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[2015] ZAFSHC 227
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Nazo v Free State Gambling & Liquor Authority and Another; In re: Jacobs v Free State Gambling & Liquor Authority and Another (2386/2015) [2015] ZAFSHC 227 (19 November 2015)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTE
I
N
Case
No: 2386/2015
In the
matter between:-
MAKHALA
ADELINA
NAZO
Applicant
and
FREE
STATE
GAMBLING
&
LIQUOR AUTHOR
I
TY
1
st
Respondent
THE
CHAIRPERSON OF THE FREE STATE GAMBLING
&
LIQUOR
AUTHORITY
2
nd
Respondent
and
Case
No.: 2512/2015
In the
matter between:
CONRAD
JACQUES
TREVOR
JACOBS
Applicant
and
FREE
STATE
GAMBLING
&
LIQUOR
AUTHORITY
1
st
Respondent
THE
CHAIRPERSON OF THE
FREE STATE GAMBLING
&
LIQUOR
AUTHORITY
2
nd
Respondent
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
29 OCTOBER 2015
DELIVERED
ON:
19 NOVEMBER 2015
INTRODUCTION
[1] On 29
October 2015 two similar applications by two
individuals served before me. On 5 December
2014 and thus
more than eleven months ago, both applicants lodged applications for
registration certificates with first respondent
in terms of the Free
State Gambling and Liquor Act, 6 of 2010 (herein later referred to as
"the Act"). The one applicant,
Me Nazo applied for a liquor
store registration certificate in respect of premises situated in
Kagisanong, Bloemfontein, whilst
the other, Mr Jacobs applied for a
tavern registration certificate in respect of premises in Heidedal,
Bloemfontein. Neither application
has thus far been considered
by respondents. The applicants are represented by the same legal
team. In fact, their attorney,
Mr JM Burger of Honey Attorneys has
lodged numerous applications for registration certificates on behalf
of clients over the last
few years and he acted as attorney of record
in many court applications wherein similar relief as
in casu
was
sought. I deal with this issue again
infra.
II
THE PARTIES
[2] The
applicant in application 2386/2015 is Me Makhala Adelina
Nazo, a 63 year old female person residing at [.....],
Phelindaba,
Kagisanong, Bloemfontein. This application applies to Me Nazo's
second application for a liquor store registration
certificate in
respect of the same premises. Her first application for a
registration certificate was lodged
by herself,
but it was dismissed for technical reasons.
[3] The
applicant in application 2512/2015 is Conrad Jacques Trevor Jacobs, a
46 year old businessman residing at [.....], Heidedal,
Bloemfontein.
This court application is in respect of his first application for a
tavern registration certificate.
[4] First
respondent is the Free State Gambling and Liquor Authority, ("the
Authority"), a juristic person duly established
in accordance
with s 4 of the Act. The Authority's powers and functions are duly
set out in s 5 of the Act.
[5]
Second respondent is the chairperson of the Free State Gambling and
Liquor Authority, he being appointed in accordance with
s 6(3) of the
Act.
Ill
THE RELIEF SOUGHT
[6] Me
Nazo seeks an order in terms whereof first and second respondents be
directed to consider her application for a liquor store
registration
certificate within 21 days from the date of the court order,
alternatively such period regarded by the court as fair
and
reasonable, and furthermore that first respondent be ordered to pay
the costs of the application on the scale as between attorney
and
client.
[7] Mr
Jacobs seeks an order in terms whereof first and second respondents
be directed to consider his application for a tavern
registration certification within 21 days of date of the court order,
alternatively within such period as regarded by the court
as
reasonable and fair, and furthermore that first respondent be ordered
to pay the costs of the application on the scale as between
attorney
and client.
[8] Both
applications are opposed by both respondents on similar
grounds, save as mentioned
infra.
[9] Adv L
Le R Pohl SC appeared for applicants whilst Adv L Bomela appeared for
respondents in both applications.
IV
BACKGROUND
[10]
There is no doubt that the Authority does not comply with its
obligation to consider applications lodged in accordance with
the Act
strictly and timeously. I personally have entertained
numerous
similar applications by applicants on an unopposed basis in the
motion court over the last four years. I am also
aware, having
perused the court rolls regularly, that many of my colleagues have
entertained similar applications on an unopposed
basis over the last
few years. I am not aware of one single application that has been
dismissed.
[11] It
has come to my attention recently that respondents have embarked upon
a strategy in terms whereof applications are opposed.
One such
application was adjudicated by my
brother, Lekale,
J
who
delivered judgment in
Reynecke
v
Free
State
Gambling
and
Liquor
Authority
and
Another
on 30 October
2014. The following orders were made:
"[34]
The respondents are directed to determine the applicant's application
for the tavern registration certificate within
one month calculated
from the date hereof and to advise the applicant of the outcome
immediately thereafter.
[35]
The first respondent is directed to pay the applicant's costs in the
main application on a scale as between attorney and client."
I shall
revert to this judgment and the reasons advanced by Lekale J
infra.
[12] The
following judges of this Division adjudicated similar opposed
applications in the recent past, to wit Ebrahim
J,
Van Zyl J and Naidoo J. Ebrahim J granted the application
considered by her and gave reasons at a later stage. However, I have
not
been presented with her reasons. Van Zyl
J
granted two similar applications, but indicated that her
reasons would follow. These are still outstanding. Naidoo
J
reserved judgment in the application heard by her.
[13] I
have ascertained that another opposed application was enrolled for
hearing on 6 November 2015 by Mchale, AJ, the outcome
of which is
unknown to me at this stage.
[14] The
aforesaid background and the facts to be mentioned
infra
are indicative of an arrogant, lackadaisical and
irresponsible attitude by respondents. They are not prepared to
honour a recent
and well-reasoned judgment of this court; instead of
taking Lekale J on appeal to either the full bench of this Division
or the
Supreme Court of Appeal, they carry on with business as usual.
