Matabicho (Pty) Ltd v Gauteng Provincial Liquor Board and Others (111703/2023) [2024] ZAGPPHC 1241 (29 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 111703-2023

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

DATE: 29//11/24

SIGNATURE:

In the matter between:

MATABICHO (PTY) LTD

APPLICANT

and

THE GAUTENG PROVINCIAL LIQUOR BOARD FIRST RESPONDENT

ANDREW ANGELO COUVARAS

SECOND RESPONDENT

MICHAEL COMNINOS

THIRD RESPONDENT

HELGA TSOUMBRIS

FOURTH RESPONDENT

SAAPA SOUTH AFRICA

FIFTH RESPONDENT

JUDGEMENT

DU PLESSIS, AJ

1.

This is an application brought for the review of a Decision by the First Respondent, handed down on 2 October 2022 in which an application for the grant of a Grocers' Wine License the Applicant, was refused.

The Second to Fifth Respondents have not opposed the review application and has not filed opposing papers.

2.

The Applicant has set out a number of grounds on which the review is sought, primarily relying on the grounds in Section 6(2) of PAJA.

3.

The Applicants are the owners of and operate an Okay Bazaar’s Mini Market that are located on the premises of a petroleum filling station. Despite what the Respondents say about the location, from the papers filed, the Mini Market is located in a separate building, but on the same premises.

4.

The premises is located on Drift Boulevard, Muldersdrift, in the District of Gauteng. The area where the filling station and the OK Mini Market are located, are typical of the businesses developed over the years on both sides of Drift Boulevard, as is apparent from the application as submitted by the Applicant to the Gauteng Liquor Board in terms of Section 28(1)(b)(iii) read with Section 23 of the Gauteng Liquor Act 2 of 2003 (“the Act”).

5.

The Applicant filed its application for a Grocers’ Wine License with the Local Committee of the First Respondent at Randfontein, Gauteng, on 4 June 2022 in terms of the provisions of Section 23 of the Act, as read with Section 28 of the Act.

6.

A copy of the application is attached to the Review Application as an Annexure and it was prepared by the Attorney specialising in applications for Liquor Licenses, Mr HG Aucamp, the Applicant’s current Attorney of Record in these proceedings.

7.

After lodging the application, the Second to Fifth Respondents filed objections on 24 June 2022 in terms of Section 25 of the Act, against the granting of the Applicant’s Grocers’ Wine License .

8.

Copies of these objections as well as the Applicant’s responses thereto, are also attached to the Applicant’s Review Application.

9.

Having received the application, as well as the four objections, the Local Committee arranged for an “Objection Hearing” held on the 8th of September 2022 at their offices located in Randfontein, Gauteng.

10.

At the “Objection Hearing”, all interested parties had an opportunity to address the Local Committee and comment on not only the application, but also for the Applicant to comment on the objections of the four objectors.

11.

After the “Objection Hearing”, the Local Committee considered the application in terms of Section 30(1) of the Act and as required, referred their recommendation to the First Respondent for their consideration. In their recommendation, the Local Committee recommended that the Applicant’s application for a Grocers’ Wine License be approved.

12.

Approximately one year later, on 14 September 2023, the First Respondent responded for the first time and called for and conducted another “Objection Hearing”. Although the Applicant submits that the Act does not make provision for this second hearing, no objection is raised and nothing turns on this. Again according to the Applicant, all the interested parties had the opportunity to address the First Respondent on the Applicant’s application, as well as the objections thereto. From what I could determine from the documentation of the Review Application, as well as the oral submissions of Counsel on behalf of the Applicant at the argument of the matter, no new information were submitted to the First Respondent. From the documentation available in the Review

Application, there is no indication that any further and/or new arguments were advanced at the second “Objection Hearing”.

13.

On 2 October 2023, the First Respondent informed the Applicant in writing that:

“...the application was declined by the board on the basis that it is not in the public interest to grant a liquor license in the filling station.”

14.

From the Record of the Review, it is apparent that the First Respondent considered and had before it, the written objections from the objectors as the only evidence of an opposition against the granting of the Liquor License.

