Summary of Judgment

1. Introduction

The matter concerned an application for judicial review in the Free State High Court (Free State Division, Bloemfontein). The applicant, Mokhathale Jonas Mashiya, sought the review and setting aside of an administrative decision taken by the Free State Gambling, Liquor and Tourism Authority (the first respondent), a statutory body responsible for considering and deciding applications for liquor licences and related registrations under the applicable provincial legislation.

The review was directed only against the first respondent and was opposed. Although the Chairperson of the Free State Gambling, Liquor and Tourism Authority was cited as second respondent, the judgment recorded that the application was directed at the first respondent only.

The procedural history was that the first respondent had, on 9 June 2022, declined the applicant’s application to register his business premises known as “Kilowatt” (situated at Stand 5780, Monyakeng Extension, Wesselsbron) as a tavern. The applicant then instituted review proceedings in the High Court, relying primarily on the Promotion of Administrative Justice Act 3 of 2002 (PAJA).

The general subject-matter of the dispute was the lawfulness and procedural fairness of the administrative decision to refuse tavern registration, specifically where the refusal was based on the proximity of the premises to an institution of learning and the application of the relevant liquor regulations dealing with minimum distance requirements and permissible deviations.

2. Material Facts

It was common cause that the applicant applied for the registration of his premises, “Kilowatt,” as a tavern. It was also common cause that the first respondent refused the application on 9 June 2022 on the basis that the proposed outlet was situated in close proximity to an institution of learning (identified as Iphathele) and that this did not persuade the Board to deviate from regulation 70(1) of the regulations made under the relevant Act.

The court treated as undisputed that regulation 70(1) prohibits the granting of a tavern licence where the proposed outlet is situated within a radius of 500 metres from an institution of learning. It was also treated as undisputed that regulation 70(3) permits a deviation from regulation 70(1) where the applicant makes representations setting out reasons why the application should be allowed notwithstanding non-compliance with regulation 70(1).

From the record examined by the court, it emerged that the applicant was not afforded an opportunity to make representations specifically for deviation in terms of regulation 70(3) before the refusal decision was taken. The court noted that the first respondent had requested the applicant’s response to various inspection reports, but that those reports raised no objection to the granting of the application despite the proximity of the proposed outlet to the school.

A further material and uncontested fact relied on by the court was that the first respondent had previously (on 24 March 2022) sent a letter to the applicant’s attorney calling upon the applicant to appear before the Liquor Board to state reasons why the application should be granted, with reference to an issue that the outlet was situated in a residential area not zoned for liquor business. This was treated as demonstrating that the first respondent was aware of the need to afford a hearing opportunity in appropriate circumstances.

The first respondent raised a procedural objection that the founding affidavit was defective because it was deposed to by the applicant’s attorney rather than the applicant personally, allegedly contrary to Uniform Rule 6(1). The court treated as material that the attorney’s assertion that the facts fell within his personal knowledge was uncontested, and that the record indicated he had lodged the application on the applicant’s behalf, giving him first-hand knowledge of the relevant facts and the record relied upon.

3. Legal Issues

The central legal questions were, first, whether the founding affidavit complied with Uniform Rule 6(1) (i.e., whether it was properly deposed to by a person who could lawfully be a witness and who had the necessary knowledge of the facts relied upon).

The second and primary legal question was whether the first respondent’s decision-making process complied with the requirements of procedural fairness, particularly the audi alteram partem rule, as incorporated in PAJA and the constitutional standard of lawful, reasonable, and procedurally fair administrative action.

This dispute concerned primarily the application of legal principles to facts (whether the procedure followed satisfied audi alteram partem and PAJA fairness requirements on the established record), rather than a pure factual dispute about the location of the premises or the existence of the school.

4. Court’s Reasoning

The court first addressed the preliminary objection concerning the founding affidavit. It explained that Uniform Rule 6(1) requires that a founding affidavit be deposed to by a person who has knowledge of the facts relied upon, with the purpose of minimising reliance on inadmissible hearsay. Although the first respondent objected that the affidavit was not deposed to by the applicant, the court accepted that the attorney-deponent’s statement that the facts were within his personal knowledge was not disputed.

