Red Hill Garage and Others v Buchan's Garage and Another

• Jurisdiction: South Africa
• Judge: Broome JP and De Wet J
• Judgment Date: 15 October 1954
• Citation: 1954 (4) SA 777 (N)
• Hearing Date: 06 October 1954
• Court: Natal Provincial Division

C Broome, J.P.:

This is an application to review the proceedings and set aside the decision of the second respondent, the Durban licensing appeal board. In 1953 first respondent applied to the Durban licensing officer for certificates of authority for new licences as motor garage and general dealer. The present applicants are three of the four objectors to that application, which was refused. First respondent appealed to D second respondent board. The hearing of the appeal began on 30th April 1954, all the parties being legally represented. At the outset Mr. Gurwitz, who represented the present first applicant (one of the respondents in the appeal), asked that one of the members of the board, Mrs. Maytom, should recuse herself, and he further submitted that his client had not been given proper notice of the appeal. The grounds upon E which he claimed that Mrs. Maytom should recuse herself and the way in which that matter and the matter of the notice of appeal were dealt with appear from the following extracts from the board's minutes.

'Mr. Gurwitz requested, with respect, and for the purposes of this appeal, that Councillor Mrs. Maytom recuse herself as a member of the board, for the reason that on 20th May, 1953, application was made to the licensing officer in respect of exactly the same licences covering the same premises, which application was in the name of Buchan's Store F of which the applicant and Councillor Mrs. Maytom were directors. Mr. Gurwitz pointed out that this application was subsequently withdrawn and a similar application was made in the name of Mr. Collins, who was one of the directors concerned in the original application, and for these reasons he submitted that Councillor Mrs. Maytom should recuse herself. Mr. Gurwitz further contended that the appellant had not given proper notice of appeal to the respondent objector, (Red Hill Garage). . .. At G 10.47 a.m. the board adjourned, and at 11.15 a.m. resumed in open session. At the resumption in open session, the chairman announced his ruling on the points raised as follows:

'(a)

That in the matter of the objection as to the recusal of Councillor Mrs. Maytom, as a member of the board for the purpose of the hearing of this appeal, I have satisfied myself that Councillor Mrs. Maytom has no interest in the matter and accordingly the objection is overruled.

(b)

That in the matter of the objection as to proof of service of notice of appeal . . .. the matter stand over to the next meeting of the licensing appeal board to give the appellant an opportunity to prove service . . .''

H The hearing was resumed on 14th May when the board was similarly constituted except that the previous chairman, Mr. Phillips, had been replaced by Mr. Martin. The following is an extract from the minutes of that meeting.

'At the outset, Mr. Gurwitz (instructed by Messrs. J. Gurwitz & Co.) enquired whether the chairman was bound by the ruling given by the previous

Broome JP

chairman of the board, whereupon the chairman replied that he was not competent to discuss the question raised, as he was not present on that occasion and when the matter had been decided.'

After hearing argument the board allowed the appeal and granted the certificates applied for. Thereafter the present review proceedings were instituted.

A The applicants' complaint is in relation to the refusal of the request...