Boneltha (Pty) Ltd t/a Casa Bella Loftus v Pandelani N.O. and Another (33277/2018) [2018] ZAGPPHC 520 (13 June 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

CASE NO: 33277/2018

13/6/2018

In the matter between:

BONELTHA (PTY) LTD t/a CASA BELLA LOFTUS

Applicant

and

Mr. PANDELANI N.O.

First Respondent

THE GAUTENG PROVINCIAL LIQUOR BOARD

Second Respondent

JUDGMENT

Maier-Frawley AJ:

Introduction

1. The applicant launched an urgent application[1] in which it seeks, inter alia, a mandamus compelling the respondents[2] to issue a Restaurant Liquor License which had been granted to the applicant in February 2018; and interim relief as contemplated in section B(l)(e) of PAJA, authorizing the applicant to trade in liquor at its restaurant situated at 416 Kirkness Street, Arcadia, Pretoria, until such time as the liquor license is in fact so issued.

2. The respondents opposed the grant of such relief and simultaneously brought a counterclaim for an order, inter alia, permitting the second respondent to proceed with a formal inquiry, as contemplated in section 106 of the Gauteng Liquor Act, No. 2 of 2003 ('the Act'), into the alleged contravention by the applicant of the provisions of the Act relating to the sale of liquor without a valid liquor licence; and interdicting the applicant from, inter alia, selling liquor to patrons at its restaurant pending the finalization of such enquiry (within 30 days of the grant of the order). The respondents state that in essence, an order is sought 'to suspend the processes of issuance of the licence' and for leave to refer the applicant to an inquiry to determine its suitability to hold a licence in the light of the alleged contravention.[3]

3. A central issue requiring determination in this matter is whether the respondents are obliged to issue a liquor licence in circumstances

where, after the grant of the license but before its actual issue, the respondents are alerted to a possible contravention of the Act by the applicant, namely, trading in liquor without a valid liquor licence. The applicant contends that the second respondent is obliged to issue the licence in spite thereof, whilst the respondents contend that they are not.

4. The applicant is a newly registered private company which conducts the business of an Italian restaurant named 'Casa Bella Loftus' in a commercial development located within the mall area of the Loftus stadium in Pretoria. The deponent to the founding affidavit, Mr. Philip Rudolph Botha Nel, is one of the two directors of the applicant.

5. The second respondent is the Gauteng Provincial Liquor Board ('the Board'), being the statutory body responsible for regulating the liquor trade in Gauteng and for administering the Gauteng Liquor Act 2 of 2003 ('the Act'). The first respondent is cited in his capacity as Chairperson of the second respondent. The deponent to the answering affidavit, Ms Wendy Ngoma, is a member and the deputy chairperson of the second respondent.[4]

6. The common cause facts, as summarised in the respondents’' heads of argument, are, inter alia, that:

6.1. The applicant applied for a restaurant liquor licence which was approved by the respondents pursuant to which the Board granted a restaurant liquor licence to the applicant;

6.2. The licence was granted subject to a '12 month final inspection';

6.3. During such inspection (as appears from the inspector's report), the applicant was 'found' to have contravened the Act by selling liquor prior to, and thus without a valid liquor licence;

6.4. The first respondent, in his official capacity, called the applicant to attend a meeting on 10 May 2018;

6.5. Prior thereto, the applicant had written a letter of apology to the second respondent in which it sought to blame its 'contravention' on its operational manager;

6.6. The respondents have not yet issued the licence.[5]

Broader Factual Matrix

7. It is appropriate to set out the broader factual background for purposes of elucidating the facts mentioned above.

8. The applicant applied in advance for a Restaurant Liquor License to enable it to start trading in liquor on completion of its restaurant.

At the time of the application, the premises were incomplete.[6]

9. Having considered the application, on 2 February 2018,[7] the second respondent decided to grant a Restaurant Liquor License to the applicant. To this end and on 6 May 2018, the Liquor Boar d addressed a written notification to the applicant, informing it therein, inter alia, that a 'Restaurant Liquor License be and is hereby granted subject to 12 months final inspection.' (emphasis added)

10. The applicant's representative arranged for a final inspection to be held so that the relevant license could be issued. Such an inspection was held on 11 April 2018. According to the applicant, at that stage, the Bar area of the premises was stocked with liquor in anticipation of the opening of the applicant's restaurant at an upcoming opening event of the Centre, for which an occasional liquor permit would be obtained. (It is not in dispute that the requisite permit was indeed obtained from the Board for the event.)