15.

The recommendation of the Local Committee included all the statutory requirements, and it appeared that the application, apart from the objections, complied in all material respects, with an application in terms of the provisions of Section 23 of the Act for a Grocers’ Wine License.

16.

Attached to the Applicant’s application, the Applicant submitted a written motivation in support of the application, as is required in terms of Section 23(1)(a) of the Act.

17.

The South African Police Service’s Clearance Certificate pertaining to the Directors of the Applicant, the South African Revenue Service’s Clearance Certificates, a Certificate of Membership with the South African Liquor Trader’s Association, as well as photos and the layout plan of the proposed premises accompanied the application. Finally, a letter from the Local Municipality (Mogale City), wherein it is indicated that: “the property has business rights that includes a supermarket and a Grocers’ Wine License is supported on the property”.

18.

In short, one can accept that apart from the objections submitted by the Second to Fifth Respondents, the Applicant’ members and the premise’s Statutory Compliance, qualified the Applicant to be granted a Grocers’ Wine License.

19.

The Second Respondent (First Objector) appears to be the sole member of the Liquor City Express Muldersdriftt that is located 125m (according to other documents 140m) from the Applicant’s proposed facility.

20.

The Third Respondent (Second Objector) owns certain properties near the filling station where the OK Mini Market is located. On the Third Respondent’s properties (known as the Comninos Properties CC), certain businesses are located, including the Drift Country Inn (on site consumption liquor licence) (140 meter from the Applicant’s premises), the Food & More Liquor Store (off-consumption liquor and Grocers’ Licence) (950 meter from the Applicant’s premises) and the Mama Kasi and Animal Rescue Facility, as well as a Charity Shop. The Third Respondent also refers to Ultra-Liquors located 3.5 km from Applicant's location.

21.

The Fourth Respondent (Third Objector) is a tenant on Drift Boulevard where the Applicant’s property is located. The Fourth Respondent, in her objection, confirms that the owner of the Liquor City Express Muldersdriftt (the Second Respondent), has had his liquor outlet for 27 (twenty seven) years in the community and that the community have supported him for the entire time.

22.

From the objections, it is common cause that both the Second and Third Respondents are Liquor Traders located in the same vicinity as where the premises of the Applicant are located.

23.

Although the Second and Third Respondents’ Liquor Outlets are not similar to the License applied for by the Applicant, in that their Liquor Outlets are not located within a Mini Market facility, they clearly also sell wine to the public for off-premises consumption. The only similar outlet is the Food & More Liquor Store (off-consumption liquor and Grocers’ Licence) located 950 meter from the Applicant’s premises, but they did not object.

24.

The area where the Applicant’s OK Mini Market is located on Drift Boulevard Road, already has a business character. It is common cause that the OK Mini Market is located next to a service station and that this service station services the various residential developments in the area. Directly behind the filling station, these residential developments are located. The residential areas include a church and a school still to be registered.

25.

The objection of the Muldersdrift Liquor Store CC refers to the Applicant’s outlet to be an OK Mini Market and that as such, the Applicants are operating a franchise operation and would have an unfair advantage over the Objector’s Liquor Store, as the bulk buying of wine by the Franchisee, enables the Franchisor (the Applicant) to be able to sell their wine at an unfair discount, a discount that cannot be matched by non-franchise holders. It is submitted that: “this grossly unfair competition results that a harmful monopolistic condition” would be created.

26.

In addition, the First Objector also indicated that his own Liquor Outlet is located only some 130 meters from the Applicant’s Outlet, although his Outlet is not a Grocers’ Wine Liquor License premises.

27.

The First Objector for the first time refers to the possibility that the Grocers’ Wine License, if approved, might have a negative influence on a Place of Worship located 120 meters from the Applicant’s facility. The First Objector also refers to the fact that there are already further Supermarket Outlets in the immediate vicinity. He refers to a Food and More Supermarket located approximately 950 meter away, and although not in the immediate vicinity of the Applicant’s location, a large Checkers, as well as a large Pick-n-Pay, far bigger than that of the OK Mini Market of the Applicant, also available to

the public at large.

