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CIV\APN\18\98
IN THE HIGH COURT OF LESOTHO
In the Application of:
LESOTHO HOTELS INTERNATIONAL(PTY)LTD Applicant
vs
THE MINISTER OF TOURISM SPORTS & CULTURE 1st Respondent
THE CHAIRMAN OF THE CASINO BOARD 2nd Respondent
COMMISSIONER OF POLICE 3rd Respondent
ATTORNEY GENERAL 4th Respondent
DIRECTOR OF PUBLIC PROSECUTIONS 5th Respondent
JUDGMENT
Delivered by the Hon Mr Justice M L Lehohla on the 25th day of February, 1998
In a brief ruling made on 23-01-98 an application for joinder of the 5th respondent was granted.
In a separate minute on file reflecting the granting of the said application the Court ordered as follows :-
Order proposed by consent following the notice of motion filed today is made order of court as amended in paragraph 1.1.2 thereof Replying affidavit be filed by 21-1-98. Matter be heard on 23-1-98.
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Signed M Lehohla on 14-1-98".
The effect of paragraph 1.1.2 of the notice of motion that was made order of court by consent was that "the applicant shall not be entitled to operate pending the outcome of this application".
On 13th January, 1998 following an application for stay of the order obtained earlier that day this court ordered that respondents who at the time consisted only of the first four, should file their opposing papers by not later than 3 p.m. of the date 19th January, 1998. This was complied with.
When the desire by the 5th respondent to be joined and cited was endorsed in a ruling of this Court on 23rd January, 1998, it was also ordered in an oral pronouncement that the 5th respondent's affidavits be filed by not later than 30-01-1998 in order that the Court would have had an opportunity of studying those and the replies if any during the course of the following week as the matter was to be heard on 9th February, 1998. Needless to say the 5th respondent's opposing affidavits were only filed on Friday 6th February, 1998 and were only handed in before Court during argument on 9th February, 1998.
In the most preposterous of attempts to justify this unacceptable state of affairs Mr Putsoane for all respondents submitted that it was not indicated what would happen if the 5th respondent failed to beat the dateline for the filing of his
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opposing affidavit and accompanying documents. Needless to say the applicant who appears to have been served with this 5th respondent's opposing affidavit and the accompanying documents was not able to respond to those either by way of replying affidavits or in oral submissions precisely because the 5th respondent had failed to comply with the Court's order. Furthermore the respondent's counsel himself made no effort to address the Court on any of the averments made or accompanying documents furnished by the 5th respondent.
It would be patently unfair to the other party if given the above circumstances the Court on its own motion in preparing this judgment
had consideration to these documents which are prefaced by not even a prayer, (oral or in affidavit) for condonation of their filing out of time. A suitable order is warranted at the end of this judgment to meet this sort of lack of regard to the fact that in order to function properly the Court requires that its pronouncements should be taken seriously. The Court is not unmindful of the fact that the hearing of this matter has had to be postponed from 23rd January, 1998 to 9th February in an act of grace by this Court to try to accommodate the 5th respondent.
In this application lodged by way of notice of motion the applicant sought an order in the following terms :
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Interdicting and restraining the 1st to 4th respondents from taking any steps to seize slot machines or otherwise close down the applicant's business premises where such slot machines are being kept, situate at Victoria Hotel, Sekekete Hotel, Senqu Hotel, Golden Hotel, Molimo Nthuse, Leribe Hotel and Crocodile Inn Hotel and from harassing applicant in the conduct of its business operations at these venues.
Directing the 3rd respondent forthwith to return all slot machines seized to date from the Applicant's business premises at Leribe, Butha Buthe and Molimo Nthuse together with all coins and cash therein.
Directing and ordering the 2nd respondent forthwith to issue the Casino licences granted to the Applicant on or about 24th February, 1994 in terms of Section 10 of the Casino Order 1989, in respect of Victoria Hotel, Sekekete Hotel, Senqu Hotel, Golden Hotel, Molimo Nthuse Hotel, Leribe Hotel and Crocodile Inn Hotel.
An order permitting and authorising the applicant to conduct its slot machine business at its various premises referred to in paragraph 3 hereof.
Directing that a Rule Nisi do issue calling upon the 1st to 4th respondents to show cause on a date to be determined by the above Honourable Court as to why they should not be directed to comply with this order and to pay the costs hereof, jointly and severally, the one or other paying the others to be absolved.
Ordering and directing that the orders sought in prayer 1,2 and 4 hereof
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operate with immediate effect pending the final determination, of the relief sought in prayer 3 hereof.
