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[2014] ZAGPPHC 176
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Robinson Liquors (Pty) Ltd and Others v Minister of Trade And Industry and Another (70282/12) [2014] ZAGPPHC 176 (4 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 70282/12
DATE:
04 APRIL 2014
In the matter
between:
ROBINSON LIQUORS
(PTY) LTD
.................................1
ST
APPLICANT
PENTAFLOOR
CC
..........................................................
2ND
APPLICANT
SINTAM
INVESTMENTS
............................................
3RD
APPLICANT
.
CANDRO TRADE
(PTY) LTD
.......................................
4™
APPLICANT
MPS HOLDINGS
CC
.....................................................
5™
APPLICANT
WHITE RIVER INT
LIQUOR (PTY) LTD
..................
6™
APPLICANT
BRAND IT
MARKETING (PTY) LTD
.......................
7™
APPLICANT
And
THE MINISTER OF
TRADE AND INDUSTRY
................................
1ST
RESPONDENT
THE NATIONAL
LIQUOR AUTHORITY
........................................
2ND
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 4
April 2014 Heard on: 19 March 2014
HUGHESJ
1. This is an
application where the applicants seek a mandamus order to compel the
respondents to consider and make a decision of
their various
applications brought under this case number.
2. The number of
applicants in this matter totals seven and each applicant has an
application wherein it seeks the respondent to
comply with the duties
that it alleges the respondents have failed to do by virtue of the
various sections of the Liquor Act, Act
59 of 2003 (“the Act”)
and its regulation.
3. When the matter
was heard it transpired that the respondents had in fact complied
with the second to the seventh applicants request
and there was no
need for this court to address those claims. The only issue that hung
in the balance in terms of those claims
was the issue on costs as the
applicants were of the view that since there was a delay on the part
of the respondents in attending
to that which was necessary they were
duly entitled to their costs.
4. As regards the
first applicant its claim had been attended to in part and it wished
of this court to compel the respondents to
comply with that which
they had failed to attend to.
5. I propose to deal
with the issue of costs of the second to the seventh applicants and
then to move on to the first applicants
contentious application.
6. Advocate
Pretorius represented all seven applicants while Advocate Phaswane
represented the respondents. Ms Pretorius argued
that time had
evolved and the second to the seventh applicant’s matters had
eventually been dealt with,
the only aspect she
was concerned about was that of costs, due to the respondent’s
delay in attending these applicant’s
matters.
7. Ms Pretorius
further argued that the in ordinate delay in the respondents
attending to these matters, that being more that 180
days, was
inexcusable and warranted that the respondents be directed to pay the
costs. These costs were to include the reservation
costs of 18
February 2013, when the matter was postponed, by consent, for the
respondents to file their answering affidavit and
the costs were
reserved. She urged this court to issue an order directing the
respondents pay costs in solidum with each other,
the one to pay the
other to be absolved.
8. Mr Phaswane on
the other hand, argued that the delay was not totally the fault of
the respondents. He submitted that after the
applicants lodged their
applications, the respondents requested compliance of one thing or
another and the applicants took their
time in reverting. Thus the
delay was not solely that of the respondents. He urged the court to
consider that the wheels of response
within the hierarchy of the
respondents took time to turn. In this instance each party should pay
their own costs and as regards
the reservation fees for 18 February
2013 he coutd not take the matter any further as he had not been on
brief and had no instructions
regarding same.
9. I will return to
the question of costs.
10. Turning to deal
with the first applicants matter. This application was lodged on 8
February 2010 and the first applicant, in
terms of section 16 of the
Act, sought to add six additional addresses and also sought to
relocate the main registered address
of the first applicant. The
requests of the first applicant were completed on one application.
11. The respondents
granted the addition of the six addresses as requested in terms of
section 13(3) (b) of the Act read with section
16(3) of the Act. The
relocation in terms of section 16(3) that the first applicant sought,
the first applicant alleges that the
respondent refused to consider
this request.
12. A refusal letter
dated 11 December 2011 from the Deputy-General of the Department of
Trade and Industry was sent to the first
applicant for easy reference
I set out the pertinent portion thereof below:
“The National
Liquor Authority has approved the application filed on the 08th
February 2011 to alter the registered premises
and include 6
additional proposed depots.
Please be advised
that the relocation has not been considered on the basis that a
separate form was not attached and no payment
was made for the
application. You are advised to file an application should you wish
to relocate from the registered premises..."
13. The simple
refusal of the respondents is that in terms of section 16(3) two
separate, form NLA14, and two separate payments
were necessary if one
wanted to conduct two transactions, that being the alteration and the
relocation. In this instance the first
respondent had only completed
one form and paid one fee for the two separate transactions.
14. The
non-determination of the matter to relocate was not considered
because of the factor above. The respondents submitted that
they were
just complying with the requirements of the Act, that is section
16(3), which reads as follows:
“(3) A
registrant must notify the Minister in the prescribed manner and
form if it proposes
to-
(a) Relocate any of
the activities authorised under its certificate of registration; or
(b) Alter the nature
or conduct of any of those activities, in a manner that differs in a
material way from that specified in its
application for
registration”.
