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[2011] ZAGPPHC 221
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Weng v Minister of Police and Others (74681/10) [2011] ZAGPPHC 221 (14 December 2011)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER:
74681/10
DATE: 14
December 2011
YINGYING
WENG
...................................................
APPLICANT
V
THE MINISTER OF
POLICE
...................................
1
st
RESPONDENT
THE MEC FOR FINANCE AND ECONOMIC
AFFAIRS,
MPUMALANGA
....................................
2
nd
RESPONDENT
THE MPUMALANGA
LIQUOR BOARD
...............
3
rd
RESPONDENT
MABUSE T
:
JUDGMENT
1. This matter
came before me as an urgent application. I dismissed the application
with costs and invited the applicant to apply
for reasons for the
order of dismissal. On 23 December 2010 the applicant applied for
reasons in terms of Rule 49 of the Uniform
Rules of Court. These are
therefore the reasons for the order that the court made on 14
December 2010.
2. In this
application, which was vigorously opposed by the respondents, the
applicant had sought against the first respondent
in particular, an
order directing the first respondent, as represented by one Warrant
Officer Le Roux of Bethal, to return, within
48 hours to the licensed
premises of the business known as Seisho Pub and Braai Restaurant,
situated at 57 Kerk Street, Erf 114
Bethal, all the items seized and
removed from those premises on 2 December 2010, besides an order of
costs against the respondents.
3. The
applicant is Yingying Weng, an adult female who at the time the
police seized and removed the articles referred to in paragraph
2
supra conducted business as Seisho Pub and Braai Restaurant at 57
Kerk Street, Erf 114 Bethal. She is of a Chinese descent and
her
ability to speak and understand Afrikaans and English is limited.
Under those circumstances it immediately becomes patently
clear that
her proficiency to speak any of this country's official languages is
very little. It is for that reason that in this
application she
relied entirely on her attorney of record, one Marius Blom ("Blom")
of 835 Duncan Street, Brooklyn, Pretoria,
to make depose to the
founding affidavit.
4. As pointed
out earlier, the applicant is a Chinese citizen having been born,
according to her passport no. G32359683 issued
on 8 March 2010 by the
Consulate
General of the Peoples' Republic of China in Johannesburg in Fujiane,
China on 16 July 1977. No evidence that she holds
at the same time a
South African passport was placed before court. The expiry date of
her passport is 2 March 2020. Accordingly
in this country the
applicant was a
foreigner as
envisaged by the provisions of s. 1 the Immigration Act 13 of 2002
("The
Immigration Act"
;). Her status in this country is
determined in all respects by the provisions of the
Immigration Act.
5. The
lawfulness of her presence in this country, this goes without saying,
is dependent upon the applicant being the a holder of one
of the
appropriate permits issued to her by the Immigration Authorities in
terms of the provisions of the said Act. As at 2 December
2010 the
applicant was in this country on the strength of a Temporary
Residence Permit issued to her by the Department of Home
Affairs in
Johannesburg on 28 April 2010. The said permit was valid up to 30
December 2010. The said permit was issued to the applicant
for one
purpose only and that was to take up an employment with Shui Qiang
Trading. For that reason only her presence in this country
was lawful
and would have remained such until her permit expired or it was
extended by the relevant authorities in terms of s.
10 (7) of the Act
or the conditions attached to her permit were altered by the
Director-General of the Department of Home Affairs
in terms of s. 10
(5) of the said Act or if she applied and was granted one of the
other temporary resident permits referred to
in
sections 11
to
23
of
the
Immigration Act in
terms of
s. 10
(6) of the said Act.
6. In view of
the fact that it is common cause between the parties that, at the
time of the aforementioned seizure and removal,
the applicant was the
holder of a Temporary Residence Permit which was valid only up to 31
December 2010 and in view furthermore
of the fact that the said
Temporary Residence Permit was issued to the applicant on two
conditions only, the issue that the court
is called upon to decide is
whether the applicanf s type of Temporary Residence Permit gave her
any right to conduct business.
The duty to prove that the said
temporary residence permit allowed her to conduct business in this
country lies on the applicant.
