IN THE HIGH COURT OF LESOTHO In the matter
RAMOLIKOE RAMAHLELE APPLICANT
& RESTAURANTS BOARD
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 16th day of March, 1993.
For the Applicant : Mr. H. Nathane For the Respondent
: Mr. T. Putsoane
The applicant was the holder of a hotel (lodge) licence
under the Hotels & Restaurants Act 1984 ("the Act"),
31st December, 1991. On 28th October, 1991. he applied
for the renewal of such licence for the year 1992. Sometime in
the applicant's wife represented him at a meeting of
the Hotels & Restaurants Board ("the Board") at
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 thus:
"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
you be re-examined.
I annex hereto the inspector's report, which shows
certain anomalies in your business premises. You are to rectify the
urgently in order for you to be issued with a renewal
licence enabling you to continue operating your business."
It proves convenient to here set out the relevant
provisions of the Hotels & Restaurants Act, 1984.
"5. (1) The functions of the Board shall be:
to issue and renew licences:
to investigate and determinecomplaints relating
to vary, suspend and cancellicences;
to prescribe minimumrequirements for
licensingunder 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
"10. (1) Where the Board is satisfied
premises no longer satisfies the conditions for
which a licence in respect of which it was granted it
revoke such a licence;
refuse to renew such a licence; or
vary it or suspend it until theconditions of
this Act are compliedwith
11. (1) A person who is aggrieved by the decision of
the Board may appeal to the Minister in writing.
(2) Pending the appeal, the decision of the Board shall
not have effect until such appeal has been heard and determined."
In view of the provisions of section 11. the applicant
approached his Attornies, who on 20th March, 1992. addressed a letter
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
of the Act.
We therefore request you to withdraw your letter of
suspension pending the determination of the appeal pursuant to
section 11(2) of
Please treat this matter as urgent."
On 27th March, 1992 an officer in the Ministry replied
to the 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
Kindly arrange to have the money sent to us, so that we
may start processing the application as necessary."
The applicant's Attornies in turn replied to the
Secretary on 31st March. 1992 thus,
"We refer to the above matter and your letter of
Please find enclosed herein our cheque in the sum of
M50-00 being payment for Appeal Fee as requested in
your said letter. Please acknowledge receipt."
On 12th May, however, an officer in the Ministry
addressed a letter to the Attornies, on behalf of the Principal
for the Ministry, in the following terms:
"We refer to your letter dated 20/03/92 addressed
to the Secretary Licensing Board, and also acknowledge the receipt of
being payment made by your client as appeal fee for the
supposed appeal against the decision of the. Board to suspend your
5 lodge licence.
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
letter whether you want to make an appeal or not. Except
where you mentioned that your client is aggrieved by the decision of
We therefore request that a proper appeal be made in
writing to the Minister as further required by the law (see section
II (1) of
the Hotels and Restaurants Act 1984)"
The applicant's founding affidavit thereafter reads thus
"On or about 4th June, 1992 one Refiloe Lucy Tsapi
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 seized from Monateng Lodge the following:-
20 cases x 340ml Castle
18 x 340ml Amstel
(c) 7 x 340ml Lion
2 x 340ml Hansa
9 x 750ml Hansa
6 x 750ml Castle
8 x 750ml Lion
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
the clear provision of section 11(2) of the Act."
The seizure of the applicant's goods brought matters to
a head and he filed a notice of motion on 5th June. 1992 which sought
in part in the following terms:
"(b) Directing Second Respondent and/or its
officers as employees of the Ministry of Tourism. Sport and Culture
Second Respondent to desist forthwith from in anyway
interfering with Applicant in carrying on the business of Monateng
Mohale's Hoek except when duly authorized by law pending the
finalization of Applicant's appeal to the Honourable Minister of
Sports and Culture;
(c) Directing Second Respondent and/or its officers or
employees of the Ministry of
Tourism, Sport and Culture authorized by Second
Respondent to release to Applicant forthwith the cases (of liquor)
referred to in
paragraph 12 of Applicant's founding affidavit:"
It is common cause that the applicant subsequently
lodged an appeal on 18th June. 1992. Mr. Putsoane submits that that
the applicant conceded that he had not done so on 20th
March. 1992. At the same time Mr. Putsoane concedes that no estoppel
against the applicant. In view of the second respondent's
letter of 12th May and the action taken by officers in the Ministry
4th June, I consider that the applicant was well advised to lodge
an appeal on 18th June.
At some stage it was agreed between Counsel that, an
appeal having been lodged on 18th June, 1992, the matter could be
is a difference of opinion as to whether or not it had
been agreed that this present application should be withdrawn or not,
the settlement to take place out of Court. As matters stand, the
Crown does not agree to the granting of this present application,
which was filed before the appeal of 18th June.
For my part, I must observe that the Crown concedes that
an appeal was filed no later than 18th June, 1992: the provisions of
11(2) of the Act then took effect no later than that
date. That being the case, I cannot appreciate why an
order of this Court is required to give effect to statutory
is, to uplift the suspension of the licence and
secure the return to the applicant of the liquor seized from him.
pending the appeal
to the Minister.
Mr. Nathane submits that in any event the words,
"intention to", in the letter of 20th March. 1992 are
severable. Mr. Putsoane
submits 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.
Much depends upon whether the words, "intention
to", constitute the very gist of what the Attornies were saying,
they amount to mere surplusage. I must observe that the
officer who wrote the letter of 27th March, 1992 would not agree with
Putsoane's interpretation, and even the letter of 12th May, 1992,
which stated that "it is not clear in the last two paragraphs
your letter whether you want to make an appeal or not", does not
reveal any real confidence in the present interpretation
As Mr, Nathane submits, the third last paragraph of the
letter of 20/3/92. must be read in context. Here let me say that the
of 27th March, 1992 raises no estoppel by which the
Crown is bound: estoppel cannot affect the operation of a statutory
in any event the question is simply one of interpretation.
To return to the aspect of context, there is the payment
by the Attornies of the fee of M50 on 31st March. 1992. It could be
that the Attornies' letter of 20th March indicated no more than
an intention to appeal: even assuming that that was the case, and
cannot see why any litigant would pay process fees in advance of
filing such process. I would consider the letter of 31st March.
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
of the Act." Please treat this matter as urgent."
There could be no question of the board "withdrawing"
its letter of suspension until such time as an appeal had been
in writing. Thereafter the provisions of section 11(2)
would automatically operate. The applicant's Attornies
clearly invoked those provisions, the last paragraph stressing the
operation of the statute. As I see it therefore, the only
reasonable interpretation which could be placed on the letter of 20th
was that the Attornies were thereby entering an appeal to the
Minister in writing.
The Act 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
on 31st March. 1992. The appeal must therefore be regarded
as having been entered, and the operation of section 11(2) as having
on that date.
Accordingly the application is granted. Delivered at
Maseru This 16th Day of March. 1993.
B.P. CULLINAN CHIEF JUSTICE
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