IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL 599/2024
OF INTEREST
In the matter between
SHOPRITE SUPERMARKETS (PTY) LTD Applicant
and
EASTERN CAPE LIQUOR BOARD First Respondent
NTOMBEKHAYA M NTSHEBE N.O. Second Respondent
BUFFALO CITY METROPOLITAN
MUNICIPALITY Third Respondent
MASSMART WHOLESALE (PTY) LTD Fourth Respondent
JUDGMENT IN RESPECT OF OPPOSED
APPLICATION FOR JUDICIAL REVIEW
HARTLE J
[1] Shoprite ( the applicant) in its notice of motion seeks an order reviewing and
setting aside a decision of the Eastern Cape liquor board (“the Board ”) to refuse
Massmart’s (the fourth respondent) application to transfer its off -consumption
registration certificate to it, a related declarator going to the interpretation of section 22
(2)(d)(i) of the Eastern Cape Liquor Act, No . 10 of 2003 (“the impugned provision ” and
“the Liquor Act” respectively), a nd a mandamus directing the second respondent, the
responsible ward councilor of Ward 37, Qonce, to comply with the section’s provisions,
alternatively an order directing the Board itself to take steps to ensure that she, or the
current ward councilor, complies with the section’s provisions within a period of 10 days.
[2] When the matter was argued before this court the applicant asked only for the
alternative mandamus relief consistent with its stance that it is the Board that bears the
obligation indicated by the impugned provision, to ensure compliance by the responsible
ward committee with its statutory obligation to consult with the community and to submit
the contemplated report where the latter fails to bring his/her part.
[3] The provisions of s ection 22 of the Liquor Act are engaged inter alia when an
application is made to the provincial Board by the registered certificate holder for the
transfer of his/her/its registration certificate to another person .1 A “ person”, by
definition, includes an entity such as Shoprite.
[4] The registered certificate holder here concerned is Massmart. Shoprite acquired
certain parts of Massmart’s liquor business including a liquor store operated from
premises on Buffalo Road in Qonce. The National L iquor authority transferred
Massmart’s liquor distribution license to Shop rite. The Board, however, declined to
accede to Massmart’s formal request at provincial level to transfer the off -consumption
accede to Massmart’s formal request at provincial level to transfer the off -consumption
registration certificate, application for which was made on behalf of both Shoprite and
1 The Liquor Act does not suggest in what situations a transfer is competent but there is no dispute in the
present instance that Massmart was entitled to apply to the Board for the transfer of its certificate to
Shoprite.
Massmart by a consultant on 13 January 2023 (“ the transfer application”).2 It is this
decision which is the subject of the review relief sought.
[5] The manner in which such a transfer is to be applied for and effected is in
accordance with the same procedure and consultation process as provided for in
section 22 (2) of the Act for an application for registration in the first place.3
[6] The full section’s provisions, with its inherent idiosyncrasies, is quoted below:
“22 Application procedure for registration, transfer or removal
(1) An application for a category of registration contemplated in section
20(a), (b), (c), (d) or (e) must-
(a) be made to the board;
(b) subject to subsection (13) and section 71(2), be made in terms of this
section.4
(2) An application for registration contemplated in subsection (1) must be
made by submitting to the board-
(a) the prescribed form properly completed and specifying-
2 The 2004 Regulations promulgated under the Liquor Act (per PN 17 of 28 May 2004, as amended by
PN 35 of 2005) sanction the assistance of a consulta nt who is referenced therein as “ the person who
prepared the application”. The application was lodged by Snowstorm One Trading (Pty) Ltd t/a EC Viljoen
Liquor Licence Consultants . Ms. Erika Cornelia Viljoen filed an affidavit confirming as much and more
particularly that she gave notice to the Board and the ward committee councilor of the application for
transfer of Massmart’s holding certificate to Shoprite.
3 Whilst the 2004 Regulations provide for three distinct applications for registration, transfer o r removal,
each with their own separate requirements and forms, section 22 lumps them all together. Lest there may
be any imagination applied that less municipal oversight or community consultation is necessary where
the applicant for transfer was successful in its application for registration in the first place on the basis that
the ward committee thought it suitable to permit the sale of liquor from the premises in question, section
22 (14) (a) makes it plain that the procedure a nd consultation process provided for in respect of
applications for registration are also applicable to a transfer or a removal. Such oversight measures and
consultation afresh would certainly be valuable from the point of view that a transfer application
introduces a new person as the holder of the right to sell liquor albeit from previously approved and
therefore registered premises. See in this regard the observation of the court in Skillfull 1059 (Pty) Ltd v
Eastern Cape Liquor Board and Another (2851/2017) [2018] ZAECPEHC 38 (31 July 2018) at [23]. There
is certainly no contention in the present matter that the report of the ward committee serves a vitally
necessary component of an application to register, transfer, or remove and that its absence wil l confound
the Board’s ability to adjudicate such applications in the manner envisaged by the Liquor Act sensitive to
the necessary object that community considerations on the registration of retail premises are taken into
account.
4 There does not appear to be a sub-section (13) but (14) is read in its place.
(i) the particulars of the applicant which, in the case of-
(aa) a natural person, must include his or her full name,
identity number and residential address and a statement that
he or she is not disqualified for registration in terms of section
21;
(bb) a company or close corporation must include its full
name, registration number and the address of its registered
office;
(cc) a company, except for a company which is listed on the
Johannesburg Stock Exchange, must include the names,
identity numbers and residential addresses of all shareholders
and a statement that none of them is disqualified from
registration in terms of section 21;
(dd) a close corporation, the names, identity numbers and
residential addresses of all its members and a statement that
none of them is disqualified from registration in terms of section
21;
(ee) a trust, must include the names, identity numbers and
residential addresses of all its trustees and known
beneficiaries, and a statement that none of them is disqualified
from registration in terms of section 21; or
(ff) an association or partnership, must include the names,
identity numbers and residential addresses of all its members
or partners, and a statement that none of them is disqualified
from registration in terms of section 21;
(ii) the physical address and the erf, street or farm number and a
description of the premises from which the applicant intends to
sell liquor, including a plan of the premises;
(iii) the category in respect of which registration is being sought;
(iv) in respect of the premises from which the applicant intends to
sell liquor, whether the premises concerned are-
(aa) in existence, or
(bb) the premises concerned are not yet in existence, in which
case the applicant must furnish details of the steps to be taken
in the event of the application for registration being approved to
construct the premises.
(b) other information that may be required by the board to
enable the board to determine whether or not the applicant
meets the requirements of registration;
(c) the prescribed fee which must be paid in the prescribed
manner;
(d) proof of service of the notice contemplated in the
prescribed manner on the-
(i) ward committee 5which must on receipt of the notice
consult the comm unity of the area where the premises
are situated and simultaneously submit a report to the
board and the relevant municipal council; 6and
(ii) governing body of every education institution or
place of worship within a radius prescribed by the MEC
from the premises in respect of which the application is
made.