[15] In
defending the stance of respondents Mr Bomela vigorously argued that
constitutional principles have been ignored in all
previous judgments
of this Division on matters of similar nature and I quote the
following from his heads of argument:
"No
Constitutional
interpretation
was
employed
in all the
previous judgments
by this
court on matters of
similar
nature
and
in
fact
it
is the duty
of
this
Court
in this
matter to
correct the
otherwise wrong
decision of
the
Court
in those
matters
as
constitutional
interpretation,
as
I said before is not
static.
It
remains therefore
the
duty of the
Court
to
do
the right thing
in
order
to
further
develop
the jurisprudence in this
area
of the law."
V
THE UNDISPUTED
FACTS
[16] In
casu
both applicants, Me Nazo and Mr Jacobs instructed the same
attorney who filed their applications with first respondent on 5
December
2014. No objections were lodged within the time
frame prescribed in s 33 of the Act, or at all. In the
case of Me Nazo the report of the Mangaung Metropolitan Municipality
("the municipality"), which had to be provided in
accordance with s 31(3)(c), read with s 32(3) of the Act was still
outstanding when litigation was instituted. However it is common
cause that the municipality did not have any objection to the
approval and issuing of a liquor store registration certificate to
Me
Nazo when she lodged her first application in respect of the same
premises. The applicable letter of the municipality dated
27 February
2013 was indeed attached to this applicant' s second application and
forms part of the papers before.
[17] In
any event it is now common cause that a fresh report was issued by
the municipality in accordance with the aforesaid sections
of the Act
a few days after filing of the replying affidavit herein. Mr Pohl
drew my attention to this from the Bar and although
Mr Bomela did not
have and could not obtain instructions from his clients during the
hearing of the application notwithstanding
a request from him, he
conceded that his clients had received such a report and that
applicant's attorney had responded thereto
long before the hearing of
this application.
[18] In
the case of Mr Jacobs' application the report from the designated
police officer ("DPO") in accordance with s
31((3)(b), read
with s 32(2) of the Act, was outstanding when his court application
was issued. However, the required report
was in fact provided
to the Authority within days after filing of applicant's replying
affidavit and also in this case, as informed
from the Bar,
applicant's attorney had responded thereto as well. There
was thus in respect of both matters compliance
with the issues raised
by respondents as along ago as August 2015, but notwithstanding that,
three months down the line both applications
have still not been
considered by the Authority.
[19]
Notwithstanding correspondence between applicants'
attorney and the Authority between 12 January 2015 and
10 April 2015
in respect of both applications, including letters of demand
threatening with legal action, the Authority failed
to ensure
compliance with the Act and/or to set down the matters for
consideration of the applications, bearing in mind the provisions
of
the Act and its powers to which I shall return
infra.
No
proof has been provided by respondents of correspondence between them
and these two organs of state. Not a single letter of demand,
requesting reports, is attached to any of the answering affidavits.
No word has been said about a verbal demand, either by means
of a
telephone call or a personal visit. No explanation has been given for
the alleged failure by these organs of state to comply
with their
duties. For all I know they have not been requested to file reports
prior to the institution of these applications,
but it is not
necessary to regard this as an undisputed fact. Respondents failed
dismally to take the court in their confidence.
VI
CONSIDERATIONS OF A LIQUOR BOARD: A HISTORICAL PERSPECTIVE
[20] I
refer to s 28(4) of the Act
infra.
However it is instructive to obtain a brief historical
perspective of our liquor legislation. Kruger A,
Lansdown's
South African
Liquor
Law,
5th
ed,
p
119 and
further discussed the considerations to be taken into account by
a
liquor board. I am mindful of the fact that the publication
was issued in 1983 and that the author dealt with liquor legislation,
the latest being the Liquor Act, 87 of 1977 including its amendments
until 1983, and that all these acts have long been repealed.
The
three factors to be considered by a liquor board in respect of the
repealed legislation were the following:
1.
The public interest;
2.
The suitability of the building and area;
3.
The applicant.
[21]
Several factors have to be considered by a liquor board in
dealing with public interest. · 1t is unnecessary to refer to
the numerous authorities in this regard. One judgment will suffice.
See
Bulk
Deals
Six
CC v
Chairperson,
Western Cape
Liquor
Board
and
Others
2002
(2) SA 99 (CPD) at
106G
and
further. The reader should bear in mind that the court dealt with s
22 of the now repealed Liquor Act, 27 of 1989, but
in my view
the principle has not changed.
[22] In
order to consider the suitability of the building from which the
applicant intended to do business and the area in which
the building
was situated, it was regarded of great importance to inspect the
premises in order to draw conclusions from such inspections.
It was
an invariable practice of board members to inspect premises, even
when photographs were attached to applications. This is
not necessary
anymore, bearing in mind the obligation of the particular
municipality to file a report.
[23] The
last important factor which the boards had to consider in granting or
refusing an application was the person of the applicant.
Previous
liquor legislation provided for police reports to be submitted as is
the case in terms of the present Provincial Act as
well.
[24]
Dendy M, in Joubert's
The
Law of South Africa,
vol 15, part 2, (2nd ed) at para [95] concisely summarised the
history of our liquor legislation. Under the Liquor Act, 30 of 1928
licences were granted, annually renewed and administered in
each magisterial district by a Liquor Licencing Board consisting
of
the chief magistrate as chairperson and two lay members. Such members
of the board were acquainted with local conditions and
personally
inspected the premises of each and every applicant. In 1957 the
provision was altered when a Liquor Board was constituted
for certain
defined districts or combinations of districts, consisting in each
case of three senior magistrates. In 1963 a National
Liquor Board for
the general administration of the Liquor Act throughout the Republic
of South Africa was created. The powers of
local boards to grant
licences were removed although they could still renew licences. In
1977 local boards ceased to exist
and all functions relating to the
administration of the Liquor Act, 87 of 1977 (with the exception of
the power to grant temporary
licences which vested in the magistrate
of the district) were vested in the national board which then became
known as the Liquor
Board. In 1995 the National Liquor Board was
abolished and a separate Liquor Board instituted for each of the
provinces in accordance
with the provisions of s 5 of the Liquor Act,
27 of 1989. The Liquor Act, 27 of 1989 was repealed by the
Liquor
Act, 59 of 2003
with its purpose to
inter alia
establish
national norms and standards in order to maintain economic unity
within the legal industry, to provide for essential national
standards and minimum standards required for the rendering of
services and to provide measures to promote co-operative
government in the area of liquor legislation. Schedule 1 of this Act
provides for a transition from repealed laws to provincial
legislation and as mentioned, the Free State Province now has its own
act dealing with the liquor industry.
