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[2016] ZAGPPHC 841
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Pick n Pay Retailers (Pty)Ltd v Gauteng Provincial Liquor Board (56038/2015) [2016] ZAGPPHC 841 (16 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO:
56038/2015
DATE
OF HEARING: 4 November 2015
DATE:
16 February 2016
In
the matter between:
PICK
N PAY RETAILERS (PTY)
LTD
…
................
Applicant
and
THE
GAUTENG PROVINCIAL LIQUOR
BOARD
…
.........
Respondent
J
U D G M E N
T
OLIVIER,
AJ
INTRODUCTION
[1]
The applicant in this matter is Pick n Pay Retailers (Pty) Ltd, a
private company operating in the retail sector. The respondent
is the
Gauteng Provincial Liquor Board ('the Board'), a juristic person
established in terms of the Gauteng
Liquor Act 2 of 2003
. Part of the
Board's functions is to receive applications for liquor licences and
after considering an application, refuse or grant
it
(s 3(1)).
[2]
Over the past few years the applicant has expanded its operations to
include the sale of liquor, not only in its supermarkets,
but also in
separate liquor stores in adjacent or close proximity to its main
supermarkets in shopping centres. The supermarket
sells wine, while
the liquor store sells other kinds of liquor as well. This requires
two licences - a grocers' wine licence for
the former, and a liquor
store licence for the latter.
[3]
According to the applicant, it endeavours to apply well in advance to
enable it to trade
in
liquor from the opening day
of
a
new
shopping centre.
This
happens
in
about 95% plus of cases, according the founding affidavit of Winny
Smit, a divisional director
of
the
property
development
section
of
the applicant.
[1]
But what
is
problematic,
according
to
Smit,
is that
the
"issuing
of
the
licences
by
the
Respondent, and
accordingly
the right
to
trade
thereunder,
usually
is
delayed
unnecessarily due to
conditions imposed by the respondent as a prerequisite for the
issuing of the licence
...".
[2]
This
she describes as a "general phenomenon".
[3]
[4]
Two common conditions set by the Board are certificates from the
local authority's emergency management services department
and
environmental health department respectively. This means that the
applicant must produce these certificates before the licences
will be
issued. The applicant objects to the setting of these conditions.
[5]
The practical effect is explained in the founding affidavit:
This
simply means that until those conditions have been complied with, the
documentation will
not
go
back·to
the
Respondent
from
its
administrative
division, who must
prepare the prescribed licence form, to the Respondent or the
Chairperson
of
the
respondent
to
sign
the
licence
document
so
that
it
can
be
issued."
[4]
[6]
The applicant now challenges the setting of these conditions by the
respondent in respect of a number of liquor licence applications
made
by it. All of the licence applications under consideration in this
case have been granted, but not issued. The challenge is
brought
under the Promotion of Administrative Justice Act 3 of 2000 (the
PAJA).
[7]
The legal issue is crisp: can the Board set certain conditions at the
time of the granting of a licence, and require that they
be complied
with prior to the issuing of the licence? The essential question is
therefore whether a licence can be
granted
subject to
conditions.
[8] 'Issue'
is defined in s 1 of the Gauteng
Liquor Act as
"the delivery or
dispatch of the licence to the person to whom it has been granted or
to his or her agent", while 'granted'
means "the approval
of an application by the Board prior to issue of the licence or
permit." The granting of a licence
therefore precedes its issue.
[8]
The matter was first heard on an urgent basis on 28 July 2015 by J W
Louw J, who granted an interim order allowing
the applicant's Blue
Hills Supermarket and Blue Hills Liquor Store to trade in liquor
pending the finalization of the review, which
now serves before me.
[9]
The original application which served
before
the urgent court
had
asked for orders in
respect
of various premises. All of these licences have
since
been issued,
[5]
except for the
following: the Maunde Supermarket, Atteridgeville Liquor Store, and
Jean
Avenue
Supermarket
and
Liquor
Store.
[10]
It is convenient to set out briefly some of the conditions set by the
Board at the time of the granting of the licences. The
notification
from the Board in the form of letter, after consideration of the Blue
Hills
grocery store
application, reads partly as
follows:
'2.
