Visagie v Northern Cape Liqour Board (655/06) [2007] ZANCHC 46 (29 June 2007)

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[2007] ZANCHC 46
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Visagie v Northern Cape Liqour Board (655/06) [2007] ZANCHC 46 (29 June 2007)

waardig:
Ja / Nee
Sirkuleer
aan Regters: Ja /Nee
Sirkuleer
aan Landdroste: Ja /Nee
IN
THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN
CAPE DIVISSION)
KIMBERLEY
CASE
NO.: 655/06
DATE HEARD:
01-06-2007
DATE OF
JUDGMENT:29-06-2007
In
the matter between:
CAREL
GERT VISAGIE 1
ST
APPLICANT
PETRUS
JOHANNES BOTHA 2
ND
APPLICANT
and
NORTHERN CAPE LIQUOR
BOARD RESPONDENT
CORAM:
C.C WILLIAMS J:
J
U D G M E N T
WILLIAMS
J:
1. The applicants lodged
an application for a liquor licence with the respondent on 29
September 2004, having complied with all preliminary
formalities,
including a recommendation for the approval of the liquor licence
from the South African Police Services.
2. After
nearly twenty months with no decision on the application for the
liquor licence forthcoming, the applicants instituted an
application
in this Court on 26 May 2006 to;
a) Review and set aside
the respondents’ decision and failure to take a decision regarding
the applicants liquor licence application
and;
b) Compel the respondent
to make a decision regarding the application for the liquor licence
and;
c) Costs
of this application.
3. On 29 June 2006 the
respondent filed a Notice of Opposition wherein it is stated that the
respondent intends to oppose the cost
order sought against it but
abides the decision of the Court insofar as the main relief sought.
4. In the meantime, the
respondent had, after service of the application to compel, started
processing the application for the liquor
licence and issued same on
2 August 2006.
5. Compliance with the
main relief having been effected, the sole issue left to be decided
is the matter of the costs of the application
to compel.
I make this clear since
for some or other inexplicable reason the respondent and its legal
representatives seem to have laboured under
the impression that the
costs issue at hand relates to the costs incurred in the application
to the respondent for the liquor licence
and/or consequential
damages.
6. Be that as it may, Mr.
Mokutu who appeared for the respondent, even when alerted to the
correct position, persisted with his argument
that the respondent had
acted reasonably and regularly in all respects and should therefore
not be made to bear the costs of the
application to compel.
7. The respondent filed
its answering affidavit, opposing costs, on 15 September 2006 wherein
the deponent thereto, Mr. Ounias Pakes
Dikgetsi, the responsible MEC,
makes the following relevant averments:
7.1 That it came to his
knowledge during May/June 2005 that the respondent was heavily
understaffed and incapable of dealing properly
with the high volumes
of applications for liquor licences received as well as court cases
against it. As a result the respondent
performed an unsatisfactory
public function to the members of the public.
7.2 In
an attempt to remedy the situation, the deponent dissolved the then
existing Board of the respondent during September 2005
with a view to
reconstitute the respondent by the end of 2005.
7.3 The
respondent was however only appointed and reconstituted on 20 April
2006. the deponent attributes the delay to the fact that
“.
. . I was called upon to assist the preparations for the holding of
Local Government Elections within the Province. As a result,
the new
Board of the Respondent could not be formed timeously before the end
of 2005.”
7.4 That
the applicants’ liquor licence application was only considered
subsequent to the application to compel i.e after 26 May
2006.
7.5 That
the applicants’ liquor licence application complied with the
requirements of the relevant legislation.
8. The applicants filed a
replying affidavit deposed to by their attorney of record Mr. Jacobus
Michiel Burger. In his heads of argument
Mr. Mokutu took the point
that the replying affidavit should be ignored, being bad in law,
since the deponent thereto did not have
the necessary authority.
During oral argument, Mr. Mokutu applied for the striking out of the
replying affidavit on the basis that
the affidavit was deposed to by
a person with no personal knowledge of the matter, who fails to state
his source of information.
9. Both the
abovementioned submissions stand to be rejected for the following
reasons:
9.1 In
Unlawful
Occupiers, School Site v City of Johannesburg
2005(4) SA 199(SCA), the Supreme Court of Appeal said the following
on the issue of an attorney’s authority at 206 G to 207 C:
“
The
issue raised had been decided conclusively in the judgment of
Flemming DJP in Eskom v Soweto City Council
1992 (2) SA 703
(W),
which was referred to with approval by this Court in Ganes and
Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at 624I - 625A.