[25]
Bearing in mind the background to our liquor legislation it is fair
to say that the DPO and the particular municipality employee(s)
are
the eyes and ears of the Authority. Unlike as earlier in our history,
the members of the Authority (or liquor board as it was
known in the
bygone era) do not have the opportunity and time to visit premises of
applicants applying for liquor licences for
inspection purposes to
establish whether the premises are suitable or not. The Authority now
depends on the particular municipality
to file a report. The same
applies to the report to be filed by the DPO, although Liquor Boards
relied on reports of DPO's in the
past as well. See for example the
following case law:
Rosenberg
and
Others
and
Mafeking
Liquor
Licencing Board
1947 (1) SA 677
(Griqualand West Local Division) at 682;
Van
der
Spuy
v
Uniondale
Liquor
Licencing
Board
1955 (3) SA 603
(CPD) at 606;
Rossouw v Norton NO and
Other
1950 (2) SA 1
(CPD);
Mahara
j
v
Chairman,
Liquor Board
1997 (1) SA 273
(NPD)
at 280G and further.
[26]
Although in a different context, the Appeal Court found that the
National Transport Commission failed to comply with the peremptory
provisions of s 14(1)(a) of the Road Transportation Act, 74 of 1977
and consequently the decision of the Commission was set
aside
on review. See
Setsokosane
Busdiens v
Nasionale Vervoerkommissie
1986 (2) 57 (AD) at 84H and
871.
VII
THE
FREE
STATE
GAMBLING
AND
LIQUOR
ACT,
6
OF 2010
[27] The
relevant objects of the Act are set out in s 2 which reads as
follows:
"(1)
In
relation
to
liquor
to
-
(a)
reduce
the
socio-economic and
other costs
of
alcohol abuse
by -
(i)
implementing essential nation norms and standards
in the liquor industry as determined
by
the National Liquor Act;
(ii)
(iii)
providing for public participation in the consideration of
applications for registration; and
(b)
promote the
development of a
responsible and
sustainable
liquor industry in
a
manner
that
facilitates -
(i)
the entry of new participants into
the industry;
(ii)
diversity of
ownership
in
the
industry;
(iii)
an
ethos
of
social responsibility in
the industry; and
(iv)
local
tourism
and economic growth, and
..."
Section 3
provides that the Act applies, subject to the relevant provisions of
the National Liquor Act, to all retail sale, consumption
and
micro-manufacturing of liquor or methylated spirits.
[28] As
mentioned
supra,
the Authority is a juristic person established in
accordance with s 4 of the Act. The Authority consists of the board,
chief executive
officer and administration.
[29]
Section 5(1) stipulates as follows:
"5.
Powers
and
functions
of
the
Authority.
-
(1)
The
Authority
manage
and
control
the following
powers
and
functions
through
the
board
-
(a)
(b)
consider,
grant
or
refuse
applications
in
terms
of this Act; ..."
[30] The
member of the executive council of the province responsible for
regulation of gambling and liquor appoints a member
of the board as
the chairperson from time to time. See s 6(3) of the Act. The
chairperson has a casting vote in accordance with
the provisions of s
17(4) of the Act which reads as follows:
"(4)
A decision of the board must be taken by a majority of the votes of
the members present at a meeting of the board
and, in the event
of an equality of votes on any matter, the chairperson must have a
casting vote in addition to his or her deliberative
vote."
The
Authority may conduct any enquiry into any matter falling within the
scope of its powers and functions. See s 20(1) of the Act.
I
quote s 20(2) to 20(6):
"(2)
For the purpose of any enquiry in terms of subsection (1), the
Authority may, by written notice, summon any person who
is or who may
be affected by or is concerned in the consideration of a particular
matter by the Authority, to appear before the
board-
(a)
to give evidence;
or
(b)
to
produce
any
book,
document
or
thing
which is
in his
or
her
possession
or
under
his
or
her
control
and which,
in the
opinion
of
the
Authority,
relates
or
may relate to a matter to
be considered thereat:
Provided
that at any enquiry held by the Authority, the person applying for a
licence or registration or the transfer or removal
of a licence or
registration in terms of this Act, or any person objecting to the
granting of such an application, or the person
who is the subject of
the enquiry, as the case may be, must, if he or she so
requests, be entitled to appear before the Authority
and to call
witnesses.
(3)
A
person
who
has
received
a
notice
in terms
of subsection
(2), must
personally
appear
before the Authority
on
the
date,
time
and
place
set
out
in
the
notice:
Provided
that
if
such
a
person
is
not
legally
competent
to
so
appear
before the Authority,
any person
who
by
law
is
competent
to
act
on
his
or
her behalf or
any person authorised
thereto
by
the
Authority,
may so appear
on his or her behalf.
(4)
The
provisions
of subsection
(3)
apply
mutatis mutandis
to
any
corporate body,
organisation or
institution.
(5)
The
Authority may
call
and
examine
any
person present
at
the
enquiry,
whether
or
not
he
or
she
has been
summoned under
subsection (2)
to
attend
the enquiry,
and
may
inspect
and
retain for
a
reasonable period any
book, document
or thing, the
production
of
which
was required
under
that
subsection: Provided that
the said
person
affected
must
be entitled
to
make copies
of such
book, document
or thing,
i
f
practicable, before it is
so retained by the Authority.
(6)
The Authority
may
require from
any
person
appearing before
the Authority
at an enquiry in
terms of
subsection
(1), to
give
his
or
her evidence
on
oath
or
affirmation,
and the
member
of the Authority
presiding at
the
enquiry,
may
administer
the
oath
or
accept
an affirmation from
any such person."
