Africa-Press – Eswatini. Unconstitutional provision!
A full bench of the High Court has declared unconstitutional, the section of the Liquor Licence Act, 1964, which provided that the decision of the minister of Commerce, Industry and Trade when it comes to appeals in respect of a grant, renewal, removal or transfer of a licence, should be final and should not be questioned in any court. Section 11 bis of the Act provided that an applicant or an objector aggrieved by the decision of the Liquor Licensing Board in respect of a grant, renewal, removal of transfer of a licence, may within 21 days of such decision, appeal to the minister, whose decision shall not be questioned in any court. The court found that part of the abovementioned section was inconsistent with the constitution.
Judgment
In its judgment, the Supreme Court stated that, the position was that from the date of the promulgation of the constitution, any other law inconsistent with the supreme law of the land, to the extent of its inconsistency, was void. The court said the Act was inconsistent with Section 2(1) of the Constitution of the Kingdom of Eswatini, which states that, the Constitution is the supreme law of Eswatini and if any other law is inconsistent with the constitution, that other law shall, to the extent of the inconsistency, be void.
The genesis of the matter is that Bongani Mabuza, trading as Gold Sikhova Wine and Malt, approached the court to declare Section 11bis of the Act void for being inconsistent with Section 152, read with Section 33 of the Constitution. Section 152 stipulates that, the High Court shall have and exercise review and supervisory jurisdiction over all subordinate courts and tribunals or any lower adjudicating authority and may in exercise of that jurisdiction, issue order and directions for the purpose of enforcing or securing enforcement of its review or supervisory powers.
Jurisdiction
Mabuza averred that, Section 152 conferred upon the court powers to exercise review and supervisory jurisdiction over all subordinate courts or any adjudicating authority. He highlighted that Section 33 (1) gives a person appearing before any administrative authority the right to be heard and be treated fairly. It was his contention that any person, who was aggrieved with the decision taken against him by an administrative authority, had the right to apply to a court of law. Mabuza is the proprietary of a wine malt styled ‘Golide Lasikhova Wine and Malt’ at the third respondent’s (Montigny Usutu Forest Products Limited Company).
Respondents in the matter were Minister of Commerce, Industry and Trade Manqoba Khumalo, ministry of Commerce, Industry and Trade, Montingy (Usutu Forest Products Limited Company). He applied for a renewal with the Liqour Licensing Board under the Ministry of Commerce, Industry and Trade and the board granted him licence renewal. The third respondent appealed the decision of the board to the minister, who they wanted to reverse the decision of the board. The applicant told the court that he was taken aback by the first respondent’s (minister) decision to reverse the board’s decision, because he was not furnished with the ruling of the board and the appeal itself, to be able to appraise himself with the grounds raised on appeal.
Appeal
He then filed an application before the High Court to review, correct and set aside the minister’s decision and also challenge the constitutionality of Section 11 bis of which the minister relied upon to hear and determine the appeal. The issue lied with the latter part of the provision, which stated that the minister’s decision should be final and not be questioned by any court of law. The full bench had been called upon to determine whether the provision was inconsistent with the constitution or not.
During the argument of the matter, the respondents submitted in opposition, that in accordance with Section 11 bis, the minister’s decision should be final and should not be challenged or be questioned in any court of law. It was further the respondent’s contention that, the applicant should have challenged the constitutionality of Section 11 bis first before reviewing the minister’s decision.
Administrative
In its judgment, the full bench of the High Court stated that several constitutional provisions in the constitution bestowed the High Court with powers of reviewing decisions or proceedings of officers performing quasi-judicial or administrative functions like that performed by the minister in the present matter. Quasi-judicial refers to a proceeding conducted by an administrative or executive official or organisation that is similar to a court proceeding. The applicant was represented Meluleki Ndlangamandla of MLK Ndlangamandla Attorneys, while appearing for the minister and the ministry was Siboniso Hlawe from the chamber of the Attorney General. The third respondent was represented by Marcia Hillary of M.J Hillary Attorneys. The matter was heard by Justices John Magagula, Maxine Langwenya and Sabelo Masuku.
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