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[2013] ZAKZPHC 50
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Madanjith v Department of Economic Development and Tourism and Another (9522/12) [2013] ZAKZPHC 50 (9 October 2013)
9
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO. 9522/12
In the matter between:
MAHADEW MADANJITH
..................................................................................
Applicant
and
THE DEPARTMENT OF ECONOMIC
DEVELOPMENT
AND TOURISM
.....................................................................................
First
Respondent
KWAZULU-NATAL LIQUOR BOARD
............................................
Second
Respondent
________________________________________________________________
JUDGMENT
delivered
on 09 October 2013
________________________________________________________________
STRETCH AJ:
[1] The applicant herein
applied for a liquor licence in terms of section 19 of the Liquor Act
27 of 1989 (the Act) with the second
respondent (the Board) who
operates under the control of the first respondent.
[2]
The Board refused
the application and subsequently advised the applicant
he was disqualified from being granted
a licence in terms of section 25(1)(b) of the Act.
[3]
The applicant seeks an order reviewing and setting aside these
findings, and thereafter either remitting the application to
the
second respondent (the Board) to proceed
de
novo
or
directing the Board to grant the licence.
[4] In terms of section
131 of the Act this court can only review the Board’s decision
if it is satisfied –
That
the Board exceeded its powers or refused to exercise a power which
it was obliged to exercise or exercised a power in an
arbitrary or
mala
fide
or
grossly unreasonable manner; or
Where a member of the
Board who was in terms of section 10 of the Act disqualified from
sitting on the Board, sat on the Board
in the consideration of the
matter in respect of which the decision was made.
[5] The applicant relies
on the following grounds in support of this application:
That one Ms Bassier not
only objected to the licence being granted as a member of the
Merewent Community Police Forum but also
signed the original minutes
of the Board meeting held on 13 January 2011 (where the application
was refused for lack of municipal
consent) thereby signifying that
she was present at the decision making process. The applicant
contends that this type of conduct
is clearly irregular.
That the objections
which were ultimately raised against the granting of the licence
should have been heard before the application
was refused for the
first time.
That the objections
raised were out of time which is why Captain Naidoo (being the
designated police officer in terms of section
140A of the Act)
recommended that the licence ought to be granted.
That the Board’s
conduct, in refusing the application for want of municipal consent,
and in thereafter advising the applicant
that his application was
also heavily objected to by members of the community, and only then
convening an objections hearing
(in terms of section 11 of the Act),
is grossly irregular.
That the evidence of
Naidu and Shaik (who testified at the hearing on behalf of certain
objectors) ought not to have been relied
on.
That the Chair was
clearly biased in favour of the Board and that she had adopted a
dual role of presiding officer and prosecutor.
That the information on
which the Board had based its finding that the applicant was
disqualified to hold a licence in terms of
section 25(1)(b) of the
Act (namely that the applicant had paid five admission of guilt
fines for dealing in liquor without a
licence, and a sixth fine
after he had attended the objection hearing) was not before the
panel at the time when the hearing
was held.
[6] I do not, for
purposes of this judgment, intend dwelling on the first six grounds
raised. In my view, none of these grounds
are sufficiently persuasive
to make out a case for the setting aside of the Board’s
decision.
[7] That however, is not
the end of the matter.
[8] Mr Naidu, as chair of
the Merebank policing forum and the community policing forum and as
vice-chair of the Merewent policing
forum, testified at the
objections hearing convened on 16 May 2012. During his evidence he
mentioned that the applicant had already
been selling liquor
illegally and that he had been charged for this by the police.
However, no evidence was presented at the hearing
to suggest that the
applicant had also paid several admission of guilt fines over the
period 2005 to 2011 for selling liquor without
a licence in
contravention of section 154 of the Act.
[9] The hearing was
subsequently adjourned for the Board to deliberate after which a
decision would be forwarded to the offices
of the applicant’s
attorneys.
[10] On 11 July 2012 the
Chair of the Board advised the applicant in writing that:
The Board had considered
all the evidence led at the hearing and “the additional
information which was outstanding from
the South African Police
Service.”
The Board had, after the
hearing had been adjourned, obtained information from the police to
confirm that the applicant had paid
no less than five admission of
guilt fines (of between R300 and R1000) for selling liquor illegally
during the year immediately
preceding the hearing, and that he had
also been charged with (and had admitted to) this offence during the
month after the hearing
had been adjourned.
