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[2010] ZAGPPHC 56
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Swema Pub and Restaurant CC v Gauteng Provincial Liquor Board (67800/2009) [2010] ZAGPPHC 56 (7 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 67800/2009
Date
heard: 15/06/2010
Date
of judgment: 07/07/2010
In
the matter between:
Swema
Pub and Restaurant CC
APPLICANT
and
The
Gauteng Provincial Liquor Board
RESPONDENT
JUDGMENT
DU
PLESSIS J:
In
terms of the Gauteng Liquor Act,
2
of
2003
("the
Act"), the applicant applied for a pub liquor licence. The
respondent refused the application. It gave the following
reasons:
"There
are 2 institutions of learning within 500m radius; therefore the
board is of the view that it would not be in (the)
public interest;
It
further takes notice ... that there is an existing tavern therefore
in order to protect the schools;
The
application is hereby refused".
By
way of an urgent application launched in November 2009 the applicant
sought to have the respondent's decision reviewed and set
aside. It
also sought ancillary relief aimed at allowing it to trade as a pub
until a licence is granted. The application was not
entertained as an
urgent one and has now come before this court in the ordinary course.
A
brief summary of facts is called for. The premises where the
applicant proposes to conduct the pub are situated 350 metres from
the Berea Park High School and 470 metres away from the Tshwane FET
College, also referred to as the Pretoria Technical College.
In the
affidavit supporting his application for the licence, the applicant's
deponent incorrectly stated that the premises are
"not situated
within 500m radius of any schools." In terms of section 24 of
the Act the applicant was required to advertise
its intention to
apply for the licence and in the advertisements to state the "names
and nature of educational institutions
... within a radius of one (1)
kilometre from the premises (Section 24(3)). The applicant did not
comply with this requirement
in that the technical college is not
mentioned in the advertisement. A tavern liquor licence had
previously been granted in respect
of another premises within 500
metres from the schools.
Section
30(2) of the Act sets out circumstances under which the respondent
"shall" grant an application for a licence.
Section 30(3)
of the Act provides as follows:
"The
Board shall grant an application in the case of premises not situated
within a radius of five hundred (500) metres in
the vicinity of...
(an) educational institution …"
The
applicant contends that the respondent misconceived its jurisdiction
by interpreting section 30(3) to mean that, if there is
an
educational institution within 500 metres of the proposed premises,
it was precluded from granting the application. The applicant
does
not adduce any evidence that supports its contention. The
respondent's reasons that I have quoted does not convey such a
misconception. It conveys that the respondent, correctly, held the
view that it had a discretion to refuse or grant the application
by
reason of the close proximity of the educational institutions.
According to the reasons, the respondent exercised its discretion
against the applicant because it deemed the grant of the licence in
close proximity to the schools not to be in the public interest.
The
applicant further contends that the respondent took into account an
irrelevant consideration when it had regard to the tavern
licence
that had been granted. In this regard too, the applicant's contention
is not borne out by the facts. The respondent reasoned
that the
existence of the tavern licence, another liquor outlet in ciose
proximity to the educational institutions, rendered a
further licence
not in the public interest. The latter is a valid consideration.
It
is apparent from the papers that the applicant and its attorney
disagree from the respondent's view as to whether another licence
should be granted in close proximity to the educational institutions.
That disagreement is beside the point. The legislature has
entrusted
the relevant discretion to the respondent and the mere fact that an
applicant may disagree from it, is irrelevant.
In
the papers the applicant also contends that the respondent's decision
falls to be reviewed because it did not apply the
audi
alteram partem
rule.
Counsel for the respondent pointed out, correctly in my view, that
the applicant was given an opportunity to state its case.
It had that
opportunity in the form of its written application and the
accompanying affidavit. Section 27 of the Act provides that
the
respondent may convene a hearing to consider an application. The
respondent is not obliged to convene such a hearing and may
determine
the application after it had read and considered the applicant's
application. On the facts of this case there was no
reason for the
respondent to convene a hearing. It did not have regard to any fact
or consideration that the applicant could not
foresee and did not
address in its application.
The
matter came before the court on 12 April 2010. On that date counsel
for the respondent informed the court that the matter is
not ripe for
hearing as the full record of the respondent's proceedings, the
minutes of its deliberations in particular, have not
been put before
the court. The applicant contended that the matter was ripe for
hearing. The matter was postponed and the costs
reserved. The parties
are still not agreed as to whether the record was complete when the
matter was called on
12
April
and as to what constitutes a complete record. Rather than attempting
to make a finding as to what constitutes a complete record,
the
reserved costs should in my view follow the event.
In
the result the following order is made:
The
application is dismissed with costs, including the costs reserved on
12
April
2010.
B.R.
du Plessis Judge of the High Court
On
behalf of the applicant:
Marius
Blom & GC Germishuizen Inc.
835
Duncan Street
Brooklyn
Pretoria
Adv.
L. Pretorius
On
behalf of the Respondent: The State Attorney
8
th
Floor
Bothongo
Heights Building 167 Andries Street Pretoria
Adv.
T.A.N. Makhubele