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[2016] ZAGPPHC 28
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Marius Blom Incorporated and Others v South African Revenue Services and Others (57412/14) [2016] ZAGPPHC 28 (25 January 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 57412/14
DATE: 25 JANUARY 2016
In the matter between:
MARIUS BLOM
INCORPORATED
..............................................................................
1ST
Applicant
BOXER
SUPERSTORES
................................................................................................
2ND
Applicant
ROBINSON LIQUORS (PTY)
LTD
...............................................................................
3RD
Applicant
And
THE SOUTH AFRICAN REVENUE
SERVICES
......................................................
1ST
Respondent
THE LIMPOPO PROVINCIAL LIQUOR
BOARD
.................................................
2ND
Respondent
THE LIMPOPO PROVINCIAL DEPARTMENT OF
ECONOMIC
DEVELOPMENT ENVIRONMENT AND
TOURISM
............................................
3RD
Respondent
JUDGMENT
KGANYAGO. AJ
[1] The applicants have originally
brought an application on urgent basis seeking the following orders:
1.1. That non-compliance with the rules
of the Honourable Court in respect of dies and service, be condoned
in terms of Court Rule
6(12) and that this matter be heard as an
urgent application;
1.2. A declaratory order that all
payments to be made to or in favour of the Second Respondent in terms
of the Provisions of Act
27 of 1989, must be made to the first
respondent at any of its offices receiving payments in the Republic
of South Africa.
1.3. An order directing:
1.3.1. The first respondent to pay the
costs of this application, inclusive of costs as between attorney and
client, alternatively
1.3.2. The first, second and third
respondents, jointly and severally and in solidum with each other,
payment by one the other to
absolve, to pay the costs of this
application inclusive of costs as between attorney and client; and
1.4. Further and/or alternative relief.
[2] The application on urgent basis was
struck off the roll for lack of urgency. The application has now been
set down for the remainder
of the relief claimed. The second and
third respondents are opposing the applicants’ application.
[3] According to the applicants, in
terms of Liquor Act 27 of 1989 (“Act 27 of 1989”) the
second respondent is the licencing
and controlling authority for the
sale and supply of liquior in the Province of Limpopo and it falls
under the jurisdiction of
the third respondent. The second respondent
must consider various matters relating to liquor licences and
payments in respect of
such liquor licences, renewals, application
fees, etc, and must be made to the second respondent by paying same
to the first respondent.
[4] According to the applicants, the
respondents mero moto changed this requirement of Act 27 of 1989,
without any supporting amendment
to Act 27 of 1989 or any authority
to do so, and required of the applicants to pay at the third
respondent at its provincial offices
in Polokwane, instead of the
first respondent as is prescribed by Act 27 of 1989. The applicants
have previously approached this
court under case number 53113/2007
wherein the court issued an order that payments should be made to the
first respondent, and
that it must be accepted by the first
respondent on behalf of the second respondent.
[5] According to the applicants, the
respondents complied with the court order for a period of time, but
have now once again reverted
to their own directive and requirements,
wherein the applicants are required to make payments not to the first
respondent, but
to the third respondent on behalf of the second
respondent. The applicants contend that the first respondent is
refusing to accept
payment of monies on behalf of the second
respondent and the third respondent expect payments at its offices in
Polokwane in cash
and not by way of electronic transfer.
[6] According to the first applicant,
it is having its offices in Pretoria, and it practices country wide
in liquor licences application
in terms of the Act and Provincials
Act. It also applies to the Province of Mpumalanga and the first
respondent accepts payments
on behalf of the Mpumalanga Provincial
Liquor Board but it refuses to accept payments on behalf of the
second respondent on the
basis that it has been instructed no longer
to receive any such payments.
The prescribed application fee which
the first applicant expected to pay by cash at the third respondent’s
offices in Polokwane
amounts to R200-00. It is upon this basis that
the first applicant felt inconvenienced and brought this application.
[7] The applicants argues that the
second respondent derives its authority from legislation, being Act
27 of 1989, and that it cannot
act outside the powers and scope of
Act 27 of 1989. The applicants therefore contend that the demand of
the second respondent is
ultra vires and unlawful.
[8] The respondents in their answering
affidavit have stated that Liquor Act 27 of 1989 operate nationally
and was repealed by
section 46
of the
Liquor Act 59 of 2003
which
came into operation on the 13th August 2004, only in those provinces
that have promulgated their own provincial liquor legislation.
They
further stated that the Act remains in force in respect of provinces
that have not promulgated their own liquor legislation.
However, they
do concede that the Limpopo Provincial Government has not yet
promulgated its own liquor legislation, and that, in
the
circumstances, the Act still applies in Limpopo Province.
[9] The respondents argues that none of
the applicants were parties to the order that was obtained under case
number 53113/2007,
and therefore cannot claim to be entitled to the
benefit of the said order, in particular that the order is limited to
the licences
listed in that order. The parties under case number
53113/2007 was the first applicant, Germishuizen Inc against first
and second
respondents.
[10] The respondents argue that the
first respondent is not part of the government, and therefore, cannot
be used as a collecting
agency for all government departments. The
respondents contend that the collection of liquor licence fees falls
outside the functional
area of the first respondent as an organ of
the state.
