Application can be made via the services rendered by attorneys specialising in liquor.

There are attorneys available that specialise in liquor at reasonable tariffs and/or fees. Contact us. 

Generally, the most important document to start the process is a South African identification document, and the right to occupy the proposed property in respect of which application is made.

Last mentioned requirement differs from province to province. For example, in the Free State the provision of proof of the right to occupy the proposed premises (i.e. such as a titled deed or appropriate lease agreement) in respect of which application is made is not a requirement, whilst it is in the Western Cape, where this requirement is explicitly mentioned in legislation.

There are basically two types of retail liquor licences/registrations, i.e. on-consumption, where liquor is consumed at the premises where the liquor is sold (this includes licences/registrations such as restaurants, taverns and accommodation establishments), and off-consumption, where liquor is consumed at a place other than the premises where the liquor is sold, such as liquor stores and grocers’ shops.

In for example the Free State the different registration certificates are as follows:

 

On-consumption:

 

• Accommodation establishment
• Restaurant registration certificate
• Club registration certificate.
• Tavern registration certificate
• Night Club registration certificate
• Gambling registration certificate
• Special event registration certificate

 

Off-consumption:

• Liquor Store registration certificate
• Grocer’s Wine registration certificate
• Micro-Manufacturer of liquor registration certificate
• Sale of methylated spirits registration certificate
• Micro-Manufacturer of methylated spirits registration certificate
• Special events registration certificate

 

What is of importance to note from the above is that a special event registration certificate may be granted in respect of both on- and off consumption sales.

Liquor may be sold from the licenced/registered premises in accordance with the applicable statutes and regulations.

It must be remembered that a liquor licence/registration attaches to the person and the relevant property. Therefore, it may for instance not be used if one intends selling during a specified event like those held at schools, churches or wedding functions.

In these cases, if the property is not registered to sell liquor, one must apply for an appropriate special event registration/occasional permit; the process thereof which differs from province to province.

In terms of a manufacturing registration the registered person may sell the manufactured product to retailers and distributors.

In terms of a distribution registration certificate, liquor may be distributed (across provincial borders) to retailers and other distributors. Liquor may not be sold to persons/entities for consumption, as this authority is provided solely to retailers.

It is important to note that a sale of liquor, which would in normal circumstances constitute a retail (for consumption) sale, does not constitute distribution merely because the buyer of that liquor happens to be a registered person in terms of the Liquor Act 59 of 2003. It speaks for itself therefore that retailers may not sell liquor to other retailers, for example, a liquor store cannot sell liquor to a restaurant, the restaurant must buy stock from either a manufacturer and/or distributor or a micro manufacturer.

Liquor sold in terms of an on-consumption licence/registration, for example a restaurant or tavern, may only be consumed at the licenced premises and may not be consumed at any other premises or venue, and vice versa for an off-consumption licence/registration, where liquor may not be consumed on or at the registered premises.

Generally, retailers are licenced/registered to sell all kinds of liquor. Therefore, off-consumption outlets like liquor stores may sell all kinds of liquor, i.e. beer, cider, whiskey, brandy, gin etc. Grocery stores who possess a grocer’s wine licence may however only sell wine as defined in the Liquor Products Act, 1989 (Note: this differs from province to province, the Gauteng Liquor Act for instance pertinently states that only table wine may be sold).

 

Micro-manufacturers may sell the manufactured product. On-consumption premises like restaurants, taverns and hotels may also sell all kinds of liquors to accompany the meals taken.

According to Section 59(2) of the Free State Gambling, Liquor and Tourism Act the holder of a liquor store registration certificate must ensure liquor is sold in receptacles which are properly and securely sealed. Furthermore, the Liquor Products Act and the regulations promulgated in 2007 prohibits sales of liquor which are not contained in a “self-supporting” container. A self-supporting container is defined as a container which holds its form, whether filled or not, and therefore containers like “spout pouches” and “papsakke” are excluded as it does not hold its form.

