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[2023] ZAFSHC 187
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Teklehimanote v Free State Gambling, Liquor and Tourism Authority and Another (3611/2022) [2023] ZAFSHC 187 (22 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
:
3611/2022
In
the matter between:
ELIAS
GEBRESILASSIE TEKLEHIMANOTE
Applicant
and
THE
FREE STATE GAMBLING, LIQUOR &
TOURISM
AUTHORITY
First
Respondent
THE
CHAIRPERSON OF THE FREE STATE
GAMBLING,
LIQUOR & TOURISM AUTHORITY
Second Respondent
CORAM:
DANISO,
J
et
CRONJÉ,
AJ
HEARD
ON:
17 April 2023
JUDGMENT
BY:
CRONJÉ, AJ
DELIVERED
ON:
22 May 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15h50 on 22 May 2023.
I
BACKGROUND
[1]
The Applicant applied for a restaurant liquor licence in terms of the
Free State Gambling
and Liquor Act, 6 of 2016 (the Act).
[2]
The First Respondent rejected the application on 13 June 2022 on the
basis that:
“
The
proposed premises is situated in a traffic-congested area, with a
taxi rank in close proximity, [and] parking as a major issue
and will
therefore be insufficient
”.
[3]
Dissatisfied with the outcome, the Applicant brought an application
in terms of Rule
53 of the Uniform Rules of Court to review and set
aside the decision not to issue a license. The Applicant seeks an
order that
the First Respondent be directed to issue a license, or as
an alternative, that the matter be referred back to the First
Respondent,
and it be directed to consider the matter afresh.
II
POINT IN
LIMINE
– LACK OF AUTHORITY
[4]
The Respondents raise as a point in
limine
the lack of
authority of Mr Burger, the attorney for the Applicant, to depose to
the affidavits in the review application. at hearing
of the
application, Mr Bomela who appeared for the Respondents, withdrew the
objection and sought to rely on Rule 6 instead of
Rule 7 of the
Uniform Rules of Court.
[5]
For clarity, it may be opportune to distinguish between the two
Rules.
[6]
The remedy of a Respondent who disputes authority is not to challenge
the authority
in the answering affidavit, but to use Rule 7(1) of the
Uniform Rules of Court.
[1]
The
Rule states:
“
Subject
to the provisions of sub-rules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfies the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.”
[7]
Rule 6(1) of the Uniform Rules of Court that provides that:
“
Every application
must be brought on notice of motion supported by an affidavit as to
the facts upon which the applicant relies
for relief.”
[8]
The Respondents contend that the Applicant himself should depose to
the affidavit
as he is the witness. According to them, Mr Burger is
“
testifying
” and an attorney should only “
advise
and guide
” litigation. The fact that the Applicant
deposed to a confirmatory affidavit does not, according to them,
address the deficiency.
They request that the application be
dismissed with costs, for lack of authority.
III
THE LAW ON AUTHORITY IN TERMS OF RULE 6
[9]
A deponent to an affidavit in motion proceedings need not be
authorised by the Applicant.
The Applicant, however, has to authorise
the institution and prosecution of the proceedings.
[10]
Attorneys often depose to affidavits on their client’s behalf.
The test is whether they have
personal knowledge of the facts
relevant to the application. In
Masako
v Masako and another
[2]
the Supreme Court of Appeal held:
“
[10]
Turning to the issue of authority to
depose
to
an
affidavit
,
the judgment of this Court in Ganes and another v Telecom
Namibia Ltd
[3]
provides a complete answer to this question. It held that:
"…
it is irrelevant whether Hanke had been authorised to
depose
to
the
founding affidavit
.
The deponent to an
affidavit
in
motion proceedings need not be authorised by the party concerned
to
depose
to
the
affidavit
.
