CIV/APN/127/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MAHOMED
OSMAN Applicant

and

COMMISSIONER
OF COMMERCE & 1st Respondent

INDUSTRY
MINISTER OF COMMERCE & 2nd Respondent

INDUSTRY
SOLICITOR -GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 17th day of May, 1985.

This is
an urgent application in which the applicant moved the Court for a
rule nisi calling upon the respondents to show cause
why :

"1(a) the suspension of a trading licence No. E 39649 granted to
the applicant to trade as a garage at Qoaling in the Maseru
urban
area should not be re­voked with immediate effect.

(b) the respondents should not pay the costs of this application.

2. that prayer (1(a) above should operate as an interim interdict
restraining

the first respondent from suspending the said trading licence pending
the finalisa-tion of this application.

3. further and/or alternative relief."

The
matter was placed before Kheola, J. who grated the rule as prayed.
The respondents opposed confirmation

of this
rule.

Briefly
the facts disclosed by the affidavits were that on 17th June, 1983
the applicant and one James Motaung

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signed an
agreement whereby the latter sold to the applicant certain premises
used as a garage at Qoaling for the amount of M155,000.
In terms of
the conditions of the agreement the applicant paid a sum of M50.000
as cash deposit. The balance was to-be paid in
twelve instalments
commencing from the date on which the ministerial consent would be
given for lease applications. In terms of
clause 3 of the deed of
sale occupation of the premises was given to the applicant
(purchaser) on the 1st day of July, 1983.

In
January, 1984, application for a trading licence was lodged with the
1st Respondent on behalf of the appli­cant and the trading

licence certificate No. E 39649 authorising the applicant to trade as
a garage at Qoaling was accordingly issued. However, on 11th
June,
1984, the 1st respondent wrote to the applicant advising him that in
exercise of the powers vested in him by S.8(3)(a) of
the Trading
Order 1973 he was suspending his licence to trade as a garage at
Qoaling. The suspension was for 30 days with effect
from the date of
the letter. 1st respondent further advised the applicant that the
reasons for the suspension were laid out in
a letter addressed to his
office by the C.I.D. Section of the Department of Police, a copy of
which letter was attached. In that
letter the police advised 1st
respondent that after a careful investi­gation had been carried
out, it was established that
there was a very good evidence to
substantiate that the applicant had defrauded 1st Respondent's office
by the use of a false lease
agreement as part of documents required
for the issuing of a trading licence. Consequently the Trading
licence certificate No.
E 39649 dated 1st January, 1984 was regarded
as null and void. The applicant, however, denied that in his
application for the trading
licence he had used any lease agreement
as part of documents required for the issuing of a trading licence
and deposed that what
he used was the deed of sale in terms of which
he was in lawful possession of the business buildings at Qoaling. In
any event applicant
contented that 1st respondent had misdirec­ted
himself in forming the opinion that the continuance of or public. his
garage
business constituted a serious danger to public health or
public

3

safety or
public morality which in terms of S.8(3) (a) was a condition
precedent to the suspension of a licence. Wherefore applicant
moved
the court for an order as afore­said.

It is
clear from the evidence that 1st respondent did issue a trading
licence to the applicant which licence he subsequently suspended.
The
salient question that arises is whether 1st respondent was empowered
to suspend the licence as he did. S.8(2) of the Trading
Order No. 20
of 1973 provides inter alia :

"(2) The licencing authority may at any

time convene a meeting for the purpose of considering any matter
relating to a licence granted under this Order, and shall cause
such
meeting to be convened in the event of suspension of a licence
pursuant to the provisions of subsection (3) .............."

I have
underscored the word "shall" in the above cited subsection
to indicate my view that for the purposes of taking
a decision to
suspend a trading licence , it is mandatory for the 1st respondent as
a licencing authority to convene a meeting
at which such a decision
will be taken. He cannot lawfully take a decision alone on the
matter. Indeed, the wording of subsection
(4) seems to support this
view. In the case under consideration, there is no indication that
the decision to suspend applicant's
licence was taken at a meeting
which had been convened pursuant to the provisions of S.8(2) of the
Trading Order. On the contrary
the decision appears to have been that
of the 1st respondent alone. I may be wrong but if that were the
case, the action of the
1st respondent would obviously be ultra
vires. However, whether the decision to suspend his licence was that
of 1st respondent
alone or the meeting convened in terms of the
provisions of'S.8 (2) of the Trading Order, one thing clear is that
the applicant
was aggrieved by that decision. That being so, his
remedy was provided under the provisions of subsection (5) of the
Order. That
subsection reads :

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"any person whose licence has been suspended by the licencing
authority under subsection (4) or who is dis­satisfied with
any
conditions which may have, been imposed in terms of that subsection
shall have the right to appeal to the Appeal Board within
14 days
from the date of notification of the licencing authority's decision."

I take
the view that before he can approach the courts of law, the applicant
as an aggrieved party should have first exhausted the
remedies
provided for under the Trading Order 1973. To hold the contrary will
no doubt vitiate the powers of the Minister under
the provisions of
Regulation 13(6) - Legal Notice No.23 of 1973.

In the
result I come to the conclusion that in order to enable the Appeal
Board and the Minister to deal with this matter (i.e.
assuming the
applicant wishes to appeal) the rule ought to be discharged and it is
accordingly ordered. Costs are awarded to the
respondents.

B.K.
MOLAI

JUDGE
17th May, 1984.

For
Applicant : Mr. Tsotsi

For
Respondent : Miss Tsiu