HIGH COURT OF LESOTHO
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 16th
day of March, 1993.
Applicant : Mr. H. Nathane
Respondent : Mr. T. Putsoane
applicant was the holder of a hotel (lodge) licence under the Hotels
& Restaurants Act 1984 ("the Act"), valid
December, 1991. On 28th October, 1991. he applied for the renewal of
such licence for the year 1992. Sometime in November
applicant's wife represented him at a meeting of the Hotels &
Restaurants Board ("the Board") at Mohale's
Hoek. On 14th
February, 1992 he personally visited the offices of the Board, where
he was given a letter addressed to him, on the
same date, by an
officer, on behalf of the Chairman of the Board. The letter read
"I am instructed by the Board of Hotels, Restaurants and Liquor
Licences to inform you that your renewal
application has been set aside temporarily until you have satisfied
the requirements appearing in the inspector's report.
As soon as you have satisfied the requirements you are requested to
report to the Ministry of Tourism Sports and Culture, so that
I annex hereto the inspector's report, which shows certain anomalies
in your business premises. You are to rectify the said anomalies
urgently in order for you to be issued with a renewal licence
enabling you to continue operating your business."
convenient to here set out the relevant provisions of the Hotels &
Restaurants Act, 1984.
"5. (1) The functions of the Board shall be:
issue and renew licences:
investigate and determine complaints relating to licences;
vary, suspend and cancel licences;
prescribe minimum requirements for licensing under this Act."
"7. (1) (a) No premises shall be used or kept,
(i) as a hotel; or
(ii) as a restaurant, unless there is a valid hotel licence or a
valid restaurant licence as the case
may be. in respect of such premises."
"10. (1) Where the Board is satisfied that the premises no
longer satisfies the conditions for which a licence in respect
which it was granted it may:
such a licence;
to renew such a licence; or
it or suspend it until the conditions of this Act are complied
11. (1) A person who is aggrieved by the decision of the Board may
appeal to the Minister in writing.
the appeal, the decision of the Board shall not have effect until
such appeal has been heard and determined."
of the provisions of section 11. the applicant approached his
Attornies, who on 20th March, 1992. addressed a letter to
Secretary to the Board which read in part thus:
"Client is aggrieved by the decision of the Board and notifies
his intention to appeal to the Minister pursuant to section
We therefore request you to withdraw your letter of suspension
pending the determination of the appeal pursuant to section 11(2)
Please treat this matter as urgent."
March, 1992 an officer in the Ministry replied
applicant's Attornies. on behalf of the Secretary to the Board,
acknowledging the letter of 20th March and stating,
"The application to appeal should, as you know be accompanied by
M50.00 Appeal Fee in accordance with Legal Notice No.282/91.
arrange to have the money sent to us, so that we may start processing
the application as necessary."
applicant's Attornies in turn replied to the Secretary on 31st March.
"We refer to the above matter and your letter of 27th
instant. Please find enclosed herein our cheque in the sum of M50-00
being payment for Appeal Fee as requested in your said letter.
May, however, an officer in the Ministry addressed a letter to the
Attornies, on behalf of the Principal Secretary for the
the following terms:
"We refer to your letter dated 20/03/92 addressed to the
Secretary Licensing Board, and also acknowledge the receipt of the
M50, being payment made by your client as appeal fee for the supposed
appeal against the decision of the. Board to suspend your
We wish to inform you that though the M50 has been paid as required
under the law it is not clear in the last two paragraphs of
letter whether you want to make an appeal or not. Except where you
mentioned that your client is aggrieved by the decision
of the Board.
We therefore request that a proper appeal be made in writing to the
Minister as further required by the law (see section II (1)
Hotels and Restaurants Act 1984)"
applicant's founding affidavit thereafter reads thus in part:
"On or about 4th June, 1992 one Refiloe Lucy Tsapi and one
Marathane Pitso of the Ministry acting within the scope of their
employment with Lesotho Government apparently authorized by Second
Respondent as such wrongfully, unlawfully and intentionally
from Monateng Lodge the following:-
cases x 340ml Castle
the total value of which exceeds M5,000.00.
