Swartland Kelder (Pty) Ltd v Wine and Spirit Board and Others (6915/2024) [2025] ZAWCHC 488 (24 October 2025)

Case Note

Swartland Kelder (Pty) Ltd v Wine and Spirit Board and Others (Case no 6915/2024); [2025] ZAWCHC — High Court of South Africa, Western Cape Division, Cape Town (24 October 2025)

Coram: Nuku J

Heard: 27 August 2025

Delivered: 24 October 2025

Reportability

The judgment is marked as not reportable. Nevertheless, it is of practical and doctrinal importance in several respects, particularly in the field of administrative law and statutory interpretation as applied to regulatory schemes governing agricultural products and consumer labelling. It clarifies the interpretation of the Wine of Origin Scheme prior to its 2025 amendment and the limits of administrative power under section 23(3) of the Scheme.

The judgment is also significant for its treatment of mootness in circumstances where a statutory scheme has been amended after the impugned decision but before judgment. The Court reaffirms the presumption against retrospectivity and underscores that the legality of administrative action must be assessed against the law as it stood at the time of the decision.

Further, the decision contributes to the jurisprudence on delay under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It confirms that for purposes of PAJA’s 180-day rule, the conclusion of an internal appeal process occurs when the decision is communicated to the affected party, not when it is made. This principle, coupled with the Court’s approach to locus standi for trademark proprietors affected by regulatory approvals, has practical implications for litigants navigating sectoral regulatory regimes.

Cases Cited

Mncwabe v President of the Republic of South Africa and Others; Mathenjwa v President of the Republic of South Africa and Others 2023 (11) BCLR 1342 (CC)

Legislation Cited

Liquor Products Act 60 of 1989

Liquor Products Amendment Act 8 of 2001

Promotion of Administrative Justice Act 3 of 2000

Constitution of the Republic of South Africa, 1996, section 34

Regulations promulgated under the Liquor Products Act 60 of 1989 (including regulation 33(1) and Table 3)

Wine of Origin Scheme made under section 14(1) of the Liquor Products Act 60 of 1989 (as it read prior to the amendment published by GN R.6003 in Government Gazette 52342 of 20 March 2025)

Rules of Court Cited

None expressly cited

HEADNOTE

Summary

This application concerned the review and setting aside of decisions approving wine labels under the Wine of Origin Scheme established in terms of section 14(1) of the Liquor Products Act 60 of 1989. The central interpretive question was whether, under section 23(3) read with section 24 of the pre‑amendment Scheme, the Wine and Spirit Board (Board) could lawfully approve labels where the geographical production area (e.g. “Swartland”) appeared multiple times, but the “Wine of Origin”/“W.O”/“Wyn van Oorsprong” expression appeared only once elsewhere on the label.

The applicant, the proprietor of the registered trade mark SWARTLAND in class 33, contended that this contravened the Scheme because, subject to section 11(6) of the Act, the wine of origin expression had to appear immediately with each instance of the defined geographical name wherever it appeared on the label. It sought review of three approvals and of the Appeal Board’s dismissal of its internal appeal as out of time, together with a declarator on the proper interpretation of the Scheme, and substitution.

The Authority opposed on the grounds of mootness (given the 2025 amendment to section 23 and the annual nature of label approvals), lack of standing, undue delay, and on the merits of the interpretation. The Court rejected each preliminary point, upheld the applicant’s interpretation, reviewed and set aside the approvals and the appeal dismissal, granted declaratory relief, and declined substitution. Costs were awarded against the Authority on scale C for two counsel.

Key Issues

The first issue was whether the matter was moot, either because of the 2025 amendment to section 23 of the Scheme—which now permits the wine of origin expression to appear only once even if the production area appears multiple times—or because the winemakers would submit new approval applications annually. The Court held that the impugned decisions persisted in fact and law and had to be tested under the law as it stood at the time, thus the dispute remained live.

