Titty's Bar and Bottle Store (Pty) Ltd v Abc Garage (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Viljoen J
• Judgment Date: 08 August 1974
• Court: Transvaal Provincial Division
• Hearing Date: 13 June 1974
• Citation: 1974 (4) SA 362 (T)

Viljoen, J.:

The applicant herein seeks to interdict the respondents from using or permitting the use of erf 58 situate in the township of Laudium, Pretoria, for any purposes of conducting a bar or a bottle store or for the supply of intoxicating liquor to the public whether for consumption on or A off any portion of the said erf. In the founding affidavit Lutchman Mooloo states that he is a shareholder and director in the applicant company which is the registered owner of erf 359 in the business centre of Laudium, on which erf he is duly licensed to conduct the business of a bar, bottle store and restaurant and in particular to supplying intoxicating liquor to the public. These businesses are owned and conducted by the B applicant. The first respondent is the registered owner of erf 58 in the township of Laudium and carries on the business of a garage and a café on this erf. Second respondent carries on the business of a restaurant, part of the amenities of which is a bar installed in the premises of the said restaurant. It also conducts the business of a bottle store on the premises C from which it supplies liquor to the restaurant and bar, apart from the sale and supply thereof to members of the general public for off-consumption. Third respondent is a permanent resident of Laudium and is the holder of the relevant liquor licences under which the aforementioned liquor businesses are conducted by the second respondent on the said erf.

D The deponent attaches the first respondent's deed of transfer of the said erf to his affidavit and refers to the following condition appearing therein:

"6.

It is a condition of the said deed of transfer, annexure B hereto, that -

'C(a)

The erf shall be used solely for a garage and for purposes incidental thereto or for E such other purposes as the Administrator may permit and subject to such conditions as he may determine after consultation with the Townships Board and the local authority.'"

He proceeds to allege that at no time has there been any application by any person or company in terms of condition C(a) of deed of transfer 2725/1966 to the Administrator for consent to use erf 58 or any portion thereof or the premises thereon or F any portion of the premises for the purposes of conducting a bar or a bottle store or for the supply of intoxicating liquor to the public whether for consumption on or off the erf or premises.

Paras. 7, 8 and 9 contain the following allegations:

"7.

I state that applicant is, as owner of an erf in the same township, which was acquired from a common G vendor, to wit the City Council of Pretoria, and under a general common scheme for developing the area for Indian ownership and occupation, entitled to rely upon the provisions of the said condition of title and to enforce observance thereof.

8.

I furthermore state that applicant is, as owner of a business similar to those businesses conducted by respondents, entitled to approach the above honourable Court for an interdict against any unlawful use of the said erf.

9.

H I state that the conduct of the said businesses, in particular the liquor businesses aforementioned, prejudicially affects applicant who is engaged in similar businesses for gain."

The affidavit contains further allegations to the effect that the respondents are now moving the bottle store business to other premises on the same erf and that it is in conflict with the title condition quoted above and against the interests of applicant and of the public of Laudium that respondents should achieve the removal of the business

Viljoen J

and the deponent says that such removal should, as a matter of urgency, be prevented by the Court. On the ground of this latter averment it was presumably sought to have the matter dealt with as one of urgency. However, the urgency seems to have fallen away because subsequent to the date of the A attestation of the founding affidavit, which occurred on 2 May 1974, affidavits were filed on both sides and the matter was heard by me in the motion Court on 13 June 1974. For the purposes of this judgment I do not deem it necessary to comment on the allegations contained in paras. 10 - 15 save to remark, in passing, that it is not clear to me by virtue of B what right or capacity the applicant speaks for the public of Laudium.

In the answering affidavit on behalf of the three respondents, the third respondent, although not admitting that an application in terms of the condition quoted above is necessary, states that an application has in fact been lodged with the Administrator. In the application to the C Administrator, a copy of which is attached to her affidavit, she sets out how it came about that a liquor licence was granted on the premises. Briefly the history is as follows: During 1970 she and her husband decided to float the second respondent for the purpose of conducting a restaurant on the premises. It was then decided to apply to the Minister of Justice for a restaurant liquor licence in terms of sec. 100 D sex of the Liquor Act, 1928. It was explained to them that, in cases where such authority is granted by the Minister, the latter could reasonably be expected to grant the further authority to sell liquor off the premises. Application was thereupon made for a restaurant as well as a bottle store liquor licence, which, after proper advertisement, was granted. E During 1972 the City Council of Pretoria communicated with the second respondent taking up the attitude that the restaurant liquor licence was in order, but not the retail off-consumption licence because the latter was in conflict with the town planning scheme which was operative for Laudium. As a result of negotiations between the second respondent and the planning section of the City Council it was decided to apply for F permission in terms of the scheme to conduct such business. Application was duly made, the necessary advertisements appeared in the Press, there were no objections and on 5 October 1972 permission was granted subject to the consent of the Administrator being obtained. For certain reasons the second respondent did not immediately apply for such consent, G but it has now, since the lodgment of the founding affidavit, done so. The third respondent avers that the second respondent is confident of obtaining the consent of the Administrator.

In her affidavit the third respondent takes the stand that the applicant has no locus standi to bring the application by reason of the following facts:

(i)

H As will more fully appear from annexure 'D' hereto, erf 359 is situated approximately one-half to one mile from erf 58.

(ii)

The applicant waived his right to object to the businesses conducted by the respondents on erf 58.

(aa)

On 15 December 1970, and again on 16 December 1970, advertisements appeared in an Afrikaans and an English newspaper, circulating in Pretoria, giving notice that an application would be submitted to the magistrate, Pretoria, on 23 December 1970 for the grant of a liquor licence in terms of sec. 100 sex of the Liquor Act. These advertisements must have come to the...