About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 7
|
|
Boxer Super Liquors (Pty) Ltd v Eastern Cape Provincial Liquor Board and Another (3174/2021) [2022] ZAECMKHC 7 (26 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
no: 3174/2021
In
the matter between:
BOXER
SUPER LIQUORS (PTY) LTD
Applicant
and
EASTERN
CAPE PROVINCIAL LIQUOR BOARD
1
st
Respondent
THE
CHAIRPERSON OF THE EASTERN CAPE
PROVINCIAL
LIQUOR BOARD
2
nd
Respondent
JUDGEMENT
MFENYANA
AJ
[1]
The contentious issue in this matter hinges on who should pay the
costs of an urgent
application instituted by the applicant on 8
October 2021. The application was set down by the applicant for
hearing on 16 November
2021. In that application, the applicant
sought an order directing the first respondent to consider and
finalise two applications
for liquor licences made by the applicant
in March of the same year. In that application the applicant sought,
as an interim relief,
an order that it be authorised to trade in
liquor as if the licence had been granted, pending the determination
of its application
for liquor licence applications by the
respondents. The essence of the interim relief sought is that should
the applications be
refused by the first respondent, the applicant
should still be authorised to trade in liquor until such time that
the applicant
itself has made a decision whether or not to take the
matter on review. The applicant self-imposed a timeframe of 30 days
from
the date the decision had been communicated to it by the
respondents within which to make that decision.
[2]
Having duly delivered its notice of intention to oppose the
application on 15 October
2021, the respondent made a decision on 27
October 2021, refusing the two liquor licence applications.
Axiomatically, this rendered
this part of the relief sought moot.
[3]
On 5 November 2021, a day out of the time stipulated in the notice of
motion, the
respondents delivered their answering affidavit. In it,
the respondents dealt in part with the applicant’s failure to
comply
with the provisions of the Act
[1]
in so far as they require proof of service to the ward committee
which in turn must consult with the community and submit a report
to
the first respondent. This aspect is not relevant for the
determination of the present application. Nothing further need be
said about it.
[4]
The respondents submitted that the order sought by the applicant,
seeking to compel
them to make a decision on the two liquor licence
applications had become moot and would serve no practical effect.
This is conceded
by the applicant. It is well worth mentioning that
the decision on the two liquor licence applications was taken only
after the
application papers had been issued and after the
respondents filed the notice to oppose.
[5]
The respondents in their answering affidavit place in issue the
‘interim relief’
sought by the applicant and seek to
convince the court why it should not be granted. Principally, the
respondents aver that the
relief sought has the effect of undermining
the spirit of the Act in so far as the intention and purpose of the
registration and
community involvement processes are concerned. They
further place in issue as without merit, the intended review, on the
basis
of which the applicant sought to be authorised to trade without
the required licence, stating that to the extent that the applicant
had not provided any basis for such, the order sought is without
merit and falls to be rejected.
[6]
Emerging from the respondent’s answering affidavit is a
contention that a dispute
existed between the parties in respect of
the responsibility to ensure that the ward councillor consults with
the community. This
is evident from the parties’ submissions. I
do not intend to deal with the merits and demerits of these
submissions.
[7]
The respondents further contend that the applicant had an alternative
remedy of an
internal appeal which it failed to pursue before
approaching the court. The respondents’ further contention is
that the delay
in processing the liquor licence applications was as a
result of the back and forth communication between the parties
regarding
the community involvement aspect of the application and
also that the order sought shall interfere with the doctrine of
separation
of powers.
[8]
The filing of an answering affidavit by the respondents prompted a
letter from the
applicant on 9 November 2021 suggesting that the
application be removed from the roll as the relief sought had become
moot due
to the respondents having already taken the decision. The
respondents replied to the letter on 10 November 2021 disputing that
the matter had become moot. They also aver that they would ‘oppose
any ‘withdrawal of the matter without the leave of
court. It is
also the respondents’ case that the issue of costs be argued on
the set down date.
[9]
On 11 November 2021 the applicant addressed a further letter to the
respondents the
essence of which was
inter alia
that the
applicant would go ahead with the urgent application on 16 November
albeit on issues different from those raised in the
notice of motion,
the conduct of the respondents and the fact that the applicant had to
lodge an appeal against the decision of
the respondents or the court
to exercise its discretion to dispense with the internal appeal. The
applicant further stated that
it would bring a second urgent
application a day before the hearing of the matter, to seek a
declaratory order and highlight the
conduct of the respondents.
[10]
On 15 November 2021 the applicant delivered an affidavit titled
“Affidavit Re: Postponement”
in which it set out what had
transpired up to that point, and sought an order that the matter ‘be
removed from the urgent
roll, postponed
sine die
and to be
enrolled for hearing on the ordinary motion roll.’ At the
hearing of the matter on 16 November 2021, it was ‘postponed
to
20 January 2022 and the costs were reserved. The court further
directed that the matter be referred to Case Flow Management
no later
than 30 November 2021.
