IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Case No. 01/2013
In the matter between
THE CHAIRMAN OF THE LIQUOR
LICENSING BOARD Appellant
and
JOSHUA B. MKHONTA Respondent
Neutral citation: The Chairman of the Liquor Licensing Board v Joshua B. Mkhonta (01/2013) [2013] SZSC 42
(31 May 2013)
Coram: DR. TWUM JA, MCB MAPHALALA JA and ODOKI JA.
Heard: 20 May 2013
Delivered: 31 May 2013
Summary: Administrative law, Liquor Licences Board, application for renewal of licence – applicant complaints Board is foot-dragging for oblique motives; application to High Court for review, Board not seen to be impartial adjudicator; application granted; High Court orders Board to renew Licence without delay; appeal against High Court decision dismissed with costs.
JUDGMENT
DR. TWUM J.A.
Introduction
This is an appeal lodged by the appellant against the judgment of Hlophe J, sitting at the High Court, Mbabane, given on 18th December 2012. He ordered that the first appellant should renew the respondent’s Liquor Licence without delay.
The facts:
[1] The respondent, Joshua B. Mkhonta, carried on business in the liquor trade in Manzini. He had carried on this business for the past 6 years in the same premises. He was obliged by law to have a “Bottle Store Liquor Licence” in order to carry on that business. A liquor licence issued to an operator lasts for one year. It commences on the 1st of January of that year and expires on 31st December.
[2] The respondent’s liquor licence was about to expire on 31st December 2012 and he applied to the first appellant for its renewal.
[3] The application was accompanied by:
(i) Report issued by the Police pursuant to section 17 of the Liquor Licences Act. No. 30/1964 (as amended) signed by a Superintendent of Police.
This report recommended that the renewal be given.
(ii) A Health Clearance Certificate issued by the Municipal Council of Manzini and signed by the Chief Health Inspector. It too recommended a renewal of the respondent’s licence.
[4] When the renewal application came to be heard it was postponed. The respondent took the view that it was postponed by the appellant for all the wrong reasons. He applied to the High Court for appropriate relief.
[5] In his Notice of Motion filed in the High Court, the respondent alleged in his Founding Affidavit that on 30th October 2012 while on the appellant’s premises to conduct some business unconnected with the renewal of his licence, he was given a copy of an objection filed against his application for renewal of his licence by the landlord of the premises in which he conducted his bottle store business. He said he filed a comprehensive answer to the objection.
[6] The respondent further stated that there was an ongoing litigation between the objector and himself over the lease of the premises in which his business was conducted. The objector was seeking his eviction in court from the premises but that case had not been decided by the court.
[7] At the hearing of his renewal application by the Board, the objector did not turn up. Apart from the Chairman, other members of the Board present did not even have copies of the said objection, let alone, his own reply to it.
[8] The meeting of 13th November 2012 was hastily postponed by the appellant to 5th December, 2012 for the following reasons which the respondent considered to be prejudicial to his business interests, namely:-
(a) The appellant advised him to seek an order of the court directing the Board to renew the licence pending the finalization of the eviction case then pending in court. (see page 27 of record)
(b) The appellant told the respondent that the Board would request a new police report to be provided for its consideration.
(c) The respondent was requested by the appellant to produce a copy of the Lease to his business premises at the adjourned date for the Board’s perusal.
[9] A cursory reading of the record of proceedings shows that the appellant refused to file any affidavit of merits challenging the facts set forth in the respondent’s Founding Affidavit, notwithstanding the promptings of the trial judge. The appellant maintained that the Board was willing to “stand or fall” by the legal points they had raised, in limine.
[10] The trial judge considered and overruled all the legal points the appellant raised in limine. He also considered the merits, obviously on the unchallenged facts provided by the respondent and made an order that the appellant should renew the respondent’s licence without any delay.
Appeal
[11] The appellant was aggrieved and dissatisfied with the judgment and appealed to this Court.
Grounds of appeal
[12] “1. The Court a quo erred in law and in fact in granting an order sought by a Notice of Motion when in law an applicant may apply for a review of proceedings of a Board by a Petition. Section 12(1) of the Liquor Licences Act 1964.
2. The Court a quo erred in fact and in law and/or misdirected itself in holding that there were fundamental irregularities entitling the court to review and correct the decision of the appellant. The court a quo disregarded the prerogatives of the Chairman postponing the matter to the 5th December 2012 and manages the proceedings of the Board.
