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[2021] ZALMPPHC 63
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Welgevonden lodge NO 57 (Pty) Ltd v Limpopo Provincial Liquor Board (7896/2020) [2021] ZALMPPHC 63 (29 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 7896/2020
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
WELGEVONDEN
LODGE NO. 57 (PTY) LTD
APPLICANT
and
LIMPOPO
PROVINCIAL LIQUOR BOARD
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1] At
the hearing of this matter on 21 September 2021 and upon hearing the
submissions by Counsel
for both parties, I pronounced the following
order and indicated that my written judgment would follow in due
course:
1.
The Respondent
be and is hereby directed within 30 calendar days of this order, to
consider and finalize the Applicant’s application
for a special
license (on-consumption) (accommodation) in respect of a business
known as Fifty Seven Waterberg situated at Welgevonden
Private Game
Reserve, Stand 57, Portion 8 of the farm Koedoespoort 283 KQ,
Vaalwater district Waterberg, Limpopo Province.
2.
The Applicant be and
is hereby authorized to trade in liquor in its business known as
Fifty Seven Waterberg situated at Welgevonden
Private Game Reserve,
Stand 57, Portion 8 of the farm Koedoespoort 238, KQ, Vaalwater,
district Waterberg, Limpopo Province, as
if the liquor license as
applied for has been granted and issued until the final decision in
respect of the application has been
communicated and received by the
Attorneys of record for the Applicant, and should the decision be to
decline the application the
Applicant is authorized to continue
trading until such time as the decision could have been finalized on
review before this Court;
provided that the Applicant has to
institute such review proceedings within 1 (one) month of the
decision being communicated and
received by the Attorneys of record
for the Applicant.
3.
The Respondent shall
pay the costs of the application.
[2]
What follows is my judgment and the reasons
thereof.
[3]
The Applicant brought an application against the
Respondent in terms of section 6(2)(g) of Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”) for the review of
administrative action consisting of the failure by the Respondent
to
take a decision in regard to the issue of a liquor license to the
Applicant.
The
application is coupled with the seeking of an interim relief in
accordance with common law and section 8(1)(e) of PAJA enabling
the
Applicant to trade on an interim basis.
[4] This
application is in the nature of a
mandamus
compelling
the Respondent to issue an on-consumption liquor license which had
previously been granted to the Applicant in respect
of a business
known as Fifty Seven Waterberg, authorizing the Applicant to trade in
liquor at Welgevonden Private Game Reserve,
situated at Stand 57,
Portion 8 of the farm Koedoespoort 238 KQ, Vaalwater, district
Waterberg, Limpopo Province.
[5] The
Court has the common law jurisdiction as well as jurisdiction in
terms of section 6(2)(e) of PAJA,
to issue a
mandamus
order
against an administrative organ, directing it to take a decision in a
matter which is unnecessarily delayed or where there
is a refusal on
the part of the administrative organ to take a decision.
Factual
Matrix
[6] The
facts outlined hereunder are common cause or not in dispute.
[7] In
terms of Section 19 of the Liquor Act 27 of 1989, as amended, (the
“Liquor Act”) the Applicant
applied for a special license
(on-consumption) (accommodation) in respect of a business to be known
as Fifty Seven Waterberg and
to be situated at Welgevonden Private
Game Reserve, Stand 57, Portion 8 of the farm Koedoespoort 238 KQ,
Vaalwater, district Waterberg,
Limpopo Province.
[8] The
application was properly drawn, compiled, signed and lodged at the
Magistrate Office of Modimolle
(Nylstroom) on 4 October 2019 and the
prescribed fee in this regard was paid. No objections were filed of
record against the application
of the Applicant as is provided for in
Chapter 2 of the Regulations to the Liquor Act.
The
application having been lodged on 4 October 2019, the report of the
Designated Police Officer (DPO) was to be filed on 8 November
2019.
Thereafter the Magistrate Office was to forward the application to
the Liquor Board (Respondent) for consideration on approximately
18
November 2019.