That the applicant be granted such further or alternative relief as the above Honourable Court may deem meet.
The applicant has relied on the affidavit of Guiseppe Antonio Mario Florio in support of this application. In his founding affidavit the deponent Florio avers mat he is the Managing Director of the applicant and has been authorised to depose to his affidavit in terms of a Resolution passed by the applicant's Board of Directors on 6th January 1998 as reflected in Annexure "A".
He avers that by law the Principal Secretary for the Ministry of Tourism, Sports and Culture is designated as the Chairman of the Casino Board and has cited him in these proceedings in that representative capacity.
The deponent further avers that on or about 30th March, 1993 authorisations to operate slot machines were issued by the then 1 st
Respondent following on an application in terms of the Casino Order No.4 of 1989. The authorisations were in respect of the seven Hotels referred to earlier. The applicant states that these authorisations were valid for a period of ten years The applicant has attached these authorisations marked Annexures "B", "C", "D", "E", "F", "G" and "H" in
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substantion of this averment.
He points out that pursuant to the granting of the authorisations and in compliance with Section 9 of the Casino Order 1989 the applicant applied to the 2nd respondent for the issuing of licences to operate slot machines only, at the venues referred to above in terms of Section 10.
Section 9(l)(a)(b) says:
"Subject to subsection (2) and (3) the holder of an authorisation wishing to operate,
slot machines only; or
slot machines and any other games; shall make an application to the Board for the issuance of a licence".
Section 10(1) provides that
"Where an application is made to the Board in accordance with section 9, the Board may grant and cause to be issued to the holder of an authorisation a casino licence in respect of each casino to be established and operated by that holder "
subject to conditions stipulated under subsections (a) through (e) relating to the satisfaction of the Board as to the adequacy of security of tenure, existence of buildings, furnishings and other improvements meeting a certain value specified by the Board, and the existence of adequate financial means, including submission of
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plans and specification of the casino for the Board's approval and that the Board is satisfied that the casino will be operated in premises which are licensed to be used as a hotel in terms of the Hotels and Restaurants Act, 1984.
Section 11(1) provides that
"Where the Board decides not to grant an authorisation or a licence, it shall, within one month of its decision, notify in
writing the applicant and the objector, if any, of its decision.
The applicant for......the grant of an authorisation or a licence who is aggrieved by the decision of the Board under subsection (1) may, ......appeal in writing to the Minister and subject to section 19(1) and (2) the decision of the Minister in respect of an appeal under this section shall be final."
Section 12 provides that an authorisation shall be valid for a period of 10 years from the date of commencement of the applicant's casino business. Under (b) it is provided that the casino licence shall be valid for so long as the authorisation in respect of which the licence was granted is valid.
Section 19(1) and (2) relates to application to the High Court for review on the part of an objector or an applicant who is aggrieved by the decision of the Board or the Minister or both, in respect of application for or objection to the grant of an authorisation or a licence, or in respect of the holder of an authorisation or a licence or renewal of an authorisation or a licence.
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In terms of the answering affidavit Pulumo Makhetha admits contents of paragraphs 2,3,4 and 5 of the applicant's affidavit. I should point out that the thrust of the applicant's affidavit is against Makhetha having any authority to swear to any depositions in this application as he is not currently the Chairman of the Board, a position he had to quit when he ceased being Principal Secretary of the Ministry headed by the 1st respondent.
However I think the applicant's objection in that regard is undermined by the fact that in trying to build its case it invoked circumstances of a long and continuous conflict that existed between its deponent and Makhetha. In the circumstances it would not be unexpected if Makhetha reacted to the onslaught. I rule therefore that Makhetha's affidavit is admissible in this proceeding.
It was submitted in argument and contented for the applicant that the respondents have not indicated by resolution that any of respondents'
deponents i.e. (Makhetha or 'Mota) is deposing to his affidavit in a representative capacity vis-a-vis the Ministry of Tourism, Sports and Culture.
But in C. Of A (CIV) No.6\87 The Central Bank of Lesotho vs EH. Phoofolo (unreported) at p. 15 it was stated by Mahomed J.A. that
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"There is no invariable rule which requires a juristic person to file a formal resolution, manifesting the authority of a particular person to represent it in any legal proceedings, if the existence of such authority appears from other facts".
As pointed out above the applicant's deponent himself provides sufficient facts to show the capacity in which Makhetha was acting in respect of the facts which arose around the time that Makhetha was Chairman of the Board.