The second issue was locus standi. The Authority argued the applicant had no legal interest affected by the approvals. The Court held that the applicant’s registered trade mark could be diluted by approvals authorising use of “Swartland” without the accompanying wine of origin expression, and that this sufficed for direct and substantial interest, bolstered by section 34 of the Constitution.

The third issue concerned delay under section 7(1) of PAJA. The Authority claimed the 180-day period ran from the date of the Appeal Board decision, not its communication. The Court found that an internal appeal is “concluded” when communicated to the affected party, applying the Constitutional Court’s approach in Mncwabe. The application, served within 180 days of communication, was timeous.

Held

Held, on the interpretation of section 23(3) of the pre‑amendment Scheme, that the Board could approve a label only if each of the three independent requirements in section 23(3)(a)–(c) was met, and that compliance with section 24 (as required by section 23(3)(b)) demanded that the wine of origin expression appear immediately above, below or next to every instance of the defined geographical name wherever it appeared on the label, subject to section 11(6) of the Act.

Held, further, that the Authority’s reliance on section 23(4) to dilute the per‑instance requirement embedded in section 24 was misconceived, because section 23(3)(b) and section 23(3)(c) set discrete criteria. The 2025 insertion of section 23(4)(j), which now permits a once‑only appearance of the wine of origin expression, confirmed by contrast that this was not the legal position beforehand.

Held, moreover, that the matter was not moot, that the applicant had standing, and that the review was instituted within PAJA’s 180-day period because finality of the internal appeal attaches on communication to the affected party. The three label approvals and the Appeal Board’s dismissal of the appeal were reviewed and set aside. A declarator clarifying the pre‑amendment position was granted. Substitution was refused as unnecessary. Costs were awarded against the Authority, including two counsel on scale C.

THE FACTS

The applicant, Swartland Kelder (Pty) Ltd, is the proprietor of the registered trade mark SWARTLAND in class 33, encompassing wine. The regulatory landscape for wine labelling is governed by the Wine of Origin Scheme made under section 14(1) of the Liquor Products Act 60 of 1989. Section 11 of the Act prohibits the sale of liquor products unless prescribed particulars appear on labels in the prescribed manner. Sections 23 and 24 of the pre‑amendment Scheme, read with the Regulations (notably regulation 33(1) and Table 3), set out the content and manner of label indications, including origin claims.

Historically, the first respondent, the Wine and Spirit Board, approved labels under the Scheme. Following the Liquor Products Amendment Act 8 of 2001 and institutional changes effective in August 2023, the Wine Certification Authority took over the Board’s functions for label approvals. The present dispute concerns approvals granted by the Board in October 2021 of three labels that displayed “Swartland” as an origin area without the wine of origin expression immediately adjacent to each instance of “Swartland”: labels for Marelise Niemann Wines (“CAPE GARDEN 2020 SWARTLAND CHENIN BLANC”) and Trizanne Signature Wines (“DAWN PATROL CHENIN BLANC | 2021 SWARTLAND” and “DAWN PATROL CINSAULT ROSÉ | 2021 SWARTLAND”).

The applicant objected after discovering that approvals had issued notwithstanding what it contended was non‑compliance with section 24(2) and (6) of the Scheme. The Board defended its approach by invoking its interpretation of section 23(3)(c) read with section 23(4) and section 24, asserting that, provided the wine of origin expression appeared once in the same visual field as mandatory particulars, the origin area name could appear elsewhere on the label without the expression. The applicant prosecuted an internal appeal under section 22 of the Act. The Appeal Board (second respondent) dismissed the appeal as out of time.

The applicant launched review proceedings seeking to set aside the October 2021 approvals and the Appeal Board’s dismissal, obtain a declarator on the proper interpretation of the pre‑amendment Scheme, and, in the alternative, substitution refusing the approvals. Only the Authority opposed, contending mootness in light of the 2025 amendment to section 23 that now permits a once‑only wine of origin expression, lack of standing, undue delay under PAJA, and correctness of the Board’s interpretation on the merits.

