Barnard v Gauteng Provincial Liqour Board (29556/2014) [2015] ZAGPPHC 779 (21 September 2015)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No: 29556/2014

DATE: 21/9/2015

REPORTABLE

OF

INTEREST TO OTHER JUDGES

In the matter between:

MELISSA

ARLETTE

BARNARD

Applicant

and

THE

GAUTENG PROVINCIAL LIQOUR

BOARD

Respondent

JUDGMENT

MOHLAMONY ANE AJ:

[1] A t 1 Boundary Road, Rynfield Small Farms, Benoni, in Gauteng Province, lies Flamingo's Nest, a Guest House and Conference Centre.

The property is leased to the Applicant. In February 2012 the Applicant submitted an application to the Gauteng Liquor Board

("the Board") for a Hotel Liquor Licence (on-consumption) . The application was brought by the Applicant and dealt with by the Board in terms of the provisions of section 23 of the Gauteng Liquor Act, no 2 of 2003 ("the Gauteng Act'').

[2] The documents comprising the said application are contained on pages 85 up to and including 170 of the record of proceedings. It was submitted to the Board on 22 February 2012 by a consultant on behalf of the Applicant.

GRANTING OF THE LICENCE:

[3] On 06 March 2012 the Board granted the Hotel Liquor Licence ( on-consumption)

(Annexure "B" on page 1 1 to the Applicant ' s founding affidavit) subject to the submission of:

3.1 "Clearance Certificate from Ekurhuleni M unicipality 's Health Department:

3.2 Clearance Certificate from Ekurhuleni Municipalit y's Emergency Management Services: and

3.3 A Zoning Certificate and Local Authority Approval, within a period of 30 days from date of receipt of this letter''.

[4] It is these conditions, in particular condition number 3 which brought matters to a head. The Applicant, on advice of her legal

representatives, brought this review application to this Court to review and set aside the decision of the Board to grant a licence

subject to conditions. According to the .Applicant she was advised that the imposition of the conditions by the Board were ultra vires.

[5] Before the Applicant brought this application, the consultant made attempts to comply with the conditions. According to the Applicant. she could not succeed in complying with the conditions because of various planning development taking place in the relevant area.

[6] At this stage I want to pause to consider the Applicant's application documents. In the said documentation, it is stated, among others, that the facility comprises a kitchen (which means a restaurant) , and Barney ' s Game Cock Pub. (pages 135 and 170 photo 34) a Bar Area (page l06) . For reasons that will become clearer later in this judgment, I propose to consider definitions of certain terms given in section l of the Gauteng Act, for the sake of completeness.

[7] The following words are defined:

7.1 "bar" means any open bar or any part of license' d premises exclusively or mainly used for the sale and

consumption of liquor and shall include any counter or barrier across which drink is or can be served to the public;

7.2 "grant " with regard to a licence or permit means the approval of an application by the Board prior to the issue of the licence or permit;

7.3 "issue", with regard to a licence or permit, includes the delivery or dispatch of the licence to the person to whom it has been granted or to his or her agent; and

7.4 "pub" means a place where liquor is sold for consumption together with snacks or light meals" .

[8] Chapter 4 of the Gauteng Act deals with General Conditions for Licences. In this regard section 23 (4) is pertinent. For purposes of clarity I deem it necessary to quote section 23 (4) in full. It reads:

"Applications for tavern, pool club, pub, liquor store and night club liquor licences shall also be accompanied by unequivocal approval by the relevant metropolitan or district council, in addition to any zoning or planning or environmental laws requirements".

[9] In my view, the Applicant's Guest House comprise of a Pub, a Restaurant and a Bar Area among others. As defined in the Gauteng

Act, a Bar and a Pub are places where liquor can be sold and consumed on the premises. The licence granted to the Applicant is an on-consumption licence, which entities the licensee to sell liquor for consumption only on the licensed premises.

[10] In my view, the Applicant 's Hotel Liquor Licence falls squarely within the parameters of section 23(4) of the Gauteng Abt, whose provisions are couched in peremptory terms. By parity of reasoning it follows therefore that the Applicant ' s application for a Hotel Liquor Licence must have been accompanied by an unequivocal approval by the relevant department of the metropolitan or district council. In this particular case, the relevant department would be

the City Development Department and Health Department of Ekurhuleni Metropolitan Municipality. The section stipulates that zoning or planning or

environmental requirements are in addition to any other required approval.

APPLICATION FOR CONDONATION:

[11 ] I will briefly consider the points in limine taken by the Respondent. The Applicant sought to apply for condonation of the late bringing of this application as it was brought 180 days after the decision to grant the licence was made on 06 March 2012, in terms of the Promotion of Administrative Justice Act, no 3 of 2000 ("PAJA "). PAJA is, in my view, inapplicable because the Applicant did not utilise the provisions of PAJA to request reasons for the decision of the Board. For this reason, the point in /imine cannot succeed. The application was brought within a reasonable time and not after an unduly lengthy period after the decision was granted.

HAS

THE RESPONDENT ACTED

ULTRA VIRES BY IMPOSING THE CONDITIONS?