7. According to
the founding affidavit, the applicant purchased the liquor licensed
business known as Seisho Pub and Bar Restaurant,
licensed under
Restaurant Liquor Licence with reference number MPU/024498. A copy of
the purchase agreement was not attached to
the application. The
applicant does not indicate whether the said purchase agreement was
in writing or verbal nor did she indicate
the date on which the said
business was purchased. The salient details of the said agreement
have, for one or other reasons, not
been disclosed in the
application. It is nonetheless not in dispute that the applicant was
conducting business and further that
she had purchased a liquor
licence. The applicant has admitted that she had purchased the said
business and furthermore that as
at 2 December 2010 she was indeed
conducting business in the aforesaid name of the business.
8. Following
the said sale, Blom was instructed by the lessee and the applicant to
give effect to the sale which involved, among
others, having to
apply, on behalf of the applicant, for the transfer of the liquor
licence in terms of s. 113 of the Liquor Act
27 of 1989 ("Liquor
Act") and having furthermore to apply in terms of s. 39 of the
said Liquor Act for the appointment
of a responsible person to manage
the business. The lessor of the business premises was one Himie
Norman Hirschowitz and the applicant
was the lessee. Accordingly the
applicant had leased the premises in which the business had been
located for the sole purpose of
conducting business on terms of the
Liquor Act. S. 113 of the Liquor Act provides as follows:
"The holder
of a licence (excluding a temporary liquor licence and occasional
licence) may at any time make application for
the transfer thereof to
another person (hereinafter called the prospective holder)."
Sec. 39 of the
said Act provides as follows:
"(1) A
person other than a natural person shall not conduct any business
under a licence unless a natural person who is not
disqualified in
terms of section 25 to hold a licence, is appointed by it in the
prescribed manner to manage and be responsible
for its business."
2. A natural person who is the holder of a licence may in the
prescribed manner appoint another person
who is not disqualified in
terms of section 25 to hold a licence, to manage and be responsible
for the business to which the first-mentioned
licence relates".
Sec. 25 of the
said Act provides as follows:
"(1) A
licence shall not be granted to any person who -
(a) has in the Republic or
elsewhere in the preceding 10 years been sentenced for any offence to
imprisonment without the option
of a fine, unless the competent
authority considering the application concerned is of the opinion
that the offence was of such
a nature that it does not imply that
such a
person is unsuitable to
hold the licence or unless the sentence has been set aside by a
competent court or such a person has received
a grant of amnesty or a
free pardon;
(b) has in the preceding 10
years been convicted of an offence in terms of this Act or the Liquor
Act, 1977 (Act No. 87 of 1977),
irrespective of the sentence imposed,
and was within five years after the conviction again convicted of an
offence in terms of
this Act or the Liquor Act, 1977, and was then
sentenced therefore to a fine of not less than R200 or to
imprisonment without the
option of a fine, unless the competent
authority considering the application concerned is of the opinion
that 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;
(c) is not domiciled in the
Republic;
(d) is an unrehabilitated
insolvent;
(e) is a minor on the date
of the consideration of the application concerned;
(f) is the
spouse of a person contemplated in paragraph (a), (b) or (d).
(2) If a person
who is in terms of subsection (1) disqualified to hold a licence -
(a) has a controlling
interest in a company, close corporation or trust;
(b) is a partner in a
partnership; or
(c) is the main beneficiary
under a trust, a licence shall also not be granted to that company,
corporation, partnership or trust.
(3) In the
application of subsection (l)(a) and (b), "preceding" means
preceding the
date of the application concerned."
9. On 9
September 2010 Blom dispatched to the magistrate at Bethal the
prescribed application form for the transfer of the said
liquor
licence into the names of the applicant. A copy of the relevant
application has been attached to this application. According
to the
said application, which was essentially an application by the licence
holder to transfer the liquor licence, the licence
holder was one
James Seloko Seisho ("James"), who conducted his licensed
business under the names of Seisho Pub and Braai
Restaurant. His
licence was a Restaurant Liquor Licence. The applicant was the
prospective holder of the said Restaurant Liquor
Licence. The purpose
of the said application clearly was to make the applicant the holder
of the liquor licence. The said liquor
licence, if granted, would
have entitled the applicant, who at that stage had only a temporary
residence permit and did not have
any permission from the
Director-General to conduct business, as she already was doing,
without a business permit having been issued
to her by the
Director-General in terms of s. 15 of the Act. Now Sec. 10(2) of the
Act provides as follows:
"Subject to
this act, upon application in the prescribed manner and on the
prescribed form, one of the temporary residence
permits contemplated
in sections 11 to 23 may be issued to the foreigner."