[31] When
considering an application for registration, s 28(4) of the Act
provides that the Authority must
"take
due regard
of
issues
of
(a)
public
interest;
(b)
proximity
of
the
proposed
premises
to
(i)
institutions of learning or (ii) places of worship (iii)
existing outlets;
(c)
the
ratio of population
vis-a-vis
the
number
of outlets
in the
relevant ward;
(d)
the
report
of
the
relevant
municipality
received
in terms
of
s 31 and
(e) the
reports, views
and objections
contemplated
in s 31(4) to
35".
[32]
Certain requirements have to be met by an applicant for a new
registration and on receipt of the application the Authority
must
comply with certain obligations. Sub-section 31(2) of the Act
specifies what every application for a new registration must
contain
and the documentation to be attached. It is unnecessary to quote
these requirements, save to state that there is no obligation
on an
applicant to provide reports from the particular municipality or the
DPO or any other police officer.
[33]
Sub-sections 31(3) and (4) stipulate as follows:
"(3)
On receipt of the application
by the Authority,
said Authority
must
r
equest-
(a)
a
report
by
a
liquor
inspector
regarding
the
application which
includes
the
information
contemplated
in
section 32(1);
(b)
a report from the
South African
Police Service
regarding the
application,
which
must
include
information
regarding the suitability
of the applicant
and the information
contemplated
in section
32(2);
(c)
a
report
from
the
relevant
municipality,
which
must
include the information
contemplated
in section
32(3).
(4)
The
municipality,
liquor
inspector
and
designated
police officer
contemplated
in
subsection
(3)
must compile
and submit
the relevant
reports
within the
prescribed period."
(emphasis added)
[34]
Subsection 32(2) stipulates as follows:
"(2)
A report by a designated police officer must provide details of those
matters prescribed and matters which ought, in the
opinion of the
designated police officer, to be taken into consideration in respect
of the application concerned."
[35]
Subsection 32(3) stipulates as follows:
(3)
A
report
from
the
relevant
municipality
must
provide
information on-
(a)
the zoning
of the relevant premises;
(b)
the
impact
on
surrounding traffic
patterns, traffic congestion,
entrances
and exits to
and from
the
premises and parking
requirements;
(c)
environmental
health; or
(d)
any
other
matter
which,
in the
opinion
of the
municipality,
ought to be
taken
into consideration
in respect of the
application for registration."
[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 that 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. The wording of the
Act is clear and unambiguous. Sub-section 31(3) is peremptory.
It is
the Authority that
must
request the reports and in
terms of sub section 31(4), the municipality, liquor inspector
and designated police officer
must
compile and
submit the relevant reports. These aspects will be considered again
when the arguments of the legal representatives
are entertained
infra.
The regulations issued in terms of the Act provide for
time frames within which the reports have to be requested and
supplied in
order to ensure compliance with sections 31 and 32 of the
Act. Nothing turns on this and it is not respondents' case that these
time frames are unreasonable.
VIII
MANDAMUS OR REVIEW
[37]
Although applicants rely on judicial review of administrative action
in accordance with s 6 of the Promotion of Administrative
Justice
Act, 3 of 2000 ("PAJA"), and in particular sub-section
6(2)(g) read with the definition of "decision",
the
application may just as well be considered on the basis that a
mandamus is sought. A simple refusal by a state functionary
or organ
of state to exercise a function may be met by an application for a
mandamus. On the other hand, the failure
to take
a decision is regarded as an
administrative action. Section 1 of PAJA defines
administrative
action to be "...
any decision taken,
or any failure to take
a
decision
.....
which
adversely
affects
the
rights
of
any
person
and which
has a direct
external legal effect.
..."
Decision is defined as "...
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
......(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 accord
i
ngly."
[38] Mr
Bolema did not argue that the applicants' applications do not
fit
within the purview of a mandamus or review in terms of PAJA,
but concentrated on the fact that the onus was on applicants to join,
in the case of Me Nazo the municipality, and in the case of Mr Jacobs
the Minister of Police. He submitted that there was indeed
a
non-joinder and that these two organs of state should have been
joined and orders based on PAJA should have been sought against
them
and not against respondents. He relied on the judgment of the
Constitutional Court in
Viking
Pony
Africa
Pumps
(Pty)
Ltd t/a Tricom Africa
v
Hidro-Tech Systems
(Pty)
Ltd
2011 (1)
SA 327
(CC) at para [37], but in developing his argument he
emphasised that the SAPS and the municipality are separate organs of
state running their own affairs and their failure to act
constituted administrative action.
This aspect will be considered later.
[39] PAJA
has created an explicit ground of review in so far as the failure to
take a decision within a reasonable time
is now
recognised as reviewable as shown
supra.
However it was always possible to apply for review at
common law in this regard, although parties did not often resort
thereto.
It was more common to obtain a mandamus forcing a reluctant
functionary to take a decision. See Hoexter C,
Administrative
Law in South Africa,
2nd
ed, p.314.
IX
MISJOINDER OF SECOND
RESPONDENT
[40]
It was submitted on behalf of respondents that second
respondent as chairperson is neither responsible for the hearing of
applications
for liquor licences, nor their registration and that he
should not have been joined. This submission is ill-conceived and
apparently
made as a result of an incorrect reading of the founding
affidavits. No authority was quoted to me by Mr Bomela in support of
his
submission. A perusal of law reports for the period 1947 to the
date hereof clearly shows numerous cases where bodies such as the
Authority and their chairpersons have been cited, either as
applicants or respondents. This point
in limine
is
dismissed.
X
FREEDOM OF TRADE, OCCUPATION AND PROFESSION
[41] In
S
v
Lawrence;
S
v
Negal; S v
Solberg
1997 (4) SA 1176
(CC) the Constitutional Court dealt with the
predecessor of s 22 of the Constitution and stated in para [34] as
follows per Chaskalson
P:
"Implicit
in this is that the participation should be in accordance with law.
Thus nobody can claim that s 26 gives him or
her the right to deal in
stolen property or in harmful drugs or to break the law in any other
way. Nor can anyone claim that
the right entitles
him or her to ignore laws having a rational basis which deal
town-planning, zoning, licencing and
other regulation of business,
trades or professions. These are the constraints of the economic
system applicable to all persons
and those who wish to engage in it
must do so subject to such constraints."
