Lebogang and Others v Liquor Board of the Northern Cape Province (127/03) [2003] ZANCHC 55 (23 June 2003)

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[2003] ZANCHC 55
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Lebogang and Others v Liquor Board of the Northern Cape Province (127/03) [2003] ZANCHC 55 (23 June 2003)

Verslagwaardig:
JA/NEE Sirkuleer onder
Regters: JA/NEE
Sirkuleer onder Landdroste:
JA/NEE
IN DIE HOOGGEREGSHOF VAN SUID-AFRIKA
IN
THE HIGH COURT OF SOUTH AFRICA
(Noord-Kaapse
Afdeling / Northern Cape Division)
Case No: 127/03
Date
Heard: 16 May 2003
Date
Delivered: 23 June 2003
In
the case between:
MATHEKA
PETRUS LEBOGANG 1
st
Applicant
STRENGTH
KOK 2
nd
Applicant
JOSIAH
LEGOBANG MODUPE 3
rd
Applicant
GEORGE
MONNAGANGADIWA THEBEGAC 4
th
Applicant
TSHEPO
NELSON LEDWABA 5
th
Applicant
ESTHER
MARIA MODUPE 6
th
Applicant
MARENCIA
ESTELE VAN WYK 7
th
Applicant
DAISY
MAHIMONYANE 8
th
Applicant
PATRICK
SAMUEL KGOMO 9
th
Applicant
JOHANNES
BUYS 10
th
Applicant
JENNY
PHETLO 11
th
Applicant
ANNA
MASIETSI MODUPE 12
th
Applicant
ISAAC
ITUMELENG MEKGWE 13
TH
Applicant
And
THE
LIQUOR BOARD OF THE
NORTHERN
CAPE PROVINCE 1
st
Respondent
THE
CHAIRPERSON OF THE LIQUOR
BOARD
OF THE NORTHERN CAPE
PROVINCE 2
nd
Respondent
JUDGMENT
TLALETSI AJ:
INTRODUCTION AND
ORDER
1. This is the return date of a
Rule Nisi
issued by my
brother Buys, J which was brought on urgency on the 21 February 2003.
The relief sought by the thirteen applicants
was more or less to the
following effect:
That the first respondent
(“The Northern Cape Liquor Board”) be interdicted or prohibited
from considering or hearing the
applicant’s individual
applications for liquor licences in public on the 26
th
February 2003 whether it be at the Kimberley City Hall or at the
MetLife Tower Building.
That the
Northern Cape Liquor Board and its chairperson (the second
respondent) were called upon on the return date to furnish
reasons
why:-
The Court
must not issue a Declaratory Order directing the chairperson of
the Northern Cape Liquor Board not to exercise the
powers or
discretion vested in him in terms of Section 12(1) of the Liquor
Act, Act no: 27 of 1989 arbitrarily or capriciously,
but must do
so judicially or legally;
The Court should not make a
finding that the Liquor Board and/or its chairperson erred in not
having heard the applicants’
application for liquor licences in
camera
or in private;
The Court should not make a
finding and Order that the aforesaid applications be heard and
determined in
camera
by the Liquor Board and its members.
In addition
the two respondents were called upon to furnish reasons, in the
event of the Court directing that the applications
may be heard and
determined in public in the City Hall, why the Court should not
find that:
The
Chairperson used the powers or discretion vested in him by Section
12(1) of the Liquor Act arbitrarily or capriciously by
inviting
(in addition to applicants and the designated police officer)
other persons and/or bodies to make inputs in the applicants’
applications.
Regard must
only be had by the respondents to the contents of the applicants’
applications as supplemented by the report of
the designated
police officer and if deemed necessary to the oral evidence of the
applicants and/or legal argument.
1.4 That the respondents be ordered jointly and severally to pay the
costs of the application.