11. At the time of the inspection, the inspector indicated to the manager of the applicant's restaurant that the display of liquor was illegal and that she would report the matter to the Board ('the incident').

12. The final inspection was conducted by a liquor trade inspector, one Kgomotso Molefe, who thereafter compiled a written report headed:

'Final Inspection relating to section 35(4) application in terms of the Gauteng liquor Act, 2 of 2003 in respect of Casa Bella' in which she recorded, inter alia, the finding that the premises were 'complete according to the submitted plans as per application' and in which she also alleged that the applicant had, during the time of the inspection, been trading without a liquor license. In substantiation thereof, the inspector referred to certain photographs which were annexed to the report.[8]

13. The directors of the applicant thereafter addressed a letter of apology[9] to the second respondent, in reference to the incident, wherein they stated that the applicant's manager had mistaken the second

respondent's approval of the applicant's liquor license as the 'go ahead to start selling liquor,' such mistake having resulted from a lack of communication between the owners and the manager about when to start selling liquor. The directors tendered an unreserved apology therefore. According to the applicant, they did this for the purpose of explaining to the second respondent that they had no mala fide intention to be in contravention of the Act. The letter was addressed without the input of legal advice, which was however subsequently obtained.

14. On 2 May 2018 the applicant's attorney of record addressed a letter to the Board on behalf of the applicant in which he pointed out, inter alia, that the display of liquor was not in and of itself an offence, (displaying on its own, not being part of the definition of 'sell' in s1 of the Act) but rather that 'displaying...for sale' was what was prohibited in the Act[10]; that the liquor board 'has no jurisdiction to make any other decision in respect of the premises, than has already been taken' and that as such the board was functus officio and 'must' issue the license on final inspection. A demand was therein made for the license to be issued immedaitely.[11] As is apparent from the further content of the letter, at that stage, the applicant was laboring under the mistaken impression that the inspector had failed to complete the final inspection.[12]

15. On 7 May 2018 the applicant and its legal representatives were requested to appear before the Liquor Board 'with regard to the abovementioned

application,' [in reference to the applicant's application for a liquor license]. No specific reasons were furnished for the required

attendance and no indication was given of what was to be discussed thereat.[13] The applicant nonetheless cautiously attended the meeting, having been given a mere 3 days' notice thereof.[14]

16. Apart from admitting that liquor had been placed in the bar, no admission as to any contravention of the Act was made by the applicant at such meeting. The inspector was called to testify about her finding that the applicant had traded in liquor without a license. When questioned as to whether she had obtained any proof of sales of liquor, she confirmed that she had not.

17. The meeting/enquiry terminated without resolution, one or the other party having taken umbrage at remarks that were made by one or another person present thereat.

18. According to the deponent to the founding affidavit , the meeting took place in a 'rather unpleasant atmosphere' which led him to form the impression that the Board, as represented by the first respondent, was 'set on reconsidering the grant of the application.'

19. According to the respondents, the first respondent did not at any stage inform the applicant that the Board had taken a decision to revisit the grant of the licence.[15]

Summary of Respondents' main submissions

20. The respondents submit that the applicant has failed to establish the requirements for the grant of an interim interdict, and that the court should exercise its discretion against granting such relief, inter alia, because the applicant has not established that the respondent has failed to perform a legal function or duty,[16] and because the applicant has an alternative remedy at its disposal, namely, to institute a claim for damages.

21. The respondents contend that it would be 'futile and possibly illegal[17] to order that the licence be issued before a thorough investigation is conducted into the suitability of the applicant to hold a licence, particularly in circumstances where, so it is contended, the applicant has 'lightly but definitely admitted that the allegations [by the inspector] of a contravention of the Act, are sound.'[18] The respondent s rely on the provisions of sections 3(2)(d)] and 35(4) of the Act, for the entitlement to conduct an investigation

into the suitability of the applicant to hold a licence at a stage after the grant of the licence but prior to it being issued. The respondents submit in this regard that section 35(4) of the Act caters for the situation 'where there are grounds to impugn the actual issuance of a licence in situations where the premises have not been completed and where the Board is not satisfied that the issuance of [the] licence is suitable'.[19]

Summary of Applicant's main submissions

22. The applicant submits that the respondents are refusing to issue the licence out of spite, i.e., with an ulterior motive, for the

following reasons: On the one hand, the respondents claim that they have never said that they want to revisit their decision to grant of the licence, yet, on the other hand, they refuse to issue the licence. Issuing involves the simple task of signing the relevant document against payment of the prescribed fee. By the time that the licence was granted, the respondents had already found that all the requirements of section 30 of the Act were met, inter alia, that the applicant's premises 'are or will be suitable for the purposes for which they were to be used under the licence' and that the applicant 'is of good character and is otherwise fit to be the holder of the licence.' In this regard it was contended that the Board clearly considers the applicant's directors to be fit to hold liquor licences, since they are current holders of liquor licences in respect of other business ventures. Moreover, the Board also considers the applicant to be suitable to hold a licence in view of the fact that it granted the applicant a temporary permit to trade in liquor at its opening event pursuant to and notwithstanding the occurrence of the incident in question.

