SELEBI-PHIKWE TOWN COUNCIL v THE ATTORNEY-GENERAL AND ANOTHER 2004 (2) BLR 453 (HC)

Citation 2004 (2) BLR 453 (HC)

Court High Court, Francistown

Case No Misca No F294 of 2000

Judge Marumo J

Judgment August 24, 2004

CounselS Seisa for the applicant.

M Lubinda for the first respondent.

T Joina for the second respondent.

Annotations None

[zFNz]Flynote

Administrative law - Licensing - Appeal against refusal of licence by local authority - On appeal to
Minister applicant C given period in which to rectify defects - Defects not rectified but licence issued by
Minister - Nature of Minister's powers - Trade and Liquor Act (Cap 43:02), s 57; Public Health
Regulations (Cap 63:01) (Sub Leg).

[zHNz]Headnote

The second respondent was the owner of a restaurant business within the area of jurisdiction of the
applicant D local authority. After an inspection of the second respondent's premises under the Public
Health Regulations (Cap 63:01) (Sub Leg) by the applicant's health inspector, the applicant insisted on
rectification of a number of serious deficiencies. The second respondent was then given a 21 day
reprieve to get the defects remedied. Subsequent visits showed that the defect had not been remedied
and the applicant's licensing committee rejected the application for public health reasons. The second
respondent then wrote to the first respondent on E 28 June 1999 alleging various acts of impropriety
by the applicant. The first respondent responded to the letter by giving the second respondent 14 days
from 26 August 1999 to correct the defects. Inspections were then carried out by the applicant and the
first respondent's representative and further defects were found. On 22 February 2000 the first
respondent granted the licence in terms of s 65 of the Trade and Liquor Act (Cap 43:02). The F
applicant applied for an order setting aside this decision by the first respondent.
Held: (1) The Minister's involvement in licensing matters was by virtue of s 57 (formerly s 65) of the
Trade and Liquor Act and was purely of an appellate nature.

(2) As the purported appeal was made on 28 June 1999 (before the decision of 22 July 1999) the first
respondent G accordingly had no jurisdiction.

(3) In any event even if there was a proper appeal before the first respondent, the second respondent
had been directed to correct the defects by 8 September 1999. As the defect had not been corrected by
that date the first respondent's decision dismissing the appeal became final after 8 September 1999. The
application accordingly had to be upheld. H

[zCIz]Case Information

Cases referred to:

Thompson, trading as Maharaj & Sons v Chief Constable, Durban 1965 (4) SA 662 (D)

Tsogang Investments (Pty) Ltd t/a Tsogang Supermarket v Phoenix Investments (Pty) Ltd t/a Spar [1989]
BLR 512

2004 (2) BLR p454

APPLICATION for an order to set aside a decision of the Minister of Trade and Industry. The facts are
sufficiently A stated in the judgment.

S Seisa for the applicant.

M Lubinda for the first respondent.

T Joina for the second respondent. B

[zJDz]Judgment

MARUMO J:

The present applicant is a local authority duly established in terms of the Townships Act (Cap 40:02) and
the Declaration of Townships Order HCN 27 of 1960. It is charged, inter alia, with the issuing of trading
licences in the area comprising the town of Selebi-Phikwe. The first respondent, the Attorney-General of
the Republic of Botswana, is joined in these proceedings in his representative capacity on behalf of the
then Minister of C Commerce and Industry (now known as the Minister of Trade and Industry, and
referred to hereafter in this judgment as the Minister). The second respondent is a trader with
commercial interests in Selebi-Phikwe.

The applicant seeks an order reviewing and setting aside a decision by the Minister made on 22 March
2000 D directing it to issue a restaurant liquor trading licence to the second respondent. It argues, on a
number of grounds, that such decision on the part of the Minister is null and void. The genesis of the
dispute is set out hereunder.

At the material time the second respondent was the holder of general dealer, fresh produce and
restaurant liquor licences issued to it by the applicant in terms of the Trade and Liquor Act (Cap 43:02).
The licences had a E validity period of 12 months and were as such renewable at annual intervals.