According to s.
10(2) one of such temporary residence permits is a business permit
issued in terms of s. 15 of the said Act. Again
the duty lies on the
applicant to satisfy the court that she had been issued with a
business permit in terms of s. 15 of the Act.
The said s. 15 provides
as follows:
"15(1) A business
permit may be issued by the Director General to a foreigner intending
to establish or invest in, or who has
established or invested in a
business in the Republic in which he or she may be employed, and an
appropriate permit for the duration
of the business permit to the
members of such foreigner's immediate family: provided that —
(a) such foreigner invest
the prescribed financial or capital contribution in such business;
(b) the contribution
referred to in paragraph (a) forms part of the intended book value of
such business; and
(c) such foreigner had
undertaken to comply with any relevant registration requirement set
out in any law administered by the South
African Revenue Service.
(2) The holder of the
business permit may not conduct work other than work related to the
business in respect of which the permit
has been issued.
(3) The Director
General may reduce or wave the capitalisation requirements referred
to in subsection 1(a) for business which are
prescribed to be in the
national interest, or when so requested by the Department of Trade
and Industry.
C4) The holder of the
business permit shall proof to the satisfaction of the
Director General
that he or she has filled the requirement contemplated in subsection
1(a) within 24 months of the issuers of the
permit, and within every
two years thereafter.
(5) A business permit may
be issued to a foreigner for more than one entry if multiple entries
into the Republic by that foreigner
over a period time are necessary
for that foreigner to conduct the business in question effectively."
10. No argument
was advanced on behalf of the applicant that she was the holder of a
business permit issued to her in terms of s.
15 of the Act or that
she had applied for one or that the Temporary Residence Permit that
had been issued to her entitled her to
conduct any form of business
or that she had been granted permission by the Director-General to
conduct liquor business or that
the conditions of her Temporary
Residence Permit had been altered by the relevant authorities.
11. There is a
part of the application in which a prospective licence holder has to
complete a number of questions. One of the
questions required the
applicant to indicate whether he or she was a person who was not
domiciled in the Republic. The answer to
this question would have
been "yes" if the applicant was not domiciled in the
Republic and "no", if she was
domiciled in the Republic.
The applicant was, at the time she applied for the transfer of the
liquor licence to her, not domiciled
in the Republic.
12. Under the
Subheading, Financial Interest, the applicant was required to state
the name, identity number and address of each
person who, including
the holder of the licence, had any financial interest, if the
application was granted and who, including
the applicant, would have
such interest, if the application was granted and in each case the
nature and extent of such interest.
It is stated in the application
that the only person with financial interest in the business, was the
current licensee, in other
words, James Seloko Seisho. This is
misleading for should the application for transfer be approved of, Ms
Yinying Weng, whose full
details have been set out in part "B"
of the questionnaire, would be the sole owner of the business,
entitled to all
the profits and liable for any losses.
13. The
application was accompanied by written representations. The said
written representations stated quite clearly that that
was an
application for the transfer of the existing Restaurant Liquor
Licence. The reasons for the application was said to be the
result of
a normal financial transaction in terms of which the business as a
going concern, including the right, title and interest
in respect of
the liquor licence, was sold to the applicant or transferee. It
states furthermore that Ms Weng is a temporary resident
with a work
permit and is currently working at Shui Qiang Trading. A work permit
is normally
issued in terms of the provisions of s. 19 of the Act. According to
the aforementioned representation the applicant
was not disqualified
by the provisions of s. 25 or s. 31 of the Liquor Act 27 of 1989 from
being the holder of a liquor licence.
Her attorney also applied to
the relevant authorities that she be appointed as a responsible
person under the said licence in terms
of s 39 of the said Liquor
Act.
14. The
applicant's application was opposed by the respondents and in doing
so they relied on the affidavit of one Angelo David
John Sebastian
("Sebastian"), the senior manager for business regulations,
which included liquor and gambling regulations.
