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[2016] ZAGPPHC 846
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Piza Vino Lynridge (Pty) Ltd t/a Piza E Vino v Chairperson of Gauteng Provincial Liquor Board and Another (2016/70433) [2016] ZAGPPHC 846 (15 September 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,PRETORIA
CASE NO: 2016/70433
DATE: 15 SEPTEMBER 2016
In the matter between:
PIZA VINO LYNRIDGE (PTY) LTD t/a PIZA E
VINO
.......................................................
Applicant
And
THE CHAIRPERSON OF GAUTENG
PROVINCIAL LIQUOR
BOARD
..............................................................................
First
Respondent
THE GAUTENG PROVINCIAL LIQUOR
BOARD
...........................................
Second
Respondent
JUDGMENT
ADAMS AJ:
[1].
The
applicant launched an urgent application for an order in the
following terms:-
1.1
Pending determination of Part B, the
applicant be permitted and authorised to trade liquor at its business
premises as if a permanent
liquor licence has been issued and
authorising the applicant to trade in liquor as if the restaurant
liquor licence applied for,
for the business known as
Piza
E Vino,
situated at Shop 38, Lynn Ridge
Mall, Lynwood Ridge, Pretoria, Gauteng, was granted, until such time
as the first and second respondents
have considered and decided the
said application.
1.2
That the cost of this application be paid
by the second respondent on an attorney and client scale,
[2].
The urgent
relief prayed for by the applicant is in the form of an interim order
and is incorporated in a Part ‘
A’
of the
Notice of Motion, which is divided into parts ‘
A’
and ‘
B’,
with a
prayer that part ‘
B’
be
postponed
sine die
.
The facts
[3].
On the 6
th
of May 2016 the applicant filed with the respondents an application
for a Liquor Licence as contemplated in terms of the provisions
of
section 23 of the Gauteng
Liquor Act, no 2 of 2003
. It is alleged by
the applicant that it complied with all of the procedural as well as
the substantive requirements as prescribed
by the provisions of the
said section. In particular, the applicant lodged with the
respondents all of the prescribed forms, duly
completed and signed as
required, together with all the necessary supporting documentation.
[4].
All of the
formalities as prescribed by the section were complied with, and
there exist at present no lawful and / or valid reason
for the
respondents not to issue the applicant with the Liquor Licence
applied for.
[5].
Since lodging
the application with the respondents, the applicant has on a regular
basis been communicating with the respondents
with a view to ensuring
that its application is processed timeously and expeditiously. An
electronic communication was addressed
on behalf of the applicant to
the respondents on the 26
th
July 2016, which is some two and a half months after the lodgement of
the application, enquiring about the ‘
status
of the application’.
Up to that point, the silence on the part of the respondents in
response the application for a Liquor Licence was deafening, hence
the enquiry for an update on the progress from the applicant.
[6].
Finally, on
the 18
th
August 2016, some three and a half months after the application had
been delivered to them, the respondents awoke to the fact that,
in
terms of their statutory obligations, they are obliged to deal with
and process the application of the applicant. What respondents
then
did at that late stage was to require additional documents before any
consideration would be given to the applicant’s
application.
[7].
Needless to
say, this came as somewhat of a surprise to the applicant as, in
their view, the request for the additional documentation
was
ultra
vires
, and
the respondents were advised accordingly in writing by the applicant
on the 25
th
August 2016. The respondents were placed on terms to issue the Liquor
Licence, failing which, so they were advised, an application
would be
filed.
APPLICANT’S CAUSE OF ACTION
[8].
The second
respondent, the Gauteng Liquor Board, is constituted as a legal
persona
by the provisions of the Gauteng Provincial Liquor Act 2 of 2000
(‘the
Liquor Act’)
,
in particular section 2 thereof.
[9].
The
applicant’s claim is founded upon and based in terms of the
provisions of the Liquor Act. Section 23 of the Liquor Act
deals with
applications for new liquor licences. It prescribes all the
documentation that must accompany such an application, which
itself
must be submitted on a prescribed form.
[10].
It is
contended by the applicant that the relevant application complied, in
all material respects, with the requirements of the
said s 23.
[11].
The
respondents oppose the application on the basis of a number of legal
points in limine, all of which in my view are without merit,
in
addition to raising a defence on the merits of the application.
LiS pendens
[12].
The
respondents contend that the applicant’s present application
should be stayed because there is another application ‘
pending’
between
the same parties, based on the same cause of action with the same
subject matter. The other application, so it is contended
by the
applicant, is dormant in that after it was removed from the urgent
court roll by another Judge, there has been no further
developments
in that application.
[13].
