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[2015] ZAFSHC 245
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Miles of Meat 2 BK v Free State Gambling and Liquor Authority and Another (2099/2015) [2015] ZAFSHC 245 (26 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No: 2099/2015
In
the matter between
MILES
OF MEAT 2
BK
Applicant
and
FREE
STATE
GAMBLING
AND
LIQUOR
AUTHORITY
1
st
Respondent
THE
CHAIRPERSON
OF THE
FREE STATE
GAMBLING
AND
LIQUOR AUTHORITY
2
nd
Respondent
CORAM:
NAIDOO, J
JUDGMENT:
NAIDOO, J
HEARD
ON:
6 AUGUST 2015
DELIVERED
O
N:
26 NOVEMBER 2015
[1]
The applicant seeks an order compelling the first and second
respondents to consider the applicant's application for a
registration
certificate in respect of a tavern, within Twenty One
(21) days of the grant of the order, or such other period as the
court may
deem appropriate, together with a costs order against the
respondents. Mr L le R Pohl appeared for the applicant and Mr Bomela
for the respondents.
[2]
The applicant applied, in writing, for a tavern registration
certificate in terms of section 27 read with section 31 of the
Free
State Gambling and Liquor Act 6 of 201O (the Act). It lodged such
application with the Free State Gambling and Liquor Authority
(the
Authority), the first respondent, on 6 June 2014. The first
respondent was obliged in terms of Regulation 3(2) of the Regulations
(the Regulations) to the Liquor Act to submit the application to its
head office within seven (7) days. Regulation 3(5) required
the first
respondent's head office to refer the application, within seven (7)
working days of receipt of the application, to the
persons envisaged
in section 31(3). The latter mentioned persons are obliged to submit
reports to the first respondent regarding
the specified information,
within the time specified in the Regulations to the Act. These
persons are a liquor inspector, the South
African Police Service
(SAPS) and the relevant municipality.
[3]
Regulation 7 prescribes that SAPS is obliged to furnish its report to
the first respondent, within (10) working days of the
request for a
report. The first respondent must within seven (7) days of receipt of
the report from SAPS refer such report to the
liquor inspector, who
must in turn furnish his report to the first respondent within ten
(10) working days of receipt of a request
for his report. Regulation
3(4) prescribes that the municipality must furnish its report to the
first respondent within thirty
(30)
days of receipt of the application from the first respondent. The Act
and Regulations, in using the word "must",
make compliance
with the relevant provisions of the Act and its Regulations by the
liquor inspector, SAPS and the municipality
peremptory, with regard
to the filing of such reports.
[4]
The applicant's attorney addressed several letters to the
first respondent in an attempt to obtain the necessary
reports
and almost five months later, on 27 October 2014, the first
respondent forwarded to the applicant's attorney, the three
reports
from SAPS, the liquor inspector and the municipality. The report of
the municipality indicated that its designated officer
who visited
the applicant's premises was ostensibly advised by the person in
charge of such premises that the applicant no longer
wished to
proceed with the application, which should be regarded as withdrawn.
The applicant's attorney reacted by denying, in
a letter to the first
respondent, that the applicant has advised the municipal official
that he did not wish to proceed with the
application or that he was
withdrawing it.
[5]
Numerous letters passed between the applicant's attorney and the
first respondent regarding the obtaining of the report from
the
municipality as it became evident that the non-filing of a proper
report by the municipality was the cause of the delay in
the first
respondent's compliance with Regulation 8(1), which required it to
provide the applicant with copies of the reports of
the liquor
inspector, SAPS and the municipality for comments, and the
applicant's inability to comply with Regulation 8(2), which
required
it to provide such comments to the first respondent within fourteen
(14) days. Other than addressing letters to the municipality
calling
for the furnishing of its report, the papers do not reflect any
further steps taken by the first respondent to secure such
a report
to enable it to perform its duties in terms of the Liquor Act.
[6]
This application was launched on 6 May 2015. Subsequent to the launch
of the application, the applicant, through its own initiative
obtained a "Pro-forma Inspection Report" from the
municipality and handed the report to its attorney, who, in turn,
hand delivered it to the first respondent. This report from the
municipality indicated that on a follow up visit to the applicant's
property, everything was found to be in good order and that it would
issue a "Certificate of Acceptability". At a stage
after
this report was received by a functionary of the first respondent,
the applicant's attorney was advised that the pro
forma report
from the municipality has been filed. Nothing further appears to have
been done by the first respondent to secure
a final report from the
municipality.
The
Act is clear that the reports of the liquor inspector, SAPS and the
municipality are to be requested by the first respondent
and are to
be furnished by the respective officials to the first respondent.
[7]
The respondent in its Answering Affidavit and Heads of Argument gives
an exposition of the provisions of the Constitution of
South Africa
relating to the powers and authority of provincial and local
government
structures.