23. The applicant further submits that none of the provisions of the Act which are relied on by the respondents afford them any assistance in resisting the applicant's claim or indeed support the relief sought in the counter-application. In this regard, the applicant submits that:-

23.1. Sections 105 to 107 of the Act apply only in respect of licencees, and until a licence is issued, the said provisions of the Act are not available to the respondents;[20]

23.2. The provisions of section 3(2) of the Act are not applicable to any consideration of the grant of a licence, as section 3(1) applies in the case of a grant of a licence whilst section 3(2) to all other cases, i.e., in respect of matters other than the grant (or refusal) of an application for a licence, as has been consistently stated in cases such as Pick n Pay Retailers (Pty) Ltd v Gauteng Provincial Liquor Board;[21] Piza Vino Lynridge (Pty) Ltd t/a Piza E Vino v Chairperson of Gauteng Provincial Liquor Board and Another;[22] and Arge/la Six General Dealer CC v The Gauteng Liquor Board;[23]

23.3. Section 35 does not afford the respondents the authority, after a licence is granted, to 'rethink' or revisit the grant of a licence or the conditions upon which effect will be given to the grant. In order to revisit the decision to grant a licence, the respondents would have to bring an application for a review, based on the principle of legality, [24] which they have not sought to do;

23.4. The applicant submits that the only condition or requirement to which the grant of the licence could have been subject in the circumstances of the present case, was that the premises had to be completed within a period of 12 months, as determined by a final inspection of the premises conducted within such period. As at the date of final inspection, the premises had indeed been completed in accordance with the submitted plans and thus the Board's only condition or requirement had in fact been complied with. Therefore, in terms of section 35(4) of the Act, the Board ' shall' (is obliged to) issue the licence 'in accordance with section 37' of the Act;

23.5. As regards sect ion 36 of the Act, which provides, inter alia, that a licence 'shall not be issued to a person who is disqualified or otherwise incompetent in terms of this Act [s37] to hold the licence concerned', the applicant submits that until such time as the applicant is convicted of an offence in a court of law, it would not be disqualified and could not be found to be incompetent to hold a licence . Thus, even if all the allegations regarding the incident were to be accepted as correct at this juncture, this would not render the applicant disqualified or incompetent to hold a licence , more particularly, in the light of the fact the applicant is presumed innocent until proven guilty.[25]

24. The applicant submits ordinarily, once a licence is granted, the Board becomes functus officio (devoid of power to vary or alter its decision to grant the licence), and the Board becomes duty bound to forthwith issue the licence in terms of section 33(1) of the Act. The only exception thereto is that provided for in section 35 of the Act, which applies where a conditional licence is granted in respect of incomplete premises[26] - but once the condition or requirement has been complied with, the Board must forthwith issue the licence in terms of section 35(4) of the Act, notwithstanding the fact that the Board may suspect an applicant of having contravened the provisions of the Act. The respondents are empowered to investigate any suspected contravention of a provision of the Act by means of an inquiry convened for such purpose (in terms of sections 105 as read with 106 of the Act), and subject to the Board's findings thereat, to impose sanctions under the provisions of section 107 of the Act, but it may do so only after a licence has actually been issued.[27]

Evaluation

25. In terms of section 30(1) of the Act, once an application for a licence is referred to the Board, it must consider such application together with the recommendations of the local committee in regard thereto.[28] In terms of the subsection, the Board has a discretion to refuse the application or to grant the application. However, in terms of section 30(2) of the Act,[29] the Board 'shall' grant the application where the factors listed in section 30(2) are extant.[30] The Board would ordinarily not grant the application if it considers the applicant to be unsuitable to hold a licence.[31]

26. In terms of section 33(1) of the Act, after the Board has granted an application, 'it shall, subject to section 35, issue the licence...' (own emphasis). Once issued, the Board may impose conditions authorized by the Act.[32] Section 35 however applies to licence applications in respect of incomplete premises, and allows for the imposition of conditions or requirements with regard to such premises after the granting of a licence but before it is issued.

