THE
HIGH COURT OF SWAZILAND
GARY
MUIR
Applicant
And
WINNIE
MUIR
1st
Respondent
THE
CHAIRMAN OF THE LIQUOR LICENSING BOARD
2nd
Respondent
LIQUOR
LICENSING BOARD SWAZILAND
3
rd Respondent
Civ.
Case No. 1187/02
Coram S.B.
MAPHALALA - J
For
the Applicant Advocate J.M. Van Der
Walt
(Instructed by C.J. Littler & Co).
For
the 1st Respondent MR. P.M. Shilubane
JUDGMENT
(07/05/02)
2
This
is an application filed under a certificate of urgency and in which
the applicant prays for an order in the following terms:
1. That
the normal rules pertaining to applications be dispensed with and
that this application be disposed of on an urgent basis.
2. The
validity of the three liquor licences issued to the applicant, namely
a restaurant liquor licence, wine and malt liquor and club liquor
licence be extended until finalisation of this application,
alternatively by the above Honourable court for such period as the
above Honourable court may deem reasonable in the circumstances.
3. The
relief sought in prayer 2 above operate with immediate effect.
4. The
first and second and third respondents be called upon to show cause
on 31 May 2002 at 09h30 why the following relief should not be
granted to the applicant.
4.1 The
validity of the liquor licences referred to in prayer 2 above should
not be extended pending the applicants application for a renewal of
the licences and a decision on such application by the second and
third respondents, such application and determination thereof to take
place in the normal course of applications and renewal of liquor
licences for the year 2002.
4.2 Why
the second and third respondents should not be directed to hear the
applicant's application for a renewal of the said liquor licences.
4.3 Why
a declaration order should not be granted that the first respondent
has no locus standi to represent the estate of the late Martin Robert
Muir in objecting to the issue of the liquor licences to the
applicant.
4.4 Declaring
that the disputes with regard to the ownership of the licences and
the ownership of the businesses known as KamXhosa Restaurant and
KamXhosa Wine and Malt business is not an
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impediment
to the renewal and/or granting of the licences to the applicant and
that same are irrelevant for purposes of the granting of the licence
aforesaid.
4.5 Why
the first respondent should not be ordered to pay the costs of this
application?
4.6 Why
the second and third respondents should not be ordered to pay the
costs of this application jointly and severally with the first
respondent, the one to pay the other to be absolved in the event of
the second and third respondents opposing the relief herein sought.
4.7 Further
and/or alternative relief.
The
application is founded on the affidavit of one Gary Muir who related
at great length the facts giving rise to this dispute.
The
respondent, in opposition has filed a notice to raise points in
limine. The applicant further moved an application for condonation
that the applicant's non-compliance with the rule of practice and as
such having omitted to file a certificate of urgency be condoned. The
matter was enrolled before me at 9.30am on the 29th ultimo where I
heard submissions on both the application for condonation and the
points in limine and I reserved judgement to the following day the
30th April 2002. However, on that day I could not deliver judgement
and reasons for such were given in open court. The matter adjourned
to the 7th May 2002 for judgment. Following is my judgment on these
matters.
I
shall proceed to determine first the application for condonation and
then the points in limine.
a) Application
for condonation.
The
applicant prays for an order inter alia that the applicant's
non-compliance with the rule of practice and as such having omitted
to file a certificate of urgency be condoned or that applicant be
granted leave and/or submit a certificate at the hearing
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of
the application. The applicant has filed a supporting affidavit of
his attorney Cecil John Littler who offers an explanation for the
omission at paragraphs 4 and 5 of the said affidavit.
I
have considered the matter and my view is that such an omission is a
technical formality and as such prejudice occasioned to the
respondents is negligible. I agree in toto with the submissions made
by Miss Van Der Walt in this regard and would thus grant the
application for condonation in terms of prayer 2 of the notice of
motion.
b) The
Points in limine.