(3) Upon receipt of the application contemplated in subsection (2), the
board must in the prescribed manner enable the public to-
5 The form of notice indicated by paragraph 10 of the 2004 Regulations for applications for transfer is one
substantially in the form of Form 8 of Annexure 2. Notice is required to be given to the ward committee
where the premises are situated.
6 What the report is required to address and what the nature of the consultation is, is best understood with
reference to the object of the Liquor Act in section 2 (d) and its preamble. The object is rea lised by the
ward committee consulting and reporting as provided for in the impugned provision. There is no definition
of “ward committee” in the Liquor Act, but it is a commonly known political structure established in terms
of section 73 and defined in section 1 of the Local Government : Municipal Structures Act, No. 117 of
1998. The function of a ward committee (one is established for eac h ward in the municipality) is to make
representations on any matter affecting its ward to the ward councillor or through such incumbent, to the
municipal council. A ward committee consists of the councillor representing the relevant ward in the
council, who is also the chairperson of the committee, and ten other members. It follows logically from
the foregoing that the ward committee would be best placed to bring the community considerations
regarding the registration of premises, or their removal, or the transfer of a holding certificate pertaining
thereto, to the Board in adjudicating any such decision.
(a) have access to, inspect or obtain a copy of the application; and
(b) lodge representations or objections to any application.
(4) Within 60 days after receiving an application which complies fully with
subsection (3), the board must consider the application, the report from the
ward committee and any further information provided by the applicant and
register the applicant by entering the applicant's name in the register if it is
satisfied that-
(a) the applicant complies with the requirements for registration
contemplated in subsection (3); and
(b) no objections have been received by the board.
(5) If, after considering an application for registration contemplated in
subsection (1), the board is of the opinion that the application does not
comply with the requirements for registration ref erred to in subsections (2)
and (3); or if an objection to the application has been received, the board
must notify the applicant in writing of the reasons for its decision or must
provide the applicant with a copy of any objection received, and inform the
applicant that he, she or it has 30 days from the date of service of the
notice to comply with the requirements and respond to any objection.
(6) The period contemplated in subsection (5) may be extended by the
board on good cause shown by the applicant.
(7) If an applicant who has been served a notice contemplated in
subsection (5) complies with the requirements as set out in that notice or
responds to any objection timeously and adequately, the board must
register the applicant by entering the applicant's name in the register.
(8) If an applicant who has been served a notice contemplated in
subsection (5) has not complied with the requirements as set out in that
notice timeously and adequately or has failed to respond to any objection,
the board must refu se to register the applicant and notify the applicant in
writing of the refusal and the reasons therefor.
(9) The board must within 30 days of its final decision on the registration of
an applicant, serve on all objectors to that application a notice in wr iting of
its decision and the reasons therefor.
(10) The provisions of subsection (2) (d) shall not be applicable in respect
of an application for registration in terms of section 20(d).
(11) The holder of a registration certificate may at any time make
application to the board for the transfer thereof to another person.
(12) The holder of a registration certificate may at any time make
application for the removal of the registration certificate from the registered
premises concerned to other premises situat ed in the same district
municipal area as the registered premises.
(14) (a) The procedure and consultation process provided for in this
section is applicable to an application for a transfer or removal.
(b) The provisions of section 21 are applicable in respect of an application
for removal.”
(Emphasis added)
[7] It is not in dispute that Massmart’s application was seemingly in order7 but the
Board reckoned, as it does in these proceedings, that it was constrained to perfunctorily
reject it for want of the necessary report of the ward committee, which it believes that
Massmart was expected to action in support of its transfer application.
[8] The Board oppos es the application and has raised technical defences to the
review. This has as its basis the complaint that the Board’s decision was materially
influenced by an error of law in interpreting the impugned provision to mean that the
legal duty to cause or action the provision of the ward committee’s report, in compliance
with the latter’s statutory duty to consult with the community and simultaneously submit
a report to the Board and the municipal council, rests on an applicant seeking to transfer
7 The refusal letter suggests that service of the registration notice to prompt the report was not given to
the ward committee at all, but it is not i n dispute that this step was undertaken . The applicant put up proof
that it was done, which was in turn acknowledged by the Board per email dated 26 January 2023.
its registration certificate to another person. 8 (As an aside, because it was only raised
by this court co -incidentally, this is how the word “ simultaneously”, employed in
subsection (2) (d)(i) probably falls to be interpreted, namely that the ward committee
must at the same time it furnishes the Board with its report, copy it to the relevant
municipal council.)
[9] Neither the third respondent nor the relevant ward councilor have opposed the
application or offered any salve in the wake of thes e proceedings, though the
councilor’s lack of effort is at the heart of all the trouble.
[10] Massmart, who was joined in the present proceedings on the basis of its interest
in the subject matter of the application, indicated that it will abide the court’s decision.9
[11] The stance of the Board is that the impugned provision requires that it must be
provided with the report from the ward committee and that it is simply not empowered to
finalize an application without it. That much is conceded by Shoprite but their difference
in approach lies in the interpretation thereof. There is no contest that the ward
committee has a statutory obligation to consult and report as provided in the subsection,
or that there is a good public reason for such requirement in pursuit of the objects and
purposes of the Liquor Act, but the question as to who bears the obligation to action or
cause to action the report arises especially in the context of the Board’s refusal of
Massmart’s application in this instance for want thereof which the Board in a sense
seeks to hold it responsible for . The focus therefore is on the impasse that results in
8 By implication the interpretation adopted by this court will apply in respect of registrations and removals
as well , as each application envisages a common consultation process culminating in the anticipated
ward committee’s report.
9 Shoprite in its replying affidavit disavowed that it was joined at the hip as it were with Massmart, t he
Board having implied that Shoprite was taking up the cudgels to vindicate the Board’s refusal of the
transfer application after Massmart had missed the opportunity to invoke an internal appeal against the
decision. Shoprite clarified in this respect tha t after the sale of its liquor business to it, Massmart was no
longer in the business of running liquor stores and that its failure to have taken any further participation in
the present proceedings was therefore quite unsurprising. The important point mad e is that they are
separate entities and that it was not in Shoprite’s power to force Massmart to do anything, including
appealing the refusal decision.
such eventuality, and on whom it falls to resolve such hiatus according to the import and
tenor of the Liquor Act.
[12] Shoprite argues that on its plain terms the impugned provision only requires an
applicant to provide “proof of service” of the notice on the ward committee and that once
that proof is provided, it would have done what the section requires of it to do vis-à-vis
the ward committee and the contribution that it is (ultima tely) expected to bring. In other
words, it suggests that, assuming all other requirements have been met, the submission
of proof of service of the notice contemplated in the prescribed manner would result in
the submission of a complete application as it were ready (for its part) for adjudication
by the Board with reference to such anticipated report, and that its purported non -
compliance as a result of the ward committee’s statutory failure to provide it (as it must)
should not arise as a reason to finally refuse such an application.
