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  • Great experience working with you to gain clarity of what needs changing in my business. Stephen Jordan Access to Africa - 25 August 2011, Marketing Module

Outrage As Court Declares Winikhaya An Unlawful Lottery

South Africa’s biggest children’s charities have been hit by a potentially devastating court finding that their multimillion-rand Winikhaya fundraising competition is illegal.

But the South African Children’s Charity Trust, which includes the Reach for a Dream Foundation, South African Red Cross Society, CHOC Childhood Cancer Foundation and Cotlands, is not taking the Supreme Court of Appeal’s decision lying down.

The trust, which raises money for children who are abandoned, abused, disabled or suffering from life-threatening illnesses, yesterday announced that it would today apply to the Constitutional Court for the right to appeal against the ruling given by appeal court Acting Judge Phillip Boruchowitz.

Judge Boruchowitz yesterday ruled in favour of the National Lotteries Board, which argued that the Winikhaya competition – which has paid out some R45-million to children’s charities over the past five years – was an illegal lottery and should be stopped. “No matter how meritorious the competition might be, it does not comply with the prescribed conditions (of the Lotteries Act), and the trust is obliged to discontinue its operations,” the judge said.

Ironically, it was Winikhaya’s charitable focus that saw it branded as an illegal lottery.

The Lotteries Board argued that Winikhaya, which could be entered with a R7,50 SMS and offered a R500 000 home loan and cash as prizes, was not a promotional competition as it did not promote the sale or use of any goods or services.

Under certain sections of the Lotteries Act, the board argued, the competition should therefore be declared illegal.

Despite the trust’s pleas that its charities would be severely compromised if Winikhaya was terminated, it was this “promotional competition” argument that convinced the appeal court. The ruling does not necessarily mean the end for Winikhaya, however.

It seems likely that the Lotteries Act – yesterday slammed by Cotlands executive director Jackie Schoeman as “a piece of legislation that is ambiguous and poorly worded” – will come under the scrutiny of the Constitutional Court’s 11 judges next year.

Schoeman admitted that Judge Boruchowitz’s ruling could have potentially dire consequences for the charities funded out of the Winikhaya competition, but stressed that the trust had launched Winikhaya five years ago “in good faith, based on the best available legal advice”.

“It is very difficult raising money, and Winikhaya provided us and other charities with guaranteed funds, for which we are very grateful,” Schoeman said.

Sources within the charitable sector have supported Schoeman’s statements, adding that Winikhaya had been a “godsend … particularly because the funding we receive from the National Lottery has been so erratic”.

Meanwhile, trust spokesperson Kimon Phitidis maintains that the Winikhaya show, which is watched by 6-million viewers every day and is broadcast after Generations on SABC1, will continue to be aired.

“We will not be in contempt of court … because an appeal will be lodged on Tuesday (today),” he said.

SABC spokesperson Kaizer Kganyago yesterday did not respond to requests for comment. Judge Boruchowitz ordered the SABC to pay the board’s legal-costs bill, together with the trust, after it applied to intervene in the Winikhaya case and then later abandoned its argument in the appeal court.

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