If businesses intend selling liquor in receptacles which are not self-supporting, like “papsakke” and “spout pouches” for off-consumption, the receptacle’s capacity may not exceed 5 litres. Furthermore, it must be contained in self-supporting, non-exchangeable packaging which wholly conceals the receptacle, like those found with Nederburg wines (the so-called “bag-in-a-box”). It must also be accompanied by a sealable tap which can be utilised together with the box.

t is important to note that on-consumption liquor sales in the form of “papsakke” and “spout pouches” may still be made, but only if it is installed in sealed dispensers.

The relevant portion of the regulations in the Free State which deal with the appointment of managers in respect of a registered outlet(s) reads as follows:

61. Appointment of natural person as manager.—(1) A person other than a natural person who is the holder of a registration, and a natural person who is a holder of a registration and who does not manage the business himself from day to day must appoint a natural person to manage and be responsible for the business and submit information regarding that appointment, substantially in the form of Form FSLA23 in Schedule 1 and must—…

(3) The manager contemplated in subregulation (1) may also include an intended new owner of the business pending a decision of the Authority relating to the transfer of registration.

From a reading of the above regulations the following follows logically:

a) When the registrant is a juridical person a manager must be appointed to ensure that someone is responsible.

b) From the above it further follows that if the registrant is a natural person and manages the business from day to day that there is no need for someone else to be appointed as a manager, but if he or she does not however manage the business from day to day a responsible person being a manager in respect of the business must be appointed.

c) Not every person present on the premises needs to be appointed as a manager(es) i.e. for example, persons operating the cash register and cleaning personnel; this would lead to an absurdity.

d) It also follows from the above that a prospective holder of a registration may appoint him or herself as a manager, pending the transfer of the registration into his or her name.

e) A manager does not need to be present on the premises at all times as there is nothing in the Act to this effect. The Act only states and requires that a manager must be appointed in respect of the business and nothing else. If an inspector therefore issues a fine in respect thereof, it can be fought for lack of legal grounding.

The above is applicable for on-consumption and off-consumption premises.

In Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR (the “Liquor Bill case”) at paragraph 56 the Constitutional Court said the following about a liquor licence:

„ …a liquor licence is the permission that a competent authority gives to someone to do something with regard to liquor that would otherwise be unlawful. The activity in question, as emerges from the judgment of Innes J, is usually the sale of liquor at specified premises. It also seems to me that the term “liquor licences” in its natural signification encompasses not only the grant or refusal of the permission concerned, but also the power to impose conditions pertinent to that permission, as well as the collection of revenue that might arise from or be attached to its grant.”

 

Justice Froneman, writing for the majority in the Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs And Tourism, Eastern Cape and Others 2015 (6) SA 125 (CC) case, on the question of whether a liquor licence constitutes property, observed at paragraph 58 that: “A liquor licence is thus an entitlement to do business that would otherwise have been unlawful. The competence to do this kind of business originates from state approval and its continuance is dependent on state powers of amendment, cancellation and regulation.” On the issue of whether a liquor licence constituted property, Moseneke DCJ stated the following at paragraph 122: “A licence is a bare permission to do something that would otherwise be unlawful. It is normally issued to overcome a statutory prohibition. Further, licences are subject to administrative withdrawal and change. They are never absolute, often conditional and frequently time-bound. They are never there for the taking, but instead are subject to specified pre-conditions.” This is borne out by the view expressed in Crowley v Christensen 137 U.S. 86 (1890) where it is stated at paragraph 91 that: “There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States.”

An interesting point of liquor is that only a registered person may sell liquor. It is an entitlement- a specific grant granted to individuals who made application and are permitted to sell a depressant drug and therefore, as can be deduced from the above, these individuals are subjected to much scrutiny. For instance the old 1989 act had a provision that a person applying must be a fit and proper person to be the holder of a licence which onus of proof was on the applicant, although recent provincial acts have tended to relax this requirement and do not contain it. Instead, for instance, the Free State Gambling, Liquor and Tourism Act contains certain criteria which an individual must match and certain trite disqualifications like age barriers and convictions in terms of the Act.