[11] At issue in this matter is whether
the second respondent acted ultra vires and unlawful when it decided
that liquor licence
fees, renewals fees application fees, etc should
no longer be paid to the first respondent, but to the third
respondent.
[12] The exercise of all public powers
must comply with the Constitution, which is the supreme law, and the
doctrine of legality,
which is part of that law. (See Pharmaceutical
Manufacturers Association of SA and Another: In Ex Parte President of
the Republic
of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 20).
[13] In Minister of Correctional
Services v Kwakwa and Another
2002 (4) SA 455
(SCA) at 472 D-G the
court stated:- “ In the Fedsure case supra the Constitutional
Court held that the doctrine of legality,
an incident of the rule of
law, was an implied provision of the Interim Constitution of the
Republic of South Africa Act 200 of
1993 (para [58] at 400 D- E):
' It seems central to the conception of
our constitutional order that the Legislature and Executive in every
sphere are constrained
by the principle that they may exercise no
power and perform no function beyond that conferred upon them by law:
See also President of the Republic of
South Africa and Others v South Africa Rugby Football Union and
Others 2000(1) SA 1 (CC) at
70 G-4. Like the President of the
country, like members of the Executive and like the Legislature and
other repositories of power,
the appellants, in exercising public
power, must comply with the Constitution and must act within the
parameters of their statutory
powers. ”
[14] The Liquor Act 59 of 2003 (“Act
59 of 2003”) repealed the Liquor Act 27 of
1989. Act 59
of 2003
has repealed Act 27 of 1989 only in those provinces that have
promulgated their own liquor legislation. It is common cause
that
Limpopo Province has not yet promulgated its own liquor legislation.
Therefore in my view, section
46 Act 59
of 2003 is not applicable in
Limpopo Province.
[15] The respondents as I have already
pointed out in paragraph 8 supra, have conceded that they have not
yet promulgated their
own provincial legislation, and are therefore
still bound by Act 27 of 1989. Section 182 of Act 27 of 1989 provides
that the Minister
may make regulations regarding fees payable by the
applicants and others. The Minister has published the said
regulations, and
they came into operation on 08th June 1992. In terms
of the regulations, application fees, licence fees are payable to the
first
respondent.
[16] Act 27 of 1989 has regulations
which regulate how fees must be collected and also where they must be
paid. If the respondents
is still bound by Act 27 of 1989 and does
not have its own Provincial Liquor Act, it follows that the
respondents are also bound
by the regulations promulgated by the
Minister in relation to Act 27 of 1989.
[17] According to the regulations, the
required fees must be paid to the receiver of revenue. The
respondents argue that the first
respondent was only established by
South African Revenue Service Act 34 of 1997 (“Act 34 of 1997”)
which came into
operation on the 01st October 1997. According to the
respondents, in terms of Act 34 of 1997 there is no provision to the
effect
that any reference in any statute to the Receiver of Revenue
shall have reference to the first respondent. I cannot agree with the
respondents’ on this aspect. It is common knowledge that before
the 01st October 1997 the first respondent was known as the
Commissioner of Inland Revenue commonly known as Receiver of Revenue
(First Applicant). From 01st October 2007 the first respondent
is now
known as South African Revenue Services. Therefore in my view, in the
regulations where it refers to Receiver of Revenue,
it refers to the
South African Revenue Services.
[18] At no stage was the Act 27 of 1989
repealed to empower the second and third respondents to collect the
required fees on their
own. The second and third respondents do not
have their own provincial liquor Act, and are therefore still bound
by Act 27 of 1989
and its regulations. Whatever they are doing must
fall within the ambit of Act 27 of 1989 and its regulations.
[19] In terms of the doctrine of
legality, the second and third respondents must comply with the
Constitution and as well act within
the parameters of the powers
conferred upon them by Act 27 of 1989.
[20] It was contended on behalf of the
respondents that the interpretation contended by the applicants is
inconsistent with chapter
13 of the Constitution in that it has got
the effect of undermining the competence of the Provinces to levy and
collect their own
taxes and levies. The question to be asked is
whether Act 27 of 1989 or regulations permits the second and third
respondents to
levy and collect fees on their own, or whether the
Provincial Government has enacted a legislation that empowers them to
do so.
The regulations authorize only the first respondent
to receive fees from the applicants,
and at this stage there nothing that authorize the second and third
respondents to collect
fees directly from the applicants.
[21] Considering Act 27 of 1989 and its
regulations as a whole, and the fact that the respondents does not
have its own liquor Act,
the legislature never intended second and
third respondent to have powers to collect fees directly from the
applicants. The second
respondent has acted outside their powers and
scope of Act 27 of 1989, and their actions are therefore ultra vires
and unlawful.
[22] Perhaps, if the second and third
respondent can be more flexible in accepting other methods payments
in relation to liquor
licence fees, there will be no need for
applicants to pay at the first respondent. It is clear that the
applicants are not refusing
to pay, but is more about convenience.
[23] In the result I make the following
order-
23.1. It is declared that all payments
to be made in favour of the Second Respondent in terms of the
provisions of Act 27 of 1989,
be made to the First Respondent at any
of its offices receiving payments in the Republic of South Africa.
23.2. The second and third respondents
jointly and severally to pay the applicants costs, the one paying the
other to be absolved.
M.F KGANYAGO
ACTING JUDGE OF THE HIGH COURT