Hendrikse v Northern Cape Liqour Board and Others (323/02) [2003] ZANCHC 34 (16 May 2003)

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[2003] ZANCHC 34
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Hendrikse v Northern Cape Liqour Board and Others (323/02) [2003] ZANCHC 34 (16 May 2003)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case no: 323/02
Date
heard: 2003-04-23
Date
delivered: 2003-05-16
In
the matter of
:
SUSANNA
ELIZABETH GERTRUIDA HENDRIKSE
Applicant
versus
NORTHERN
CAPE LIQUOR BOARD
1
st
Respondent
THE
CHAIRMAN OF THE LIQUOR BOARD
OF THE NORTHERN CAPE
2
nd
Respondent
ALF
LOUW
3
rd
Respondent
EERSTE
GROEP PETISIONARISSE
4
th
Respondent
DR.
ERWIN COETZEE
5
th
Respondent
KOOS
LOUW
6
th
Respondent
TWEEDE
GROEP PETISIONARISSE
7
th
Respondent
MEV.
K. STEYN
8
th
Respondent
HANTAM
MUNISIPALITEIT
9
th
Respondent
C.
FRYER
10
th
Respondent
MNR.
G. SMITH
11
th
Respondent
C.G.
VAN STADEN
12
th
Respondent
MEV.
ILSE LOUW
13
th
Respondent
ADRIAAN
LOUW
14
th
Respondent
KERRY
LOUW
15
th
Respondent
COR
VAN NIEKERK
16
th
Respondent
DELARYNA
VAN NIEKERK
17
th
Respondent
Coram:
KGOMO
JP
et
MAJIEDT
J
JUDGEMENT
MAJIEDT
J:
This
is a review application in terms of the provisions contained in
Uniform Rule 53. The applicant’s papers are in Afrikaans,
those of the respondents primarily in English and both legal
representatives’ heads of argument were prepared in Afrikaans.
Given the outcome of this matter, I deem it prudent to deliver this
judgement in English.
The
applicant seeks the review and setting aside of the first and/or
second respondents’ decision to refuse her application for
a
liquor licence in respect of premises situated at 3 Hoop Street,
Calvinia (hereinafter referred to as “
the
premises
”).
The applicant also seeks an order that this Court issues her the
licence, alternatively refer the matter back to the first
respondent
for the approval or reconsideration and approval of her application.
The applicant also seeks an order for costs against
the first and
second respondents.
Only
the first and second respondents oppose the relief sought by the
applicant. The other respondents are objectors and groups
of
petitioners who were opposed to the first respondent issuing the
liquor store licence which the applicant had applied for.
The
papers are voluminous, there are numerous allegations and counter
allegations contained in the papers (not all of which are
germane to
the issues at hand) and numerous grounds for review had been
advanced on behalf of the applicant by Mr. De Jager. Reduced
to its
core however, the issues which require adjudication are as follows:
Whether
Mr. Lottering, a member of the first respondent, had been
disqualified by reason of bias and prejudice towards the applicant
from participating in the proceedings;
Whether
the fact that the first respondent had been differently constituted
on the two occasions when oral evidence was heard
in the course of
the proceedings renders the proceedings fatally defective.
It
is common cause on the papers (or at least not seriously disputed)
that Board member Lottering, who is resident at Calvinia,
had, at
the request of the first respondent during early 2000 laid a formal
complaint with the South African Police Services at
Calvinia against
the applicant with regard to her alleged illegal trading in liquor
(i.e. without a valid liquor licence). It
is also common cause that
Mr. Lottering had thereafter accompanied members of the SAPS to the
applicant’s business premises and
confronted her with her alleged
illegal activities. Mr. Lottering subsequently participated in the
proceedings regarding the applicant’s
application for a liquor
store licence as a member of the first respondent:
at
both sittings where oral evidence was heard,;
during
the Board’s subsequent deliberations; and
in
its decision not to approve the applicant’s application.
