CIV/APN/205/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
RAMOLIKOE RAMAHLELE APPLICANT
V
ATTORNEY-GENERAL
HOTEL & 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
JUDGMENT
The applicant was the holder of a hotel (lodge) licence under the Hotels & Restaurants Act 1984 ("the Act"), valid until 31st December, 1991. On 28th October, 1991. he applied for the renewal of such licence for the year 1992. Sometime in November 1991, the 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 thus:
"I am instructed by the Board of Hotels, Restaurants and Liquor Licences to inform you that your renewal
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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 you be re-examined.
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."
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 determine complaints relating to licences;
to vary, suspend and cancel licences;
to 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
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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 of which it was granted it may:
revoke such a licence;
refuse to renew such a licence; or
vary it or suspend it until the conditions of this Act are complied with......................
11. (1) A person who is aggrieved by the decision of the Board may appeal to the Minister in writing.
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 to the 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 11(1) 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 the Act.
Please treat this matter as urgent."
On 27th March, 1992 an officer in the Ministry replied
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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 No.282/91. 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 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. Please acknowledge receipt."
On 12th May, however, an officer in the Ministry addressed a letter to the Attornies, on behalf of the Principal Secretary 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 the
M50, being payment made by your client as appeal fee for the supposed appeal against the decision of the. Board to suspend your client's
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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 of your 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) of the Hotels and Restaurants Act 1984)"
The 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 seized from Monateng Lodge the following:-
20 cases x 340ml Castle
18 x 340ml Amstel
7 x 340ml Lion
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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 despite 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 an order in part in the following terms:
"(b) Directing Second Respondent and/or its officers as employees of the Ministry of Tourism. Sport and Culture authorized by Second Respondent to desist forthwith from in anyway interfering with Applicant in carrying on the business of Monateng Lodge 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;
Directing Second Respondent and/or its officers or employees of the Ministry of
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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 indicates that the applicant conceded that he had not done so on 20th March. 1992. At the same time Mr. Putsoane concedes that no estoppel arises against 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 18th June.
At some 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, and 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 section 11(2) of the Act then took effect no later than that
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date. That being the case, I cannot appreciate why an order of this Court is required to give effect to statutory provisions, that 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, or whether they amount to mere surplusage. I must observe that the officer who wrote the letter of 27th March, 1992 would not agree with Mr. Putsoane's 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.
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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 interpretation of 27th March, 1992 raises no estoppel by which the Crown is bound: estoppel cannot affect the operation of a statutory duty and 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 said that the 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 further than 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 11(2) of the Act." Please treat this matter as urgent." (Italics supplied)
There could be no question of the board "withdrawing" its letter of suspension until such time as an appeal had been entered in writing. Thereafter the provisions of section 11(2)
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would 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 March 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 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.
Accordingly the application is granted.
Delivered at Maseru This 16th Day of March. 1993.
B.P. CULLINAN
CHIEF JUSTICE
