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[2014] ZAGPPHC 272
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Mphumo v Limpopo Provincial Liquor Board and Another (38624/2013) [2014] ZAGPPHC 272 (14 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER:
38624/2013
In the matter
between:
MOSIMA
CHRISTOPHER
MPHUMO
........................................................................................
Applicant
and
THE
LIMPOPO PROVICIAL LIQUOR
BOARD
...........................................................
First
Respondent
THE
CHAIRPERSON OF THE LIMPOPO PROVINCIAL
LIQUOR
BOARD
............................................................................................................
Second
Respondent
DATE OF HEARING:
04 March 2014
DATE OF JUDGMENT:
14 March 2014
JUDGMENT
CILLIERS AJ
[1] This is an
application for the review and setting aside of the decision of the
First Respondent not to grant a special on-consumption
liquor licence
to the Applicant.
[2] The Applicant
applied with the First Respondent for the granting of a special
on-consumption liquor licence (eating house) in
respect of premises
situated at F220 Boltman B, Madonsi Village, Malamulele.
[3] The application
was brought in terms of the provisions of Section 19 of the Liquor
Act, 27 of 1989.
[4]At
a time that is not recorded in the papers, but prior to the
application for the granting of the special on-consumption liquor
licence
(“the
liquor licence’’'’)
the
premises situated at F220 Boltman B, Madonsi Village, Malamulele
(“the
premises
”
)
was used as an eating house and a liquor license was issued in
respect thereof.
[5]The previous
licence under which the Applicant operated lapsed by reason of the
non-renewal thereof.
[6] The Applicant
rented the premises and he was, at the time of the application for
the granting of the liquor licence, of the
intention to re-open an
eating house at the premises.
[7]
Section 19 of the Liquor Act, 27 of 1989
{“the
Act”)
still
finds application in the Limpopo Province, despite the repeal of the
Act by the provisions of
Section 46
of the
Liquor Act, 59 of 2003
.
This is so by reason of the fact that the legislator in the Limpopo
Province has not yet enacted legislation contemplated in items
2(2)
of Schedule 1 to the
Liquor Act, 59 of 2003
, or that a date
determined in accordance with item 2(1) and (2) of the Act was not
yet determined and declared by notice in the
Gazette for the coming
into operation of legislation in the Limpopo Province.
[8] The power to
consider and to grant or refuse a liquor licence is derived from the
express provisions of Section 22 of the Act.
Section 22 of the Act
provides, in relevant part as follows:
“
1.
An application for a licence, excluding a temporary liquor licence
and an occasional licence, shall be considered by the Board,
and it
may -
(a) refuse the
application; or
(b) grant the
application.
2. The Board
shall not grant an application under sub-section 1(b) of this section
or under section 15(l)(a)(iii) -
(b) For any
licence -(i) Unless -
(cc) If the
premises are situated in the vicinity of the place of worship or
school or in a residential area, the business will
be carried on in a
manner that would not disturb the proceedings in that place of
worship or school or will not prejudice the residents
of that
residential area.
[9] In the
application for the granting of the liquor license in terms of the
provisions of Section 19 of the Act the Applicant
furnished
comprehensive written representations to the First Respondent. The
following sets of information furnished are relevant
to this
application:
(i) It was declared
that the premises is situated within the business area of Malamulele
and there are no schools or churches situated
in close proximity to
the premises. It was, however disclosed that there are other dining
facilities and off-consumption facilities
in the area where the
premises is located;
(ii) It was stated
that a licenced on-consumption facility was previously conducted at
the premises, that the previous owner failed
to pay the annual
renewal fees and that the licence lapsed;
(iii) It was
disclosed that the Applicant recently rented the premises and was
under the impression that the premises was licenced
for an
on-consumption facility. Pursuant to the Applicant commencing with
the alterations and renovations to the premises he discovered
that
the 2012 renewal of the liquor licence was not paid and that the
on-consumption licence therefore lapsed.
[10] Pursuant to the
bringing of the application for the granting of the liquor licence
the designated police officer filed a report
in accordance with
section 140 of the Act in which he stated, amongst other issues, the
following:
(i) The premises is
situated 50m away from Xigombe Eating House;
(ii) 100m Away from
Madonsi Eating House;
(iii) 300m Away from
Balwani Eating House;
(iv) 300m Away from
the Swiss Mission Church;
(v) 300m Away from
the Full Gospel Church;
(vi) 500m Away from
Khanani Primary School;
(vii) 600m Away from
Shingwedzi High School;
(viii) 1km Away from
Solly Eating House;
(ix) 1km Away from
the Blue Flame Eating House.
[11] It is common
cause on the papers that the First Respondent adopted a policy in
August 2011 (after holding a routine consultative
process with
members of the community and all stakeholders in the liquor industry
in Limpopo) that a radius of 500m be maintained
between liquor
businesses and schools and churches.
[12] It is this
policy that was evidently followed when the First Respondent decided
to refuse the granting of the liquor licence.
