Monday, September 21, 2020

Night club owners win another round in court

Court of Appeal judges on Friday ruled in favour of night club owners in a case in which the Attorney General was appealing against a judgment passed by Lobatse High Court judge, Isaac Lesetedi, concurring with an application brought before his Court by night club owners who wanted him to order that they are entitled to operate in accordance with the regulations of their old licences which allowed them to operate from 8 pm to 4 am.

In their judgment, the Court of Appeal judges, led by Lord Coulsfield, dismissed all the three arguments brought before them by lawyer Isaac Kamwendo of the Attorney General’s Chambers on grounds that they lacked merit.

On the first argument brought by the appellants that, under the legislation, the power to prescribe trading hours was a function of the Minister and that it had not been shown that the Minister had delegated that power to local licensing authorities or that the function had been removed from the Minister.

Answering this, Coulsfield said that in his opinion, this was a simple misunderstanding as the function of issuing licences, subject to appropriate conditions, was conferred on licensing authorities by Section 18 of the 1986 Act.

The Minister, he said, had power under the Act to prescribe what kinds of licences might be issued and what terms might or must be incorporated and that this power was exercised by making regulations under section 68.

The Minister, said the Court of Appeal judge, exercised that power and regulations made included Regulation 27, which he said left it to licensing authorities to stipulate conditions and restrictions in a special license. The conditions and restrictions, he said, must include the fixing of trade hours since otherwise there would be no effective regulation of those hours and that the authority did fix trading hours for the appellants.
Both the Minister and the authority, the judge said, exercised their powers conferred on them by the statute and that none of that involved the delegation of power and that this meant that the appellant’s argument had no merit.

On the second submission that a distinction had to be made between the license itself and the conditions attached to it and that the night club owners still held the license conferring the right to sell liquor even if the conditions were altered, the judge said he again thought that this involved a misunderstanding.

The licences, he said, give the night club owners the right to sell liquor as judge Lesetedi had already stated and that the context and definition of that right is found in the conditions attached to the license. The judge said that right can only be cut down or limited by the exercise of some specific power and that they have not been referred to any such power.

The right, he said, could not be cut by the action of a Minister in prescribing permitted hours of sale for a different purpose under a different statute. The judge further said that it seemed to be suggested that Regulation 28 could be read authorizing the Minister to alter hours prescribed in the special licence.

However, Coulfield said that the power under that regulation has to be exercised by notice published in the Government Gazette and that there is no indication that any such notice had been published.
Further, the regulation permits the Minister to authorize the sale of liquor at times other than those prescribed in the regulations and that it does not permit him to alter prescribed hours by notice as opposed to doing so by amendment of regulations or to change the conditions of a special licence. Lastly that, section 32 of the Trade Act of 2004 specifically says that any licence granted under the old legislation is to remain valid until its expiry. The judge also said that “in these circumstances, I do not think that any reason has been stated which would cast doubt on the reasoning and conclusions of judge Lesetedi with which I entirely agree”.

Asked to comment on the ruling, Lore Masire, one of the lawyers representing night club owners, said, “Justice has prevailed”.

This judgment has, however, come at the wrong time as, currently, only one night club, Club Ozone, is legally operating under the old licences whilst the other clubs are operating under new licences with new operating times of 8pm -2am.

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