These cases were seized under the pretext that since my licence was
suspended by Second Respondent I had no right to trade despite
clear provision of section 11(2) of the Act."
seizure of the applicant's goods brought matters to a head and he
filed a notice of motion on 5th June. 1992 which sought an
part in the following terms:
"(b) Directing Second Respondent and/or its officers as
employees of the Ministry of Tourism. Sport and Culture
by Second Respondent to desist forthwith from in anyway
interfering with Applicant in carrying on the business of Monateng
at Mohale's Hoek except when duly authorized by law pending the
finalization of Applicant's appeal to the Honourable Minister of
Tourism, Sports and Culture;
Second Respondent and/or its officers or employees of the Ministry
Tourism, Sport and Culture authorized by Second Respondent to release
to Applicant forthwith the cases (of liquor) referred to
12 of Applicant's founding affidavit:"
common cause that the applicant subsequently lodged an appeal on 18th
June. 1992. Mr. Putsoane submits that that indicates
applicant conceded that he had not done so on 20th March. 1992. At
the same time Mr. Putsoane concedes that no estoppel
the applicant. In view of the second respondent's letter of 12th May
and the action taken by officers in the Ministry
on 4th June, I
consider that the applicant was well advised to lodge an appeal on
stage it was agreed between Counsel that, an appeal having been
lodged on 18th June, 1992, the matter could be settled.
There is a
difference of opinion as to whether or not it had been agreed that
this present application should be withdrawn or not,
settlement to take place out of Court. As matters stand, the Crown
does not agree to the granting of this present application,
filed before the appeal of 18th June.
part, I must observe that the Crown concedes that an appeal was filed
no later than 18th June, 1992: the provisions of section
11(2) of the
Act then took effect no later than that
That being the case, I cannot appreciate why an order of this Court
is required to give effect to statutory provisions, that
uplift the suspension of the licence and secure the return to the
applicant of the liquor seized from him. pending the appeal
Nathane submits that in any event the words, "intention to",
in the letter of 20th March. 1992 are severable. Mr.
that the words, "notifies his intention to appeal", mean
what they say and that they constitute no more
than a declaration of
intention, namely that the applicant was there saying that he
intended to subsequently appeal. Mr. Putsoane
then submits that
severance is not possible, as the words "intention to"
contain the whole gist of what the applicant
is saying, that is, that
such severance would convert a statement of present intention to do
something in the future into the very
act of doing it in the present.
depends upon whether the words, "intention to", constitute
the very gist of what the Attornies were saying, or whether
amount to mere surplusage. I must observe that the officer who wrote
the letter of 27th March, 1992 would not agree with Mr.
interpretation, and even the letter of 12th May, 1992, which stated
that "it is not clear in the last two paragraphs
of your letter
whether you want to make an appeal or not", does not reveal any
real confidence in the present interpretation
adopted by the Crown.
Nathane submits, the third last paragraph of the letter of 20/3/92.
must be read in context. Here let me say that the interpretation
27th March, 1992 raises no estoppel by which the Crown is bound:
estoppel cannot affect the operation of a statutory duty and
event the question is simply one of interpretation.
to the aspect of context, there is the payment by the Attornies of
the fee of M50 on 31st March. 1992. It could be said
Attornies' letter of 20th March indicated no more than an intention
to appeal: even assuming that that was the case, and
I cannot see why
any litigant would pay process fees in advance of filing such
process. I would consider the letter of 31st March.
1992 and the
payment of the appeal fee as an act of giving effect to such
intention. But in my view the letter of 20th March goes
that. The third last paragraph must be read with the last two
paragraphs which I herewith for convenience repeat
"We therefore request you to withdraw your letter of suspension
pending the determination of the appeal pursuant to section
the Act." Please treat this matter as urgent." (Italics
could be no question of the board "withdrawing" its letter
of suspension until such time as an appeal had been entered
writing. Thereafter the provisions of section 11(2)
automatically operate. The applicant's Attornies clearly invoked
those provisions, the last paragraph stressing the automatic
operation of the statute. As I see it therefore, the only reasonable
interpretation which could be placed on the letter of 20th
that the Attornies were thereby entering an appeal to the Minister in
made no mention of any fee to be paid upon appeal and it may be that
the Attornies were unaware of the contents of Legal
Notice No.282 of
1991, published on 31st December, 1991. which amended Legal Notice
No.4 of 1985 and introduced an appeal.. fee.
which would explain the
non-payment of the fee with the letter of 20th March. In any event,
in view of the non-payment of such
fee on 20th March, 1992, it must
be said that the appeal was not properly entered on that date. The
process of entering the appeal
was however completed on 31st March.
1992. The appeal must therefore be regarded as having been entered,
and the operation of section
11(2) as having commenced on that date.
the application is granted.
at Maseru This 16th Day of March. 1993.
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