In para
[36] Chaskalson P commented as follows:
"Liquor
is a potentially harmful substance. It is part of the normal
environment in which the liquor trade is conducted in
South Africa,
and other countries, for selling to be regulated by licences which
control not only the right to sell liquor but
also where, when and
what liquor may be sold."
In para
[54] it was put on record that the
"excessive
consumption
of
liquor is universally
regarded as a social
evil"
and
that
"...(i)t
is
linked to
crime,
disturbance
of the
public
order,
impairment
of
road
safety, damage
to health
and has
other
deleterious social and
economic consequences."
Chaskalson P went on to state at para [65] that
"(t)he
scheme of
the legislation is
to
effect controls through
licences".
[42] When
the
5th
edition of Lansdown's South African
Liquor Law was published in 1983, neither the interim nor the
final Constitution was applicable. In my view and bearing in mind the
Bill of Rights contained in our Constitution, it may be argued
that a
fourth element has to be borne in mind by the Authority considering
an application for a registration certificate in terms
of the Act, to
wit the right to freedom of trade. It is conceivable that this aspect
might be considered under public interest,
but in my opinion will be
more prudent to consider the right to freedom of trade as a fourth
factor.
[43]
Section 22 of our Constitution reads as follows:
"Freedom
of trade, occupation and profession.
[22]
Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or
profession
may be regulated by law."
[44]
Section 22 is a
"substantially
more
limited
right"
than s 26 of the interim Constitution. See D Davis, Freedom of
trade, occupation and profession
in
Woolman
et
al
Constitutional Law of South Africa,
2nd
ed, vol 4, p. 54-1 and Currie and De Waal, The
Bill of Rights Handbook,
5th
e, p. 487. However and although the practice of a trade,
occupation or profession may be regulated by law, in my view
the
constitutional right of freedom of trade should not be undermined
by restrictions, unless necessary in order to protect the rights
of
the public in general.
[45] It
is understandable that the right to engage in economic activity is
limited, but in my view no citizen should effectively
be prevented
from being heard by the particular body that is obliged to consider
his or her application for a licence:
in
casu
a registration certificate. It is apparent from the papers
that both applicants are members of the previously disadvantaged
groups
in this country and therefore the words of Jones J are worth
quoting:
"We
have a history of repression 1n the choice of trade, occupation or
profession. This resulted in disadvantage to a
large number of South
Africans in earning their daily bread. In the pre-Constitution era
the implementation of the policies of
apartheid directly and
indirectly impacted upon the free choice of a trade, occupation or
profession: unequal education, the prevention
of free movement of
people throughout the country, restrictions upon where and for how
long they could reside in particular
areas, the practice of
making available structures to develop skills and training in the
employment sphere to select sections of
the population only, and the
statutory reservation of jobs for members of particular races are
examples of past unfairness which
caused hardship. The result was
that all citizens of the country did not have a free choice of trade,
occupation or profession.
Section 22 is designed to prevent a
perpetuation of this state of affairs.
See
JR1013 Investments CC
and Others v Minister of
Safety and Security
and
Others
1997 (7) BCLR 925
(E) at 9308-E.
[46] The
purpose of the Constitution as expressed in s 22 will be undermined
if bureaucrats keep on putting unnecessary obstacles
in the way of
applicants for registration certificates in terms of the Act or any
other similar legislation. The delay in considering
an application
for any licence to enable a citizen of this country to conduct a
business in order to participate in the economy
is
prima
facie
one such obstacle. In
Offit
Enterprises
(Pty)
Ltd
v
Coega Development
Corporation
201O (4) SA 242
(SCA) para 43
Wallis AJA (as he then was) dealt with
unreasonable delay relating to a decision that
a
functionary is under some obligation to take in the following words:
"It is directed at
dilatoriness
in
taking
decisions
that
the
administrator is
supposed
to
take
and
aims
at
protecting
the citizen
against
bureaucratic
stonewalling.
As
such its
focus is
the person
who
applies
for
an identity
document,
government
grant,
licence, permit or passport
and
does
not
receive
it
within
an appropriate period
of
time, and
whose
attempts
to
chivvy
officialdom along
are
met
with: 'Come back
next
week."'
(emphasis added). See also De Ville JR,
Judicial
Review
of
Administrative Action
in
South
Africa,
revised 1
51
ed,
p. 184 - 186. Hoexter C,
foe
cit
deals with unreasonable delay and states that this ground
of review "...
is
a
statutory addition
that
will
be welcomed
by
anyone who
has experienced
the frustration
of waiting
for a
government department
to
act.
Because
it
has
been
made
explicit and thus
more
accessible,
the
ground
is
likely
to be
relied
on
more often than
its common-law forbears."
[47] In
the same vein it is deemed necessary to consider the following
judgment. The Constitutional Court dealt with the constitutional
right to freedom of trade,
occupation and profession as follows
in
Affordable Medicines Trust
&
others v Minister of
Health
&
others
2006(3) SA 247 (CC)
at paras
[59] - [61]:
"[59]
What is at stake is more than one's right to earn a living, important
though that is. Freedom to choose a vocation
is intrinsic to
the nature of the society based on human dignity as contemplated in
the constitution. One's work is part of one's
identity and is
constitutive of one's dignity. Every individual has a right to take
up any activity which he or she believes himself
or herself prepared
to undertake as a profession and to make that activity the very
basis of his or her life. And there
is a relationship between
work and the human personality as a whole. It is a relationship that
shapes and completes
the individual over a lifetime of
devoted activity; it is the foundation of a person's existence.
[60]
Though economic necessity or cultural barriers may unfortunately
limit the capacity of individuals to exercise such choice,
legal
impedimentsare not to be countenanced
unless
clearly
justified
in
terms
of
the broad
public
i
nterest.
Limitations under right
to freely choose a profession are not to be likely tolerated
.....
[61]
It is against this
background that
section
22
must be understood and
construed."