The court is
vested with a discretion as to whether to stay the proceedings or to
hear the matter despite earlier pending proceedings.
In
Loader
v Dursot Bros (Pty) Ltd,
1948(3)
SA 136 (T), Roper J dealt with the defence of
lis
pendens
as
follows:
‘
It
is clear on the authorities that a plea of
lis
alibi pendens
does
not have the effect of an absolute bar to the proceedings in which
the defence is raised. The Court intervenes to stay one
or other of
the proceedings, because it is
prima
facie
vexatious
to bring two actions in respect of the same subject-matter. The Court
has a discretion which it will exercise in a proper
case, but it is
not bound to exercise it in every case in which a lis alibi pendens
is proved to exist -
Wolff,
N.O v Solomon
(15 S.C. 307)
; Michaelson v. Lowenstein
(1905, T.S.
324)
; Osman v Hector
(1933 CPD 503)
’
.
[14].
In the
exercise of my discretion, and in the circumstances of this matter
and having regard to the balance of convenience, I am
of the view
that it would be just and equitable that I should hear this matter
and not stay proceedings on the basis of the other
pending
application. In that regard, an aspect which weighs fairly heavily on
my mind is the fact that the respondents always have
open to them the
option to force the prior application to finality.
[15].
Accordingly,
the first point
in
limine
of
the respondents stands to be rejected.
Non – compliance with the practice directives &
urgency
[16].
The
respondents also contend that the application should be dismissed due
to non – compliance with practice directives applicable
in this
division. Closely linked to this contention is the respondents’
submission that the application should fail for lack
of urgency.
[17].
As I indicated
above, the applicant lodged the application for a Liquor Licence on
the 8
th
of May 2016 and at the same time paid the ‘
lodgement
fees’
’.
Thereafter, for a period of two and half months the respondents
failed to respond to and / or deal with the application.
I am of the
view that the second respondent failed in its statutory duty to deal
with and process Liquor Licence Applications.
[18].
When the
respondents finally responded on the 18
th
August 2016, they requested additional information and documentation,
which, according to the applicant, the respondents are not
entitled
to ask for.
[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 Licence 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.
[20].
I find this
conduct by the respondents to be unreasonable. I am at a loss to
understand why there is such a delay in finalising
the application
for a Liquor Licence. In their answering affidavit the respondents
make the following statement: ‘
only
a period of four (4) months has elapsed since such liquor licence
application was lodged and no decision has been taken by
the Second
Respondent’
.
What astounds me about this averment is the fact that the
respondents, despite their statutory duty to process applications for
Liquor Licences, consider it acceptable to drag their heels whilst
businesses are being prejudiced. It would have been understandable
if
an explanation was given for the delay in attending to the
application for a Liquor Licence after it was received.
[21].
I find in the
circumstances that the application is urgent. It is quite clear that
should the applicant not be placed in a position
where he can trade
in liquor, his business will be seriously prejudiced and he will
suffer irreparable harm, which will not be
recoverable from anyone.
merits
[22].
The applicant
is of the view that the respondent should take a decision and decide
on its application for a liquor licence without
the need for further
documentation. The respondents insist on this additional
documentation. This is an issue to be dealt with
as part of Part “
B”
of the Notice of Motion.
[23].
The point is
that, but for the undue delay caused by the tardiness of the
respondents in dealing effectively and efficiently with
the
applicant’s application, they would have been far advanced in
processing the application.
Conclusion
[24].
I am therefore
of the view that the applicant is entitled to the interim relief
prayed for in its Notice of Motion.
[25].
In the
premises, the applicant’s application must succeed.
order
In the result, I make the
following order:-
1.
The
application is urgent.
2.
Pending
determination of Part ‘
B’
of the Notice of Motion, the applicant be permitted and authorised to
trade liquor at its business premises as if a permanent liquor
licence has been issued and authorising the applicant to trade in
liquor as if the restaurant liquor licence applied for, for the
business known as
Piza E Vino,
situated
at Shop 38, Lynn Ridge Mall, Lynwood Ridge, Pretoria, Gauteng, was
granted, until such time as the first and second respondents
have
considered and decided the said application.
3.
The
costs of this part of the application shall be in the course of the
main application.
4.
Part
‘
B’
of
the Notice of Motion is postponed sine die.
L ADAMS
Acting Judge of the High Court
Gauteng Division, Pretoria
HEARD ON
13
th
September 2016
JUDGMENT DATE:
FOR THE
APPLICANT:
15
th
September 2016
Adv C J
Marneweck
INSTRUCTED
BY:
Emma Nel
Attorneys
FOR THE
RESPONDENT:
Adv Modisa
INSTRUCTED
BY:
The State
Attorney