[9] The
Applicant realized that there was no progress made with regard to the
consideration of the application
and on or about July 2020 the
Applicant consulted with its attorneys of record regarding the delay
in the processing of the application.
The attorneys made an enquiry
regarding the status of the matter by way of an email dated 29 July
2020. The said email is Annexure
“D” to the founding
affidavit.
[10] The
said email was addressed to Mr Pelser, Director : Liquor Affairs of
the Respondent. The said Mr Pelser
is the deponent to the
Respondent’s answering affidavit in the present case. On 29
July 2020, one Mr Shitlhangu of the Respondent,
who was also copied
in Annexure “D” forwarded the email to other staff
members of the Respondent requesting them to
ascertain the
whereabouts of the application.
[11] No
further feedback was received from the Respondent and on 14 September
2020 and 29 October 2020 the attorneys
for the Applicant followed up
with the Respondent again but did not receive any reply.
[12] On
3 November 2020 the attorneys for the Applicant telephoned the
Offices of the Magistrate of the district
where the application was
lodged and was told that the application was indeed lodged on 4
October 2019 and that the magistrate
is still awaiting the report of
the DPO.
Further
follow ups were made to the Magistrate and the South African Police
Service but no reply was received from any of these
addressees.
[13] It
is on record that the Applicant’s attorney followed up the lack
of response from the Respondent since
July 2020 to November 2020 with
no reply coming from the Respondent. The Respondent admits to the
correspondence of July 2020 but
failed to properly address the
situation. Only upon service of the present court application did the
Respondent start taking any
actions and a liquor inspector was
assigned who was joined by a designated police officer (DPO).
Grounds
for Opposition
[14]
In the answering affidavit the Respondent stated that
“
15.
I admit that an application which meets all the requirements cannot
take longer than six months before the Respondent to finalise
if
indeed such an application is before the Respondent”.
There
is no denial of the fact that the application was properly lodged as
far back as October 2019. As a ground for the opposition
of the
present application the Respondent states the following in its
answering affidavit:
“
4.
The review application is opposed by the respondent on, inter alia,
the basis that the application for liquor license which is
the
subject of the review application herein, has not reached the
Respondent and consequently the Respondent has no obligation
to
consider or decide an application which is not before it”.
[15] I
agree with the submission made by Mr Welgemoed, Counsel for the
Applicant that the Respondent’s ground
for the opposition is
bizarre in the light of the admission under oath that certain steps
were taken in respect of the application.
The ground of opposition is
contrary to the admissions contained in the answering affidavit and
more particularly in the fact that:
15.1.
the application was assigned to a liquor inspector, namely Mr Matome
Talakgale.
It
goes without saying that if an application was not received an
inspector could not be appointed.
15.2.
a designated police officer were to join the inspector to locate the
premises – see paragraph 5.16 of the answering
affidavit. Again
no designated police officer could be appointed if there is no
application.
[16] In
my view the Respondent was duly made aware of the liquor license
application of the Applicant and was indeed
aware of the application
resulting from the enquiries of the attorneys of the Applicant. The
Respondent was obliged to make a follow
up with the Magistrate and
the DPO to ensure that the application is laid before the Respondent
for its consideration.
The
definition of “
competent
authority
”
in the Liquor Act includes the Magistrate and the Respondent. It is
further the duty of the Respondent to obtain the necessary
report
from the DPO.
[1]
[17] When
launching the present proceedings the Applicant attached a complete
copy of its application for the liquor
license as lodged with the
Magistrate on 4 October 2019. The Respondent acknowledges in the
answering affidavit that on perusal
of the review application it came
to the Respondent’s attention that the Applicant’s
application for a liquor license
related to premises previously
licensed and that the previous license lapsed due to Applicant’s
failure to renew. The Respondent
correctly states further that in the
absence of any extraordinary circumstances, these types of
applications are normally granted
without delay and with no
difficulties.
[18]
In the light of the concessions made by the Respondent in
paragraph [17] above, I am of the view that the delay
in considering
the Applicant’s liquor license lodged on 4 October 2019 is
inordinate, unnecessarily delayed and amounts to
a dereliction of
duty on the part of the officials or public servants of the
Respondent.