BACKGROUND
2. A brief background is necessary to enable the matter to be
understood in context. All the applicants have lodged their
individual
applications for the grant and issuing of the Special
Liquor Licence (on consumption) by the Liquor Board, situated within
the boundaries
of the Sol Plaatjie Municipality (the Municipality).
3. The applicant’s notices of intention to lodge the applications
were advertised in the relevant Government gazette at different
dates
and were lodged with the Magistrate office. The time allowed for the
submission of objections, if any, lapsed without any
objection. The
designated police officer submitted his report in respect of each
application in which he states that the South African
Police Services
possess no information why the applications should not be granted.
4. During December 2002 applicants received letters from the Liquor
Board which invited them to a meeting to be held to afford them
an
opportunity to address the Board on two issues namely: public
interest and whether the applications had been advertised in the
Government gazette and to provide copies of such publications.
5. Mr. Lodewikus Jacobus Smith, a consultant who prepared and
lodged the applications on behalf of all the applicants is said to
have
conducted an investigation at the administrative offices of the
Liquor Board. He is a former designated police officer of the Liquor
Board. He obtained from an undisclosed source a controversial letter
marked Annexure P1 dated 31 March 2002 addressed to the “Head
Liquor Affairs, Northern Cape Province” for the attention of one J
K Shai. It purports to originate from the Office of the City
Manager
and has been signed on his behalf.
6. In terms of the letter Ms Connie Seoposengwe, the MEC for Safety
and Liaison is said to have intimated at a meeting of 8 April
2002
that Local Government has a role to play and that role players must
communicate with each other in order to solve problems.
Alcohol
abuse was identified as a key problem. A request was made to the
addressee for his Board not to issue any liquor licence
on
residential sites, before the City Council has complied with the
procedure stipulated in the Northern Cape Planning and Development
Act. A further request was made for future correspondence in respect
of liquor licence applications to be referred to the Chief:
Urban
Planning for his attention.
7. The respondents have taken the liberty to invite Mr. Raymond
Gouvea an official of the Municipality, the MEC Safety and Liaison
as
well as a Ward Councillor to the meeting of the Liquor Board
scheduled for the 26 February 2003 to make their inputs. Section
12
of the Act authorises the Chairman of the Liquor Board to cause any
person to be present who may be affected by or is concerned
in the
consideration of a particular matter by the Liquor Board. The
Chairperson of the Liquor Board is further authorized to cause
any
person to be summonsed to give evidence or produce any document or
any other thing which is in his possession or custody or control
which in the opinion of the Chairman relate to any matter to be
considered by the Liquor Board.
8. The public meeting of the 23
rd
February 2003, the
decision to invite persons referred to in paragraph 7 above, as well
as “Annexure P1” are the main causes
that precipitated these
proceedings. This application is brought in terms of Section
19(1)(a)(iii) of the Supreme Court Act, Act
no. 59 of 1959, which
gives the High Court,
inter alia
the authority at the instance
of any interested person, to enquire into and determine any existing,
future or contingent right or
obligation notwithstanding the fact
that such person cannot claim any relief consequential upon the
determination. It is a discretionary
remedy which should not be
exercised to decide issues which are merely abstract, academic or
hypothetical in nature.
POINTS IN LIMINE
9. The respondents are opposing the confirmation of the
Rule
Nisi
. They have raised a number of points
in limine
:-
It is advisable
to dispose of the points
in limine
at this stage because
should the respondents succeed on these points it will not be
necessary to deal with the merits of the application.
Mr. Mphaga who
appeared on behalf of both respondents submitted that the applicants’
application should have been brought as a
review application before
two judges and not a Declaration of rights. The relief sought by the
applicants, he argued, was to set
aside the decision of the Chairman
of the Liquor Board to convene the meeting of the Liquor Board under
the pretext of a public meeting
and also the decision of the Chairman
of the Liquor Board to invite certain persons or bodies as witnesses
to attend the hearing.
He further submitted that the applicants are
seeking a
mandamus
against the respondents which can only be
granted after the decision of the respondents have been set aside in
execeptional circumstances
which circumstances have not been
established in this case.