[13] Shoprite appears to recognize that the limited declarator that it seeks, namely , in
the first part, that “ an applicant for a certificate of registration complies with the
requirements prescribed in section 22(2)(d )(i) of the Act where it has provided proof of
service to the first respondent of the relevant notice on the ward committee ”, and, in the
second part, that Massmart in actual fact in this instance “complied with (the sub -
section) when it submitted proof of service to the (Board) of the notice on the second
respondent on 26 January 2023”, will mean nothing without the mandamus relief it asks
for, which is to compel those responsible to bring forth the vitally necessary report.
[14] As indicated above, although Shoprite asks in the notice of motion to compel the
relevant councilor cited as the head of the ward committee to consult with the
community of the area where the premises are situated and to submit the report that
community of the area where the premises are situated and to submit the report that
falls to them to procure within 10 days of this court’s anticipated order, Mr . De Beer
acting on Shoprite’s behalf indicated that his client’s real interest was in pressing in on
the alternative prayer, which asks that the Board itself be directed to take steps to
ensure that the relevant incumbent of the ward committee complies with the impugned
provision within 10 days.10
[15] Mr. De Beer invited this court to find that the Liquor Act in effect puts such a duty
on the Board to galvanize the ward committee to do what it is expected to do per the
impugned sub -section in order for it to be able to adjudicate the relevant application
where the latter h as failed to carry out its statutory obligation s to consult with the
community and report to the Board and the municipal council . It argues that an
interpretation of the impugned provision that requires the applicant to do more than
merely serving the ward committee with a notice to provide the report is an incorrect
one. Otherwise stated, it is submitted that the impugned provision on its plain terms only
requires an applicant to provide “proof of service” of the notice on the ward committee.
[16] I will return to this aspect of interpretation below, but first a brief background.
[17] It is common cause that the requisite notice that should have prompted the
second respondent as the head of the ward committee she served to cause the latter to
get on with its obligation spelt out in the impugned provision and the then Regulations of
application,11 (read together with Chapter 4, Pa rt 4 of the Local Government : Municipal
Structures Act, No. 117 of 1998 ), was indeed timeously served on her but the ward
committee failed to comply with its statutory duty to report to the Board and the third
respondent.
10 Another reason advanced why it would serve no purpose to simply mandate the ward committee to
perform its statutory obligation to consult with the community and provide the requisite report is the status
of the application. Mr. De Beer submitted that the decision under scrutiny is of final effect and that the
Board is functus officio. For this reason, the unlawful decision would first have to be set aside according
to the well -established principle of administrative law , which is that it stands as a valid decision until set
aside by a court. See in this regard Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
(41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA); 2004 (6) SA 222 (SCA) (28 May 2004).
11 The regulations promulgated under the Liquor Act have been amended since the launch of the present
review application. In the context of the present issues under consideration, they prescribe the manner in
which applications for registration, transfer an d removal are to be processed. In their current form (since
their implementation on 1 March 2025) they provide in terms that where the ward committee fails to do
what it is required to do to facilitate the Board’s adjudication of an application replete wi th the necessary
community input, the duty to procure the report is placed squarely on the shoulders of the applicant
asking to be registered, or to have its certificate transferred, or to have it premises moved elsewhere than
where it was registered in the relevant category of business requiring such certificate.
[18] The consultant who was commissioned to lodge the application on behalf of both
Shoprite and Massmart meticulously prepared a comprehensive application that
addresses all of the Board’s requirements generally for a transfer. This was lodged with
the Board on 25 January 2023. The application includes a notice to the second
respondent on “prescribed Form 2A”.12 Understandably it is blank, but it was supposed
to have been completed by the second respondent in due course after the community
consultation process had ensued. The latter, in turn, acknowledged receipt of her blank
form mandate on 25 Jan 2023 by signing on a copy on the relevant notice that she had
received the transfer application.
[19] On 30 March 2023 the Board gave notice in terms of section 22 (5) to Massmart
care of the consultant that it was required to take certain steps, within thirty days, to
remedy what the Board considered to be shortcomings with the application and non -
compliance with the requirements of section 22 (2) (d) (i) of the Liquor Act . It advised
Massmart what it was required to attend to in this respect as follows:
“- Submit proof of Service of form 8 Notice to the Ward Councillor/Committee.
-To ensure that the Ward Committee submit proof of a proper community
consultation as convened by the Ward Councillor/Committee of by submitting a
Ward Committee/Councillors report an d attendance register with verifiable
contacts for the attendees of the community to the ECLB (there is none on file).
The proof must contain confirmation that the Ward Committee/Ward Councillor
consulted relevant municipal divisions when considering their application and that
the subsequent community consultation report was submitted to the Municipal
Council.” (Sic)
12 The 2004 Regulations do not incorporate a Form 2 A but the form (applicable to registrations) has
presumably evolved out of convenience and envisages the form that the anticipated report will take in
respect of such applications.
[20] It is unclear why the Board raised the first concern, because service of notice
was acknowledged in email correspondence dated 26 January 2023 by one Ms. Lefutsa
of the Board to have been given to the second respondent per signed acknowledgment
of receipt on that same day .13 Also, quite curiously in my view , the Board did not copy
the se ction 22 (5) notice to the second respondent or in any manner bring to her
attention that her ward committee’s inertia might compromise the grant of the
application despite the fact that the ward committee is the “ which” referenced in the
impugned provision, without whose immediate consultation and ultimate report, so
subsection (4) reiterates, the Board cannot consider the application.
[21] Shoprite does not say what tr anspired further after the date of the Board’s notice
in terms of section 22 (5) and the 18 December 2023 refusal letter as between itself and
Massmart, who was the official “ applicant” for the transfer, but it highlights the fact that
neither it nor Massm art had /has any control over the ward councilor or committee.
Indeed, so it is averred in its founding affidavit filed in support of the present application,
they “ could not effectively force the councilor to attend to the preparation and
submission of a report ” and further that it was “ impossible” for either of them to have
complied with this aspect of the Board’s notice.
[22] As was therefore ineluctable (absent the consultative process and filing of the
ward committee’s report ), the Boad declined the application. It wrote to Massmart by
letter dated 18 December 2023 to inform it that the application had been refused on the
30th of November 2023 already since it had “failed and/or neglected to action or cause
to action the outstanding requi rements in respect of the proposed premises and
submission of the outstanding documentation ” as indicated by the section 22 (5)
notice.14 Accordingly – so the Board reasoned, the application did not meet the
notice.14 Accordingly – so the Board reasoned, the application did not meet the
13 Perhaps the issue concerned the fact that a Form 2 A notice had been used. Form 2 notices according
to the Regulations concern applications for registration and Form 8 notices, applications for transfer.
14 It is curious that the Board referred to “proposed premises” whereas already registered premises would
have been the focus of an application for transfer. Both the section 22 (5) notice and refusal letter,
although they reflect the Board’s reference number concerning an existing certificate, speak of an
“application for a liquor licence registration ” and “an app lication for a liquor licence ” respectively. Given
the narrow focus of the review (and the fact that a consultation process is common to both registration
requirement set out in section 22 (2)(d)(i) of the Liquor Act. Massmart was
simultaneously advised of its right to appeal against the Board's decision within 30
calendar days of receipt of its dismissal letter.
