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[2011] ZAGPPHC 229
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Mobylink Trading CC v Gauteng Provincial Liquor Board and Another (46818/10) [2011] ZAGPPHC 229 (11 March 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: 46818/10
DATE:11/03/2011
In
the matter between:
MOBYLINK
TRADING
CC
........................................................................
Applicant
and
THE
GAUTENG PROVINCIAL LIQUOR BOARD
…............................
First
Respondent
THE
CHAIRPERSON OF THE GAUTENG
PROVINCIAL
LIQUOR
BOARD
...............................................................
Second
Respondent
JUDGMENT
MAKGOKA,
J
[1]
This is an application to review and set aside the decision of the
first respondent (the Board) not to grant a restaurant liquor
licence
in respect of the applicant’s business known as 747 Restaurant
and Sports Bar, situated at erf 231 Kempton Park.
The application was
made in terms of section 23 of the Gauteng Liquor Act 2 of 2003 (the
Act).
[2]
The application is opposed. Ms. L Pretorius appeared for the
applicant, while Ms. CH Msiya appeared for both respondents. Ms.
Msiya adopted the heads of argument drafted by Mr. DT Skosana.
[3]
The formal application requirements for a liquor licence are set out
in section 24 of the Act. In terms of section 24(3), the
application
was required to advertise its intention to apply for the licence in
one edition each of a newspaper and the government
gazette, wherein
among others, he would state the names and nature of “educational
institutions and places of worship within
1 kilometre from the
proposed premises from which he would serve liquor. In its
advertisements, which were published on 5 and 7
August 2009, in the
newspaper and the government gazette respectively, the applicant
mentioned two educational institutions: Birnam
College and Boston
City Campus and two places of worship: Full Gospel and Anglican
churches.
[4]
In an affidavit dated 6 September 2009 accompanying the application,
Mr. Tobias A Okeke, a Nigerian native and the sole member
of the
applicant, stated that he was not aware of any school, educational
institution or church within the radius of 500 m from
the proposed
premises.
[5]
On 14 August 2009 a Liquor Trade Inspector, Adv Xolani Justice
Masango, visited the premises for an on-site inspection. In paragraph
13.2 (b) of his report dated 14 August 2009, he noted that the
interior of the premises consists of a non-smoking area, a Bar area,
a pool table and a DJ area. He further noted that there are two
churches within 500 meter radius: International Assemblies of God,
which is within 50 meters from the proposed premises, and NG Kerk,
which is 350 meters from the proposed premises, and a tertiary
institution, Boston College, which is 400 meters from the proposed
premises.
[6]
On 26 November 2009 the Board considered the application and refused
it That decision was communicated to the applicant in letter
dated 23
February 2010, wherein it is stated further that the reasons for the
refusal would be provided on request. On 6 July 2010
the applicant,
through its attorneys, sent a letter to the Board requesting reasons
for the decision. The letter was not responded
to. That resulted in
the present application.
[7]
In its replying affidavit, the applicant’s deponent states that
he doubts the correctness of the report of the Liquor
Trade Inspector
insofar as it mentions the institutions within the 500 meters radius.
It is stated that the Inspector did not specify
the addresses of such
institutions, making it difficult to verify the correctness thereof.
There is no merit in this contention.
There are either such
institutions or not. There is nothing that prevented the applicant,
if it so desired, to place the contrary
information before court. It
chose not to. This information should be within the applicant’s
knowledge. It is certainly not
sufficient to simply express ‘doubt’
about the correctness of the Inspector’s report. In the absence
of any contrary
information, the Inspector’s report should be
accepted as correct.
[8]
The Board’s reason for the refusal of the application is
contained in a pro forma document, which is annexure ,,V2’
to
its answering affidavit. It is cryptically stated: “500m radius
school and place of worship”. Mention of the “500m
radius” in “V2" is clearly reference to section
30(2) of the Act, which sets out the circumstances under which
the
Board shall grant an application for a liquor licence. Section 30(3)
provides that:
“
The
Board shall 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, (or) educational institution.”
[9]
How this so-called “500 meters radius" principle is to
be approached and applied, is central to this application.
In this
regard, counsel for the applicant, Ms. Pretorius, referred me to a
judgment of this court delivered on 7 July 2010 by
Du Plessis J in
Caroline Street Liquor Store CC v the Gauteng Provincial Liquor
Board, (case no 67725/09, unreported). The learned
Judge placed an
interpretation on the sub-section and concluded that it does not
mean the Board must refuse an application if
the proposed premises
are within 500 meters from any of the places mentioned in
sub-section. The Board still has to exercise
a discretion, weighing
up all the evidence before it and decide whether the granting of the
licence, even though it is within
the radius, will have a negative
impact on the surrounding area and whether it will be in the public
interest or not.
[10]
To my mind, the nature of the residual discretion which Du Plessis J
correctly, with respect, concluded that the Board retains,
is this:
where there are places mentioned in section 30(3) within the 500
meters radius of the proposed premises, an assumption
readily exists
that such institutions would be negatively impacted by the granting
of a liquor licence, and a fortiori, that it
would not be in the
public interest to grant such an application. Put differently, if the
proposed premises are situated within
the 500 meters radius of one or
more of those institutions, the Board would be more readily inclined
to refuse the application
for a liquor licence than to grant it,
unless it is established that despite the proximity of the proposed
premises to such institutions,
the granting of a liquor licence would
not impact negatively on those institutions. The duty to establish
that, in my view, rests
upon the applicant, which obviously, is a
factual enquiry.
[11]
In the present matter, the proposed premises are situated within 500
meters of two churches and an educational institution.
One church is
a mere 50 meters away. The other church is 350 meters away, while the
institution of higher learning is situated
400 meters away. That the
decision of the Board has not been articulated in so many words is,
in my view, not a basis to infer
that the Board did not exercise its
discretion properly. It is clear that the very close proximity of the
proposed premises to
these institutions, especially the church within
50 meters radius, must have weighed heavily on the Board to refuse
the application.
[12
It is also contended that the Board’s decision falls to be
reviewed because the so-called audi alteram partem rule has
not been
observed. There is no merit in this contention. The applicant made
substantive written representations with its application.
It is
common cause that no hearing was convened in terms of section 27 as
there was no need for such hearing. The Board decided
the matter on
the applicant’s written application and the report of the
Liquor Trade Inspector. The Board is not obliged
to convene a hearing
and may determine the application after it had read and considered
the application.
[13]
To sum up, I am not persuaded that the Board failed to exercise its
discretion, properly or at all. The application therefore
fails to
fail and it is dismissed with costs.
TMMAKGOKA
JUDGE OF THE HIGH COURT
MATTER
HEARD : 28 FEBRUARY 2011
JUDGMENT
DELIVERED : 11 MARCH 2011
FOR
THE APPLICANT : ADV L PRETORIUS
INSTRUCTED
BY : MARIUS BLOM &GC, GERMISHUIZEN INC,
:
PRETORIA.
FOR
THE DEFENDANT : ADV C H MSIYA (ADV DT SKOSANA HAVING DRAFTED
HEADS
OF ARGUMENT)
INSTRUCTED
BY : STATE ATTORNEY, PRETORIA