The court further relied on the record, which reflected that the attorney had lodged the licensing application on behalf of the applicant and therefore had first-hand knowledge of the relevant facts and of the record used in the review proceedings. On this basis, the court was inclined to decide the objection in favour of the applicant and dismissed the objection.

Turning to the merits, the court stated that it is established law that the two basic requirements of natural justice founded on audi alteram partem are that, before administrative action is taken, a person who may be prejudicially affected must be given notice of the intended action and an opportunity to be heard.

The court analysed the administrative record and concluded that the applicant was not afforded an opportunity to make representations for deviation as contemplated by regulation 70(3). It reasoned that the first respondent merely sought the applicant’s response to inspection reports, but those reports raised no objection to granting the application, despite the 500-metre proximity issue. The court treated the absence of a hearing opportunity on the deviation question as a material procedural defect.

The court also relied on the fact that the first respondent had, earlier in the process, issued a letter (dated 24 March 2022) calling upon the applicant to appear before the Liquor Board to state reasons why the application should be granted given zoning-related concerns. This was taken to demonstrate that the first respondent was aware that the applicant was entitled to an opportunity to make representations before an adverse decision was taken. Against that background, the later failure to provide an opportunity to make deviation representations under regulation 70(3) was regarded as inconsistent with the requirements of procedural fairness.

On these facts, the court concluded that the failure to grant the applicant an opportunity to make representations before the refusal decision was made constituted an affront to the tenets of audi alteram partem, rendering the decision procedurally unfair and a subversion of the applicant’s constitutional rights to procedurally fair administrative action. The decision therefore had to be set aside.

On costs, the court applied the general approach that costs follow the result, and found no reason to depart from that position.

5. Outcome and Relief

The court reviewed and set aside the first respondent’s decision dated 9 June 2022 refusing the applicant’s application to register the premises “Kilowatt” as a tavern.

The matter was remitted to the first respondent for reconsideration afresh, with direction that the reconsideration should have regard to the record of proceedings and the representations to be made by the applicant in terms of regulation 70(3).

The first respondent was ordered to pay the costs of the application.

Cases Cited

No case law citations were identified in the text of the judgment provided.

Legislation Cited

Free State Gambling, Liquor and Tourism Act 60 of 2010.

Promotion of Administrative Justice Act 3 of 2002.

Constitution of the Republic of South Africa, 1996 (section 33(1)).

Rules of Court Cited

Uniform Rules of Court, Rule 6(1).

Held

The court held that the first respondent’s refusal of the applicant’s tavern registration application was procedurally unfair because the applicant was not afforded an opportunity to make representations relevant to a deviation under regulation 70(3), as required by the audi alteram partem principle and the constitutional and statutory requirements for fair administrative action.

The court further held that the preliminary objection based on Rule 6(1) (that the founding affidavit was deposed to by the applicant’s attorney rather than the applicant) could not succeed because the deponent’s personal knowledge was uncontested and supported by the record showing his direct involvement in the underlying proceedings.

LEGAL PRINCIPLES

Procedural fairness in administrative decision-making requires adherence to the audi alteram partem rule, which includes providing a person who may be adversely affected by administrative action with notice and a meaningful opportunity to be heard before the decision is taken.

Where a regulatory framework provides not only a general prohibition (such as a distance requirement) but also a mechanism for deviation upon representations (as in regulation 70(3)), procedural fairness requires that the affected applicant be afforded a fair opportunity to make those representations before the authority decides whether to adhere to or deviate from the prohibition.

A founding affidavit in motion proceedings must comply with Uniform Rule 6(1) by being deposed to by a person with knowledge of the facts relied upon; where an attorney’s personal knowledge is uncontested and supported by the record of involvement, an objection based solely on the fact that the applicant did not depose to the affidavit will not necessarily be upheld.