Brief Summary

Administrative Law — Mandamus — Application for tavern registration certificate — Applicant sought to compel the Free State Gambling and Liquor Authority to consider his application after delays in obtaining necessary reports from SAPS and municipality — Respondents argued they were not at fault for the delay — Court held that the respondents failed to take a decision within a reasonable time as required by the Liquor Act, warranting an order for mandamus to compel them to consider the application.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a motion application in the Free State Division of the High Court, Bloemfontein, comprising two forms of relief. The first was an application in terms of Rule 6(15) of the Uniform Rules of Court to strike out portions of the respondents’ answering affidavit alleged to be scandalous, defamatory, abusive, and/or irrelevant. The second was a substantive application for mandamus-type relief directing the respondents, as the provincial liquor authority and its chairperson, to consider and decide the applicant’s application for a tavern registration certificate within a specified period.

The applicant was Johannes Jacobus Frederik Reinecke. The first respondent was the Free State Gambling and Liquor Authority, cited as the statutory authority responsible for managing and controlling liquor matters in the province. The second respondent was the Chairperson of the Free State Gambling and Liquor Authority, cited because the chairperson was responsible for signing registration certificates.

The procedural history arose from the applicant’s lodging of a tavern registration application on 7 March 2014, subsequent delays related to obtaining statutory reports from the South African Police Service (SAPS) and the Mangaung Metropolitan Municipality, and the eventual launching of these court proceedings on 25 July 2014. After the respondents filed answering papers on 11 September 2014, the applicant brought a separate interlocutory application to strike out specified paragraphs in the answering affidavit.

The general subject-matter was administrative delay in the processing of a liquor registration application under the relevant provincial legislation and regulations, coupled with the propriety of personal allegations made against the applicant’s legal representative in the respondents’ papers.

2. Material Facts

On 7 March 2014, the applicant lodged an application with the first respondent for a tavern registration certificate relating to premises at Erf 13017, Shop No. 13B, Brandwag Centre, at the corner of Nelson Mandela and Melville Rylane, Brandwag, Bloemfontein. The application was made under section 27 read with section 31 of the Free State Gambling and Liquor Act 6 of 2010.

After receipt of the application, the first respondent requested the statutorily required reports from SAPS and the municipality in terms of section 31(3) of the Act and the applicable regulations. Second requests were sent on 15 April 2014. It was common cause before the court that SAPS and the municipality were legally obliged to compile and provide the requested reports within the periods prescribed by the regulations, and that those reports were prerequisites for the consideration of the application.

On 14 May 2014, the applicant’s attorney wrote to the first respondent enquiring about the outstanding reports. On 16 May 2014, the first respondent responded by providing a SAPS letter dated 2 April 2014 stating that SAPS visited the proposed premises on that date, but found the premises empty with nobody available to provide the required information.

The applicant’s attorney subsequently addressed further correspondence to the first respondent on 13 June 2014 and 10 July 2014, placing the first respondent on terms and calling on it to take firmer steps with SAPS and the municipality in relation to the outstanding reports.

On 25 July 2014, the applicant launched the present proceedings seeking an order compelling the respondents to consider his tavern registration application within a stipulated period and to notify him of the decision, together with punitive costs.

After the litigation commenced, the municipality delivered a letter dated 4 August 2014 stating that the building plans attached to the applicant’s application were not approved, and the applicant’s attorney was notified by email on 8 August 2014. The applicant then furnished approved building plans on 12 August 2014, while also expressing views on whether that requirement was applicable in the circumstances.

In the answering affidavit delivered on 11 September 2014, the respondents included paragraphs alleging that the applicant’s attorney was deliberately misleading the court, intellectually dishonest, disingenuous, and had intentionally withheld material facts, and they sought a punitive costs order de bonis propriis against him. These allegations were disputed by the applicant, who contended that the founding papers contained the relevant history and that the allegations were unsupported and prejudicial. This dispute gave rise to the application to strike out specific paragraphs of the answering affidavit.

As to the administrative delay, the respondents contended that they had done what they could to obtain the SAPS and municipal reports, that the matter was not ripe until the reports were received, and that the applicant had contributed to the delay by not taking steps after learning SAPS could not access the premises and by not providing approved building plans timeously. The court treated the statutory and regulatory reporting timeframes and the respondents’ conduct in response to delay as central to whether the delay was unreasonable.

It was placed before the court (and treated as undisputed) that by 3 October 2014 the respondents furnished the relevant reports to the applicant, and that the applicant replied to them on 9 October 2014, which was relevant to the appropriateness and framing of the relief.

3. Legal Issues

The first central legal question concerned the Rule 6(15) striking-out power: whether the identified paragraphs of the answering affidavit were scandalous, vexatious, or irrelevant, and whether the applicant would suffer prejudice if they were not struck out. This dispute primarily concerned the application of the Rule 6(15) standard to the content of the impugned allegations and to the evidential basis (or lack thereof) for those allegations on the papers.

