SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 043519/24
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE 17/01/25
SIGNATURE
In the matter between:
PARADISE HOTEL & ENTERTAINMENT Applicant
LOUNGE (PTY) LTD
(REG NO: 2018/489185/07)
and
GAUTENG PROVINCIAL LIQOUR BOARD Responden t
JUDGMENT
Joyini J
INTRODUCTION
[1] This is an application to review and set aside the decision taken by the
respondent to withdraw the Hotel Liqour Licence (“the licence”) of the
applicant.
[2] The application is brought in terms of the section 6(2) of the Promotion of
Administrative Justice Act, Act 3 of 2000 (herein referred to as “PAJA”) .
[3] The decision by respondent was taken on 30 March 2023 and communicated
on two occasions, being 19 April 2023 and 25 October 2023, by means of an
official electronic communication (“email”) ,1 directly to the applicant’s legal
representative.
[4] The court appreciates the insightful and engaging submissions from both
parties' legal representatives, which greatly assisted in adjudicating this
matter .
BACKGROUND FACTS
[5] According to the parties to this matter, the factual background to this
application is largely common cause, but for the allegations that the applicant
was found to be “in contravention of the licence conditions” . It is also common
cause that the applicant’s business was closed down on 28 December 2023,
and remains closed up and until this date.
[6] The applicant was issued with a licence as far back as 18 October 2018,
authorising the applicant to trade a s a bona fide hotel at its premises situated
in Vanderbijlpark .2 On the same day, an inspection was conducted at the
applicant’s premises by the South African Police Services (“SAPS”), and more
specifically by Captain Alwyn Wilken.
[7] On 29 September 2022, the applicant was issued with a renewal certificate
regarding its licence.3
[8] Subsequent to that, a report was filed by SAPS requesting that an inquiry be
held in terms of section 105, alternatively , section 106 of the Gauteng Liqour
Act 2 of 2003 (hereinafter referred to as “the Act”).4
1 Caselines 02 -187; 02 -190 para 10.
2 Caselines 02 -46.
3 Caselines 02 -47.
ISSUES FOR DETERMINATION
[9] Whether the answering affidavit deposed to by Mr Otto Mbongeni Shabangu
constitutes inadmissible hearsay evidence;
[10] Whether the decision of the respondent is reviewable on the grounds for
review as set out in terms of section 6(2) of PAJA, and as such, stands to be
reviewed and set aside;
[11] Whether exceptional circumstances exist which would justify the court to
direct the respondent to take the decision it should have taken in the first
place (without remitting the matter to the respondent to consider it afresh).
POINT IN LIMINE
[12] Counsel for the applicant raised a point in limine on the issue of the
deponent (Mr Otto Mbongeni Shabangu ) to the answering affidavit of the
respondent .
[13] Counsel’s concern is that Mr Shabangu has no personal knowledge with
what had transpired during the deliberation s between the members of the
Board and the Chairperson, who ultimately made the decision and signed
the letter withdrawing the applicant’s licence.
[14] Counsel for the applicant put this matter before court for determination, more
specifically, w hether the answering affidavit deposed to by Mr Shabangu
constitutes inadmissible hearsay evidence.
[15] Counsel for the respondent referred the court to Plettenburg Bay Country
Club v Bitou Municipality ,5 where the court held: “[6] In motion proceedings
any person, who can positively attest to the facts, is entitled to depose to an
4 Caselines 02 -48 to 02 -81.
5 (6163/04) [2005] ZAWCHC 79; [2006] 4 All SA 395 (C) (24 October 2005) .
affidavit, whether it is the founding affidavit or any ancillary affidavit, and no
specific authority is required. It is the institution of the proceedings that must
be authorised. ”
[16] Counsel for the respondent argues that in casu , the said deponent (Mr
Shabangu) is a senior employee of the respondent, who is responsible for all
legal matters thereof and is the one who ordered the inspection of the
applicant. He participated in the hearing and was aware of how it concluded.
