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[2014] ZAGPPHC 142
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Masstores (Pty) Ltd v Minister of Trade And Industry and Another (42943/12) [2014] ZAGPPHC 142 (2 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 42943/12
DATE:
02 APRIL 2014
In the matter
between:
MASSTORES (PTY)
LTD
.................................................................................
Applicant
vs
THE MINISTER OF
TRADE AND INDUSTRY
..............................
First
Respondent
THE NATIONAL
LIQUOR AUTHORITY
...................................
Second
Respondent
JUDGMENT
BAM J
1. On 24 July 2012
the applicant, served on the respondents a notice of an urgent
application, enrolled to be heard on 14 August
2012, for an interim
order authorizing the applicant to trade in liquor at two business,
MAKRO, Cape Gate, and MAKRO, Bloemfontein.
The applicant also prayed
for an order mandating the respondents to within 30 days finalise the
process in regards to the applicant’s
application in that
regard, in terms of the provisions of Section 16 of Act 59 of 2003.
2. Before the
hearing of the matter the respondents, on 7 August 2012, furnished to
the applicant’s attorneys the required
documentation. It
appears that the consent required by the applicant was granted
already on 3 August 2012.
3. The respondents
were apparently not aware that the required documentation was granted
by the officers concerned with the applicant’s
application in
that the respondents’ answering affidavit was in any event
filed on 6 August 2012.
4. Consequent upon
having received the required consent the applicant’s attorney
filed a Notice of Removal of the application
on 8 August 2012. It was
agreed that the issue of costs could be addressed at a later stage,
hence this application.
5. On behalf of the
applicant it was submitted by Ms Pretorius that the respondents
unduly delayed their decision to grant consent
to the applicant as
requested, thereby forcing the applicant to lodge the urgent
application.
6. The following
facts are relevant:
(i) The applicant
lodged its application in terms of the provisions of
section 16
of
the
Liquor Act, No. 59 of 2003
on 21 February 2012;
(ii) Receipt of the
application was acknowledged by the second respondent on 24 March
2012.
(iii) On 29 May, 2
July and 10 July 2012, the applicant’s attorneys addressed
Emails to the second respondent enquiring about
the finalization of
the application;
(iv) On 10 July 2012
the applicant’s attorneys stated in their Email that their
client was not amenable to wait “forever”
and threatened
with an application to the High Court which they undertook to hold
over until 20 July 2012;
(v) On 18 July 2012
the first respondent responded stating that the application had ‘been
evaluated and escalated for processing”.
(vi) On 24 July
2012, after no further response from the respondents, the applicant
lodged his application.
7.
Section 16(4)
of
the
Liquor Act provides
that the Minister has to notify an applicant
within 30 days that the Minister will review the conditions of
registration or that
the Minister has accepted the proposed changes.
8. It is further
common cause that the respondents did not respond to the applicant’s
application and only granted the applicant’s
application after
expiration of about 5 ½ months upon the receipt of the
applicant’s application.
9. It was submitted
by Mr Mphaswane, appearing on behalf of the respondents that the
applicant’s application of 14 August
2012 was not urgent at all
and for that reason the respondents should not be ordered to pay the
costs.
10. The application
in terms of
section 16
of the
Liquor Act merely
entailed the adding
of two further addresses as depots to the applicant’s existing
registration from where the applicant
could trade in liquor.
11. It is common
cause that a period of 5 ½ months expired before the
respondents informed the applicant of the approval
of its
application.
12. However it is
also common cause that on 18 July 2012, 6 days before the applicant
served its urgent application on the respondents
on 24 July 2012, its
attorneys was notified by the respondents that the application had
been “evaluated and escalated for
processing”. The
application was granted on 3 August and the applicant informed on 7
August.
13. It appears that
the applicant appreciated that the granting of the application was a
foregone conclusion although certain conditions
could have been
added.
14. The applicant’s
case for urgency was based on the allegation that it was prejudiced
by the delay in view of the fact that
the opening of the two Makro
stores in question were scheduled for September and October 2012, and
“not being able to ‘open
with liquor” will be
extremely prejudicial to the applicant.”
15. In the Email of
2 July 2012, referred to above, the respondents were alerted to the
fact that the applicant intended to open
the said two stores in
“August and September”.
16. The Email of 18
July 12 addressed to the applicant’s attorneys, although
indicative of the fact that the application was
receiving attention,
did not state when the applicant could have expected finalization
thereof, and did clearly not allay the applicant’s
concerns.
17. Although the
applicant, in my view, would not have succeeded with the relief
sought in prayer 2 of the urgent application, the
applicant was in
the circumstances entitled to lodge an urgent application for the
relief sought in prayer 3 - an order directing
the respondents to
finalise the process in regards to the
section 16
application within
30 days.
18. As alluded to
above the applicant removed the urgent application from the court
roll 6 days before the hearing. The applicant
is therefore only
entitled to the costs for the preparation and enrollment of the
application.
19. The respondents
were clearly not amenable to tender or pay any costs to the applicant
and the applicant was subsequently forced
to apply for the awarding
of costs in this court. This is however not a case where penalty
costs should be awarded. It cannot be
found that the respondents,
despite the relatively long delay of 5 1/2 months before finalizing
the applicant’s application,
were mala fide or negligent in any
respect.
20. Accordingly the
following order is made;
The respondents are
ordered to pay to the applicant:
(i) The costs
incurred by the plaintiff for drafting and enrolling the urgent
application on 14 August 2014.
(ii) The costs of
this application.
A J BAM JUDGE OF
THE HIGH COURT
28 March
2014