[23] The taunt in the refusal lette r that Massmart had failed to “action” or “ cause to
action” the “outstanding requirements in respect of the proposed premises and
submission of the outstanding documentation” (Sic), which read together with the
section 22 (5) notice clearly drives home its supported failure to have complied with the
impugned provision by providing proof of a proper community consultation in the form
suggested by the Board , certainly goes beyond mere “ proof of service of the notice
contemplated in the prescribed manner ” referenced in the introductory part of
subsection (2) (d) and reveals its contrary understanding concerning the manner in
which the impugned provision ought to be understood.
[24] This final refusal of Massmart’s application for the contrary view held was clearly
the impetus for the present review application and related relief which Shoprite seeks.
Indeed, the latter contends that an applicant has no control over the councilor or w ard
committee and cannot force them to consult the community and produce the report but
that the general tenor of the Liquor Act does indeed behoove it rather to ensure that the
consultation happens and that the report gets submitted in time for it to adju dicate the
applications as it is expected to do.
[25] Shoprite urges upon this court to find that not only is it just and equitable for a
court to declare that Massmart complied with the requirements of the impugned
provision to the extent that it was legal ly obliged to in the present context once it
provided the requisite proof of service of the application on the ward councilor , but that
the declarator which it seeks is vitally necessary to clarify the proper legal position for
future cases.
future cases.
and transfer applications) I will refrain from attaching any significance to this seemingly perfuncto ry
treatment of the application.
[26] Thus, Shoprite’s standing to institute the present proceedings for the judicial
review of a public power was laid bare. Although it is merely a prospective holder of the
registration certificate that Massmart asked the Board to transfer to it , there can be no
doubt in my view that its rights are absolutely affected by the refusal determination
insofar as th e application has been finally determined by the Board. 15 A party acting in
their own interest may seek appropriate relief where a decision affects their interests.16
[27] Whilst a period of just under four months lapsed between the date of the refusal
of Massmart’s application and the launching of the present application, during which
Massmart could have invoked the internal appeal procedure made provision for in
section 24 of the Liquor Act if it was so minded, but did not,17 Shoprite contends, fairly
in my view , that it itself would have had no standing to prosecute such a remedy
because it was not the holder of the registration certificate neither an applicant within
the contemplation of section 22 of the Liquor Act for the transfer of the holding
certificate.
[28] This much is conceded by the Board yet it objected in these proceedings ,
contending that Shoprite failed to exhaust internal remedies before approaching this
court for judicial review. In this respect, and with reference to section 7 (2)(a) of the
Promotion of Administrative Justice Act, No. 3 of 2000 (“ PAJA”), the Board argues that
Shoprite ought to have exhausted the internal appeal remedy provided for by the Liquor
Act in section 24 before it could approach this court to review the refusal decision. Th is
provision is repeated below for convenience:
15 It was suggested on behalf of the Board that because Shoprite was not an “ applicant” for purposes of
an appeal to the appeal panel that it does not have standing to review the Board’s decision. But in making
this argumen t the Board fails to distinguish between an applicant for purposes of section 22 (11) and
section 24 (1) of the Liquor Act, which is a narrow concept, and an applicant’s standing to apply for the
review of the Board’s decisions before this court. Section 6 (1) of PAJA provides that “ any person” may
institute proceedings in a court for the judicial review of administrative action. In Giant Concerts CC v
Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC) the Constitutional Court held at paragraph [29]
that the wide standing provisions of section 38 of the Constitution must be read into the PAJA, as a review
under its provisions amounts to a vindication of one or more of the section 33 administrative justic e rights
in the Constitution. This wide approach to standing applies to legality reviews as well. (See Kruger v
President of the Republic of South Africa and Others 2009 (1) SA 417 (CC) at paragraph 23)
16 Giant Concerts, Supra, at paragraph 37. See also Ferreira v Levin NO; Vryenhoek v Powell NO 1996
(1) SA 984 (CC) at paragraphs 162 and 166-168.
17 See footnote 9 above.
“24 Appeals against refusals and conditions
(1) An applicant may, within 30 days after being served a notice of a decision of
the board not to approve an application for registration, transfer or remova l or of
a determination of terms and conditions, appeal against the decision or
determination by submitting to the panel of appeal-
(a) the application to register;
(b) the notice sent to the applicant by the board in terms of section 22(7) or
(10);
(c) details of the applicant's response to the board's notice; and
(d) the board's final notice and reasons for the decision which is the subject of
the appeal.
(2) An objector to an application may, within 30 days after being served the
notice contemplated in section 22(12), appeal against the relevant decision by
submitting to the panel of appeal-
(a) a copy of the objection;
(b) a copy of the notice contemplated in section 22(12); and
(c) the grounds of appeal.
(3) Within 90 days after receipt of the relevant documents, the panel of appeal
must consider the appeal in the prescribed manner, including providing the
appellant, the board and any other interested party with the opportunity to make
oral representations, and must send notices in writing of its decision to the
appellant, the board and other parties involved, stating the reasons for the
decision.
(4) If the panel of appeal upholds an appeal-
(a) contemplated in subsection (1), the board must register the person; or
(b) contemplated in subsection (2), the board must consider afresh the
registration in respect of which the appeal was made.”
[29] This dogged expectation of the Board that Shoprite should be precluded from
proceeding with the present application for want of exhausting internal remedies,
however, runs contrary to the fact that the “applicant” envisaged in section 24 (1) above
can only mean, in terms of section 22 (11) of the Liquor Act, the “holder of a registration
certificate”, who in this instance is Massmart. The Board recognizes this yet seeks to
suggest as an alternative proposition then that if Shoprite had lodged representations
concerning the application for transfer in terms of paragraph 5 of the Regulations (Sic),
this would somehow have created a premise from which to appeal to the Board on a
question of law. 18 The logic of this argument, however, entirely eludes me especially
since the entitlement of “ any person” to lodge written representations in support, of or
objections to, an application in accordance with regulation 12 is neither peremptory nor
necessary especially where Shoprite would have said what it needed to say in that part
of the transfer application that concerned it as the prospective certificate holder and
most especially thereby that it supported the application. Moreover, as Mr. Mpakane
who appeared on the Board’s behalf conceded, the representations envisaged by the
Regulations would be made before the ward coun cilor does anything. This
presupposes that Shoprite would have to have been prescient that the ward committee
was not going to meet its statutory obligation in time to consult or to file its report.
[30] The Board also complains that since Shoprite categorize s the determination
which this court must make as “ a question of law ”, that it was obliged to appeal, rather
than to have challenged the refusal decision as a judicial or legality review.
[31] Section 66 (1) of the Liquor Act provides as follows in this respect:
“(1) A person who has made any application, objection or representations in
terms of this Act and who feels aggrieved by a decision on a question of law
made by the panel of appeal in connection with the application, objection or
made by the panel of appeal in connection with the application, objection or
representations, may appeal to a division of the High Court against the decision.”
