Free State Gambling, Liquor and Tourism Authority and Another v Von Wielligh; In Re: Von Wielligh v Free State Gambling, Liquor and Tourism Authority and Others (2906/2019) [2020] ZAFSHC 113 (5 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

CASE NO: 2906/2019

In the matter between:

FREE STATE GAMBLING, LIQUOR AND TOURISM AUTHORITY 1st Applicant THE CHAIRMAN, FREE STATE GAMBLING LIQUOR AND TOURISM AUTHORITY 2nd Applicant and CHARL MALHERBE VON WIELLIGH Respondent In re: CHARL MALHERBE VON WIELLIGH Applicant and FREE STATE GAMBLING, LIQUOR AND TOURISM AUTHORITY 1st Respondent THE CHAIRMAN, FREE STATE GAMBLING LIQUOR AND TOURISM AUTHORITY 2nd Respondent ANDRIES NHLANHLA TSHABALALA 3rd Respondent

CORAM: DAFFUE, J et RAMLAL, AJ,

JUDGMENT BY: DAFFUE, J

HEARD ON: 5 JUNE 2020

DELIVERED ON: 5 JUNE 2020

[1] This is an application for leave to appeal by the Free State Gambling, Liquor and Tourism Authority (“the Authority”)

wherein it seeks leave to appeal to the Supreme Court of Appeal against our judgment on review of 26 March 2020.

[2] We have considered the submissions by the parties.

[3] It is necessary to repeat some of the facts presented to us in the review application:

3.1 The 3rd respondent in the review application, who elected not to oppose that application, applied for a liquor licence in order to trade from premises in the town, Vrede. The Authority timeously received the objection of Mr Von Wielligh, the respondent in this application and the applicant in the review application.

3.2 Mr Von Wielligh was not informed that his objection was to be considered by the Authority in his absence and behind closed doors; furthermore, he was not even informed of the subsequent dismissal of his objection.

3.3 Mr Von Wielligh, the objector, was also not informed of the date of hearing of the application for the liquor licence, to wit 14 November 2018; the application was considered as an unopposed application and Mr Motaung, the attorney appearing for the applicant for his liquor licence, stated the following ex facie the record:

“We are aware that there was an intention to object to this application by one of the licensees… I think it is Mr Von Welig (sic) who is trading as liquor city currently… in fact he has 2 outlets and he recently bought a 3rd outlet from some trust that was licenced a while back. Upon perusing the application, compiled by the applicant, they opted not to object and our submission in that regard is that there was absolutely nothing to object to.” (emphasis added)

This statement is false as it is common cause that Mr Von Wielligh filed an objection upon receipt of the application.

3.4 On 16 November 2018 the liquor licence was granted without informing Mr Von Wielligh accordingly. Letters by his attorney to the Authority dated 27 November 2018 and 24 January 2019 requesting information when the application and objections would be heard were not responded to. After investigation it was established in February 2019 that the licence had been granted some three months earlier.

[4] I am of the view that the appeal would have no reasonable prospects of success as required by s 17(1)(a) of the Superior Courts Act, 10 of 2013 in that the Authority was bound, generally in terms of the provisions of the audi alteram partem principle, but specifically in accordance with the clear and unambiguous wording of s 35(2) of the Free State Gambling, Liquor and Tourism Act, 6 of 2010, to afford the objector, Mr Von Wielligh an opportunity to be heard, and if he so decided, to be represented by a person of his choice. The Authority has no discretion to consider and dismiss objections in the manner submitted by the Authority.

[5] Therefore the following order is issued:

The application for leave to appeal is dismissed with costs.

__________________

J.P. DAFFUE, J

I concur

A.K. RAMLAL, AJ

For the Applicants: Mr N W Phalatsi

NW Phalatsi and Partners

Bloemfontein

For the Respondent: Adv R van der Merwe

Instructed by: Kobus Burger Attorneys