It is the institution of the proceedings and the prosecution thereof
which must be authorised. In the present case the proceedings
were
instituted and prosecuted by a firm of attorneys purporting to act on
behalf of the respondent. In an
affidavit
filed
together with the notice of motion a Mr Kurz stated that he was a
director in the firm of attorneys acting on behalf of the
respondent
and that such firm of attorneys was duly appointed to represent the
respondent. … '
[11]
Ms Moduka alleged that her reason for deposing to
the
founding affidavit
was
that the facts that gave rise to the need for a rescission
application lay squarely within her knowledge as the
attorney
who
was dealing with the matter. It stands to reason that a deponent to
an
affidavit
is a
witness who states under oath facts that lie within her personal
knowledge. She swears or affirms to the truthfulness of such
statements. She is no different from a witness who testifies orally,
on oath or affirmation, regarding events within her knowledge.
Thus,
when Ms Moduka deposed to the
founding affidavit
,
she needed no authorisation from her client.”
[11]
On this basis, the point in limine is dismissed.
IV
MERITS
[12]
Mr Burger drew an Annexure “B” to the application for the
licence. No mention is
made therein of parking space at the
restaurant.
[13]
In the SAPS.21 form of the South African Police Service, Lt. Col. MH
Modise stated that the Applicant
did not answer his cell phone when
called. In a Pre-inspection Report completed by the Inspector, Area
Leader and the Manager of
the First Respondent, it is stated: “
Road
accessible Tar and parking sufficient
”
.
[14]
Section 28(4) of the Act lists public interest and a report of the
municipality in whose area
the premises falls as factors that need to
be considered in applications for licenses.
[15]
Section 32(2) of the Act stipulates that a report from the
municipality must provide information
on
inter alia
the impact
on surrounding traffic patterns, traffic congestion, entrances and
exits to and from the premises, and parking requirements.
[16]
The First Respondent requested from Mr Burger to comment on the
reports and to submit any outstanding
documents within fourteen (14)
days, failing which the application would be forwarded to the First
Respondent as “
defective
”. Mr Burger referred to
the liquor inspector and designated police officer’s reports,
stating that both the reports
were favourable and that the Applicant
has no intention to reply.
[17]
A number of black and white photographs, apparently emanating from
the investigations of the First
Respondent. They depict a large
number of vehicles in the street. The photos attached to the
Applicant application to the First
Respondent, show few vehicles
parked outside the premises. The difference between the respective
sets of photos is obvious.
[18]
On 7 June 2022, Mr Mashinini, the Acting Legal Manager of the First
Respondent, stated that he and
one Mr Magashule went to verify the
facts regarding parking in the vicinity of the premises. He stated
that there is a taxi rank
near the proposed outlet, that the First
Respondent has no competency to do a traffic impact study, nor does
it have funds to do
so, but that it is clear from the photos that
there is not enough parking. The Applicant was given an opportunity
to address the
issue by way of oral submission and to state reasons
why the Board should grant the application.
[19]
The Applicant did not appear in person but was represented by Mr
Burger at the hearing on 8 June 2022.
Large portions of the
transcript are intelligible. It was
inter
alia
recorded that the liquor inspector and the report states that there
is insufficient parking. That was followed by a statement in
the
transcript that states that there are no objections against the
application.
[4]
Later on
it is recorded: “
Parking
is not irrelevant, but it is not that important. Someone says
it doesn’t
[sic]
there
is no provision for it in the Act
.”
[5]
[20]
In a debate on the traffic issue, and after a question that was put
to Mr Burger, whether he attended
the premises during the day and
night, Mr Burger stated:
“
I
do not know exactly. A week, two or three ago. I was not
there at night. But I, the evidence, or I can’t
give
evidence. I present my client’s case on instructions.
I have asked him; he says to me the [sic] sufficient
parking at
night. So I cannot give evidence. And I do not want to do
that.”
[6]
[21]
The proceedings, which were apparently conducted virtually, came to a
point where the chairperson stated
that the application of the
Applicant stands down and will be heard at some other stage.
[7]
[22]
The record does not reflect that the deliberations continued in
respect of the Applicant’s
application. The First Respondent
informed the Applicant that it took a decision to refuse the
application on the following singular
ground:
“
1.
The proposed premises is situated in a traffic congested area, with a
taxi rank in close proximity, parking
is a major issue and will
therefore be insufficient.”