[13] In this regard
the reason for the refusal is contained in the letter from the First
Respondent dated 6 May 2013, and recorded
as follows:
“
The
application was considered and
refused
by
the Limpopo Provincial Liquor Board at its sitting of the 29/04/2013.
Reason(s) for
refusal:
•
The
proposed premises is 300m away from Swiss Mission Church; 300m away
from Full Gospel Church and 500m away from Khanani Primary
School. ”
[14] The provisions
of Section 22 of the Act do not provide for the imperative refusal of
an application for the granting of a liquor
licence if the premises
are situated in the vicinity of a place of worship or school or in a
residential area, without more. In
addition, the said provisions
certainly do not provide for the blanket refusal of the granting of
an application for a liquor licence
based on a policy that a distance
of 500m should be maintained between liquor businesses and schools
and churches.
[15] The provisions
of Section 22(2)(d)(i)(cc) provide for the imperative that the First
Respondent shall not grant an application
for any licence unless the
business will be carried on in a manner that would not disturb the
proceedings in that place of worship
or school or will not prejudice
the residents of that residential area, if the premises is situated
in the vicinity of place of
worship or school or in a residential
area;
[16] On a proper
interpretation of the above it simply means that, if the premises in
respect of which the application for the granting
of the liquor
licence is brought is situated in the vicinity of a place of worship
or school or in a residential area the Board
is obliged not to grant
an application for any licence unless the business will be carried on
in a manner that would not disturb
the proceedings in that place of
worship or school or will not prejudice the residents of that
residential area.
[17]
It follows from the aforesaid that a two-tier approach is to be
followed, namely,
firstly
to
determine whether the premises are situated in the vicinity of a
place of worship or school or in a residential area and,
if
so
,
whether the business will be carried on in manner that would not
disturb the proceedings in that place of worship or school or
will
not prejudice the residents of that residential area.
[18]
The word “
vicinity
”
is
defined in the Shorter Oxford Dictionary to mean, either:
“
the
state, condition
,
or
quality of being near in space; proximity, or
The area within a
limited distance from a place; a nearby or surrounding district; the
neighbourhood. ”
[19]
In my view the word “
vicinity
”
is,
within the context in which it is used in Section 22(2)(d)(i)(cc)
inherently a relative concept. In this regard the proximity
of the
premises to a place of worship or school or in a residential area may
vary according to, amongst other factors that may
be present, the
density of buildings in the area and the type of activities
undertaken within that particular area where the premises
is
situated.
[20]
Within the context of Section 22 of the Act no basis exists to
rigidly apply a particular distance, for example 300m or 500m,
to
interpret the word “
vicinity
”
,
other than in its ordinary meaning - bearing in mind the relative
meaning that it may carry in different areas.
[21] I am, however,
without deciding the issue prepared to accept in favour of the First
Respondent that the premises can be regarded
as being in the vicinity
of a place of worship or school or in a residential area.
[22] Even on the
aforesaid assumption that the above is so, it was not the end of the
enquiry.
[23] The relevant
part of Section 22 of the Act also requires consideration of the
issue whether the business will be carried on
in a manner that would
not disturb the proceedings in the place of worship or school in the
vicinity and whether it will prejudice
the residents of that
residential area.
[24] It is clear
from the report from the designated police officer (filed in
accordance with Section 140 of the Act) that the issue
whether the
business will be carried on in a matter that would not disturb the
proceedings in that place of worship or school was
not considered by
him and he made no representations in that regard. This much is
evident from the fact that the issue was not
addressed in his report
at all.
[25] The reason for
the refusal that is provided by the First Respondent is limited only
to a token statement that the premises
is 300m away from two places
of worship and 500m away from a school. No indication is to be found
in the reasons furnished that
consideration was at all given to the
issue whether the business will be carried on in a manner that would
not disturb the proceedings
in that place of worship or school.
[26]
A cause of action for the judicial review of administrative action
now ordinarily arises from the provisions of the promotion
of
Administrative Justice Act, 3 of 2000 (“
PAJA
”
)
and not directly from the right to just administrative action in
Section 33 of the Constitution.
1
[27] The grounds for
judicial review on PAJA are contained in Section 6 thereof, which
reads in relevant part:
“
(1)
any person may institute proceedings in a Court or a tribunal for the
judicial review of an administrative action.
(2) a Court or
tribunal has the power to judicially review and administrative action
if -
(a)
(b) a mandatory
and material procedure or condition prescribed by an empowering
provision was not complied with;
(c) the action
was procedurally unfair;
(d) the action
was materially influenced by an error of law;
(e)the Action was
taken -i.
iii. because
irrelevant considerations were taken into account or relevant
considerations were not considered;
vi. arbitrarily
or capriciously;
(f)
the action itself
-
i.
ii.
is not rationally connected to -(aa)
......
(bb) The purpose
of the empowering provision
(g)
........
(i) the action is
otherwise unconstitutional or unlawful. ”
[28]
It is apparent from Section 6 that unfairness in the outcome or
result of an administrative decision is not, apart from the
unreasonableness ground, a ground for judicial review of
administrative action. The section gives legislative expression to
the
fundamental right to administrative action that is lawful,
reasonable and procedurally fair under Section 33 of the
Constitution.