18 The regulation applicable to the subtype of the application for transfer is in fact indicated in paragraph
12 of the Regulations. Its r eads exactly the same except for the respect ive headings, the last of which
concerns representations or objections “to an application for transfer of a certificate of registration”.
[32] The suggestion in this context is that if Shoprite had lodged representations in
terms of Regulation 5 , or 12 as applies to transfer applications, which the Board
concedes it was not obliged to, and a question of law arose thereanent in that forum, as
it has now arisen, that this would have established the basis for an appeal by it rather
than a review . Th e Board argues that Shoprite would supposedly have acquired an
automatic right to appeal “ since there is this alleged question of law ”. T his proposition
too only has to be stated to see it absurdity.
[33] I add that given the parties’ acceptance that any application for registration,
transfer or removal cannot be adjudicated without the ward committee’s report, i t is
anomalous to have expected anything to come from an internal appeal even if
Massmart had invoked the remedy at its disposal. The outcome would have resulted in
the transfer application coming full circle back to the position that the Boad could not
adjudicate it without the report, a confounding feature of this whole debacle.19
[34] The point is well made on behalf of Shoprite that a declarator is necessary to
advance the matter and move past the impasse. The Board has made it clear that it is
a creature of statute and for this reason it is not in a position internally to entertain t he
kind of remedy that Shoprite requires in the unique circumstances.
[35] The further complaint that Shoprite did not apply for condonation for its supposed
delay in launching the review application is not a correct understanding of its papers.
To my mind it plausibly explained that it needed to take legal advice as to how to
vindicate its position and promptly got on with the issue of the present application. It
further included a prayer for condonation in the notice of motion in the event that this
was necessary. In my view this was, however, not essential because there was no
obligation on Shoprite to have exhausted the supposed internal remedie s contended for
obligation on Shoprite to have exhausted the supposed internal remedie s contended for
by the Board . For the rest it did not in my view delay unnecessarily in launching the
present application . I should add that the manner in which the Liquor Act has been
19 See Section 24 (4)(b) of the Liquor Act.
framed does indeed pose a conundrum bearing on interpretation and that it was not
unreasonable for Shoprite to first responsibly have sought a legal opinion.
[36] The in limine objections are therefore all without merit.
[37] I turn finally to the issue of interpretation.
[38] The Supreme Court of appeal in Natal Joint Municipal Pension Fund v Endumeni
Municipality20 had cause to restate the approach that a court should adopt when
interpreting words used in a document, including legislation, as follows:
“The present state of the law can be expressed as follows. Interpretation is the
process of attributing meaning to the words used in a document, be it legislation,
some other statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the light
of all these factors. The process is objective not subjective. A sensible meaning
is to be preferred t o one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to, and
guard against, the temptation to substitute what they regard as reasonable,
sensible or businesslike for the words act ually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and
legislation. In a contractual context it is to make a contract for the parties other
than the one they in fact made. The ‘inevitable point of departure is the language
than the one they in fact made. The ‘inevitable point of departure is the language
of the provision itself’, read in context and having regard to the purpose of the
20 (920/2010) [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012).
provision and the background to the preparation and production of the
document.”21
[39] What is abundantly clear, first off, is that the Liquor Act does not provide in terms,
in words anywhere in its provisions, what Shoprite invites this court to find, which is that
there is a duty on the Board to step into the gap when the ward committee does not
consult and report or to take this step or that . Indeed, its provisions barely state the
primary obligation on the ward committee itself to consult and report which one finds
coincidentally tagged on to other provisions.
[40] Section 22(2) (d)(i), for example, in line with the object and purpose of the Liquor
Act in section 2, provides coincidentally (because the section purports to relate to a list
or collection of things that the prescribed form must specify or other formal requirements
needing to be met, like the payment of the prescribed fee) that the ward committee must
consult the relevant community and submit a report to both the Board and the Municipal
Council. It is the “ which” referenced in the impugned provision , as a tangent , that
clarifies who must perform these vital statutory obligations and how. There certainly can
be no question that this (with reference to the need preempted in the objects of the
Liquor Act) settles the statutory obligation in the first place on a political structure, the
ward committee, to bring the community considerations to bear , how this must be done,
and to an extent, though quite confusingly, “ when”. What the report is even supposed
to state has to be assumed from the context . Further, the Liquor Act even lacks a
definition of “ ward committee ”, which one has to read in with reference to the
Regulations that defines “ ward”, only to be further referred to the definition of such
concept within the meaning of section 1 of the “Municipal Structures Act”.
[41] The anticipated report’s need, in substantive terms, is indicated only in one other
[41] The anticipated report’s need, in substantive terms, is indicated only in one other
place in the Liquor Act , further below in subsection (4) where it is provided (from the
Board’s perspective) that it must consider the application concerned together with the
report from the ward committee, which the context assumes will be available within sixty
21 At paragraph [18].
days after the application’s receipt. (In my view it can only be this provision that
underpins the accepted premise by all the parties that the application cannot be
adjudicated by the Board without this vital document) . The time periods involving the
ward committee are twofold. It must “ on receipt of the notice ” consult with the
community. Later it must submit a report to the Board and the municipal council.
Seemingly that report is required to be provided within 60 days.22
[42] There is no question that the applicant for registration, transfer or removal is
certainly expected to serve a notice on the ward committee. It is that service that starts
the ball rolling. The applicant must satisfy the Board that it has served on the necessary
role players who have an interest in objecting to the application , namely the ward
committee and the governing body of every education institution or place of worship
within the prescribed radius of the premises that forms the subject matter of the relevant
application.
[43] The pros pective holder of the certificate has no obligation on it other than to
complete that part of the prescribed form that concerns it in the subtext of an application
for transfer. None of the parties have contended differently in this respect.
[44] It is most unfortunate in my view that the necessity for the ward committee’s
report has been insensibly conflated with the requirements that an applicant, whether
for registration, the transfer of its holding certificate to another person, or the removal of
his/her/it’s business to other premises than the registered premises, must adhere to in
the first place in order to place a request before the Board to consider. Those
provisions ostensibly indicate the “how” and the “ what” an applicant must do to get the
process started, pursuant to which the obligation on the ward committee to consult and
report is triggered.
report is triggered.
22 Regulation 10 (2), that deals with the sub -type of transfer applications, however, indicates that the
report must be submitted within 30 days of receipt by the committee of the notice of the application.
[45] The next step provided for in subsection (3) entails the publication of the
application and the invitation to the public generally to have access to the application in
document form, to inspect it and to lodge representations or any objection to it. This is
to be done by the Board itself. Given that it must invite the public to lodge
representations or objections and to have access to a copy of the application “ upon
receipt” of it, the ward committee’s report would not yet be in existence so it is surprising
that it would have excepted the application to be replete with the ward committee’s
report from a basic compliance perspective.
