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[2013] ZAGPPHC 138
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Pick n Pay Retailers (Pty) Ltd v Gauteng Provincial Liquor Board and Others (47571/12) [2013] ZAGPPHC 138 (31 May 2013)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER:
47571/12
DATE:31/05/2013
In the matter between:
PICK N PAY RETAILERS
(PTY) LTD
…...........................................
Applicant
And
THE GAUTENG PROVINCIAL
LIQUOR BOARD
.........................
1st
Respondent
THE CHAIRPERSON OF THE
GAUTENG
PROVINCIAL LIQUOR
BOARD
.....................................................
2nd
Respondent
MAPILELA BEER
DISTRIBUTORS
..............................................
3rd
Respondent
JUDGMENT
RATSHIBVUMO AJ:
1. The applicant brought
an application to have the decision by the first respondent reviewed
and set aside. An order is further
sought for the court to grant the
applicant the liquor store licence, authorising it to deal in liquor
pending the issue of the
licence by the respondent, and ordering the
respondent to issue the said licence. The application is brought in
terms of sec 5,
6 and 8 of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA). Only the first and the second respondents
oppose the application.
2. The relevant
background facts are that the applicant, a well-established chain
store in South Africa, applied for a liquor store
licence (the
licence) for a business to be known as Pick n Pay Liquor store,
Westgate, to be situated at Westgate Regional Shopping
Centre,
Roodepoort, on 1 October 2010. The said application was refused by
the first respondent, a statutory body established in
terms of
section 2 of Gauteng Provincial Liquor Act 2 of 2003 (the Act). This
decision was set aside following a court order granted
on 2 June 2011
after a settlement between the applicant and the first respondent. In
terms of the order, the respondent was to
convene another meeting
wherein the applicant would be afforded an opportunity to argue its
case before the first respondent for
the application to be considered
afresh. This was done on 28 September 2011 and a decision to refuse
the application again was
communicated to the applicant in a letter
dated 3 July 2012. It is this decision that the application seeks to
have reviewed since
the earlier decision was set aside.
3. It is necessary to
observe the statutory provisions before unpacking the reasons
advanced in refusing the licence. It was submitted
that the decision
of the first respondent is reviewable in terms of sections 6 (2) (d),
(e) (iii), (e) (vi), (f) (ii) (cc) (f)
(ii) (dd) and (h) of PAJA,
which provide,
6 (2) A court
or tribunal has the power to judicially review an administrative
action if—
…
(d) the action was
materially influenced by an error of law;
(e) the action was taken
(iii) because irrelevant considerations were taken into account or
relevant considerations were not considered;
(vi) arbitrarily or
capriciously;
( f ) the
action itself—
…
(ii) is not rationally
connected to—
…
(cc) the information
before the administrator; or
(dd) the reasons given
for it by the administrator;
While the above statute
authorises the court to intervene and set aside an administrative
decision, the responsibility of the court
is not to determine if the
decision by the statutory body is right or wrong or whether it is the
decision the court would have
granted had the matter been before it;
but rather to determine if the decision was capriciously arrived at.
1
Unlike an appeal where the appeal body determines if the decision is
right or wrong, in review, the courts determine the process
of
arriving at such a decision.
2
4. Although reference was
made to the reasons given by the first respondent in refusing the
first application, I do not deem it
necessary to refer to such a
ruling since the first respondent conceded that those proceedings be
set aside which was done on 2
June 2011.
5. The reasons advanced
by the first respondent are that the granting of a licence to the
applicant would not be in the public interests
since the possibility
exist that it could cause harmful monopolistic condition to arise.
Central to the decision to refuse the
licence was the passage quoted
by the respondent from the affidavit presented by the applicant
before the first respondent in the
application for the said licence
where it said, “[t]he applicant encloses in the papers, a copy
of a tenant list of all the
tenants in the shopping centre which
gives a good idea of the nature of the shopping centre. The existing
liquor store in the shopping
centre will be granted to the applicant.
Accordingly there will not be two liquor stores in the centre, but
only one.” This
passage had been quoted by the third respondent
in its objection against the granting of the licence; and was
re-quoted in the
ruling of the first respondent.
6. In its ruling, the
first respondent referred to the two objections raised by the third
respondent. The only objection that the
first respondent gave some
weight and considered in making its decision refers to the passage I
quoted above made by the applicant.
In summarising the objection, the
first respondent wrote,
“the Objector
contends that it had been operating from the same premises and to
allow the Applicant’s application to
succeed will effectively
lead to him closing the doors… He relies on this view by
virtue of the letter from the Landlord
and the evidence placed before
the Board to the effect that once the Applicant’s application
is approved, the Objector’s
lease will come to an end. As a
matter of fact as common cause between the Applicant and the
Objector, the owners of the Shopping
Centres are merely awaiting the
Board’s decision whether the applicant will receive the
licence, subsequent to which the
Objector ‘s lease will come to
an end.” The following quote is from the letter sent to the
applicant referred to above,
“It is absolutely clear that if
the Board approves the Applicant’s application, the Applicant
will enjoy total liquor
share market within the Westgate Shopping
Centre. In considering the above, cognizance must be given to the
fact that the applicant
has already been licenced by the Board to
sell Grocers’ Wine in the same Shopping Centre.” In
conclusion, the respondent
said “furthermore, bearing in mind
that the Applicant, if its application were to be granted will
inevitably be the only
liquor outlet in the Shopping Centre, the
monopolistic situation is likely to arise as barriers to entry would
be too high.”
7. The first respondent
derives its authority from the Act as pointed out above, and the
applicant submitted that the decision by
the respondent was
materially influenced by an error of law. Where a relevant
legislation provides the grounds upon which the grant
of a licence
may be refused, it cannot be refused on any other ground.