Your
application
for
a
Groees
Wine
Liquor
License
[6]
ha
been
ganted
ubject
to:
2.1
City Of Johannesburg's Emergency Management Services;
2.2
City of Johannesburg's Environmental Health Department;
2.4
Updated
GTLA Membership;
[7]
and
2.5
12 months inspection.
3.
Please note that this letter does not amount to a license, a license
will only be issued once you have complied with the above
conditions."
In
respect of the
liquor store
in the same shopping centre, only
two requirements were set: a "City of Johannesburg Emergency
Management Services Department
Clearance Certificate" and a
"twelve (12) months final inspection report".
[11]
It should be obvious from the letter which conditions have been set
and how they should be met, but it is not. It is problematic
if the
conditions are not stated with sufficient particularity. What needs
to be obtained from the local authority's emergency
management
services; and, similarly so, from the environmental health
department? To an experienced applicant this might not present
a
problem. But to a first-time applicant unfamiliar with the process
and the terminology, it could be difficult to know what
condition must be met. This is akin to not providing adequate reasons
for an administrative action.
[12]
In both notifications, the reasons for setting the conditions as well
as the empowering provisions in terms of which the conditions
were
set, were not specified. The latter is particularly important,
considering that the Board's power to impose these conditions
is challenged in these proceedings.
[13]
Applicant's attorney says that he had on a number of occasions
approached the courts regarding the local authority condition:
None
of
the
matters
culminated
in
a
decision
as
the
matters
were always
settled by way of
agreement that an interim order would be granted pending the
process
of
issuing
of
the
licence,
which
I
obviously
accepted
as
it
mend
[sic]
that
the interim
order
dispensed
with
the
prejudice
the
relevant
client
was
suffering.
The
only
matter
that
went to
full argument is
the Barnard v The
Respondent matter, referred to in the founding affidavit, and the
judgment of the Court was reserved after full
argument was heard”
[8]
The
Barnard
case is discussed below.
THE
PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000
[14]
The applicant is challenging the decision of the Board to impose
conditions before the issuing of a liquor licence in tenms
of
section
6(2)
of the PAJA. It is necessary first to detenmine that the PAJA
indeed applies. Does the granting of a licence subject to conditions
amount to administrative action? The applicant submitted that the
decision amounted to administrative action, which was not disputed
by
the respondent.
[15]
I do not consider it necessary to engage in an exhaustive inquiry
whether the granting of a liquor licence subject to conditions
is
administrative action in tenms of the PAJA (see
s 1).
In my opinion,
it is a decision by an administrative body exercising a public power
in terms of legislation that adversely affects
the rights of the
applicant and has a direct, legal external effect. And even if it
were not administrative action under the PAJA,
it would still be
reviewable under the principle of legality.
[16]
All the applications under review in this case were brought within
the 180-day period, except for the grocer's wine licence
in respect
of Maunde. The issue of delay was argued in the urgent court. The
court proceeded to hear the merits and an interim
order was made,
although only in respect of the Blue Hills stores.
[17]
Section 7(1)
of the PAJA specifies that review proceedings must be
instituted without undue delay and not later than 180 days after
internal
remedies have been exhausted. In the absence of internal
remedies, the 180-day period begins to run from the time that the
applicant
was informed of the administrative action, became aware of
the administrative action and the reasons for it, or might reasonably
have been expected to become aware of the administrative action and
it reasons. In
casu
we are dealing with an instance where the
applicant was informed of the administrative action. Internal
remedies are not applicable.
[18]The
applicant contended that it had acted reasonably and adopted a
pragmatic approach by attempting to comply with the conditions
so as
not to overburden the court. It claims its actions did not amount to
acceptance of the conditions.
[19]
The applicant submitted further that there would be no prejudice to
the Board or any third party if the matter was heard. The
legal issue
is crisp and considering the merits of the application, "if the
court refuses to grant the condonation it will
not be in the
interests of justice as the Respondent is then allowed to proceed
with its ultra vires/unlawfull [sic) conditions
imposed".
