It is inconceivable that trading in liquor can constitute “a right,” let alone “a basic right,” as opposed to an indulgence given to a person by a public authority, a judge said in turning down an urgent application by 48 businesses who wanted the court to intervene as they are awaiting their licences.
About 48 businesses, which include food outlets, a hotel and some restaurants turned to the Gauteng High Court, Pretoria, as they have been waiting for months for the Gauteng Provincial Liquor Board to issue them with liquor trading licences.
They said the fact that the board is dragging its heels is costing them money. They wanted the court to either order the board to grant them these licenses or for permission to trade pending the issuing of the licences.
Counsel for all the outlets argued that it is their constitutional right to trade in liquor.
The applicants, all commercial enterprises applied for liquor licences from the board at different dates – some applied last year and other this year.
The applicants brought the application “in order to be able to trade in liquor, which is a basic right...” They said that they “… planned their affairs in accordance with the reasonable time laps expectation inherent in the provisions of the empowering legislation and that the respondent was frustrating their rights in terms of the Constitution.
They argued that establishing a new liquor licensed business entails entering into a lease agreement before any steps in respect of the application can be taken. Thus, they argued, they had to pay rent while awaiting the outcome of their liquor licence applications.
The application is said to concern protection of constitutional rights of a citizen in terms of section 33 of the Constitution.
The applicants say the court can grant them interim relief, authorising them to trade in their relevant businesses as if their licences as applied for were granted and issued until their applications were in fact finalised.
They said the board earlier indicated that the application process should not take more than three months if there were no objections to the applications.
The applicants contend that as a licence is “a right”, not a privilege, to which each of them is entitled, the court should step in and assist them.
They argued that they planned their new ventures against the timelines advised by the board as to when an application will be determined from the date of submission.
According to them the board’s failure to determine the applications has caused them and their staff financial harm. This because of them having to pay rent while waiting, they also had to pay salaries and for the refurbishment of premises where alcohol is to be sold.
The liquor board pointed out that there is to be an inspection in respect of some applications, which has not yet been concluded.
It also said the issuing of a licence is not a simple given, as they have to consider various factors before granting or refusing an application. These include the proximity of the premises to a school or a church.
Judge Omphemetse Mooki, in refusing the application, said that the court is not suited to grant the relief sought. She said the board had to do onsite inspections and examine relevant documentation before deciding on whether or not to grant a licence. Thus, the court cannot make a ruling if it does not have all this information at hand.
“The court cannot step into the shoes of the respondent (the board), she said.
Pretoria News