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[2016] ZAGPPHC 995
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Snowman Restaurant CC v Gauteng Provincial Liquor Board (91046/2015) [2016] ZAGPPHC 995 (3 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
3/11/16
CASE
NO: 91046/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
SNOWMAN
RESTAURANT
CC
APPLICANT
AND
THE
GAUTENG PROVINCIAL LIQUOR
BOARD
DEFENDANT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
This matter came before me as a review in terms of section 6 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The
applicant is a close corporation duly registered, trading as TY's at
the Menlyn Piazza in Pretoria.
[2]
The respondent, the Gauteng Liquor Board, is constituted as a legal
persona by the provisions of the Gauteng Provincial Liquor
Act 2 of
2003 ("The
Liquor Act"
;), in particular
section 2
thereof.
[3]
According to the notice of motion, the applicant seeks the following
relief;
3.1.
That the decision of the respondent in terms of section 143 of the
Gauteng
Liquor Act, 2 of 2003
, to convert the special on
consumption liquor license in respect of the premises known as Shop
No 2, Menlyn Piazza, situated
on the corner of Louis and Glen Manor
Roads, Menlyn, Pretoria, to a tavern liquor license, be reviewed and
set aside;
3.2.
That the honourable court refer the matter back to the
respondent
and order the respondent to issue to the applicant a
section 28(1
)(c) on-consumption liquor license clearly stipulating the
trading hours as from 10 o'clock in the morning till 4 o'clock
of the
next morning, and in respect of said address, namely Shop No 2,
Menlyn Piazza;
3.3.
An order directing the respondent to pay the costs of this
application.
[4]
The application is opposed by the respondent.
Background
[5]
The applicant purchased a business known as Boston Tea
Party from its owner at the time, a Mr Van Schalkwyk. It
is not clear
when the business was bought however at the time it was bought it may
or may not have had a special on-consumption
liquor license. In the
papers Burenice Goodman, the deponent to the founding affidavit,
states that she was assured by the previous
owner that the business
had a license which permitted it to trade between 1Oam and 4am. Other
than what appears on the papers,
which is what the applicant submits,
nothing suggests that it is so. What is apparent from the papers
though, is that the license
for the year 2012/2013 was in the name of
Mr Van Schalkwyk. Nothing appears in the papers about what obtained
in the 2013/2014
year. However in 2015/2016 the business license was
now in the name of the applicant.
[6]
During October 2015, according to the applicant, their
business premises were visited by the police
who informed them
that their trading hours were, in terms of the then operational
license, between 1Oam and 2am, and that they
were in violation of the
law. Surprised at this, applicant took legal advise and was informed
that their licensing conditions were
as advised by the police.
[7]
The initial license that permitted the applicant to sell liquor was
issued in terms of the Liquor Act 27 of 1989. The license
awarded was
a "Special License (On Consumption)" license,
with trading hours listed as 1Oam and
4am of the next
morning. The Gauteng
Liquor Act 2 of 2003
came into operation on 1
November 2004. All licenses that existed prior the new Gauteng
Liquor
Act had
to be converted so as to be in line with the new Act. The
license that forms the subject of this dispute also had to be
converted.
The conversion would have taken place soon after the
Gauteng
Liquor Act was
promulgated. In terms of the conversion
provisions of the new Act, the conditions of licensing would have
remained the same. Section
143 (3) thereof provides as follows;
143
Conversion of existing licenses
(1)
Subject
to subsections
(2),
(3)
and
(5), any
authorization, permit
or licence
issued
in
terms
of
the
Liquor Act, 1989
(Act
no 27 of 1989) to engage in the retail sale, micro manufacture
or wholesale of liquor or methylated spirits which was
valid
immediately before the date of commencement of this Act, shall remain
valid.
(2)
The holder
of
an
authorization,
permit
or licence
contemplated
in
subsection
(1),
shall
within
the period
determined
by
the
Member
of
the
Executive
Council
by notice
in
the
Provincial
Gazette,
submit
such
authorization, permit
or licence
to
the
Board
for
conversion
into
an authorization,
permit
or licence
under
this Act.
