AFTER losing a battle that ended in the Supreme Court, the Kouga municipality will have no leg to stand on to enforce a bylaw for liquor trading hours this holiday season.
Any claim would be stillborn, said Judge Thomas Cloete in the South African Supreme Court of Appeal last week.
This judgment effectively leaves the Kouga without a bylaw regulating hours of trading in liquor.
The bylaw, prohibiting the sale of alcohol after midnight during the week and after 10 pm on Sundays, was published in the Provincial Gazette on December 27 2006.
Judge Cloete found municipal officials failed to properly advertise the law as required by legislation. And to add insult to injury, the already cash-strapped municipality was ordered to pay the legal fees of the respondents, a group of Jeffreys Bay businessmen.
The legal saga started in December 2006 when the municipality implemented the bylaw regulating liquor trading hours. Certain business establishments in Jeffreys Bay, however, ignored the bylaw and continued trading as before. Mark Bellingan, co-owner of Sovereigns Sports Bar and other businessmen in Jeffreys Bay were accused by the municipality for contravening the bylaw. However, they decided to challenge the municipality and brought civil proceedings against the municipality contending that the bylaw was invalid because it had not been properly advertised and public participation was not possible. The Grahamstown High Court upheld their contention.
The municipality however, refused to accept the decision and lodged an appeal in the Supreme Court of Appeal. Judge Cloete said “A declaratory order in favour of the applicants (Bellingan and others) would render all prosecutions stillborn and leave the inhabitants of the municipality without a bylaw regulating hours of trading in liquor. But this result follows from the failure by the council of the municipality to pass the bylaw in accordance with the empowering legislation.”
Cloete remarked the Municipal Act required publication in a manner that allowed the public an opportunity to make representations. Members of the public who did not attend the meetings might have failed to do so or might have failed to make representations in another way precisely because they were unaware of the provisions of the proposed amended bylaw. He also ordered the municipality to pay the applicants’ costs.
Mfundo Sobele, communications officer of the municipality said “We will be studying the judgment carefully and put this before council for a way forward.”
Acting on behalf of Bellingan, Jeffreys Bay lawyer Johan Muller says they are satisfied with the findings of the court.
“I am personally disappointed that the municipality chose the route of conflict, which ultimately, is funded by the taxpayers of the Kouga.”
He added this gave liquor traders the opportunity to prove to the authorities that the sale of liquor can be done responsibly even if there was no law regulating selling hours.
The decision against the Kouga local municipality is another blow for the already cash-strapped institution. This is but one of many legal battles they have lost recently and for which they will have to fork out hundreds of thousands, if not millions, in legal fees.
Communications officer Mfundo Sobele downplayed the legal costs.
“While we are still putting together the total costs of our legal representatives, the amount is nowhere near a million,” he said
In a separate case in August this year, the municipality also lost an appeal against Jeffreys Bay property developer Frans van Eeden in the Constitutional Court.
The court also instructed the municipality to pay Van Eeden’s legal costs. Van Eeden estimates the legal fees alone will amount to nearly R1.2-million.