The Board was of the
view, regard being had to the applicant’s relevant criminal
record, that he was in any event disqualified
for a licence in terms
of section 25 of the Act.
[11] The relevant
portions of section 25(1)(b) reads as follows:
“
A
licence shall not be granted to any person who –
Has
in the preceding 10 years been convicted of an offence in terms of
this Act, … irrespective of the sentence imposed,
and was
within five years after the conviction again convicted of an offence
in terms of the said laws, and was then sentenced
therefor(e) to a
fine of not less than R200 or to imprisonment without the option of a
fine,
unless the
last-mentioned offence was of such a nature that it does not imply
that such a person is unsuitable to hold the licence,
or unless any
one of the sentences has been set aside by a competent court or such
a person has received a grant of amnesty or
a free pardon in respect
of any one of the sentences or the fine has been remitted
(my
emphasis) …”
[12] The applicant, in
his replying affidavit, denied that he had been selling liquor
illegally for many years. He avers that his
in-laws with whom he was
living, were originally the suspects but that the police arrested him
and refused to release him unless
he paid admission of guilt fines.
The police also told him, so he says, that he would not have a police
record and that he would
be released forthwith. He says that he
believed them at the time as he also thought that an acknowledgement
of guilt fine was equivalent
to a traffic fine, and that he had no
idea that it came with a criminal conviction in terms of
section 57
of the
Criminal Procedure Act 51 of 1977
. He also denies that he sold
liquor between April 2011 and June 2012 but says that the police
repeated the same modus operandi
as they had done when his in-laws
were the suspects, and because they had promised him that he would
not have a criminal record,
he simply paid the fines again.
[13] He now says, in
these application papers, that he intends launching an urgent
application for the setting aside of these “acknowledgement
of
guilt convictions.”
[14] I deliberately
refrain from commenting on his prospects of success in this regard.
On the papers before me it is clear that
the purpose of the hearing
was for the Board to reconsider its previous decision after having
heard and considered the objections.
That much was said when the
hearing was adjourned for a decision.
[15]
The Board’s letter dated 11 July 2012, purportedly informing
the applicant of its decision, is not only vague and capable
of more
than one interpretation, but takes into account information which the
applicant had not been afforded the opportunity to
traverse before
the decision was made. The letter does not reflect, for example, the
Board’s findings with respect to the
objections and whether it
was persuaded (by this additional evidence only) to grant or to
refuse the granting of a licence. All
the letter purports to do is to
make a finding of disqualification in terms of section 25 of the Act,
based on information acquired
ex
post facto
.
[16] I am satisfied that
in conveying its decision to the applicant in the manner in which it
did, and basing its decision on information
which the applicant was
not afforded the opportunity to challenge, the Board declined to
exercise a power which it was obliged
to exercise; alternatively,
that it exercised its power in an arbitrary manner. In my view the
applicant’s rights in terms
of sections 33 and 34 of the
Constitution have been substantially prejudiced by the procedure
followed, and he is entitled to a
reconsideration of his application
in terms of section 132 of the Act to this extent only.
[17] The order I make is
as follows:
ORDER:
Insofar as it is
deemed necessary, the decision made by the respondents refusing the
applicant’s application for a liquor
licence is set aside.
The respondents’
finding that the applicant is disqualified from obtaining a licence
is set aside.
The matter is
remitted for reconsideration subject to the applicant having been
afforded the opportunity to challenge the additional
information
which the respondents obtained from the South African Police
Services referred to in the respondents’ letter
dated 11 July
2012.
The respondents are
directed to pay the costs of this application jointly and severally,
the one paying the other to be absolved.
____________
STRETCH AJ
Appearances /
Appearances:
For the Applicant :
Mr
S. Govender
Instructed by
:
Baijnath and Partners Chatsworth
C/o Messenger King
DCC Campus Building
21Timber Street
Pietermaritzburg
For the Respondents: :
Mr
M.G. Chetty
Instructed by
:
The State Attorney(Kwazulu-Natal)
Durban
C/o Cajee Setsubi Incorporated
195 Boshoff Street
Pietermaritzburg
Ref. Mr Essa
Date of Hearing :
10
June 2013
Judgment handed down on :
09
October 2013