THE ISSUES

The Court was required to determine, first, whether the matter had become moot because section 23 was amended in March 2025 to allow the wine of origin expression to appear only once where the origin area name appears multiple times, and also because new labels are approved annually. The question was whether the legality of the 2021 approvals still presented a live controversy.

Second, the Court had to decide whether the applicant had locus standi. The Authority argued that the approvals did not adversely impact any rights of the applicant, particularly where one producer had not printed the labels and another’s labels were for export. The Court had to assess whether the applicant’s interest as the owner of the SWARTLAND trade mark in class 33 sufficed to confer standing to challenge approvals that, it claimed, infringed or diluted the distinctive use of the term “Swartland” absent the wine of origin expression, subject to section 11(6) of the Act.

Third, the Court considered delay under section 7(1) of PAJA. The Authority argued that the 180-day period ran from the date the Appeal Board decided the internal appeal (11 September 2023), rendering the review late. The applicant maintained that the 180-day clock began on communication of that decision (10–12 October 2023), making service on 8 April 2024 timely. An ancillary issue concerned service initially effected on the dissolved Board via the Authority’s executive manager, followed by the Authority’s later joinder.

Finally, on the merits, the Court had to interpret the pre‑amendment Scheme: whether section 23(3), read contextually with section 24(2) and (6), empowered the Board to approve labels where the wine of origin expression appears only once, or whether, as the applicant argued, the expression had to appear immediately above, below or next to every instance of the defined geographical name wherever it appears on the label, subject to the statutory exception in section 11(6) of the Act.

ANALYSIS

On mootness, the Court held that the impugned approvals remained extant as facts and as legal acts. The legality inquiry had to be conducted against the legal framework in force when the decisions were made. The 2025 amendment to section 23 could not retrospectively validate or invalidate decisions taken in 2021, given the presumption against retrospective operation of legislation. The separate contention that the annual nature of label approvals rendered the dispute academic was rejected: new approvals would not cure or moot the lawfulness of the extant approvals under review.

On standing, the Court emphasised that the applicant approached the Court on the basis of its own legal interest as the proprietor of a registered trade mark, which could be diluted by administrative approvals allowing the use of “Swartland” without the required wine of origin expression. Without the Board’s approval, it would be unlawful for producers to use the geographical name in that manner. That sufficed for a direct and substantial interest in having the lawfulness of the approvals adjudicated. Section 34 of the Constitution underpinned the applicant’s right of access to court to protect its property interests, and the Authority’s narrow approach to standing was rejected.

On delay, the Court held that section 7(1)(a) of PAJA governed because an internal remedy was pursued, and that the 180-day period runs from the conclusion of the internal remedy upon communication of the decision to the affected party. Relying on the majority in Mncwabe, the Court reaffirmed that communication is central to finality. The Appeal Board’s decision was communicated on or about 10–12 October 2023, and the application issued and served on 8 April 2024 was therefore within the 180-day period. The Authority’s further point that initial service cited the dissolved Board rather than the Authority was given little weight: the Authority’s executive manager accepted service, the papers were in the Authority’s possession, and subsequent formal joinder on 23 August 2024 did not transform a timeous review into an out‑of‑time one.

Turning to the merits, the Court adopted a textual, contextual and purposive interpretation. Section 23(3) of the pre‑amendment Scheme established three separate approval gateways: section 23(3)(a) required compliance with the Act; section 23(3)(b) required compliance with section 24 of the Scheme; and section 23(3)(c) imported the additional constraints in section 23(4) on “any other word, expression, illustration or depiction.” These are discrete, cumulative requirements and compliance with one does not dilute the others. Section 24(2) required indication of the defined geographical name together with the wine of origin expression, and section 24(6) prescribed the manner of display, including adjacency and legibility requirements, within the same visual field as regulation 33(1) particulars.