In March 1999 the second respondent made an application to the applicant for the renewal of its
restaurant liquor licence for the year 1999. In compliance with the Public Health Regulations (Cap 63:01)
(Sub Leg) the applicant instructed its Health Inspection Department to inspect the premises out of which
the business was conducted. F On 22 April 1999 the health inspector issued a report detailing his
findings. It makes for shocking reading. It was found, inter alia, that the premises and its surroundings
required thorough cleaning, the walls needed repainting, broken window panes required replacement,
dirty water and food left-overs had to be properly disposed of, and that utensils and appliances were
not to the requisite standard of cleanliness. The report also sets out details of G unauthorized
alterations to the building structure, the removal of the ceiling in one of the rooms, the malfunction of
the hand basin in one of the toilets and the need for the replacement of the cover to the septic tank. As
if all these were not bad enough, faecal matter was found in the passage leading to one of the toilets. H

Not surprisingly the applicant insisted on a rectification of the afore detailed situation prior to issuance
of a trading licence.

It would appear that the second respondent made representations to the applicant after the health
report of 22 April 1999. That has to be so because on 29 April 1999 the applicant's town clerk wrote to
it, inter alia, in the following terms:

2004 (2) BLR p455

MARUMO J

'Kindly be informed that after a lengthy discussion and a visit to your Ko Gae Liquor Restaurant
on the 26/4/99, the Trade A and Liquor Licensing Committee resolved to give you a temporary licence
for 21 working days running from 26/4/99 to 25/5/99 to have complied with all requirements as stated
on a letter Ref EH/R/9 dated 22nd April 1999 with regards inspection of Ko Gae Liquor Restaurant for
licence renewal.'

Further inspections were carried out on the premises of the second respondent on 16 and 23 June 1999.
It B turned out that not only had some of the defects previously pointed out remained unattended,
new ones had also emerged. The application was finally tabled before a meeting of the applicant's
licensing committee on 22 July 1999. The resolution of the committee was, not entirely unexpectedly,
that the application be rejected for public health reasons. C
In the meantime (and prior to the resolution of 22 July 1999) the second respondent wrote to the
Minister on 28 June 1999. It is a lengthy 10 page letter in which it alleges various acts of impropriety
against the applicant. It is this letter that is referred to by the respondents as an appeal to the Minister
in terms of the then s 65 (now s 57) of the Trade and Liquor Act. I shall return to that aspect of the
dispute presently. It would seem though, that upon D receipt of the second respondent's letter the
Minister, through the Director of Commerce and Consumer Affairs, sought the applicant's views on the
matter. His letter to the applicant enclosing the second respondent's letter and calling for information
and documents on the issues raised is dated 29 July 1999. According to the first respondent the
applicant responded on the same day by forwarding to the Minister a copy of a report prepared by E
the applicant's senior attorney for the chairman of the licensing committee. The report sets out a long
history of the disregard of bye-laws and public health regulations by the second respondent.

The Minister responded to the second respondent's letter by way of a letter addressed to it (the second
F respondent) and copied to the applicant, dated 26 August 1999. Much turns on this letter and I
reproduce the salient parts of it hereunder:

'Reference is made to your submission on the above matter dated 28 June 1999.

Please be informed that the Honourable Minister's ruling on your appeal is that, you are given
fourteen (14) days beginning G 26 August 1999 within which to correct the defects on the premises as
indicated by the health report dated 23 June 1999.

Failure to correct the defects within the prescribed period will mean that the Selebi-Phikwe
Local Licensing Authority's decision will be upheld, and therefore closure of the business. H

Yours faithfully

K Otsheleng

For/Director.'

In an apparent effort to verify compliance or otherwise with the directions of the Minister the premises
were again inspected on 9 September 1999. The

2004 (2) BLR p456

MARUMO J

inspection was carried out by officers of the applicant accompanied by representatives of the Ministry of
A Commerce and Industry. The report prepared by an officer of the applicant following the inspection
starts off by stating that the purpose of the inspection was 'to verify if conditions at Ko Gae Liquor
Restaurant had improved to the extent that the premises could qualify for renewal of a trading licence'.
That is not entirely correct. The inspection could only have been carried out specifically to ascertain
whether or not the Minister's directions had B been complied with. I will say more on this aspect of the
dispute shortly.

