Clause 5 "Agency" provides as follows:
"5.1. If you become a Lottofun.Com Gold member, subject to 5.2, each time Lottofun.Com accepts your order for
lottery tickets, you will be deemed to have appointed Lottofun.Com, and Lottofun.Com will be deemed to have
accepted, appointment as your agent for the purposes set out in this clause 5 and on the basis set out in these
T.O.S.
5.2.
Notwithstanding anything else contained herein, Lottofun.Com will be validly appointed by you as your agent
only if, at the time you place an order for lottery tickets and for the duration of the purchase and processing
thereof:
5.2.1. Your order is not contrary to any law, regulation or the like to which you and/or Lottofun.Com is/are
subject;
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5.2.2. Your order does not result in the contravention of any agreement, undertaking, Court order, law and/or
regulation to which you and/or Lottofun.Com is/are subject;
5.2.3. Your membership is current, you are not in breach of these T.O.S., you are not in breach of the rules of
any applicable lottery;
5.2.4. The representations and warranties you make in terms of 2.5 are true and correct.
View Parallel Citation
5.3
Lottofun.Com, acting as you agent, will
5.3.1. receive the moneys you advance together with any winnings you may gain and hold them on your behalf
and/or if Lottofun.Com deems expedient may procure that such funds are held secure by a third party;
5.3.2. execute the accepted orders to purchase lottery tickets received from you using your funds;
5.3.3. purchase the lottery tickets you have ordered and hold them in fireproof safe custody;
5.3.4. check your ordered numbers against the winning numbers in the relevant lottery draw and promptly
apply to the lottery for any winnings that might be due to your ticket/s;
5.3.5. account to you from time to time (notionally into your member account withy Lottofun.Com) with your
winnings as and when they are received from the lottery;
5.3.6. procure that your funds are paid as directed by you from time to time;
5.3.7. levy a service/administration fee for acting as your agent and providing the services you use and deduct
same from your funds from time to time.
5.4.
If Lottofun.Com accepts an order to purchase lottery tickets on your behalf on the mistaken assumption that it
has been validly appointed as your agent, Lottofun.Com shall nevertheless be entitled, but not obliged, to fulfill
the order and, if it does, Lottofun.Com may use your funds to pay the costs and expenses associated with
same."
There are other clauses which also make the agency relationship clear eg 9.1, 9.8, 14.1 and 19. At the end of
the Terms and Conditions the disclaimer is again repeated. The Member Logon page contains the same
disclaimer as do the Contact Details page, the Main Help menu, the Privacy and Security page and the About
Lottofun page. It is also clear that any reasonably intelligent appreciation of the process of ordering and
paying for lottery tickets requires attention to the Terms and Conditions.
[51] It is clear from the foregoing that not only is a relationship of agency for the purpose of purchasing lottery
tickets on the customer's behalf established by the contractual provisions but also that no potential customer
who applies reasonable care (and even superficial attention) to the acquisition of tickets by means of the
Lottofun sites will be left in doubt as to the nature and purpose of that relationship.
[52] It is in that context that the affidavits of Amanda Rissik and Alwyn van Heerden must be judged. The
respondents relied on these deponents to support their case that OnLine was conducting its business in
such a manner as to deceive and create confusion in the mind of the public. Both witnesses were disgruntled
customers of Lottofun. They were in some sort of business partnership. They frequently purchased lottery
tickets,
Page 484 of [2009] 4 All SA 470 (SCA)
Ms Rissik says "from" Lottofun, Mr Van Heerden says "through" Lottofun. The former deposed, without laying
any factual basis for the statement, that "I have always thought that the applicant was officially selling lottery
tickets as part of the National Lottery in the same way as the ordinary outlets". The latter deposed as
follows:
View Parallel Citation
"5.
At all times up to Monday, 4 October 2004 I believed that there was a connection between the entity trading as
'LottoFun', which entity I have now been informed is the applicant, and the National Lottery. This belief was
based on the use made by the applicant of the word 'lotto' in its trading name.
6.
I became a member of the applicant more than a year ago. I have since then purchased in excess of R5 000
worth of National Lottery tickets through the applicant. For many years prior to my becoming a member of the