Procedure
in liquor license application
[19] It
is appropriate to set out the prescribed procedure to be followed
when applying for a liquor license. This is
so because the
Respondent’s main basis of opposition, as I understand it, is
that it did not receive the liquor license application
of the
Applicant as lodged on 4 October 2019 in accordance with the Liquor
Act 27 of 1989 and Regulations thereto.
[20] In
terms of the Regulations to the Liquor Act, an application for a
liquor license is lodged with the relevant
Magistrate on the first
Friday of a given month, or if such a day is a public holiday or
closed day, on the first Friday which
is not such a day.
The
Magistrate then has to forward a copy thereof to the designated
police officer (DPO) for his report in terms of Section 140
(a) of
the Liquor Act.
[21] The
designated police officer, no later than 35 (thirty five) days after
lodgment of the application with
the Magistrate, has to lodge a
written report in terms of Section 140 (a) of the Liquor Act.
Thereafter, no later than 42 (forty
two) days after all the relevant
time period for objections and replies to objections have lapsed in
terms of the Regulations,
the Magistrate shall forward to the
Secretary of the Respondent the original and copy of the application.
The
Respondent then has to consider the application and either grant or
refuse the application.
[22] It
is clear from the Liquor Act and Regulations that it is the
responsibility of the Magistrate to forward
a copy of the application
to the Respondent, and accordingly not the responsibility of the
Applicant.
I
am therefore of the view that in the present case the Applicant is
not responsible for the fact that the application was allegedly
never
received by the Secretary of the Respondent. Furthermore, it is not
the responsibility of the Applicant to ensure that the
Magistrate
forwards the original application to the Respondent for consideration
once it has been properly lodged with the Magistrate,
as was the case
with the application of the Applicant.
[23] In
any event the Respondent became aware that the liquor license
application had been lodged with the Magistrate
when the Applicant’s
attorneys made an enquiry during July 2020. When the present court
application was served on the Respondent
a complete application was
attached thereto. Nothing stopped the Respondent from taking further
steps to consider the liquor license
application of the Applicant to
date hereof.
[24] Not
only was the liquor license application attached to the Founding
Affidavit, but the court application,
inclusive of the liquor license
application, was also forwarded to the Inspector of the Respondent on
30 March 2021;
[2]
and
thereafter the Inspector and the DPO conducted their inspection of
the proposed premises. The matter thus simply needs
to be decided by
the Respondent.
If
an application was properly lodged in terms of the Liquor Act and the
Regulations, the Respondent cannot simply discard its duty
to process
the application on the basis that it was never received by the
Respondent. Being part of the “competent authority”
the
logical thing the Respondent would have done would have been to check
with the Magistrate, who is also part of the competent
authority as
per the definition in section 2(1)(vi) of the Liquor Act 27 of 1989.
[25] The
Respondent was in any event aware of this application when the court
application was served on it in January
2021, but only caused the DPO
and Inspector to do an inspection more than two months later.
Applicable
law
[26] The
Respondent is a statutory body charged with the responsibility in
terms of the Liquor Act for among others
the consideration of
applications for liquor licenses, decision-making in connection
therewith and matters incidental thereto.
[27] The
Respondent is a public administration body, subject to its own
legislation and constitutional controls.
To this end, the provisions
of section 195 (1)(g) of the Constitution is relevant and deserves
mention:
[3]
“
[195]
(1) – Public administration must be governed by the democratic
values and principles enshrined in the Constitution,
including the
following principles:
(g)
transparency must be fostered by providing the public with timely,
accessible and accurate information.”
In
the matter of
President
of RSA v South African Rugby Football Union
[4]
the
Constitutional Court held:
“
[133]
Public administration, which is part of the executive arm of the
government, is subject to a variety of constitutional controls.
This
Constitution is committed to establishing and maintaining the
efficient, equitable and ethical public administration which
respects
fundamental rights and is accountable to the broader public…”
.