(emphasis added)
XI
CO-OPERATIVE GOVERNMENT AND INTERGOVERNMENTAL RELATIONS AND THE
PRINCIPLE OF LEGALITY
[48]
Respondents are of the view that the Authority's hands are tied in so
far as it is dependent on other organs of state, in the
one instance
the municipality, and in the other the SAPS, to provide the required
reports and the failure by these two organs of
state makes it
impossible for the Authority to consider the applications at all. It
was submitted that the Authority had requested
these two organs of
state to present the reports but in the event of their failure, there
was nothing that the Authority could
do, bearing in mind the
provisions of the Constitution and in particular sections 40 and 41
thereof.
[49] In
terms of s 40(1) of the Constitution our government
"is
constituted as national, provincial and local spheres
of
government which
are
distinctive,
interdependent
and
interrelated."
Furthermore
"(A)ll
spheres
of
government
must
observe
and
adhere to the principles (in chapter
3 of the Constitution)
and must conduct their
activities within the parameters that
the Chapter
provides."
See s 40(2) of the Constitution.
[50] It
is clear that all spheres of government and organs of state within
each sphere must
inter
a!ia
exercise
their powers and perform their functions in a manner that does not
encroach on geographical, functional or institutional
integrity of
government in another sphere and co-operate with one another in
mutual trust and good faith by fostering friendly
relations and
assisting in supporting one another, adhering to agreed procedures
and avoiding legal proceedings against one another.
See s
41(1)(g) and (h).
[51]
Organs of state involved in inter-governmental disputes must
make every reasonable effort to settle their disputes and if a court
is not satisfied that all the requirements of s 41(3) have been met,
it may refer the dispute back to the organs of state involved.
See s
41(4). The granting of liquor licences is a competence of the
provincial legislatures: see Part A of Schedule
5
of the Constitution. Contrary thereto, the control of
undertakings that sell liquor to the public is a local government
matter:
see Part
B
of Schedule
5
of
the Constitution. It is also clear that a municipality has executive
authority in respect of and has the right to administer
the
local government matters listed in Part
B
of Schedule
5.
See
s
156(1)
of the
Constitution. On the other hand, the Premier of a province
inter
alia
exercises executive authority together with the other
Members of the Executive Council by implementing provincial
legislation in
the province and implementing all national legislation
within the functional areas listed in Schedules
4
and
5
except where the
Constitution or an Act of Parliament provides otherwise. See
s
125(2).
[52]
In
Uthukela
District
Municipality
and
Others
v
Presidentof
the
Republic of SA and
Others
[2002] ZACC 11
;
2003 (1) SA 678
(CC) at para
[14]
the Constitutional Court
held that a court will rarely decide an inter-governmental dispute
unless the organs of state involved
in the dispute have made every
reasonable effort to resolve it at a political level. Such organs of
state have a two-fold obligation,
i.e. to make every reasonable
effort to settle the dispute with the mechanisms provided and to
exhaust all other remedies before
they approach the courts. See para
[19] and also
National Gambling Board v
Premier
KwaZulu
Natal and
Others
[2001] ZACC 8
;
2002
(2) SA 715
(CC) at paras [30] to [39].
[53] In
my view it is clear that there is or was no dispute at all between
the applicable organs of state. It is or was not a matter
where the
municipality concerned or the SAPS refused for the one of other
reason to submit the applicable reports. They merely
failed to
file reports and first respondent failed to use the mechanisms
available to it to obtain the reports. Mr Bomela
conceded that the
particular organs of state were not involved in disputes. I deal with
this aspect later again.
[54] Mr
Bomela argued that the SAPS and the municipality as separate organs
of state, running their own affairs, cannot be dictated
to and/or
"forced" by the Authority to comply with the Act based on
the principle of autonomy of spheres of government.
Their failure to
supply reports constituted administrative action according to counsel
and it was for applicants to utilise PAJA
against these organ of
state. As this was not done the applications are premature: the
Authority could not be directed to consider
the applications for
registration certificates.
[55]
Another issue raised by counsel for respondents was the principle of
legality. He relied on authorities such as
Pharmaceutical
Manufacturers Association
of
SA &
another:
in
re
President of
the Republic of South Africa
&
others
2000 (2) SA 674 (CC) and
Lester
v
NdlarnbeMunicipality
(Case
number 514/12)
[2013] ZASCA 95
(22 August 2013) at paras [20] and
[26]. There is no doubt that the exercise of all public power must
comply with the Constitution,
the supreme law of our land, and the
doctrine of legality which is part of the law. Organs of state are
thus constrained by this
doctrine to exercise only those powers
bestowed upon them by the law.
[56] In
Reynecke
foe
cit
Lekale J not only found that the SAPS and the municipality were
the
"eyes
and
ears"
of the respondents, but that
"(t)heir
cooperation was
necessary
in
the
services that the respondents
render and was,
as such, of utmost
importance
to
service
delivery."
See also the judgments in
One
Turn
Trading 226 (Pty) Ltd
v
The
North
West
Liquor Board and another,
case
number 1121/2012, a judgment by Matlapeng AJ delivered on 30 August
2012, and in particular paras [15] to [17]
and
Rio
Grande Beverage
Industries (Pty)
Ltd and
others v The Minister of Trade
and
Industry N.O.
and
others,
case number 5303/2013, a judgment by Ebersohn AJ
delivered in the North Gauteng High Court on 29 July 2014. The
learned
judge in the last mentioned judgment referred to the
numerous similar applications in Gauteng and stated that
"(t)he
way
the
respondents
operated
and
delayed these
and numerous other similar applications .... was a travesty of
justice and scandalous."
XII
EVALUATION
OF THE
EVIDENCE,
LEGISLATION,
AUTHORITIES
AND
SUBMISSIONS BY COUNSEL
[57]
Respondents presented no proof whatsoever that they had instructed
the municipality in the case of Me Nazo to file the required
report.
Applicant attached to the founding affidavit certain emails from a Mr
Johan de Bruyn, Acting Manager, Business Regulation
of the Authority,
to applicant's attorney confirming that a second instruction letter
had been served on the municipality on 13
February 2015 and that a
third instruction letter would be forwarded to the municipality
shortly. This email is dated 4 March 2015.
