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[2017] ZASCA 12
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Panayiotou v Shoprite Checkers (Pty) Ltd and Others (248/2016) [2017] ZASCA 12 (17 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 248/2016
In
the matter between:
ANDREAS
PANAYIOTOU
APPELLANT
and
SHOPRITE
CHECKERS (PTY) LTD
FIRST RESPONDENT
GAUTENG
LIQOUR BOARD
SECOND RESPONDENT
CHAIRPERSON,
GAUTENG
LIQOUR BOARD
THIRD RESPONDENT
Neutral
citation:
Panayiotou
v Shoprite
(248/2016)
[2017] ZASCA 12
(17 March 2017)
Coram:
Ponnan, Shongwe, Petse and Zondi JJA
and Gorven AJA
Heard
:
3 March 2017
Delivered:
17 March 2017
Summary:
Refusal to grant
liquor licence by Liquor Board : decision reviewed, set aside and
licence granted by high court along with order
that Liquor Board must
issue licence after certain requirements met : appeal against review
of refusal : liquor licence subsequently
issued : no challenge to
issue of licence : appeal, if successful, could not set aside the
issue of the licence : section 16(2)(a)
of
Superior Courts Act 10 of
2013
: decision sought would have no practical effect or result :
appeal dismissed.
ORDER
On
appeal from:
Gauteng Local Division of the High Court, Johannesburg (Legodi J
sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Gorven
AJA
(Ponnan,
Shongwe, Petse and Zondi JJA concurring):
[1]
On 7 December 2012, the first respondent (Shoprite) lodged an
application for a liquor store licence. It was lodged with the
Gauteng Liquor Board (the Board) under s 23(1) of the Gauteng Liquor
Act 2 of 2003 (the Act). The proposed liquor store was to
be situated
in the Rivonia Village shopping centre. Shoprite had a supermarket in
that centre which was licensed to sell table
wine. At the time, there
was no other liquor store in that shopping centre. The appellant (Mr
Panayiotou) objected to the issue
of the licence. He operated a
liquor store located approximately 150 metres from the proposed new
liquor store in the Mutual Mews
shopping centre, across a road known
as the Rivonia Boulevard.
[2]
On 14 April 2014, the Board refused the application. In doing so it
referred to the provisions of s 30(2)(
c
)&(
d
)
and s 30(3) of the Act. It concluded that the grant of the licence
would create barriers to entry and substantially lessen competition
at the Rivonia Village shopping centre. It considered that there was
the possibility of a harmful monopolistic condition arising
under
s 30(2)(
d
)
of the Act. It also concluded that the grant of a licence to Shoprite
would have a detrimental effect on the business of Mr Panayiotou.
Accordingly, it was not in the public interest to grant the licence
to Shoprite in terms of s 30(2)(
c
)
of the Act.
[3]
Shoprite approached the Gauteng Local Division of the High Court,
Johannesburg (the high court) to review and set aside the
decision
refusing to grant the licence application and in its stead for an
order directing the Board to grant the licence application,
alternatively for a remittal of the matter to the Board. Legodi J
heard the application. The high court reviewed and set aside
the
decision of the Board, granted a licence and directed the Board to
issue a notice in terms of s 35(1) of the Act and,
on completion
of the premises as contemplated in s 35(4) of the Act, to issue
the licence in accordance with s 37 of
the Act. On 19 August
2015, the high court refused an application for leave to appeal
brought by Mr Panayiotou. Neither of the
other respondents sought
leave to appeal or took any further steps in the matter.
[4]
The Board issued a licence to Shoprite on 28 October 2015. This was
after the expiry of the time period for an application for
leave to
appeal to this Court. Shoprite began trading with the licence in
November 2015. This prompted Mr Panayiotou to approach
the high court
for an interdict. The interdict application was heard on 10 December
2015 and judgment refusing it was handed down
on 17 December 2015.
