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2023
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[2023] ZAFSHC 215
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Mehlo v Free State Gambling, Liquor and Tourism Authority and Another (4595/2022) [2023] ZAFSHC 215 (26 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4595/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between
:
KGATSANE SYLVIA
MEHLO
Applicant
and
THE FREE STATE
GAMBLING, LIQUOR AND
TOURISM
AUTHORITY
1
st
Respondent
THE CHAIR PERSON
OF THE FREE STATE GAMBLING,
LIQUOR AND
TOURISMS AUTHORITY
2
nd
Respondent
CORAM
:
LOUBSER,
J et RAMDEYAL, AJ
HEARD
ON
:
24
APRIL 2023
JUDGEMENT
BY
:
RAMDEYAL, AJ
DELIVERED
ON
:
The judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 26 MAY 2023. The
date and time for hand-down is deemed to be 26 MAY 2023 at 16:00
[1]
This is an application in terms of the provisions of section 6 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) read with
Uniform Rule 53 for the judicial review and the setting aside
of the
refusal of a licence application for Sylvia’s restaurant.
Section 6 of the said
“PAJA” reads as follows:
‘
(1) Any person may
institute proceedings in a court or a tribunal for the judicial
review of administrative action.
(2) A court or tribunal
has the power to judicially review an administrative action if-
(a) the administrator who
took it-
(i) was not authorized to
do so by the empowering provision;
(ii) acted under a
delegation of power which was not authorized by the empowering
provision; or
(iii) was biased or
reasonably suspected of bias;
(b)a mandatory and
material procedure or condition prescribed by an empowering
provision; was not complied with;
(c) the action was
procedurally unfair;
(d) the action was
materially influenced by an error of law;
(e) the action was taken-
(i) for a reason not
authorized by the empowering provision;
(ii) for an ulterior
purpose or motive;
(iii) because irrelevant
considerations were taken into account or relevant considerations
were not considered;
(iv) because of the
unauthorized or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or
capriciously;
(f) the action itself-
(i) contravenes a law or
is not authorized by the empowering provision; or
(ii) is not rationally
connected to-
(aa) the purpose for
which it was taken;
(bb) the purpose of the
empowering provision
(cc) the information
before the administrator; or
(dd) the reasons given
for it by the administrator;
(g) the action concerned
consists of a failure to take a decision;
(h) the exercise of power
or the performance of the function authorized by the empowering
provision, in pursuance of which the administrative
action was
purportedly taken is so unreasonable that no reasonable person could
have exercised the power or performed the function;
or
f) the action is
otherwise unconstitutional or unlawful.’
[2]
The applicant’s application for a liquor licence was lodged in
terms
of section 27 read with section 31 of the Free State Gambling
and Liquor Act 6 of 2010 (“the Act”).
[3]
The applicant at the time already had a liquor licence for a bottle
store
issued on the same premises and sought to apply for a second
liquor licence on the same premises expecting the respondents to have
due regard to the existing licence. They complied with the Act in
obtaining the necessary reports from the South African Police
Services, the municipality and relevant inspectors which the
applicant believes are favourable to her application. The report from
the nearby church apparently supports the “project’’,
there is no mention though of the support of the actual
sale of
liquor.
[4]
The respondent refused the application for the liquor licence on the
basis
of the following reasons:
“
1) The proposed
premises are in close proximity to the place of worship.
2)The application will
exceed 60/40 requirement as there is already existing business and
therefore annexure F will not apply.
3)There is no sufficient
parking at the proposed premises which will lead to traffic
disturbance. 4)Section 28(4) of the Act read
together with regulation
70 (1) and (3) further indicates that “when considering an
application for registration, the Authority
must also take due regard
to issues of-proximity of the proposed premises to,
(i) institutions of
learning,
(ii) places of worship,
(iii)existing outlets…’”
[5]
Section 28 of the said Act reads as follows:
“
(1) The Authority
may –
(a) require further
information relevant to an application; and
(b) refuse an application
if the applicant has not supplied all information required in terms
of paragraph (a) within the prescribed
time.