The second central question was whether the respondents had unreasonably delayed in taking a decision on the applicant’s tavern registration application, thereby justifying an order compelling them to determine it within a defined period. This question involved a mixed enquiry of law and application of law to fact, including the significance of the prescribed regulatory timeframes for obtaining reports, the absence of a statutorily prescribed time for final determination, and whether the respondents’ explanation for the delay was adequate.

A further associated issue arose as to whether SAPS and the municipality needed to be joined, and how the constitutional principle discouraging intergovernmental litigation bore on the respondents’ stance. This implicated principles of necessary joinder (direct and substantial interest) and constitutional governance norms, applied to the particular procedural setting.

4. Court’s Reasoning

Striking out under Rule 6(15)

The court approached the striking-out application on the basis common cause between the parties: for relief under Rule 6(15), the applicant had to show that the impugned matter was scandalous, vexatious, or irrelevant, and that failure to strike it out would cause prejudice. The court expressly relied on the approach stated in Vaatz v Law Society of Namibia 1991 (3) SA 563 (NM).

The court identified the content of the impugned paragraphs as asserting, in substance, that the applicant’s attorney was deliberately misleading the court, had consciously withheld facts, was acting with a view to obtaining an unfair advantage, was intellectually dishonest or disingenuous, and that a punitive costs order de bonis propriis should be considered against him. The court then evaluated whether those assertions had any factual foundation in the record.

On the court’s assessment, there was no factual basis in the papers supporting the respondents’ conclusions regarding dishonesty, disingenuousness, or deliberate misleading conduct by the applicant’s attorney. The judge noted that, when invited to point to supporting material, counsel for the respondents was unable to identify evidence showing that the attorney had withheld relevant information or misled the court. To the contrary, the court found that the founding affidavit contained the material information that the respondents alleged had not been disclosed. In these circumstances, the court considered the allegations prima facie objectionable and treated them as defamatory and/or abusive toward an officer of the court, and therefore scandalous and potentially prejudicial.

In relation to paragraph 20 (which invited the court to “take a closer look” at the attorney’s cumulative conduct), the court reasoned that, while the paragraph might appear neutral in isolation, it was irrelevant to the primary issue and, in context, carried a potentially prejudicial insinuation that the attorney’s conduct warranted negative scrutiny. The court therefore treated this paragraph as both irrelevant and potentially prejudicial in context.

The court concluded that all the impugned paragraphs should be struck out on the basis that they were scandalous and/or irrelevant, and that they carried potential prejudice.

Mandamus compelling determination of the liquor application

The court proceeded from points it regarded as common cause. It accepted that the first respondent was obliged, as a prerequisite to determining the application, to request the SAPS and municipal reports, and that the institutions were required by law to compile and submit the reports within prescribed periods. The judgment referred to sections 31(3) and 31(4) of the Liquor Act and to the relevant regulatory scheme.

The court set out the regulatory timeframes, namely that the municipality should submit its report within 30 days, SAPS within 10 working days, and the liquor inspector within 10 working days from request; the reports must be provided to the applicant for comment, and the applicant has 14 working days to respond. The court treated these timeframes as important indicators of what would ordinarily constitute a reasonable administrative processing period, even though the legislation did not prescribe a specific time limit for the authority itself to decide the application.

The court also noted the definition of “administrative action” in section 1 of the Promotion of Administrative Justice Act 3 of 2000, including that it covers a failure to take a decision that adversely affects rights and has a direct external legal effect. The court further accepted that the Constitution encourages cooperative government and discourages litigation between organs of state, referencing section 41(1)(h) of the Constitution, while approaching that norm as part of the broader context of what steps were reasonably expected of the first respondent.

Against that framework, the court framed the decisive enquiry as whether, by the time the application was launched, there had been unreasonable delay by the respondents in determining the application, taking into account the prescribed timeframes for the reports. The court reasoned that if the statutory and regulatory timeframes had been followed, the application would have been ripe for determination within two months at most after lodging on 7 March 2014.

The respondents’ reliance on the absence of approved building plans was treated as not material to the reasonableness enquiry as at the launching of proceedings, because the building plan issue only emerged after the application was launched. The court reasoned that, if the municipality had complied with its 30-day timeframe, the defect would have been identified earlier. On that basis the building plan point did not, in the court’s view, justify the prior delay.

The court held that there had been delay relative to the prescribed report timeframes, with the consequence that the respondents bore an onus to explain it. The explanation offered—essentially that the first respondent had been waiting for the reports—was found wanting. The court considered it significant that the respondents’ papers did not demonstrate that the authority had escalated the issue to senior personnel within SAPS or the municipality or taken meaningful steps beyond sending second requests. The court also regarded it as material that the first respondent did not, in response to the applicant’s letters placing it on terms, communicate its challenges to the applicant in a way that might have facilitated practical steps to expedite the process (including, for example, addressing any access difficulties at the premises).