It
has been submitted on behalf of the respondents by Ms Bester that
Mr. Lottering’s conduct as aforesaid amounted to no more
than an
execution of his duties as a member of the first respondent which
also fulfills a watchdog role over the illegal trading
in liquor.
That may be so, but the essence of the irregularity is to be found
in his subsequent participation in all the proceedings
of the first
respondent concerning the applicant’s application for a liquor
licence.
The
test for bias in judicial proceedings has been expounded in some
detail in the judgements in
S
v Roberts 1999(4) SA 915 (SCA)
at
924 E - 925 C and
BTR
Industries South Africa (Pty) Ltd and others v Metal and Allied
Workers’ Union and another 1992(2) SA 673 (A)
at 693 I-J. In the
Roberts
case
Howie JA (as he then was) enunciated the test as follows:
a. There
must be a suspicion that the judicial officer might, not would, be
biased.
b. The
suspicion must be that of a reasonable person in the position of the
accused or litigant.
c. The
suspicion must be based on reasonable grounds.
d. The
suspicion is one which the reasonable person referred to would, not
might, have.
In
President
of the RSA v South African Rugby Football Union 1999(4) SA 147 (CC)
at
172 B the test of “apprehension of bias” rather than
“suspicion of bias” was preferred by the Constitutional Court
(compare paragraphs (a), (b) and (c) of the test in the
Roberts
case set out hereinabove).
This
approach of the Constitutional Court has now also been preferred by
the Supreme Court of Appeal over the one in the
Roberts
case;
See:
Sager
v Smith 2001(3) SA 1004 (SCA)
at 1009 I-J.
S
v Shackell
2001(4) SA 1 (SCA) at 9 C-I.
The
aforementioned principles apply equally to the first respondent
herein as a statutory licensing authority which exercises
quasi-judicial
or administrative functions -- that much is now trite
in our law. Moreover, section 34 of the Constitution determines
that:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum”.
Where,
as is the case here, a member of a court or tribunal sitting with
others incorrectly declines to recuse himself or herself
from the
hearing, that particular decision may well have the effect of
fatally contaminating the ultimate decision of the court
or
tribunal. In the case of
President
of the RSA v SA Rugby Football Union,
supra
,
it was expressed as follows by the Court at 170 C:
“
It follows that
if a Judge incorrectly refuses to recuse herself or himself the
remaining members of a panel should not sit with that
Judge as the
proceeding would be irregular.”
10.1 In
this matter, on the proved or admitted facts, Board member Lottering
went further than merely setting the law in motion as
far as the
applicant’s alleged illegal activities were concerned -- he in fact
participated actively in confronting the applicant
with her alleged
misdemeanour and thereafter formed part of the Board which had to
adjudicate on,
inter
alia
,
the very same applicant’s suitability as holder of a liquor
licence.
10.2 As
such the principle
nemo
debet esse judex in causa propria sua
is applicable -- having exhibited a substantial direct interest in
the matter, Lottering became precluded from acting as a member
of the
Board hearing the applicant’s application for a licence.
Cf.:
Marker
v R
(1916) 37 NLR 508
,
where a magistrate had been compelled to recuse himself in a case
where, in a prosecution for trespassing on Crown land under the
Natal
Act 13 of 1874, the magistrate had issued a statutory notice to cease
trespassing and had threatened a prosecution.
10.3 Moreover
and in addition to the aforegoing, I am of the view that there is
clear proof of enmity or hostility towards the applicant
on the part
of Lottering. His conduct in accompanying the members of the SAPS
and in confronting the applicant is indicative of
a subjective
disposition towards the applicant which demonstrates enmity or, at
the very least, hostility towards her.
See:
Nel
v Magistrate, Sutherland 1926(1) PH F80 (C).
See
also:
S
v Nellmapius
(1886) 2 OR 121
.
