Advocate Sidney Pilane has accused the Gambling Authority of being in a long-standing unethical relationship with the owners of Masa Centre which is located in the new Gaborone CBD.
“It is submitted that both the appeal and the motion lack merit, are taken only out of either out of an irresponsible vindictiveness or a corrupt desire to desire to reserve the casino licence sought by the respondent for the owners of Masa Centre or a tenant they might obtain in the future, for the applicant has a history of collusion with such owners,” reads an answering affidavit that Pilane has put together on behalf of his client, Moonlite Casino.
The matter in question relates to a stay-of-execution application by the Gambling Authority (previously known as the Casino Control Board) following its loss to Moonlite Casino, the gambling arm of Gaborone Hotel. Moonlite Casino wants to relocate to the i-Towers complex in the CBD but Three Partners Resorts, the company that owns Masa Centre, is objecting to such relocation. The latter retains the legal services of Minchin & Kelly Attorneys which has a senior partner, Thabiso Tafila, who also happens to be the Chairperson of the Authority’s Board of Management. While offering to recuse himself from the proceedings of a March 31, 2016 meeting, Tafila indicated that if he did so, the meeting would become inquorate and the matter would have to be heard at a later date. Another complication was that the Casino Control Board would cease to exist in only eight days, ushering in an altogether new dispensation.
“In response, both parties were of the view that the chairperson had been transparent and they stated that they trusted that he would be objective despite the involvement of his law firm,” read minutes of the March 23, 2016 meeting.
With Justice Dr. Zein Kebonang having ruled in favour of Moonlite and having ordered the Gambling Authority to transfer the former’s licence from the bus station to the CBD, the latter has appealed to the Court of Appeal and also applied for a temporary suspension of Kebonang’s order ÔÇô “stay of execution” in legal parlance ÔÇô pending the CoA outcome. Basic to the stay-of-execution applications is the argument that the appeal has good prospects of succeeding. That is the argument that the Gambling Authority makes in its court papers, poking holes in Kebonang’s judgement. In his founding affidavit, the Authority Chief Executive Officer, Thulisizwe Johnson, says that permitting Moonlite to relocate would pre-empt the adjudication of the CoA. A related point he makes is that in the event Moonlite moves to the i-Towers and loses the appeal, it would incur significant financial loss. To the latter, Pilane has some choice response words: “As to the financial loss of a reverse execution, volenti non fit injuria – it is a risk that the respondent is prepared to assume, and the latter does not care to be patronised by the applicant as though the former is incapable of conducting its own casino affairs when it has, for no less than 10 years, done so without the condescending patriarchy of the applicant.” The Latin means “To a willing person, injury is not done.” In another part of his affidavit, Pilane states that the longer the delay in operating the CBD casino, the greater the costs that Moonlite will not only incur but also not be able to recover.
One of the issues of contention is a letter that the Authority wrote Moonlite’s Managing Director, Bipin Awasthi, to say that it could not consider his application. The court adjudged this to be a decision (a rejection) and in its judgement says that the Authority’s lawyer, Sipho Ziga, held the same view. In his founding affidavit, Johnson says that Kebonang misunderstood what Ziga said. The other issue is of the Authority’s Chairperson, Tafila, having chaired a meeting in which Three Partners Resorts featured as an objector to Moonlite’s application to relocate to the CBD. Moonlite was represented by Awasthi and Gaylard Kombani, who happens to the former Deputy Permanent Secretary in the Ministry of Trade and Industry (as it then was) as well as former Casino Control Board member.
In his judgement, Kebonang said that while Tafila did reveal his business relationship with the company, there was no way he could extricate himself from the conflict-of-interest complication. The litigants are wrangling over whether the judge applied the accurate legal principle when he ruled on this matter.
“The court misdirected itself when it held that Mr. Tafila, the Chairman of the Casino Control Board, ought to have recused himself based on reasonable apprehension of bias. The court conflated the concept of reasonable apprehension of bias with the concept of actual bias, which was the case pleaded by [Moonlite]. The court ought to have found that there was no evidence of actual bias, which was the case pleaded by [Moonlite]. The court ought to have found that there was no evidence of actual (as opposed to a reasonable apprehension) of bias by Mr. Tafila and that, in any event, [Moonlite] waived its rights to contend that Mr. Tafila ought to have recused himself,” reads Johnson’s affidavit.
Conversely, Pilane counter-argues that the court applied the correct legal test and that waiver occurs when a party has a full appreciation of the facts and of its rights and, in the circumstances where it has an election, it elects to abandon those rights.
“That is not the situation with which the respondent and its lay representatives faced. Mr. Tafila, a lawyer of experience, ought in order to place the respondents’ representatives in a position to understand the legal implications of electing to let him to sit, to have advised them that that election could, in law, amount to a waiver of the right to object to him sitting. It was improper of him to deceive them into letting him sit by informing them of the implication objecting to his sitting without telling them, in the same breath, that by letting him sit they might waive respondent’s right to object,” says Pilane’s affidavit adding that Tafila was “biased in the advice he gave them just as he was biased in the way he and his board handled the respondent’s application.
Moonlite has sought to characterise its application as being no different from two other applications for relocating a casino. The first is of Sedibeng Casino in Francistown which relocated from Thapama Lodge to Peermont’s Metcourt Hotel just across the road. The second is of an unnamed casino that relocated from Matlapaneng to Maun some four years ago.
“The respondent’s application in the present case sought the same in terms of the same procedure and provisions of the law,” Pilane says in his affidavit.
Awasthi’s own affidavit gives a bit more detail about what is supposed to be collusion between the Gambling Authority and the owners of Masa Centre. He says that Three Partners Resorts has applied for a casino licence under different names (Sealema Holdings and Workman Holdings) and that on two occasions, the application was approved. He accuses the Authority of “fabricating” minutes of March 31, 2016 meeting. By his account, the minutes were “fabricated and hustled five months after the meeting was held.” Of Tafila chairing this meeting he asks: “Why did Chairman plan/decide earlier to bring another chairman during previous five months waiting period when he knew he [was] conflicted seriously with the same client who was given casino licence earlier by the same chairman for Masa Centre?