About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 198
|
|
Pick n Pay Retailers (Pty) Ltd and Another v Gauteng Provincial Liqour Board (48915/12) [2012] ZAGPPHC 198 (5 September 2012)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NUMBER:48915/12
DATE:05/09/2012
In
the matter between:
PICK
N PAY RETAILERS (PTY)
LTD
..........................................................
FIRST
APPLICANT
MODDERFONTEIN
BREWERY (PTY)
LTD
...............................................
SECOND
APPLICANT
And
THE
GAUTENG PROVINCIAL LIQOUR
BOARD
.......................................
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The applicants approached the court on urgency for the following
relief:
"2.
A declaratory order that the respondent and its staff are not legally
entitled
to refuse acceptance of applications tendered for lodgement, to be
processed for a decision before the respondent.
3.
An order that the respondent is a creature of statute and cannot
require of an applicant more than is prescribed in its empowering
Act
and Regulations;
4.
An order directing the respondent to accept the nominations tendered
by the first applicant when handed to it together with the
order of
the Honourable Court and to accept on the 7 September 2012 lodgement
of the application of the second applicant in accordance
with the
provisions of Section 23 of the Gauteng Liquor Act;
5.
That the respondent be ordered to pay costs of this application,
inclusive of costs as between attorney and client."
This
application was opposed.
BACKGROUND
[2]
During April 2012 the chairperson of the respondent confirmed to Mr
Blom, a practising attorney a directive issued to the administrative
staff to refuse to accept any documentation tendered for lodgement if
they were of the opinion that the application was not properly
prepared or complete. This occurred after Mr Blom, who deposed on
behalf of both applicants had presented four new applications
for
licences on behalf of the first applicant. Mr Malebo a member of the
first respondent's administrative staff refused to accept
the said
applications because they were not accompanied by lease agreements,
despite the fact that it was not a requirement of
the Act that lease
agreements be attached.
[3]
The first respondent has persisted with such practice despite being
aware of an order against it in the matter of ZA-POR INVESTMENTS
CC v
THE GAUTENG LIQUOR BOARD AND OTHERS (Case Number 58036/2008) where Du
Plessis J ordered:
"1.
That a declaratory order that the first respondent, as represented by
the second, third and fourth respondents, did not
and does not have
the power to refuse to consider any application lodged with it and
its administrative staff is not entitled to
decide that an
application does not comply with the requirements of the Act and does
not have the power to send such an application
back to the applicant
who lodged it." (my under lining)
[4]
Again in July 2012 the first applicant purchased a liquor store
business and presented an application for lodgement in terms
of
section 40 of the Gauteng Provincial Liquor Act 2 of 2003 ('the
Act'). This was an application for the appointment of a nominee
licence holder (responsible person) in respect of an existing licence
issued to the business. Again the administrative staff refused
to
accept lodgement of the documents because they were not accompanied
by a police clearance on the person of the nominee. This
attitude
persists despite the first respondent being aware of an order granted
by Preller J in the matter of DANIEL ADJETEY ADJEI
AND OTHERS v THE
GAUTENG PROVINCIAL LIQOUR BOARD (Case number 11346/2008) which stated
the following:
"3.
A declaratory order that the provisions of Section 40 of the Gauteng
Provincial
Liquor Act 2 of 2003
, is a nomination process, not an
application and that such a nomination does not require consideration
by the respondent for a
decision either to grant or refuse the same."
[5]
On the 17 August 2012 a member of the administrative staff of the
respondent, Ms Mapaseka Matlhaku of the first respondent wrote
the
following;
"
To Whom It May Concern
This
letter is to confirm that Mr Christo van Niekerk from Couzyn Hertzog
& Horak Incorporated was at the Gauteng Liquor Board
on the 17
August 2012 to submit a
section 40
Appointment of Manager application
and we could not accept it due to the fact that there were no SAPS
Clearance Certificate and
that resulted to an incomplete
application."
[6]
On the 3 August 2012 the second applicant tendered lodgement of an
application for a new liquor licence. Attached to the application
was
a letter from the auditors explaining that the applicant was a new
company which had not as yet incurred any tax liability.
One Moses
from the respondent's office refused to accept such lodgement on the
basis that no tax clearance was attached. Moses
refused such
lodgement despite a request that the application be placed before the
Board to properly decide whether there was compliance
and whether it
could grant condonation by invoking the provisions of section 140 of
the Act.
The
existing practice is that new applications must be lodged on the
first Friday of a month to allow interested parties to inspect
the
applications and to object. The second applicant wants to lodge its
application again on the 7 September 2012, however it is
not yet in
possession of a tax clearance and it knows that such lodgement will
not be accepted.
[7]
According to the respondent the secretariat and executive committee
established in terms of sections 12 and 13 of the Act have
the power
to perform any function of the Board and to act on the directions of
the Board, and that any act of the executive committee
shall be
deemed to be an act of the Board. Furthermore that the administrative
staff of the local committee and respondent fell
within the office of
the Secretariat who is a member of the Board and the functions of the
Office of the Secretariat was to receive
and screen applications to
ensure compliance with the mandatory requirements of the Act failing
which the applications will not
be accepted. The Secretariat had the
power to reject such defective applications and that this was done to
ensure that all applications
which serve before the Board are
considered on merit and not on technicalities and to avoid backlog of
applications which cannot
be considered because they do not comply
with the Act, (my underlining)
The
respondent averred that the orders above were not immune from attack
or criticism, and in particular that the order of Du Plessis
J's was
bad in law and contrary to the doctrine of separation of powers as
embodied in the Constitution.