He is therefore fully conversant with all the facts of the matter at hand. Due
to the non -availability of the erstwhile chairperson and deputy chairperson
who are no longer members of the respondent at the time of the drafting of
the answering affidavit, the deponent was readily available to depose. The
respondent requests this to be condoned, on the undertaking that a
confirmatory affidavit shall have been filed ahead of the hearing of this
application.
[17] In Sasol South Africa t/a Sasol Chemicals v Penkin ,6 the court held: “ Proper
administration of justice and interests of justice – this is an instance where
there is no real prejudice to the applicant. The correct approach to less than
perfect procedural steps is to consider them in the context of prejudice and
the interests of justice. The interests of justice is the yardstick for the court’s
discretion to overlook such steps where objections thereto would have no
effect other than to foment delay and increase costs. The rules of civil
procedure exist to ensure that every litigant has an opportunity to place its
case before the Court so that a proper ventilation of the dispute between
parties can take place. Where a litigant takes steps to prevent this from
happening, this undermines the right in section 34 of the Constitution, the
proper administration of justice and results in unnecessary delays and
increased costs. In the absence of real prejudice, this conduct should not be
permitted, and ought to meet with strong censure from the Court. ”
6 (06609/2020) [2023] ZAGPJHC 329; 2024 (1) SA 272 (GJ) (14 April 2023).
[18] In light of the authori ties referred to above , I am of the view that the applicant
in casu does not suffer any prejudice resulting from this issue of the deponent.
As such, it is my considered view that there is no harm in dismissing the point
in limine raised by the applicant. Therefore, the answering affidavit deposed to
by Mr Shabangu does not constitute inadmissible hearsay evidence.
APPLICANT’S CONTENTION
[19] According to the counsel for the applicant, o n 5 January 2023, Mr Shabangu
(Director: Law Enforcement and Compliance Unit of the respondent)
requested the Inspectorate of the respondent to investigate complaints
received from Captain Wilken.
[20] On 20 January 2023, an inspection was held by the inspectors of the
respondent at the applicant’s premises.
[21] On 23 January 2023, a report was submitted by the Inspectorate of the
respondent.7 It was indicated that there is no evidence of any contraventions
of the Act as per the findings of the Inspectorate in their report. The
inspectors, however, recommended in their report that the owner of the
applicant as well as Captain Wilken be summoned in terms of section 10 of
the Act to appear before the Inspectorate to give clarity regarding certain
allegations.
[22] Subsequent to some correspondence having been exchanged between the
respondent and the applicant and/or his legal representative, a hearing was
conducted before the respondent on 30 March 2023, in terms of section 106
of the Act. According to the counsel for the applicant, there is not an iota of
evidence from the record that the applicant was in any contravention of any of
its liquor licence conditions. A letter of withdrawal was issued on 26
September 2023 and it was signed on 25 October 2023. The ultimate decision
by the respondent to withdraw the applicant’s hotel liquor licence is in
7 Caselines 02 -106 to 02 -108.
contradiction with the finding and report submitted by its own Inspectorate.8
Remember, Captain Wilken from SAPS did not disagree with this report in the
hearing.
[23] The withdrawal of the licence prompted an urgent application which was
issued in the Gauteng Local Division, Johannesburg, under Case No:
134629/23 and thereafter this present application for review which was served
on the respondent on 2 May 2024.9 Counsel for the applicant submits that this
application for review was lodged timeously within the prescribed 180 days as
is required in terms of section 7(1) of PAJA.
RESPONDENT’S CONTENTION
[24] Counsel for the respondent contends that the application must fail for the
following reasons: The respondent had the authority to take the decision it
took; it was authorised by the empowering provision s of the Act and its action
was not materially influenced by any error of law; etc.
[25] In response to the applicant’s contention that the respondent’s decision was
irrational and unfair, counsel for the respondent argues that the respondent
exercised its discretion and took the decision based on the Act, regulations,
reports from SAPS and the Inspectorate, a procedurally fair process leading
to a hearing, and weighing all the evidence before it.