3. The court a quo erred in fact and in law in finding that there was a decision of the Board when the Board was still to hear and determine all the issues relating to the matter on a date that this matter and many others were postponed to be heard.
4. The Court a quo erred in fact and in law in granting an order directing the Chairman to forthwith issue Respondent with a liquor licence, thus the court a quo erred in fact and in law in not making an order that a rehearing be convened in accordance with the directions of the court and thus undermined and usurped the powers of the Board.
5. The court a quo erred in fact and in law in finding that all facts in the matter have been placed before court entitling the court to order that applicant be issued with a license without examining the application to see if it is supported by all the documents as required by the Act.”
[13] On 18th March 2013 the appellant filed their Heads of Argument. A week later the respondent filed his. The gravamen of the appellant’s case in this Court was summed up pithily under the rubric “Background” in their Heads of Argument, thus :-
The appeal was against “the decision of the High Court in reviewing and setting aside the decision of the first appellant and further by over-stepping its powers by ordering that the respondent be granted a Liquor Licence.”
[14] I have carefully considered the points in limine raised by the appellant. In my view the trial judge was right in dismissing them.
[15] The appellant made two main submissions; one procedural, the other, touching and concerning the High Court’s jurisdiction to entertain the respondent’s Notice of Motion.
In respect of the procedure used by the respondent to invoke the High Court’s jurisdiction, the appellant submitted that the application ought to have been by petition not Notice of Motion. It must be pointed straightaway that this objection was not raised in the court a quo. It is prima facie inappropriate for this Court to consider it now, subject to what I will say about that ground, anon!
[16] Administrative bodies are set up with special powers to take action or decide disputes which may affect the rights of subjects or their obligations. One object of setting up this special machinery is to avoid the forms of legal process which may frustrate the efforts of the uninitiated citizen to obtain appropriate redress. In my view, the word “petition” as used in the Liquor Licences Act is not a term of art. It must be given its ordinary dictionary meaning; that is to say, a document asking a public official to take a particular course of action. In a more general sense, a petition may even mean a written document signed by a large number of people asking somebody in a position of authority to do or change something.
[17] The verb “to petition” generally, means to make a formal request to somebody in authority. I am convinced that the word “petition” in the opening words of section 12 (1) of the Liquor Licences Act, that is :-
(1) “on the petition of an applicant” …is not being used in a legal technical sense.
(2) The second reason for my view that the word “petition” was not used in a legal sense is that there is no procedure in the High Court Rules prescribed for the use of a “petition”. No form is provided for “a petition”. This lacuna could not have been intended if section 12 (1) had contemplated a technical legal “petition”.
(3) Assuming without admitting it that I were wrong in my understanding of the word “petition”, as used in the Act, I hold the view that modem notions of justice are such that nobody has a vested right in procedure and that, as far as possible, a court of law should aim at doing substantial justice to the parties litigant, untrammelled by technical rules of procedure. This point was echoed by the learned trial judge in different words. I therefore uphold the Motion proceedings used by the respondent. The appellant’s objection is dismissed as unmeritorious.
[18] For completeness, I wish to add that where section 11 bis of the Act provides that an applicant or objector aggrieved by a Board’s decision may “appeal” to the Minister, the word “appeal” in that context is also not being used in the technical lawyers’ conception of filing an appeal to a superior court. In other words, it is not being used as a term of art. In its ordinary meaning, the word “appeal” may mean a request to somebody in authority for a decision to be changed. In its technical meaning, “appeal” is a statutory rule which permits a party to legal proceedings who has lost in the court below to go to a higher court for a re-hearing of his case. Clearly, the Minister exercises quasi-judicial functions in this respect which means he does not operate as a court of law. A challenge to the Board’s decision cannot be by the filing of a Notice of Appeal to the Minister. In my view, a simple letter headed “Appeal” addressed to the Minister will suffice.
[19] The appellant raised the argument that the High Court ought not to have heard the respondent since it had no review jurisdiction over the decisions of the Board. It was submitted that whatever review jurisdiction there was, was vested exclusively in the Minister under section 11 bis. It was further submitted that the decision of the Minister was final and conclusive and could not be quashed by any court.
