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Botswana: Liquor Regulations Verdict Reserved
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Mmegi/The Reporter (Gaborone)
18 July 2008
Posted to the web 18 July 2008
Lekopanye Mooketsi
The Court of Appeal has reserved judgement in a case in which the government is challenging a High Court ruling, allowing nightclubs to operate under their old licences. The appeal was heard at the Court of Appeal in Lobatse yesterday.
In May, Lobatse High Court Judge, Isaac Lesetedi, granted nightclubs a temporary relief to operate with the hours stipulated on their old special licences until when they expire. The old licences entitled nightclubs to operate between 8 pm and 4am.
Nightclubs initially, took government to court to challenge the new liquor regulations, which reduced their trading hours. The High Court ruled in favour of the nightclub operators that they should continue to use their special licences until they expire in September.
Government has now appealed against the High Court ruling. In their urgent appeal, the Attorney General argues that the judge misdirected himself by finding that the Minister of Trade and Industry (Neo Moroka) had delegated the powers to prescribe trading hours for special liquor licences to local licensing authorities.
"The judge holds that because the regulations do not prescribe the trading hours for special liquor licences, the local authorities had the delegated powers to determine the trading hours as they grant special liquor licences.
This finding is erroneous as the principal Act in Section 26 of the Trade and Liquor Act provides that the licences' trading hours shall be prescribed by the minister.
The power that is conferred upon a public authority by an Act of Parliament cannot be delegated to another. In the event that power to delegate was delegated to the authority that delegation was unlawful," the Attorney General's legal representative, Isaac Kamwendo, submits in his grounds of appeal.
But in their counter arguments, Y.S. Moncho, the attorneys representing nightclub owners, argue that the appeal is improperly filed. They submit that the procedure for bringing an appeal on urgency under the rules has not been followed.
They noted that the appellant has come to court on a certificate of urgency, which states that the matter is urgent because if it is not heard in July, the state would suffer injustice as one of the licences expires in September.
They have stated that in terms of rule 8, the court may direct a departure from the rules in any way in the interest of justice upon application supported by an affidavit setting for good and substantial reasons. "In this matter there is neither application nor an affidavit but merely a certificate of urgency. The certificate is not an affidavit nor does it set forth good and substantial reasons for departing from the rules," the respondents' heads of argument read.
They are praying that the Court of Appeal should rule that the appellant should bring its appeal in the normal course and not as an urgent appeal.
The respondents also argue that some of the grounds of appeal raised by the appellant were never canvassed at the High Court. They pleaded that the Court of Appeal should not entertain and the appeal on these grounds as the High Court has not made a pronouncement on them.
On whether the new operating hours under the new regulations could be applied adversely to affect the current licences issued under the old regulations, the respondents submit that this should never be the case.
The respondents argue that the powers of the licensing authority to specify trading hours was done by and emanates from the Regulation and was, therefore, within the ambit of both Sections 26 and 68 of the Enabling Act.
They further submit that as holders of special liquor licences, their trading hours were properly sanctioned and they are entitled to enjoy trading within those hours.
"Appellant's argument that the minister sub-delegated a task, which was otherwise, delegated to him is misleading because the licensing authority was part and parcel of the ministerial machinery in dealing with specifying trading hours for applicants deserving special treatment in their sale of liquor. An assessment had to be made, before hours, among other restrictions, could be imposed."
The respondents submit that the appellant should have on its own accord, and not on appeal, taken steps to remedy whatever wrong it may have detected on the licences. The respondents stated this has not been done.
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They further noted that the appellant's contention is that the High Court misdirected itself by holding that the new regulations did not effectively amend the old ones. "Again with due respect to the appellant, there is no such finding by the judge nor was it an issue nor was it in dispute." The issue, according to the respondents, is whether the new operating hours could be applied adversely to affect current licences under the old regulations. "It was and it is common cause that the new regulations effectively amended the old ones, but old licences could still operate until such time when they expire. This is our case and we so submit."
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