IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
ln the matter between:
TSHEPJSO DAVID MONARE
TD MONARE HOLDINGS (PTY)
LTD
and
THE MEC: DEPARTMENT OF
ECONOMIC DEVELOPMENT,
ENVIRONMENT,
CONSERVATION AND TOURISM,
NORTH WEST
NORTH WEST LIQUOR
AUTHORITY
Not Reportable
Case no: 2026-049446
First Applicant
Second Applicant
First Respondent
Second Respondent
ADVOCATE O RATSHIKANA N.O.
CHAIRPERSON: NORTH WEST
LIQUOR AUTHORITY
STATION COMMANDER:
KLERKSDORP POLICE STATION
SOUTH AFRICAN POLICE
SERVICES (SAPS)
THE HEAD OF DEPARTMENT:
DEPARTMENT OF ECONOMIC
DEVELOPMENT,
ENVIRONMENT,CONSERV ATJON
AND TOURISM, NORTH WEST
MUNICIPAL MANAGER: CITY OF
MATLOSANA LOCAL
MUNICIPALITY
DIESELLEC PROPCO (PTY) LTD
TRUSTEES OF THE BODY
CORPORATE OF THE ACADEMY
HEIGHTS SECTIONAL TITLE
SCHEME
2
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
BODY CORPORATE OF THE
ACADEMY IIEIGHTS
SECTIONAL TITLE SCHEME
Coram: Wessels AJ
Heard: 7 April 2026
.1
Ninth Respondent
Delivered:Thi s judgment was handed down electro nically, circulated to the
parties' representatives via emai I, uploaded to Case Lines, and released to SA FLI I.
The date and time for the handing down of the judgmcnt arc deemed to be I 0h00
14 April 2026.
Summary: Urgent application for interim suspens ion of liquor licenc e
suspension - urgency self-created - lease agreement constituting unlawful letting
or hiring of liquor licence in contravention of s 42( 4) of the North West Liquor
Licensing Act 6 of 2016 - ex turpi c:ausa non oritur actio Electrical Certi ticate
of Compl iance invalid - application dismissed
JUDGMENT
Wessels AJ
Procedural background
[ I J This matter came before me on 7 April 2026 as an urgent application in
terms of Rule 6(12) of the Uniform Rules of Court. The applicants seek interim
relief pending the final determination of a review application (Part B) in which
4
they seek to set aside the decision of the second and third respondents dated 18
February 2026, suspend ing the liquor licence of the seventh respondent, which
trades as Franco's Restaurant or now known as New Age Lounge.
[2] The first applicant, Mr Tshepiso David Monare, is cited in the application
as the managing director of the second applicant. The second applicant is a private
company of which the first applicant is the sole director. The eighth and ninth
respondents (' Academy Heights') were joined as respondents by order of this
Court on 16 March 2026, following an intervention application. The first through
fifth respondents, through the State Attorney's office, filed a Notice to Abide.
[3] On 7 April 2026, after hearing argument in the present application, I
requested the parties to file supp leme ntary heads of argument on the narrow issue
of the validity of the Electrical Ce1tificate of Compliance ('COC ' ) relied upon by
the applicants. Supplementary heads were filed on 8 April 2026 by both sides. As
will become clea r, this judgment disposes of the application in its entirety.
The case of the applicants
[ 4] The applicants seek relief in Part A of the notice of motion to the eftect
that the operation of the decision of the second and third respondents dated 18
February 2026 suspending the liquor licence of the seventh respondent ('the
liquor licence'), be suspended pending the final determination of Part Band that
the liquor licence of the sevent h respondent be reinstated with immediate effect.
Part B requests the review of the decision of the second and third respondents to
suspend the liquor licence.
[5] The salient allegat ions contained in the applicants' founding affidavit are:
(a) The first applicant was appointed as manager of the licenced premise s in terms
5
of s 39 of the Liquor Act 1 ('the 1989 Liquor Act') on 31 January 2025; (b )The
second applicant entered into a lease agreement with the seventh respondent, the
holder of the restaurant liquor licence. The first lease agreement was concluded
on 26 June 2024 for the period l July 2024 to 30 June 2025. A second lease
agreement was concluded on 1 September 2025 for the period l September 2025
to 3 l August 2030 ('the second lease agreement'); (c) Complaints were lodged
with the second respondent during 2025 concerning loud music, failure to trade
within prescribed hours for a restaurant licence, and patrons parking in front of
residents' gates; (d) The applicants responded to the complaints in
correspondence dated 18 December 2025, denying the allegations and requesting
the s 141 rep01ts and attendant complaints; (e) Without affording the applicants
a proper opportunity to make representations , the second and third respondents
decided on 18 February 2026 to suspend the liquor licence, effective 23 February
2026; (f) The suspension decision was taken under the repealed 1989 Liquor Act,
as oppos ed to the North West Liquor Licensing Act2 ('the North West Liquor
Act'). The decision is therefore ultra vires and procedurally unfair; (g) The
suspension has caused and continues to cause irreparable financial harm to the
applicants, with the sale of alcoholic beverages constituting approximately 71.5%
of turnover. It is fu1thermore contended that twenty-one employees of the second
applicant are at risk of retrenchment; (h) All health and safety concerns have been
addressed, and the applicants have attached various compliance certificates,
including a COC dated 12 September 2023.