(3)
A
conversion
contemplated
in
subsection
(2) shall
be
made
on
the same
terms
and
conditions
and
for
the remaining
duration
of
the original
authorization,
permit
or licence.
(4)
A
converted
authorization,
permit
or licence
is
deemed
to have
been
issued
in
terms
of this Act.
(5)
If a licensee
fails
to submit
his
or her licence
as
contemplated
in subsection (2), the licence shall lapse.
(6)
The Member
of
the
Executive
Council
may
prescribe fees
for
a
conversion."
[8]
Upon becoming aware that the trading hours were reduced by some two
hours, the applicant launched current proceedings, initially
on an
urgent basis. This matter proceeds in the normal course, after
urgency was found wanting.
Issues
[9]
The issue for determination is whether the applicant has made out a
case for the review and setting aside of a decision by the
respondent. This decision which the applicant contends is an error in
law, is about the trading hours of the applicant's business.
[10]
Counsel
for
the
applicant
argues
that
the
applicant
was
assured
by the
previous
owner that the license he
possessed,
at
the
time when
the business
was
purchased,
was
a
special
on-consumption
liquor
license
with
trading
hours
listed
as
between
10 am
and
4
am
the
next
morning.
The
applicant
further
attaches
a
license
issued
on
26
July
2002,
to
the
founding
papers,
in support
of
the
contention
that
the
license,
all
along, had
the
above
trading
hours.
The
previous
owner
has
not
deposed
to an
affidavit
confirming
that
he
did
in
fact
confirm,
to
the
applicant,
that the
license,
at
the
time
when the
business
was sold,
had
the
trading
hours
of
10
am
to
4
am.
According
to
the
chairperson
of
the
Gauteng
Liquor
Board,
the
applicant's
license
was
converted
in
2004
[1]
.
What is
clear
from
the
papers
[2]
, is
that
the
date
of
first issue
of
the
license
is
stated
as
1 April
2011.
What
is
further
evident
is that
as
at
26
January
2012 the license
was in
the name
of
the
previous owner, Mr.
J
Van
Schalkwyk
and that
it
was
a tavern
liquor
license.
In
the
heads of
argument
[3]
, counsel
for
the
applicant
submits
that
the
previous
owner
converted
the
license
on
3
February
2012.
I can
only
surmise,
that
the date
of
conversion,
as
per the
applicant,
is
inferred
from
the
FNB stamp
at
the
bottom
of
the
annual
license
renewal
advice.
On
the
other
hand
attorney Marius
Blom,
Applicant's
attorney, deposed
to
an
affidavit
on behalf
of
the
applicant
and
stated
therein
that
conversions
only
became
relevant
during
2010
[4]
. The
date
of
conversion
is
very
significant.
For
a
start
it will
enlighten
the
court
about the
degree
of delay
in
launching the review application so
as
to
assess
whether condonation ought to be granted and whether the application
has
been
brought within a reasonable
time.
The
applicant
must
also
articulate
the
reasons
for
the delay.
The
reason
advanced
by the
applicant
is simply
that
having
been
assured
by
the
previous
owner
of
the
trading
hours
he did
not
consider
the
matter
any further
until the
police
arrived
at
the
business
premises.
[11]
The applicant further, chose not to deal with the portion in the
affidavit by the Gauteng Liquor Board chairperson that deals
with the
fact that the conversion took place in 2004. On a reading of the
papers there are four possible dates on which the conversion
took
place, namely;
11.1.
2004 according to the affidavit of the Gauteng Liquor Board
chairperson;
11.2.
2010 according to the affidavit of Marius Blom;
11.3.
3 February 2012 according to the affidavit of the Burenice Goodman;
11.4.
1 April 2011 according to pages 19 and 20, of the application
bundle, being the advice
of annual renewal fees payable.
