of what was then called the CCB. In only seven days, the CCB would take a new name ÔÇô the Gambling Authority. More than anything else, this meeting was defined by a catch-22 situation of an unusual kind. The CCB’s chairperson (and chairperson of this particular meeting) was Thabiso Tafila, a senior partner at Minchin & Kelly Attorneys, a Gaborone law firm that also happens to represent Three Partners Resorts. While Tafila did declare his interest as the rules demand, he further told the meeting that if he recused himself, the quorum would be lost and a resolution not made on Moonlite’s application. Happily though, both parties agreed that Tafila had been “transparent” and endorsed his chairmanship of the meeting.
Minutes of the meeting show that the Board didn’t think that the case made by the Three Partners Resorts was credible. The company will itself not operate a casino but will rent out space to a casino operator. Its objection was that a former tenant, Workman Holdings, wanted to relocate its casino licence from Riverwalk Mall to Masa in 2009 but the Board rejected such application. However, what had actually happened was that Workman Holdings didn’t have a casino licence but merely had Board approval to operate a casino. At the time the premises for the future casino had not even been constructed.
The next paragraph reveals what would probably have been an embarrassing detail for representatives of the Three Partners Resorts. Describing the company as a non-bonafide objector, Moonlite’s director, Bipin Awasthi, revealed that Three Partners Resorts had actually tried to get him to partner with by relocating to Masa Square. From this proposal ÔÇô which Awasthi said he had documentary proof of in the form of an email ÔÇô Moonlite would get 15 percent.
At this point, Three Partners Resorts objection lost steam and the meeting focused solely on Moonlite’s application. The issue of the EIA came up and Moonlite representatives said that “they were of the view that the owner of the building had conducted it.” The Board also wanted to know who the other tenants in the building were. At the end of the meeting, Moonlite was asked to “submit an approved EIA of the premises and a list of other tenants of the building before 31st March 2016.” The significance of the latter date was that on the day the Casino Act would be repealed and the CCB would cease to exist.
The response to Moonlite’s application came on that date at 1730 p.m. The response was that a conclusive decision could not be made because Moonlite had not submitted an approved EIA of the promises, that it had failed to indicate what other businesses would operate from the same premises and that it had not indicated whether construction of the premises had been completed. The letter also said that the Casino Act and its subsidiary legislation would be repealed the following day. In the new order, the Casino Act would become the Gambling Act, the CCB would become the Gambling Authority. Moonlite was advised to make a fresh application for relocation under the new Act.
When the subsequent back-and-forth (which included an appeal to the Minister of Investment, Trade and Industry) didn’t produce the desired results, Moonlite took the matter to the High Court. Board members don’t come out smelling of roses in Justice Dr. Zein Kebonang’s judgement. The judge expressed bafflement at why, given what was said at the March 23, 2016 meeting, the CCB would wait until March 31 and deliver its decision to Moonlite at 1730 p.m.
“It could indeed be said that by waiting until 1730 p.m. to deliver its response, the Board effectively ensured that the applicant would not be able to meet or have sufficient time to address concerns raised by it before the entry into force of the new legislation. Equally, it is not far-fetched to suggest that the delivery of the Board’s response at 1730 p.m. was to ensure that if the Applicant was able to somehow address the concerns raised by the Board, then there would not be anyone at the office to receive, deal with or transmit the applicant’s response to the Board,” Kebonang’s judgement says.
The judge also notes the oddity of some resolutions that are not reflected in the Board minutes and was led to wonder: “Were the minutes reconstructed as suggested by the applicant?” He elects not to answer that question but states bluntly in the next sentence: “There may be merit in the applicant’s submission that the conduct of the board and the delays and requests for additional information were really an artful way to conceal a decision to reject the application.”
This and other aspects of the matter led Kebonang to direct the Gambling Authority to transfer Moonlite’s licence from the bus station to the CBD “with immediate effect.” That has not happened yet because the Gambling Authority has appealed Kebonang’s ruling at the Court of Appeal. On itself that wouldn’t stop the enforcement of the judgement and the litigants’ lawyers return to court this week to argue a stay-of-execution application by the Authority. Advocate Sidney Pilane is representing Moonlite, Sipho Ziga the Gambling Authority while Grenorrah Begane is representing the Attorney General.