27. Section 35 provides, in relevant parts, as follows:

"(1) If an application for a licence...is granted...in respect of premises not yet erected, or premises requiring any structural alteration. addition or reconstruction to be effected so as to make them suitable for the purposes for which they will be used under the licence, the Board shall issue a notice to the applicant...in which he or she shall be ordered to comply with such conditions or requirements referred to in the notice, with regard to those premises as the Board may determine, within such period as may likewise be determined.

(2) ...

(3) The period determined under subsection (1), shall not be longer than twelve (12) months.

(4) When the Board is satisfied that the premises in respect of which a notice has been issued in terms of subsection (1), have been completed in accordance with the plan thereof approved by the Boar d, the conditions and requirements determined by the Board have been complied with and the premises are suitable for the purposes for which they will be used under the licence concerned, it shall issue the licence in accordance with section 37." (emphasis added)

28. The Board's notice of 6 May 2018 stipulated that the licence was granted 'subject to 12 months final inspection.' Both parties accept that the licence was granted subject to the requirement that the premises had to be completed within the period in which a final inspection of the premises was to be held.[33] The applicant contends that this was the only condition or requirement that could have been attached to the grant of the licence, having regard to the facts of the present matter . When regard is had to the provisions of subsections 30(1) and 30(2) of the Act, in arriving at the decision to grant the licence, the Board would, in terms of the provisions of section 30(2)(b) of the Act, have had to consider the applicant's suitability to hold a licence.[34] I am accordingly inclined to agree with the applicant's submission, given that the premises would have been found to be suitable (as contemplated in section 30(2) of the Act) at the time that the application was considered by the Board and a decision was taken to grant the licence.

29. The purpose for requiring a final inspection to be held is self-evident - in the circumstances of the present matter, it is to enable the inspector to physically attend at the premises in order to establish whether or not the premises have been completed in accordance with the plans approved therefore, and to report thereon to the Board. Once the inspector verifies that the premises have so been completed, the Board would know that the requirements of section 35(4) have been met.[35] And if these requirements are met (as confirmed at a final inspection of the premises) then, on a reading of the clear and unambiguous

language of the section, the Board must issue the licence.

30. As is evident from the contents of the final inspection report (at p.82 of the papers), the inspect or indeed established that the premises were completed in accordance with the plans that had been submitted with the application[36] and a fortiori,[37] that the premises were suitable for the purposes for which they will be used under the licence.[38] As the requirements of section 35(4) were met, the Board thus became obliged under the provisions of section 35(4) of the Act to issue the licence. It retained no discretionary power thereunder to refuse to issue same. It follows therefrom that the respondents' further submission,[39] namely, that section 35(4) caters for the situation ' where there are grounds to impugn the actual issuance of a licence in situations

where ...the Board is not satisfied that the issuance of [the] licence is suitable,' is simply not sustainable. Section 35 does not permit of such an interpretation .

31. In terms of section 3(1) of the Act, the second respondent is vested with the power to consider, grant, or refuse to grant a liquor

licence application. Section 3(2) of the Act, provides as follows:

"(2) The Board may, after the consideration by it of any other matter contemplated in this Act-

(a) suspend a licence which is the subject of a report...

(b) declare the licence concerned to be subject to such conditions or further conditions as it may in its discretion impose;

(c) rescind the suspension of the licence...

(d) take any such other steps as it may think fit;" (emphasis added)

32. The reliance by the respondents on the provisions of section 3(2)(d) for an entitlement to conduct an enquiry into the suitability of the applicant to be issued with a licence, is in my view misplaced. As indicated earlier, the respondents are likely seeking to conduct the enquiry because they believe that there may be reasons to reconsider the Board's decision to grant the licence . Granting precedes issuing. I have already found that where a conditional grant is given in respect of incomplete premises and where the condition or requirement so imposed has been fulfilled, including the remaining requirements stated in section 35(4), the licence must be issued.

33. In Pick 'n Pay supra, Olivier AJ had occasion to consider the circumstances under which section 3(2) of the Act would apply. In para [34], the following was said:

"...In the first place, the provision's wording is 'any other matter', not 'any matter'. Second, it is clear from a consideration of the rest of the section that the phrase refers to any matter other than the granting or refusal of an application for a licence. In other words, subsection (2) is not applicable when a decision is made whether to grant or refuse to [grant] a licence application. The powers given to the Board by subsection (2) only applies in respect of licences, which is defined in section 1 as 'a licence issued in terms of this Act'. Subsection (2) therefore comes into play only after the issuing of a licence."