[20]
In my opinion it would be to the advantage of the Board and third
parties - particularly potential applicants - to get clarity
on the
setting of these conditions. This case is not about interim relief,
but about the determination of the legal question. To
the extent that
the delay is still relevant and a point of contention, the Applicanf
s failure to bring the review within the 180-day
period is thus not
fatal.
[21]
The decision is
challenged on
the following grounds:
the Board acted ultra
vires
(s
6(2)(a)(i)).
the
decision was materially influenced by an error of law (s
6(2)(d)).
the
administrative
action
was
taken
for
a
reason
not
authorized by
the
empowering provision (s
6(2)(e)(i)).
irrelevant
considerations (health and safety issues) were taken into account by
the Board (s
6(2)(e)(iii)).
the
granting of the licence subject
to
the conditions
contravenes,
or is not
authorized by, the
provisions of
the
Liquor
Act
(s
6(2)(f)(i)).
the
imposition of the conditions is not rationally connected to the
purpose for
which
it was taken
(s 6(2)(f)(ii)
;
the
imposition of
the conditions
is
so
unreasonable
that no
reasonable
person could have issued
the licences subject to
the conditions (s
6(2)(h)).
that
the Board's
decision
was made
arbitrarily or
capriciously (s
6(2)(e)(vi))
APPLICANT'S
ARGUMENTS
[22]
In court, applicant's counsel focused on the ultra vires ground. The
essence of her argument was that the Board lacked the
necessary
authority to impose the challenged conditions before issuing a
licence.
[23]The
applicant contended that, in requiring the certificates from the
local authority, the Board usurping the exclusive functions
and
powers of the local authority:
Respondent
should
limit
itself
to
the
provisions
of
its
own
Act
and
leave
it
to
the
local
authority
to
enforce
its
own
competencies
and
requirements
in
terms
of
the
empowering
legislation
applying
to
the local
authority.
[9]
[24]
The Board may set certain conditions in terms of the
Liquor Act, but
only
after
the issuing of the licence - not at the time of the
granting of the licence. The Act makes no provision for setting
conditions prior
to the issuing of the licence. Only section 35 is an
exception.
[25]
The applicant contended that it is only in instances where the
premises are incomplete that the Board has the authority to
set a
condition following the granting of an application for a licence, in
terms of s 35. The founding affidavit of the applicant
sets out how
the section 35 process works in practice:
[T]he
condition
based
on
Section
35,
namely
that
the
premises
must
be
completed
before
the
licence
will be
issued, usually
is
met
by
notifying
the
Inspectorate
of
the
Respondent
that
the
premises
are
completed
and
ready
for
inspection,
where
after
an inspector of
the
Respondent must inspect
the
premises and
issue
a
certificate
that he
or
she
is
satisfied
that
the
premises
has
been
duly
completed
in
accordance
with the
application
and
the
approved
plan.
I
am
advised
that
this
usually
happens
once
the
conditions
relating
to
municipal
certificates,
which
I
have
submitted
is
ultra
vires,
have
been
complied
with;
the
end
result,
in
practice,
is
that
of
one
applies
for
a
liquor
licence
for
a
new
liquor
store
or
grocers
wine
section,
and
the
same
is
approved
by
the Respondent, the
licence only gets issued once the health and safety certificates from
the
Municipality
have
been
lodged
with
the
Respondent,
and
once
it
has
been
lodged, the inspection of
the Inspector had
been
done.
[10]
[26]
Once all the requirements stated in s 30(2) are met, the Board must
grant a licence. The applicant argued that all these requirements
were met. Similarly, the statutory requirements which every
application must meet were also complied with - see s 23(1)(a) to
Q).
The applicant said that once an application for a licence is granted,
the licence must be issued. See s 33.
RESPONDENT'S
ARGUMENTS
[27]
The respondent maintains that the Board has the powers to set these
conditions at the time of granting a licence. It contends
that it is
empowered in term& of section 3(2)(b) of the Gauteng
Liquor Act
to
do so:
(2)
The Board may, after the consideration by it of any other matter
contemplated in this Act ... (b) declare the licence concerned
to be
subject to such conditions or further conditions as it may in its
discretion impose.
[28]
The respondent claims that on a proper construction of this section,
the Board has the power to impose conditions
prior
to the
issuing of a licence. In fact, the Board may impose conditions at any
stage as s 3(2) does not impose a timeline.