Against the Scheme’s objects—to verify origin claims and promote confidence in them—the Court held that permitting multiple instances of the origin area name without the per‑instance adjacency of the wine of origin expression would undermine those objects. The Authority’s attempt to justify a “once‑only” expression by reference to section 23(4) was unsustainable because section 23(4) addressed other wording and depictions, not the specific origin‑indication requirements governed by section 24. The 2025 insertion of section 23(4)(j), explicitly allowing a once‑only wine of origin expression, confirmed that the pre‑amendment text did not previously permit that approach; the amendment changed the law rather than clarified an existing permission.

Accordingly, labels that displayed “Swartland” multiple times without an immediately adjacent wine of origin expression in each instance failed to comply with section 24. The Board therefore acted ultra vires in approving the labels, and the Appeal Board’s dismissal fell with the approvals. While the applicant sought substitution, the Court declined to substitute refusals because setting aside the approvals sufficed to deprive the producers of authorisation; there was no evident utility in remittal or substitution given the passage of time and the routine annual submission of labels for new harvests.

REMEDY

The Court granted a declarator that, under the pre‑amendment Wine of Origin Scheme (prior to GN R.6003 in Government Gazette 52342 of 20 March 2025), the Board and the Authority were only empowered to approve a wine label if the expression or abbreviation “W.O” / “WINE OF ORIGIN” / “WYN VAN OORSPRONG” appears next to each and every instance on the label where the production area is indicated, subject to section 11(6) of the Act.

The Court reviewed and set aside the Board’s decisions communicated on 10 November 2021 approving the following labels: Marelise Niemann Wines’ “CAPE GARDEN 2020 SWARTLAND CHENIN BLANC,” and Trizanne Signature Wines’ “DAWN PATROL CINSAULT ROSÉ | 2021 SWARTLAND” and “DAWN PATROL CHENIN BLANC | 2021 SWARTLAND.” It also reviewed and set aside the Appeal Board’s decision communicated on 12 October 2023 dismissing the section 22 appeal.

Substitution was refused as unnecessary in the circumstances. Costs were awarded against the Authority (fifth respondent), including the costs of two counsel on scale C, the Court finding the matter sufficiently complex to warrant senior and junior counsel.

LEGAL PRINCIPLES

First, on mootness and temporal application, the Court reaffirmed the presumption against retrospectivity. The lawfulness of an administrative decision is assessed under the legal framework in force at the time of the decision. Subsequent amendments—here, the 2025 insertion of section 23(4)(j) into the Scheme—do not retroactively alter the legality of past decisions. The mere prospect of future, separate approvals does not render a challenge to extant approvals academic.

Second, on locus standi, a registered trade mark proprietor has a direct and substantial interest in challenging administrative approvals that authorise uses capable of diluting the trade mark’s distinctiveness or interfering with the statutory scheme’s protective function. Section 34 of the Constitution guarantees access to courts to protect such property interests. Sectoral approval regimes cannot be insulated from judicial review where they bear on private rights and the lawfulness of administrative action.

Third, on delay under PAJA, the 180-day period in section 7(1)(a) where internal remedies exist runs from the date on which the internal appeal is communicated to the affected party. Communication to the litigant is “central to the finality” of the decision, consistent with the Constitutional Court’s reasoning in Mncwabe. Service defects or misnomers that do not prejudice the administrator—especially where the decision-maker’s successor has the papers—do not convert a timely review into an out‑of‑time application.

Fourth, on statutory interpretation, section 23(3) of the pre‑amendment Scheme sets out three cumulative and discrete approval criteria. Compliance with section 24’s specific origin‑indication rules cannot be diluted by more general considerations under section 23(4). The text, context, and purpose of section 24(2) and (6) required that the wine of origin expression appear immediately above, below, or next to each instance of the defined geographical name wherever it appears on the label, subject to the exception in section 11(6) of the Act (addressing circumstances such as registered trade marks). The 2025 amendment allowing a once‑only expression is a substantive change rather than a codification of prior law.

Finally, the decision underscores the limits of administrative power in specialised regulatory contexts. Administrators must apply each independent statutory requirement; failure to satisfy any standalone criterion renders the approval ultra vires and susceptible to review and setting aside under PAJA.