Von Wielligh v Free State Gambling, Liquor and Tourism Authority and Others (2906/2019) [2020] ZAFSHC 68 (26 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

CASE NO: 2906/2019

In the matter between:

CHARL MALHERBE VON WIELLIGH Applicant

and

FREE STATE GAMBLING, LIQUOR AND 1st Respondent

TOURISM AUTHORITY

THE CHAIRMAN, FREE STATE GAMBLING 2nd Respondent

LIQUOR AND TOURISM AUTHORITY

ANDRIES NHLANHLA TSHABALALA 3rd Respondent

CORAM: DAFFUE, ADJP et RAMLAL, AJ,

JUDGMENT BY: RAMLAL, AJ

HEARD ON: 2 MARCH 2020

DELIVERED ON: 26 MARCH 2020

[1] The matter before us serves to review and set aside a decision of The Free State Gambling, Liquor and Tourism Authority (First Respondent), made in favour of the Third Respondent wherein the First Respondent approved the application for a licence to operate a liquor store by the Third Respondent, at 46 Kerk Street, Vrede, Free State Province.

[2] The main grounds on which the Applicant contests the granting of the liquor store certificate by the First Respondent are that:

2.1 The First and Second Respondents failed to follow the peremptory provisions of s 35(2) of the Free State Gambling, Liquor and Tourism Act, Act 6 of 2010 (“the Liquor Act”);

2.2 The First Respondent considered the application of the Third Respondent as if no objection had been lodged;

2.3 The First Respondent failed to afford the Applicant an opportunity to be heard and make representations regarding the Applicant’s objection that had been lodged.

[3] It is not in dispute:

3.1 that any person has a right to object to a liquor licence application;

3.2 that the objection must be submitted in writing setting out the full details of the objection and the objector;

3.3 that the Authority may convene a hearing to consider the objections;

3.4 that the Applicant and the objector must be afforded an opportunity to be heard and may be represented by a person of their choice; and

3.5 that the board may adjourn and resume a hearing on a date, time and place as the board may determine.

[4] A full chronology of the application, the lodging of the objection and the decision taken by the First Respondent, has meticulously been set out in the papers of the Applicant. It is not necessary to repeat the entire chronology. The crux of the matter is whether or not the decision taken by the First Respondent, regarding the objection of the Applicant, is procedurally fair and correct.

[5] The matter hinges on the interpretation of s 35(2) of the Liquor Act, in particular, whether or not the stance of the Authority to consider the objection of the Applicant, without affording the Applicant a hearing, may be construed as procedurally fair.

[6] Section 35(2) of the Liquor Act provides:

“(1) The Authority may convene a sitting of the board to consider any objections to the application in question, on a date, time and place to be determined by the chairperson.

(2) The applicant and a person who has lodged an objection to the application, must be afforded an opportunity to be heard and may be represented by a person of their choice.

(3) a hearing may be adjourned and resumed on a date, time and place as the board may determine.”

[7] The First Respondent submits that the Applicant does not have a general right to have an oral hearing in respect of an objection and that a consideration of a written objection by the board suffices to comply with procedural fairness.

[8] The First Respondent further submits that the intention of the legislature can be inferred from the contextual interpretation involving the statute as a whole and in support of this draws attention to s 68 (3) of the Act, which relates to gambling applications:

“(3) The Authority must hold a hearing

(a) in respect of every application for a casino licence received by the Authority;

(b) in respect of every application for any other kind of licence contemplated in s 64 received by the Authority regarding which an

objection has been lodged in accordance with s 67;

(c) In any application for which the Authority deems it necessary to conduct a hearing,

on such a date, time and place as determined by the Authority and made known by notice published in the Provincial Gazette, and in a newspaper circulating in the district in which the premises to which such application relates are situated, in any official language in which such newspaper is published.”

[9] The submission of the First Respondent is that an oral hearing in terms of s 68(3) proceeds after a notice and comment procedure has been followed.

[10] I do not agree with the submissions on behalf of the First Respondent insofar as it is its case that the board does not have to hear the person who has lodged an objection to an application for a liquor licence. In an oft-quoted judgment Wallis JA summarised the current state of our law regarding the interpretation of documents, including statutes, as follows in Endumeni Municipality[1]:

“Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.”