[28] Section
22 of the Liquor Act states that an application for a liquor license
shall be considered by the Board,
and it may –
(a)
refuse the application or
(b)
grant the application.
I
find the conduct of the Respondent unreasonable and I am at a loss to
understand why there is such a delay in finalizing the application
for a liquor license over a period of almost two years. An injustice
has been done to the Applicant. Our Courts have held that
the Courts
enjoy a general power or inherent jurisdiction to grant
pendent
lite
relief
to avoid injustice and hardship.
[5]
[29] In
a similar application in the Gauteng Division of the High Court Adams
AJ (as he then was) held:
[6]
“
[19]
By then, the matter had become urgent in the sense that the
restaurant business of the applicant ought to have been up and
running and would have been fully operational but for the fact that
the liquor license had not been issued. This in turn resulted
in
irreparable damage to the applicant in that it is suffering great
financial loss due to the severe damage to the reputation
of the
restaurant. This in my view had resulted from the tardy conduct on
the part of the second respondent”.
[30]
In
casu
it is stated in paragraph 5.5 of the Founding Affidavit
and supported by Annexure “D” the existence of this
liquor
license application as well as the fact that it was previously
lodged at the Magistrate Modimolle (Nylstroom) on 4 October 2019
and
was communicated to the Head of the Secretariat of the Respondent who
is also the deponent to the answering affidavit, by way
of an
electronic mail dated 29 July 2020.
Therefore
the liquor license application was brought to the attention of the
Respondent and the Respondent has failed to discharge
its
administrative duty of considering the application.
Mandamus
Application
[31] This
Court has the common law jurisdiction as well as jurisdiction in
terms of section 6 (2)(e) of PAJA, to
issue an order against an
administrative organ, directing it to take a decision in a matter
which is unnecessarily delayed or where
there is a refusal on the
part of the administrative organ to take a decision.
In
casu,
the
Respondent is unnecessarily delaying the taking of a decision in
respect of the Applicant’s application for a liquor license,
alternatively, refusing to take such a decision. In the light of
that, this Court can assist with a
mandamus
order
in terms of the common law and section 6 (2)(g) and section 8 (1)(e)
of PAJA. The latter section provides for the granting
of a temporary
relief.
[32]
More than a reasonable time has lapsed since the liquor license
application of the Applicant was submitted.
It is not denied that the
application was properly submitted or that there is any outstanding
documents still to be submitted by
the Applicant. The application
ought to have been considered by the Respondent within a reasonable
time.
[33] The
failure by the Respondent to consider the application cannot be
simply condoned. The law places a duty
on the Respondent to consider
the application within a reasonable time. This failure is causing an
invasion to the Applicant’s
rights and the people it employs.
The Applicant has a constitutional right to administrative action
that is lawful, reasonable
and procedurally fair (section 33 (1) of
the Constitution). The Respondent, as the administration, does not
have a free hand to
behave as it wishes.
[7]
See
also
Vumazonke
v MEC for Social Development Eastern Cape and Three Similar
Cases
[8]
where
it was stated that the administration has to establish and maintain
an efficient, equitable and ethical public administration.
Interim
Relief
[34] I
have already stated hereinabove that an injustice has been done and
the Applicant is prejudiced by the unreasonable
delay in finalizing
its application for liquor license. Section 8 (1)(e) of PAJA
specifically caters for interim relief to stop
the prejudice suffered
by the Applicant on the basis of such relief being just and equitable
in the circumstances.
Our
Courts have held that the Courts enjoy a general power or inherent
jurisdiction to grant
pendente
lite
relief
to avoid injustice and hardship.
[9]
[35] It
has been stated in similar liquor matters that:
[10]
“
45.
The interim interdict sought by the applicant in the notice of motion
is of the kind that has been granted for time immemorial
by higher
courts as well as courts in this division. Various cases were
referred to in support of such relief. The applicant has
made out a
prima facie case that the second respondent has wrongfully failed to
take a decision, which has caused loss and hardship
to the applicant.
The applicant has accordingly established the ground for review
envisaged by section 6 (2)(g) of PAJA, namely,
a failure to take a
decision, and is accordingly entitled to appropriate relief. In my
view, this is an appropriate case for the
grant of interim relief”.
