Liquor City Hyper Bela-Bela (Pty) Ltd and Others v Minister of Trade and Industry (80255/2016) [2017] ZAGPPHC 691 (26 October 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 80255/2016

Not reportable

Not of interest to other judges

Revised.

26/10/2017

Liquor City Hyper Bela-Bela (Pty) Ltd First Applicant

Liquor City Hyper Pongola (Pty) Ltd Second Applicant

Liquor City Hyper Bushbuckridge Third Applicant

and

Minister of Trade and Industry First Respondent

National Liquor Authority Second Respondent

JUDGMENT

MOLEFE J

[1] This is an application in terms of section 6(2) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA'J for the review and setting aside of the decision of the respondents to refuse the registration of the three applicants as distributors of liquor in terms of section 11 of the Liquor Act 59 of 2003 ("the Liquor Act") as well as an order for the matter to be referred back to the respondents, directing them to register the applicants as distributors, together with costs and ancillary relief.

[2] The three applicants applied to be registered as distributors of liquor in terms of the provisions of the Liquor Act, which applications were brought to the first respondent through the offices of the second respondent. The applications were lodged with the respondents and submitted on 3 December 2012.

[3] The process of application for a registration certificate as a distributor can be summarised as follows:

3.1. A prospective applicant desiring to be registered as a distributor must submit the required documentation , the NLA 1[1] form, soliciting the details of the applicant and the address of the premises, details of the persons or entities with interest in the matter, their existing interest in the liquor trade, Black Economic Empowerment, job creation, etc.;

3.2. Once the application is drawn, the application fee is paid and same is lodged. The National Liquor Authority (second respondent) must then peruse the application on behalf of the Minister of Trade and Industry (first respondent) and make recommendations for conditions of registration and then issue the NLA 6[2] form, specifying the conditions of registration that the Minister has suggested for registration. There are no requirements or time limits laid down in the Act.

3.3. Should the applicant refuse to accept the proposed conditions, the applicant must give reasons for the rejection. The first respondent must then consider the reasons submitted by the applicant and may refuse to register the applicant if it has not responded or finally determine the conditions to be imposed and register the applicant[3].

[4] In casu, the prescribed NLA 6 forms pertaining to all three applications were issued by the respondents with the proposed conditions in all three applications that zoning certificates and certified copies of the identity documents of the members of the applicants should be filed. The applicants accepted the proposed conditions by filing the prescribed NLA 7[4] forms accepting the grant subject to the proposed conditions[5] which were received by the respondents on 14 June 2013.

[5] It is the applicants' submissions that notwithstanding repeated enquiries, the prescribed NLA 8[6] and the NLA 9[7] forms were never received from the respondents, despite that the proposed conditions of registration were accepted by way of lodgment

of the NLA 7 forms and by payment of the prescribed registration fees.

[6] On 17 December 2014, the liquor consultant acting on behalf of the applicants received letters from the respondents for each of the applicants stating that the applications for registration as distributors have been refused as the applicants did not react to the conditions laid down in the NLA 6 forms. The letters of refusal stated inter alia that:

"Your application has been refused on the basis of failure to respond within thirty (30) days to the proposed conditions (form NLA 6) dated the 12'h February 2013 and failure to respond within seven (7) days to the final reminder dated 28 October 2014 as stipulated in section 13 of the Liquor Act of 2003 as well as Regulation 15 of the National Liquor Regulations, 2004”[8].

[7] The applicable legislation in this regard is section 13(7) of the Liquor Act which states that:

"(7) If an applicant who has received a proposal of conditions –

(a) consents to the conditions being imposed, the Minister must register the applicant, subject only to the conditions as proposed; or

(b) does not respond, or responds but does not consent to the proposed conditions, the Minister must consider any response submitted by the applicant and may –

(i) refuse to register the applicant, if it has not responded; or

(ii) finally determine the conditions to be imposed and register the applicant".

[8] The provisions of section 13(7) supra are clear and unambiguous. If the applicant consents to the conditions imposed by filing the NLA 7 form as in casu, the Minister must register the applicant, subject only to the conditions as proposed. Only if the applicant does not respond, the Minister may refuse to register the applicant. If an applicant has reacted to the NLA 6 form by submitting and filing the NLA 7, such an applicant must be registered, subject of course, to the finally determined conditions imposed.

[9] Applicant's counsel[9] correctly contends that the issuing of a zoning certificate and the members' identity documents were not requirements when the

applications were initiated and therefore an imposition of conditions in-between the issue of form NLA 6 and the registration does not empower the respondents to refuse to register the applicants due to non-compliance with a pre-condition(s) imposed.