10. A further point argued on behalf of the respondents is that
the “ruling” made by the Chairman of the Liquor Board on the form
or nature which the meeting will take and the invitation of witnesses
is ‘interlocutory’ and is not reviewable under the circumstances.
It was furthermore contended that the entertaining of the
application brought by the applicants at this stage and in its
present
form is tantamount to piece-meal adjudication of issues and
pre-empts the respondent’s conduct of the proceedings, which may be
a subject of review at a later stage.
11. Mr. Botha on behalf of the applicants argued in response to
the points
in limine
that although the effect of the relief
sought by the applicants is the setting aside of the decision of the
respondents not to entertain
the applicants’ applications
in
camera
, that this is not a review application and that it is
therefore not necessary to follow the procedure set out in Rule 53 of
the Uniform
Rules of Court. He further argued that failure to follow
the procedure in Rule 53 did not in any way prejudice the respondents
as
they have responded to the applicant’s case.
12. Kriegler AJA, as he then was, in
Jockey Club of South
Africa v Forbes
1993(1) SA 649 (A) at 661 E – G stated:
“
Counsel for
the Jockey Club made much of the peremptory language in which Rule 53
is couched, for example ‘all proceedings… shall
be…’ in
subrule (1) and the repeated use of ‘shall’ in the succeeding
subrules. Clearly that use of language cannot be overlooked,
but
equally clearly it is to be understood conceptually and contextually.
The primary purpose of the Rule is to facilitate and regulate
applications for review. On the face of it the Rule was designed to
aid an applicant, not to shackle him. Nor could it have been
intended that an applicant for review should be obliged, irrespective
of the circumstances and whether or not there was any need
to invoke
the facilitative procedure of the Rule, slavishly – and pointlessly
– to adhere to its provisions.”
The learned
judge further found that in that particular instance the provisions
of Rule 53 were inapposite and their invocation would
merely have
resulted in a fruitless exercise and the wastage of time and money.
He found that the Court
a quo
correctly accepted the
procedure followed by the applicant under the circumstances of that
application.
13. The Act makes
provision for the grounds for review and gives the High Court certain
powers when dealing with review proceedings.
Section 130 of the Act
gives the aggrieved applicant or objector the right to request the
competent authority to furnish reasons
for its decision. The
competent authority is obliged to comply with the said request.
Regulation 91 and 92 of the Regulations promulgated
in terms of Sec
182 of the Act regulate the procedure to be followed when an
application for reasons for a decision is to be made
and how the
competent authority should comply with such request. The reasons
furnished are to be the same as in respect of a judgment
in a
Magistrate’s Court in civil proceedings.
14. Section 131 of the Act affords an opportunity to the
applicant or objector who feels aggrieved by a decision made by a
competent
authority in connection with his application or objection
to apply for the review of such a decision. Section 134 affords the
applicant
an opportunity to appeal against the decision of the
competent authority. Similarly the procedure to be followed is that
followed
in appeals against a judgment of a Magistrate’s Court in
civil proceedings. However the present case is to be distinguished
from
the
Jockey Club of South Africa
case (supra) in that
in
casu
specific reference to review proceedings is made by
legislation.
15. I agree with the
submission that the applicants should not be denied the choice of
approaching the Court for a Declaratory Order.
However this is not a
case that warrant the Court to exercise its discretionary powers
provided for in Section 19(1)(a)(iii) of
the Supreme Court Act, Act
No. 59 of 1959 in favour of the applicants. To argue that because
the applicants have in any case made
out a proper case in terms of
Section 131(a) and that they are therefore entitled to the relief
sought in my view holds no water.
It is accepted that where review
proceedings are not open to a party aggrieved by a decision of a
quasi-judicial body or that party
decides not to review those
proceedings it is in certain circumstances competent for him/her to
apply for a declaration of rights.