[36] In
my view the Applicant in the present case has satisfied all the
requirements for the granting of interim
relief. In
Bharshila
Investments CC
[11]
Tuchten
J granted leave to the applicant to trade pending the review of the
Liquor Board’s decision.
The
applicant for the interim relief must have a
prima
facie
clear right to the relief sought.
In casu
,
the Applicant applied for a license and has a right to have his
application decided. The Applicant is suffering prejudice. Until
such
time that a license is granted, the Applicant will not be able to run
a proper business of a game lodge as it is difficult
to imagine
enthusiastic patrons looking to stay at a lodge if there is not
liquor available to consume with meals, on game drives
or at the bar.
[37] There
is no alternative remedy available to the Applicant to offset such
prejudice. The only way for the Applicant
to go is to have a liquor
license issued to it.
The
balance of convenience favours the Applicant. The Respondent must
simply do its work as it is tasked to do in terms of the empowering
legislation. This Court is not deciding the issue of the license on
behalf of the Respondent as the interim relief is just an interim
order and the Respondent will ultimately have to decide the
application and grant and issue the liquor license.
[38] This
is an exceptional case where interim relief should be granted and for
the following reasons:
(a) The
premises were previously licensed for the operation of a special
license (on-consumption) (accommodation);
(b) The
Applicant applies for exactly the same type of license which
previously operated in respect of the premises, because
the former
special license has lapsed due to non-renewal;
(c) There
is no evidence that there were any complaints that the trading of
liquor from this premises was not in the
public interest or had
negative impact on the area or the public;
(d) Because
of the previous licensing of the premises it is unlikely that the
Applicant’s current application will fail.
Conclusion
[39] The
Applicant has made out a proper case for an order in terms of Section
6 (2)(g) as well as an interim relief
in terms of section 8 (1)(e) of
PAJA.
[40] At
the hearing of this matter on 21 September 2021 the Applicant
expressed its willingness to assist the Respondent
in complying with
the order herein by furnishing the Respondent with further copies of
the liquor license application if so requested.
I need not make an
order in this regard but leave all in the hands of the parties to
co-operate with each other.
[41] It
is for all the above reasons that I granted the appropriate order on
21 September 2021.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
21
September 2021
Order
granted on
21
September 2021
Judgment
delivered on
29
September 2021
For
the Applicant
Adv.
C J Welgemoed
Instructed
by
Marius
Blom Incorporated
c/o
Kirk Twine Attorneys
For
the Respondent
Adv.
M P Raphahlelo
Instructed
by
State
Attorney Polokwane
[1]
See
Section 2(1)(vi) of the Liquor Act 27 of 1989.
[2]
Copy
attached as Annexure “R1”.
[3]
See
South
African Restructuring and Insolvency Practitioners Association NPC v
CEO Government Gauteng Division Pretoria
,
Case NO 27628/2021 (1 July 2021).
[4]
2000
(1) SA (CC) at para 133.
[5]
Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban and
Others
1986
(2) SA 663 (A).
[6]
Pizza
Vino Lynridge (Pty) Ltd t/a Piza E Vino v The Chairperson of Gauteng
Provincial Liquor Board
(2016/70433)
[2016] ZAGPPHC 864 (15 September 2016).
[7]
Targazest
(Pty) Ltd v Vrystaat Dobbel en Drankowerheid en
Ander
(5034/2011)
[2011]
ZAFSHC 200
(8
December 2011).
[8]
2005
(6) SA 229
(EC)
at para [11].
[9]
Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban and
Others
,
supra.
[10]
Boneltha
(Pty) Ltd t/a Casa Bella Loftus v Pandelani NO &
Another
(33277/2018)
[2018] ZAGPPHC 520 (13 June 2018).
[11]
Bharshila
Investments CC v The Gauteng Provincial Liquor Board
(North
Gauteng Case NO 32820/2011 of 11 June 2011. See also
Pizza
Vino
,
supra at para [19].