[ 6] The app licants contend that they have established a prima facie right ( even
if open to some doubt), a reasonable apprehension of irreparable harm, that the
1 Liquor Act 27 of 1989.
1 North West Liquor Licensing Act 6 of 2016.
6
balance of convenience favours the granting of interim relief, and that there is no
adequate alternative remedy.
The case of the eighth and ninth respondent s
[7] The eighth and ninth respondents oppose the application on several
grounds. These grounds are summarised as follows: (a) Lack of urgency: The
appl icants were aware of the complaints as early as April 2025, but failed to take
steps to prevent the suspension . They procrastinated for almost a year and only
brought the application on five days' notice after the suspension was
communicated on I 9 February 2026. Any urgency is self-created; (b) Lack of
locus standi: The liquor licence is held by the seventh respondent, not by either
applicant. The first applicant's purported appointment as a manager in terms of s
39 of the (now repealed) 1989 Liquor Act does not vest him with standing to
bring these proceedings in his personal capacity . The second applicant has only
an indirect financial interest; (c) Unlawful use of the licence: Section 42(4) ofthe
North West Liquor Act prohibits the letting or hiring of a liquor licence. The
second lease agreement commenced after the North West Liquor Act came into
force and is therefore unlawful. This Court is constitutionally precluded from
facilitating the commission of a criminal offence; (d) No prima facie right: The
applicants have failed to demonstrate strong prospects of success on review. Their
two primary grounds of review are demonstrably unfounded; (e) Balance of
convenience: The interests of the neighbouring community and the students of
Academy Height s far outweigh the applicants' desire for profit from liquor sales.
(f) Alternative remedy: The applicants undertook to relocate the tavern business
to an alternative premises being the Rio Casino in Klerksdorp ('Rio Casino') as
early as December 2025 and have failed to explain why they have not done so.
7
[8J On the specific issue of the COC raised by the Court, the eighth and ninth
respondents submit that the COC dated 12 September 2023 is invalid for the
following reasons: it is more than two-and-a-half years old; it was issued in the
name of 'Franco's Restaurant', not in the name of the current operator (the second
applicant); the City of Matlosana Municipality ('the Municipality') has expressly
recorded that the premises are operating without a valid COC; and the building
on the premises has been altered, requiring a new COC.
The issues
[9] The following issues fall for determination: (a) whether the application is
urgent; (b) whether the lease agreement of I Septembe r 2025 is unlawful under s
42(4) of the North West Liquor Act; (c) whether the COC relied upon by the
applicants is valid; and (d) whether the applicants have established the
requirements for interim relief.
Urgency
[ l OJ The settled position, as brought about by Rule 6( l 2)(a) of the Uniform
Rules, requires an applicant for urgent relief to set out explicitly the
circumstances which render the matter urgent and the reasons why substantial
redress cannot be afforded at a hearing in due course. The primary enquiry is
whether the applicant will be afforded substantial redress if the matter proceeds
in the ordinary course.
[ 11] The appl icants contend that the matter is urgent because they were given
only three calendar days' notice of the suspension of the liquor licence and face
irreparable financial harm as a result. The broader time I ine, however, tells a
different story. The applicants were aware of the serious complaints against them
8
as early as April 2025. The Municipality issued a notice on 3 June 2025 and a
further letter on 3 December 2025 detailing multiple non-compliances, including
the absence of a valid electrical certificate of compl iance . ln their formal response
dated 18 December 2025, the applicants made exp licit undertakings to the sixth
and third respond ents that New Age Lounge Restaurant would relocate to another
venue and that the term s of a lease at the Rio Casino would be finalised in January
2026.
[ 12] By January 2026, the applicants had apparently done nothing to finalise
any alternative lease. When asked to explain this hiatus, the first applicant stated
that the intended lessee at the Rio Casino was 'on leave' and the lease could
therefore not be signed. This explanation is implausible for the following reasons.