(2) If the application
complies with the provisions of the Act, the Authority must further
consider the application relating to
the following criteria:
(a)The applicant’s
proposed contribution to combating alcohol abuse, including whether
the applicant has subscribed to any
industry code of conduct approved
by the national Minister as contemplated in section 13 (1)(b) of the
national Liquor act; and
(b) The extent to which
the proposed contribution to combating alcohol abuse, including
whether the applicant has subscribed to
any industry code of conduct
approved by the National Minister as contemplated in section 13 (1))
(b) of the National Liquor Act;
and
(c) The extent to which
the proposed registration may materially restrict or promote –
i) new entrants to the
liquor industry;
ii) job creation within
the liquor industry;
iii) diversity of
ownership within the liquor industry;
iv)efficiency of
operation of the liquor industry; or
v) competition within the
liquor industry.
3) For a
micro-manufacturing registration, the Authority may consider the
applicant’s commitment to black economic empowerment.
4) When considering
application for registration, the Authority must also take due regard
of issues of-
(a) public interest;
(b) proximity of the
proposed premises to-
(i) institutions of
learning; or
(ii) places of worship
(iii) existing outlets;
(c) The ratio of
population vis-a vis the number of outlets in the relevant ward;
(d) the report of the
relevant municipality received in terms of section 31; and
(e) the reports, views,
comments and objections contemplated in sections 31(4) to sections
35;
(5) After considering the
application and all relevant factors the board may either-
(a) register the
applicant; or
(b) refuse to register
the applicant.
(6) If the Authority
refuses an application, the Authority must give the applicant written
reasons for the decision.’
[6]
The respondents base their refusal to grant the application of the
basis
that ‘the applicant disregards the legislative
requirements.’
It is apparent that the
main point of contention as per the argument in court by Mr. Qwelane,
appearing for the respondents, is
that Section 24(4)(d) requires that
the report of the municipality be taken into consideration.
The report of the
municipality reads as follows:
“
a. The building
plan submitted does not correspond with the existing structure.
The office of Municipal
Health Services – Manguang Metropolitan Municipality shall
approve premises for operation only if
it complies with all relevant
Municipal legislation.
Therefore, this application is not approved
and supported.
’
[7]
The respondents’ contention is that there are no reasons
forthcoming
from the applicant convincing them as to why they should
not have regard to the negative comment from the municipality.
[8]
It has been said that liquor can be regarded as a potentially
dangerous
substance and therefore the excessive consumption should be
avoided. Mr. Qwelane basically argued that the existing liquor
licence
for the business on the said premises is for an outlet
referred to as a bottle store for the purpose of purchasing and
leaving
the premises whereas the current application is for a
restaurant requiring the sit down of patrons consuming liquor on the
premises.
Section 28 (2)(a) of the Act states that the
applicant’s proposed contribution to combating alcohol abuse
must be taken into
consideration.
[9]
Section 40(1) of the Constitution of South Africa states that in the
Republic,
government is constituted as national, provincial and local
spheres of government which are distinctive, interdependent and
interrelated.
Therefore, the report of the municipality is essential
for consideration.
[10]
In
Reynecke
v Free State Gambling and Liquor Authority and Another
[1]
it was said
by Lekhale J that ‘SAPS and the municipality served as the eyes
and ears of the respondents… Their
cooperation was
necessary in the services that the respondents render and was, as
such, of utmost importance to service delivery.’
[11]
I am of the opinion that the report of the municipality which does
not approve the application
for a liquor licence for the said
premises is an essential factor to consider as well as all the other
relevant factors for refusal
as discussed.
[12]
In the circumstances the following order is made:
1. The
application for review is dismissed with costs.
RAMDEYAL AJ
I agree:
LOUBSER, J
On
behalf of the Applicant:
Adv.
R Van der Merwe
Instructed
by:
Kobus
Burger Attorneys
Bloemfontein
On
behalf of the Respondent:
Mr.
D.S Qwelane
Instructed
by:
Qwelane
Theron & Van Niekerk
Bloemfontein
[1]
(3402/2014)
[2014] ZAFSHC 19
(30 October 2014) paragraph 29