The import of the judgment in Eskom is that the remedy of a
respondent who wishes to challenge the authority
of a person
allegedly acting on behalf of the purported applicant is provided for
in Rule 7(1) of the Uniform Rules of Court. The
ratio decidendi
appears from the following dicta (at 705D - H):
'The care displayed in
the past about proof of authority was rational. It was inspired by
the fear that a person may deny that he
was party to litigation
carried on in his name. His signature to the process, or when that
does not eventuate, formal proof of authority
would avoid undue risk
to the opposite party, to the administration of justice and sometimes
even to his own attorney. . . .
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level. If the attorney is
authorised
to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There is no need
that
any other person, whether he be a witness or someone who becomes
involved especially in the context of authority, should additionally
be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority.
As
to when and how the attorney's authority should be proved, the
Rule-maker made a policy decision. Perhaps because the risk is
minimal
that an attorney will act for a person without authority to
do so, proof is dispensed with except only if the other party
challenges
the authority. See Rule 7(1).'
And (at 706B - D):
'If the applicant had
qualms about whether the ''interlocutory application'' is authorised
by respondent, that authority had to be
challenged on the level of
whether [the respondent's attorney] held empowerment. Apart from more
informal requests or enquiries,
applicant's remedy was to use Court
Rule 7(1). It was not to hand up heads of argument, apply textual
analysis and make submissions
about the adequacy of the words used by
a deponent about his own authority.'
9.2 The replying
affidavit relates almost entirely to the attorney’s interaction
with the respondent in bringing the application
for the liquor
licence on behalf of the applicants and his further dealings with the
respondent until the liquor licence was granted.
The rest of the
allegations therein relate to the form of the affidavits filed in
this matter. There is to my mind no other person
who could be more
able, by virtue of his personal knowledge of the subject matter, to
deal with the replying affidavit.
10. The
applicants’ attorney states
inter
alia
in
the replying affidavit that he had, prior to the applicants bringing
the application to compel, written no fewer than 15 letters
to
respondent enquiring as to the status of the liquor licence
application, with no obvious results.
He states further that he
has 20 years experience in handling liquor licence applications for
clients and that to his knowledge these
applications never take
longer than 3 months to be considered.
11. The respondent has to
my mind clearly acted unreasonably in delaying the consideration of
the applicants’ liquor licence application.
The reasons for the
delay submitted by the respondent are at best sketchy and inadequate.
It gives no acceptable explanation as
to why the applicants’
liquor licence application could not be finalised in the 12 months
since its lodgement until the dissolution
of the respondent’s then
Board. The reason for the delay of approximately 7 months in the
appointment of a new board shows a complete
disregard of the rights
of the public.
The respondent has in
fact admitted that it only started processing the application for the
liquor licence after receipt of the application
to compel. It begs
the question as to when, if ever, the applicants’ liquor licence
application would have been considered had
it not been for the
application to compel.
12. The
applicants have based the present application on the provisions of
the Promotion of Administrator Justice Act, Act 3 of 2000
(
“the
Act”
).
Section 6 of the Act has
inter
alia
the following provisions:
“
6
Judicial
review of administrative action
(1) Any person may
institute proceedings in a court or a tribunal for the judicial
review of an administrative action.
(2)
A court or tribunal has the power to judicially review an
administrative action if-
.
. . . . .
(g) the action
concerned consists of a failure to take a decision;
(3)
If any person relies on the ground of review referred to in
subsection (2) (g), he or she may in respect of a failure to take
a
decision, where-
a)(ii) there is no law
that prescribes a period within which the administrator is required
to take that decision; and
(iii) the
administrator has failed to take that decision,
institute proceedings
in a court or tribunal for judicial review of the failure to take the
decision on the ground that there has
been unreasonable delay in
taking the decision;”
Section
8 of the Act provides for the remedies in proceedings for judicial
review and reads inter alia as follows:
“
8(2)
The court or tribunal, in proceedings for judicial review in terms of
section 6 (3), may grant any order that is just and equitable,
including orders-
(a) directing
the taking of the decision;
(d) as
to costs.
13. Based on my finding
herein that there has been an unreasonable delay on the part of the
respondent in taking the relevant decision,
I can see no reason why
the respondent should not be ordered to pay the costs of this
application as provided for in the Act.
14. The respondent has in
any event clearly conceded the merits of the application and offered
no compelling reasons why the general
rule, that the costs follow the
event, should be departed from.
In the event it is
ordered that the respondent pays the costs of the application.
________________________
C.C
WILLIAMS
JUDGE
For
Applicants: Adv L Le R Pohl
Haarhoffs
For
respondent: Adv E Mokutu
Towell &
Groenewaldt