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Botswana: High Court Grants Night Club Owners Reprieve
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The Voice (Francistown)
13 May 2008
Posted to the web 13 May 2008
Moreri Moesi
Lobatse
Lobatse High Court has ruled that night club operators were entitled to operate within the times specified in their special liquor licences issued under the Trade and Liquor Regulations of the repealed Trade and Liquor Act of 1986.
"...such right shall, unless otherwise lawfully revoked earlier, cease with effect from the expiry of each of those licences," said Justice Isaac Lesetedi on Monday.
He said the licences would not worth the paper on which they were written on if the applicants were not allowed to trade after 0200 hours.
"The time 0200 hrs-0400 hrs are the constituent and object of the licences in question."
Some of the special licences expire on May 7 this month while others expire in September.
Justice Lesetedi noted that such trading hours were the life blood of the licences.
Ruling in favour of the four ; Club Havana, Club Ozone, Satchmos Jazz club and Club Catch 22, Justice Lesetedi said the operational validity of their licences was protected by both section 32 of the Trade Act and Section 13(1) (c) of the Interpretation Act.
Section 32 of the Trade Act reads;" any licence, permit or authorisation issued or granted under the provisions of the repealed trade and liquor Act shall remain valid until its expiry date whereupon the licence shall apply under this Act for a new licence."
Whereas section 13(1) (c) of the Interpretation Act which is applicable to all repealed statues reads;
" The repeal of an enactment shall not affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder."
Justice Lesetedi said the provision of the Interpretation Act broadly reflected the well known rule of statutory construction that no statute was to be construed to have a retrospective operation in the sense of taking away or impairing a vested right acquired under existing law.
On whether the special licences issued constituted a right, Justice Lesetedi said a licence conferred upon the licensee a right to carry out an activity.
He said the licences issued by the licensing authorities under a statutory frame work constituted a right in favour of the licensee.
The High Court also ordered that the Attorney General pay the costs of the application
The night club owners sort relief from the High Court after the Botswana Police at the instance of the Minister of Trade and Industry were forcing them to close at 0200 hrs although the special liquor licences they held entitled them to operate from 0200hrs-0400 hrs.
The tussle between night clubs and the government started at the beginning of April when the new liquor regulations came into operation.
Under the new regulations clubs are expected to open at 1900 hours and close at midnight from Monday-Friday.
While on Fridays and Saturdays there are expected to open from 1900 hours and close at 0200 hours.
The state had argued that although the licences were valid, the operating hours of those special licences were overridden and substituted by the hours stipulated under the new regulations.
Mr Isaac Kamwendo of the Attorney General's Chambers represented the state while Mr Yul Moncho assisted by Mr Lone Masire represented the four night clubs.
Asked about the next course of action, Mr Moncho said they would explore the possibility to sue the state for damages.
In their joint affidavit, Mr Steven Raman and Venolia Sobhan, owners of some of the clubs said the police always threatened them with criminal prosecutions and arrest in case of resistance since the coming into effect of the regulations.
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They said closing early had led to loss of profits since their businesses dealt with selling of liquor and playing music to their customers.BOPA
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