34. In paragraph [39] the court went on to state that:

"This is not an instance of multi-staged decision-making. There are not two questions: first, shall we grant the licence; and if the answer is yes, shall we issue the licence? No, only the first question should be asked. If the first question is answered in the affirmative, the licence must be issued as a matter of course... Following the issue of a licence, the Board may impose conditions to the extent provided for in the Act."[40]

35. I am in respectful agreement with the reasoning employed by the court in the Pick 'n Pay case.[41] In my view, the conclusion reached in that matter, albeit in reference to different facts, applies with equal cogency to the facts

of the present matter .

36. The second respondent refuses to issue the licence, erroneously maintaining that it is empowered under the provisions of 35(4) or

3(2)(d) of the Act to satisfy itself again as to the suitability of the applicant to hold a licence before it proceeds to issue the licence. As has been found earlier, such an interpretation is not sustainable.[42] Clothed under the guise of a need to be satisfied that the issuance of the licence is suit able[43] the investigations which the respondents wish to conduct (at an inquiry convened for such purpose in terms of the provisions of

section 106 of the Act) into the applicant's suitability to be issued with and to hold a licence, is simply not available to them as yet.

37. It is clear that the provisions of sections 105 and 106 of the Act apply only in respect of licensees. No such power to convene an inquiry or to conduct an investigation is afforded to the respondents in respect of persons to whom a licence has merely been granted in terms of the Act.

38. Assuming for a fleeting moment that such a course of action was open to the respondents before the issuance of the licence, and assuming that the applicant is ultimately found to have contravened section 127(a) of the Act by selling liquor without a licence, the Board would not be entitled to act in terms of section 3(2) of the Act, nor would it be entitled to act in terms of section 107 of the Act, in that these sections apply only in respect of licensees, of which the applicant is not yet one.

39. To my mind, the respondents cannot avoid issuing the licence unless they succeed in having the decision to grant the licence, reviewed, which they have not sought to do.[44] Until varied or set aside on review,[45] as I see it, the Board is obliged to issue the licence. The inspector's report found that the condition stipulated in the grant of the licence had indeed been met. So too had the other requirements stated in section 35(4). Cadit quaestio.[46]

40. After issuing the licence, the respondents are empowered, under the provisions of section 10, read with sections 105 and 106 of the Act, to conduct investigations at an enquiry into the Applicant's alleged contravention of the Act. They do not require the court' s sanction before exercising their powers in this regard. Thereafter, and depending on the outcome of any such enquiry, the Board may exercise its powers under section 107 or 3(2) or 37(3} of the Act. In the light thereof, I am not persuaded that the respondents have established a reasonable apprehension of harm to the 'rights of the Board to regulate or control the liquor trade in Gauteng' for the grant of the relief sought in the counter-application.

41. The respondents submit that the need to ensure that persons involved in the liquor trade are 'suitable, competent and qualified' outweighs any inconvenience that the applicant may allege regarding its loss of profit or patronage . I do not agree. The applicant has demonstrated that its business risks closure as a result of the Board's intransigent refusal to issue the liquor licence. Should that eventuate, the livelihood of all its employees will be threatened and its owners will face financial devastation. The balance of convenience favours the grant of the relief sought in the main application. The applicant brought such application on an urgent

basis to enable it to obtain the issuance of a licence because it knows it cannot trade in liquor without a licence.

42. The submission by the applicant to the effect that the respondents are refusing to issue the licence because they harbor an ulterior motive is not as far-fetched as may at first blush appear, having regard to what is stated in paragraph 52 of the answering affidavit, namely, 'It was upon the recalcitrant and clearly altered approach displayed in the applicant's attorney's letter[47] and his arrogant and legalistically staunchness that the second respondent considers it necessary to inquire into the true state of affairs of the Applicant.'

43. Having regard to what has been mentioned above, I am not persuaded that the balance of convenience favours the grant of the interim relief sought in the counter-application, nor am I persuaded that the respondents have established an entitlement to conduct an enquiry pending the issuance of the licence.

44. The respondents contend that an interim interdict should not be granted in the main application as the applicant has an alternate remedy in the form of a claim for damages against the Board in due course. However, as was pointed out by the applicant, although its prejudice is financial, an action for damages will take a long time to finalise and any damages which it might succeed in obtaining would ultimately be payable by the tax payer, which is not in the public interest. The submission is not without substance.