[46] In the next stage, after a period of sixty days from the date of lodgment, the
Board is required to consid er the application, the ward committee’s report and (there is
no comma between these two aspects) any further information provided by the
applicant.23 What would give it the greenlight is the Board’s satisfaction that the
“application” complies with “the requirements for registration contemplated in subsection
(3)”24 and that no objections have been received by it. Here some confusion is in the
offing in that only the requirement stated in subsection (3) going to registration (which is
on the Board) - obviously together with a reading in of the ward committee’s report and
“further information provided by the applicant ”, is listed as the minimum to favorably
register the applicant by entering his/her/its name in the register.
[47] A different outcome pertains if the “requirements for registration”, whether in form
(subsection (2)) , or notice to those having an interest (subsections (2) and (3)) are
absent or lacking, or they have been complied with but the application has met with an
objection. In either of the latter scenarios, the applicant is expected to get an
opportunity to speak to any shortcoming in the application or to respond to the objection
opportunity to speak to any shortcoming in the application or to respond to the objection
within thirty days of a notice drawing attention to the issue in concern . The period
provided for i n a section 22 (5) notice can be extended on good cause shown, but
23 This subsection also confirms that the existence o f the ward committee’s report is not expected until
later, reinforcing the more likely interpretation of the impugned provision that all the applicant needs to
provide in order to be compliant when it lodges its transfer application is proof that it has gi ven notice to
the ward committee to get its processes started.
24 Subsections (3) is referenced twice, once in the introduction to subsection (4) and in subsection (4) (a).
The impression is that this was deliberate . Subsection (3) deals with the Board’s responsibility to engage
with the public and invite it to object.
otherwise, if the applicant complies with the request set out in the notice, or responds to
any objection, “ timeously, and adequately ” the Board must “ register” the applicant by
entering the applicant’s name in the register.
[48] Ironically subsection (5) that preempts the need for a notice under its provisions
says nothing about the report of the ward committee as one of those requirements. The
only pointer of assistanc e in this respect is that a reader is referred back to the
provisions of subsection (2) which require compliance with this subsection as a
requirement “for registration”. This is where the impugned provision is again implicated.
[49] The penalty of not com plying with the notice, or rather with “ the requirements as
set out in that notice”, as opposed to an unequivocal section of the Liquor Act itself, has
as its result in subsection (8) that a Board must refuse to register the applicant (or by
necessary impl ication transfer his/her/its certificate of registration to another person).
This seems nonsensical to suggest that what is the subject the notice decides the fate
of the application and not some inherent non-compliance with the section’s provisions.
[50] This is what happened here in effect. The notice condemned Massmart to a
failure to comply with the impugned provision, spun it further by making it responsible to
ensure that the ward committee acquit its statutory obligation to consult and report and
asked of it to provide proof of more than the mere notice of service of the application
upon the second respondent. It was that failure ultimately , to comply with the Board’s
section 22 (5) notice, that resulted in the refusal of the application in final form.
[51] If this court is to make any sense out of the impugned provision in context, it is
this. The political structure is enjoined to do what the aside, or tangent to the impugned
provision mentions, which is to consult - as it must do in terms of the Mu nicipal
provision mentions, which is to consult - as it must do in terms of the Mu nicipal
Structures Act, and to provide a report. This is consistent with the object and purpose
of the Liquor Act.25
25 This also fits in with the scheme of the (National) Liquor Act, No. 59 of 2003 regarding the necessary
requirement of community participation in applications for registration under its provisions.
[52] Further, the anticipated report is the most vital component of the application,
without which the Board cannot adjudicate the application lodged with it. This is
accepted by all parties.
[53] The statutory obligation on the ward committee to consult and provide the
required report rests on it and no one else. Only it can provide the repo rt and where it
fails to, the Board cannot finally determine the application.
[54] Whilst the applicant can be called upon by a notice in terms of section 22 (5), to
attend within its powers to shortcomings in its application, causing the ward committee
to action or cause to action the ward committee’s non-compliance is not stated to be
one of its obligations in the Liquor Act although the Board takes such a view. The
impugned provision cannot in my view sensibly be interpreted to mean that an applicant
must, in addition to providing proof that it alerted the ward committee to its application
by service of the requisite notice, also cause it somehow to meet its statutory obligation.
(Ironically subsection (5) which provides for the issue of a notice for non -compliance
with the application does not even reference the absence of a ward committee’s repo rt
as a supposed reason why an applicant should be placed on terms to remedy a
registration compliance shortcoming.)
[55] I point out finally that subsection 2 (d)(ii) of the Liquor Act does not state what is
to ensue once notice is given to the governing bo dy of education institutions and places
of worship in the same style as the impugned provision suggests must be done after
proof of service of notice to the ward committee is put up. If the two subsections (i) and
(ii) were in kilter, it would have been su fficient for the impugned provision to indicate
only that proof of service of the notice contemplated in the prescribed manner is a
requirement in respect of the “ ward committee of the area where the premises are
requirement in respect of the “ ward committee of the area where the premises are
situated”. That is the manner in which the impugned provisions falls to be read. The
further part expounding upon the ward committee’s duties that arise upon been served
with notice of an application under section 22 is superfluous to the basic compliance
requirements resting upon an applicant.
[56] Given such an interpretation, the Board having asked Massmart to step into the
breach of the ward committee, and then to have refused the transfer application by
reason that it failed to produce a report that has clearly n ot yet even come into
existence was wrong. The Board’s refusal decision therefore falls to be reviewed and
set aside on the basis contended for by Shoprite.
[57] It is unfortunate that the important statutory obligation resting on the ward
committee, which should be emphasized on its own is added on as a tangent to a proof
of notice requirement and not contained in a separate section under the Liquor Act so
that there are no misgivings regarding what is expected of the ward committee to do.
Therein too lies the rub, that absent the obligation being spelt out as a self -standing
requirement (instead of being the tag on that it is in the wrong order of progression), the
prospect of the ward committee not bringing up its part is also not especially catered for.
[58] This takes me to the question posed by Shoprite whether instead of throwing up
its hands and contending that it has no power to do anything about the hiatus here, the
import and tenor of the Liquor Act can be read as imposing an obligation on the Board
itself to action or cause to action the ward committee, as it expected of Massmart itself
to do, to carry out its statutory duties.
[59] Mr. De Beer referred the court in this regard to the provisions of section 17 of the
Liquor Act, which provide under Part 4 thereof concerning “ Meetings and conduct of
business” that the Board is empowered to issue a summons to the ward committee to
produce a document. He suggested that what could be done when it does not receive
such a report i s to notify the ward councilor to come to the meeting at which the Board
such a report i s to notify the ward councilor to come to the meeting at which the Board
is to consider the application and produce it there. It occurs to me, however, that this
power mentioned in the section to compel one to produce information needed by the
Board to adjudicate an application would concern an existing document whereas the
report it envisages the Board would seek to have produced per summons , especially
where the war d committee has failed to carry out its statutory obligation, would almost
certainly not exist. It is further unlikely if it did exist that it would be withheld by the ward
committee. And what could it do, if at that meeting it is informed that the ward
committee has not yet consulted? It would have no powers as this court does to compel
it to comply.
