Reiscor Two CC v The Minsiter of Trade and Industry

• Jurisdiction: South Africa
• Judge: NM Mavundla J
• Judgment Date: 07 May 2020
• Docket Number: 4640/19
• Court: Gauteng High Court, Pretoria
• Hearing Date: 07 May 2020
• Citation: 2020 JDR 1083 (GP)

Mavundla J:

[1]

This is an opposed application by the three applicants for the declaratory relief coupled with a review application in terms of section 6(2) of the Promotion of Administrative Justice Act, Act 3 of 2000 ('PAJA"). The decision to be reviewed is the respondents" decision to impose certain allegedly ultra vires conditions on the registration of the applicants as distributors of alcohol.

[2]

The applicants seek an order in terms of the prayers 1 to 4 of the amended Notice of Motion dated 3 April 2019.

[3]

The three applicants are all registered as "distributors" in terms of the National Liquor Act, Act 59 of 2003 (hereinafter referred to as "the Act") and the registrations are unconditional.

[4]

The National Liquor Act, Act 59 of 2003, governs the manufacturing and distribution of alcoholic beverages in the Republic of South Africa and the norms and standards for the legislation in respect of retail sales and micro manufacturing in various provinces.

2020 JDR 1083 p3

Mavundla J

[5]

"Distribution" is what was previously referred to as "whole sale". In other words, anybody who wants to distribute liquor in the Republic of South Africa, which only may be distributed to the holders of liquor licenses or exempted persons, must obtain a registration as a Registrant for distribution in accordance with the provisions of Act 59 of 2003.

[6]

When the National Liquor Act came into operation, there was a window period for conversion of previously existing licences, which included the right to do wholesaling, into distribution registrations in terms of the new legislation. All three of the applicants fell within this category and they all converted their rights to National Distribution Registrations as follows:

6.1

First applicant converted to Bootleggers Lombardy registration number RG0001332;

6.2

Second applicant converted to Bootleggers Booysens registration number RG0001330;

6.3

Third applicant converted to Bootleggers Fourways registration number RG0001329.

6.4

All three applicants attached copies of their respective Registration Certificates as annexure "B1", "B22" and "B3".

[7]

In terms of the National Liquor Act, the first respondent has the right to impose conditions on registration as distributors. In casu this was not done, and all three registrations of the applicants were issued unconditionally in the form of the prescribed registration forms, Form NLA9 and NLA30 copies of which were attached herein as Annexure "B1", "B22" AND "B3". It needs noting that all three registration certificates were dated 17 March 2009.

[8]

The applicants alleged that in terms of the National Liquor Act a registration remains valid and in force until it is cancelled by the first respondent. They allege further that this has not happened in the case of any of the registrations of all three applicants.

2020 JDR 1083 p4

Mavundla J

[9]

I must hasten to point out that, in terms of the National Liquor Act, a registrant must (my emphasis) renew its registration each year. Regulation 15A of the Regulations to the National Liquor Act, which deals with the renewal process, require, a registrant to lodge the Form NLA28 and proof of payment. The relevant Regulation reads as follows:

"15A Annual renewal of registration

(1)

Upon receipt of a Notice for annual renewal of the registrant's registration on Form 32, a registrant must submit the registrant's annual information return on Form NLA 28 and pay the annual renewal fee as set out in Table NLA4, within a period contemplated in regulation 11(4).

(2)

When the registrant has submitted the Registrant's annual information return and paid the annual renewal fee as contemplated in sub-regulation (1), the National Liquor Authority must deliver an Annual renewal certificate in Form NLA33 to the registrant."

[10]

It must be noted that the use of the word "must" in sub-regulation (1) of 15A Regulation is peremptory, and therefore demands strict compliance with the demand to submit annual information of returns and proof of payment of the renewal fee. In this regard I am bolstered vide the matter of Minister of Environmental Affairs & Tourism v Smit [1] where Brand JA held that:

"[32] ...An applicant 'must pay' the application fee and 'must' pay the application fee promptly and timeously'. The general principle is, of course, that language of a predominantly imperative nature such as 'must' is to be construed as peremptory rather than directory unless there are other circumstances which negate this construction (see e.g. Sutter v Scheepers 1932 AD 165 at 173-4) Even though the provisions under consideration are drafted in narrative form, common sense dictates that this principle be afforded some weight. An even more significant indication that timeous payment of the application fee is peremptory is that the invitation contains an explicit sanction for non-compliance with the provision--- an application submitted without proof of proper and timeous payment will not be considered (cf Sutter v Scheepers (supra at 174)). There is also the more general consideration that where, as in the present case, a statute provides for the acquisition of a right or privilege—as opposed to the infringement of an existing

2020 JDR 1083 p5

Mavundla J

right or privilege--- compliance with formalities that are prescribed for such acquisition, should be regarded as imperative. See e.g. R v Noorbhai 1945 AD 58 at 64; South African Citrus Exchange Ltd v Director-General: Trade and Industry and Another (1997 (3) 236 (SCA) at 241E-I)."

The question that arises is what is meant by "annual returns". I will later revert to this issue.

[11]

In casu, the applicants in an endeavour to comply with the provisions of "15A (1)"...