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[2010] ZAGPPHC 199
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Partnership Christos Gouveris & Polixeny Haj-Paviou and Another v Gauteng Provincial Liquor Board and Another (31973/06) [2010] ZAGPPHC 199 (12 November 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE
NO: 31973/06
DATE:
12/11/2010
In
the matter between:
THE
PARTNERSHIP CHRISTOS GOUVERIS &
POLIXENY
HAJ-PAVIOU
..................................................................
FIRST
APPLICANT
THE
PARTNERSHIP ROBERTSON, LHOYD &
MALUME
NBUYANE
........................................................................
SECOND
RESPONDENT
and
THE
GAUTENG PROVINCIAL LIQUOR BOARD
.......................
FIRST
RESPONDENT
LUCAS
MARTHINUS
SMITH
.........................................................
SECOND
RESPONDENT
JUDGEMENT
MAVUNDLA.
J;
[1]
I need first and foremost apologize to the parties in this matter for
this long overdue judgment. The delay is due to circumstances
beyond
my control, amongst which is predominantly the for ever overwhelming
increase of the avalanche of work in this Division.
[2]
The applicant sought to have reviewed and set aside the decision of
the First Respondent to grant the Second Respondent a liquor
licence
in respect of a business to be known as Tops at Bronkhorstspruit on
the premises known as 29 Lanham, situated at Erf 508/01/26,
Bronkhorstspruit. The applicant also sought that the matter be
remitted to the First Respondent for a fresh consideration with
due
regard to the reasons of this Court in setting aside the aforesaid
decision.
[3]
The parties have agreed in terms of Rule 33 that I should decide a
legal question whether s30(3) of the Liquor Act, Act No.
2 of 2003
("the Gauteng Liquor Act") gives a protection to the
applicants, as they contend, against the issuing of a
new liquor
licence to premises situated within 500 meters from their liquor
stores. In the event I find against the applicants
I must dismiss the
application. However, were I to find in favour of the applicants, I
need then to decide whether in granting
the second respondent a
liquor licence falling within a radius of 500 meters from the liquor
licence premises of the applicants,
there was good evidence provided
to the first respondent. After the determination of the last
mentioned question, in the event
I find to the contrary, I must
review and set aside the decision of the first applicant granting the
second respondent the licence
and remit the matter to the first
respondent for the reconsideration of the application.
[4]
Section 30(3) of "the Gauteng Liquor Act") provides that:
The
Board shall
1
grant an application in the case of premises not situated within a
radius of five hundred (500) meters in the vicinity of a place
of
worship, educational institution, similar licensed premises, public
transport facility, or such further distance as the Board
may
determine or as may be prescribed from time to time."
[5]
The first respondent has discretion in issuing licences. Such
discretion must be exercised within certain parameters. In
Foxcroft
v Bloemfontein Licence Certificate Board
2
it
was held that the relevant legislation provides the grounds upon
which the grant of a licence may be refused, it cannot be refused
on
any other ground.
[6]
Section 30(3) expressly states that the Board shall grant a licence
if the premises are not within a radius of 500 meters. The
applicants
do not contend that the first respondent is completely barred from
granting a licence where the premises would be within
a radius of 500
meters. They do accept that the first respondent does have a
discretion to grant such licence;
vide
Mendelson and Frost (Pty) Ltd v Pretoria City Council
3
;
S v Mjoli and Another
4
.
[7]
The use of the word "shall" in s30 (3) is, in my view,
prescriptive. It means that where the premises are beyond
500 the
Liquor Board has very limited discretion to refuse the grant of the
licence if it the application complies with the provisions
of s30(1)
and 30(2) of the Gauteng Liquor Act.
[8]
In the matter of
Die
Bestuursraad van Sebokeng & 'n Ander v Tlelima
5
it
was held that:
"For
instance, if legislation states the grounds upon which a licence may
be refused, it may not be refused on
any
other grounds, an approach which is in conformance with the
ru/einclusion unius
est
exclusion alterius".
See:
Foxcroft
v Bloemfontein Licence Certificate Board
6
.
"In
addition, where a special affirmative power is given which would not
be required because of the fact that there is a general
power, it is
always read to import the negative and that nothing else can be
done".
Vide
Estate McKay v Rand Water Board
7
.
[9]
Section 30(3) deals with the award of a licence beyond 500 meters but
is silent with regard to the radius within 500 meters.
On the
principle of inclusion by exclusion, and the negative exclusion of
the radius ("not within") it can be safely
accepted that
the Board is implicitly accorded discretion to grant a licence where
the premises are within 500 radius. This brings
me to the pertinent
question of protection.
[10]
The regulation of an industry does not mean that competition within
the industry must be stifled but must be promoted.