Reference is also made to section 41(1) of the Constitution, which
regulates and provides for the relationship amongst
all spheres of
government and Organs of State. The provisions referred to provide
essentially for the ability of the different
spheres of government
and Organs of State to govern themselves and make decisions relevant
to their respective functions and operations,
without interference
from other Organs of State or spheres of government. These provisions
of the Constitution are not in dispute
and have limited relevance to
the matter at hand, as will become evident from the discussion that
follows. The first respondent
also raised two points
in limine,
namely the non-joinder of the municipality and the misjoinder of
the second respondent. The authority of the applicant's attorney
to
bring this application was also challenged in the papers, as was the
fact that the attorney's professional assistant signed
the
attestation of the supporting affidavit attached to the founding
affidavit. These latter points were not pursued in argument
before
court. The applicant in any event had filed a power of attorney
authorising its attorney to institute legal proceedings
on its
behalf. The point relating to the signature of the professional
assistant was abandoned by the first respondent and requires
no
further mention.
[8]
I deal now with the two points
in
limine
raised by the first respondent. With regard to the misjoinder of
the second respondent, the starting point is to note that
section 4(1) of the Liquor Act establishes the first respondent (the
Authority) as a juristic person. Section 4(2) of the Act provides
that the "Authority consists of the board, chief executive
officer and administration". Section 5 of the Act provides
that
the powers and functions of the Authority are managed and controlled
through the board. It is clear therefore, that the Authority
requires
natural persons to implement and control its business and affairs in
terms of the Act. Section 6(3) of the Act provides
that
"The
responsible Member appoints a member of the board as the chairperson,
and
another
member as the deputy chairperson, of the board"
Section
17 of the Act provides for the chairperson of the board to determine
the time and place of the first meeting of the board,
and that the
time and place of subsequent meetings is to be determined by the
board (presumably acting on the direction of the
chairperson). The
fact that the chairperson is a member of the board, indicates his
responsibility for and interest in the running
of the affairs of the
first respondent. This responsibility includes the power conferred
upon the Authority (acting through the
board) in section 5(1)(b) to
"consider, grant or refuse applications in terms of this Acf'.
The Chairperson is also responsible
for signing licenses and
certificates that have been approved. The reference in the
first respondent's Heads of Argument
to section 14(4) of the Act as
the provision dealing with delegation of authority appears to be
erroneous, as section 14 of the
Act deals with the position of trust
of board members vis-a-vis the Authority. Furthermore section 14 does
not appear to have a
subsection (4). In my view, the second
respondent is the person who gives direction to the board in the
conduct of the affairs
of the first respondent, has a direct interest
in these proceedings and was correctly joined in this application.
[9]
Turning to the non-joinder of the municipality, I have set out the
provisions of the Act relating to the obligations of the
municipality
to furnish to the first respondent the required report in terms of
section 31(3) of the Act read with Regulation 3(4).
The municipality
bears a statutory duty to furnish a report to enable another organ of
state (the first respondent) to perform
its duties. The municipality
is not required to make a decision about its own functions and duties
or has acted in a way that entitles
the applicant to seek relief
against the municipality in terms of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA).
Its failure to furnish the required
report to the first respondent does not, in my view, give rise to any
cause of action against
it by the applicant. More importantly, the
Act makes no provision for any relationship between the applicant and
the municipality
with regard to an application for a tavern
registration certificate, and does not at all make provision for the
applicant to take
steps to compel the municipality to comply with the
provisions of the Act.
[10]
As I alluded to earlier in this judgment, the Act and Regulations
thereto requires the first respondent to request the report
from the
municipality and makes the furnishing of such report by the
municipality compulsory. The first respondent bears the onus
to
ensure that the time frames prescribed in the Act are adhered to, and
in violation thereof to take the necessary steps to obtain
the
required reports. In this regard, Mr Pohl for the applicant, refers
in his Heads of Argument, to the powers conferred by the
Act on the
first respondent to ensure the proper conduct of its business. In
particular, he referred to sections 5(f), 12(4)(d)
and 12 (5).
Section 12(4)(d) of the Act deals with the responsibilities of the
Chief Executive Officer and empowers him/her to
appoint the necessary
staff to enable the board to exercise its powers and perform its
duties under the Act. Section 12(5) empowers
the board to seek the
assistance of,
inter a/ia,
the Provincial Government, SAPS and
other Government Departments to designate or second officers of the
relevant entity to assist
the board in the exercise of its powers and
the performance of its duties. Section 5(f) specifically empowers the
board to exercise
any power necessary to conduct its business, which
includes attending to litigation. It is clear, therefore, that the
first respondent
is the entity empowered to take steps to secure the
delivery of the report by the municipality Whilst embarking on
litigation to
compel the municipality to furnish the required report
should be the last resort, it is not prohibited. In this regard,
section
41 (3) of the Constitution provides that an organ of state
must exhaust all other remedies before approaching a court to resolve
an inter-governmental dispute. There is no indication that the first
respondent exhausted such remedies or that it acted in terms
of
section 41(1) of the Constitution to foster harmonious interactions
with and enlist the support and cooperation of senior functionaries
within the municipality, for example the Municipal or Legal Manager,
to secure the delivery of the report. It simply sent letters
to a
functionary within the municipality the report, and then adopted a
supine approach when such report was not forthcoming.