In paragraph 17 Makhetha states
"At the outset I wish to point out that applicant has been less than candid with this Honourable Court in that he has deliberately
suppressed certain material and relevant facts. While deponent refers to the so called grant of the authorisation he failed to state that his so called application to the Board had been unsuccessful. Deponent has failed to show that in terms of Section 6 of the Order only the Casino Board can grant an authorisation. I also wish to point out that the applicant failed to comply with the regulations set out in Legal Notice No.46 of 1990 that is Casino Regulations 1990. The authorisations were not granted by any lawful authority".
In paragraph 18 he admits having written Annexure "I" addressed to the applicant's Managing Director on 14-02-1994 informing the addressee that the letter written by the applicant's Managing Director had been referred to the Casino Board which was to convene shortly to consider applications for Slot Machines among other things.
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Makhetha accordingly avers as follows :
"I wish to state that the applicant's request for the grant of a casino licence was refused by the Board because, first applicant had not complied with provisions of Sections 22,23 and 24 of the Order. He did not provide, inter alia, plans. Secondly the exclusive
protection which was granted to Lesotho Sun was still in force. This fact was brought to the attention of the applicant and they knew the outcome of their application. I know as a fact that while I was still the Principal Secretary of the Ministry of Tourism, sometime in 1996, Mr Florio, the deponent to the founding Affidavit, came to see the present Minister. I was present at the meeting with the Director of Tourism Mr E.K. Maphasa. I remember the Minister informing Mr Florio that he could not be issued with a licence because he had not complied with the law. The minister also told him that Government was aware that Mr Florio had unlawfully been running Casinos and he wanted him to stop it".
The applicant's deponent in paragraph 8 of page 9 of the paginated record asserts that the outcome of the applicant's applications was that they were approved and the applicant was informed of this on 24th February 1994 by the representative of 2nd respondent. But Mr Makhetha reacts sharply to this allegation and in his crisp retort says
"The statement that on the 24th February 1994, a representative of the Casino Board orally informed the applicant that the
applications were all approved is a blatant lie. I was the Chairman of the Board and no one could have truthfully told him that. There was no way I could not Significantly in reaction to this direct challenge the applicant's deponent contents himself with merely saying he reiterates what he said earlier and tells this
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Court that Mr Makotoko the Manager of the Hotel was informed by some of the secretaries there. I find this to be a very lame reaction to a strong challenge First it refers to a generality of faceless secretaries there. Thus it cannot seriously be contended that much reliance if any can be reposed on it. Next it relies on a statement by Makotoko who has not personally reacted to it. Thus the averment remains an inadmissible hearsay with no evidential value.
In paragraph 7 at page 65 Makhetha avers that as a result of his investigations he was shown a document copies of which are marked "B" to "H" and are attached to the founding affidavit. His first reaction on seeing the document in question was of surprise mixed with misgivings as to the authenticity of this document. That was so; because the official file kept in the Ministry did not have a copy of this document. He thus expresses the view that the document which was in a form of a photocopy was unlawful and fraudulent. He comes to this conclusion because in terms of section 6 of the Casino Order the Board shall be responsible for the issue of authorisations and licences under this Order. Thus he asserts that the Minister of Tourism under the law was not competent to issue any authorisation under the on the face of it annexures "B to "H" have no legal validity whatsoever.
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In reaction to this the applicant's deponent adopts the role of an innocent third party who cannot be expected to be in the know
regarding how the then Minister and his staff interacted in their dealings with the members of the public who expected service and outcome from the respective offices called upon to render such service.
The respondent's reaction is one of attack on Makhetha's competence in handling of the matter mixed with allegations that Makhetha was engaged in a conspiracy against the applicant. Indeed the applicant's concerns about Makhetha's failure to put a stop to an ongoing fraud committed openly for no less than two years may be legitimate. But at the end of the day the question is whether on that score alone or even in conjunction with other factors it could be said the applicant was entitled to trade without a licence.
Mr Horwits for the applicant deftly fought shy of submitting that the applicant is raising an estoppel against the respondents stopping the applicant from trading without licence. In my view, at the end of the day it seems that if the Court granted the order claimed by the applicant that the respondents be restrained from interfering with its trading operations under the present circumstances from any period between now and 30-03-2003 it will in effect be saying ditto to an operation of estoppel
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against the statute. Put bluntly the applicant's proposition to this court amounts to this viz; since I the applicant have been trading openly in breach of the law for a long time without the respondents raising a finger to stop me, I should jolly well be allowed to do so till the year 2003. That would indeed be absurd.
