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  • Ruan Vd Merwe

Decision confirming principle of “creature of statute”.

Updated: Aug 23


Decision confirming principle of “creature of statute” and that the staff of an administrative decisionmaker cannot refuse to accept documents tendered for lodgement.

The principle of "creature of statute" is such a fundamental principle of law that one can almost not think there would be any ignorance, much fewer questions about it. Unfortunately, this is not so.


A creature of statute is a decision-making functionary created by law, and its powers and duties emanate from and are limited to the provisions of its enabling legislation.


A good example is the Magistrate's Court. It was created by the Magistrates Court Act, Act 32 of 1944, as amended from time to time, and its powers and duties are squarely limited within the four corners of the provisions of the said legislation.


Likewise, each of the Liquor Boards or Authorities functioning in the Republic of South Africa were created by an Act of Parliament or Provincial Parliament. Each of them is confined to the functions and duties contained in the applicable empowering legislation. They cannot exercise or usurp any powers not contained in such empowering legislation.


It would seem as if organs of state either are ignorant of this principle or ignore it. Examples of this are, and this is not exhaustive the following:


In considering applications for micro-manufacturing licences or registrations, it seems that all the Liquor Boards or authorities functioning in terms of the various elements of liquor legislation requires of an applicant to submit as part of such application or as a condition for the approval or ultimate approval of such application, proof from the Department of Agriculture, Forestries and Fisheries in terms of the Liquor Products Act, 60 of 1989, certificates of approval of the products to be micro manufactured, or at least certificates of "potability" from a laboratory.


None of the elements of liquor legislation requires this so that such a requirement is simply ultra vires and such a condition imposed as a prerequisite for issuing a licence is reviewable.


The Mpumalanga Liquor Board requires submission of police clearance certificates and/or reports for the consideration of liquor licence applications but there is no such requirement in the Mpumalanga Liquor Licensing Act, 5 of 2006.


Likewise, any requirement imposed by the Gauteng Liquor Board in respect of zoning or municipal consent, a so-called LAA, is ultra vires except in the case of an application for a licence for a liquor store, a pub, a tavern, a nightclub, and a pool parlour, see section23(4) of the Gauteng Liquor Act, 2 of 2003. Se in this regard also the decision of Prinsloo J in the matter of Franken and others v Gauteng Liquor Board, case number 68466/2017, Pretoria High Court.


The Gauteng Liquor Board requires lodgement of police clearance and certified identity documents in the case of an appointment in terms of section 40. This is not required by the Gauteng Liquor Act, supra, and accordingly ultra vires. See in this regard the decision of Hlap J in the matter of Modderfontein Breweries (Pty) Ltd and Pick n Pay (Pty) Ltd v Gauteng Liquor Board, case number 48915/12of the Pretoria High Court.


In the application by Agrella Six General Dealer CC for a liquor store licence, the GLB refused the application because it was not satisfied with the work permit of the member of the applicant. The applicable liquor legislation does not require the GLB to consider the issue of a work permit. On review, the said decision was reviewed and set aside by Hughes, J under case number 80134/2015 of the Pretoria High Court.


The decisions mentioned above clearly confirmed the creature of statute principle, and any requirement by any liquor board for something that is not prescribed is null and void.


There is an insidious tendency on the part of liquor boards and/or authorities, but also other administrative decision-makers, to require what is not prescribed, or even against what is prescribed, such as in the case of the Gauteng Liquor Board, which requires payment of an initiation fee before the licence will be issued, while the legislation clearly requires the licence to be issued and for the applicant than to make payment of the initiation fee to validate the new licence. Unfortunately, this is not only ultra vires, but it also was found to be so in several decisions of the High Court, inter alia Pick n Pay (Pty) Ltd v Gauteng Liquor Board (the Blue Hills Decision), case number 56038/2015, making the requirement, if imposed, contempt of court. Notwithstanding this decision, the Gauteng Liquor Board still applies its own invented process for the payment of initiation fees, in contempt of the findings of the High Court and the said principle of creature of statute.


In deciding the issue of the lack of effort of our government to apply the warrant for the arrest of the International Criminal Tribunal issued against President Bashir, the learned judge expressed the view that such conduct is gnawing at the rock face of our democracy and will ultimately cause the demise of it. This is precisely what the result of the arrogant ignoring of the creature of statute principle, as supported by various High Court decisions, will result in if not vigorously opposed in law and such opposing not being fully supported by our courts.


An administrative decision-maker is just that, nothing more. It is not the legislator or maker of regulations within the ambit of the empowering regulating provision of law.


The National Liquor Authority, constituted in terms of the Liquor Act, 59 of 2003, most likely holds the trophy for ignoring the principle of a creature of statute. Not only have they devised a so-called online process – which is not provided for in the empowering legislation – but the "system, which has no room for any discretion, requires documents and information which are not prescribed. It inhibits access to information in that one cannot access matters already registered or in the process of registration unless you are registered for access to the so-called "dashboard". Nowhere in the relevant legislation or regulations can any of this be found. On the other hand, the said NLA does not comply with its obligations in terms of the empowering legislation, such as to issue NLA32 renewal notices timeously to remind "Registrants" to renew their registrations. Still, it is only issued together with the renewal by way of an NLA33 at the end of the renewal process, if at all. In terms of the empowering legislation, it is supposed to hold a register, accessible for all, with prescribed information regarding all liquor licences and/or registrations in the Republic. There is a register, but it is only in respect of registrations in terms of the Liquor Act, 59 of 2003, and not any of the other elements of registration. The provisions of the regulations to Act 59 of 2003 in respect of trading hours clearly prohibit Sunday trading, but according to the website of the NLA, trading on Sundays are allowed, based on a liquor policy document of 13 February 2015, which document does not constitute legislation and is not acknowledged anywhere in the applicable Acts or Regulations, neither in any authoritative compilation service specializing in the updating of legislation.


Suppose one has reference to section 6(2) of the Promotion of Administrative Justice Act, 3 of 2000. In that case, it is quite clear that all the conduct complained of above, are grounds for review of decisions. It simply highlights the chasm between the perceived nature of our Constitution as a yardstick and the reality of it being an ignored showpiece when it comes to administrative decision-making.

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