Sebastian has noted
that clearly the applicant stated that she was doing business as
Seisho Pub and Braai Restaurant and in terms
of the documents issued
to the applicant by the Department of Home Affairs attached to her
application, the applicant has submitted
that she was a temporary
resident in the Republic of South Africa and furthermore that she was
an Asian woman born in Fujiane.
15. Blom did
not deny that the applicant's temporary permit was about to expire on
30 December 2010 nor did he deny, in his replying
affidavit, that he
was quite aware that the only permit that the applicant possessed at
the time as a foreigner in South Africa
was a Temporary Residence
Permit with specific purpose to be employed by Shui Qiang Trading
which was a clothing store. Her attorney
was also aware or should
have been aware that the only permit that the applicant as a
foreigner held was a temporary resident permit
which had been issued
to her on condition that she took up employment as an employee at a
clothing store called Shui Qiang Trading.
Nowhere in the whole
application was it stated on behalf of the applicant that the
temporary residence permit that the applicant
possessed was a
business permit. Furthermore nowhere in the application was it stated
that the conditions of the applicant's temporary
residence permit had
been altered.
16. What was the
chief reason the respondents were opposed to the applicant conducting
business as she did? Sebastian contended
that the applicant did not
have a business permit to conduct any business transaction in South
Africa. The applicant had not even
applied for a business permit to
the relevant Department. No foreigner may conduct business in this
country without a business
permit or without the consent of the
Director-General's permission or without the conditions of his
Temporary Resident permit having
been altered accordingly.
17. Without a
business permit, so contended the respondents, the applicant was
conducting an unlawful business for which she had
been subsequently
charged in terms of the provisions of s. 154(1) (a) of Act 27 of 1989
Liquor Act as amended. In reply to the
aforementioned contentions by
the respondents, the Blom stated that even if these allegations were
true, which he denied, "it
still did not justify the actions of
the Warrant Officer Le Roux in contravention with s. 22 of the
Criminal Procedure Act ("the
CPA") and the content of
paragraph 5 is actually" in this paragraph.
18. It is as
clear as crystal that the Blom was unable to dispute the contention
that the applicant did not have a business permit
which entitled her
to conduct business in this country. It was never the applicant's
case that she had a liquor licence which entitled
her, as at 2
December 2010, to conduct business that admitted she was conducting.
At any rate the duty lies on the applicant to
satisfy this court that
indeed a business permit had been issued to her in terms of the
provisions of s. 15 of the Act or that
she had the permission of the
Director-General to conduct business or that the conditions of her
Temporary
Resident Permit had been so altered as to allow her to conduct
business. The applicant's case was that she was entitled
to conduct
the said business as she had been nominated in terms of s. 39 of the
Liquor Act in respect of business and was therefore
not disqualified
from holding a licence in the Republic of South Africa with or
without a permit.
On the contrary
Blom stated in the replying affidavit the following:
"Even if
the allegations contained in the paragraph are true which is denied
then it still does not justify the actions of
Warrant Officer he Roux
in contravention with s. 22 of the Criminal Procedure Act at the
conduct of paragraph 5 is actually irrelevant
to this dispute."
Accordingly in
the absence of any proof by the applicant that she had been issued
with a business permit as indicated above and
in the face of failure
by the applicant to deal specifically with the allegations that she
did not have a business permit which
entitled her to conduct
business, this court must therefore accept the respondents' version.
19. The fact
that a person may be nominated in terms of the provisions of s. 39 of
the Liquor Act to manage and be responsible for
a business does not
mean that the provisions of the
Immigration Act do
not apply to the
person so nominated. Accordingly any nomination made in terms of
s.
39
would still be subject to the provisions of the
Immigration Act.
20. It
must be
emphasized that the question whether or not the applicant may, as a
foreigner, conduct business in this country is not
an issue that may
be determined in terms of the Liquor Act only. This may render other
laws that affect the status of foreigners
in this country nugatory
and useless. The issue of the rights of foreigners to conduct
business in this country must be determined
in terms of the Liquor
Act in conjunction with all the other relevant laws, even when such
relevant laws have not been specifically
referred to by the said
Liquor Act. The fact that such laws have not been specifically
referred to in the said Liquor Act does
not in any way mean that such
laws are irrelevant and should therefore be simply ignored.