The
first respondent has raised a number of points of law which may be
capsuled as follows:
1. The
matter is not urgent as much as: a) the notice of motion is not
accompanied by a certificate of urgency as is the practice of this
court; and b) the applicant knew as early as January 2002 that the
first respondent would object to a further extension of the validity
of the liquor licences but did not bring the necessary application to
extend the validity of the said licences. The so called urgency is of
the applicant's own making;
2. The
notice does not comply with Rule 6 (10) of the rules of court as it
does not give the respondents time within which to oppose the
application;
3. The
notice of motion is fatally defective in that one of the objectors
(A.D. Taylor) to applicant being granted the licences in question has
not been cited as a respondent in the application in as much as he
has a direct and substantial interest in the matter;
4. The
court has no jurisdiction to grant liquor licences in as much as that
power is vested in the Liquor Licensing Board of the Hhohho district;
4.2 - interfere with the decisions of the Liquor Licensing Board save
by way of review in terms of Section 12 (1) of Act No.
5
30
of 1964. The applicant should have appealed against the decision of
the Board in terms of Section 11 bis of the Act to the Minister but
failed to do so;
5. The
applicant has failed to make out a case for a mandamus in that;
5.1 The
applicant has not proved that the Liquor Licensing Board failed to
carry out its statutory duties; and
5.2 The
court has no power to direct the Liquor Licensing Board to hear the
application for renewal of the licences in question in as much as the
Board in now functus officio;
6. The
litigation between the parties have gone long enough and it is in the
interest of the public that it should end;
7. The
D.H. Muir Trust has no power to enter into mercantile transactions
such as leasing its property for the purpose of carrying a retail
liquor licences (sic);
8. The
application is Us pendens before this court under Case No. 3550/01,
and;
9. The
third respondent has no locus standi in judicio in as much as there
is no entity called "Liquor Licensing Board Swaziland".
I
thus proceed to deal with the above points of law in seriatum:
1. The
Question of Urgency.
In
view of my finding immediately above granting the application for
condonation point (a) under this head, viz that the notice of motion
is not accompanied by a certificate of urgency falls away and any
further discussion thereto would not be necessary. What remains to be
determined is point 1 (b) being an allegation by the
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first
respondent that the applicant knew as early as January 2002 that the
first respondent would object to a further extension of the validity
of the liquor licences but did not bring the necessary application to
extend the validity of the said licences. The so-called urgency is of
the applicant's own making.
It
would appear to me that there was a lot of correspondence between the
parties who have been engaged in negotiations to find an amicable
conclusion to this matter. This is clear when one reads paragraphs
8.8, 8.8.1, 8.8.2, 8.8.3, 8.8.4, 8.8.5, 8.8.6, 8.9, 8.9.1 and 8.9.2
of the applicant's founding affidavit. These attempts to settle the
matter out of court culminated to a stalemate being reached.
Thereafter it was necessary for the applicant to launch these
proceedings to protect his rights in the matter.
For
the above reasons I find that the applicant has satisfied the court
that the matter is urgent and the point in limine in this regard
ought to fail.
2. Whether
the notice of motion comply with Rule 6 (10) of the rules of the
court
Mr.
Shilubane on behalf of the first respondent contended that the
present application does not comply with Rule 6 (10), as it does not
give the respondents time within which to oppose the application.
Rule
6(10) reads as follows:
"(10) In
such notice the applicant shall appoint an address within five
kilometres of the office of the Registrar at which he will accept
notice and service of all documents in such proceedings, and shall
set forth a day, not less than five days after service thereof on the
respondent, on or before which such respondent is required to notify
the applicant in writing whether he intends to oppose such
application, and shall further state that if no such notification is
given the application will be set down for hearing on a stated day,
not being less than seven days after service on the respondent of the
notice".
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On
the other hand it is argued for the applicant that this application
has been brought as an exparte application within the ambit of Rule 6
(4) of the Rules.
Rule
6 (4) reads as follows:
"(4) Every
application brought ex parte by way of petition or notice of motion
shall, save in matters of urgency, be filed with the Registrar and
set down not later than midday on the court day preceding the day on
which the application is to be heard.