[23]
In their opposing affidavit
[8]
,
the Respondents ask this Court to order the municipality to provide a
report to the First Respondent for reconsideration of the
matter
within 90 days of this Order. The Applicant denies that this Court
has the power to make such a directive.
V
THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT
[24]
The Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”),
inter
alia
provides that an administrative action which materially and adversely
affects the rights or legitimate expectations of any person
must be
procedurally fair. An administrator must give a person a reasonable
opportunity to make representations.
[9]
Non-compliance with this requirement normally leads to invalidity of
the process. Procedural unfairness is listed as a ground for
review
in section 6(2)(c) of PAJA and setting the decision aside remains the
default for non-compliance.
[10]
[25]
A Court may either set the decision aside or correct it. Courts are
reluctant to usurp the decision-making
powers of administrators as
the legislature delegated decision-making to an administrator
[11]
and generally refer matters back to the original decision-maker
rather than attempt to correct the decision themselves. This affirms
the distinction between reviews and appeals.
[26]
These principles are summed up in
Gauteng
Gambling Board v Silverstar Development Ltd and Others
[12]
as follows:
”
[28]
The power of a court on review
to substitute or vary administrative action or correct
a defect
arising from such action depends upon a determination that a case is
‘exceptional’: … Since the normal
rule of common
law is that an administrative organ on which a power is conferred is
the appropriate entity to exercise that power,
a case is exceptional
when, upon a proper consideration of all the relevant facts, a court
is persuaded that a decision to exercise
a power should not be left
to the designated functionary. How that conclusion is to be reached
is not statutorily ordained and
will depend on established principles
informed by the constitutional imperative that administrative action
must be lawful, reasonable
and procedurally fair. …
[29]
An administrative functionary
that is vested by statute with the power to consider and
approve or
reject an application is generally best equipped by the variety of
its composition, by experience, and its access to
sources of relevant
information and expertise to make the right decision. The court
typically has none of these advantages and
is required to recognize
its own limitations. See Minister of Environmental Affairs &
Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of
Environmental Affairs & Tourism and Others v Bato Star Fishing
(Pty) Ltd
2003 (6) SA 407
(SCA) at paras [47] to [50], and Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at paras [46] to [49]. That is why remittal is almost
always the prudent and proper course.”
.[27]
In
Johannesburg
City Council v Administrator, Transvaal
[13]
it was held:
“
In Livestock
and Meat Industries Control Board v. Garda,
1961 (1) S.A.
342
(A.D.), HOLMES, A.J.A., stated the “basic principle”
as follows at p. 349G:
“
From
a survey of the foregoing decisions it seems to me possible to state
the basic principle as follows, namely that the Court
has a
discretion, to be exercised judicially upon a consideration of the
facts of each case, and that, although the matter will
be sent back
if there is no reason for not doing so, in essence it is a question
of fairness to both sides.”
The
whole position was again reviewed by MULLER, J., in Vries v. du
Plessis, N.O.,
1967 (4) S.A. 469
(S.W.A.) at p. 482, and from the
numerous cases referred to there (which include four not yet
mentioned by me above) it seems clear
that the Courts have
consistently followed this pattern:
1.
The ordinary course is to refer back because the
Court is slow to assume a discretion which has by statute
been
entrusted to another tribunal or functionary.
2.
The Court will depart from the ordinary course in
these circumstances:
(i)
Where the end result is in any event a foregone
conclusion and it would merely be a waste of time to order
the
tribunal or functionary to reconsider the matter. This applies more
particularly where much time has already unjustifiably
been lost by
an applicant to whom time is in the circumstances valuable, and the
further delay which would be caused by reference
back is significant
in the context.
(ii)
Where the tribunal or functionary has exhibited bias or incompetence
to such a degree that it would be unfair to require the
applicant to
submit to the same jurisdiction again.”
[28]
On
the question whether a Court should substitute the decision on its
own accord, I refer to the decision in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and another
[14]
where the Constitutional Court held:
“
[47]
To my mind, given the doctrine of separation of powers, in
conducting this enquiry there are certain factors that should
inevitably hold greater weight.