21. It is
abundantly clear from the authority of Sidoro v. The Minister of Home
Affairs
[2001] 3 All SA 419
T that in order for a foreigner to
conduct business in this country, such a foreigner must either have
temporary residence permit
and a business permit or must have been
granted permission by the Director-General to conduct business in
South Africa. In order
to be in this country Sigodi required a
temporary residence permit and he had to have a business permit which
allowed him to conduct
business in this country. The applicant's
situation is not different from Sigodi's.
22. It is
accordingly not enough for Blom to state that the applicant was not
disqualified by the provisions of s.25 and s. 31 of
the Liquor Act to
be the holder of the licence. It is the duty of any foreigner who
seeks to conduct business or who seeks to remain
in this country for
that purpose to show that he or she holds the necessary temporary
residence permit or document required under
the
Immigration Act. The
provisions of the
Immigration Act must
be regarded by such foreigner
as additional qualification requirements.
23. The question
now is did the applicant have a permit issued to her in terms of
s.
15
of the
Immigration Act or
did she have the permission of the
Director-General or had the conditions attaching to her residence
permit been altered by the
Director-General ( see
s.10
(5) and (6) of
the
Immigration Act), at
the time when she conducted the said
business or at the time the respondents seized and removed certain
items from the said business
on 2 December 2010? This was the date
which determined whether or not the applicant qualified in terms of
the
Immigration Act. It
is clear that Blom is trying to mislead this
court. It is not and never was the applicant's case that she
challenged the said seizure
and removal of certain items from the
aforementioned business on the ground that when such items were
seized and removed she was
a person who had been appointed in terms
of s. 39 (2) of the Liquor Act. Her case had always been that she was
conducting business
lawfully on the said premises.
24. In my view,
the applicant could not conduct a lawful business if she did not have
business permit. The applicant's appointment
in terms of the said
section 39 of the Liquor Act is still subject to the provisions of
the
Immigration Act. She
may not be lawfully appointed in terms of
the said Act if she did not qualify in terms of the
Immigration Act.
Accordingly
a holder of a temporary residence permit may not be
appointed as a responsible person in terms of s. 39 of the Liquor Act
if such
appointment would constitute a contravention of any section
of the
Immigration Act. The
liquor Authorities must be allowed to
either approve or disapprove such an application for the appointment
of a responsible person
in terms of s. 39 of the Liquor Act. Their
duty must include, among others, ensuring that such a
person is
legible and qualified in terms not only of the Liquor Act but also of
the
Immigration Act.
25. On
further
investigation, after raid, some members of the South African Police
Force discovered that the applicant had herself bought
liquor from
Ultra Liquors and that she was already trading. Sebastian has
attached two invoices dated 23 November 2010 both from
Ultra Liquors
and both issued to Ms. Weng, the applicant. It is not in dispute that
Ms. Weng is the applicant in this matter. The
total of the purchase
price of the liquor that Ms. Weng, the applicant, purchased was R41
127.57. The applicant signed for the
receipt of the liquor. According
to Sebastian, the applicant bought the said liquor while she was
still awaiting the result of
the application to the third respondent
which is proof, firstly, that at the time of the said seizure and
removal she was conducting
a liquor business without the necessary
liquor licence and, secondly, she was conducting business in this
country without the necessary
permit and without any permission by
the Director-General.
26. Sebastian
contends furthermore that the type of licence the Liquor Board had
issued was a
Restaurant Liquor Licence whose main objective was to prepare and
serve food on a bona fide basis on the licensed premises.
According
to him, the quantity of the liquor that the applicant had purchased
and which was seized was far in excess of the needs
of a restaurant
liquor licence. This contention by Sebastian was not disputed by
Blom.
27. The
temporary residence permit which the applicant possessed was of a
temporary nature and only allowed her to be employed at
a particular
place and for a specific period.
28. It is clear
that the applicant purchased the restaurant liquor licence with the
intention of conducting business. It is also
clear that at the time
she purchased the said licence she had planned to conduct business.
