Saturday, December 2, 2023

Minister Seretse’s decision was ‘illegal and irrational’ ÔÇô court

The minister’s refusal to act on the appeal was incorrect, irrational, illegal and contrary to the statute empowering him to act ÔÇô High Court

The minister in question is Vincent Seretse under whom the Gambling Authority falls. In its last day of statutory existence, the Authority predecessor, the Casino Control Board, had held off on a decision on an application by Moonlite Casino, the gambling arm of Gaborone Hotel, to move to i-Towers in the new CBD.

As Minister of Investment, Trade and Industry, Seretse is legally empowered to hear appeals of those aggrieved by decisions of the Gambling Authority. It was on this basis that the management of Moonlite approached him. The company had made representations to the CCB on March 23, 2016 and on April 1, 2016 when the CCB became the Gambling Authority, no resolution on its application had been made. For Moonlite, this presented a costly complication because beginning July 1, 2016, the company started paying rent of P201 670 a month. A letter from CitySkapes, the company that owns i-Towers, notified the Managing Director of Moonlite, Bipin Awasthi, that while his company didn’t have a licence to trade, “your obligation to pay rental remains whilst you resolve your licensing issues.”

In their affidavits, both the Attorney General (which is traditionally cited as the first respondent in all matters that concern the government) and the Gambling Authority asserted that the latter had not really taken a decision but had merely deferred it. At oral argument, the state attorney, Grenorrah Begane maintained its position while the Authority’s own, Sipho Ziga, conceded that the deferment was indeed a decision. Clarity on this issue is important because it establishes basis upon which the minister could (or couldn’t) intervene. The court itself took the view that the “refusal of the Board to make a decision” was “essentially a rejection” of Moonlite’s application. On such basis, the company had a right to appeal the Board’s decision to the minister. Rather than deal with the issue, the minister referred it back to the Board, action that Justice Dr. Zein Kebonang frowned upon.

“The Minister’s refusal to act on the appeal was incorrect, irrational, illegal and contrary to the statute empowering him to act. He failed to take into account the fact that the Board had actually made a decision and his grounds for refusing to hear the appeal had no factual or legal basis. It was also improper for the minister to refer the applicant back to the Gambling Authority when he knew or ought to have known that the Gambling Authority had no power to deal with applications that had been left pending by the Casino Control Board. This, in my view, constitutes sufficient grounds to review and set aside the decision of the minister and I accordingly do,” Kebonang ruled.

The court had the option of referring the matter back to the minister but the judge said that he did not believe that the former “would consider the matter with an open mind and would give genuine consideration to the appeal before him if I were to remit the matter back to him.”


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