45. The interim interdict sought by the applicant in the notice of motion is of the kind that has been granted for time immemorial by higher courts as well as courts in this division. Various cases were referred to in support of such relief.[48] The applicant has made out a prima facie case that the second respondent has wrongly failed to take a decision,[49] which has caused loss and hardship to the applicant. The applicant has accordingly established the ground of review envisaged by section 6(2)(g) of PAJA, namely, a failure to take a decision, and is accordingly entitled to appropriate relief.[50] In my view, this is an appropriate case for the grant of interim relief.

46. The applicant has succeeded in establishing its entitlement to the relief sought in the notice of motion. It has also succeeded in its opposition to the counter­ application . In the circumstances, it is entitled to its cost s, based on the general rule that costs follow the result. I did not understand counsel appearing for the parties to contend otherwise.

47. In the circumstances, I grant the following order:

ORDER

1. The matter is urgent.

2. The first respondent in conjunction with the second respondent is directed to forthwith issue the Restaurant Liquor Licence granted by the second respondent to the applicant and to make same available to the applicant's attorneys of record in accordance with the provisions of the Liquor Act, 2 of 2003 in respect of the payment of initiation fees;

3. Pending the issuance of the licence as contemplated in paragraph 2 of this order, the applicant is permitted and authorized to trade in liquor in its business known as Casa Bella, situated at 416 Kirkness Street, Arcadia, Pretoria as if the Restaurant Liquor Licence has in fact so been issued;

4. The respondents are ordered to pay the costs of the application jointly and severally, the one paying the other to be absolved .

5. The counter-application brought by the respondents against the applicant is dismissed with costs.

A . MAIER-FRAWLEY

ACTING JUDGE OF THE HIGH COURT

Counsel for Applicant: Ms. LA Pretorious

Instructed by:

Marius Blom Incorporated (Ref: Mr. Blom)

Counsel for Respondent: Mr. M. Mathaphuna

Instructed by:

State Attorney, Pretoria (Ref: Ms. N. Qongqo)

Date of Hearing:

30 May 2018

Judgment Delivered:

13June2018

[1] The application was brought in terms of section 6(2)(g) of the Promotion of Administrative Justice Act, 3 of 2000 ('PAJA') for

judicial review of administrative action consisting of the failure by the second respondent to take a decision in regard to the issue of a Restaurant Liquor Licence to the applicant

[2] 'The respondents' being the first respondent (chairperson) acting in conjunction with the second respondent (Gauteng provincial Liquor Board).

[3] See Respondents' heads of argument, para 6. It seems to me however that the relief is rather being sought to enable the respondents to decide whether or not to impugn the earlier decision to grant the licence

[4] A composite affidavit was filed, both in opposition to the relief sought in the main application and in support of the relief sought in the counter-application

[5] Paras 3 & 8 of the respondents' heads of argument.

[6] Although not specifically clarified in the papers, at the time that the licence was applied for, the premises were either not yet erected, or were undergoing structural alteration, addition or reconstruction so as to make them suitable for the purposes for which they were to be used under the licence..

[7] It is not in dispute that the relevant statutory and procedural requirements prescribed in sections 23 of the Act were met.

[8] Copies of the photographs were provided in the founding affidavit. The photographs depict a display of liquor bottles in what appears to be a bar area and of wine bottles housed inside a wine-rack and cabinet.

[9] The letter was allegedly addressed on the advice of a certain Mr. Human, the applicant's 'advisor' who is not a legal practitioner.

The letter of apology appears at p.25 of the papers.

[10] In the definition section of the Act (s1) the word ' sell' includes 'dis play.. .for sale.. . '. (emphasis added).

[11] The letter addressed by the applicant's attorney appears at pp. 27-28 of the papers.

[12] According to the applicant, the inspector had expressly refused to complete the inspection subsequent to the occurrence of the

incident. The applicant however explained in the replying affidavit that it was only on receipt of the answering affidavit that it learnt that the final inspection had indeed been completed.

[13] According to the respondents, the applicant was called to the meeting to answer allegations of selling liquor without a licence.

It appears from the further allegations in the answering affidavit that the respondents wanted to address the perceived contradiction

between the applicant's letter of apology (in which the applicant was taken to have acknowledged that it was selling liquor-in

contravention of the Act) and its attorney's letter of 2 May 2018 (in which the applicant was taken to have retracted such admission).

[14] According to the respondents, the applicant and its legal representative were invited to attend an informal meeting, and not a formal enquiry, for purposes of affording the applicant a cordial forum in which to explain the circumstances that gave rise to the incident. In the same breath, the respondents allege that the meeting was called ' in line with the provisions of section 10 of the Act so as to enable the respondent to enquire into the circumstances that may have led to a possible transgression of the provisions of the Act, in view of the reported allegations of trading in liquor without an issued license. See: paras 36 & 37 at pp.47-48, read with para 39 at p.48 and para 88 at p.61of the papers.