28.

The First Objector also refers to a Liquor City located in Muldersdrift, but there is no indication as to the distance that this is located from the Applicant’s premises.

29.

The application of the Applicant is considered by the Respondents in terms of Section 30 of the Gauteng Liquor Act 2003 and apart from the approval or dismissal decision that the Respondents may take, Section 30(3) of the Gauteng Liquor Act, determines in Section 30(2), that:

“When considering an application for a license, the Board shall grant an application for any license if: -

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

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

(c) the granting of the license 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 license if to be issued, are, or will be, if the applicant is licensed, in compliance with this act and regulations.

(3) The board shall grant an application in the case of premises not situated within a radius of 500 (five hundred) meters in the vicinity of a place of worship, educational institution, similar licensed premises, public transport facility, or such further distance as the board may determine or as may be prescribed from time to time.”

30.

From the application and the objections of the Second and Third Respondents, it appears that at least one off-site and one on-site liquor outlets (although not similar) are located within the 500 (five hundred) meters circular determined distance, a similar outlet within 950meters and a further dissimilar outlet still further away at 3 km.

31.

The Place of Worship mentioned appears to include Kings School – an education facility – both of which are located 120 meters from the Applicant’s proposed premises.

32.

The Applicant responded to the objection of the Second Respondent (owner of Muldersdrift Liquor Store CC) and in paragraph 1.3 of his response, he submits as follows:

“The existing ministries Muldersdrift consists of a church and school, operating from the same premises. Apparently the same person is in charge of both, namely a Pastor Craig Rowe.

Consequently the reference by Applicant to the community ministries Muldersdrift, at number 8 of the Applicant’s notice, includes both the church and the school.

On the said institution’s website, mention of a school is made, but it is stated, that it is still in the process of registration as a school.

Applicant submits with respect that there was not prejudice or potential prejudice suffered by any party.”

33.

In the response, the Applicant submits that the proximity of the Objector’s liquor store is irrelevant, as it is not a similar business and the Applicant’s supermarket is much more convenient for clients to buy their groceries and wine at one location, that to visit two separate shops.

34.

In the response, the Applicant refers to Argus Printing and Publishing Company Limited v Darling’s Art Ware (Pty) Ltd 1952 (2) SA and Lester Properties (Pty) v Farran 1996 SA 492 (DCL), where it was decided that the public is better served, if it is more convenient to buy at the proposed liquor outlet, than other existing outlets. This conclusion is however not justifiable to this matter and circumstances.

35.

The instruction in Section 30(3) submits that an application for any license shall be granted, but the proviso is that there not be a place of worship, an educational facility or a similar licensed outlet within a radius of 500 (five hundred) meters.

The applicant has also deposed to an affidavit, stating that there is no similar licensed premises within a radius of 500 meters from the proposed premises.

An affidavit by the applicant’s Mr De Andrade reads:

“Matabicho (Pty) Ltd is the owner of OK Minimarket, and is situated at the Remaining Extent of Portion 68 (a Portion of 44) of the farm Rietvlei No. 180, situated at 68 Drift Boulevard, Muldersdriftt, Krugersdorp, Gauteng, 1739. I hereby confirm that there is no similar licensed premises within a radius of 500m from the above premises.”

Although two liquor outlets are located approximately 140 meters from the Applicants’ outlet, the one is a liquor store and the other an on-site consumption outlet.

36.

In paragraph 2 of the response of the Applicant to the five hundred meter radius concern, the Applicant submits as follows:

“It is the Applicant’s submission, that the supermarket, with a Grocers’ Wine License, will not negatively affect the church / school situated within a 500 meters radius from the Applicant’s premises.

It is ironic, that the objector objects on this ground while his own liquor store entrance, is directly next to the entrance to the same church / school.”

This last remark remains unchallenged by the Respondent.

37.

