In 2019, the owner of the Springbok Pub applied for a liquor license. His application was for trading as a pub both indoors at 42 Lower Main Rd, and outdoors in the back courtyard. OCA, along with local residents, lodged an objections against the application. The objections were focused specifically on the application to trade in the back open air courtyard and did not oppose the application to trade as a bar on the Lower Main Rd street. On 20 Nov 2019, the Western Cape Liquor Tribunal heard the objections but concluded that “on balance of probabilities that the requirements of the Act for the granting of licenses had been complied with.” The set some conditions which purported to mitigate the noise disturbance but there was no attempt to verify whether such conditions actually would achieve the intended mitigation.
The Tribunal came to this decision ignoring the evidence presented by neighbours of the intrusiveness of having 30 to 50 persons having a social function just over your wall and 7 braai spots against your back wall; of the opposition of the SAPS District Liquor Officer; of the recommendation of the Ward Committee that the license should only be given to the indoor trade and the courtyard trade should not be supported; a research study from the Institution of Criminology showing the high number of liquor outlets already in Observatory.
The OCA and residents appealed the decision. The appeal hearing was meant to be heard earlier in 2020 but was delayed by COVID-19 restrictions and only took place on the 5th November 2020. While the appeal was pending, the applicant was permitted to use the courtyard – which is a function of how the Liquor Licensing regulations have been written. For most other public decisions, the applicant cannot proceed until an appeal is concluded. Not so for Liquor Licenses.
The Appeal hearing was very different to the Tribunal. At the Tribunal, the applicant’s lawyer was able to cross-examine objectors as if it were a court of law, which it is not. Being cross-examined by a hostile lawyer can be a disheartening experience, when all you are doing is fulfilling your civic duty to participate. Those who attended the Tribunal can confirm how the Tribunal was stacked in favour of the applicant. We are told by those who are researchers in the Alcohol Harm Reduction field that the Liquor Licensing regulations were rewritten at the last minutes by lawyers who service liquor license applicants so it is not surprising the regulations benefit applicants by creating a quasi-judicial environment where the applicant has benefit of cross-examining the objectors, but the objectors do not enjoy the same capacity to cross-examine the applicant should they wish.
In contrast, the Appeal hearing was very different. It was chaired by a retired judge. The applicant (David Harris) was represented by Edward Booth and the OCA was represented by Chair and Deputy Chair, while Carolyn Neville attended as an appellant who also represented other neighbours.
The judge invited us each to make statements, then allowed Booth to respond, then quizzed the advocate from the Liquor Authority.
We were also able to show some visual evidence of the impacts and of non-compliance with the conditions of the license.
My impression was that he was quite alert to the fact that neither a double wall built outdoors nor a stretch tent could be serve as soundproofing.
He also did not let the WCLA advocate off the hook for having accepted such suggestions as evidence.
He reserved ‘judgement’ in the matter, but I am positive he will revoke that part of the license.
What struck me most about the process is that the Liquor Tribunal secretary, who is an Advocate, was willing to believe that all the proposed measures proposed by the applicant could be effective as conditions when granting the license without ever asking for any evidence (e.g. that a stretch tent can mitigate noise). In other words, he accepted what the applicant said at face value, but ignored what the objectors said. For example, prejudice to members of a ‘religious institution’ is one of the criteria for not giving a license. We pointed out in our objections that the nearest ‘religious institution’ was the Buddhist Meditation Centre within 50 of the proposed rather than the nearest Church 450 from the bar – but this fact was simply ignored. The Western Cape Liquor Act is clear that the default decision must be to NOT grant a license unless it satisfied that “the granting of a license does not prejudice the congregants of a religious institution located in the vicinity…”
It was as if he was only too happy to be given nonsense measures (unimplementable, unenforceable, ineffective) that he could use to approve the license. This sounds rather familiar to us in other decision-making processes in the City.
The difficulty of ordinary people gaining access to justice in challenging a liquor license is extraordinary. I understand that the Western Cape Liquor Act is to be revised, in line with the Western Cape Alcohol Harms Reduction Policy and that regulations under the new Act will need to be revised. We hope this process will change the set up at the WCLA to remove the unfair advantage written into the regulations that benefits liquor license applicants and their lawyers, and which disadvantages ordinary citizens from exercising their democratic rights.