Barlin v Licensing Court for the Cape

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and Mason AJA
• Judgment Date: 02 April 1924
• Citation: 1924 AD 472
• Hearing Date: 02 April 1924
• Court: Appellate Division

Innes, C.J.:

These proceedings originated in an application made on motion to a single Judge (VAN ZIJL, J.) sitting in the Third Division of the Cape Supreme Court, to review the proceedings of the Cape Licensing Court which had refused to renew Barlin's liquor licence. Five grounds were relied upon; the first ground was upheld, the proceedings were set aside, and the matter sent back with a direction to the Licensing Court to re-consider it. On appeal to the full Bench of the Provincial Division, however, that order was reversed, and the application was returned to the Third Division in order that the other objections might be disposed

Innes, C.J.

of. VAN ZIJL, J., purporting to act under a recently promulgated rule which provided for the hearing of such motions by two Judges removed the litigation into the full Court, where it was fully dealt with; the remaining four objections were considered and the application was dismissed. The present appeal is against both orders of the Provincial Division.

A preliminary contention is submitted by the respondent. It is said that the rule on which the divisional Judge acted was promulgated a day or two after the matter had been remitted to him, that he should not have acted on it, and that the respondent was prejudiced, in that he was wrongly deprived of the right of litigating his objections before the Third Division in the first instance and then appealing to the full Court. An extraordinary point, and quite untenable. The litigant had no right to insist on his application remaining in the Third Division and being disposed of there; the Judge could have removed it, so far as the applicant was concerned without any rule. The hearing before the one Division or the other was a matter of domestic practice and convenience of business. The petition was made to the Cape Provincial Division and it was dealt with by that Division, so that the applicant had no ground of complaint.

The appeal against the first order, which reversed the order of VAN ZIJL, J., must now be considered. That order related to the first ground on which Barlin's petition was based - namely, that it was not competent for the court to refuse the renewal seeing that the police did not oppose it, but merely recommended a curtailment of hours and a reduction of privileges. But as a fact Attorney Douglas instructed by certain temperance organizations did appear, at the sitting of the court, and did oppose the application for a renewal, on the ground that the business was not properly conducted and that a licensed place was no longer required in the neighbourhood. The reasons show that the learned Judge was satisfied that the, attorney appeared and that at some stage of the proceedings he objected. He was not satisfied, however, that the objection was so made as to attract the notice of the applicant or his attorneys. The Provincial Division did...