The reference to the church and the school warrants two remarks. The distance to the church and school and similar outlets should be properly explained by both parties. From the Applicant's documentation, it’s virtually impossible to determine exactly where the church is located. It is not clear if it is located within the residential development. In the response, the Applicant submits the following about the church’s location: “while his own liquor store entrance, is directly next to the entrance to the same church / school.”

The submission is that the school and the church are located on the same premises. Although it is the Applicant’s submission that the supermarket with a Grocers’ Wine license will not negatively affect the church / school, something more is required than just such a bold allegation. Section 30(3) requires a consideration of the location of the premises, any history of adverse consequences, comment by the public or the police, or even the church themselves. The Police raised no concerns nor did the Local Committee. On the contrary, the Local Committee recommended approval of the Grocers wine License.

38.

The reference to the nearby liquor outlets however misses the point. The five hundred meters prohibition appears not to be directed at necessarily the location of existing similar outlets, but rather to the creation of further outlets within that five hundred meter location. It is common cause that the Liquor Outlet of the Objector has already been at the same location for the past twenty-seven years. This is long before the creation and/or the establishment of either the church or the school or the residential developments.

Whatever the factual position is, it remains the obligation of the Applicant to submit sufficient evidence to the respondent to enable the Respondent to consider the possible impact of a further liquor outlet in close proximity to the school and or church.

39.

The Applicant refers to the negative influence on Places of Worships and submitted that the activities at the Minimarket will not impact negatively on the place of worships, especially if it is taken into account that most have their services on Sunday mornings when trade only starts at 9:00 and services usually ends by latest at 12:00. The reality is that Drift Boulevard Road creates a business character, as almost all businesses in the area are situated next to this road. The residential area is situated, directly behind these businesses, including the listed church. It remains unchallenged that the church is located next to the entrance of the First Objector’s liquor store.

40.

The second Objector submitted that the selling of alcohol at a petrol station will increase the incidents of drunken driving, violence, and crime and is against the interests of the businesses and the residents of the Muldersdriftt community.

He submits that the area is already well served by similar licenced establishments, namely:

40.1. Liquor City Express Muldersdriftt – 130 m from Applicant's location;

40.2. Food & More Liquor Store (off-consumption liquor and Grocers’ Licence) 950 m from Applicant’s location;

40.3. Ultra-Liquors - 3.5 km from Applicant’s location;

40.4. Drift Country Inn (on-consumption Liquor Licence) – 140 m from Applicant’s Location.

41.

Without providing any detail , the Second Objector submits in his objection, that there are a number of schools, charities and places of worship in the area which will not be best served with the addition of a liquor outlet located at a petrol station and submitting that alcohol at a petrol station will increase drunken driving, violence and crime:

The applicant replied (righty so) that:

“There is no proof or any statistics which show, that Liquor sold from an outlet in close proximity to a petrol station, contribute to drunk and irresponsible driving, violence or crime.”

I agree , such allegations need to be supported by proper evidence.

42.

All of these objections and replies thereto about the similar and dissimilar liquor outlets, the place of worship and the proposed education facility located within the 500 m radius referred to in Section 30(3) of the Act does not appear to have being properly considered by the First Respondent.

43.

This is confirmed in the First Respondent’s answering affidavit as follows:

“In amplification of my denial, I aver that irrespective of the objections, the Board was going to reach the same conclusion, as

selling of alcohol in the filing station is a thorny issue and under the spotlight within the Liquor Board.”

The Respondents’ suggestion in Paragraph 63 does not save the day:

“The Liquor Board considered all the information at its disposal and exercised its discretion in terms of Section 30(2)(c), to come up with a just decision to decline the applicant's liquor license application.”

The Respondent then returns to the real reason for refusing the licence:

“It is undesirable for the filing station to sell alcohol as it will create an opportunity for road uses to buy and consume alcohol while driving and cause accidents.”

And:

“Approving of the said liquor licence will only create opportunity for motorists and/or road users to buy liquor at a filling station which has adverse consequences”

And finally:

“The public interest should not be confined to the local community, it must include the Gauteng population and beyond, "road users". Hence the first respondent contends that it will not be in the public interest to grant the liquor license to the applicant as it has adverse consequences”

44.