Yes, a licence/registration may be transferred from person to person (the concept being inclusive of both natural and legal persons) and may be removed from premises to premises (with the proviso that said premises must be situated in the same municipality as the premises from which it is removed.

A liquor licence/registration does qualify as property and therefore as an asset in one’s estate with monetary value, as was found in the Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs And Tourism, Eastern Cape and Others 2015 (6) SA 125 (CC) case, where Justice Froneman observed as follows: “A liquor licence is thus an entitlement to do business that would otherwise have been unlawful. The competence to do this kind of business originates from state approval and its continuance is dependent on state powers of amendment, cancellation and regulation.” Moseneke DCJ stated the following at paragraph 122: “A licence is a bare permission to do something that would otherwise be unlawful. It is normally issued to overcome a statutory prohibition. Further, licences are subject to administrative withdrawal and change. They are never absolute, often conditional and frequently time-bound. They are never there for the taking, but instead are subject to specified pre-conditions.” This is borne out by the view expressed in Crowley v Christensen 137 U.S. 86 (1890) where it is stated at paragraph 91 that: “There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States.”

Yes, only a South African citizen may apply for a liquor licence/registration.

Yes, one needs to be of majority age in order to apply for a liquor licence/registration

Licences/registrations in all provinces must be renewed on an annual basis (in the Western Cape one may opt to renew one’s licence on a bi-annual basis). National distribution and/or manufacturing registrations must also be renewed on an annual basis.

If one does not adhere to the conditions attached to a licence/registration and/or contravenes the stipulations of the relevant liquor legislation, one’s licence may be revoked or suspended by the relevant liquor authority.

In terms of the Free State Gambling, Liquor and Tourism Act, and as confirmed by case law, a person who wishes to apply for a liquor registration does not have to provide proof thereof that he or she has a right to occupy the proposed premises.

However, as mentioned above, a liquor licence/registration attaches to a specific premises and person, and no application will be entertained without there being a suitable premise, as is also the case in respect of a national registration.

A “curious” exception to the above may be found in the Free State, where use is made of the so-called “piggy back” procedure in respect of special event applications. In terms of this procedure existing registrations are utilised to apply for a special event registration at another specified venue for a specified time, whilst trading may still commence at the registered venue.

This makes the process easier, the reason being that if the Free State Liquor Authority was obligated to ascertain during every application whether the applicant is a suitable person to carry on trade in liquor, it would place an unduly heavy burden on the administration.

In terms of the procedure, only the suitability of the premises and the bona fides of the event needs to be ascertained, making for a much simplified and streamlined process. A word of warning though, this is not the case in all provinces.

Yes, the following different liquor statutes are applicable:

– The Western Cape – Western Cape Liquor Act, 2008

– The Eastern Cape – Eastern Cape Liquor Act

– The Northern Cape – Northern Cape Liquor Act

– The Free State – Free State Gambling, Liquor and Tourism Act

– Northwest and Limpopo – Liquor Act 27 of 1989

– Mpumalanga – Mpumalanga Liquor Licencing Act, 2006

– Kwazulu-Natal – Kwazulu-Natal Liquor Licencing Act, 2010

– Gauteng – Gauteng Liquor Act, Act 2 of 2003

– Nationally – Liquor Act, Act 59 of 2003

Yes, for example in the Free State. In the Western Cape and Kwazulu-Natal, application must be made from anew.

A micro-manufacturer may sell liquor only to entities or persons intending to resell the liquor, in other words retailers and distributors.

In terms of the Liquor Act, Act 27 of 1989 (still in operation in Northwest and Limpopo) a micro manufacturer may, when application is made, apply for permission to sell his products directly to the public.

