IN
THE HIGH COURT OF SWAZILAND HELD AT MBABANE
CIV.CASE NO.1648/93
In
the matter between:
ELIAS
MATSEBULA
Applicant
and
LIQUOR
LICENSING BOARD 1st
Respondent
ATTORNEY
GENERAL N.O. 2nd
Respondent
C
O R A M : DUNN J.
FOR
THE APPLICANT : MR P. FLYNN FOR THE RESPONDENTS :
MISS E. DUMA
JUDGMENT
11
February, 1994
This
is an opposed application to review, correct and/or set aside a
decision of the Liquor Licensing Board made on the 1st December 1992
refusing the renewal of the applicant's bottle store liquor licence
for the year 1993.
The
applicant was granted the bottle store liquor licence in respect of
premises situated at Fairview Manzini, during 1990. He had
successfully applied for a renewal of the licence for 1991. When
application for renewal was made for the year 1993 several
organisations objected in terms of the Liquor Licence Act No. 30/1964
(the Act) as amended. The applicant and the objectors were legally
represented before the Liquor Licencing Board on the 23rd November,
1992 when comprehensive submissions were made on the merits of the
application. The submissions according to the record, centred on —
2/....
:
2 :
1.
The question of the location of the bottle store within a
residential area and its close proximity to a primary and high
school;
2.
The unsatisfactory management and control of the liquor outlet
evidenced by -
(a)
the consumption of liquor immediately outside the licenced premises;
(b)
the sale of liquor on Sundays in violation of the conditions of the
licence;
(c)
the sale of liquor to persons below the age of 18 years in
contravention of the liquor licences Act.
The
Board reserved its ruling until the 1st December 1992 when it
delivered its decision refusing the application. The following is
recorded as the order given by the Board -
"Some
members of the Board have since the hearing of this application
visited the applicant's premises on different occasions and confirmed
that-
1.
Liquor is served by, inter alia, children to other children in the
(Bottle store. 27/11/92 - Formal Inspection by the Board.
2.
Liquor is sold on Sunday from the Bottle Store. 29/11/92 -
Informal inspection by the Board Members.
This
application for renewal is accordingly refused and applicant may
proceed in terms of section 19 of the Liquor Licences Act 1964."
3/....
:
3 :
The
"confirmation" by the Board was as to matters which were
raised during the hearing. The applicant was not in a position,
during the hearing, to deny the allegation that liquor was sold from
his bottle store on Sundays.
The
applicant noted an appeal against the Board's Decision, to the
responsible Minister (Home Affairs). The appeal was dismissed by the
Minister on the 18th May 1993 in the following terms -
"Having
carefully considered your appeal I have come to the conclusion that
the Board correctly handled and decided your application and that
your appeal is therefore dismissed on the same reasons given by the
Board."
The
question of the appeal and its dismissal was not disclosed by the
applicant in launching the present application. The grounds on which
the appeal was based have not been disclosed in this application
either. The matter only came to light when the representative of the
respondents sought to argue, in limine, the point that the applicant
should have applied for the review of the Minister's decision. I was
referred to the case of LAWSON V. CAPE TOWN MUNICIPALITY 1982 (4) SA
1. as authority for the fact that the noting of the appeal did not
preclude the applicant from seeking a review of the Board's decision
on the grounds set out in the application. I do not, with respect,
find it necesesary for purposes of deciding the present application
to deal with the effect of that particular decision.
The
applicant's chief complaints on which he seeks the setting aside of
the Board's decision are that -
4/....
:
4 :
1.
There was no evidence to support the Board's finding that liquor
was sold by "children to other children in the bottle store."
2.
The inspections referred to in the Board's decision were carried
out after the hearing and that he was not given the opportunity of
addressing the Board on its findings in the course of the
inspections.
3.
No evidence was led by the objectors to substantiate the
submissions made by their legal representative and to enable the
applicant to rebut the allegations made.
4.
One of the members of the Board acted irregularly in
participating in the hearing as he had openly aligned himself with
one of the objectors and declared his intention to have the bottle
store closed down.
I
was addressed at some length on each of these complaints at the
hearing. The difficulty I have with these alleged irregularities by
the Board is that not a single one of them was raised by the
applicant or his legal representative at the commencement of the
hearing before the Board. I am excluding at this stage the issue of
the inspections by the Board members. The applicant had been provided
with copies of the grounds on which the various objections were
based, in accordance with the requirements of Section 15 of the act.
The letters of objection were specific and to the point. If the
applicant was in any doubt or deemed it necessary to question the
basis for the individual grounds of objection the necessary
application should have been made to the Board before the conclusion
of
/the
hearing...
5/....
:
5 :
the
hearing. The applicant clearly consented, in my view, to the
procedure which was adopted for the hearing of the application and
cannot now be heard to complain that such procedure denied him the
opportunity of rebutting the allegations made by the objectors and of
fully presenting his case. The question of the inspections by the
Board was relevant to matters which were raised at the hearing and
which the applicant was unable to deny. The first of these was that
of the sale of liquor of Sundays in contravention of the Act. The
second was that of the sale of liquor by the applicant's children to
other children. It is quite clear that the Board did not clarify the
question of the reference to the applicant's "children".
The applicant stated that he referred to his employees at his
"children". The point in issue, however, was the sale of
liquor to children which the Board found as a matter of fact.
In
so far as the allegation that one of the Board members irregularly in
participating acted in the hearing is concerned I am of the view that
this was a matter which ought to have been raised by the applicant.
It is common cause that members of Board such as the Liquor Licensing
Board may be drawn from a cross section of the community and may hold
differing views and represent different interests on a wide range of
moral and social issues. Some may, in the case the Liquor Licencing
3oard, have been appointed to represent temperance interests. The
question of the recusal of such a member from a hearing of the Board
would have to be properly raised and decided before the Board. The
applicant has given no explanation as to why he failed, armed as he
now states he was with evidence of blatant bias on the part of the
particular Board member, to move for the recusal of the member from
the hearing.
5/....
:
6 :
I
can find no justifiable grounds for interfering with the proceedings
and decision of the 1st respondent in respect of the application to
renew the applicant's Bottle Store Liquor Licence.
The
application for review is dismissed with costs.
B.
DUNN
JUDGE
