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2011
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[2011] ZAGPPHC 17
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Mandlbaur v Minister of Police and Another (41833/10) [2011] ZAGPPHC 17 (11 February 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO:
41833/10
DATE:
11/02/2011
In
the matter between:
HERBERT
WILLIFRED MANDLBAUR
….................................................
Applicant
and
THE
MINISTER OF POLICE
…..................................................................
1
st
Respondent
THE
GAUTENG PROVINCIAL
LIQUOR
BOARD
…................................
2
nd
Respondent
JUDGMENT
[1]
The Applicant
in
this
matter seeks the following relief:
"I.
A
declaratory order that the provisions of section 39 of Act 27 of 1989
and section 40 of Act 2 of 2003 (Gauteng):
1.1
do not require of a natural person who is the holder of a liquor
licence, to appoint somebody else as responsible person for
the
management of such licensed business to be on the premises during
periods of time that the natural person who is the licensee,
cannot
be present on the premises;
1.2
do
not require of a holder of a liquor license, which is not a natural
person, to appoint more than one responsible person under
the license
in order to ensure that an appointed person will at all times be on
the licensed premises;
1.3
do
not require that a licensee or its nominated responsible person, must
at ail times be present on a licensed premises."
Applicant
requested
that
First
Respondent
be
directed
to
pay
the
costs
of
the
application
and
if
the
Second
Respondent
opposes
the
relief
sought,
that
First
and
Second
Respondents
be
directed,
jointly
and
severally
and
in
solidum
with
each
other,
to
pay
the
costs.
[2]
First
Respondent
did
not
file
any
affidavit
opposing,
but
the
Second
Respondent
did.
At
the
hearing
of
the
matter,
Second
Respondent
was
represented
by
Ms.
Makhubele.
[3]
The
Applicant is a businessman doing business and trading, either in
person or through legal entities, in four liquor licensed businesses.
The deponent on behalf of the Applicant is an attorney, Mr Marius
Blom, who indicates that he has been practising as an attorney
specialising in liquor related matters for the past
33
years.
The Applicant alleges that he, in his aforementioned capacity, is
suffering
"an
ongoing persecution by the First Respondent through his force
members"
in
respect of his various businesses. The alleged persecution pertains
to the interpretation of the aforementioned sections and
in
particular, whether a person in control of a liquor licensed
business, not being appointed as such and not being the licensee,
can
be prosecuted for not being so appointed. The Applicant and his
deponent to the founding affidavit both allege that the members
of
the South African Police Service maintained that, not only should
there be appointed a responsible person for the management
of a
liquor licensed business, but that such person must at all times be
present on the licensed premises. Should there be a person
in control
who has not been appointed as a responsible person / manager at a
given time, such person is often arrested and charged
as the latter
is allegedly acting in contravention of the aforesaid sections. In
many cases, so it is alleged, the business is
then closed down by the
members of the First Respondent's service and all stock on the
premises is seized and subsequently forfeited
to the State. However,
these cases more often than not do not come before a court of law as
they are
"chucked
out'.
The
seized items are never returned to the relevant person as they have
allegedly been destroyed.
[4]
The Second Respondent (hereinafter referred to as
"the
Respondent")
essentially
seems to agree with the Applicant's version. Respondent alleges in
its answering affidavit that "J
do
not understand the provisions of the Act to imply that a manager
must, at all times, be physically present at the premises. The
consequences for the appointment, as provided in the Act is that the
manager has the same responsibilities as the license holder
and is
equally accountable. Should an offence be committed by the license
holder, the manager is equally liable. It is impossible
to be in the
premises at ail times. There may be compelling reasons why a person
is not in the premises such as sickness or other
unforeseen
circumstances."
The
Respondent is, however, opposed to a situation where one particular
person is appointed as the responsible person concerning
various
licensed premises. In this regard, the Respondent submits that
"there
are certain things, such as allowing drunkenness or selling liquor to
under-age persons which could only be monitored
by a responsible
person or manager who is based in the licensed premises, and not a
roving manager who may only visit the licensed
premises once a year."