The Applicant relies on the following provisions of section 6(2) of PAJA:

44.1. Section 6(2)(e)(ii): “The action was taken for an ulterior purpose or motive”;

44.2. Section 6(2)(e)(iii): “The action was taken because irrelevant considerations were taken into account or relevant considerations were not considered”;

44.3. Section 6(2)(e)(vi): “The action was taken arbitrarily or capriciously”;

44.4. Section 6(2)(f)(i): “The action itself is not authorised by the empowering provision”;

44.5. Section 6(2)(f)(ii): “The action itself is not rationally connected to:

(cc) the information before the administrator; or

(dd) the reason given to for it by the administrator”;

44.6. Section 6(2)(h): “The exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative

action was purportedly taken, is so unreasonable that no reasonable person, could have exercised the power or performed the function”;

44.7. Section 6(2)(i): “The action is otherwise unconstitutional or unlawful”.

For the reasons hereunder the ground raised in Section 6(2)(f)(ii) that “The action itself is not rationally connected to the information before the administrator, the reason given to for it by the administrator”, and in Section 6(2)(e)(iii): “The action was taken because irrelevant considerations were taken into account or relevant considerations were not considered”; justifies that the review must succeed.

45.

On the question of public interest, the three factors to be considered, namely the Applicant, the premises and the public interest, should not be considered in isolation. The definition of “public interest”, particularly with reference to Liquor Applications, must be understood with reference to the changes in the approach of

authorities to the supply and distribution to liquor as well as the amendments to the Liquor Legislation, which have been affected over the years.

46.

In the present case, the Board was persuaded that the grant of a Grocers’ Wine License would not be in the public interest, because the approving of the Liquor License will create opportunities for motorists and/or road users to buy liquor at a filling station, which will have adverse consequences.

47.

In addition hereto, the Board submitted that there are three other outlets (of liquor) in close proximity within five hundred meters that sells wine. The Board then added that it is undesirable for the filling station to sell alcohol, as it will create opportunity for road users to buy and consume alcohol while driving and causing accidents. No proper consideration of the nearby liquor outlets or the 500 meter Section 30(3) appears in the reasons or the answering affidavit.

48.

It would therefore appear that the interests of motorists in general, as well as those persons living in close proximity to the filling station, was in effect elevated to the public interest.

49.

While motorists in general, as well as the public living near to the filling station, are part of those whose interest can be said to make up the public interest, the Board erred, in my view, in basing its decision in effect on only their interests.

50.

It is clear that in considering the public interest, the nature of the area where the filling station is located and where the Applicant proposes to operate the OK Mini Market, must also be taken into account when assessing whether the public interest will be served.

51.

It is not unreasonable and is in fact common practice in the retail business, that filling stations, particularly at or near business developments and/or next to busy roadways, include an OK Mini Market or something similar.

52.

It is also not unreasonable that food outlets and/or grocers stores, include outlets for the sale of wine and wine sections are common in many of these food outlets. This was in any event the evidence that was placed before the Board. Importantly also, is that the type of business which the Applicant intends to operate, was overlooked by the Board. It is the Applicant’s case that it intends to operate a bona fide well known upmarket general store, for which a Grocers’ Wine License would be ideal. It is for this very reason that the category of a Grocers’ Wine License was created.

53.

Although the objectors refer to the close proximity of similar liquor outlets, they are not in fact similar.

54.

On the contrary, the liquor outlets differ in nature from that of the Applicant.

55.

This was not challenged by the Respondent, but the Respondent nevertheless accepted that concerns of the Objectors relating to the sale of liquor at a filling station.

56.

Although the objectors referred to a Gauteng Liquor Board Policy of 2016, this appear to not have been promulgated and the amendment to the Liquor Act that prohibits the sale of liquor at a filling station, has not been signed and is not in effect.

57.

