The government has appealed against the temporary relief granted by the High Court for nightclubs to keep operating according to old hours following implementation of the new liquor trading hours.
In May, Lobatse High Court Judge Isaac Lesetedi ruled that nightclubs should continue to operate in accordance with their old licences until September when they expire. The old licences entitled nightclubs to operate between 8 pm and 4.00 am.
This followed an urgent application lodged by nightclub owners after the government imposed new regulations, which stipulate that nightclubs and other liquor outlets should close earlier.
"The conclusion that I reach therefore is that the applicants are, so long as their licences run, entitled to operate within the times specified in their licences; and that such right shall, unless otherwise lawfully revoked earlier, cease with effect from expiry of each of those licences," Justice Lesetedi had ruled in his judgment in May.
Lesetedi ruled in favour of the nightclubs owners and awarded costs against the government.
But in their urgent appeal subsequently filed with the Court of Appeal, the Attorney General argues that the judge misdirected himself in finding that the Minister of Trade and Industry 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, local authorities had the delegated power to determine the trading hours as they grant special liquor licences," the Attorney General's legal representative, Isaac Kamwendo, submits in his grounds of appeal.
"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."
Kamwendo said the judge had misdirected himself by not distinguishing the licence from the conditions that it is granted with. The licence is issued and allows the
"The two are distinct from each other and are not the same," he argues.
He says in terms of Section 16 of the repealed Trade and Liquor Act, a licencing authority may issue a licence containing such provisions or conditions as the licensing authority considers appropriate.
The judge's reasoning that the trading hours were a condition of the special licence is untenable at law as the Act clearly distinguishes between licences and conditions.
Kamwendo argues that the provisions of the repealed Trade and Liquor Act clearly provided that all licensee's trading hours shall be regulated by statute.
The state attorney says the judge misdirected himself by holding that the provisions of the Interpretation Act, more particularly the Saving Act, applies to the applicants' licences, especially to the trading hours as the licensing authority had no power to prescribe trade hours.
"The learned judge erred and/or misdirected himself by holding that the current regulations not effectively amended the old regulations.
In terms of Section 5 (3) of the Statutory Interpretations Act, where an enactment confers to make an instrument it shall be deemed to include also a power exercisable in like manner and subject to the like conditions to amend, repeal or replace any such instrument," the grounds of appeal read.
The Attorney General is praying that the judgment handed down by the High Court should be set aside in its entirety.
The nightclub owners are represented in this matter by Gaborone attorneys, Yul Moncho and Lone Masire of YS Moncho Attorneys.
The controversial liquor regulations were effected in April. They have reduced the opening hours of liquor outlets. Nightclubs owners felt they were the hardest hit by the changes.
According to the regulations, nightclubs are supposed to close at 2.00 am during the weekends and at midnight during the week