[26] Counsel for the respondent referred the court to Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others10 where the court held
that the exercise of public power will be rational if it is connected to the
purpose for which the power was conferred. In casu , nothing the respondent
did that contradicted the purpose of the power it has.
[27] Counsel for the respondent submits that in the process of enforcing
adherence to the licence conditions, the respondent may receive reports
8 Caselines 02 -106 to 02 -108.
9 Caselines 26 -1 to 26 -2.
10 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000).
about the conduct of a licence holder, and in their discretion, take an
appropriate decision and this is exactly what the respondent did.
[28] Counsel for the respondent argues that the decision to withdraw the
applicant’s licence was warranted and justified. The applicant’s contention is
that in reaching its (respondent’s) decision, the respondent did not consider
Captain Wilken’s response at the hearing where he did not disagree with the
report of the inspectorate . The findings of this report exonerated the applicant
by indicating that there were no contraventions of the Act. In response to this,
counsel for the respondent argues that in respondent’s assessment, in the
context of a cordial hearing, the respondent viewed the Captains’s response
as avoiding to over -reach.
[29] Counsel for the respondent referred the court to Tellumat (Pty) Ltd v Appeal
Board of the Financial Services Board11 where it was held: “… a court must be
careful not to overturn a decision on review merely because it disagrees with
it. It must be alive to the fact that it was primarily for the decision maker to
determine which facts are relevant and which not. But, once the court is
satisfied that the decision could only properly be taken if certain facts,
overlooked by the decision maker, were taken into account, it is entitled to
interfere. Similarly, once it is satisfied that in taking the decision certain facts
that were taken into account should not have been, it may interfere.12 Even
when all relevant facts were considered the court will have to consider the
weight attached to the facts.
ANALYSIS
[30] Administrative action must be reasonable and rational. This means that the
action taken must make sense given the information that is available to the
person who makes the decision to take the action. When the administrator is
using discretion, they can only take relevant factors into account. If relevant
factors are not considered, or irrelevant factors are taken into account, then
11 (221/2015) [2015] ZASCA 202; [2016] 1 All SA 704 (SCA) (2 December 2015).
12 Jacobs en ‘n Ander v Waks en Andere [1991] ZASCA 152 ; 1992 (1) SA 521 (A) at 550D -H.
the decision is not taken for good reason s. In such a case, a court can review
the decision.
[31] The precise point at which a court is entitled to interfere may not be entirely
clear, but as Henning J said many years ago,13 ‘where a factor which is
obviously of paramount importance is relegated to one of insignificance, and
another factor, though relevant is given weight far in excess of its true value’
interference is warranted. I would suggest that it is essential.
[32] The only ground for review to which we need to have regard in casu , is that
set out in s 6(2)( e)(iii) of PAJA. That provides that a court may review
administrative action if it was taken because irrelevant considerations were
taken into account or relevant considerations were not considered. This
encapsulates a principle that was part of our administrative law prior to s 33 of
the Constitution or the enactment of PAJA, namely that a functionary who
‘took into account irrelevant considerations or ignored relevant ones’ was
liable to have their decision overturned on review.
[33] With the utmost respect to the respondent in casu , it seems to me that it
(respondent) failed to give sufficient consideration to the fact that its
(respondent’s) decision to withdraw the applicant’s hotel liquor licence is in
contradiction with the finding and report submitted by its own Inspectorate.14
Remember, Captain Wilken from SAPS did not disagree in the hearing with
this report which indicated that there were no contraventions or violation of the
Act by the applicant. This means that this factor which is obviously of
paramount importance was relegated to one of insignificance by the
respondent. This, on its own , warrants court’s intervention in the form of
reviewing the respondent’s decision.
[34] While it is true that it is, generally speaking, for the decision -maker to
decide how much weight to attach to each relevant factor, he or she still
13 Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667 (N) at
685C -D.