[10] In my view, once the NLA 6 form is replied to, by way of the NLA 7 form, it is immaterial whether the applicant accepts or objects to the proposed conditions. Once the prescribed fee has been paid, the NLA 8 and NLA 9 should be issued and delivered. The reasons advanced by the respondents for the refusal to register the applicants are based on an incorrect application of section 13(7) of the Liquor Act and accordingly an error in law. I do agree with the submission made by the respondents' counsel[10] that the Minister is permitted to propose any conditions for the purpose of registration as long as the conditions are reasonable and justified. This, however, is not the issue to be determined in casu.

[11] It is not disputed that all three applications were correctly lodged and are compliant with the requirements of the Liquor Act enabling the applicants to be registered as distributors within the proposed conditions. However, both conditions were not requirements in terms of the Liquor Act at the time that the applications were lodged with the respondents. In my view, it is fundamentally wrong in law for further conditions to be imposed as a pre-requisite for registration. Section 13(7)(a) of the Liquor Act is clear - once the applicant consent to the conditions being imposed, the Minister must register the applicant but subject to such conditions as proposed. It is therefore not the correct interpretation of the Liquor Act to state that prior to the registration of the applicants and as a pre-condition thereto, the conditions imposed should first be complied with.

(Court's emphasis).

[12] Section 14 (4) of the Liquor Act states as follows:

"(4) A registrant must –

(a). . . .

(b) comply with its conditions of registration and the provisions of this Act;

(c) pay the prescribed annual renewal fees within the prescribed time;

(d) . . . .

(e) . . . “

The definition of registrant in terms of the Liquor Act is a person who has been registered in terms of the Act.

[13] The wording of regulation 15(3) of the Liquor Act is also clear and unambiguous and states the following:

"15. Conditional registration

(1) …

(2) …

(3) Upon receiving a consent to proposed conditions, the National Liquor Authority must deliver a final statement of conditions of registration in Form NLA 8;

(4) …

(5) …

(6) When the applicant has paid the initial annual registration fee as set out in Table NLA 4, the National Liquor Authority must deliver a registration certificate in Form NLA 9 to the registrant".

(Court's emphasis)

[14] It is clear from the provisions of regulation 15 supra that the first respondent does not have a discretion and that once the NLA 7 form (consent to proposed conditions) has been received and the prescribed fees paid, as was done in casu by all the applicants, the forms NLA 8 and registration certificate form NLA 9 must have been issued to the applicants and the applicants registered as distributors, subject of course to the imposed conditions.

[15] Respondents' counsel also concedes in his heads of argument that in terms of section 13(7), read with regulation 15(3) and 15(6) of the Liquor Act, registration shall be effected subject to the proposed conditions.

[16] Section 8(1)(c)(i) of PAJA entails the Court to review and set aside the decision of the first respondent and to refer the matter back to the first respondent directing it to take the decision it should have taken in the first place. I am satisfied that a proper case has been

made out by the applicants for an order reviewing and setting aside the decision of the first respondent to refuse to register the applicants as distributors.

[17] I therefore make the following order:

1. The decision to refuse the registration of the first, second and third applicants as distributors is reviewed and set aside and referred back to the respondent directing them to register the applicants as distributors in terms of the Liquor Act 59 of 2003;

2. The respondents to pay costs of this application.

___________________

D S MOLEFE

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel on behalf of Applicants : Adv.L A Pretorius

Instructed by : Marius Blom Inc.

Counsel on behalf of 1st Respondent : Adv. I Ngobese

Instructed by : State Attorney

Date Heard : 11 September 2017

Date Delivered : 26 October 2017

[1] Application for Registration Form in terms of the National Liquor Regulations, 2004 published in GN R980 in GG 26689 of 17 August 2004 as amended.

[2] Proposal for Conditions of Registration Form in terms of the National Liquor Regulations, 2004 published in GN R980 in GG 26689

of 17 August 2004 as amended.

[3] Section 13 (7) (a) and (b) Liquor Act.

[5] Record pages 27 to 43, Annexures "Cl","C2" and "C3".

[6] Conditions of Registration Form in terms of the National Liquor Regulations, 2004 published in GN R980 in GG 26689 of 17 August 2004 as amended.

[7] Registration Certificate in terms of the National Liquor Regulations, 2004 published in GN R980 in GG 26689 of 17 August 2004

as amended.

[8] Record pages 47 to 52 Annexures "El","E2" and "E3".

[9] Advocate L A Pretorius.

[10] Advocate I Ngobese.