What
this means therefore is that the period of delay, to the day of the
launching of the urgent proceedings, would be the
following
respectively, 11 years, 5 years, 3 years and 2 years. The lapse of
time on all permutations can not be said to
be reasonable. The
critical question that begs an answer therefore is from when should
the time period be computed. Is it from
the date on which the
decision was made, if indeed a decision was made, or is computation
to be from the date on which the applicant
became aware that a
decision, which he is aggrieved at, had been made.
[12]
It is common cause that the "special on-consumption
license" no longer exists in terms of the new Act. Therefore
when the new Act became applicable, the applicant's license would
have had transitional measures applied to it and also would have
been subjected to conversion provisions of the Act. In terms of
section 143(3) of the new Act, a conversion shall be made on the
same
terms and conditions and for the remaining duration of the original
license. The respondent opposes the application on the
basis that
after the Gauteng Act became operational, the conversion took place
and retained the position as it was at the time
of the conversion.
Further that when the previous license lapsed, the license that was
awarded thereafter provided for trading
hours that were in line with
the new Act. From the response by the respondent it is not clear
whether an administrative decision
was taken.
Legal
Framework
[13]
Section 33 of the
Constitution
of
the
Republic of
South
Africa
Act, 108 of
1996
("the
Constitution") deals with "just administrative action".
It reads as follows:
"33.
Just
administrative
action.
-
(1)
Everyone
has
the
right
to
administrative action
that
is lawful,
reasonable
and
procedurally fair.
(2)
Everyone whose
rights
have
been
adversely affected by
administrative
action
has
the right
to
be given written
reasons.
(3)
National
legislation must
be
enacted
to
give
effect
to these rights,
and
must-
(a)
provide
for
the
review
of
administrative
action
by
a court
or,
where appropriate,
an
independent and
impartial
tribunal;
(b)
impose
a
duty
on
the
state
to
give
effect
to
the rights
in
subsections
(1) and
(2); and
(c)
promote
an
efficient
administration."
[14]
In terms of section 1 of PAJA "administrative action" is
defined as follows:
"'administrative
action'
means
any
decision
taken,
or any
failure
to
take
a
decision,
by-
(a)
an
organ
of state,
when-
(i)
exercising a
power in terms
of
the Constitution of
a
provincial
constitution;
or
(ii)
exercising
a
public
power
or
performing a
public
function
in
terms
of any
legislation;
or
(b)
a natural
or
juristic
person,
other
than an organ
of state,
when
exercising
a
public
power
or performing a public
function
in
terms
of
an
empowering
provision,
which
adversely affects the rights of any person and which has a direct,
external legal effect, but does not include-"
(then
a whole lot of exclusions are listed.)
[15]
"Decision" in turn is defined as follows in section 1 of
PAJA:
"'decision'
means
any
decision
of
an
administrative nature
made,
proposed
to be
made,
or
required
to be made,
as
the case
may be,
under
an
empowering
provision, including
a
decision
relating to-
(a)
making,
suspending, revoking
or
refusing
to
make
an
order,
award
or determination;
(b)
giving,
suspending,
revoking
or refusing
to give
a certificate,
direction,
approval,
consent
or permission;
(c)
issuing,
suspending,
revoking
or refusing
to issue
a licence,
authority
or other instrument;
(d)
imposing
a
condition
or
restriction;
(e)
making
a declaration,
demand
or requirement;
(f)
retaining,
or
refusing
to
deliver
up, an
article;
or
(g)
doing
or refusing
to do any
other
act
or thing
of
an administrative nature, and
a
reference to
a
failure
to take a
decision
must
be
construed
accordingly;"
[16]
It is clear from the above that the information placed before this
court is inadequate for purposes of the court fulfilling
its review
duties. In paragraph 6.5 of the founding affidavit the
applicant states the following;
"I
am further advised by Mr Blom that it is not possible to try to
arrange a settlement between the Respondent and the Applicant
as the
Respondent is functus officio and that this application must be
brought, though it can be settled by the parties by agreement
asking
the Honourable Court to make such an agreement an order of court. I
trust this will be possible."