[29]
As
to
why
the
Board
is
setting the
conditions
to
obtain
certificates
from
the
local
authority,
the
respondent
submitted
that
it
has
a
constitutional
obligation
to ensure that
"all the
premises
in
aspect
[sic]
of which
licences
granted
are
suitable not
only
for
the
purposes
for
which
they
will
be
used,
but
also
for
safe
[sic]
and
emergency
reasons."
[11]
For
example,
"It
is
common
course
[sic] that
some
of
the
beverages
to be sold at these premised [sic] are highly flammable.
The Respondent
must be satisfied that
all relevant procedures and measures are in place."
[12]
[30]
The respondent also relies on section 23(4), which it says means that
an applicant must produce an emergency management plan
and proof of
compliance with environmental laws of the local authority.
I
shall now deal with each of the respondent's arguments in turn.
The
section 3(2)(b) argument
[31]
The respondent submitted that the definition of 'grant' in s 1 read
with s 3(2):
empowers
the
board
to,
after
consideration
of
any
matter
(which
includes
the
consideration
of
the
an
[sic]
application
of
an
[sic]
liquor
licence)
contemplated
in
this
Act, empowers the board to declare a licence subject to such
conditions or further conditions as it may in its discretion
impose”
[13]
From
this, the respondent says, it flows that the Board may impose
conditions at
any
stage
after
consideration
of
any
matter
before
it.
In
the
words of
re51Dondent's counsel,
'there is no timeline
impose
[sic] by section 3(2).
[14]
[32[
The applicant took a different position, namely that the provision
deals with the powers of the Board in respect of
any other matter,
not in respect of consideration of whether or not to grant a licence.
[33]
Section 3 sets out the powers and functions of the Board. Subsections
(1) and (2) are of particular significance:
(1)
The Board shall receive applications referred to in section 21 from
the local committees and after considering such applications,
refuse
or grant the application concerned.
(2)
The Board may, after consideration by it of
any other matter
contemplatec!l in this Act-
a.
suspend for an indefinite time or for such period as it may determine
or withdraw from such date as it may determine, a
licence
which
is the subject of a report, complaint or objection concerned, or any
right or privilege which is attached thereto;
b.
declare the
licence
concerned to be subject to such conditions
or further conditions as it may in its discretion impose;
c.
rescind the suspension of the
licence
concerned or of any
right or privilege which is attached thereto, with immediate effect
or from such date as it may determine, subject
to such conditions as
it may in its discretion impose; or
d.
take any such other steps as it may think fit.
[34]
In respect of the s 3(2) argument, the respondent's reasoning is
flawed. In the first place, the provision's wording is 'any
other
matter', not 'any matter''. Second, it is clear from a
consideration of the rest of the section that the phrase refers to
any matter
other
than the granting or refusal of an
application for a licence. In other words, subsection (2) is not
applicable when a decision
is made whether to grant or to refuse a
licence application. The powers given to the Board by subsection (2)
only applies in respect
of licences, which is defined in section 1_as
'a licence.issues in· -terms of this Act'. Subsection (2)
therefore comes
into play only
after
the issuing of a licence.
[35]
Other provisions in the Gauteng
Liquor Act alsopoint
to !he Board
having the authority to impose conditions only after the
issuing
of a licence. Section 33 (b) of the Gauteng
Liquor Act provides
as
follows:
(b)
The Board or local committee may at any time
after the issue of a
licence
or permit in terms of subsection (1) or
section 37
, by a
notice delivered to the licensee concerned - (a) declare the licence
or permit to be subject to such conditions or further
conditions set
out in the notice it may in its discretion impose; or (b) suspend,
withdraw or amend any condition or declaration
imposed or made in
terms of this Act.
[36]
Section 37(3) provides:
A
licence issued in terms of this Act shall be subject to
such
conditions
set
out in the
licence
as the Board may
in its discretion impose. (My emphasis.)
[37]
Section 33(a) of the Gauteng Liquor Act provides:
(a)
After the Board has granted an application in terms of this Act,
it
shall,
subject to section 35,
issue the licence
through
the local committee to the applicant to sell the kind of liquor
provided for in this Act in respect of the kind of licence
concerned
... ."