[11]
As aforesaid, the contentious issue in these proceedings is who is
liable to pay the costs with
one party contending that it was
successful or substantially successful in its case so the other party
must pay the costs and the
other repelling such with contrary
contentions
Determining the issue of
which the successful party is pivots on the mootness or otherwise of
the application and the cause thereof.
[12]
The applicant contends that the refusal of the liquor licence
applications by the first respondent
rendered the whole application
moot as the
mandamus
portion of the application was the
primary relief sought. The refusal thereof, so continues the
applicant continues, disposed of
the
lis
between the parties
and in that way ‘disentitled the applicant from pursuing the
interim relief’. This is disputed
by the respondents who
contend that the interim relief remains a live issue between the
parties.
[13]
In its submissions the applicant states that after the respondents
made a decision refusing the
liquor licence applications, the
applicant addressed a letter to the respondent suggesting that the
matter be removed from the
roll and that the issue of costs be
enrolled for determination at a later stage. In response thereto, the
respondent advised that
they would oppose any withdrawal of the
matter if it was not sanctioned by the court. It bears mention that
the suggestion by the
applicant to remove the matter from the roll
came after the respondents had delivered their answering affidavit.
[14]
Presumably, on account of the respondents’ resistance, the
applicant did not persist and
follow through with the removal of the
matter. Instead, the applicant delivered a further affidavit, the “
Re
Postponement affidavit
”. Although this affidavit is
entitled Affidavit: Re: Postponement. Its title notwithstanding, Mr
Brown, counsel on behalf
of the applicant, submitted that the said
affidavit is in fact the applicant’s reply as the applicant
essentially did not
seek a postponement. However in paragraph 13 of
the said affidavit, the applicant prays that the matter be removed
from the urgent
roll, postponed
sine die
and that it be
enrolled on the normal ‘motion’ roll. The tenor of the
above paragraph is an antithesis of Mr Brown’s
submission
above, and flies in its face.
[15]
In arguing that a costs order be granted in its favour, In support of
its argument for the costs,
the applicant relies on two propositions.
Firstly, the applicant argued that the application was necessitated
by the respondents’
failure to comply with its statutory
obligations and decide on the applications submitted by the applicant
within the prescribed
timeframes. Secondly, the applicant contends
that the issuing of the application resulted in the respondents
making a decision
on the applications, albeit outside of the 118 days
required in terms of the Liquor Act, which is what the applicant
sought to
achieve in issuing the urgent application.
[16]
In the final analysis, the applicant contends that it was successful
in the application and the
costs should accordingly follow this
result. Driving this point home, the applicant further submits that
the application was not
without merit or frivolous and that the
respondent’s ultimate decision in the face of the application
was a calculated move
to render the primary relief moot.
[17]
I was referred to the decision in
Welgevonden
[2]
.
In
that matter the Limpopo High Court, per Makgoba JP, granted an order
authorising the applicant to trade in liquor pending a decision
by
the respondent and to continue so trading pending finalisation of a
review application by the applicant. As already stated,
the merits of
the matter are not an issue before this court, having been disposed
of at the hearing of the matter on 16 November
2021. For this
purpose, nothing much turns on whether the interim relief was
abandoned by the applicant ‘from the bar’
as the
respondents contend, or whether it was disposed of at some other
time. Where this alleged abandonment or withdrawal or removal
becomes
relevant is in respect of the awarding of costs, that being the core
consideration in these proceedings.
[18]
The parties appear to be on the same page in this regard. However,
contrary to the applicant’s
submission, the respondents contend
that once the decision to refuse the liquor licence applications was
made, the
mandamus
part of the relief, and only that part
became moot. The remainder of the relief sought, the respondents
aver, remained live until
it was abandoned at the hearing of the
matter. On this basis, the respondents contend that they were
successful in the application
as the matter was only resolved once
the applicant abandoned the remaining prayer on the day of the
hearing. My difficulty with
this line of argument is that it
trivialises the primary relief sought by the applicant seeking to
compel the respondents to make
a decision which is the main reason
for the applicant to launch this application. The issue, in my view,
is whether the making
of the decision by the respondents after the
application was instituted indeed rendered the matter moot and
whether the respondents
could have in any event taken the decision
had the application not been instituted. The applicant however
denies, that it abandoned
the interim relief and argues that it had
become moot and was not dealt with. This elicited a response from the
respondents that
the applicant was disingenuous as it maintained this
line of argument in a different matter under case number 3727/2021.
