Fish Hoek is no longer a “dry” town. The chairman of the Liquor Appeal Tribunal found that the Liquor Licensing Tribunal (LLT) had “failed to apply its mind fully” to Pick n Pay’s original liquor application by accepting unsubstantiated testimony and the LLT is now obliged to issue the licence within 14 days.
This followed a notice of appeal by Pick n Pay in August, questioning the decision by the LLT, saying it erred by turning down an application to open a bottle store in The Arcade (“Dry or wet debate,” Echo, August 16).
Fish Hoek civic organisations who have lobbied for Fish Hoek to stay a “dry town” were furious on Thursday December 5 after Judge Deon Van Zyl set aside the LLT’s June decision.
This year marked 200 years of the area being “dry” due to the historic 1818 title deed restriction, which prohibits the sale of liquor there (“Fish Hoek’s dry town status explored,” Echo, November 30, 2017).
Opposing parties relied heavily on the objections of 250 people and the historic title deed, which reads: “Onder deze expresse conditis dat hij aldar geen tapneering zal mogen drijven” which translates to: “on condition not to keep a public wine-house”, to keep Fish Hoek dry.
However, at the hearing of appeal on October 11, Pick n Pay’s defence submitted documents detailing the interpretation of the title deed.
Judge Van Zyl found, taken in context to the time the title deed had been written, that the word “tapneering” had been derived from the concept of “wijn tappen” meaning to serve wine from a tap, or “wijn tapperij” or “kroeg” such as a bar.
“In English that would, in my view, normally mean a bar or pub,” the judgement read.
This means that the original title deed stipulated that there shall be no public bar or pub.
In a report submitted by the designated liquor officer, Warrant Officer, Peter Middelton, he indicated that there are currently nine licensed premises in Fish Hoek of which one is a hotel, six are for restaurants and two are for bars where food can be ordered. Both bars are situated on the Main Road.
Judge Van Zyl found that the 250 objections received, formed a small percentage of the residential population of Fish Hoek which is 11 890 according to the 2011 census.
In his decision, Judge Van Zyl took into consideration that, according to Pick n Pay, 40% of customers making use of the store on a daily basis commute from surrounding areas such as Ocean View and Masiphumelele.
He said Fish Hoek seemed to be a popular tourist destination, attracting many visitors on a daily basis and found that it will be in the interest of the greater public and not just residents of Fish Hoek to have a liquor store.
He also rejected a submission made by Fish Hoek resident, Helen O’Regan on the Governor-General’s Proclamation 219 of September 1958 that Fish Hoek would be a restricted area in terms of the Liquor Act 30 of 1928 and said it merely meant that the grant of a liquor licence was subject to the supervisory power of the government.
Judge Van Zyl said the Appeals Tribunal introduced new evidence in the form of the Western Cape Government’s Alcohol-Related Harms Reduction Policy White Paper, published by the Department of the Premier, in which alcohol is identified as the fifth leading risk factor for death or disability in South Africa.
He found that the white paper was not before the LLT when it made its decision to refuse Pick * Pay’s original application dated January 2017 and that it was irrelevant for the purpose of considering the appeal as the principles contained in the White Paper were different from existing legislation and would only be applicable if the Act were to be amended to reflect the new principles.
He found no evidence that a small liquor store in The Arcade would decrease property values and increase crime. There was no evidence that the elderly and school children visiting The Arcade would be affected since the liquor store would be no different from those located in other centres in the province. There was also no evidence to indicate that the liquor store would affect churches, institutions for the aged and frail and drug rehabilitation centres located nearby.
He found that traffic would not increase as the same trucks currently servicing Pick n Pay would service the liquor store and would only carry more stock.
His conclusion was that thewae is a real need for a liquor store in Fish Hoek and it could not be anticipated that the character or ethos of the town would be affected by it.
However, opposition groups strongly disagreed with the outcome of the judgement.
Donald Moore from Dry Fish Hoek said it was a “disaster” for Fish Hoek and it would encourage other outlets to now apply for liquor licences.
He said little could be done about the judgement unless the Fish Hoek community lodged an appeal against the decision in the High Court. However, he said, it would be a very costly matter and as PnP had an unending budget to fight such matters and it would be futile for the Fish Hoek community to attempt it.
The Fish Hoek Valley Ratepayers’ and Residents’ Association (FHVRRA) said it was disappointed with the ruling despite 250 objections showing there was no support for a liquor store. Chairman of the association said they now expected a plethora of bottle store applications as the precedent had now been set.
“The town had lost its uniqueness,” he said.
Catherine Melgarejo, co-owner of Grace Hair Design and Nails in The Arcade, where the liquor store will open, said they would be relocating the salon but did not know where to as their leasing agent agreed to find them a suitable location .
She said they were notified in 2016 of Pick n Pay’s intention to apply for a liquor licence and she attended the hearing in October in the hopes of getting answers.
“We were kept in the dark throughout the entire process,” she said.
She said her main frustration was not being able to grow her business as no changes could be made to the salon until an outcome had been reached.
Alison Darby-Marais of Wet Fish Hoek said the hearing in October dealt with issues needing clarification such as legal misconceptions, errors of law and fact.
She said Judge Van Zyl’s breadth of legal knowledge, erudition and humour stood out to the extent that, whatever his final decision was to be, the judgement would be handed down in total fairness and it could have gone either way.
She encouraged Fish Hoek residents to read the judgement in order to fully understand the issues at the heart of this long process and why the licence was awarded.
Fish Hoek resident, Leigh Palmer said hopefully the decision would be a catalyst to bring Fish Hoek into the “modern era”. “Hopefully this signals the beginning of the end of the old guard, under whose watch Fish Hoek main road has deteriorated into an economic dead zone and a crime infested site.
New, young and fresh leadership and direction is needed to ensure Fish Hoek becomes a competitive town where the money flows in and the town is rejuvenated,” he said.
Pick * Pay declined to comment.
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