[38]
The granting of a licence precedes its issuing. After a licence is
granted, it must be issued. This is clear from the legislation.
The
relevant sections referred to above clearly show that once the Board
had decided to grant a licence, it must issue the licence.
Section 35
is the only exception.
[39]
This is not an instance of multi-staged decision-making. There are
not two questions: first, shall we grant the licence; and
if the
answer is yes, shall we issue the licence? No, only the first
question should be asked. If the first question is answered
in the
affirmative, the licence must be issued as a matter of course.
However, once issued, the Board may set conditions authorised
by the
Act.
Following
the issuing of a licence, the Board may impose conditions to the
extent provided for in the Act.
The
section 23(4) argument
[40]
The requirements and procedures which apply to every liquor licence
application are stated in s 23 of the Gauteng liquor Act:
(1)
Every application for a new licence shall be made to the relevant
local committee of the district or metropolitan area in which
the
licence is sought, in the prescribed form by lodgement with the
secretary of the local committee and shall provide or be accompanied
by-
(a)
a detailed written motivation in support of the licence applied for;
(b)
a detailed sketch plan of the premises showing the rooms, services,
buildings, construction material and other pertinent information;
(c)
a detailed written description of the premises to which the
application relates, together with colour photographs of the external
and internal features of the premises;
(d)
a report of an inspector and reports of any inspection required by
any law or bylaw;
(e)
proof of publication of notices in the newspaper in terms of section
24;
(
f)
a certificate of suitability on the person of the applicant
and the application issued by South African Police Services;
(g)
the full business address and location of the premises to which the
application relates, identity number or registration number
of the
applicant, residential address or address of registered office of the
applicant;
(h)
proof of affiliation to an association referred to in section 38;
(1)
proof of payment of the prescribed fee; and
(J)
clearance certificate by the South African Revenue Services that
the applicant complies with tax laws.
(2)
For purposes of considering a licence under subsection (1), the local
committee may cause an inspection to be made of the premises
to which
the application relates and any other investigation the local
committee thinks necessary.
(3)
Where an application for a licence has been refused by the Board, no
new application may be made in respect of the same premises
within a
period of one (1) year from the date of refusal, except by special
leave granted at the discretion of the Board.
(4)
Applications for tavern, pool club, pub, liquor store and night club
liquor licences shall also be accompanied by unequivocal
approval by
the relevant department of the relevant metropolitan or district
council, in addition to any zoning or planning or
environmental laws
requirements.
It
should be clear that these are prerequisites which must be complied
with before an application for a liquor licence can even
be
considered.
[41]
Regarding section 23(4), the respondent contends that if an
application for a licence does not contain approval by the
municipality,
it is defective. This requirement, says the respondent,
includes that the premises must have the
"relevant
emergency management plan and that it complies with the environmental
loss
[15]
[sic)
of the municipality."
[16]
In other words, there
must be proof of
compliance
with
the local authority's laws in respect of these issues.
[42]
The respondent informed the Court that the Board had thus far been
lenient, saying that before issuing of licence, an applicant
must
comply with the section 23 requirements. Essentially, the Board will
grant a licence, even though the applicant had not complied
with all
the application requirements, provided that compliance with these
requirements is set as a condition for the issuing of
the licence.
[43]
I was referred to
Pick n Pay Retailers
(Ply) Ltd
v
The Gauteng Liquor Board
(Case no 2011147600, unreported)
where Wepener J, without full argument, set aside
the following conditions set
by the Respondent:
1.1
West Rand District Municipality's health Department.
1.2
West Rand District Municipality's Emergency Management Services;
1.3
Submission of a valid NTHA certificate;
1.4
Payment of the prescribed fee, within a period of 30 days from
receipt of this letter.
Two
of the conditions are the same as in the present case. Unfortunately,
there was no written judgment in the matter.
[44]
In
Nkomo
v Gauteng Liquor Board
(case no 19469,
unreported) and
Beilings
&
Others v Gauteng Provincial
Liquor Board
(case no _, unreported) the court found that
conditions requiring certain documents and approvals from the local
authority were
ultra vires the Act and that they could not be imposed
by the Board as a creature of statute. Although both cases were based
on
the predecessor of the current Act (Liquor Act 27 of 1989), they
are still of relevance.