8
[11]
In answering the question whether s30(3) provides a protection to the
applicants, it is necessary to look at the Constitution
of the
Republic of South Africa,
vide
Constructional & Statutory Interpretation
by
JR De Ville par 8.3 at pages 59-60 and the authorities therein cited,
vide also
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others.
9
[12]
The first respondent is seized with the duty of regulating the liquor
trade industry, issuing licenses, and ensuring that the
industry is
not overpopulated
10
.
Implicitly the duty on the first respondent includes the obligation
of protecting those who ply their business in the liquor industry
by
ensuring that it is not overpopulated
11
.
[13]
The applicants' rights to trade flow from the licences issued to them
by the Liquor Board. This right to trade is also enshrined
in S 22 of
the Constitution which provides that:
"Every
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or
profession may be
regulated by law."
[14]
Through the licence the appellants exploit the licence to trade and
derive economic benefit. The interest derived from so trading
flows
from the exercise of the fundamental right enshrined in s22. The
incidence of this right is that it qualifies to be protected.
This
fact is better reflected in matters dealing with trade restrain
clauses which the courts have held that they are enforceable;
vide
Affordable
Medicine Trust v Minister of Health
12
.
The
interest derived by the applicants as licence holders in exercising
their right to ply their business is in my view protectable;
13
vide
Reddy v Siemens Telecommunications (Pty) Ltd
14
industry
is not overpopuiated
15
thereby implicitly protect
16
the rights of other licence holders against such;
vide
also
Himonides
v Rhodesia Liquor Licensing Board
17
.
I
am of the considered view that s30 (3) indeed accords the applicants
protection. This brings me to the second questions to be
decided as
agreed upon by the parties.
[16]
The granting of the licence is of course dependant on whether the
provisions of subsections (1) and (2) of s30 have been met.
Section
30 (3) places an obligation to the Licensing Board to grant a licence
if it is not within 500 meters of the places referred
therein, (vide
para 4
supra).
Implicitly,
the first respondent is not obliged to grant a licence for premises
falling within 500 metres.
[17]
Where the first respondent decides to grant the licence
notwithstanding that the premises fall within 500 meters, the
consideration
to grant such a licence, in my view, certainly
cannot
be limited to the mere compliance with the provisions of subsections
1 and 2 of s30. Otherwise it would render the specified
limitation
nugatory. Since the granting of a licence in such instance is a
departure from the specified, there should be cogent
reasons for such
departure. The first respondent in such case must also have regard to
the duty it has towards those licence holders
outside the 500 meters,
and their proximity to the new licence premises seekers;
vide
inter alia, Granville Estates v Ladysmith Town Counci
18
.
The
approach in deciding whether to exercise its discretion would
therefore have to be much stricter in such an instance and require
much.
[18]
Where the statute sets out the grounds upon which a licence may be
granted, it cannot be granted for any other reason. The
maxim
inclusio
unius est exclusion; vide Mendelson and Frost (Pty) Ltd v Pretoria
City Council (supra); S v Mjoli and Another (supra).
[19]
The review court can only interfere with a discretionary decision of
a functionary if such decision was capriciously arrived
at;
vide
Shidiack v Union Government
19
.
In
Madore
v Durban Corporation
20
it
was held that the reviewing court cannot interfere whether the
administrative act has been arrived at on a mistaken basis if
it is a
thing which is within the scope of their authority, in the absence of
some averment of
mala
fides.
Otherwise
the intervention of the court would no longer be that of a review but
that of appeal. The mere fact that the authority
has wrongly decided
is also no basis for intervention by the reviewing court.
[20]
In
CIR
v City Deep Ltd
21
it
was held that an incorrect interpretation of the law does not
invalidate the decision taken by the authority.
[21]
In
South
African Railways v Swanepoel
t
22
he
Appeal Court held that:
"It
is trite that where a statute commits a matter to determination of
an
administrative official, his determination is final and the court
cannot interfere, even if his discretion is exercised on a
mistaken
view of the law... There are certain exceptions to this general rule,
e.g. if the administrative officer has ignored an
express provision
of a statute... or if the administrative officer fails to appreciate
the nature of his discretion through misreading
the Act which confers
the discretion..the Court can only inquire whether the official has
decided rightly or wrongly".
[22]
In
Union
Government v Union Steel Corporation (South Africa) Ltd
23
the
Appeal Court held that where an administrative officer who is
accorded a discretion, fails to appreciate the nature of his
discretion through misreading the Act which confers him the
discretion, cannot exercise such a discretion properly. In such a
case
the review court can set aside the decision and refer the matter
back and draw the attention of the officer to the actual question
he
should consider.
[23]
The parties agreed,
inter
alia
that
the application for the licence complied with all statutory
requirements. They further agreed that:
"The
first respondent considered the application of the Second
Respondent
for the liquor store licence in accordance with the contents of
'LQ-1' and approved the application on 29 August 2006.