However it has not been
proven that the municipality had in fact been instructed to file a
report. However and bearing in mind
the fact that the municipality
did not have any objection to the issuing of a liquor store
registration certificate when Me Nazo
filed her first application, I
would have expected the Authority to accept such report for purposes
of the second application.
It is clear that Me Nazo filed an
application for the same type of registration certificate in respect
of the same premises within
months after her first application was
rejected for technical reasons. Alternatively, a simple telephone
call to the author of
the municipal report dated 27 February 2013
could have cured the alleged problem of non-reporting.
[58] Save
for the fact that the court has not been presented with any proof
that the Authority had made every effort to obtain a
report from the
municipality, it needs to be emphasised that even if such a
report was filed with
the Authority by
themunicipality timeously, applicant and/or her attorney would not
have any knowledge thereof unless
they were provided with a copy as
required by the Act.
[59] Me
Nazo has no business with the municipality and had no right to launch
an application for review of the municipality's failure
to file a
report to the Authority. Mr Bolema conceded this to an extent in so
far as he argued that applicant should have cited
the Authority in
her application for review brought against the municipality. This
argument is without any merit and is rejected.
If applicant had a
right as against the municipality to issue a review application based
on its failure to file a report, it would
not be necessary to join
the Authority as a party to those proceedings.
[60] The
fact of the matter is that respondents try to shift their
responsibilities to applicant. As mentioned
supra
when
I dealt with the Act, the obligation to request the reports and
to obtain those rests squarely on the shoulders of the
Authority. If
one considers the structure of the Act, the intention of the
legislature and the history of our liquor legislation
referred to
supra,
the Authority must be satisfied with the
suitability of the building from which the applicant wants to trade
and the area concerned.
In the past, and as stated, liquor
board members did personal inspections, but the legislature has
considered it to be impracticable
nowadays and therefore that task
has been awarded to the applicable municipality.
[61] The
same criticism levelled at respondents in respect of the failure to
obtain a report from the municipality applies to the
failure to
obtain a police report from the DPO in the Jacobs application. In the
Jacobs matter there is no indication whatsoever
that the same Mr De
Bruyn referred to
supra
requested a report from the DPO at all. The only reference
to such a report is the email of 20 April 2015 to applicant's
attorney
which reads as follows:
"Please
be
advised
that
we
have
received
the
municipal
report
on the
17
April
2015. We are now
waiting for the
DPO
report."
[62] Mr
LO Motaung, the legal manager of first respondent stated the
following in the answering affidavit on behalf of respondents
in the
Jacobs matter:
"4.12.2
Annexure
E
(the email
of 20 April 2015)
to the
founding affidavit is
proof
that
the
applicant
was at
all times
kept abreast of
the developments
in
the liquor licence
application.
4.12.3
The Police report is still outstanding."
This
affidavit is dated 10 July 2015. These allegations are made in
response to averments by applicant's attorney in respect
of
problems experienced in obtaining reports, substantiated by his
letters of 28 January 2015, 10 April 2015 and 15 May 2015
addressed to first respondent for attention Mr De Bruyn. In the
letter of 15 May 2015 first respondent is requested to provide
the
necessary reports urgently and within the next seven days,
failing which the attorney would proceed with a court application
as
instructed. No response whatsoever was received
ex
facie
the papers. It is not even certain whether the Authority did in
fact request the report from the DPO at all. As in the case of Me
Nazo, Mr Motaung apparently did not deal with the matters personally
and relied on unsubstantiated hearsay evidence.
[63]
Again, as in the case of the municipality, and notwithstanding the
submissions of counsel, it was not required of applicant
to file a
review application against the Minister of Police. Any action to be
taken to obtain the report from the DPO had to be
taken by the
Authority and by nobody else. There is no proof of a dispute between
two organs of state and there is not even proof
that there was no
co-operation between the Authority and the SAPD. If it was
really the case of the Authority that the DPO
deliberately refused to
file a report and/or otherwise to assist the Authority by failing to
file the report notwithstanding written
request, I would have
expected respondents to place that on record and to provide the court
with the necessary proof. This
it failed to do and it cannot now rely
on the Constitution or the principles of co operative government
and/or sections 40
and 41 of the Constitution or any other section
thereof.
[64] It
is apparent that, during this whole process which started eleven
months ago, respondents did not show any respect whatsoever
for the
rights of the two applicants. The two applicants do not want the
court to direct the respondents to issue registration
certificates to
them; they merely want the opportunity to be heard and/or that their
applications be considered. An import aspect
to be considered
is the fact that no objections have been lodged against any of the
two applications. Consequently, and without
usurping the functions of
respondents and/or attempting to venture into the liquor licencing
arena, the only obstacle to be overcome
by applicants at this stage
is the bureaucratic stonewall with which they are confronted.
[65]
Before, but particularly after receipt of final letters of demand the
Authority failed to communicate its challenges to applicant's
attorney so as to provide them an opportunity to make suggestions, if
any, to expedite matters. In the words of Lekale
J
in
Reynecke
foe
cit:
"In
my view, if the absence of personnel at the proposed premises was the
cause of or contributed toward the delay on the part
of the SAPS, one
would have expected the respondent to have, at least, pointed that
out to the applicant's attorney in response
to those letters. The
delay was, thus, undue in so far it is not explained."
As
indicated no responses whatsoever were forthcoming and the applicants
were left in the dark as to any obstacles that might have
prevented
the relevant parties to file reports.
[66] I
reiterate therefore that respondents were expected to present
explanations as to why the reports were not forthcoming and
exactly
what they had done in obtaining these reports, but their
explanations are in the words
of Lekale
J,
In
Reynecke
".....
wanting,
unsatisfactory
and unacceptable
m
so far
as
it
is
simply
to
the
effect
that
the first respondent
was
helplessly
waiting
for
reports
from
the
SAPS
and
the
municipality.
It
is
not
apparent
ex
facie
the
opposing
papers
that
the respondents
escalated the
problem regarding
such reports
to
senior personnel
within
the institutions
concerned in
an
attempt
to
expedite the
matter,
..."
