CIVIL
APPEAL NO. 2/89
IN
THE COURT OF APPEAL OF SWAZILAND HELD AT MBABANE
THE
MINISTER FOR WORKS AND COMMUNICATIONS Appellant
and
SWAZI
AIR CHARTER LIMITED Respondent
Coram:
WELSH, J.A.
SCHREINER,
J.A.
LEON,
J.A.
For
appellant: Mr J. M. Dlamini
For
respondent: Mr E. Zar
Date
of hearing: 10th October, 1989.
Date
of Judgment: 11th October, 1989.
JUDGMENT
WELSH,
J.A.
On
11th October, 1989, this Court made the following order in relation
to this appeal:-
1.
The
appeal is struck off the Roll.
2.1...
2
2.
The
appeal may not be reinstated without leave of this Court on good
cause shown.
3.
The
appellant is ordered to pay the costs of the respondent.
The
matter had been heard on 10th October, 1989; and in the course of the
judgment which I delivered on 11th October, 1989, I indicated briefly
the reasons for the making of that order. I delivered that judgment
orally in open Court; and it should have been accurately recorded
and transcribed. This, unfortunately, did not occur. I do not know
whether the mishap occurred in the process of electronic recording or
in the process of transcription; but the transcript which was
presented to me for "revision" was so defective as to be
incapable of revision in any ordinary sense. It is not the function
of members of this Court to re-write inadequate transcripts of
judgments which are orally delivered in open Court; and the course
which I propose to take in this matter should not be regarded as a
precedent. The Registrar has informed me that the parties are anxious
to have an authentic written record of the Court's reasons for the
order which was made on 11th October, 1989; and having consulted the
Judge President, I am prepared to re-state those reasons.
3
On
22nd September, 1988, the Air Transport Licensing Authority (which
was the second respondent in the Court below) granted to Swazi Air
Charter Limited (the respondent in this appeal) a licence to operate
a non-scheduled air service for the transport of passengers from
Swaziland to Saudi Arabia and India. This licence was expressed to be
valid from 22nd September, 1988, to 21st September, 1989.
Two
months after the grant of this licence, on 2 3rd November, 1988, the
Air Transport Licensing Authority, on the instructions or
directions of the Minister for Works and Communications (who was
the first respondent in the Court below and is the present
appellant), purported to revoke the licence.
On
25th November, 1988, the present respondent made an urgent
application to the High Court, citing the Minister as the first
respondent, the Air Transport Licensing Authority as the second
respondent and the Attorney-General as the third respondent, for a
rule nisi calling upon them to show cause why the revocation of the
licence by the Air Transport Licensing Authority should not be set
aside, why the "directive" issued by the Minister to the
Air Transport Licensing Authority should not be set aside, why the
order issued by the Air Transport Licensing Authority to the
applicant to surrender its licence should not be set aside, and why
the proceedings of the Air Transport
4
Licensing
Authority should not be reviewed and corrected or set aside. The
applicant also sought an order directing all the respondents jointly
and severally to pay the costs. The rule nisi was granted. The
Minister filed an answering affidavit dated 30th November, 1988. The
applicant filed a replying affidavit dated 1st December, 1988. The
matter came before the learned Chief Justice on 6th December, 1988.
On that day, he delivered a judgment which was substantially in
favour of the applicant. He set aside the revocation of the
applicant's licence by the Air Transport Licensing Authority and also
the order of that Authority requiring the applicant to surrender its
licence and also, in effect, the proceedings of that Authority. He
did not confirm that part of the rule nisi which called upon the
respondents to show cause why the "directive" issued by the
Minister to the Air Transport Licensing Authority should not be set
aside: on the contrary, he said that "I do not ... consider that
a case has been made out to warrant the setting aside of the
direction given by the Minister". He ordered the Air Transport
Licensing Authority (not the Minister) to pay the costs of the
application.
There
is one further matter which should be mentioned in connection with
the proceedings in the Court below. The Minister contended, in his
answering affidavit, that the applicant's licence had been invalidly
granted, because the applicant "has its registered office as the
offices
5
"of
Attorneys with which the Chairman of the 2nd Respondent is
professionally associated" and the Chairman of the second
respondent, who presided over the proceedings of the application for
the grant of the applicant's licence, "is a business associate
of the counsel who represented the Applicant in the proceedings of
the application for the licence". The learned Chief Justice
heard argument on this question and said in his judgment that he
could "find no merit in" the Minister's contentions.
Against
this judgment, only the Minister appealed. The Air Transport
Licensing Authority did not appeal, even though the Court below had
made an order for costs against it and not against the Minister. The
Minister's appeal was set down for hearing during the first session
of this Court which commenced on 28th March, 1989. The Minister's
Heads of Argument were filed and served on 20th March, 1989. That was
not in accordance with the Rules of this Court, and as a result the
parties agreed that the appeal should be postponed. We were informed
from the Bar that there was some discussion between the parties as to
whether a special session of this Court should be arranged to hear
this appeal, since it was known that the next ordinary session of
this Court would be in October.
Reference
was made by counsel for the respondent in this appeal to certain
correspondence which appears to indicate that the parties agreed to
an early appeal by the Minister if the Minister
6
was
prepared to meet the cost of convening a special session of this
Court. In the result, however, no request was made for a special
session of this Court and the appeal was set down for hearing on 10th
October, 1989.
By
that time, the expiry date of the licence (21st September, 1989) had
passed. The question therefore arose whether any good practical
purpose could be served by this Court hearing argument as to whether
the grant of the licence on 22nd September, 1988, was valid and, if
so, whether the purported revocation of the licence on 23rd November,
1988, was valid. There was not even any question of costs which might
be used as a peg on which to try to hang an argument on the merits of
the appeal, since the Court below had made no order for costs against
the Minister. Counsel for the Minister suggested that an application
might be made for leave to join the Air Transport Licensing Authority
(against which the Court below did make an order for costs) as a
party to this appeal. All I need say about that at this stage is that
it is unlikely that this Court would grant leave to a party, who
has not noted an appeal, to appeal late merely on a question of
costs. Then there was some talk about the possibility that the
present respondent might bring an action for damages against the
Minister or the Air Transport Licensing Authority or some other State
authority, in which event the validity of the grant of the licence
and of its
7
purported
revocation might be in issue. As far as the Minister is concerned,
the Court below did not confirm that part of the rule nisi in which
it was sought to set aside the direction given by him to the Air
Transport Licensing Authority: and the other possibilities mentioned
seem to be somewhat remote, especially in view of the short time
which elapsed between the purported revocation of the licence
and the granting and confirmation of the rule nisi by the Court
below. I do not, however, propose to say anything more about this
aspect of the matter, except that it was because these possibilities
had been mentioned that we did not dismiss the appeal but merely
ordered that it be struck off the Roll, with costs, and that it may
not be reinstated without the leave of this Court on good cause
shown.
SCHREINER,
J.A.: I
agree
LEON,
J.A.: I
agree