[60] He contended that by the Board doing nothing it is ignoring the stated duty on it
to perform “any other power”, especially one that is naturally incidental to its function of
adjudication.
[61] The powers of the Board are set out in section 9 of the Liquor Act as follows:
“9 Powers and functions of the board
The board-
(a) must consider and approve or refuse applications for the categories of
registration contemplated in section 20(a), (b), (c); (d) or (e);
(b) may cancel, suspend or vary any registration approved by it in the
manner contemplated in this Act;
(c) may determine conditions applicable to the categories of registration
contemplated in section 20(a), (b), (c); (d) or (e); and
(d) must publish in the Provincial Gazette applications received for
registration, transfer or removal as prescribed.
(e) may exercise any other power and must perform any other duty
conferred or imposed on it in terms of this Act.”
(Emphasis added)
[62] Further, with reference to the objects of the Liquor Act he emphasized that the
Board was enjoined imperatively to “ create an environment ” in which community
considerations are taken into account on the registration of retail premises.
[63] In this vein, Mr. De Beer referred this court to three decisions of the Free State
Division of the High Court which he contended were “ instructive” and which deal with
the same issue that arises in the present matter, albeit under the ambit of the Free State
Gambling and Liquor Act. Reinecke v Free State Gambling and Liquor Authority and
Another26 concerned an application to the Free State liquor a uthority for a tavern
registration certificate. In terms of the relevant provincial legislation, the liquor authority
requested the South African Police Service and the relevant municipality to provide
reports on the proposed premises and the suitability of the application. These reports
were not forthcoming, and as a result the application was not considered within a
reasonable time. The court held the South African Police Service and the municipality
were the liquor authority’s “eyes and ears”, and that the liquor authority’s explanation for
the delay was “ wanting, unsatisfactory and unacceptable insofar as it is simply to the
effect that the liquor [liquor authority] was helplessly waiting for reports from the SAPS
and the municipality”.27
[64] The import of the decision, so Mr. De Beer sought to highlight is that the liquor
authority was required to secure the reports, not the applicant.
[65] This import was also made clear in Nazo v Free State Gambling & Liquor
Authority and Another; In re : Jacobs v Free State Gambling & Liquor Authority and
Another28 in which the circumstances were the same as in Reinecke, namely that the
reports from South African Police Service and the municipality were outstanding. The
court confirmed what was said in Reinecke, namely that the South African Police
Service and the municipality are the “ eyes and ears” of the liquor authority.29 The court
held that there was no obligation on the applicant to provide the reports.30 Any action to
be taken to obtain the reports was to be taken by the liquor authority and nobody else.31
be taken to obtain the reports was to be taken by the liquor authority and nobody else.31
26 (3402/2014) [2014] ZAFSHC 196 (30 October 2014).
27 At paras 19 and 26.
28 (2386/2015) [2015] ZAFSHC 227 (19 November 2015).
29 At para 25.
30 At para 36.
31 At para 63.
[66] The third matter is Miles of Meat 2 BK v Free State Gambling and Liquor
Authority and Another .32 There, the court said that because the liquor authority bears
the onus to ensure the time frames prescribed by the act are adhered to, it was required
to take the necessary steps to secure the reports. 33 The cou rt considered the liquor
authority’s powers under the provincial liquor act and held that it was the liquor authority
who was empowered to take the steps to secure the delivery of reports.34
[67] Mr. De Beer argued that the similarity of these cases to the present matter
provided a useful basis for this court’s interpretation exercise and urged upon this court
to find, in the context of the powers of the Board spelt out in the Liquor Act, that the
Board is indeed empowered to take steps to secure the delive ry of the ward committee
reports.
[68] In its opposition to the application, on the issue of the interpretation contended
for by Shoprite, the Board asserts that it is ultra vires its power and duties enumerated
in section 9 to compel the second respondent to perform her statutory obligation qua the
ward committee to put up the relevant report. It disavows that it is part of its
adjudicative function provided for in terms of section 9 (d), neither does it believe that
such an obligation resort s under the gener al provisions of section 9 (e) . The prevailing
view it takes is that it exercises no present authority in terms of the Liquor Act to dictate
to the municipality and that it is as impotent as Shoprite claims to be in this respect vis-
à-vis Massmart’s expect ation that the ward committee would carry out its statutory
obligations.
[69] The Board further relies on the provisions of the newest regulations promulgated
under the Liquor Act, which it attached to its answering affidavit , as providing an answer
to the question who has the responsibility to goad the ward committee to do what it is
to the question who has the responsibility to goad the ward committee to do what it is
statutorily obliged to do when it has failed to consult and report so that it can adjudicate
an application . These, in the Board’s view, “ clarify the matter and put to rest the
32 (2099/2015) [2015] ZAFSHC 245 (26 November 2015).
33 At para 10.
34 At para 10.
question as to who is obligated to compel a municipal councilor to provide the
consultation results”. For interest’s sake the new regulation 3 (4) provides that:
“In the event that a ward committee does not attend to their statutory obligations
in terms of the Act, the applicant has the duty to ensure the ward committee
attends to their legislated duties in terms of the Act.”
[70] Shoprite’s fair response to this purported resolve of the question who bears the
duty in term s of the Liquor Act to force the second respondent’s hand is that what is
stated therein does not affect the present matter because its provisions are prospective
in effect. In my view it is correct to expect that the transfer application must be decided
in terms of the law at the time it was made.35 Shoprite also relies on the trite principle of
interpretation that subordinate legislation, including the regulations, cannot change the
meaning or interpretation of the primary legislation, the tenor of which - so it seeks to
assert, requires of the Board to ensure that a ward committee attends to their legislated
duties.36 Finally, Shoprite indicates that it reserves its right to challenge the lawfulness
and validity of the new regulations.
[71] It is essential to point out the fundamental difference between the Free State Act
and the Liquor Act under consideration, which is that the former provides in terms, in
section 31 (3) and (4) thereof, that on receipt of the application by the liquor authority,
the latter must request the reports. In this province the Liquor Act does not use direct
language to oblige the Boad to do the same even if the impact is the same that the ward
committee tasked with the dual obligation to consult and provide the repo rt are the eyes
and the ears of the Board.
[72] As inviting as it is to extrapolate from the tenor of the Liquor Act read in pure form
that the Board must take formal steps to cause or to action the ward committee to carry
that the Board must take formal steps to cause or to action the ward committee to carry
out its statutory duty, the eventuality in my view is not catered for in either the Liquor Act
35 Veldman v Director of Public Prosecutions 2007 (3) SA 210 (CC) at para 26.
36 National Commissioner of Police v Gun Owners South Africa 2020 (6) SA 69 (SCA) at para 44.
(neither in the regulations of application at the time) although it would not have harmed
the Board at th e time it issued its section 22(5) notice to Massmart to copy in the ward
committee and to bring to its attention that its report was still awaited. Where it failed in
my view was only in the respect that it misinterpreted the duty on the applicant to
provide more than its mere proof of service of the application on the second respondent,
and in finally refusing the application without the necessary report.