[67]
Lekale
J
dealt with a
submission that the Constitution discourages interdepartmental
litigation and stated that "...
the
Constitution
in fact
does
not
per
se
bar
interdepartmental
litigation and only
discourages
it in the
sense that
it should
be avoided
in favour of other
less drastic
measures and mutually
harmonious steps."
I
fully endorse his remarks, but wish to reiterate that
ex
facie
the application papers there was not the
faintest suggestion of a dispute between organs of state
in casu.
[68] In
casu
nearly a year has lapsed and the applications have
not yet been enrolled for consideration. This is preposterous
and a mockery
is made of applicants' constitutional rights. In
my view and bearing in mind the applicable time frames and the
obvious
workload of the Authority
which I accept, although this was not tendered as an excuse at any
stage, there
is no reason why applications for registration
certificates cannot be considered by the Authority within four months
from
the date of lodging of the
applications. respectfully disagree with the view of Lekale
J
in this regard in the aforesaid judgment to the effect that an
application can be ripe for determination two months after lodging
thereof. This might be so in exceptional cases only. Save
for this comment I respectfully agree with the reasons and
orders of
Lekale
J.
I am in any
event bound to follow his judgment in accordance with the
time-honoured
stare
decisis-principle, unless I am convinced that he was
wrong, which is not the case. Unfortunately respondents, represented
by an
in house legal adviser, the Office of the State Attorney
and counsel regarded them not bound by a reasoned judgment of this
division.
[69] The
facts reported in the
Rio
Grande
judgment
are mirror images of the situation in the Free State Province. Here,
Mr Burger, an experienced attorney who specialises
in the field of
Liquor Licencing and Registration, like Mr Blom in Pretoria,
has to approach the court on a regular basis
to obtain orders against
respondents, every time at the expense of the taxpayer.
The respondents are oblivious of applicants'
constitutional rights
and in particular their rights to obtain fair, just, transparent and
expeditious administrative decisions.
[70] If
respondents acted professionally and without dragging
their feet they could have considered these applications
long ago.
They had the means and the authority to obtain reports from the DPO
and the municipality, even if they had to act in
terms of s 20 of the
Act which allows for enquiries to be conducted by the Authority
and the summoning of any person to appear
before the board. I
reject Mr Bomela's argument that the Authority was required to
interfere with the powers and/or
functions of
other organs of state. The
reporting functions mentioned in
sections 31 and 32 of the Act have
nothing to do with the affairs of the SAPS and the municipality. It
should be noted that the
function of a municipality in particular is
the control of undertakings that sell liquor to the public within its
area. Refer again
to Schedule 5, Part B of the Constitution, read
with s 156 thereof. The SAPS must ensure that law and order prevail.
I have referred
to the structure of the Act, the clear and
unambiguous language of the relevant sections and sections 20, 31 and
32 in particular,
as well as the background to the present Act with
reference to past liquor legislation, the purpose of such legislation
and the
present Act and the surrounding circumstances. The reliance
on the principles of co-operative government for the argument that
applicants' applications are premature and that they had to rush to
court to obtain relief against the SAPS and/or the municipality
is
without merit.
[71] The
reliance on the principle of legality for the argument that
respondents do not have any means to obtain reports from these
organs
of state is misplaced for the reasons advanced herein. It is
unnecessary to repeat what I have stated above. There is in
my mind
no doubt that applicants have made out a proper case for the relief
sought.
XIII
COSTS
[72] Both
applicants seek costs on the scale as between attorney and client.
Such orders have been made, to the best of my knowledge,
in all the
unopposed applications referred to
supra
as well as by Lekale
J
in
Reynecke
foe
cit.
Notwithstanding this and the history of litigation between
various applicants and respondents over the years, respondents still
do not adhere to court orders in this regard and specifically the
judgment of Lekale
J.
Their attitude cannot be defended, smells of arrogance and
must be penalised with a punitive costs order.
[73] I
have seriously considered to call upon the chairperson of the
Authority, cited as second respondent herein, and/or the deponent
of
the answering affidavits, Mr LD Motaung, a legally qualified person
to advance reasons why costs
de bonis
propriis
on an attorney and client scale should not be granted against
either or both of them. In this regard I wish to refer to the
unanimous
judgment of the Constitutional Court, the scribe being
O'Regan
J
in
SA
Liquor
Traders'
Association v Gauteng Liquor
Board
2009
(1)
SA 565 (CC) at paras [50] - [54]. In my view the
employees and/or functionaries of the Authority deliberately
failed
to adhere to the judgment of Lekale
J
and Mr Motaung's version as to the steps taken (or reasons for
the failure to take steps to obtain the required reports) is in the
words of O'Regan
J
indicative of a
"lamentable want
of professional
responsibility".
It also
reflects on the members of the Authority and its chairman
in particular who over the years caused numerous court
orders to be
made against them in similar circumstances. There is no
reason why the taxpayer should be burdened with
legal costs
unnecessary incurred. Applicants did not ask for such a punitive
costs order to be made and bearing in mind the further
costs to be
incurred in postponing the matter for adjudication of such order, I
decided to exercise my discretion on the
basis as set out
infra.
XIV
ORDERS
[74]
Therefore I grant the following orders:
In
application
2
386/2015:
1.
First and second respondents are directed to consider applicant's
application for a liquor store registration certificate
in respect of
the premises situated at [.....], Phelindaba, Kagisanong,
Bloemfontein within 21 days from the date of this
order;
2.
First respondent is ordered to pay the costs of this application on
the scale as between attorney and client.
In
application
2
512/2015:
1.
First and second respondents are directed to consider applicant's
application for a tavern registration
certificate in respect of the
premises situated at Erf 1580, 30 Joe Solomon Street, Opkoms,
Heidedal, Bloemfontein within 21 days
from the date of this order;
2.
First respondent is ordered to pay the costs of this application on
the scale as between attorney
and client.
__________________
J.
P. DAFFUE, J
On behalf
of applicants: Adv. L. Le R. Pohl SC
Instructed by:
Honey
Attorneys
BLOEMFONTEIN
On behalf
of respondents: Adv.
L
.
Bomela
Instructed by:
The State Attorney
BLOEMFONTEINT
/eb