On the constitutional argument advanced in submissions that interdepartmental litigation is discouraged, the court held that the Constitution does not per se bar such litigation, and that litigation can remain available as a last resort in an appropriate case. However, the court’s key finding was that the respondents had not demonstrated adequate steps short of litigation to address non-compliance by SAPS and the municipality; on the papers, their response had been limited.

The court also dealt with joinder principles. Relying on Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA), the court reiterated that necessary joinder is required where a party has a direct and substantial interest that may be prejudicially affected by the judgment. It concluded that SAPS and the municipality did not have such an interest; they served as the “eyes and ears” of the authority and their role was to provide reports, not to assert rights that would be determined by the outcome. The respondents themselves did not advance a non-joinder defence.

Finally, the court considered appropriateness of relief in light of the later factual development that, by October 2014, the reports had been furnished and the applicant had responded. This supported an order directing the respondents to determine the application within a defined period from the judgment date.

Costs

On costs, the court considered punitive costs justified in both aspects of the matter. In the striking-out application, the allegations were directed at the applicant’s attorney (an officer of the court) without justification, and the court treated this as conduct warranting an expression of displeasure through an attorney-and-client costs order.

In the main application, the court also granted punitive costs against the first respondent, emphasising that the first respondent failed to respond to the applicant’s attorney’s letters placing it on terms, and that the respondents had not satisfactorily explained the undue delay.

5. Outcome and Relief

The court struck out paragraphs 3.1.6, 3.7, 4.2, 4.3, 8.1, 12.1 and 20 of the respondents’ opposing affidavit under Rule 6(15), and ordered costs of the striking-out application against the respondents on the attorney-and-client scale.

The court granted mandamus-type relief directing the respondents to determine the applicant’s tavern registration certificate application within one month from the date of the judgment and to advise the applicant immediately thereafter of the outcome.

The court ordered the first respondent to pay the applicant’s costs in the main application on the attorney-and-client scale.

Cases Cited

Vaatz v Law Society of Namibia 1991 (3) SA 563 (NM).

Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA).

Legislation Cited

Free State Gambling and Liquor Act 6 of 2010 (including sections 27, 31(3), and 31(4), with reference in the papers to section 32(3)).

Promotion of Administrative Justice Act 3 of 2000 (section 1 definition of “administrative action”, including failure to take a decision).

Constitution of the Republic of South Africa, 1996 (section 41(1)(h)).

Rules of Court Cited

Uniform Rules of Court (Rule 6(15)).

Held

The court held that the impugned paragraphs in the answering affidavit contained unsupported allegations impugning the integrity of the applicant’s attorney, were scandalous and/or irrelevant, and were potentially prejudicial. Those paragraphs were accordingly struck out under Rule 6(15), with punitive costs on the attorney-and-client scale.

The court held further that, although the liquor legislation did not prescribe a fixed period within which the authority had to determine the application, the application had to be determined within a reasonable time. Having regard to the statutory and regulatory report timeframes, the application should have been ripe for determination substantially earlier; the respondents’ explanation for the delay was inadequate, and the delay was unreasonable. A mandatory order compelling determination within one month was appropriate.

The court held that SAPS and the municipality did not have a direct and substantial interest requiring joinder, and that constitutional norms discouraging intergovernmental litigation did not amount to a bar, particularly where adequate non-litigious steps to ensure compliance were not shown on the papers.

LEGAL PRINCIPLES

The summary striking-out principle applied was that, under Rule 6(15), matter will be struck out where it is scandalous, vexatious, or irrelevant and where the applicant demonstrates prejudice if it remains. Unsupported allegations impugning an attorney’s integrity may be treated as scandalous and abusive, especially where no factual foundation exists on the papers.

In relation to administrative delay, the court applied the principle that where legislation does not specify a decision period, an application must be determined within a reasonable time under the common law. Statutory and regulatory timeframes governing prerequisite steps (such as the furnishing of reports) are relevant indicators when assessing the reasonableness of delay in finalising an administrative decision.

The court further applied the principle that a party must be joined to proceedings only where it has a direct and substantial interest that may be prejudicially affected by the judgment. Entities providing reports to an administrative authority, without a rights-bearing interest in the decision’s outcome, do not necessarily meet that threshold.

The court also applied the governance principle that, while the Constitution encourages organs of state to cooperate and to avoid litigation against one another, this does not constitute an absolute prohibition on intergovernmental litigation; it remains available as a last resort, and in any event does not excuse a failure to take reasonable steps to address non-compliance by cooperating institutions where that non-compliance causes undue delay.

Reinecke v Free State Gambling and Liquor Authority and Another (3402/2014) [2014] ZAFSHC 196 (30 October 2014)