Firstly, in the final event, the applicants had to provide an explanation for the
absence of a concluded alternative lease, which was add ressed in the applicant's
replying affidavit filed on 27 March 2026. By this time, the self-imposed
finalisation date of the lease contract in January 2026 had long passed without
the applicants providing any reasonable explanation. Secondly, it is hard to
fathom that, in a corporate environme nt, the absence of a single individual can
keep the signing of a commercial lease in abeyance for more than two months.
[13] The applicants cannot simultaneo usly represent to the second respondent
(and third respondent) that they will relocate and then represent to this Cou11 that
they cannot relocate because a sing le person is on leave. The applica nts cannot
manufacture their own harm through inaction and then seek urgent relief to avoid
its consequences.
[ 14) The applicants were aware of the complaints against them since April
2025. Yet, they waited until the suspension was communicated on 19 February
2026, then waited a further two weeks before launching this application. The
Q
eventual redress that the applicants can obtain is closely related to the urgency of
the present application. The trite legal position is that when an applicant conjures
up urgency, it falls into the category of self-created urgency. Self-created urgency
is not countenanced in our legal system. In the present application, the urgency is
nothing but self-crea ted. On this basis, this matter falls to be struck from the roll.
[ 15] However, 1 am mindful that strik ing the application for want or urgency
will simp ly result in the applicants re-enrolling the matter on the ordinary motion
roll. In the interests of finality and given that the pa1ties have fully argued the
merits, the court exercises its discretion to deal with the merits notwithstanding
the want of urgency. The reasoning should cite the court's inherent power in this
regard.
The lease agreement
[ 16] At the outset, it is necessary to address the interplay between the 1989 Liquor Act and the North West Liquor Act. South Africa's liquor regulatory
structure is now a system of concurrent national and provincial legislation. This
means that while there is a national framework, the provinces are responsible for
the day-to-day regu lation, licensing, and enforcement of liquor sales. The
primary act is the National Liquor Act3. This act sets the national standards and
framework for the liquor industry. At the provincial level, a province has its own
liquor act, with the North West Liquor Act governi ng licensing, trading hours ,
and offences within the North West Province. The North West Liquor Act came
into operation on I April 2025 4 . Simultaneously with its commencement, it was
determined that the 1989 Liquor Act would cease to operate within the North
West Province. Sect ion 42(4) of the North West Liquor Act provides that a
1 National Liquor Act 59 of 2003.
1 Promulgated in terms of General Notice 3099 of 2025. published in Government Ga✓ enc 52409 of 28 March 2025.
licenced person may not lease the liquor licence to any person or allow another
person to carry on business in terms of the licence. Section 42( I 0) renders a
contravention of subsec ( 4) a criminal offence.
[ 17] The second lease agreement commenced on I September 2025. By that
date, the North West Liquor Act had been in force for five months, having
commenced on I April 2025. Clause 13.2 of the secon d lease agreement states
that the liquor licence shall be held in the name of the seventh respondent and
that the second applicant shall trade under the liquor licence as Franco's
Restaurant. Clause 13.2 of the lease agreement states:
• rhe Liquor Licence shall be hdd in the name of the LESSOR, Diesdlec Propco (Pt}) Ltd.
The LESSEE shall trade under the Liquor Licence as FRANCO'S REST AU RANT. It is
placed on the record that the LESSOR is in the process of obtain ing the necessary licence. The
renewal fee shall be paid annually by the LESSEE. The LESSOR shall be the legal owner of
the Liquor Licence. The LESSEE shall also be liable to pay the annual renewal cost on
consumption as prescribed by the Liquor Act.' (emphasis added)
[ 18] This is, on any analys is, a letting or hiring ora liquor licence, which s 42( 4)
of the North West Liquor Act expressly prohibits and which s 42( l 0) of the same
act crimina lises. The applicants' ent ire claim to operate the establishment rests
upon this lease agreement. Without it, they have no right to occupy the premises,
no right to trade under the sevent h respondent's licence, and no basis to challenge
the suspe nsion. The foundation of the applicants' case is illegal. The ex turpi
causa non oritur actio principle provides that no court will lend its assistance to
a party who founds their cause of action upon an illegal act. Both applicants'
rights to the claimed relief depend on the unlawful lease of the liquor licence. The
unlawfulness of the lease of the liquor licence means that the applicants cannot
unlawfulness of the lease of the liquor licence means that the applicants cannot
found any entitlement to relief, and this point is independently dispositive of the
II
app lication. Th is is where this matter should end, but I am enjoined to engage,
albe it briefly, with the other issues in the matter.
