After the Yeoville judgment, a way forward

The time has come for by-laws to change to accommodate township trade

By now all shebeen permit holders in Gauteng are aware of the Yeoville judgement and how the judgment affects the status of the shebeen permit and its legal effect.

The Gauteng Liquor Board is currently embarking on a public campaign to report back on the Yeoville judgement and their encouragement to apply for liquor licenses to shebeen permit holders.

The Liquor Board encourages shebeen permit holders to apply for liquor licenses and invite municipalities to come to their public meetings to talk about by-laws. This poses a very big problem in some municipalities, like the Johannesburg Metro municipality, which still uses old by-laws such as the less formal Township Establishment Act No 113 of 1991, usually referred to as Annexure F.

The Liquor Board encourages shebeen permit holders to apply for liquor licenses and invite municipalities to come to their public meetings to talk about by-laws.

It is unacceptable that these laws are still being used despite the fact they are outdated and discriminatory in nature. The same goes for Tshwane Metro and Mogale City. However, other municipalities are progressive and have adopted much more progressive liquor or tavern policies. These municipalities are Ekurhuleni Metropolitan and Emfuleni Metropolitan.

The Gauteng Liquor Board should invite town planning departments of these municipalities to explain to people what by-laws are, how they can apply in order to comply with these laws, and explain different methods of applications for consent use and the rezoning process.

What is of further importance is to correctly understand the role of municipalities in as far as a liquor license is concerned. What is currently happening is that you are unable to successfully apply for a liquor license without the approval of the local authority. Now a proper reading and understanding of section 141(1)(m) of the Gauteng Liquor Act requires a phased-in approach of shebeens, which had previously been unregulated, to be within the regulatory scheme of the Act. Therefore, the Act provides that the MEC may make regulations regarding a phased-in approach where shebeens will be given an opportunity to comply with the Act.

It is important also to understand that as things stand, the major stumbling block as already stated is what is commonly referred to as local authority approval (LAA). It then appears that the role of municipalities in the application of a liquor license is indeed important and significant. Furthermore, section 23(4) of the Gauteng Liquor Board is very clear on the role of a municipality to have  “unequivocal approval”. This is also supported by a high court judgment in Barnard vs Gauteng Liquor Board, where a precedent is set in the judgment where the court had required the GLB not to grant a liquor license without the approval of the municipality.

The judgment also magnifies the role of municipalities in the granting and issuing of liquor licenses. However, the question must be, could an average shebeen permit holder afford to comply with the requirement of these by-laws? This question also raises questions about being given an opportunity to comply. Many municipal by-laws prohibit the sale of liquor in a residentially zoned area. Many shebeens operate from residences.

There is a historical perspective and background of how shebeens were formed and operated, which dates back decades. Traditionally shebeens have always operated from residential homes in townships.  Therefore, even when the Gauteng Liquor Act was drafted, the lawmakers, when referring to shebeens, they referred to liquor traders operating from their homes or places of residence.

Even on the shebeen permit granted by the Liquor Board, the language of the permit is clear. It states that a permit holder “is licensed to sell less than 60 cases consisting of 12x750ml bottles per week UPON PREMISES … situated at … in accordance with the conditions of the Act or any other law authorised to be conducted under the above-mentioned license.”

The permit is clear as to who can sell liquor, where that liquor is supposed to be sold and when that liquor is sold. Furthermore, upon application of the permit, there was no requirement from the applicant to seek first the authority and permission from the municipality in order to run a shebeen.

I further strongly believe that the role of the Liquor Board as per the Constitution is to accept applications, adjudicate on all applications and make a decision on the applications on its own without the approval of the municipality. Proper reading of the functional areas of the competences of all spheres of government under the Constitution shows:

  • Schedule 4 Part B:
  • States that municipal planning is a local government matter to the extent set out in section 155(6)(a) and (7).
  • Schedule 5 Part A: Functional area of exclusive provincial legislative competence
  • Liquor Licences. Amongst other listed functions.
  • Schedule 5 Part B:
  • Control of undertaking that sells liquor to the public is a local government matter to the extent set out for provinces in section 155(6)(a) & (7)

Therefore, seeking local authority approval before a licence is issued may be a violation of the Constitution since only a province is authorised to grant and issue a liquor licence exclusively on its own, in accordance to the dictates of Schedule 5 Part A: Functional area.

Municipalities must only control the undertaking to sell liquor to the public by putting into place control systems and by-laws of the sale of liquor.  

However, this line of reasoning and interpretation of the court is subject to the interpretation of the Constitution.

What the Gauteng Liquor Act requires is that shebeeners, from the standpoint of traders operating from homes, must be given an opportunity to comply with the Act. If the opportunity to comply with the Act lies with municipalities then by-laws must be receptive to shebeeners and not the other way around. Considering that these by-laws are outdated and were meant for a different social and economic climate, there is a need to overhaul the current status of by-laws at least to accommodate the sale of liquor in a residential zone and set in place conditions and compliance control systems on the sale of liquor in residential places.

The current requirements of re-zoning are unaffordable and the process requires an independent town planner. Very few traders can afford the fees of a town planner to re-zone or the successful application of consent use.

The opportunity as envisaged by the Gauteng Liquor Act requires the process to be affordable, fair and accessible to an ordinary liquor trader selling from their homes. As things stand, coming from the studying of the requirements to sell liquor from homes, there is a long way to go as many shebeen permit holders will be excluded from complying with by-laws and such will expose them to the possibility of closing down their operation.

The time has come to change the by-laws and accommodate shebeens and other businesses operating in the township to enable them to operate from homes and be licensed as such.