[45]
Two cases decided in the Free State High Court are also relevant.
Nazo
v
Free State Gambling
&
Liquor
Authority and
another; Jacobs v
Free State Gambling
&
Liquor Authority
and another
(case number 2386/2015,
unreported) is somewhat analogous. In a well-reasoned judgment Daffue
J said the following (at par 36):
If
the legislature intended to burden an applicant with the obligation
to obtain the reports from the SAPS and the municipality
it would
have provided so. On no reading of the Act can it ever be suggested
than an applicant has to take any steps against these
two organs of
state to obtain reports from their employees and to submit these
reports before his/her application for a registration
certificate can
be considered by the Authority.
[46]
In
Die
Vennootskap
bestaande
uit
Anton
Steynberg
en
Johanna
Jacoba Steynberg v
Vrystaat Dobbe/
en
Drankowerheid
en
'n
Ander
(case no: 2100/2015,
unreported)
the
Applicant
applied
for
a
liquor
store
registration
certificate.
In a letter, the
Applicant
was advised that the
application
had
been approved, but that
a
permanent certificate would be issued only once the applicant had
submitted proof of right
of
occupation
within
6
months
of
the
issuing
of
the
letter.
This
amounted
to
conditional approval.
The
applicant contended that
it
was
not
a statutory requirement, with which the court agreed, despite the
respondent
countering
that the
certificate
was
relevant
to
the
application
and that
it
was
within
its
power
to
seek
it
prior
to the
issuing
of the licence. Applicant's
counsel
argued that the Authority
must either
register
or
refuse to
register the
applicant
in terms
of
the
relevant
legislation. The
Court
agreed:
"Once the first
respondent
was
satisfied that
the
application
met the
requirements
set
out
in the Act
it
was
obliged
to grant the
same together
with a
certificate
in
the
prescribed
form ..."
[17]
And
in
the
next
paragraph
the
court
concluded
that
the
"Act
does
not
make
provision
for
conditional
approval
or
conditional
authority."
[18]
[47]
Of greatest relevance here is the case of
Barnard
v
Gauteng
P
rovincial
Liquor Board
(case no 29556/2014) which was recently
decided in this division. The matter was heard on 19 Feb 2015;
judgment was handed down
on 21 September 2015. According to the
applicant's attorney this is the first and only case, bar the present
one, that has gone
to full argument on whether the setting of the
local authority condition by the Board was lawful or not. Similar to
the present
case, the licence was granted but not issued. The learned
judge found that the PAJA did not apply, simply on the basis that the
applicant had not utilized its provisions to request reasons for the
decision of the Board not to grant her a liquor licence. The
Court
focused on s 23(4). In par 14 the Court said that
the
Board must, in future, interpret section 23(4) correctly. It must
avoid placing conditions when granting liquor licence applications
by
requiring that all applications for liquor licences must be
accompanied by the unequivocal approvals by the Health and Planning
Development Departments of municipalities, as required by the Gauteng
Act. [43]
[48]
The Board is indeed a creature of statute and can only exercise the
powers conferred on it by its enabling legislation, namely
the
Gauteng
Liquor Act. Section
3 specifically determines the powers and
functions of the Board. Should it exceed these powers, it is acting
ultra vires. The Board
is thus prevented from traversing terrain
outside the limited scope and ambit of the legislation.
[49]
Had the legislature intended for the Board to have the authority to
set these conditions at the time of granting the licence,
it would
have made provision for it.
There
is no indication in the Gauteng
Liquor Act of an
intention to the
contrary.
[50]
If there is non-compliance with the statutorily-prescribed
application requirements, the licence should not be granted. It
should be refused. But having granted a licence, the Board should
issue the licence.
[51]
Does the Act give the Soard the discretion to be 'lenient'? I do not
doubt the Board's bona fides in setting these conditions
at the time
of granting the licence. The fact though is it has no authority to do
so.
[52]
In conclusion, the respondent's argument is without merit and must be
rejected. I find that the Board had acted ultra vires
in setting
conditions for the issuing of the licences. Based on this finding, it
is unnecessary to consider the other grounds of
review.