The
first is whether a court is in as good a position as the
administrator to make the decision. The second is whether
the decision
of an administrator is a foregone conclusion
.
These two factors must be
considered cumulatively
.
Thereafter, a court should still consider other relevant factors.
These may include delay, bias or the incompetence of an
administrator.
The ultimate
consideration is whether a substitution order is just and
equitable. This will involve a consideration of fairness
to all
implicated parties. It is prudent to emphasise that the exceptional
circumstances enquiry requires an examination of each
matter on a
case-by-case basis that accounts for all relevant facts and
circumstances
.
[48]
A court will not be in as good a position as the
administrator where the application of the administrator's expertise
is still required and a court does not have all the pertinent
information before it. This would depend on the facts of each case.
…
[49]
Once a court has established that it is in as good a
position as the administrator, it is competent to enquire
into
whether the decision of the administrator is a foregone conclusion.
A
foregone conclusion exists where there is only one proper outcome of
the exercise of an administrator's discretion and 'it would
merely be
a waste of time to order the [administrator] to reconsider the
matter'
…
in instances where the decision of an administrator is not
polycentric and is guided by particular rules or by legislation,
it
may still be possible for a court to conclude that the decision is a
foregone conclusion.”
[my emphasis]
VI
CONCLUSION
[29]
This Court cannot accede to the Respondents’ request that
direct the municipality to render a
report. The municipality was not
joined to these proceedings and a Court will only under exceptional
circumstances order a party
not joined to perform a function. No such
circumstances are present. The principle of separation of powers
applies.
[30]
The transcript of the proceedings does not assist this Court in
determining whether due process was
followed. This is unfortunate.
The Board should address the quality of the recording and
transcription of the proceedings.
The relevant portion in the record
where the case of the Applicant was discussed was difficult to find
and difficult to read.
[31]
The level of antagonism during the hearing of the Applicant’s
application, which appears in the
transcript, is disconcerting. A
lack of constructive dialogue would on probabilities not lead to a
fair result.
[32]
This matter should be referred back to the First Respondent for
reconsideration.
VI
COSTS
[33]
The Applicant did not give his cooperation to the Police and the
transcribed record indicates that
the First Respondent did not obtain
all the information from the municipality. The record does not show
how and when the conclusion
to reject the application was arrived at.
Both parties carry the responsibility for the deficiencies and it
would be fair that
each party carries its own costs.
VII
ORDERS:
[34]
I grant the following orders:
1.
The decision of the Respondents, dated 22 June 2022, rejecting the
Applicant’s
application for a license is reviewed and set
aside.
2.
The Respondents are directed to reconsider the Applicant’s
application
for a liquor license within 21 days from date of this
order.
3.
Each party to pay its own costs.
____________________
P R
CRONJé, AJ
I
agree:
____________________
N
S DANISO,J
On
behalf of the Applicants:
Adv R Van der Merwe
Instructed by:
Kobus Burger Attorneys
BLOEMFONTEIN
On
behalf of the Respondents: Adv. L Bomela
Instructed by:
Mohobo Attorneys Inc.
BLOEMFONTEIN
[1]
Harms, Civil Procedure in the Superior Courts, LexisNexis, Issue 66,
p. B-37
[2]
[2021]
JOL 51783 (SCA)
[3]
(608/2002)
[2003] ZASCA 123; [2004] 2 All SA 609 (SCA) (25 November 2003)
[4]
Transcribed record, p.
38,
line 20 - 22
[5]
Ibid, p.
44
[6]
Ibid, p.
52,
line 16 - 23
[7]
Ibid, p.
61,
line 6
[8]
Para 35
[9]
Section 3
[10]
Hoexter, C, Administrative Law in Southern Africa, Second Edition,
Juta, p. 386
[11]
Hoexter
supra
,
p. 552, para (b)
[12]
(80/2004)
[2005] ZASCA 19
(29 March 2005)
[13]
1969 (2 SA 72
(T) at 76D-E
[14]
2015
(5) SA 245
(CC)