SunWest International, owner and operator of GrandWest Casino and Entertainment World in Cape Town, is involved in a dispute with three punters over the payment of credits totalling more than R6.24 million from a malfunctioning slot machine at the casino (a settlement agreement has been reached with a fourth punter).

The three punters – Maganathan Padayachee, Sharnetha Harilall and Sherilee Padayachee – allegedly unlawfully withdrew a total of R2.59 million of these credits in their Sun MVG (Most Valued Guest) loyalty programme cards from an automated cash machine (ACM) at the GrandWest Casino as well as the Sibaya Casino & Entertainment Kingdom in Durban.

This emerged in a judgment handed down in the Western Cape High Court this week to an exception application by SunWest to a counterclaim by the four punters.

Acting Judge Pearl Andrews said the matter has become settled between SunWest, a subsidiary of Sun International, and a fourth punter, Nazley Padayachee, with this settlement agreement made an order of court on 1 August.

Ts&Cs and disclaimer notices

SunWest said the three punters are existing Sun International patrons and members of the MVG loyalty programme to which membership terms and conditions apply.

It said these terms and conditions include that members accept that it is possible for errors or system malfunctions to occur.

SunWest said in such instances, Sun International reserves the right to adjust or revoke discounts applied, loyalty points, benefits or tier credits received by members.

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It added that in terms of the Western Cape Gambling and Racing Act and its regulations, it has various disclaimer notices situated at places such as the entrance to GrandWest, the cash desks in the casino area, and all the slot machines in the casino area.

SunWest said these disclaimer notices include the following:

“It is possible for electronic equipment and slot machines operated on these premises to malfunction. The operator reserves the right to verify such equipment and machines prior to making payments or rewards in respect of winnings and/or prizes …

“Jackpots paid subject to all technical and electronic verification being positive. Malfunction voids all plays and pays.”

Taking a gamble

SunWest alleges that between 26 and 29 January 2023, the three punters entered its premises at GrandWest and took part in gambling activities, including playing slot machines.

It alleged Maganathan Padayachee recognised on 26 January 2023, when playing a specific slot machine, that this machine had malfunctioned.

The credits that were transferred to this machine remained on Maganathan Padayachee’s MVG card, thereby increasing the number of credits on his card.

SunWest further claimed that after recognising that this machine was malfunctioning, Maganathan Padayachee – through the allegedly intentional and fraudulent use of his MVG card – unlawfully received credits from this machine totalling R1 075 772.90.

Maganathan Padayachee withdrew R24 000 in cash and requested the sum of R1 047 433.80 be transferred from GrandWest to Sibaya where he withdrew R1 million in two tranches of R100 000 and R900 000 in cash from the cashier.

Back for more

It is further alleged that Maganathan Padayachee returned to GrandWest on 27 January 2023, and after re-establishing that this machine was still malfunctioning, allegedly unlawfully received credits from this machine totalling R2 484 634.97 through the allegedly intentional and fraudulent use of his MVG card and day visitor card.

SunWest alleged that Maganathan Padayachee on 27 January 2023 withdrew R10 000 in cash from the ACM at GrandWest and requested that R565 197.88 be transferred from GrandWest to Sibaya, where he withdrew R12 000 in cash from the ACM.

Maganathan Padayachee further allegedly requested that funds totalling R3 382 214 be transferred by GrandWest to Sibaya for withdrawal by himself and Sharnetha Harilall.

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SunWest claimed the same or similar modus operandi was implored by Harilall and Sherilee Padayachee on 27 January 2023 and 28 January 2023, and over the course of 26 to 29 January 2023 they allegedly unlawfully and intentionally received credits from the malfunctioning slot machine.

Counterclaim based on ‘tacit agreement’ with casino

In a counterclaim, the three punters claimed that during or about January 2023 in Cape Town they concluded a “tacit agreement” with SunWest.

They said the terms of the tacit agreement, among others, were that:

• They would participate in gambling activities at SunWest’s premises and in doing so would make use of MVG cards and/or day visitor cards and would deposit monies into the loyalty card or alternatively make use of accumulated credits available on the loyalty cards;
• They were entitled to withdraw any accumulated credits from the loyalty cards at their exclusive discretion and on demand; and
• SunWest would be liable to pay them any accumulated credits they sought to withdraw at their exclusive discretion and on demand.

SunWest claimed an exception in its interlocutory application on the grounds of the failure by the punters to allege:

• The date the tacit agreement was concluded;
• The place where the tacit agreement was concluded;
• The identity of SunWest’s authorised representative; and
• The conduct upon which they intend to rely to establish the tacit agreement, which SunWest claims is necessary to show that the parties intended to, and did, contract on the terms alleged by the punters.

SunWest said by failing to do so, the allegations by the punters are vague and embarrassing, and it would be prejudiced if required to plead to them.

It further claimed in the alternative that the allegations are irregular – in that they did not contain a clear and concise statement of material facts on which the punters rely for their claim with sufficient particularity to enable SunWest to reply to them, as required by uniform rules of court.

‘Particularity’ a pivotal point

Judge Andrews said the purpose of an exception is to weed out matters without legal merit, and a court is obliged to consider whether the pleading lacks particularity to an extent amounting to vagueness.

Her view was that the vagueness relates directly to the punters’ cause of action, which requires particularity insofar as it relates to the date when the tacit agreement was entered into, the specific place where the tacit agreement was entered into, and the specific person with whom the tacit agreement has been entered into.

Judge Andrews said the court was therefore obliged to undertake “an analysis of the embarrassment”.

She said the merits or demerits of this matter cannot be considered at the stage of exception and she made no findings in that regard.

But Judge Andrews said the vagueness of the punter’s counterclaim will indeed cause potential prejudice to SunWest because the punters’ counterclaim “is manifestly devoid of facts that show unequivocal conduct”.

Andrews said she is consequently not persuaded the punters have furnished sufficient facts to sustain their counterclaim relating to the terms of the tacit agreement.

She said she is therefore satisfied that SunWest has succeeded in proving vagueness, embarrassment and prejudice – and upheld SunWest’s exception with costs.

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However, Andrews said to ameliorate any prejudice to the punters, the court will in the exercise of its discretion grant them 20 days from the granting of her order for them to amend their counterclaim.

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