10.4
Ms
Bester for the respondents had great difficulty in persuading us that
the conduct of Lottering did not have the effect of a real
apprehension of bias which was reasonable in the circumstances on the
part of the applicant. In my view Lottering’s subsequent
participation in the proceedings of the first respondent in the
hearing of oral evidence, its deliberations and its subsequent
decision
against the applicant was a fatal irregularity in the
proceedings.
Having
come to the aforesaid conclusion, it is not strictly necessary to
deliberate any further on the second aspect, namely whether
the fact
that the Board was differently constituted at the two hearings,
constitutes a further ground for reviewing and setting
aside the
decision of the first respondent. Be that as it may, I have little
doubt that it is a fatal defect in the proceedings,
inasmuch as the
board member, Mr. Shai, had not been present during the first
hearing when oral evidence was led. I find it difficult
to
comprehend how it could be said that he was able to form an
independent, impartial and informed opinion with regard to the

merits of the applicant’s application,
sans
any
participation at the first hearing. A further factor which
aggravates matters, is the fact that the audio tapes which were
used
to record the proceedings during the two sittings when oral evidence
was heard, are inaudible and incapable of transcription.
Mr. Shai
could therefore not even have had the benefit of listening to the
audio tapes in order to familiarize himself with that
part of the
proceedings which he had missed.
While
I am dealing with these inaudible tapes, I must register my extreme
disquiet at the fact that this is the third matter in
succession
involving the first respondent, the Northern Cape Liquor Board,
where audio tapes used at a hearing of the Board have
turned out to
be inaudible and therefore incapable of being transcribed. This
defeats the purpose completely and is a shortcoming
which should be
corrected without delay by the Board. It is a defect which may hold
substantial potential prejudice to applicants
in like applications
and may even lead to the first respondent’s authority being
brought into disrepute since proceedings before
it are not properly
recorded.
It
is clear therefore that the first respondent’s decision stands to
be reviewed and set aside. Mr. De Jager has correctly conceded
that
the most appropriate remedy in the circumstances would be to remit
the matter to first respondent for its deliberation and
decision
afresh, and that the first respondent should do so in the absence of
its member, Mr. Lottering.
As
far as the question of costs is concerned Ms Bester submitted that,
since no application for recusal had been brought at the
hearing
when it became apparent that Mr. Lottering should not be
participating in the proceedings, the applicant should be punished
with a costs order against her, as this review application would not
have been necessary. I cannot agree with that submission.
Mr.
Lottering himself, as well as the other members of the Board, were
perfectly aware of the defect in the proceedings and should
have
terminated the proceedings there and then. In any event, the fact
that a legal representative had omitted to raise a matter
as
pertinent as this at that time, cannot absolve the first respondent
from its statutory duties as an administrative organ. In
the
premises, I am of the view that the costs should follow the result
as is normally the case.
15.1 In
the premises the first respondent’s decision to refuse the
applicant’s application for a liquor store licence in respect
of
the premises situated at 3 Hoop Street (erven 101-105 and 94),
Calvinia, is hereby set aside.
15.2 The
matter is remitted to the first respondent to consider and decide the
application afresh.
15.3 It
is directed that the member of the first respondent, Mr. Lukas
Johannes Lottering, is barred from participating in any of
the first
respondent’s fresh deliberations and decision in this matter.
15.4 The
first and second respondents are ordered jointly and severally to pay
the costs of the application.
___________
SA
MAJIEDT
JUDGE
I
concur and it is so ordered.
___________
FD
KGOMO
JUDGE-PRESIDENT
FOR THE
APPLICANT : Mr. C.J. de Jager
FOR
THE RESPONDENTS : Adv. Albé Bester
ATTORNEY
FOR THE APPLICANT : Engelsman Benade & Van der Walt Inc.
ATTORNEY
FOR THE RESPONDENTS : Mankoe Inc.
DATE
OF HEARING : 2003-04-23
DATE
OF JUDGEMENT :
2003-05-16