THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case No: 248/2016

In the matter between:

ANDREAS PANAYIOTOU
APPELLANT

and

SHOPRITE CHECKERS (PTY) LTD
FIRST RESPONDENT
GAUTENG LIQOUR BOARD
SECOND RESPONDENT
CHAIRPERSON,
GAUTENG LIQOUR BOARD
THIRD RESPONDENT

Neutral citation: Panayiotou v Shoprite (248/2016) [2017] ZASCA 12
(17 March 2017)

Coram:
Ponnan, Shongwe, Petse and Zondi JJA and Gorven AJA

Heard:

3 March 2017

Delivered:
17 March 2017

Summary: Refusal to grant liquor licence by Liquor Board : decision reviewed,
set aside and licence granted by high court along with order that Liquor Board
must issue licence after certain requirements met : appeal against review of
refusal : liquor licence subsequently issued : no challenge to issue of licence :
appeal, if successful, could not set aside the issue of the licence : section
16(2)(a) of Superior Courts Act 10 of 2013 : decision sought would have no
practical effect or result : appeal dismissed.

___________________________________________________________________________

ORDER

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Legodi J sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Gorven AJA (Ponnan, Shongwe, Petse and Zondi JJA concurring):
[1] On 7 December 2012, the first respondent (Shoprite) lodged an
application for a liquor store licence. It was lodged with the Gauteng Liquor
Board (the Board) under s 23(1) of the Gauteng Liquor Act 2 of 2003 (the Act).
The proposed liquor store was to be situated in the Rivonia Village shopping
centre. Shoprite had a supermarket in that centre which was licensed to sell
table wine. At the time, there was no other liquor store in that shopping centre.
The appellant (Mr Panayiotou) objected to the issue of the licence. He operated
a liquor store located approximately 150 metres from the proposed new liquor
store in the Mutual Mews shopping centre, across a road known as the Rivonia
Boulevard.

[2] On 14 April 2014, the Board refused the application. In doing so it
referred to the provisions of s 30(2)(c)&(d) and s 30(3) of the Act. It concluded
that the grant of the licence would create barriers to entry and substantially
lessen competition at the Rivonia Village shopping centre. It considered that
there was the possibility of a harmful monopolistic condition arising under
s 30(2)(d) of the Act. It also concluded that the grant of a licence to Shoprite
would have a detrimental effect on the business of Mr Panayiotou. Accordingly,

it was not in the public interest to grant the licence to Shoprite in terms of
s 30(2)(c) of the Act.

[3] Shoprite approached the Gauteng Local Division of the High Court,
Johannesburg (the high court) to review and set aside the decision refusing to
grant the licence application and in its stead for an order directing the Board to
grant the licence application, alternatively for a remittal of the matter to the
Board. Legodi J heard the application. The high court reviewed and set aside the
decision of the Board, granted a licence and directed the Board to issue a notice
in terms of s 35(1) of the Act and, on completion of the premises as
contemplated in s 35(4) of the Act, to issue the licence in accordance with s 37
of the Act. On 19 August 2015, the high court refused an application for leave
to appeal brought by Mr Panayiotou. Neither of the other respondents sought
leave to appeal or took any further steps in the matter.

[4] The Board issued a licence to Shoprite on 28 October 2015. This was
after the expiry of the time period for an application for leave to appeal to this
Court. Shoprite began trading with the licence in November 2015. This
prompted Mr Panayiotou to approach the high court for an interdict. The
interdict application was heard on 10 December 2015 and judgment refusing it
was handed down on 17 December 2015. Shoprite has been trading with that
licence since then. There has been no attempt by Mr Panayiotou to challenge the
issue of that licence.

[5] Mr Panayiotou applied to this Court for leave to appeal the judgment of
Legodi J and for condonation for the late filing of that application. Both
condonation and leave to appeal were granted by this Court on 29 February
2016. It is this appeal which is before us. At the hearing before us, the appeal

was dismissed with costs and it was indicated that reasons would follow in due
course. These are the reasons.

[6] At the commencement of argument, the parties were informed that the
judgment refusing the interdict had come to the attention of this Court that
morning.1 This judgment disclosed that a licence had been issued and that
Shoprite had begun trading. It was confirmed that, after the interdict was
refused, Shoprite continued trading and was still doing so. None of this had
been mentioned in the heads of argument and this Court was unaware of these
facts. It must be said that Shoprite had mentioned the issuing of the licence in its
answering affidavit delivered during February 2016 in opposition to the
application for condonation and for leave to appeal to this Court. This
application did not, of course, form part of the appeal record.

[7] Counsel for Mr Panayiotou was asked whether, in the light of the
subsequent issuing of a licence, the appeal did not fall  to be dismissed in terms
of s 16(2)(a) of the Superior Courts Act 10 of 2013. This section provides:
‘(2) (a)(i) When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this ground
alone.
(ii) Save under exceptional circumstances, the question whether the decision would have no
practical effect or result is to be determined without reference to any consideration of costs.’
The licence was issued pursuant to a fresh administrative act after s 35 of the
Act had been complied with. This administrative act has not been the subject of
any challenge to date. Importantly, nothing done in this appeal can affect the
issuing or validity of that licence. As this Court has held:

1 Panayiotou v Shoprite Checkers (Pty) Ltd & others [2015] ZAGPJHC 292; 2016 (3) SA 110 (GJ).

‘[O]ur law has always recognised that even an unlawful administrative act is capable of
producing legally valid consequences for so long as the unlawful act is not set aside.’2
It was candidly and correctly conceded by counsel for Mr Panayiotou that this
Court could not in this appeal in any way deal with the issuing of the licence. In
the light of this, it was conceded that the outcome of this appeal could not have
any practical effect or result.

[8] It has been repeatedly stated that this provision in the present section and
its predecessor was enacted to avoid overburdening appeal courts with matters
which are of no practical moment.3 If it is determined that the appeal will have
no practical effect or result, a court may nevertheless, in the exercise of its
discretion, deal with the appeal.4 An instance of this would be where ‘a discrete
legal issue of public importance arose that would affect matters in the future and
on which the adjudication of this court was required . . .’.5 In the present matter,
no discrete legal issue of public importance was alluded to and no submissions
were advanced by counsel for Mr Panayiotou in support of the exercise of such
a discretion and I can think of none.

[9] That being the case, the appeal was dismissed with costs in terms of
s 16(2)(a).
The following order is made:
The appeal is dismissed with costs.

________________________
T R Gorven
Acting Judge of Appeal

2 Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA) at 242B-C.
3 Legal Aid South Africa v Magidiwana & others [2014] ZASCA 141; 2015 (2) SA 568 (SCA) paras 2-3; Coin
Security Group (Pty) Ltd v SA National Union for Security Officers & others [2000] ZASCA 48; 2001 (2) SA
872 (SCA) paras 7-8.
4 Centre for Child Law v Hoёrskool Fochville & another [2015] ZASCA 155; 2016 (2) SA 121; [2015] 4 All SA
571 (SCA) para 11.
5 Centre for Child Law para 11.

Appearances
For the Appellant:
L Potter SC (with him S Rose)

Instructed by: Nicole Ross Attorneys, Sandton

Lovius Block, Bloemfontein

For the 1st Respondent: AM Breitenbach SC
Instructed by: Werksmans Attorneys, Tyger Valley
McIntyre Van Der Post, Bloemfontein