Further,
sub-rule (5) provides as follows:
"(5) If
such application is brought upon notice to the Registrar, it shall
set forth the form of order sought, specify the affidavit or
affidavits filed in support thereof, request him to place the matter
on the roll for hearing, and be as near as may be in accordance with
Form 2 of the first schedule"
It
appears to me that the instant application was brought in terms of
Rule 6 (4) and (5) as outlined above and conforms with Form 2 of the
first schedule.
The
point in limine in this regard thus fails.
3. Non
joinder of a party.
It
is contended on behalf of the first respondent that the notice of
motion is fatally defective in that one of the objectors (A.D.
Taylor) to applicant being granted the licences in question has not
been cited as a respondent in the application in as much as he has a
direct and substantial interest in the matter.
On
reading the affidavit of the applicant and considering the au
contraire arguments advanced by Miss Van Der Walt for the applicant I
come to the conclusion that it was not necessary to cite A.D. Taylor
as the matter before the court is not the one concerning objections
but is for the determination of legal issues as per the directives
made by the Board.
I
rule in this regard that this point in limine ought not to succeed.
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4. Whether
the court has jurisdiction in this matter.
I
shall proceed to determine point 4.1, 4.2, 5, 5.1 and 5.2 at the same
time as they are inter-related. Mr. Shilubane argued at great length
in this connexion that the crux of the matter is that this court has
no power to grant a liquor licence. If there is a body set up by
statute to perform certain acts the court has no power to interfere.
The courts can only intervene either on appeal or on review. This
court has no power to interfere with the decisions of the Liquor
Licensing Board save by way of review in terms of Section 12 (1) of
Act No. 30 of 1964. The applicant should have appealed against the
decision of the Board in terms of Section 11 bis of the Act to the
Minister but has failed to do so.
It
appears to me from reading of the papers before me that Miss Van Der
Walt is correct that the source of the problems in this matter is the
ruling by the Liquor Licensing Board of the 29th November, 2001 which
gives the High Court the power to determine certain issues connected
with the application for liquor licences before it. The determination
of these legal issue became a condition precedent to its hearing the
applications for these licences.
Annexure
"GM3" being a copy of the said order reads in extenso as
follows:
"[a] The
current licences which are by consensus by the applicants and the
first objector and issued on the orders of the High Court cannot be
renewed by the Board, as the conditions attached to their issuance,
that is, the finalisation of the disputes between the first objector
and the applicants had not yet been fulfilled. The applications are
for that reason refused.
[b] The
applicants are advised and directed by the Board to seek assistance
of the High Court, especially to determine:
1. Who
owns the businesses, who should appear before the Board and who
should hold the licences on behalf of the business;
2. In
the meantime, the parties may also approach the High Court as to a
further extension of the consensus licences issued on the authority
of the High Court for the
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year
ending 31st December 2001, while the dispute is being determined by
the High Court;
3. For
the above reasons, the Board sees no wisdom in deciding the question
of postponing the hearing as prayed for by both objectors", (my
emphasis).
The
attorneys for the applicant by letter dated the 26th February, 2002
(annexure "GM4") directed the following to the Board:
"2. We
are given to understand that your honourable self as well as your
Board is not prepared to entertain the legal issues as to the
ownership of the licences and/or any issues emanating therefrom and
have indicated that the matter must be resolved by the High Court.
3. We
have further been informed that you are not prepared to entertain any
new
application
by our clients for the issue of liquor licences until the disputes
existing between our client and Winnie Muir have been resolved by way
of some or other order of the High Court.
On
the 11th March, 2002 the Board answered in a letter marked as
annexure "GM5" as follows:
"Your
paragraphs numbered 2 and 3 correctly reflect the Board's stand on
the matter".
It
is abundantly clear, therefore that this matter has been referred to
this court by the Board for determination and it cannot be said that
the court has usurped the powers of the Board in these matters under
these circumstances. Further on the strength of the dicta in the case
of Airoadex Press (Pty) Ltd vs Chairman, Local Road Transportation
Board, Durban and others 1986 (2) S.A. 663 referred to me by Miss Van
Der Walt I am of the view that the court has power to hear the matter
because of the special circumstances outlined above.