The reaction of the applicant's deponent to Makhetha's averments are not only exaggerated but indeed misleading. The plain reading of 'Mota's affidavit at page 84 in support of Makhetha's contentions with regard to annexures "B" to "H" which apparently gave "authorisation to operate slot machines signed by the then Minister of Tourism Sports and Culture, Mr Mokone" is that "the Minister was certainly not the authorised signatory. He had no legal authority to issue an unauthorisation to operate slot machines as it is the legal responsibility of the Casino Board".
Then given these set of circumstances the question is, if Makhetha was prompted by any of the alleged ill motives to act as he did against the applicant what could have influenced 'Mota who was once Chairman of the Board also, to independently come to the same conclusion as did Makheta as to the legitimacy or validity of the then Minister's authorisations?
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Needless to say the applicant has deemed it unnecessary to react to the affidavit of Borotho Matsoso of the Royal Lesotho Mounted Police who carried out the seizure of slot machines in the applicants various centres on the grounds that the operations were carried out without licence.
The applicant's deponent decided not to engage in controversy regarding the contents of Matsoso's affidavit on the ground that there seemed to be clear dispute of fact in that
But given the grievances, raised in Florio's founding affidavit regarding Matsoso's main action of seizing the slot machines for being operated without a licence it would seem to me that the applicant has correctly thought better of pursuing that line once it became clear to it what law Matsoso was acting under
As set out at page 77 of the paginated record in paragraph 4 of his affidavit Matsoso states that under Section 28 of the Casino Order 1989 he, as a police officer upon properly identifying himself at any time and without a search warrant, was empowered to enter a casino and seize therefrom any slot machine for the purpose of preventing and investigating the commission of an offence
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The actual section provides that, "Notwithstanding anything to the contrary in any other law contained, a police officer of the rank of Warrant Officer Class 1 or above may, upon properly identifying himself, at any time and without a search warrant, enter and search a casino and seize therefrom any slot machine or other gaming device, for the purpose of preventing or investigating the commission of an offence".
I have had a look at the Crimanal Procedure and Evidence Act 7 of 1981 and have discovered that in the same way as does the Casino Order 1989 it enjoins a person who is conducting a business for which he should hold a licence to produce it on demand.
In light of this position in law it would seem untenable to subscribe to the view that an authorisation may serve as a substitute for a licence.
he fact that the applicant paid certain sums of money in a mistaken belief that it was entitled to carry on the type of business it conducted without licence does not in my view affect the position outlined above. If asked to order a refund I would have readily obliged
The Court has had regard to Part III - Authorisation and Licensing sections 8(1)(d), 9(1) 10(1) and 11(1).
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I have also had regard to provisions sections 25, 26 and 27 of the Casino Order 1989 where the words authorisation and licence have been used disjunctively. On that basis it was sought to persuade this Court that it seems the holder of an authorisation can do any of the things listed as things which a licensee can do. For instance section 27(1) says :
"The holder of an authorisation or licensee shall, (a) take all reasonable precautions to ensure that no person under the age of 18 years is present in a casino
The simple approach to adopt in an attempt to unravel this knot would be by reference to sections of the order where the word licence
appears alone without an alternative of the phrase the holder of an authorisation. That being so it will be readily realised that
although a licensee may do what the holder of an authorisation may do, the latter is not necessarily entitled to do what the licensee
may do or be allowed to do if he has satisfied, the requirements such as producing a licence on demand by lawful authority.
In sum then, though some of his complaints raise legitimate concerns , the applicant's deponent's unrestrained attack on Makhetha is redolent of something similar in C. Of A. (CIV) No.2 of 1992 and C. Of A. (CIV) No.29 of 1991 Guisseppe Antonio Mario Florio vs The Minister of the Interior and Anor
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(unreported) at p.39 where Steyn J.A. as he then was was prompted to remark :
"On the other hand mala fides and serious misconduct have been alleged. Appellant has levelled extravagant and even reckless
allegations of impropriety at all and sundry involved in this matter. Certainly a serious question mark is raised against some of his conduct and his reliability as a deponent is open to serious question..........".
As stated earlier the dilatoriness of the 5th respondent and his disregard of the importance of filing the opposing or answering papers within the stipulated time have resulted in the Court being effectively denied access to information or evidence that would have per haps made its task so much the less burdensome. In the result although the application is dismissed the respondents would be entitled to only Eighty per cent (80%) of their costs against the applicant.
JUDGE
25th February, 1998
For Applicant: Mr Horwitz,
Mr Vaccaro, Mr Buys
For Respondents : Mr Putsoane