It is also clear that even before the
licence could be transferred to
her she was already conducting business. It is not in dispute that at
the time she traded, she
was only armed with a Temporary Residence
Permit.
29. The said
Temporary Resident Permit was issued to the applicant in terms of the
provisions of paragraph 10(2) of the
Immigration Act 13 of 2002
. The
said section provided as follows:
"Subject to
this Act upon application in the prescribed form one of the temporary
residence permit contemplated in Sections
11 to 23 may be issued to a
foreigner."
Section 10(4)
provided that:
"A
Temporary Resident Permit is to be issued on condition that the
holder does not become a prohibited or undesirable person."
Section 10(5)
states as follows:
"The
Director General may, for good cause attach reasonable terms and
conditions as he may prescribe to a Temporary Resident."
Section 10(6)
states as follows:
"Subject to
this Act a foreigner may apply to the Director General in the
prescribed manner and on the prescribed form to change
his or her
status or the conditions attached to his or a Temporary Residence
Permit or both such status and condition as the case
may be, while in
the Republic."
30. A Temporary
Residence Permit is not a business permit. Therefore it does not
entitle its holder to conduct business in the Republic
of South
Africa. Accordingly the members of the South African Police Force who
raided the applicant's store on 2 December 2010
were correct in doing
that as the applicant had contravened the law. She was found to
conduct business contrary to both the
Immigration Act and
the Liquor
Act 27 of 1989.
31. The
applicant has produced no evidence to satisfy this court that she was
entitled to conduct business.
32. In his
replying affidavit Blom contended that the only question of law
before
this Court was
whether the respondents seized and removed the stock legally or
illegally and whether the respondents had the right
to close the
shop.
33. Blom
contends that the s. 22 of the Criminal Procedure Act 51 of 19779"the
CPA"), prescribed a warrant of seizure
and did not deal with
closing down a store at all. The only exception where such a warrant
is not necessary is if the police officer
bona fide believed that a
warrant would be granted if he applied for it and that the time it
took to obtain the warrant would defeat
the very same purpose the
warrant would have been required.
34. In terms of
s. 143(a) of the Liquor Act a police officer is permitted and
authorised to enter and inspect any part of the premises
concerned or
any place where any liquor is stored in accordance with the
provisions of s. 51 (1) and (2) of the Liquor Act. Such
police
officer need not be armed with any search warrant in order to enter
and search the premises nor does he have to make any
prior
arrangements with the licence holder. It is sufficient if he visits
such premises during the times when the licence holder
is authorised
by the provisions of the Act to conduct his normal business.
Accordingly if the purpose of the police officer is
to enter and
inspect any part of the premises this he can only do during the times
in which the licence holder is by law authorized
to sell or supply
liquor.
35. According
to s 143 (b) the police officer may enter and search the premises any
time, if he suspects on reasonable grounds
that an offence in terms
of this Act is being committed on those premises or in that place.
Selling liquor without the necessary
licence is such an offence that
can be committed in terms of this Act. Accordingly I am satisfied
that the members of the South
African Police Services who raided
Seisho Pub and Braai Restaurant acted correctly in terms of the
provisions of s. 143 of the
Liquor Act.
36. S. 22 of the
CPA provides for circumstances under which articles may be seized
without a search warrant. It provides as follows:
"A Police
Official may without a search warrant search any -person or container
or premises for purposes of seizing any article
referred to in s. 20-
(a)................
(b) if he or she
on reasonable grounds believes.
(i) that a search warrant
will be issued to him under paragraph (a) ofs. 21(1) if he so applies
for such warrant; and
(ii) that the
delay in obtaining such warrant would defeat the purpose of the
search".
37. Accordingly
I am satisfied that, in the circumstances of this particular case,
the police acted correctly and properly within
the provisions of s.
22 of the CPA. For this reason the application could not succeed.
This court was not asked to look into the
issu of "closing down
of the business" and therefore it merits no further
consideration.
P.M. MABUSE
JUDGE OF THE HIGH COURT
Appearances
:
Applicant's Attorneys:
Marius Blom & GC Germishuizen Inc.
Applicant's Counsel: Adv.
Pretorius
Respondent's Attorneys:
State Attorney
Respondent's Counsel:Adv.
Mokadikoa
Date Heard:14 December
2010