The validity of the Electrical Certificate of Compliance
[ 19] The applicants rely on a COC dated 12 September 2023 issued in the name
of France's Restaurant. The Municipality, in its letter dated 3 December 2025,
states unequivocally that the applicants are conducting business without approved
building plans, a valid electrical cert ificate of compliance, fire clearance
certificates, health certificates, or pest control certificates. The same letter records
that the building has been altered and extended in a manner inconsistent with the
approved building plans on file. Regulat ion 7( I) of the Electrical Installation
Regulations 5 is peremptory in that no person may alter or add to an electrical
installation unless a registered person has issued a certificate of compliance in
respect of the alteration or add ition. The appl icants have produced no COC
covering the alterations and the Municipality 's official position cannot be
ignored. The COC relied upon by the applicants is not valid proof that the
electrica l installation is compliant.
The requirements for interim relief
[20] Even if the app licants had overcome the foregoing obstacles, they have
failed to establish the requ irements for interim relief, which are: that the applicant
must establish a prima facie right, even if open to some doubt; a reasonable
apprehension of irreparable and imminent harm; that the balance of convenience
favours granting the interdict; and that there is no other adequate remedy. As the
applicants apply for an order interdicting the exercise of a statutory power, this
'Promulgated by Government Notice R242, publi shed in Government Uat:ettc 32094 ol 6 March 2009.
12
presupposes a measure of exceptiona lity, wh ich increase s the rigour of applying
the princip les of an interim interdict. The Const itution al Court in National
Treasury and Others v Opposition to Urban Tolling Alliance and Others6 has
underscored the exceptional nature of the kind of interim relief sought by the
applicants as follows:
·The common law annotatio n to the ,\'etlogdo test is that courts grant tcmporar) n.:straining
on.krs against the exercise of statullW) rower only in c~ccptional ca:-.cs and '"hen a -.1rong CH!>c
for that n:licr has been made out. lkyond the common la,\. :-.cparation or p<)\\er-. j.., an c,cn
more vital tenet of our constitu tional dcmocrncy. I his means that thl.! Constitution rcquircs
cm111s to ensure that all branches of (iO\ernmcnt act \\llhin tht: la\\ . IIO\\C\Cr. courts in tum
must refrain from cntcring the cxclusi\'C terrain 01· the Lx~cutivc an<l the Legislative branches
of (,tl\ crnmcnt unless the intru sion i!> mundatcd h) the Constitution it,dC
[21] The Constitutional Court found, in this regard , that when an interim
interdict is soug ht against the exercise of statutory power by an organ of state, the
balance of convenience enquiry must g ive proper weight to the probable impact
the restraining order will have on the constitution al and statutory power s and
duties of the state functionary or organ of state against which the interim order is
sought. A temporary restraint against the exercise of statutory power may be
grante d only in the clearest of cases, after careful consi deration of that harm.
[22] As to the prima facie right, the applicants rely on two ground s of review.
First gro und: that the suspension decision was taken under the repealed 1989
Liquor Act. The applicants contend that because the Nort h West Liquor Act 6 of
2016 came into operation on I April 2025, any decisio n taken aflertha tdat e must
be taken under the new Act. This ground ignores the presumption agai nst the
be taken under the new Act. This ground ignores the presumption agai nst the
retrospect ivity of legis lation. In Veldman v Director of Public Prosecutions
1
6 .Vutionul Treasury and Others v Opposition to Urhun Toi/mg .11/ium.:c and Other, (CCT 38 12) 12012] / ACC 18: 2012 (6) SA 223 (CC): 2012 ( 11) BCLR 1148 (CC) (20 September 20 12) para 44. 7 I 'eldman 1• Director of l'ublic Proseculiom (CCTI 9/05) L2005 I ZACC 22; 2007 (J) SA 2 10 (CC) paras 26-27.
13
wherein the Constitutional Court quotes from Curtis v Johannesburg
Municipality 8, this principle is aptly described as follows:
' 126] Generally, legislation is not to be interpreted lo extinguish existing rights and ohligations.
This is ~o unless the statute provides otherwise or its language clearly shows such a
meaning.That lcgblation will affect only future matters and not take m\ay existing rights i~
basic to notions of lairness and justice which arc integral to the rule or Im,_ a fi_)undational
princ iple of our Consti tuti on. /\lso central to the rule of la,;,,· is the principle or legal it) which
requires that law must be ce11ain. clear anJ :-;table. Legi~lativc enactments are intended to •give
fair warning of their cflect and pennit individuals to rely on their meaning until e>-.plicitly
changed.'