It
would have been of great assistance to the court if proper facts were
placed before it and not the opinions of an attorney, however
experienced in this area of the law he might be. To be called upon to
make a determination on the basis of conjecture and speculation
has
potential hazards which the court is not willing to invite. The
avenue to unlock the cryptic nature of the information placed
before
this court in an attempt to resolve the dispute lies in section
section 5 of the of PAJA. The section
provides as
follows;
"5
Reasons
for administrative action
(1)
Any person whose rights have been materially and adversely
affected by administrative
action and who has not
been
given reasons for the action may, within 90 days after the date on
which that person became aware of the action or might reasonably
have
been expected to have become aware of the action, request
that the administrator concerned furnish written reasons
for the
action.
(2)
The administrator
to
whom
the
request
is
made
must,
within
90
days after receiving the request, give that person adequate reasons
in writing for the administrative action.
(3)
If
an
administrator fails
to
furnish
adequate reasons for
an administrative
action
it
must,
subject
to
subsection
(4)
and
in
the
absence of
proof
to the contrary,
be
presumed
in any proceedings for
judicial
review that
the
administrative action was taken
without
good
reason."
[17]
Having set out above the legal framework which is clear and well
established as well as the facts presented, the question is
whether
the court has been furnished with sufficient information to enable it
to make a determination. I am of the view that the
information is not
adequate for the following reasons;
17.1.
It is not clear when the conversion from Special on Consumption
to Tavern Liquor License
took place, based on the numerous
contradictory submissions. On the reading of the papers it
appears when the business was
bought by the applicant, it already had
a Tavern Liquor License. This can be deduced from the "Advise of
Annual Renewal Fees
Payable" on page 19 of the papers.
17.2.
It is not clear how the conversion was made. Did the board sit to
consider all conversions,
including the one in issue, or did all
conversions take place by operation of the law?
17.3.
It is not clear what is the date of first issue of the license.
17.4.
The fact that no reasons were requested or advanced makes it
premature for the court to presume,
in terms of a section 5(3) of
PAJA, that the decision was taken without good reason.
[18]
The reviewing court has various remedies at its
disposal. Those are listed in section 8 of PAJA. The
section
provided as follows;
"(1)
The court or tribunal, in proceedings for judicial review in terms of
section 6 (1), may grant any order that is just
and equitable,
including orders-
(a)
directing
the
administrator-
(i)
to give
reasons;
or
(ii)
to act in
the manner
the court
or tribunal requires;
(b)
prohibiting
the administrator
from
acting in
a particular
manner;
(c)
setting
aside
the administrative
action
and-
(i)
remitting
the matter
for
reconsideration
by
the
administrator,
with or
without
directions;
or
(ii)
in
exceptional
cases-
(aa)
substituting or varying the administrative action or
correcting a defect resulting from the administrative
action;
or
(bb)
directing the administrator or any other party to the proceedings to
pay compensation;
(d)
declaring
the rights
of
the
parties
in
respect
of
any matter
to
which
the
administrative
action
relates;
(e)
granting
a
temporary
interdict
or
other
temporary relief
,
·
or
(f)
as
to costs.
"
[19]
I therefore make the following order;
1.
The respondent is directed to disclose within 30 days hereof whether
a conversion contemplated in section 143 of the Gauteng
Liquor Act No
2 of 2003
took place as well as;
1.1.
the date of the conversion and;
1.2.
the terms and nature of the conversion.
2.
The respondent is directed to give reasons, in the event a conversion
took place, for such conversion;
3.
No order as to costs.
________________________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
[1]
Page 34 para 26(c) of the paginated papers.
[2]
Annexure "B" page 19 and 20.
[3]
Paragraph 6 and 7.
[4]
Page 43 paragraph 16 of the paginated papers.