IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION ) CASE NO. : 457/02 JACOBUS ALBERTUS MOSTERT

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1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION ) CASE NO. : 457/02 In the matter between : JACOBUS ALBERTUS MOSTERT APPLICANT and NORTH WEST PROVINCE PROVINCIAL LIQUOR BOARD RESPONDENT CIVIL JUDGMENT MAFIKENG DATE OF HEARING : 14 TH MAY 2003 DATE OF JUDGMENT : 12 TH JUNE 2003 COUNSEL FOR APPLICANT : ADV. JHF PISTOR COUNSEL FOR RESPONDENT : ADV. LM MOLOISANE MONARE AJ [1] On the 5 th July 1996 the Applicant lodged an application for a liquor licence with Magistrate Lichtenburg. [2] The Applicant motivated the above mentioned application by stating that: No liquor outlet currently exists in this serving area which in effect means that people are deprived of this

2 facility. This application by the Applicant was ultimately granted by the Respondent. [3] On the 20 th February 2002 the Applicant sold the abovementioned liquor licence to Jacobus Albertus Mostert. This sale was subject to a suspensive condition that permission would be given to transfer the said liquor licence from Kareekuil to stand no: 156 Ottosdal in the district of Lichtenburg. [4] After the agreement mentioned in the preceding paragraph had been concluded, the Applicant applied for the removal of the liquor licence from Kareekuil to Ottosdal as well as the transfer of the said licence from his names into the names of the purchaser, Mr Aton Pretorius. These applications were lodged with the Magistrate for the district of Lichtenburg on the 5 th April [5] It has not been mentioned in this application what the results of the application for the transfer of the licence were but only the results of the application for the removal of the licence have been mentioned. [6] On the 4 th July 2002 and in response to the application for the removal of the licence, the Respondent wrote to Applicant as follows: The Board refused the above mentioned application due to the following : The granting of this licence will not be in public interest. The applicant has indicated in his original application that people in that predominantly rural area would be deprived of this facility if the licence is not granted. It cannot now be argued that it will be in the public interest to remove the licence from the very same people who enjoyed the services of this facility for such a long time.

3 [7] It is as a result of contents of the above mentioned letter that the Applicant instituted this application for review. The gravamen of the present application is that the Respondent failed to observe the audi alteram partem rule in arriving at its decision to reject the Applicant s application for removal of the licence without informing the Applicant that it intended to rely on information which was not contained in the application for removal of the licence and inviting him to make representations in that regard. [8] At the hearing of this application, Mr Pistor, Counsel for the Applicant, sought to expound on the grounds upon which the Respondent s decision was prone to additional attacks and these are the following : (i) That the Respondent misconstrued the Act under which it had to consider the application for the removal of the licence on the ground that the Respondent thought that the Liquor Act No.27 of 1989 did not make provision for objections to be raised when an application for the removal of a licence is made. (ii) That the Respondent acted arbitrarily in that the Respondent did not deal with the favourable report by the police officer who was assigned to make a report about the Applicant s application for the removal of the licence. (iii) That the Respondent failed to observe the peremptory provisions of section 13(9)(b) read with section 13(9)(a) of the Liquor Act No.27 of 1989.

4 (a) Section 13(9)(b) provides that: The Chairperson shall inform the Applicant concerned of the matter contemplated in paragraph (a) and shall if the Applicant so requests, postpone the consideration of the application for such period as the chairperson may think fit so as to afford the applicant the opportunity of stating his or her case in connection therewith. [my emphasis] (b) Section 13(9)(a) to which reference is being made in section 13(9)(b) above, provides that: The Board may, in considering any application mentioned in section 11(3)(a), of its own accord, take cognisance of any matter which in its opinion may be a ground for an objection to the granting of the application. [9] I must hasten to mention that section 11(3)(a) makes reference to the provisions of section 121(1) which deal with applications for the removal of the licence which may be considered by the board. [10] Mr Pistor, on behalf of the Applicant, submitted that the general principle applicable in matters similar to the present application is that, any consideration which may count against a party affected by a decision must be communicated to him to enable him to answer to the allegation. He submitted further that essential facts must be conveyed to enable him to reply thereto. [11] Ms Moloisane on behalf of the Respondent conceded that the general principle mentioned in the preceding paragraph is applicable. She however made a submission that there is a restriction to the general principle to the effect that, if a party