1271 As Innes CJ reasoned in Curtis:
'"The general rule is that, in the absence or express provision to the contrary. statutes should be
considered as affec ting. future matters only: and more especially that they should if possible be
so interpreted as not to take a\vay rights actually vested at the time of their promulgation.·
[23] The investigative process under s 141 of the 1989 Liquor Act was initiated
well before 1 April 2025, as is clear from the report of SAPS Captain Van
Schalkwyk, dated February 2025. The complaints were lodged, the hearin gs were
convened, and the evidence was gathered under the I 989 Liquor Act. Where a
process has commenced under a particular legal regime, it is legally sound for
that process to be concluded under the same regime. To require the Liquor Board
to abandon a partially completed investigation and start afresh under a new Act
would lead to delay, potential injustice and absurdity. The second respondent,
therefore, acted lawfully in conc luding the section 141 process under the 1989
Liquor Act.
• Curi is v .Johanneshurg Mun icipal ity 1906 TS 308 at 311 .
14
[24] Second ground: that the applicants were denied a fair hearing. The
applicants argue that they were not properly informed of the complaints against
them and were not afforded a meaningful opportunity to respond before the liquor
licence was suspended. This contention is demonstrably false on the papers. The
timeline of events, which is set out in detail in the answering affidavit of the
eighth and ninth respondents, reveals that the appl icants attended no fewer than
three oral hearings before the second respondent. At these hearings, specific
complaints were articulated: loud music causing a nuisance to residents and to
the students of Academy Heights; failure to trade within the hours prescribed for
a restaurant licence; failure to operate a bona fide restaurant as opposed to a
tavern; and patrons parking in front of neighbours' gates, obstructing access to
their properties. The applicants were allowed to respond to each of these
complaints. They did so, both orally at the hearings and in written correspondence
dated 18 December 2025.
[25] The applicants knew exactly what the complaints were. The purpose of the
hearings was clear, as the second respondent disclosed its concerns. To these
concerns, the applicants responded, but they simply failed to persuade the second
respondent. The applicants cannot now complain that they were denied a hearing
when they were given multiple hearings. The right to procedural fairness does not
guarantee a favourab le outcome; it guarantees a fair process. A fair process is
what the applicants received. Their dissatisfaction with the outcome does not
translate into an irregularity.
[26] In conclusion on the issue of a prima facie right, the applicants have failed
to demonstrate any reasonable prospect of success on review. The reliance on the
1989 Liquor Act was justifiable and the multiple hearings satisfied the
requirements of procedural fairness. The prospects of success are therefore
requirements of procedural fairness. The prospects of success are therefore
negligible. This alone is fatal to the applicants' claim for interim relief, as a prima
15
facie right (even one open to some doubt) is an indispensable requirement of the
test as affirmed by OUTA 9.
[27 J As to the balance of convenience, the Constitutional Court in OUTA in held
that interim orders affecting executive action should be granted only in
exceptional circumstances and in the clearest of cases. This is not such a case.
The harm to the applicants is economic and compe nsable by damages. The harm
to the neighbouring community, including sleep deprivation , inability to study,
and physical nuisance, is not readily compensable. The applicants have suitab le
alternative premises available and have failed to honour their own relocation
undertakings. The s ustained harm they fear is self-created.
[28] As to an adequate alternative remedy, the applicants have a clear
alternative remedy: they may relocate to the Rio Casino as they undertook to do.
Their failure to do so is a matter of their own choice, not a legal necessity.
Conclusion
[29] The app lication lacks urgency, and the unlawfu lness of the liquor licence
lease means the applicants are not ent itled to the relief sought. Additionally, the
applicants have failed to establish a prima facie right or to show that the balance
of convenience favours them. The application falls to be dismissed.
[30] On the question of costs, there is no reason why costs should not follow
the result. As opposed to the intervention applicat ion, the issues raised in the
- --------
•> Op cil fn 6.
1" !hid.
16
opposition of the application by the eighth and ninth respondents are sufficient ly
com plex to warrant a cost order on Scale B.
[31] In the result, the following order is made:
l Part A of the application is dismissed.
2 The first and second appl icants are jointly and severally liable for the costs
of Part A of the application on Scale B.
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORT H WEST DIVISION, MAHIKENG
Appearances:
For the applicants:
Instructed by:
For the eighth and ninth
respondents:
Instructed by:
Adv GE Matsictsa
Sepecholo Inc.
Mahikcng
Mr C Nienaber
Brand & Lambrechts
Klerksdorp
c/o Nienaber Wissing
Mahikeng