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[2014] ZAGPPHC 147
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Masstores (Pty) Ltd v Minister of Trade and Industry and Another (42943/12) [2014] ZAGPPHC 147 (2 April 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
42943/12
DATE: 2/4/2014
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