[15] The respondents state that it was never intimated or indicated by the chairperson that the grant of the license would be reconsidered

or revisited by the respondents. See: para 95.2 at p.65 of the papers.

[16] The argument being that the applicant's case is based on a 'suspicion' that the grant of its liquor licence was being 'revisited' in circumstances where no such decision had been communicated to the applicant either verbally or in writing, nor had it been intimated that such a decision had been taken. As such, so the argument developed, any apprehension of reasonable harm to the applicant's business [as a result of the licence not being issued], was not therefore proven to have arisen from any conduct [refusal or failure to perform a statutory function] on the part of the respondents, as is required in the case Jaw.

[17] In terms of section 36 of the Act, a licence 'shall not be issued nor transferred to a person who is disqualified or otherwise incompetent in terms of this Act to hold the licence concerned. ' In terms of section 1 27(a) of the Act, it is an offence for any person to sell any liquor otherwise than under a licence or permit issued in terms of the Act. Section 37 of the Act stipulates the circumstances in which a person would be disqualified from having a licence granted.

[18] Respondents' heads of argument, para 22. The applicant contends that no such admission was in fact made in the letter of apology.

[19] Respondents' heads of argument, para 36. In this regard, reliance was placed on the case of Department of Transport and Others v Tasima (Pty) ltd 19 for the contention that an organ of state may seek a review of its own act if it is aware of the incorrectness of its decision or of any conduct that may impugn fair and just administrative justice.

[20] In terms of section 1 of the Act, ' licence' means a licence issued in terms of this Act, and ' issue', with regard to a licence , includes the delivery or dispatch of the licence to the person to

whom it has been granted or to his or her agent. '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.'

[21] (56038/2015) [2016] ZAGPPHC 841 (16 February 2016)

[22] (2016/70433) [2016] ZAGPPHC 846 (15 September 2016)

[23] An unreported decision of Hughes J, under case no. 80134/2015 (23 September 2016)

[24] Reliance was placed on the case of State Information Technology Agency Soc Ltd v Gijima Holdings (Pry) Ltd 2018 (2) SA 23 (CC) in this regard.

[25]Section 35(3)(h) of the Constitution of the Republic of South Africa, 1996. The argument appears to hold merit upon a plain reading of section37 of the Act

[26] Where a conditional licence is granted in respect of incomplete premises, the Board must issue a notice to the applicant concerned

in terms of section 35(1) ordering the applicant to comply with the conditions or requirements stipulated in the notice within a specified period.

[27] After issuing the licence, the Board is also empowered, under the provisions of section 3(2) of the Act, inter alia, to 'suspend a licence which is the subject of a report, declare the licence subject to conditions or take any other steps as it may think fit.' The argument thus appears sound.

[28] A similar provision is contained in section 3(1) of the Act.

[29] Section 30 (2) provides as follows: "The Board shall grant an application for any licence if- (a) the premises are or will, on completion, be suitable for the purposes for which they will be used under the licence; (b).the applicant concerned is of good character and is otherwise ·fit to be the holder of the licence; (c) the granting of the licence is in the public interest; (d) the possibility does not exist that the granting of the application may cause a harmful monopolistic condition to arise or be aggravated; or (e) the premises, accommodation, equipment and facilities in respect of which the licence is to be issued are, or will be, if the applicant is licenced, in compliance with this Act and regulations." (emphasis added)

[29] Section 30 (2) provides as follows:

"The Board shall grant an application for any licence if-

(a) the premises are or will, on completion, be suitable for the purposes for which they will be used under the licence;

(b).the applicant concerned is of good character and is otherwise ·fit to be the holder of the licence;

(c) the granting of the licence is in the public interest;

(d) the possibility does not exist that the granting of the application may cause a harmful monopolistic condition to arise or be aggravated; or

(e) the premises, accommodation, equipment and facilities in respect of which the licence is to be issued are, or will be, if the applicant is licenced, in compliance with this Act and regulations." (emphasis added)

[30] In terms of section 23(1)(t) of the Act, a certificate of suitability on the person of the applicant and the application issued by the South African Police Services, must accompany any application for a new licence. The Board would undoubtedly have regard thereto when considering the requirement mentioned in section 30(2)(b) of the Act.

[31] The suitability of an applicant (section 30(2)(b)) would be considered with reference to the factors listed in section 37 of the Act. None of the prohibitions listed in section 37 appear to apply to the applicant in casu (in the present case).