This is important to take note of because if this exception is not granted, micro may not sell the manufactured products for consumption at or off the premises, including for tasting purposes; older liquor legislation used to make provision for tasting licences, but this provision is absent in modern-day liquor legislation. Therefore, when application is made for a micro-manufacturing registration, application must also be made for a tavern registration (to enable tasting) and a liquor store registration (to enable the micro manufacturer to sell the manufactured liquor directly to the public).

The question whether or not a micro manufacturer of liquor may sell its product directly to the public also has another important implication, as some micro-manufacturers might be of the belief that they may sell their products at fairs, which is not the case. Application for a special event registration must be made in order to do so.

In the Free State It is trite that in order to assist inspectors and to show compliance with the Act, that the registration certificate and any subsequently issued authorities’, including the renewal certificate, must be displayed at or on a conspicuous place on the registered premises. This includes the following:

a) The originally issued registration certificate or a duplicate thereof- as well as proof of payment of the prescribed fees. Usually laminated and certified copies of the mentioned documents are displayed, and this is also the recommended course to take.

b) Any variation of the registration conditions, or leniencies, which were granted in respect of the registration, for instance extended trading hours if applicable.

c) Any structural alteration certificates and procuring of a controlling interest over the registrant certificates, if applicable.

d) The most recent transfer certificate, or laminated and certified copies thereof, if the original is not available – as well as proof of payment of the prescribed transfer fees, if applicable.

e) The most recent removal certificate, or laminated and certified copies thereof, if the original is not available – as well as proof of payment of the prescribed removal fees, if applicable.

f) The most recent renewal certificate as well as proof of payment of the renewal fee, or laminated and certified copies thereof, if the original is not available.

In terms of Section 23(2) of the Free State Gambling, Liquor and Tourism Act a registrant may store liquor only on the registered premises. It also speaks for itself that liquor may also only be consumed and sold on/from the registered premises, except in the case of a special event registration.

No, in terms of the Eastern Cape Liquor Act only liquor stores are permitted. The holders of grocer’s wine licence were afforded an opportunity to convert their existing grocer’s wine licences to liquor store licences after the commencement of the above act, which provision were confirmed to be constitutional.

The Liquor Products Act and the regulations thereof promulgated in 2007 prohibits sales of liquor which are not contained in a “self-supporting” container. A self-supporting container is defined as a container which holds its form, whether it be filled or not, and therefore containers like “spout pouches” and “papsakke” are excluded as it does not hold its form.

If businesses intend selling liquor in receptacles which are not self-supporting, like “papsakke” and “spout pouches” for off-consumption use, the receptacle’s capacity may not exceed 5 litres. Furthermore, it must be contained in self-supporting, non-exchangeable packaging which completely conceals the receptacle, like those found with Nederburg wines (the so-called “bag-in-a-box”). It must also be accompanied by a sealable tap which can be utilised together with the box.

Generally, there is a myriad of different applications which can be made to suit client needs, but the following types of applications (in the Free State) are generally made:

• New applications
• Transfer applications (when a business is for example sold or leased)
• Removal applications (when the business moves to another premises in terms of a new rental agreement or property acquisition)
• Appointment of managers
• Controlling interest (when a person/entity acquires an interest in a specific part of the business, like control of the bar section, or when there is a change in the composition of the shareholders in the owner company)
• Structural alterations (when alterations are made to the registered premises). Sometimes the business world necessitates that applications be lodged simultaneously, for example when a liquor concern is bought and removed to another address (transfer and removal) or when an existing venue which comprises a restaurant and gambling/bar section are separated (a new application and structural alteration; or a transfer and controlling interest i.e. the registration is transferred from one entity to another, but the previous holder obtains a controlling interest in part of the business which it henceforth operates for its own profit – This happens when for example a business is transferred from one entity to another, with the new holder running the bar section and the previous holder running the restaurant section)