The report then proceeds to state:

'It was noticed that while the premises still had a lot to be desired [sic], a notable effort had
been made to attend to some defects which were specifically tabled out in our former report. (My
emphasis) C

On the basis of this development we consider it appropriate to recommend the renewal of his
trading licence.

It however remains obligatory that the licensee should continue to upgrade the premises and
improve the conditions therein. For that purpose he specifically needs to carry out the following
improvements within the next three months.' D

It then goes on to list the corrective measures called for.

Notwithstanding the clear terms of the Minister's decision of 26 August 1999 officials from his Ministry
would seem to have kept the matter alive subsequent to September 1999. In a savingram dated 12
November 1999 an E official of the applicant makes reference to a discussion between an official of the
Ministry and the applicant's town clerk which apparently took place on 11 November 1999. In the
savingram the applicant again sets out its case for refusing the second respondent's licence renewal
application. It also makes the point that the 26 August 1999 directive of the Minister had never been
complied with. F

The next item of correspondence of significance is a letter dated 18 February 2000 addressed by the
second respondent to the Director of Consumer Affairs in the Ministry. At that point the second
respondent was apparently having difficulties renewing its general dealer and fresh produce licences
and the letter was in regard to that particular problem. The letter itself specifically made the point that
the then ongoing dispute between the applicant and the second respondent regarding the restaurant
liquor licence had nothing to do with the other two G licences.

The Minister's response to the 18 February 2000 letter is what triggered this dispute. The response is
dated 22 March 2000 and is addressed to the second respondent and copied to the applicant as well as
the station commander, Selibe-Phikwe police. It reads thus: H

'RENEWAL OF LICENCE FOR VISAGIE ENTERPRISES (PTY) LTD - KO GAE LIQUOR RESTAURANT

I write following your letter of appeal dated 18 February 2000.

Please be informed that after consideration of all the facts presented before me and in the
exercise of the powers vested in me by Section 65
2004 (2) BLR p457

MARUMO J

of the Trade and Liquor Act I have resolved that Visagie Enterprises (Pty) Ltd t/a Ko Gae Liquor
Restaurant trading at Lot A 4218 area X be granted a restaurant liquor licence. The licensee will be
subject to operation within the requirements of Trade and Liquor Regulations and any other relevant
regulations. I therefore wish to impress upon you the need to cooperate with authorities and ensure
compliance with the law.

By copy of this letter the Selibe Phikwe Town Council is accordingly instructed to issue Visagie
Enterprises (Pty) Ltd the B restaurant liquor licence.

Yours faithfully

D K Kwelagobe

Minister of Commerce and Industry.' C

Right from the onset the applicant contended that the Minister's decision was unlawful. It continues to
do so. This explains its initial reluctance to comply with his ruling. It only issued the licence after several
items of correspondence between itself and the Permanent Secretary in the Ministry of Local
Government under which it falls. In his founding affidavit the applicant's town clerk states that the
applicant 'yielded to immense pressure it D was put under by the Permanent Secretary in the Ministry
of Local Government to comply ... or face proceedings for insubordination'.

There are, in my view, several reasons in support of the applicant's contention that the Minister's
decision was erroneous. The first has to do with his jurisdiction to issue the directive he issued on 26
August 1999.

The basis of the Minister's involvement in licensing matters is s 57 (formerly s 65) of the Trade and
Liquor Act. It E provides:

'Any person aggrieved by a decision of a licensing authority -

(a) refusing to issue or to renew a licence;

(b) refusing the transfer or removal of a licence; or

(c) cancelling a licence, F

may appeal to the Minister whose decision thereon shall be final.'

It is clear from this provision that the Minister's involvement is of an appellate character against a
decision of a licensing authority. In the absence of a decision by a licensing authority over which he is
able to exercise his appellate jurisdiction there can be no lawful involvement on his part in a licensing
matter of the type the subject of G this litigation. Any such involvement would constitute an arrogation
to himself of powers with which he is not clothed and would be both arbitrary and a violation of the
basic principles of the rule of law.