15. Ms Pretorius
argued that there was no merit in the respondent’s argument
that a separate application should be filled
out for the relocation
of the first applicant to be considered. The respondents had failed
in performing their duties in not considering
the application of the
first applicant. They had a duty to consider the application, and
thereafter refuse or accept the application.
They could not refuse to
consider the application.
16. On an
examination of section 16(3) I note that one needs to “notify
the Minister”, as was done by the first applicant.
This
notification must be done “in the prescribed manner and form”;
the form was duly completed by the first applicant.
However the
respondents submit as the relevant section makes provision for one to
embark on two possibilities, then if one embarked
on both
possibilities, two forms would need to be completed. The respondents
submit that this is evident in the wording of the
section by the use
of “or”.
17. I disagree that
section 16(3) requires two forms to be completed because of the use
of “or” in the section.
18. It is evident
that in the context that the word “or” appears in the
section it clearly denotes ‘and’.
Thus if you proceeding
with a relocation as in section 16(3) (a) ‘and/or’ with
an alteration as in section 16(3)(b),
one would need to notify the
Minister in the prescribed manner and form. Refer to Principles of
legal interpretation of statutes,
contracts & wills by E A
KELLAWAY at page 77:
“The word “or”
may not only indicate an alternative, “...but it is frequently
used conjunctively to read
‘and’ or mean ‘and/or’.”
See S v Heita
1987 (1) SA 311
(SWA) at 323:
“In isolation,
the meaning of the word 'or' requires no comment. It indicates an
alternative, 'the one or the other', that
is, it is disjunctive. This
indeed is its ordinary and accepted meaning and Courts of law would
be slow to depart from it. However
when 'or' is used in legislation,
it is frequently used conjunctively to mean 'and' or to mean
'and/or'. Maxwell on Interpretation
of Statutes 12th ed at 232 says:
'In ordinary usage,
"and" is conjunctive and "or" is disjunctive. But
to carry out the intention of the Legislature,
it may be necessary to
read "and" in place of the conjunctive "or" and
vice versa.'
In R v La Joyce
(Pty) Ltd and Another 1957(2) SA 113 (T) at 116 Dowling J said:
7 think that the
cases show that the Courts should be slow to depart from the literal
meaning of words especially where there is
no ambiguity. The
authorities, however, show that the Courts are not so slow to read
"and" for "or" or "or"
for "and"
in cases where such a course appears better to give effect to the
obvious intention of the Legislature and
the scheme of the Act.
19. Thus if the
notification to the Minister was in the prescribed manner and form in
order to grant the alterations application,
it stands to reason that
it should have been in order to grant the relocation application.
Nowhere in the section that the respondents
rely on do I find that it
prescribes that one needs to fill in two separate forms and pay two
separate fees. If this was the intention
it would have been indicated
in the relevant section of the Act.
20. In the
circumstances the respondents are to consider the application of 8
February 2010 which was submitted in terms of section
16(3) (a).
21. In my view the
postponement and the costs reserved of 18 February 2013 were as a
result of the respondents having failed to
file their answering
affidavit and as such the respondents were granted the indulgence to
do so, they should pay for those wasted
costs.
22. As regards the
costs relating to the second to seventh applicant I believe that both
parties were responsible for the delays
that arose in the
finalisation of those applications and thus the proper order in these
instances is that each party pay their
own costs for those
applications.
23. The first
application to my mind is rather different from the others, as the
respondents were under the impression that they
were complying with
section
16 (3) of the Act.
In this instance they were not advised correctly and have to stand
and fall by the advice obtained. The costs
with regards to the first
applicant will follow the result.
24. Accordingly I
make the following order;
24.1 The respondents
are ordered to consider and decide the notification in respect of the
change of address of the main registration
of the first applicant
(Robisson Liquors (Pty) Ltd t/a Ultra Liquors Kew (Registration
Number: RG0002949)) from Ultra Liquors Kew,
168 10th Avenue, Kew,
district of Johannesburg to Corlett Drive, 583 - 585 Louis Botha
Avenue, corner Corlett Drive, Bramley, district
of Johannesburg,
within 1 (one) month from the date of this order.
24.2 The respondents
are ordered, in solidum with each other, the one to pay the other to
be absolved, to pay the costs of the 1st
applicant’s
application including the costs reserved on 18 February 2013.
W. High Judge of
the High Court
Delivered on: 4
April 2014
Heard on: 19
March 2013
Attorney for the
Plaintiff:
COUZYN, HERTZOG &
HORAK
321 Middel street
Brooklyn
PRETORIA
Tel: 012 460 5090
Ref: M
Blom/bb/ROB55/0005
Attorney for the
Defendant:
THE STATE
ATTORNEYS
Ground Floor
SALU Building
255 Francis Braad
Street
PRETORIA
Tel: 012 309 1540
Ref: J.
Matladi/10204/12/Z36/mf
m