applicant I, on a regular basis, purchased tickets for the National Lottery from ordinary lottery ticket outlets.
7.
The reason I became a member of the applicant was because the applicant offered me an opportunity to
purchase tickets for the National Lottery without having to stand in queues. This was attractive to me as I often
found it difficult, due to my business commitments, to attend at a retail outlet to purchase the National Lottery
tickets myself.
8.
Despite having purchased many tickets for the National Lottery through the applicant, I have never been
furnished with any of the tickets for the National Lottery that I have purchased. After purchasing lottery tickets
from the applicant I would receive confirmation via email from the applicant of the combinations of numbers I
had chosen and that these numbers had been recorded. Whenever I won a prize the applicant would inform me
of this, indicate my winning combination(s) of numbers and the amount I had won and confirm that the
corresponding amount had been credited to my account with the applicant. On those occasions that I have won
a prize the amounts with which I have been credited have varied but have never been more than
approximately R400.
9.
In addition to the notifications that I have received from the applicant as set out in the previous paragraph, on
those occasions when I have won a prize the applicant has informed me of this and of the amount that I have
won by way of short message service ('sms') on my cellular telephone.
. . .
14.
On Monday, 4 October 2004, as both Ms Rissik and I believed that the second respondent was connected with
the applicant, Ms Rissik contacted the second applicant via its helpline. Ms Rissik was advised by the people she
spoke to that there was no link between the applicant and the first and second respondents. Ms Rissik informed
me of this.
15.
I was extremely surprised to learn that there was no link between the applicant and the first or second
respondents. I had, at all times, thought that, due to the fact that the applicant was trading under the name and
style of 'LottoFun', the applicant was officially settling tickets as part of the National Lottery."
[53] It is not difficult to take a robust view of the value of this evidence. Mr Van Heerden "became a member" of
Lottofun; he regularly purchased tickets using its website; he participated, apparently without objection in the
modus operandi of its business viz the retention of the tickets, the crediting of winnings to an account in his
name, and the notification of success through the SMS process. He states simply that the basis for his belief in
"a connection" between Lottofun and the National Lottery was the use of the word "lotto" in the trading
name
View Parallel Citation
"Lottofun". He fails
Page 485 of [2009] 4 All SA 470 (SCA)
entirely to explain how he reconciles his belief and conclusions with the contents of the website (which he and
any other competitor must necessarily peruse in order to know how and on what terms to participate in the
Lottofun service), nor does he deal with the unequivocal aspects of the Lottofun contract and the manner of
running its business which are entirely different from those of ordinary lottery ticket outlets, such as the
opening of a trust account in his name. Most important perhaps is his silence on cardinal issues: whether he
read or understood the terms of the contract, particularly those in which the agency relationship and the
commission liability were established, the express disclaimer of any sale of tickets by Lottofun, and the
repeated disclaimers of a relationship between Lottofun and the National Lottery. The overwhelming sense
which one obtains is of an affidavit drafted with the deliberate intention of avoiding those questions to which
the deponent could offer no convincing response.
[54] On an overall assessment of the evidence presented to the court below the learned Judge should, given that
he was dealing with an attempt to obtain final relief in motion proceedings, have proceeded on the basis that:
(a)
the persons potentially served by the Lottofun business must necessarily possess a degree of
sophistication and intelligence;
(b)
the allegations that OnLine's contract was a sham were entirely without foundation;
(c)
the business carried on by OnLine (Lottofun) was the purchase of tickets on behalf of its members ie as
agent and not as principal and the payment over and above the retail price of a ticket represented
commission and not a part of that price;
(d)
the business did not involve the sale of tickets to its members or to members of the public;
(e)
there was no reason for any member of the public to believe that the business was connected with the
national Lottery, the Board or Uthingo; the businessname "Lottofun" was sufficiently different from the
named used by Uthingo in connection with the "Lotto game" to put any reasonable man on serious
enquiry as to whether there was such a connection; any person sufficiently interested in acquiring
tickets on line by means of Lottofun would, even if initially confused, be disabused of that confusion
before committing himself to the acquisition of tickets;
(f )
any person who became a member of and purchased a lottery ticket through Lottofun and nevertheless
continued to believe that he or she was buying the ticket from Lottofun or that Lottofun represented an
authorized outlet for the sale of tickets in the National Lottery would necessarily be the victim of his
own carelessness or indifference.
[55] If such were the findings of fact on which the learned Judge should have relied to decide the case before him
it is plain that the justification did not exist for any relief directed against the sale or disposing of the Lotto