6.
The existing liquor store business of the Applicants are
situated
within
500 metres from the proposed liquor store premises of the
Second
Respondent;
7.
A
copy of the founding affidavit of the First Respondent is attached as
annexure 'LQ-5';
8
The
factual evidence that was presented to the First Respondent which
resulted in the decision of the approval of the liquor store
licence applicable is contained in the following:
8.1
The application for the liquor store licence as per Annexure 'LQ-2'
'LQ-3 and'LQ-4'."
[26
]
The parties have agreed that should I find that s30 (3) affords the
applicant a protection, I should remit the matter for
reconsideration.
It has not been agreed upon by the parties that were
I to remit the matter to the first respondent; the parties can
supplement
their affidavits. Further the reason upon which the first
respondent's decision is premised has not been presented to this
Court,
save that he considered everything placed before him. The only
consideration would be whether it is in the general interest of the
public that the licence should be granted notwithstanding the
protection the applicants have.
[25]
In the matter of
Boksburg
Town Council
24
it
was stated that: "It is not an easy matter to decide when and
under what circumstances a wrong interpretation of a statute
will be
a ground for review." In
CIR
v City Deep Ltd
25
it
was held that the question is whether commissioner has
bona
fide
and
honestly considered the matter, and not whether his view was wrong or
right.
[26]
The protection afforded the applicants is not absolute. The
applicants are not protected against competition. The only thing
the
protection does is to demand, in my view, a much stricter approach to
the consideration in instances of application for a licence
falling
within 500 meters of the points of reference mentioned in s30(3). The
relevant statute does not spell out what considerations
must be borne
in mind in such instance. I am of the view that the Courts must be
slow in reading into
statutes
what the Legislature has not spelt out. The courts must not elevate
their opinions into statutes and arrogate for themselves
legislative
powers. Notwithstanding the invitation by the parties that I should
do so, I shall refrain to opinionate what considerations
the first
respondent should have regard to in exercising its discretion in
instances where the application is for a licence falling
within 500
metres.
[27]
Besides,
in
casu,
it
was accepted that the first responded considered,
inter
alia,
that
the application falls within a radius of 500. It has not been agreed
upon that supplementary affidavits would be filed so as
to place
further evidence before the first applicant. If the matter was to be
remitted, the same evidence would still be considered.
There is no
guarantee that were the matter to be remitted for reconsideration a
different result would be arrived at, bearing in
mind the difficulty
referred to in
Boksburg
Town Council (supra).
I
am loath to remit the matter if it has not been shown on the papers
that remitting the matter would offset the decision arrived
at
26
.
Put differently, the applicants have not demonstrated that the
second respondent has not
bona
fide
and
honestly exercised its discretion in awarding the licence to the
second respondent.
[28]
I am consequently of the view that in the circumstances of this
:
case I should make the following order:
1
.
That
the review application is dismissed.
2.
That
the applicants, jointly and severally, the one paying the other to be
absolved are ordered to pay the costs of this application.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT:
12/11/2010
APPLICANT'S
ATT :
MARIUS
BLOM & G GERMISHUIZEN INC
APPLICANT'S
ADV :
ADV.
AJ LOUW SC
RESPONDENTS
ATT :
EMIL
SVCHEEPERS
RESPONDENT'S
ADV :
ADV.
E P VAN RENSBURG
1
My emphasis.
2
1921
OPD 148.
3
1977
(T) 698.
4
1981
(3) SA 1233
(A) 1247.
5
1968[1]SA
680(A).
6
1921
O.P.D. 148.
7
1937
AD 424.
8
Payen Components SA Ltd v Bo vie
[1995] ZASCA 57
;
1995 (4) SA 441
(A) 453.
9
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at 558D-559F (paras [21-[24].
10
Vide
preamble of the Gauteng Liqour Act.
11
Vide
preamble of the Gauteng Liqour Act.
12
2006
(3) at 247 (CC) at 287B-C.
13
Vide
Gardener
v
Whitaker
[1996] ZACC 11
;
1996
(4) SA 337
(CC) at 341 B-F.
14
2007
(2)
SA 486
(SCA) at 497A-B.
15
Vide
preamble of the Gauteng Liqour Act.
16
Vide
Constitutional ^Statutory Interpretation by JR. de Ville at page 130
and the authorities therein cited.
17
1968[1]SA310[AD]D-H
at312H-313A.
18
1974
(3) SA 44(A).
19
1912
AD 651
20
1912NPD
102.
21
1924 AD 307.
22
1933
AD 378.
23
1928
AD
234.
24
1964
(4) SA73(T)74B.
25
924
AD 307.
26
Vide
Khan v Rural Licensing Board and Others
1964 (4) SA 181.