REMED
Y
[53]
PAJA empowers the court to remedy a breach in a number of ways. The
applicant contends that this case is 'exceptional' within
the context
of s 8(1)(c){ii)(aa) of the PAJA. It seeks an order from the court to
issue the licences without remitting the matter
back to the Board.
[54]
The respondent objects, contending that the court cannot issue a
licence as this would violate the separation of powers, as
the relief
prayed for by the applicant would require the court to assume the
role, functions and powers of the Board. In other
words, it would be
unconstitutional for it to do so.
[55]
I disagree with the respondent. The PAJA specifically gives the court
certain remedial powers, which is within the court's
discretion to
exercise. The exercise of these powers does not violate the
separation of powers.
COSTS
[56]
The papers for the urgent application were drafted by a senior
counsel and a junior counsel, but a different junior counsel
appeared
in court to argue the applicant's case. I'm not convinced that the
matter required the services of senior counsel, especially
considering that some of the issues in the case had already been
traversed by the applicant in earlier cases.
[57]
Louw J found the matter to be sufficiently urgent to justify the
issuing of an interim order. In my opinion, this justifies
an order
awarding costs for the urgent application to the applicant.
[58]
In the majority of the cases discussed in this judgment, the courts
awarded costs against the respondents on the scale between
attorney
and client. A similar costs order seems fair to me under the
circumstances.
[59]
Despite past orders against it in respect of the setting of
conditions, the Respondent persisted in continuing with this
practice.
It could have avoided this litigation had it taken its cue
from the interim orders against it.
ORDER
[60]
I make the following order:
(a)
The respondent is prohibited from imposing conditions, including a
certificate or certificates from the Local Authority in respect
of
health and safety, found to be ultra vires in terms of this judgment
as a prerequisite for the issuing of a licence.
(b)
The respondent is ordered, when issuing a licence, to do so in
accordance with the provisions of the Gauteng
Liquor Act.
(c
)
The decision of the respondent to impose conctitions to the licences
granted to the applicant under reference numbers GLB50000001762
(Pick
n Pay Supermarket Maunde Shopping Centre), GLB50000002408 (Pick n Pay
Liquor Store Atteridgeville) GLB50000001436 (Jean Avenue
Pick n Pay
Supermarket) and GLB50000002411 (Pick n Pay Liquor Store Jean Avenue)
are reviewed and set aside. The applicant is authorised
to trade in
liquor in these businesses as if the grocer's wine liquor licences
and the liquor store licences granted to it under
said reference
numbers have been issued until it is in fact so issued.
(d)
The respondent is directed to issue the aforesaid licences within a
period of 7 (seven) days of this order
(e)
The respondent is ordered to pay the costs of the urgent application
and this application on a scale as between attorney and
client,
including
two
counsel.
__________________
OLIVIER,
AJ
ACTING
JUDGE OF THE HIGH
COURT
Representation
for the Applicant
Counsel:
…..........
Adv L A Pretorius
Instructed
by:
..........
Marius Blom Inc
Representation
for the Respondent:
Counsel:
Adv Mtsweni
Instructed
by:
State Attorney
[1]
1Founding affidavit, Par 5.7.
[2]
Ibid Par 5.7.
[3]
Ibid Par 5.8.
[4]
Ibid Par 6.1.
[5]
The Eastdale, Blue Hills, Dainfern, and Thabong licences have been
issued.
[6]
The correct spelling is 'licence'. See the Gauteng
Liquor Act
2 of 2003
.
[7]
This is the Gauteng Liquor Traders Association.
[8]
Par 5.3.Conflrmatory affidavit of Marius Blom, attorney of record of
the applicant.
[9]
Par 7.4.
[10]
Paras 6.6.3-4.
[11]
Par 67.2 Respondent's answering affidavit by Fhedzisani Ronald
Pandelani.
[12]
bid Par 67.3.
[13]
Par 16.1 of Respondent's written submissions.
[14]
Ibid par 16.4.
[15]
Laws.
[16]
Par 16.5 of the Respondent'swritten submissions.
[17]
Para 18.
[18]
Para 19.