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Monday 02 August 2021, 21:48 pm.
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Government Loses Liquor Case

The government suffered another set back on Friday when the Court of Appeal dismissed its appeal challenging the validity of nightclubs' special licences.
By By Lekopanye Mooketsi
Correspondent
(GMT +2)
Mmegi Online :: Government Loses Liquor Case








The government lost the case with costs. Last April, the Lobatse High Court ruled that nightclubs can continue trading by the hours, which are prescribed on their special licences until they expire. The ruling was made after the government introduced new laws restricting liquor trading and entertainment hours. The nightclub owners had initially filed an urgent application to challenge the decision by the government that they should operate in accordance with the new liquor regulations. Before the High Court decision in April, police officers used to go around closing nightclubs that were not complying with the new regulations. When the nightclubs won against the government, the Attorney General moved to the Court of Appeal arguing that Justice Isaac Lesetedi of the High Court misdirected himself by 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 Court of Appeal ruled on Friday that the minister had powers under the Act to prescribe what kinds of licences might be issued and what terms might be incorporated. The court found that the power was to be exercised by making regulations under Section 68.

The Court of Appeal ruled that the Minister exercised that power and the regulations made include Regulation 27, which left it to the licensing authority to stipulate conditions and restrictions in a special licence. "The conditions and restrictions must include the fixing of trading hours, since otherwise there would be no effective regulation of those hours, and the authority did fix trading hours for the appellants. Accordingly, the minister and the authority each exercised the power conferred on them by the statute. None of this involved delegation of power and the appellant's argument is without merit," the Court of Appeal ruled.

The government had submitted that a distinction had to be made between the licence itself

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and the conditions attached.  But the Court of Appeal, concurred with Lesetedi that the licences confer on the nightclubs the right to sell liquor and that the extent and definition of that right is found in the conditions attached to the licence. "That right could only be cut down or limited by the exercise of some specific power, and we have not been referred to any such power. On any view, the right could not be cut down by the action of the minister in prescribing permitted hours of sale for a different purpose under a different statute."

The Court of Appeal said it seemed to be suggested that Regulation 28 could be read as authorising the minister to alter the hours prescribed in a special licence. However, the court said the power under that regulation has to be exercised by notice published in the Government Gazette. The court noted that there was no indication that any such notice has been published. 

"In any event, the regulation permits the minister to authorise the sale of liquor at times other than those prescribed in the regulations. It does not permit him to alter the prescribed hours by notice, as opposed to doing so by amendment of the regulations, nor to change the conditions of a special licence."

The Court of Appeal stated that in any event, 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. "That provision is unqualified and applies directly to the licences held by the respondents (nightclubs)."

Dismissing the appeal, the judges ruled that no reasons were been stated which cast doubt on the reasoning and conclusions of Lesetedi. The nightclubs were represented in the appeal by Gaborone attorneys, Motlamedi Makopo and Lone Masire while Isaac Kamwendo appeared for the government.

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