The question that then begs an answer is whether there was in fact a decision by the applicant's
licensing committee capable of being the subject of an appeal to the Minister at the time the second
respondent brought H about his involvement in the matter. In my view there was no such decision. It
should be noted that the purported appeal was made on 28 June 1999. The decision by the licensing
committee to reject the renewal application was only made on 22 July 1999, almost a month later. At
the time of the purported appeal the applicant had merely called upon the second respondent

2004 (2) BLR p458

MARUMO J

to put right certain matters identified by its public health officials relating to the premises from which it
intended to A trade. It had not made a decision refusing the renewal of the licence.

My understanding of the word 'decision' as used in s 57(a) of the Act is that it refers to a form of
judgment or conclusion regarding the issuance, non-issuance, renewal, or non-renewal of a licence. It
connotes a determination or resolution, after due consideration of the merits or demerits of the licence
application, in such a B manner that it can be said that the licensing authority has brought about
finality to the matter before it. A situation whose characteristics make the demand - 'put a, b, c and d in
place before we can give proper consideration to your application' - is not a decision within the
contemplation of s 57(a) (see Tsogang Investments (Pty) Ltd t/a Tsogang Supermarket v Phoenix
Investments (Pty) Ltd t/a Spar Supermarket and C Another [1989] BLR 512). And yet that was the exact
situation prevailing during the period April, May, June and the greater part of July 1999. In my judgment
there was no decision capable of being appealed against on 22 June 1999 when the purported appeal
was filed. Consequently the Minister had no proper cause to be involved in the matter at that stage. His
decision, even though made after a proper and appealable decision had since been D made by the
licensing authority was without proper jurisdictional foundation and is unsustainable on that basis.

Even assuming I am incorrect in my analysis and conclusion in regard to the first issue there is another
difficulty going to the Minister's jurisdiction to make the decision he purported to make on 22 March
2000. I will assume for a moment that the second respondent's letter of 28 June 1999 was indeed a
proper appeal upon which the E Minister could lawfully found his appellate jurisdiction. I have earlier
reproduced the Director of Commercial Affairs' letter written on behalf of the Minister on 26 August
1999. The terms of the letter do not admit of any doubt. The second respondent was directed to '...
correct the defects on the premises as indicated by the health report dated 23 June 1999'. Failure to
comply with this clear directive within the stipulated period was to be F visited with an automatic
dismissal of the appeal and confirmation of the licensing authority's decision.
If the word 'days' was to be given its ordinary and everyday meaning, and deriving guidance from s 40(6)
of the Interpretation Act (Cap 01:04), the period set out in the Minister's ruling expired on 8 September
1999. What that means is that at the end of that day the Minister's dismissal of the appeal automatically
came into effect. The G second respondent's licence could only have been saved by full compliance
with the Minister's directive, and nothing less. The inspection conducted on the premises on 9
September 1999 could only have been for purposes of verifying full compliance with such directive. In
the event that the inspection revealed compliance the licence would properly be issuable. In the event
of non-compliance the appeal would be automatically dismissed. H The opening statement of the
health inspector's report of 14 September 1999 to the effect that the inspection was 'to verify if
conditions at Ko Gae Liquor Restaurant had improved to the extent that the premises could qualify for
renewal of a trading licence ...' is consequently incorrect. The inspection was not for purposes of
assessing improvements, but for ascertaining compliance or the lack thereof. The

2004 (2) BLR p459

MARUMO J

statement in the second paragraph of the report that improvements had been made, but that some
defects A remained unattended is sufficient proof of the fact that there had not been full compliance
with the Minister's decision. Indeed certain matters listed as defects in the report of 23 June 1999, such
as the cleaning of the stove and other utensils, the painting of the walls and the provision of a gate for
the refuse cage, also appear in the 14 September 1999 report. B

It follows that the health officer's recommendation of the renewal of the licence in the 14 September
1999 report was misplaced. The effect of this statement was to overrule the Minister's decision which
had effectively dismissed the appeal against the refusal to renew the licence. The health officer has no
power whatsoever to overrule the Minister and his recommendation was consequently of no relevance
or effect. C