Shoprite has been trading with that licence since then. There has
been no attempt by Mr Panayiotou to challenge
the issue of that
licence.
[5]
Mr Panayiotou applied to this Court for leave to appeal the judgment
of Legodi J and for condonation for the late filing of
that
application. Both condonation and leave to appeal were granted by
this Court on 29 February 2016. It is this appeal which
is before us.
At the hearing before us, the appeal was dismissed with costs and it
was indicated that reasons would follow in due
course. These are the
reasons.
[6]
At the commencement of argument, the parties were informed that the
judgment refusing the interdict had come to the attention
of this
Court that morning.
[1]
This judgment disclosed that a licence had been issued and that
Shoprite had begun trading. It was confirmed that, after the
interdict
was refused, Shoprite continued trading and was still doing
so. None of this had been mentioned in the heads of argument and this
Court was unaware of these facts. It must be said that Shoprite had
mentioned the issuing of the licence in its answering affidavit
delivered during February 2016 in opposition to the application for
condonation and for leave to appeal to this Court. This application
did not, of course, form part of the appeal record.
[7]
Counsel for Mr Panayiotou was asked whether, in the light of the
subsequent issuing of a licence, the appeal did not fall
to be
dismissed in terms of s 16(2)(
a
) of the
Superior Courts
Act 10 of 2013
. This section provides:
‘
(2)
(
a
)(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or
result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.’
The
licence was issued pursuant to a fresh administrative act after s 35
of the Act had been complied with. This administrative
act has not
been the subject of any challenge to date. Importantly, nothing done
in this appeal can affect the issuing or validity
of that licence. As
this Court has held:
‘
[O]
ur
law has always recognised that even an unlawful administrative act is
capable of producing legally valid consequences for so
long as the
unlawful act is not set aside.’
[2]
It
was candidly and correctly conceded by counsel for Mr Panayiotou that
this Court could not in this appeal in any way deal with
the issuing
of the licence. In the light of this, it was conceded that the
outcome of this appeal could not have any practical
effect or result.
[8]
It has been
repeatedly
stated that this provision in the present section and its predecessor
was enacted to avoid overburdening appeal courts
with matters which
are of no practical moment.
[3]
If it is determined that the appeal will have no practical effect or
result, a court may nevertheless, in the exercise of its discretion,
deal with the appeal.
[4]
An instance of this would be where ‘
a
discrete legal issue of public importance arose that would
affect matters in the future and on which the adjudication of
this
court was required . . .’.
[5]
In the present matter, no discrete legal issue of public importance
was alluded to and no submissions were advanced by counsel
for Mr
Panayiotou in support of the exercise of such a discretion and I can
think of none.
[9]
That being the case, the appeal was dismissed with costs in terms of
s 16(2)(
a
).
The
following order is made:
The
appeal is dismissed with costs.
________________________
T R Gorven
Acting Judge of Appeal
Appearances
For
the Appellant:
L Potter SC (with him S Rose)
Instructed
by: Nicole Ross Attorneys, Sandton
Lovius
Block, Bloemfontein
For
the 1
st
Respondent: AM Breitenbach SC
Instructed by: Werksmans
Attorneys, Tyger Valley
McIntyre
Van Der Post, Bloemfontein
[1]
Panayiotou
v Shoprite Checkers (Pty) Ltd & others
[2015]
ZAGPJHC 292; 2016 (3) SA 110 (GJ).
[2]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA)
at 242B-C.
[3]
Legal
Aid South Africa v Magidiwana & others
[2014] ZASCA 141
;
2015 (2) SA 568
(SCA) paras 2-3;
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 48
;
2001 (2) SA 872
(SCA) paras 7-8.
[4]
Centre
for Child Law v Hoёrskool Fochville & another
[2015] ZASCA 155
;
2016 (2) SA 121
;
[2015] 4 All SA 571
(SCA) para
11.
[5]
Centre
for Child Law
para 11.