I
find also that points 5.1 and 5.2 has no merit in view of what I have
found immediately above.
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5. That
the litigation between the parties have gone long enough and it is in
the interest of the public that it should end.
It
is not clear how this point is qualified in law as a point in limine
and its relevance in these proceedings. It would only apply, perhaps
when an application for postponement that such considerations would
apply.
For
the above reason the point ought to fail.
6. Whether
the trust has power to enter mercantile transactions.
Mr.
Shilubane contended that the trust being D.H. Muir has no power to
enter into mercantile transactions such as leasing its property for
purposes of carrying liquor licences. In this regard he referred me
to the authority of Meyerowitz on Administration of Estates, (6th ED)
at 23 - 33 where the learned author state that the trustee derives
his power from the trust instrument and he is confined to the powers
granted thereunder. Unless such power is given to him by the
instrument he cannot mortgage estate property, or purchase or sell
property nor ordinary has the power to carry on mercantile
transaction or a business (see Ex parte Bellingan 's Executors 1936
CPD 515 and I A Essack Family Trust vs Soni 1973 (3) S.A. 625 (D)).
He
argued that the will in casu does not confer to the trustee such a
power. The said will at Clause 6 (a) reads as follows:
"It
is my special will and direction that the whole residue of my estate
shall vest in my administrator herein before appointed in trust for
my children as heirs aforesaid and my administrator shall be entitled
to administer my Estate in its sole, absolute and undisturbed
discretion for the benefit of my estate with full powers of
realisation, investment and reinvestment and subject to the
further terms of my will"
It
would appear to me that the will does not restrict the administrator
on what business to undertake on behalf of the estate. It is my view,
that the fact that the estate is deriving an income from the sale of
liquor falls within the ambit of Clause 6 (a) of the said will. The
clear intention of the testator was that the administrator was to
have
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"sole,
absolute and undisturbed discretion" for the benefit of the
estate. It does not limit the powers of the administrator in anyway.
If the trust were precluded from engaging in "mercantile
transactions" how could the trustee carry out his duties by
investing the properties of the estate? The will is clear that the
trustee has full powers of "realisation, investment and
re-investment".
I
hold therefore, in this regard that the point in limine cannot stand
in the face of the above reasoning.
8. Whether
the application is Us pendens.
Mr.
Shilubane argued that this application is lis pendens before the
court under Case No. 3550/01. It was pointed out during the course of
arguments by Miss Van Der Walt that the correct case number in this
case is 3250/01. My view in this regard is that the matter is not lis
pendens, in so far as this application is founded on a different set
of facts which arose subsequent to the other application where new
prayers are being sought.
9. Whether
third respondent has locus standi in judicio.
It
is contended on behalf of the first respondent in this regard that
the third respondent has no locus standi in judicio in as much as
there is no entity called "Liquor Licensing Board Swaziland ".
That the Liquor Licensing Act (supra) clearly spells out the various
boards in the four regions of the country.
Miss
Van Der Walt argued per contra that this is a very technical point. I
agree with these submissions on the basis that is clear who the party
is from the papers. There is correspondence between the parties as I
have already mentioned earlier in the course of this judgment when
reference was made to annexure "GM3" and "GM4".
This is merely a misnomer and such an objection as put forth by the
first respondent is of a purely technical nature and cannot advance
her case in anyway and certainly cannot vitiate the applicant's case.
This
point in limine cannot succeed.
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10. The
Court Order.
In
the result, the following order is recorded:
a) The
application for condonation is granted in terms of prayer 2 of the
notice of motion (in the application for condonation);
b) A
rule nisi to be issued in terms of prayer 2, 3 and 4 of the notice of
motion;
c) The
first, second and third respondent to file their answering affidavits
on or before the 17th May 2002 and thereafter the applicant to file
his replying affidavit on or before the 20th May 2002 and the matter
enrolled in the contested motion of the 24th May 2002.
d) Costs
to be costs in the main application.
S.B.
MAPHALALA
JUDGE