The powers conferred on the Minister by the Trade and Liquor Act are important public powers. That is
why they are granted to a person of the stature of Cabinet Minister and to no one else. They are quasi-
judicial powers which fall to be exercised reasonably, fairly and in accordance with the dictates of the
law. The Minister can neither delegate nor abdicate them to anyone else, nor exercise them arbitrarily
or outside the parameters of D legality. And once he has exercised them in a manner that is final and
conclusive the administrative act is complete, his statutory jurisdiction is terminated and he becomes
functus officio. Nowhere does the Act, which is the provenance of the powers, clothe him with
additional powers to amend or repeal his own decision. On the contrary it specifically states that the
decision is final. E

It was stated in Thompson, trading as Maharaj & Sons v Chief Constable, Durban 1965 (4) SA 662 (D) at p
667C that:
 'Generally speaking, a person to whom a statutory power is entrusted is functus officio once he
has exercised it, and he cannot himself call his own decision in question.' F

And in the Tsogang Investment case (supra) the court remarked at p 525G:

'The principle of strict application of the functus officio rule comes particularly to the fore in
licensing applications. Public authority cannot be expected to receive continual applications for
reconsideration. Moreover the interests of third parties are usually involved in these applications, the
granting of a licence being of a quasi-judicial function and it would be G unreasonable for an applicant
or a third party to return continually to re-state or re-formulate its views.'

It seems to me therefore that the Minister's decision dismissing the appeal became final after 8
September 1999. I cannot accept the submission by the respondents that the decision remained
conditional and liable to alteration H by him. It follows that he was functus officio on 22 March 2000
when he purported to uphold the appeal. The latter decision falls to be set aside as having been made
outside his statutory jurisdiction.

There is, in my view, an even more compelling reason for the setting aside of the Minister's decision.
There is nothing in the papers before me to

2004 (2) BLR p460

MARUMO J

indicate that the second respondent pursued the matter of his restaurant liquor licence after the
Minister's A decision of 26 August 1999. What did happen was that toward the end of 1999 the second
respondent again found itself at loggerheads with the applicant. The dispute, this time around, centred
around the renewal of the second respondent's general dealer and fresh produce licences. It would
appear that the applicant's licensing committee was again less than keen to renew these two licences.
Consequent to this development the second B respondent wrote to the Director of Commercial and
Consumer Affairs on 18 February 2000. The letter complains about the non-renewal of the general
dealer and fresh produce licences and makes no submissions in relation to the restaurant liquor licence,
the subject of the previous dispute. In fact the latter specifically makes the point that the 'ongoing trial
concerning Ko Gae Liquor Restaurant has got nothing to do with the other two C licences situated in
the same premises'. Notwithstanding this specific disavowal on the part of the second respondent itself
of any connection between the appeal to the Minister dated 18 February 2000 and the matter of the
restaurant liquor licence, the Minister's letter of 22 March 2000 is titled 'Renewal of Licence for Visagie
Enterprises (Pty) Ltd - Ko Gae Liquor Restaurant'. It makes reference to the appeal of 18 February 2000.
And it D purports to renew the very restaurant liquor licence disavowed. This was a fundamental error
on the Minister's part as the communication bearing the date 18 February 2000 clearly has nothing to
do with the restaurant liquor licence. For the Minister to rely on a letter of appeal relating to general
dealer and fresh produce licences to renew a restaurant liquor licence, the subject of serious conflict,
was clearly a misdirection on his part and is, E with respect, indicative of a failure to properly apply the
mind to the matters before him. His decision cannot, for that reason, be sustained.

In my judgment the applicant has made out, on several grounds, a fairly formidable case for the setting
aside of the Minister's decision. It may well be that the setting aside of the decision so long after it was
made may have far reaching consequences for one or some of the parties. Much water may have passed
under the bridge. That F unfortunately may be inevitable in a situation where a case has to go through
several stages and judges before its final conclusion. Furthermore, I have not been urged by any of the
parties to avoid granting an order in the form sought by the applicant in the event of my concurrence
with its position. I consequently make the following order: G

(a) The decision by the Minister of Commerce and Industry dated 22 March 2000 directing
the applicant to issue a restaurant liquor licence to the second respondent over Lot 4218 Selebi-Phikwe
is hereby reviewed and set aside.

(b) The first and second respondents are ordered to pay the costs of this application jointly
and severally, H the one paying the other to be absolved.

Application granted.