Although the general view might be that it is undesirable that liquor be sold at/or close to a filling station or at least on the same premises, this in itself, taken together with all the other factors, just not justify the conclusion that it would necessarily lead to an increase in alcohol consumption in motor vehicles.

58.

The sale of liquor at a grocer’s store is not uncommon and taking the design of the grocer’s store in relation to the filling station into consideration, the Board erred in considering the grocer’s store to be in such a close proximity to the filling station, that the one could be the other. Although I do not share the submission of the Applicant that the reference to “in a filling station” is indicative of the Board’s misconception on the location of the grocer’s store in relation to the filling station, I do accept that the Board erred in not evaluating the exact location of the grocer’s store.

59.

A more thorny issue not properly dealt with by any of the parties (the Applicant as well as the Respondent), are the close proximity of the church. On careful scrutiny of the objection to the application by some of the objectors and the response thereto by the Applicant before the Board, it is clear that the church, are located next to or in very close proximity of tan existing liquor store of at least the one objector. Had this created a problem in the past, it would have been raised by the objector or evidence would exist that it creates a problem.

60.

The Board have not made much about this locality.

61.

I accept that the locality of the church in relation to the Applicant’s suggested outlet, will not cause prejudice to the church and/or the residents of the residential area. The Objector Owner of this liquor store (maybe for obvious reasons) himself does not view this as a negative influence.

62.

The Applicant submitted that the Board took irrelevant considerations into account and failed also to take relevant considerations into account when coming to a decision. It failed to take into account that problems with similar licensed premises, has not caused or has caused an increase in either drunken driving or the use or alcohol at or close the filling station. This statement concerning the Board’s experience with regard to problems with the sale of liquor from filling stations, are problematic. There is no information before the Court as to what statistics and what general information the Board refers to when making the allegation that it increases the use of alcohol in motor vehicles.

63.

It is unfortunate that the Board gave very little reasons for the refusal of the Applicant’s application and utilised the answering affidavit to the application to expand on his ruling. It seems clear that the Board had access to factors which have been dealt with satisfactorily by the Applicant in his response to the objections. It however was not indicated in the ruling of the Board that those factors were indeed considered.

64.

I have accordingly come to the conclusion that the application for a review must succeed.

65.

The next question is whether the application should be referred back to the Board for reconsideration or whether it can be said that this is an exceptional case which justifies my substituting the administrative action taken by the Board (Section 8(1)(c) of the Promotion of Administrative Justice Act).

66.

I am of the view that this is an exceptional case, for the following reasons:

66.1. The matter has been delayed for a long time and the application was already lodged in 2022 and the Applicant has already started doing business from the filling station, but more particularly from the grocer’s store, at least from 2022.

66.2. There is no evidence that indicate that the grocer’s store is not successful or viable, or not supported by the community.

66.3. The objections and the reply thereto have been fully canvassed by both parties before the Court and all the facts are before Court.

66.4. Conditions normally attached to a Grocers’ Wine License are fairly standard.

66.5. The Respondent has in any event indicated that they would have taken the same decision irrespective of the objections and that the application would have been refused, based on the location of the Grocers’ Wine License.

67.

I accordingly grant an order in the following terms:

67.1. The Decision of the First Respondent to refuse the application of the Applicant for a Grocers’ Wine License is reviewed and set aside;

67.2. The First Respondent is directed to grant the application of the Applicant for a Grocers’ Wine License and to issue a Certificate subject to the general conditions normally granted and imposed by the First Respondent and in particular to apply those conditions that:

67.2.1. Indicate the days and hours between which wine may be sold.

67.3. The First Respondent is ordered to pay the Applicant’s costs on scale B of the amended Rule 69 of the Uniform Rules of Court.

DU PLESSIS AJ

ACTING JUDGE OF THE HIGH COURT

GUATENG DIVISION , PRETORIA

Date of hearing

: 19 November 2024

Judgement delivered on : 29 November 2024

APEARANCES

Counsel for Applicant : Adv L Pienaar

Instructed by

: HG Aucamp Attorneys

Counsel for First Respondent: Adv S.T Seshoka

Instructed by :

State Attorney