5 affected by the decision could reasonably have foreseen that facts prejudicial to him would be taken into consideration, he should address those prejudicial facts. Failure to address those facts becomes attributable to his own carelessness or recklessness. [12] Ms Moloisane based her submission on the decision of Down vs Malan NO & Andere 1960 (2) SA 734 [A] and quoted a passage by Steyn CJ in which the following was stated : One of the rights which are usually postulated at such an enquiry [quasi judicial] is the right of the interested party in specified circumstances to be informed of the nature of the facts against him of which the functionary has knowledge. In such a case, there is then the corresponding duty to make known the nature of the facts, and neglect to do so may amount to gross irregularity. But if the possessor of this right could reasonably expect that the authority will have knowledge of facts or information which can be taken into account against him... but nevertheless neglects to deal with such facts or information, then any prejudice is attributed to his own inadequate vigilance. The intention is to protect the interested party against unfair prejudice and not against his own carelessness or casualness. [13] Ms Moloisane argued that since the Applicant informed the Respondent on the 5 th July 1996 that the Liquor Licence would be serving people, the Applicant should have foreseen that the Respondent would use this information in deciding whether to grant or reject the application for the removal of the licence [14] The general principle and its restriction as alluded to in the preceding paragraphs were considered in the case of Maharaj vs Chairman, Liquor Board 1997 (1) SA 273 (N). In the latter case, the Respondent tried to rely on the restriction to the general principle as stated in the case of Down vs Malan NO en Andere cited above

6 but the court decided that the facts did not justify the application of the restriction to the general principle. [15] The critical question to be asked in this application is, can it be said that it was reasonably foreseeable by the Applicant that the Respondent would use population figures given by the Applicant in 1996 when deciding whether to grant or reject the application for the removal of the same licence in [16] It is in the light of the abovementioned principles that I shall now deal with the facts of the present application. [17] It is common cause that the information which the Respondent relied on for the rejection of the Applicant s application for removal of his licence was given by the Applicant to the Respondent on the 5 th July [18] The information which the Respondent relied upon in rejecting the application for removal was contained in the original application to grant the licence and not in the application for removal of the licence. [19] The Respondent did not notify the Applicant that it intends considering this information which was not contained in the application for removal of the licence. [20] The information which was considered by the Respondent was more than five years old. [21] A period of five years is long enough to have immense influence on

7 the population explosion or implosion. [22] It is difficult to come to terms with the submission by counsel for the Respondent that the Applicant should have foreseen that population statistics given by him five years back would be taken into consideration by the Respondent when deciding to grant or refuse an application for the removal of the licence. [23] My view is that it would have been unreasonable to expect the Applicant to have foreseen the possibility that the Respondent would use population statistics which were five years old as if those statistics were static. [24] Since the Applicant could not be expected to have foreseen the possibility that population statistics given by him in 1996 could be used in deciding whether to grant or refuse his application for the removal of the same application in 2002, I have come to a conclusion that the general principle mentioned above should apply. [25] I have no doubt in my mind that the Respondent failed to observe the audi alteram partem rule by considering information which was not contained in the application for removal of the licence without alerting the Applicant that it intended relying thereon. [26] My finding is fortified by the fact that, although section 185 of the Liquor Act No. 27 of 1989 provides that: The competent authority shall in the consideration of any application made in terms of this Act, take cognisance of (a) the application and the report contemplated in section 140 (if any);

8 (b) (c) the documents lodged in support of the application, objections to and representations in connection with the application, replies to such objections and representations and other information procured in connection with the application (if any); and any matter which in the opinion of the competent authority ought to be taken into consideration, [my emphasis] The underlined clause does not give the Respondent a discretion not to observe the audi alteram partem rule or the provisions of section 13(9)(b) read with the provisions of section 13(9)(a) of the Liquor Act No. 27 of [27] My decision makes it unnecessary to deal with the additional grounds upon which counsel for the Respondent sought to attack the decision of the Respondent. [28] In the end, I make the following order: i)the decision of the Respondent rejecting an application by the Applicant for the removal of his liquor licence (Liquor Board reference No. NWS/020598) in accordance with the provisions of section 120 of the Liquor Act No. 27 of 1989 is set aside; ii)the matter is referred back to the Respondent to reconsider the Application for the removal of the Applicant s licence (No. NWS/020598) after notifying the Applicant of information at its disposal which is not contained in the application for removal of the licence which it intends taking into consideration in deciding whether to grant or reject the application for the transfer of the licence; iii)the Respondent should reconsider the Applicant s application within two (2) months from the date of this order; iv)the Respondent pays the costs of the application.

9 S.E. MONARE ACTING JUDGE OF THE HIGH COURT APPLICANT S ATTORNEYS : SMIT, STANTON INC. RESPONDENT S ATTORNEYS : THE STATE ATTORNEY