The matter must be approached holistically and context and language must be considered together with neither predominating over the other. One of the objects of the legislature as contained in s 2 of the Liquor Act is the provision of public participation in considering applications for licences

[11] The case of Bam-Mugwanya v Minister of Finance and Provincial Expenditure, Eastern Cape and others[2] was cited by the First Respondent in support of the argument that it was not necessary for a functionary to receive oral representations

where a person affected had ample opportunity to place relevant evidence before a functionary by way of written representations.

The facts in this case are distinguishable from those in the case for consideration before this court. In that case it was argued on behalf of the Applicant that he was entitled to a full-scale hearing, the opportunity to address the Executive Council verbally and to call witnesses. This argument was rejected as the particular section dealing with the power to terminate the term of office of a member of the Tender Board merely afforded the member an opportunity to make representations. The court made the following observations at paragraphs 23 and 24 of the judgment:

“[23] I do not consider the attack on the procedural fairness of the process to be sustainable. In addition to submitting representations

to the Executive Council the applicant had, prior thereto, been invited to submit written representations to the subcommittee and in fact did so….she was also given the opportunity to make verbal representations……and she was invited to submit an addendum to her written representations, if she so wished, but declined this invitation.

[24] The fact that the applicant’s request to appear personally before the Executive Council, in order to address it and call

witnesses, was not acceded to does not in itself result in the process being unfair.”

[12] In the matter for consideration before us, despite several attempts by the Applicant to ascertain the process that was being adopted by the First Respondent regarding the Applicant’s objection to the application, there is no indication of any ongoing communication to the Applicant regarding the consideration of the objection that was submitted.

[13] The First Respondent submits that s 68 makes it peremptory for the Authority to hold a hearing in respect of every application for a casino licence, but it is not peremptory to hold a hearing for an application for a liquor licence. Section 35, however, deals with the hearing of objections, as the heading clearly indicates and not the hearing of applications per se.

[14] The procedure regarding the processing of objections to gambling licences is contained in s 67 of the Liquor Act. Section 68(4) deals with the hearing of objections lodged in respect of applications for gambling licences. The process therein contained is somewhat different to that contained in s 35(2) which deals with objections to liquor licence applications. Section 68(4)(b) stipulates that any person who lodge an objection against the application for a gambling licence may in such objection indicate his or her desire to make oral representations at the hearing of the application in which case such person must be afforded the opportunity to be heard.

[15] Section 35 of the Liquor Act draws a clear distinction between the convening of a sitting of the board to “consider any objections to the application in question” and the “opportunity to be heard”.

[16] It is evident that there is a two-pronged approach to be adopted in the hearing of objections as contemplated in s 35 of the Liquor Act.: Firstly, in terms of s 35(1) that the Authority may convene a sitting to consider any objections and secondly, in terms of s 35(2) that the Applicant and a person who has lodged an

objection to the application “must be afforded an opportunity to be heard”.

[17] Section 35(1) suggests that the administrative procedure of processing objections to applications for the hearing may be conducted within the discretionary power of the Authority. Section 35(2), however, is peremptory in that the Applicant and the person who has lodged the objection must be afforded the opportunity to be heard. In my view there is not an ambiguity notwithstanding the use of the words “may” and “must” in the two sub-paragraphs. Even if that was the case such an ambiguity must be dealt with by looking at the purpose and context in which the Act was drafted. The purpose of providing for public participation and the hearing of objections would be flouted if Respondents could decide to deal with objections behind closed doors in contravention with s 35(2).

[18] The First Respondent must have afforded Third Respondent (the Applicant applying for the licence) and the person who has lodged an objection to the application an opportunity to be heard and to be represented by a person of their choice. However, it did not deal with the objection of the Applicant in terms of the procedure as set out in s 35 of the Liquor Act. The administrative function cannot be considered to have been procedurally fair and correct.

[19] I accordingly make the following order:

19.1 The decision of the First Respondent in terms of which the application for the liquor store registration certificate was approved is hereby reviewed and set aside;

19.2 The matter is referred back to the First Respondent to hear the application of the Third Respondent together with the objection of the Applicant;

19.3 The First and Second Respondents are ordered to pay the costs of this application, jointly and severally, the one paying, the other to be absolved.

__________________

A.K. RAMLAL, AJ

I concur

J.P. DAFFUE, ADJP

Appearances:

For the Applicant : Adv R van der Merwe

Instructed by: Kobus Burger Attorneys

Bloemfontein

For the Respondents: Mr N W Phalatsi

NW Phalatsi and Partners

[1] Natal Joint Municipal and Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18. See also Bothma-Batho Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at par 10 -12.

[2] 2001 (4) SA 120 (Ck)