It is a long-held principle of our administrative law
that the primary focus in scrutinising administrative action is on
the fairness
of the process, not the substantive correctness of the
outcome.
2
[29] I return to
dealing with the facts.
[30] The adoption of
the policy in August 2011 not to permit liquor businesses within a
500m radium from churches and schools and
the applying of that policy
on the present application renders the administrative decision to
fall foul when scrutinised in terms
of PAJA, for the following
reasons:
(i) It was
procedurally unfair (as contemplated by Section 6(2)(c) of PAJA);
(ii) it was
materially influenced by an error of law (as contemplated by the
provisions of Section 2(d) of PAJA).
(iii) it was taken
for a reason not authorised by the empowering provision (as
contemplated by Section 6(2)(e)(i) of PAJA);
(iv) It was taken in
circumstances that irrelevant considerations were taken into account
(as contemplated by the provisions of
Section 6(2)(e)(iii) of PAJA);
(v) it was taken
arbitrarily and capriciously (as contemplated by the provisions of
Section 6(2)(e)(vi) of PAJA) and;
(vi) the action is
accordingly otherwise unlawful (as contemplated by the provisions of
Section 6(2)(i) of PAJA.
[31] The evident
failure by the First Respondent to at all consider and take into
account whether the business will be carried on
in a manner that
would not disturb the proceedings in the places of worship or school
in the vicinity also renders the administrative
decision to fall foul
if scrutinised in terms of PAJA, for the following reasons:
(i) it did not
comply with the mandatory and material condition prescribed by the
empowering provision (Section 22 of the Act) and
accordingly in
contravention of the provisions of Section 6(2)(d) of PAJA.
(ii) relevant
considerations were not being considered (as contemplated by the
provisions of Section 6(2)(e)(iii) of PAJA) and this
failure caused
the decision not to be rationally connected to the purpose of the
empowering provision, namely to establish whether
the granting of a
licence in respect of a premises situated in the vicinity of a place
of worship or school would cause a business
to be carried on in a
manner that would disturb the proceedings in that place of worship or
school (as contemplated by the provisions
of Section 6(2)(f)(ii)(bb)
of PAJA.).
[32]
It follows from the aforesaid that the decision of the First
Respondent not to grant to the Applicant a special on-consumption
liquor licence (eating house) in respect of the premises is liable to
be reviewed and set aside. Once a ground of review under
PAJA has
been established there is no room for shying away from it.
3
[33]
Section 172(l)(a) of the Constitution of the Republic of South
Africa, 108 of 1996 requires the decision also to be declared
unlawful.
4
[34]
The consequences of a declaration of unlawfulness must then be dealt
with in a just and equitable order under Section 172(l)(b).
Section 8
of PAJA gives detailed legislative content to the constitutions “just
and equitable” remedy.
5
[35]In the result
the following order is made:
1. The decision
not to grant to the Applicant a special on-consumption liquor licence
(eating house) in respect of the premises
described as Matimo Eating
House, situated at F220 Boltman B, Madonsi Village, Malamulele is
declared invalid and it is reviewed
and set aside;
2. The
application for the granting of a special on-consumption liquor
licence (eating house) in respect of the premises described
as Matimo
Eating House, situated at F220 Boltman B, Madonsi Village, Malamulele
is referred back to the First Respondent with the
direction to
specifically consider whether the premises is situated in the
vicinity of a place of worship or school and whether
the business to
be conducted from the premises will be carried on in a manner that
would not disturb the proceedings in that place
of worship or school;
3. The First
Respondent is directed to consider the application for the granting
of a special on-consumption liquor licence (eating
house) in respect
of the premises described as Matimo Eating House, situated at F220
Boltman B, Madonsi Village, Malamulele within
a period of 60 (sixty)
days from the date of granting of this order and to communicate the
decision to the Applicant within a period
of 60 (sixty) days from the
date of the granting of this order, together with full and
comprehensive reasons for the decision.
4.
The First Respondent is ordered
to pay the costs.
SIGNED AT PRETORIA
ON THIS 14 DAY OF MARCH 2014.
Cilliers, AJ
Acting Judge of the
High Court of South Africa Appearances:
For Appellant: Adv.:
C J Welgemoed
Instructed by: Mr M
Blom
For Respondent:
Adv.: Z Z Matebese
Instructed by: State
Attorney: Mr L Kopman
1
Mazibuko
and Others v City of Johannesburg and Others 2010 (4) SA (CC) at para
73; Bato
Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA
490
(CC) at paras 25-26.
2
Allpay
Consolidated v Chief Executive Officer, SASSA
2014 (1) SA 604
(CC) at
620-621, para 42.
3
Allpay
Consolidated v Chief Executive Officer, SASSA (supra) at p 164, para
[25].
4
Allpay
Consolidated v Chief Executive Officer, SASSA (supra) at p 164, para
[25].
5
Allpay
Consolidated v Chief Executive Officer, SASSA (supra) at p 164, para
[25] and the authorities in footnote 19.