[5]
It may be added that the Second Respondent's opposition to the relief
sought, stems not from a difference in interpretation
regarding the
aforementioned, but is based on other grounds. So, for example, it
was submitted by Ms. Makhubele that the Second
Respondent had never
been approached by the Applicant to express its views regarding the
relief currently sought; that the court
in any event has powers of
review which could be exercised in appropriate instances and that
granting the current relief would
amount to prejudging the issues or
inhibiting the court's discretion in proper instances. The Respondent
reiterates that it differs,
however, concerning the interpretation
suggested by the Applicant i.e. that one responsible person could be
appointed with a view
to various premises.
[6]
With regard to the approach to be followed in applications for a
declaratory, brought in terms of section 19(l)(a)(iii) of the
Supreme
Court Act, Nol.59 of 1959, the Supreme Court of Appeal has recently
expressed itself as follows:
"[16]
A/though the existence of a dispute between the parties is not a
prerequisite for the exercise of the power conferred
upon the High
Court by the subsection, at least there must be interested parties on
whom the declaratory order would be binding.
The applicant in a case
such as the present must satisfy the Court that he/she is a person
interested in an 'existing, future or
contingent right or
obligation'and nothing more is required ...
[17]
It seems to me that once the applicant has satisfied the Court that
he/she is interested in an 'existing, future or contingent
right or
obligation', the Court is obliged by the subsection to exercise its
discretion. This does not, however, mean that the
Court is bound to
grant a declarator, but that it must consider and decide whether it
should refuse or grant the order, following
an examination of all
relevant factors."
The
Learned Judge of Appeal then dealt with certain remarks made by
Watermeyer JA in a previous case, and continued:
"[18]
Put differently, the two-stage approach under the subsection consists
of the following. During the first leg of the enquiry
the Court must
be satisfied that the applicant has an interest in an 'existing,
future or contingent right or obligation'. At this
stage the focus is
only upon establishing that the necessary conditions precedent for
the exercise of the Court's discretion exist.
If a Court is satisfied
that the existence of such conditions has been proved, it has to
exercise the discretion by deciding either
to refuse or grant the
order sought. The consideration of whether or not to grant the order
constitutes the second leg of the enquiry."
[7]
In the current instance it is evident that the Applicant has adhered
to the initial prerequisites. What remains, is for me to
exercise my
aforesaid discretion. In the papers before me a notion such as "to
manage
and be responsible"
as
that notion appears in the relevant sections, has not been fully
canvassed and contextualised. To adhere to a request to grant
relief
which lays down how the said notion should be interpreted and
understood, would amount to the rendering of an opinion, which
I
decline to do. In any event, the said notion has not been properly
canvassed and contextualised on the papers. There is, however,
a
narrow area of agreement between Applicant and Second Respondent. I
am prepared to exercise my discretion regarding such area
of mutual
agreement whilst not traversing on areas which have not been properly
canvassed and contextualised. The narrow area of
agreement pertains
to the approach followed by the First Respondent's members i.e. that
appointed responsible person (or licensee,
as the case may be) must
at all times be present on the relevant premises. From the relief
which I intend granting, it follows
that the approach followed by
First Respondent's Members with regard to the arrest of
non-appointees (as alluded to supra), will
henceforth be illegal. In
my view the granting of such relief does not amount to the mere
rendering of an opinion or indulgence
on areas which have not been
properly canvassed. As such relief may have an effect on the way in
which the First Respondent and
its members interpret and apply the
relevant sections, it should be remarked that the First Respondent
had the opportunity to file
affidavits which it preferred not to do.
[8]
Regarding costs I am of the view that Second Respondent was entitled
to place its views before the court. In fact, without the
clarity
provided by the Second Respondent regarding its position and views
having been put before the court, the making of an order
would have
been virtually impossible. I therefore do not intend to make a costs
order against the Second Respondent.
I
make the following order:
1.
It
is declared that the provisions of section 39 of Act 27 of 1989 and
section 40 of Act 2 of 2003 (Gauteng) do not require that
a licensee
(whether a natural person, or not) or its nominated responsible
person (if applicable), must at all times during business
hours be
present on a licensed premise.
2.
I
make not order as to costs.
TJ
KRUGER AJ