THE
LAW
[8]
The purpose of the Act is provided for in the preamble:
"To
provide for the control of the retail sale and supply of liquor
within the Gauteng Province; to establish the Gauteng Liquor
Board,
local committees and a Liquor Trade Association; to regulate
applications for licences and to provide for public notification
and
participation, to regulate the granting of licenses in respect of
different kinds of licences; to prohibit the sale of liquor
to
certain categories of people; to provide for general matters such as
enforcement procedures; and to provide for matter connected
therewith;"
8.1
Section 4 provides for the constitution of the Board and for the
categories of individuals who shall be appointed to it.
8.2
Section 12 of the Act provides:
"(1)
The Board shall in the performance if its functions be assisted by a
secretary, officers and employees placed at the disposal
of the Board
under the provisions of the Public Service Act Proclamation 103 of
1994.
(2)
The secretary shall become an ex officio member of the Board and
shall have no voting rights" Of all the administrative
staff
appointed in terms of this section it is only the secretary who is
appointed as an ex officio member of the Board.
8.3
Section 13 provides for the appointment by the Board of at least two
its members and the secretary as an Executive Committee
of the Board
"which shall have the power to perform such functions of the
Board during the periods between meetings of the
Board..."
In
my view the secretary in these circumstances still remains an ex
officio member of the Board with no voting rights.
8.4
Section 14 provides that the Board may appoint experts and other
persons to assist the Board in the performance of its powers,
functions and duties with the approval and concurrence of the Member
of the Executive Council (of the province responsible for
Economic
Affairs)
8.5
Section 15 provides for the delegation of powers, functions and
duties of the Board to any member of the Board or any committee
of
the Board or any local committee of the Board with the approval of
the Member of the Executive Council.
In
my view the powers, functions and duties cannot be delegated to any
of the Administrative Staff appointed in terms of section
12 of the
Act.
8.6
Section 23 provides:
"(1)
Every application for a new licence shall be made to the relevant
local committee of the district or metropolitan area
in which the
licence is sought, in the prescribed form by lodgement with the
secretary of the local committee."
In
my view, it is envisaged herein that the application shall be placed
for consideration before the Board or the Executive Committee
or
Local Committee constituted in terms of the Act.
8.7
Section 40 provides:
"(1)
A person other than a natural person shall not conduct any business
under a licence unless a natural person who permanently
resides in
the Republic and who is not disqualified in terms of the Act to hold
a licence by him or her in the prescribed manner
to manage and be
responsible for its business."
[9]
The crisp issue to determine is whether the chairperson of the Board
is
empowered
by the Act to give directives to employees appointed in terms of
section 12 of the Act to screen, reject and refuse to
accept for
lodgement applications for licences or nominations in respect of
existing licences (section 40 nominations), before
any process as
contemplated in section 27 of the Act for the Board or Executive
Committee or the Local Committee to consider the
matters, is engaged.
[10]
It is clear from the preamble and the sections dealt with above that
it shall be
the
Board or the Executive Committee or the Local Committee that must
consider the applications or nominations lodged. The applicants
correctly submitted that the rejection of the applications by the
administrative staff, was a deprivation of an opportunity for
the
Board to properly consider their matters. Their only request is for
their matters to be placed before the Board for consideration
and for
a fair and reasonable process to be engaged. It is for these bodies
to decide whether there is merit in their requests.
It should not be
about the attitude that applicants want to score on technicalities or
that incomplete applications result in unnecessary
backlogs for the
Board.
Furthermore,
it is not envisaged by the Act that all matters which do not meet the
requirements should be rejected. In terms of
section 140 of the Act,
the Board may condone a defect where there has been substantial
compliance and if the condonation is not
likely to prejudice any
person. This is a discretion that cannot be exercised by the
administrative staff. The discretion exercised
by the Board may
extend to other situations.
[11]
Therefore powers, functions and duties of the Board cannot be
performed by Its administrative staff (i.e. the Secretariat in
the
opposing papers), appointed in terms of section 12 of the Act The
order by Du Plessis J in the ZA-POR INVESTMENT CC matter
supra, was
in my view the correct interpretation of the provisions of the Act.
The order was not bad in law or contrary to the
doctrine of
separation of powers.
The
directive given by the chairperson for its administrative staff to
screen applications and to reject those which do not comply
with the
requirements in the Act before the matters are considered by the
Board or Local Committee, was unlawful and not in compliance
with the
Act. URGENCY
[12]
I have taken into account all the submissions in this regard and am
of the view that the applicant has satisfied me that the
application
was urgent.
[13]
In the light of the above the following order is granted:
1.
The respondent is directed to accept the nomination of responsible
persons tendered by the First Applicant on the 17 August 2012
under
the Liquor Board reference GAU/100560C even though it is not
accompanied by police clearance certificates for consideration
by the
respondent.
2.
The respondent is ordered to accept the application for a new liquor
licence by the Second Applicant tendered for lodgement on
the 3
August 2012 when again tendered for lodgement on the 7 September
2012.
3.
The respondent is ordered to pay the costs of this application.
TlHAPI
V. V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON: 04 SEPTEMBER 2012
JUDGMENT
RESERVED ON: 04 SEPTEMBER 2012
ATTORNEYS
FOR THE APPLICANT :COUZYN, HERTZOG & HORAK
INC.
COUNSEL
FOR THE APPLICANT: ADV. L PRETORIUS
ATTORNEYS
FOR RESPONDENT:THE STATE ATTORNEYS
COUNSEL
FOR THE RESPONDENT : ADV. D MOTSHWENE