With all respect to the appellants’ attorneys, this argument is overbroad and clearly misconceived. Section 11 bis contains an ouster clause but unless a resort to the Constitution is excluded by express words in the Constitution itself, the ouster clause may be over-ridden by any provision in the Constitution which permits an appeal or a review or may grant any other relief to a party aggrieved by a breach of his fundamental human right. This is because any other law inconsistent with the Constitution is to the extent of the inconsistency, void.
[20] This leads me to my next argument. The provisions of section 11 bis of the Act when considered in close juxtaposition with section 33 (1) of the Constitution (the Supreme law of the Kingdom) leaves me in no doubt whatsoever, that the Minister, being an administrative authority must act according to the standards of performance required of him by the enabling statute or the Constitution. His decision may obviously be reviewed if those standards of performance are breached.
I wish to stress, however, that the respondent’s grievance was outside the matters upon which an “appeal must” be made to the Minister. The respondent’s grievance was that the Chairman was actuated by bad faith during the Board’s hearing on 13th November 2012. In particular, the respondent complained that at that meeting he was not treated fairly and justly by the Chairman. In those circumstances, on the available evidence (which the appellants failed or refused to controvert) the respondent claimed he was entitled to the protection of the Constitution; the alleged exclusive powers of the Minister, notwithstanding.
[21] So what matters stand out as unfair treatment to the respondent:-
1. The Chairman clearly abdicated his discretion in favour of the High Court by advising the respondent to seek an order of the court directing the Board to renew his licence pending the finalization of the eviction proceedings. It is not clear why the Chairman did that. That delegation was improper. The eviction proceedings were irrelevant to the matter of renewal of the respondent’s liquor licence. This was a clear example of an administrative authority taking into consideration irrelevant matters.
(2) The Chairman’s determination to procure a new police report as against the favourable one already provided for the respondent was a case of acting upon improper motives. The Chairman should not be concerned with the provision of a second police report.
(3) The ultimate unfair treatment was the demand of the Chairman that the respondent should provide a copy of the Lease of the business premises which the objector had gone to court to have terminated. In my view, that was mala fide of the deepest dye. The Chairman turned the Board into a landlord and tenant tribunal. The respondent was justifiably aggrieved. As he pointed out in his Heads of Argument, apart from the Chairman, no other member of the Board who attended the meeting of 13th November 2012, even had copies of the objector’s so-called objection as well as his own comprehensive answer thereto. In my view, the meeting was a farce. It was not intended to conduct the business for which it was convened. It was a mere pantomine. Otherwise, the material before the Board that day was sufficient for a decision on the respondent’s application for the renewal of his licence. As matters turned out the person who filed the objection did not attend the meeting. There was therefore nothing controversial on the agenda. The applicant did not request an adjournment. As an impartial adjudicator, there was no valid reason for the adjournment by the Chairman. As Lord Hewant C.J. stated inR v Sussex justices ex p. McCarthy 1924 1KB 256 at 259: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
[22] Administrative Law is essentially concerned with the control of abuse or excess of public power. Public authorities should not overlook this potential pitfall. They should not regard themselves as potentates because whatever ouster clauses may have been inserted in the instruments setting them up, there is always a residuum of legal procedure which never ought to be forgotten. In this Kingdom, section 33 (1) of the Constitution is a bastion of human rights protection. It insists on two segments of control – impartial adjudicators and the principle of fair hearing which also includes the duty of procedural fairness.
[23] In this case, the Board operated in a public sphere and exercised immense powers which might affect the mode of people earning their livelihood. The High Court in particular, is obliged therefore to be astute in ensuring that all forms of bias, delay, arbitrariness, etc are controlled and appropriate relief given. Admnistrative bodies must always remember Lord Hewait’s aphorism in the case of Rv Sussex Justices ex p. McCarthy (supra)
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
They should therefore not stultify the discretionary powers conferred on them by considering irrelevant matters and leaving out of their consideration, relevant matters. Finally, they should not delegate their powers to others. The maxim is “delegatus non potest delegare”
[24] The learned High Court Judge rightly upheld the respondent’s application. He was justified in ordering the Board in these circumstances to renew the respondent’s licence without further delay. The appeal is accordingly dismissed with costs to the respondent.
_____________________
DR. SETH TWUM
JUSTICE OF APPEAL
I agree.
____________________
M.C.B. MAPHALALA JUSTICE OF APPEAL
I also agree.
____________________
B.J. ODOKI
JUSTICE OF APPEAL
COUNSEL:
For Appellant : Mr Vusi Kunene
For Respondent : Mr.S.C.Dlamini