[12] The Applicant places reliance on three judgments, which are

'

conveniently referred to as the "Wilcaris decision, the "Nkomo decision and the Beilings decision". (see par. 5.7 .3 of the Applicant's founding affidavit, p. 7 and Annexures C, D and E, from p. 13 to p. 48 of the record of proceedings) . Counsel for the Respondent. in her heads of argument. argues that the applications for liquor licences dealt with in the three cases mentioned above were made in terms of section 19 of the Liquor Act, no 27 of 1989 (".the 1989 Act") , read with Regulations made thereunder, prior to the commencement of the Gauteng Act.

[13] On the other hand, counsel for the Applicant argues that the stare decisis principle has to be observed and the three decisions must be followed. Counsel for the Respondent, in developing her argument, submitted that in the three judgments the Applicant relies upon, the licence applications had been refused, in other words, the liquor licences were not granted. I agree with her.' In the present case the licence was granted but not issued to the Applicant. The three judgments, in my view, are inapplicable to the present circumstances in that the learned Judges were interpreting the relevant provisions of the 1989 Act. It is therefore not a sound submission by counsel for the Applicant that the Board refused the application for a reason not authorised by the Liquor Act ( presumably referring to the Gauteng Liquor Act) .

[14] In my view, the Board must, in future, interpret section 23 (4) correctly. It must avoid placing conditions when granting liquor

licence applications by requiring that all applications for liquor licences must be accompanied by the unequivocal approvals by the Health and the Planning Development Departments of municipalities, as required by the Gauteng Act.

[15] In my respectful view, the Act which must be interpreted is the Gauteng Act under which the Applicant ' s application was made and not the l989 Act.

[16] As for as zoning and re-zoning of property is concerned, relevant provisions of Ordinance 15 of 1986 (T) ore applicable. The premises in question is zoned "Agricultural ". The Applicant had mode application for Consent Use in terms of the Benoni Town Planning Scheme but the application delayed. (see p. 55) .

[ 17] The Applicant, in her second prayer, asks this Court to make an order directing the Board to issue the licence. In Pharmaceutical

Manufacturers Association of South Africa and Another: In re Ex­ Porte President of the Republic of South Africa and Others, 2000 (2) SA 614 (CC) the Constitutional Court, in dealing with the exercise of a public power by the President or another public functionary, quoted

Shidiack v Union Government (Minister of the Interior) , l912 FAD 642 at 65 l, where it was said (at par. 82) :

"Now it is settled low that where a matter is lef t to the discretion or the determination of a public of ficer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being' a judicial f unctionary, no appeal or review in the ordinary sense would lie; and if he hos duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own" .

The judgment goes on to hold that there are circumstances in which

"Interference would be possible and right. If for instance such on officer had acted ma/a fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a stat ute-in such cases the Court might grant relief.But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong" .

The Constitutional Court (at par. 83) continued:

"To the extent that Shidiack requires public officials to exercise their powers in good faith and in accordance with the other requirements mentioned by Innes ACJ, it is consistent with the foundational principle of the rule of law enshrined in our Constitution. The Constitution, however, requires more; it places further significant constraints upon the exercise of public power through the bill of rights and the founding principle enshrining the rule of law" .

[ 18] Counsel for the Applicant submitted, in his heads or argument, that the decision of the Board was taken "arbitrarily or capriciously" . He further submits that the decision of the Board ''...was materially influenced by an error of law" .

'[19] It was held in the Pharmaceutical case quoted above, that the Constitution requires that public power vested in the executive and other functionaries be exercised in an objectively rational manner. (at par. 89) . The Applicant ' s counsel has not submitted that the Respondent has acted irrationally by imposing conditions, but, as stated already, that the Respondent has acted ultra vires. If the Respondent has presumably acted ultra vires has it accordingly acted irrationally? There is no suggestion from the Applicant that the Respondent has acted irrationally. On the facts, I can find no irrational, arbitrary or capricious conduct on the part of the Respondent by imposing conditions as it did.

[20] "Rationality in this sense is a minimum threshold requirement applicable to the exercise of a// public power by members of the executive and other functionaries. Action that f ails to pass this threshold is inconsistent with the requirements of our Constitution, and therefore unlawful. The setting of this standard does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary' s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it, or considers that the power was exercised inappropriately. A decision that is objectively irrational is likely to be made only rarely but if this does occur, a court has the power to intervene and set aside the irrational decision. ". (Pharmaceutical case, supra, at par. 90) .

[21] I cannot order the Board to issue a licence to enable the Applicant to trade if she has no Consent Use and the premises have not been rezoned in accordance with law. In my view, if I do that, I will be enabling the Applicant to contravene the law. I can therefore not find that the Board has acted ultra vires by imposing the conditions it imposed.

CONCLUSION:

[18] The conditions imposed were necessary in that, the Applicant's application was, in terms of section 23 ( 4) of the Gauteng Act, required to be accompanied by all the necessary approvals to which I have already referred.

[19] In the result I make the following order: The application is dismissed with costs.

________

MD

MOHLAMONYANE

[Acting Judge of the High Court of

South Africa, Gauteng Division, Pretoria]

APPEAR ANCES:

For the Applicant

Adv C. J . Welgemoed

Instructed by Marais Blom

PRETORIA

For the First Respondent Adv K. B. Kgoroeadira

Instructed by State Attorney