[32] Section 33(2) of the Act provides as follows: "The Board... may at any time after the issue of a licence... by a notice delivered to the licensee concerned­ (a) declare the licence.. .to be subject to such conditions ... set out in the notice it may in its discretion impose; or (b)..." (emphasis added)

[32] Section 33(2) of the Act provides as follows:

"The Board... may at any time after the issue of a licence... by a notice delivered to the licensee concerned­

(a) declare the licence.. .to be subject to such conditions ... set out in the notice it may in its discretion impose; or

(b)..." (emphasis added)

[33] See: para 5.3 at p. 8; and para 18 at p.43, read with para 5.5 at p.96 of the papers. It is not in dispute that the premises would have to have been completed in accordance with the approved plans - being plans which were submitted in the application and which were approved by the Board when granting the licence.

[34] I am also inclined to agree with the applicant's contention that it remains suitable to hold a licence until such time as it is found guilty of an offence under the Act. This in tum would entail a criminal prosecution and any decision to prosecute would fall within the exclusive purview of the National Prosecuting Authority.

[35]The submission in the respondents' heads of argument to the effect that the Board retains a discretion in terms of section 35(4) 'to determine if it is satisfied' as to the factors mentioned in section 35(4) is not quite understood. Whilst the Board is required to be satisfied that the premises have been completed in accordance with the plans approved therefore and that the conditions or requirements as were imposed by it in terms of section 35(1) were complied with and that the premises are suitable for the purposes of their intended use, it obtains such assurance by means of final inspection of the premises confirming same - hence the reference in the final inspection report to section 35(4) of the Act.

[36] In terms of section 23(l)(b) of the Act, a detailed sketch plan of the premises had to accompany the application. When the Board

granted the application, it must have been contented that the premises ' will, on completion, be suitable for the purposes for

which they were to be used under the licence,' as contemplated in section 30(2) of the Act.

[37] This means that if a particular fact is true, then one can infer that a second fact is also true.

[38] A detailed description of the lay-out of the restaurant's premises was furnished in paragraph 3.2 of the final inspection report, which intimated that the premises were suitable for their intended use under the licence. In any event, the suitability of the premises was not an issue that was in dispute on the papers.

[39] Alluded to in para 22 of the judgment.

[40] Para [39]. The courts in this division arrived at the same conclusion in cases that followed after the Pick 'n Pay case.

[41] Both counsel appearing for the respective parties poignantly argued that the judgment was 'well-reasoned'. The respondents' counsel

however sought to distinguish the Pick 'n Pay case from the facts of the present matter.

[42] It has repeatedly been held by courts in this division that the Liquor Board is a creature of statute and is not empowered to act beyond the powers conferred to it in terms of the Statute. If the Legislature wanted to make the issuance of a licence subject to a discretion afforded to the Board [ under s35(4)], this being at a stage when the Board had already been deprived of having any discretion to refuse the grant of the licence [under s30(2)] and in circumstances where inter alia, the applicant was found to be suitable to hold a licence, it would have stated so in unequivocal terms.

[43] The respondents' submission being that it is ' imperative to now consider the conduct of the applicant and to determine the crucial

element of its suitability to be issued and to hold a liquor licence. This in the light of the provisions of Section 37, specifically.'

[44] In para [40] of Gijima supra, the Constitutional Court held that PAJA is not available to an organ of state wanting to have its own decision reviewed. This does not mean that an organ of state cannot apply for a review of its own decision - it just cannot do so under PAJA but the principle of legality remains a vehicle for its review. In this regard, the question is: did the decision to grant the licence conform to legal prescripts? If it did, that is the end of the matter.

[45] Although the respondents have not as yet taken a decision to review the grant of the licence, it seems rather obvious to me that they want to attempt to obtain evidence to enable them to do so. This is not permitted in terms of the Act.

[46] A Latin phrase meaning that the matter permits of no further argument or 'case closed.'

[47] The letter is referred to in para 14 of the judgment.

[48] See for example Aeroadexpress v Chairman, local Road Transportation Board, Durban, and others [1986] ZASCA 6; 1986 (2) SA 663 (A) In Pizza Vino supra, interim relief in substantially the same terms as is sought in these proceedings was granted in circumstances where the applicant in that matter had suffered financial losses due to the fact that its business could not be fully operational because the Board had not finalized the application for a liquor licence.

[49] Be it one to issue the licence or to seek a review of its decision to grant the licence.

[50] In terms of section 8(1)(e) of PAJA, the court, in proceedings for judicial review in terms of section 6(1) may grant any order that is just and equitable, including a temporary interdict or other temporary relief.