[19]
The parties are in agreement that the costs should follow the result
and that this rule should
not be lightly departed from. What they are
miles apart on is what ‘the result’ is, with each
claiming success. The
applicant contends it was successful as what it
sought to do in issuing the application, was to compel the
respondents to make
a decision, which is what happened shortly after
the application was issued. Here, I must interpose to state that no
mandamus
compelling the respondents was issued by the court.
On the other hand, the respondents contend that they were successful
as they
opposed the application until the applicant abandoned the
remaining part of the relief from the bar.
[20]
What the applicant does not say is that that part of the relief
became the subject of the court
hearing on 16 November 2021. This is
hardly surprising as the applicant insists that the entire
application became moot upon the
first respondent making a decision
to refuse the liquor licence applications. I do not agree. The
application brought by the applicant
was three-fold:
First
, it
sought to compel the respondents to make a decision. Whatever the
outcome. Linked to that was that before the decision is made,
the
applicant be authorised to trade until the decision had been made.
Second
, once the decision had been made and it was not in the
applicant’s favour, it sought authorisation, similarly, to
trade until
the applicant itself took a decision whether or not to
take the refusal by the respondents on review. It is not in dispute
that
the first leg of the relief had been overtaken by events even
prior to the hearing of the matter. The dispute with regard to the
second leg persisted until, it seems, 16 November 2021 at which stage
the parties were before court. On that day, by agreement
between the
parties, the matter was postponed to 20 January 2022 with costs
reserved.
[21]
In the way the relief sought by the applicant is crafted, it makes
provision for the eventuality
that the main relief is not granted in
which event it would be authorised to trade as if the licences had
been granted pending
its decision to take the matter on review. It
would seem to me that what remained of the application at that stage
was for the
applicant to make that decision. It did not. Believing as
it did, that that part of the relief was of no consequence, the
applicant
approached the respondents in an attempt to agree to put
the entire matter to bed, and suggested to remove the matter from the
roll. I am of the view that this suggestion was well made. However it
was not proceeded with on the basis that the respondents did
not
agree to it and stated that they would oppose any attempt to withdraw
the application.
[22]
There is no doubt that the respondents were quite skilful in the
manner they handled the liquor
licence applications as well as the
urgent application. That notwithstanding, nothing prevented the
applicant from withdrawing
the application, with a tender for costs.
As the applicant harboured the view that the matter had become moot
correctly or incorrectly,
and that it was entitled to costs up until
that stage, the issue of costs could have stood over for later
determination. In that
event the matter would not have endured for as
long as it did.
[23]
By the applicant’s own admission, a refusal by the respondents
would trigger the interim
relief. It may be that for some reason or
another, the applicant no longer wished to press ahead with a review
application. That
also, was well within the applicant’s rights
as at its own instance it sought to first make a decision whether to
take the
matter on review or not within the time it had prescribed.
The only way that the respondent would be apprised of the applicant’s
election is if the applicant itself communicated its decision. It has
not. That eventuality has indeed come to pass. To act otherwise
would
be tantamount to leave the issue hanging in the air.
[24]
I could find no authority for the applicant’s contention that
the interim relief in its
entirety had become moot on occasion of the
first respondent’s refusal of the liquor licence applications.
The authorities
provided by the applicant all point towards
fortifying the applicant’s contention that the interim relief
as sought has been
granted by our courts on previous occasions. They
do not assist the applicant in making the point that the entire
application became
academic upon compliance by the first respondent.
The applicant’s own notice of motion belies this contention.
[25]
The general rule is that the successful party is entitled to his/ her
costs. To the extent that
the respondents complied with the relief
sought, the applicant was substantially successful in its case. To
the extent that the
applicant, proceeded with the matter even after
the decision was taken, the respondents were substantially
successful.
Order
[26]
In the result the following order is made:
1.
The respondents shall pay the costs of this application from the date
of its inception up
to 27 October 2021 when the respondents complied
with the main relief sought by the applicant.
2.
The applicants shall pay the costs of this application from 28
October 2021 to 16 November
2021 when the matter was heard in court,
including the costs reserved on that date.
S.
M. MFENYANA
ACTING
JUDGE OF THE HIGH COURT
EASTERN
CAPE, MAKHANDA
Counsel
for the Applicant:
Adv. G Brown
Instructed
by:
McCallum Attorneys
Counsel
for the Respondent Adv. S Mpakane
Instructed
by:
State Attorney, East London
C/O Mabece Tilana Inc.
Date
heard:
20 January 2022
Date
handed down:
26 April 2022
[1]
Eastern
Cape Liquor Board Act, 10 of 2003
[2]
Welgevonden
Lodge No. 57 (Pty) Ltd v Limpopo Provincial Liquor Board
Case
No:7896/2020