[11]
In the unreported judgment by Lekhale J in the matter of
Reinecke
v
The
Free State
Gambling
and
Liquor Authority
and Another,
case number 3402/ 2014,
emanating from this
Division, and referred to by Mr Pohl, the court said at paragraph 29
that
"...the
SAPS
and
the
municipality
served
as
the
eyes
and
ears
of
the
respondents.
Such
institutions had
no
direct
and
substantial interest
in
the matter
necessitating
their
joinder in
the
proceedings.
Their
co-operation was
necessary in
the
services that the respondents render and was, as
such, of utmost importance to service delivery." I
agree.
The Reinecke matter was very similar to the present
application and Lekale J granted that application. It is instructive
that this
view was expressed by Lekale J in his well-reasoned
judgment which was delivered on 30 October 2014 and dealt with the
exact same
points which the first respondent perseveres in taking in
the current matter. The unavoidable impression is that the first
respondent
conducts itself in arrogant disregard for the
pronouncements of this court. Two almost identical matters served
before Daffue J,
also of the Free State Division of the High Court on
29 October 2015. In an extensive, comprehensive and well- reasoned
judgment,
delivered on 19 November 2015, Daffue J holds similar views
to Lekale J and myself, and is scathingly critical of the
first respondent's disregard for the rights of applicants such as the
present applicant, and the high-handed and arrogant manner
in which
it deals with applications that are lodged with it.
Daffue J granted both applications.
(Makhala
Adelina
Nazo
v
Free
State Gambling and
Liquor
Authority
+1
case
number
2386/2015
and
Conrad
Jacques
Trevor
Jacobs
v
Free
State
Gambling
and
Liquor
Authority
+1 ,
case
number
2512/2015)
[12]
Crucial to the relief sought by the applicant is whether the delay by
the respondents in considering its application was unreasonable.
Given the timeframes provided for in the Act, and which I have set
out above, for the furnishing of the reports envisaged by section
31(3) read with the relevant Regulations, the first respondent ought
to have responded to the applicant, at least, within three
months of
the date on which the application was lodged with it. This was not
done and the first respondent took no adequate steps
to deal with
this matter in accordance with the Act. There is no explanation on
the papers for this delay, other than that the
first respondent was
awaiting the report from the municipality. As I indicated, the first
respondent took none of the steps it
was empowered to, in terms of
the Act, to expedite this matter. In my view, the delay on the part
of the first respondent in dealing
with this matter is unreasonable.
[13]
As correctly indicated by the applicant, this matter falls within the
ambit of PAJA, which provides that everyone has the right
to just
administrative action. The first respondent's failure to deal with
this matter constitutes an administrative action as
defined in PAJA.
In another unreported decision referred to by Mr Pohl, which emanates
from the North Gauteng High Court, the court
(Ebersohn AJ), dealing
with a similar delay in making a decision on the part of the Minister
of Trade and Industry and the National
Liquor Authority, found that
the respondents are administrative bodies defined in PAJA and that
delay fell to be dealt with in
terms of PAJA.
(Rio Grande Beverage
Industries
(Pty) Ltd and 3 Others v The Minister of
Trade and Industry NO and The
National
Liquor
Authority
case number
5303/13).
I
align myself with this view.
Section
i of PAJA defines "administrative action" as 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 in section iof PAJA to mean
"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)...
(b)...
(c)...
(d)...
(e)...
(f)...
(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"
[14]
I am, therefore persuaded that the applicant has correctly brought
this application in its current form and that it has made
out a case
for the relief it seeks. As regards costs, the manner in which the
first respondent has dealt with the application filed
by the
applicant and the delays it has caused in the consideration of this
matter, coupled with its disregard for the rights of
the applicant
warrant, in my view, the punitive costs order that the applicant
seeks.
ORDER
[15]
In the circumstances, I make the following order
15.1
The first and second respondents are ordered to consider, within
Twenty One (21) Days of the date of this
order, the applicant's
application for a registration certificate for a tavern in respect of
the premises situated at Erf 16600,
Heidedal (Extension 24), shop
numbers 1, 4, 5 and 6, Twin City Shopping Centre, 55
Heatherdale Road, Heidedal, Bloemfontein,
Free State Province, and to
inform the applicant, without delay, of their decision;
15.2
The first respondent is ordered to pay the applicant's costs on the
scale as between attorney and client.
__________________________
NAIDOO,
J
On
behalf of the Applicant: Adv. L
le R Pohl
Instructed
by:
Honey Attorneys
Honey Chambers
Kenneth Kaunda Road
Bloemfontein
(Mr JM Burger)
On
behalf of 1st & 2nd Respondent: Adv L Bomela
Instructed
by:
State Attorney
11
th
Floor
Fedsure Building
49 Charlotte Maxeke
Street
Bloemfontein
(RD Hector
-703/201500775/P3M)