3
For that reason, the aspects that the Board should look at in
considering applications for liquor licences are hereby revisited.
Section 30 of the Act provides as follows,
(1)
An application for a licence shall be considered by the local
committee and referred to the Board with recommendations whereafter
the Board shall consider the application, and it may -
(a)
refuse the application; or
(b)
grant the application.
(2)
The Board shall grant an application for any licence if -
(a)
the premises are or will, on completion, be suitable for the purposes
for which they will be used under the licence;
(b)
the applicant concerned is of good character and is otherwise fit to
be the holder of the licence;
(c)
the granting of the licence is in the
public interest;
(d)
the possibility does not exist that the granting of the application
may cause a harmful monopolistic condition to arise or be
aggravated;
or
(e)
the premises, accommodation, equipment and facilities in respect of
which the
licence
is to be issued are, or will be, if the applicant is licenced, in
compliance with this Act and regulations.
(3)
The Board shall grant an application in the case of premises not
situated
- Own emphasis.
8. What is clear is that
the Act empowers the Board to grant the licence if it is in the
public interests and a possibility does
not exist that the granting
of a licence may not cause a harmful monopolistic condition to arise
or be aggravated, a reason raised
by the first respondent in refusing
the application. In refusing the application the applicant relied
heavily in the affidavit
presented by the applicant in ruling that
the granting of a licence could give rise to a monopolistic
condition. What is interesting
is the turnabout by the applicant’s
counsel in the heads of argument when she alleges that her client is
clearly mistaken
in making the allegation to the effect that his
store would be the only one trading in liquor in the shopping centre.
9. The concern I raised
with both counsel was whether the first respondent was informed by
the applicant before making a decision
that such allegations were not
true and were made out by mistake. The reason I raised this is it
would be undesirable for the courts
to review decisions taken based
on affidavits which are only retracted during a review, without even
a confirmatory affidavit by
the applicant to that effect. The
applicant’s counsel could not respond because she was not
involved in the application before
the second respondent. The
defence’s counsel was able to clarify the position saying the
position alleged in the affidavit
by the complainant remained
unchanged until the ruling was made.
10. The first respondent
did not know that the applicant distances himself with what he
alleged in the affidavit either because
of a mistake or any other
reason. In answering this query the first respondent went further to
hand in heads of argument prepared
for the applicant at a hearing
before the first respondent.
4
The last page (Exhibit A4) is a letter wherein the Westgate Regional
Shopping Centre Leasing Manager confirms in writing that the
applicant has entered into a 15 year Lease Agreement with Westgate
Regional Shopping Centre commencing 1 March 2011 which is conditional
upon the applicant obtaining a liquor licence for the centre and that
they will replace the current liquor store trading under
Westgate
Hyper Liquor. The letter goes on to stipulate that upon approval of
the applicant’s licence, the Westgate Regional
Shopping Centre
will provide Westgate Hyper Liquor with one calendar month notice to
vacate.
11. The importance of the
letter is not to prove the agreement entered into between the
applicant and Westgate Regional Shopping
Centre; that could only be
necessary if the court was sitting as an appeal body. The importance
thereof is to show that the information
provided before the court is
different from that presented before the first respondent. What now
emanates is how it can now be
argued that the applicant was mistaken
while its affidavit and the letter from Westgate Regional Shopping
Centre confirm the contrary.
12. The first respondent
was given evidence under oath in a form of an affidavit, but the
applicant’s counsel wants the court
to discard that evidence
irrespective of the fact that there is no other affidavit by the
application wherein he rectifies the
allegations contained in the
affidavit. If a review is to be successful it should easily deviate
from what was presented before
the administrative body, especially on
allegations of this magnitude which gave rise to a decision by the
first respondent to refuse
the application for the licence. When a
party is allowed to present that which was not present before the
administrative body,
a satisfactory explanation may have to be given
as to why the same was not presented for consideration before the
said body. No
explanation was given in this case.
13. In an attempt to
remedy the situation the applicant’s counsel argues that the
first respondent was in any event aware
of the true factual situation
since the third respondent clarified it. But I am of a view that the
first respondent was given two
conflicting views, being that of the
applicant and the other one from the third respondent based. The
letter by Karin Burton, the
Westgate Regional Shopping Centre Leasing
Manager may have served as guidance on what the true version could
be. It was the first
respondent’s discretion on whose version
to believe.
14. It follows therefore
that I am not persuaded that the first respondent acted outside of
the authority conferred by the Act.
There is no basis to hold that
the decision to refuse the application for liquor store licence was
taken because irrelevant considerations
were taken into account or
relevant considerations were not considered; that it was taken
arbitrarily or capriciously; or that
the action itself is not
rationally connected to the information before the first respondent;
or the reasons given by it.
15. I therefore make the
following order:
The application is
dismissed with costs.
________________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES:
Date Heard: 08 May
2013
Judgment Delivered: 31
May 2013
For the Applicant: Adv.
ML Pretorius
Instructed by: Couzyn,
Hertzog & Horak
Pretoria
For the Respondents: Adv.
D Mtsweni
Instructed by: The Sate
Attorney
Pretoria
1
See
Shidiack v Union
Government (Minister of Interior)
1912
CPD 656
and
South African Railways v
Swanepoel
1933 AD 370
2
Rustenburg Platinum Mines Ltd
(Rustenburg Section) v CCMA & others
[2006] 11 BLLR 1021
(SCA
) at para
30.
3
Foxcroft v Bloemfontein Licence Certificate
Board
1921 OPD 149
4
See Exhibit A1-4.