See:
Bayat and Others v Hansa
& Another
1955(3) SA 547 (N) at 551 G and 552 A. However to
allow this approach under these circumstances would encourage
applications being
brought to this Court for determination of issues
from incomplete proceedings yet to be decided by the tribunal.
16. The next argument presented on behalf of the applicants is
that the decision taken by the Liquor Board in terms of section 12(1)
of the Act is a procedural ruling which cannot be the subject of
review or appeal. In this regard reference is made to:
Guardian
National Insurance Co Ltd v Searle
NO
1999(3) SA 296 A.
Howie JA had the following to say at page 301 B – C:
“
As previous
decisions of this Court indicate, there are still sound grounds for a
basic approach which avoids the piecemeal appellate
disposal of the
issues in litigation. It is unnecessarily expensive and generally it
is desirable, for obvious reasons, that such
issues be resolved by
the same Court and at one and the same time. Where this approach has
been relaxed it has been because the
judicial decisions in question,
whether referred to as judgments, orders, rulings or declarations,
had three attributes. First,
they were final in effect and not
susceptible of alteration by the court of first instance. Secondly,
they were definitive of the
rights of the parties, for example,
because they granted definite and distinct relief. Thirdly, they had
the effect of disposing
of at least a substantial portion of the
relief claimed.”
17. I am bound by this principle. The difficulty with the present
application is that the cause of complaint seem to be premature.
The
consideration of the merits of this application will be tantamount to
piecemeal disposal of the applications of the liquor licences.
The
respondents have not yet exercised their discretion in terms of the
Act and the Court should be loath to interfere as it may
lead to
pre-empting the outcome of the application. It cannot be said that
the applicants have suffered or will suffer any prejudice
as the
outcome of the entire applications is yet to be decided.
18. The next aspect is the nature of the Orders sought by the
applicants. It is common cause that the urgency of the matter is now
history. The Court is requested in clause 1.2.1 of the
Rule Nisi
(see paragraph 1 above) to order the Chairman of the Liquor Board not
to exercise his discretion in terms of Section 12(1) of the
Act
arbitrarily but to do so lawfully. This is a trite principle of the
Law and needs no determination by this Court.
19. To order at this stage whether or not the meeting should be
held in
camera
and give directions as regards what is or not
to be considered by the respondents when dealing with the applicants
applications would
in my view be an unwarranted interference with the
discretionary powers granted to the respondents by the Legislature.
It is common
cause that the respondents have the authority to decide
on the nature of the meeting and further to invite or subpoena
persons or
witnesses to its meetings. To grant the order sought by
the applicants will be usurping the powers of the respondents.
20. Section 22(2)(b) directs that the Chairman of the Liquor
Board shall not grant an application for a special licence unless
exceptional
circumstances warrant the granting of the licence. To
determine whether exceptional circumstances exist or not is the
preregotive
of the Liquor Board and it is in my view not advisable to
intercede when the process is still in progress. The Court will be
in
a better position to make a proper determination when the process
is completed but only if the need arises. Most of the grievances
raised by the applicants are issues that should be raised with the
respondents at the appropriate forum. For the above reasons the
points in
limine
should be upheld.
21. It is therefore not necessary to consider the submissions on the
merits. What remains is the issue of costs. There is no
justification
for the departure from the general rule that costs
should follow the result. The applicants took a risk by approaching
this Court
with this application prematurely and in the current
format and should therefore bear the consequences.
I
therefore make the following Order:
1. The point in limine is upheld. The Rule Nisi is discharged.
2. The applicants are ordered to pay the costs occasioned by this
application.
______________________________
L P TLALETSI
ACTING JUDGE
ADV. BOTHA FOR
APPLICANTS: INSTRUCTED BY MESSRS. ENGELSMAN, BENADE & VAN DER
WALT
ADV. MPHAGA FOR
RESPONDENTS: INSTRUCTED BY MESSRS. MJILA & PARTNERS