Moonlite Casino has suffered a big blow after the Court of Appeal ruled against them in their application to be awarded a Casino license to operate from Gaborone Bus rank to Central Business District. (CBD) (itowers Lot 54368)
On the 2nd April 2013 Moonlite casino wrote a letter to the Board expressing an intention to seek relocation of its Casino business from Gaborone Hotel premises to the more up market Gaborone Central Business District (CBD)
Gambling Authority appealed to the Court of Appeal after High Court ruled in favour of Moonlite.
But aggrieved by Justice Kebonang of the High Court, the Chairman of the Gambling Authority represented by the Attorney General took the matter to the CoA challenging his decision to be in favour of Moonlite.
In his judgment, Justice Lesetedi said the contention that Moonlite had substantially complied with the requirements of the Board was in the circumstances not valid.
“The record shows clearly that Moonlite Casino had at all material times prior to the 30th of March 2016 not complied with the requirements regarding the submission of an approval of Environmental Impact Assessment (EIA).It therefore could not assert a legal right to be awarded a licence for the premises it had applied to relocate to.”said Lesetedi
Judge Lesetedi said according to the minutes between the Board and Moonlite casino, item 7.10 of the Board minutes also recorded that the Board informed Moonlite Casino that it was unable to make a conclusive decision on the application because an approved EIA of the premises was not submitted and that Moonlite Casino did not indicate which other business would operate from the premises.
“This recordial is consistent with the letter of 30th March 2016.The list of the other businesses which would operate from the premises was only given on the 31st March 2016 although the minutes show that the information was required before that date as to enable the Board to determine the application by round robin.” said Lesetedi
It was on record that Moonlite had queried about the defective manufacturing of the minutes of the Board. Judge Lesetedi said it was necessary to observe that in its supplementary affidavit filed after delivery of the Boards minutes Moonlite Casino attacked those minutes on the ground that the minutes were very abstract and had omitted many essential deliberations that took place during the meeting and had a bearing on the review application.
Lesetedi slammed at Moonlite silence over the minutes it has initially complained arguing that had the attack on the minutes had any serious basis it would have been contained in the founding affidavit due to its seriousness basis and purposively having been made to representatives of Moonlite Casino at the meeting of the 23th of March 2016.
“It did not require the production of that meeting for Moonlite Casino to be aware of it. It was for the respondent (Moonlite Casino) to make out its case and to demonstrate that on material issues the minutes of the Board were in conflict with what it took place at the meeting of the 23th March 2016.Moolite casino dismally failed and the Board’s version stood to be accepted as reflective of what transpired at that meeting.”said the judge
The High Court was thus in error to hold that the Board effectively rejected the application. Neither the coming into effect of the Gambling Act and the termination of the Boards mandate nor the delays by the respondent (Moonlite Casino) to provide the required information were within the Boards control.
‘’The findings by the High Court that Moonlite Casino had shown that there was biased against it by the Board in two ways like the accusation that the Board failure to consider its application on time and that the Board Chairman’s close association with the law firm that represented the objector are unsupported by evidence in the affidavits.For them to also appeal to the Minister responsible they were forced to take Gambling Authority Act from section 137(2) and also section 12 of the Casino Act.
Lesetedi said the Minister was also legally right not to entertain the appeal because he did not have the legal jurisdiction to do that.
He said the decision of the High Court in favour of Moonlite is dismissed because it was unsupportable and the appeal must be upheld.