14 Caselines 02-106 to 02 -108.
has to give them proper consideration . In Bangtoo Bros & others v National
Transport Commission & others15 Henning J held that the tribunal
concerned in that case was ‘essentially obliged to consider all relevant and
material information placed before it’ and to ‘pay mere lip service to this
obligation is not sufficient, just as it would be a dereliction of duty to hear
representations which are pertinent, and then to ignore them’.
[35] A decision is irrational in the strict sense of that term if it is unreasoned; if it
is lacking ostensible logic or comprehensive justification. Instances of
irrational decisions include those in which there is an absence of logical
connection between the evidence and the ostensible reasons for the
decision, where the reasons display no adequate justification for the
decision, or where there is absence of evidence in support of the decision.
CONCLUSION
[36] Taking into account the totality of the evidentiary material, arguments and
submissions by parties’ counsel, I am of the view that the respondent , in casu ,
failed to give sufficient consideration to the fact that its (respondent’s) decision
to withdraw the applicant’s hotel liquor licence is in contradiction with the
finding and report submitted by its own Inspectorate.16 Remember, Captain
Wilken from SAPS did not disagree in the hearing with this report which
indicated that there were no contraventions or violation of the Act by the
applicant. This means that this factor which is obviously of paramount
importance was relegated to one of insignificance by the respondent. This , on
its own , warrants court’s intervention in the form of reviewing the respondent’s
decision.
COSTS
[37] One of the fundamental principles of costs is to indemnify a successful litigant
for the expense put through in unjustly having to initiate or defend litigation. The
15 1973 (4) SA 667 (N) at 685C -D.
16 Caselines 02 -106 to 02 -108.
successful party should be awarded costs.17 The last thing that our already
congested court rolls require is further congestion by an unwarranted
proliferation of litigation.18
[38] It is so that when awarding costs, a court has a discretion, which it must
exercise after a due consideration of the salient facts of each case at that
moment. The court is expected to take into consideration the peculiar
circumstances of each case, carefully weighing the issues in each case, the
conduct of the parties as well as any other circumstances which may have a
bearing on the issue of costs and then make such order as to costs as would
be fair in the discretion of the court.
[39] No hard and fast rules have been set for compliance and conformity by the
court unless there are special circumstances.19 Costs follow the event in that
the successful party should be awarded costs.20
[40] In light of these considerations and both parties’ argument relating to the costs
of this application , I am accordingly inclined to grant costs in favour of the
applicant on a party and party scale.
ORDER
[41] In the circumstances, I make the following order:
[41.1] The point in limine raised by the applicant on the issue of the deponent (Mr
Otto Mbongeni Shabangu ) to the answering affidavit of the respondent is
hereby dismissed ;
[41.2] The decision of the respondent to withdraw the applicant’s hotel liqour licence
(NO. G[...] 8[...] ), originally issued on 18 October 2018, is hereby reviewed
and set aside;
[41.3] The respondent is hereby ordered to pay the costs on a party and party scale.
17 Union Government v Gass 1959 4 SA 401 (A) 413.
18 Socratous v Grindstone Investments (149/10) [2011] ZASCA 8 (10 March 2011) at [16].
19 Fripp v Gibbon & Co 1913 AD 354 at 364.
20 Union Government v Gass 1959 4 SA 401 (A) 413.
T E JOYINI
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the applicant : Adv L A Pretorius
Instructed by : H G Aucamp Attorney
Email : stefani@hgaprok.co.za
C/o Le Grange & Associates Inc, Pretoria
Email : jaco@legrangeinc.co.za
For the respondent : Adv S E Zungu
Instructed by : State Attorney , Pretoria
Email: NatNell@justice.gov.za
Date of Hearing: 15 November 2024
Date of Judgment: 17 January 2025
This Judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of the
parties. The deemed date and time for the delivery is 1 7 January 2025 at 10h00.