[73] I cannot read in to Liquor Act a provision that is not there to the effect that the
Board must take steps especially to facilitate community consultation and engagement
so that the Board can receive the report.
[74] Mr. De Beer also referred this court to Hoexter and Penfold: “The Administrative
Law in South Africa ,37 which notes that in dealing with multi -staged administrative law
matters involving action by more than one administrator, the ultimately decision -maker
may not simply blame another administrator for its earlier failure to act. Rather it must
take reasonable steps to ensure the performance of those acts. The authors repeat
what in Reinecke stood out for the court, which is that both bearing their own duties and
roles in the process that was time bound, the one could not stand by “helplessly waiting”
for the necessary reports, but that the relevant l iquor authority ought to have put
pressure on the other organs of stage to submit their reports. This kind of situation
(which follows on a discussion of the trio of Free State cases highlighted by Mr. De
Beer) is however entirely distinguishable from the local situation where the duty on the
Board to act is not pertinently spelt out in the Liquor Act and where it would more
naturally fall to an applicant at the receiving end of the dilatory conduct on the part of
the ward committee to vindicate such failure through a court application to compel.
the ward committee to vindicate such failure through a court application to compel.
[75] I agree that it would be within the spirit of cooperation between organs of the
state to seek to promote the finalization of the application under the overall scheme of
the Liquor Act by warning the ward committee to in fact do what is necessary for the
Board to be able to adjudicate the application, but there is (or at least wasn’t under the
37 Hoexter, 3rd Ed at page 436 – 7.
prevailing regulations at the time) any other formal step that the Board was mandated to
take under the Liquor Act’s provisions to vindicate the impasse.
[76] An expectation that it should have done more does not seem naturally incidental
to the performance of its functions hence its resort to the fact that it is simply a creature
of statute and must do only what the Liquor Act provides it should or can.
[77] I maintain that the Liquor Act does not appear to have contemplated the issue of
statutory non-compliance by the ward committee. Indeed, it shouldn’t ever be an issue if
it is mindful of the very reason for its existence, which is to provide the vital link between
the community and the municipal council and, in the context of the concerns of society
that the Liquor Act foresees, to speak up and be the voice of the community regarding
the registration of retail premises in the ward area that it serves. I am surprised that the
second respondent has said nothing to assure this court that its failure to have carried
out its statutory obligations in this instance wasn’t due to a lack of respect or concern for
such interests.
[78] In conclusion, I agree that it is necessary to set aside the Board’s decision. It was
both wrong to proceed from the premise that no proof of service of the application for
transfer had been put up, and wrong in the sense that the Board required of it to provide
proof of something it could not and is not required to. It was wrong in that it determined
that the application did not meet the requirements set out in section 22 (2) (d)(i) of the
Liquor Act and equally wrong in penalizing Massmart (and Shoprite in consequence) for
its supposed neglect to action or cause to action the “ the outstanding requirements in
respect of the proposed premises and submission of the outstanding d ocumentation”
that as a fact does not even exist as yet but which must be produced in order to
that as a fact does not even exist as yet but which must be produced in order to
consider any application under the mantle of section 22 . It therefore follows in this
regard that the declarator which Shoprite insists on ought to be made to set the position
right.
[79] Concerning the mandamus relief settled upon by Shoprite , I cannot agree that
the Liquor Act contemplates the Board taking formal steps against the ward committee
to comply with its statutory duty or that it equips it to do so . There would however
appear to be informal administrative measures that it can take generally, such as
addressing letters to the relevant ward committee requesting it to bring forth the report
so that it can adjudicate an application for registration, trans fer or remova l without
offending the principles of co -operative government and intergovernmental
relationships. This would be in its interests to do to facilitate a meaningful consideration
of the applications before it. Further, although there is no obli gation on the Board
arising in terms of section 22 (5) to give notice to the ward committee of the absence of
its report as a reason why it cannot decide an application, its sounds counterintuitive for
it not to copy the notice to the applicant who stands to be prejudiced by the fact that this
will preclude a proper and final determination of the application.
[80] Although Shoprite held out for the alternative mandamus prayer, it would be a
wasteful exercise if it was required to bring a separate application to compel the current
councilor representing the ward committee to do what it is statutorily obliged to. Since it
has made out a case for such relief on the papers, it would be proper in my view to
permit the granting of the initial prayer 3. As it did not ask for costs against the second
respondent except if she opposed the application, the order against her will not carry
with it such a burden which would coincidentally in my view have been totally justified.
It is indeed inexcusable that the second re spondent would thwart the very necessary
object of the Liquor Act which is to input community considerations on the registration
(or related applications to transfer or remove) of retail premises.
(or related applications to transfer or remove) of retail premises.
[81] As a necessary consequence of the mandamus relief I intend to grant, it follows
that the Board will have to determine the application afresh once it has been furnished
with the report of the ward committee.
[82] Despite not acceding to Shoprite’s prayer that the Board instead be ordered to
take steps to compel the second respondent to meet her statutory obligations through
the ward committee to consult and report, it has in my view been substantially
successful in these proceedings and costs against the Board should follow that result.
Indeed, it is somewhat unfortunate that the Board resisted the application on
unnecessary grounds seeking to oust the jurisdiction of this court to review its refusal
decision instea d of helpfully contributing to an argument on the appropriate
interpretation of the impugned provision.
[83] In the result the following order issues:
1. The first respondent’s decision of 18 December 2023 to finally refuse the
fourth respondent’s application in terms of section 22 of the Eastern Cape
Liquor Act No 10 of 2003 dated 13 January 2023 (Ref ECP No.
14619/0026/OF) in respect of Browns and Weirs Cash and Carry, Buffalo
Road, King William’s Town (“ the premises”) on the supposed basis that the
fourth respondent failed to action or cause to be actioned the filing of the ward
committee’s report is reviewed and set aside.
2. It is declared that:
2.1 an applicant for a certificate of registration complies with the
requirements prescribed in section 22 (2)(d)(i) of the Act where it has
provided proof of service to the first respondent of the relevant notice
on the ward committee concerned; and
2.2 the fourth respondent complied with section 22 (2)(d)(i) of the Act when
it submitted proof of service to the first respondent of the notice on the
second respondent on 26 January 2023.
3. The second respondent is directed to comply with section 22 (2)(d)(i) of the
Act by consulting with the comm unity of the area where the premises are
situated and simultaneously submitting a report to the first respondent and the
municipal council of the third respondent within ten days.
4. The first respondent is directed to reconsider the fourth respondent’s
application for transfer upon receipt of the ward committee’s report.
5. The first respondent is directed to pay the applicant’s costs, including the
costs of counsel on Scale C.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING 30 January 2025
DATE OF JUDGMENT 5 June 2025
Appearances:
For the applicant: Mr. M De Beer instructed by Werksmans Attorneys care of Fran z
Attorneys, East London (ref. Mr. Franz).
For the defendant: Mr. S Mpakane instructed by The State Attorney, East London c/o
Shared Legal Services, King William’s Town (ref. Mr. Mosia ).