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IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE

MAHLB-000576-08

In the matter between:

Stratosphere Investments (Pty) Ltd 1^st Applicant

t/a Club Havanna

Stallion Investments (Pty) Ltd 2^nd Applicant

t/a Club Ozone

Dewnew Investments (Pty) Ltd 3^rd Applicant

t/a Satchmos Jazz Club

Trekkers Nite Club 4^th Applicant

and

Attorney General Respondent

(in her representative capacity for the

Botswana Police Service and Ministry of Trade

and Industry)

Y.S Moncho with LL Masire for the applicants

MB Marumo SC with I Kamwendo, G Walebowa and P. Butale for the respondent

J U D G M E N T

­

DINGAKE J:

1. By Notice of Motion dated the 10^th day of November 2008, the applicant approached this Court seeking a rule nisi calling upon the respondent to show cause why the following orders should not be made final:

“1. That this matter be heard as urgent dispensing with all the normal rules of service documentation and process.

2. Declaring that Regulation 8 and the hours of trading prescribed by the second schedule of the Liquor Regulations, 2008, Statutory Instrument No. 26 of 2008, are discriminatory, and ultra vires Section 15 (1) (3) of the Constitution of Botswana, as they;

(i) Do not affect other entities trading in the same commodity as the applicants, and should be set aside.

(ii) Infringe upon the existing rights conferred upon the applicants under the Trade and Liquor Act of 1986, by reducing the trading hours, and should be set aside.

3. Declaring that Regulation 13 of the Liquor Regulations, Statutory Instrument No. 26 of 2008, is discriminatory, and ultra vires Section 15 (1) (3) of the Constitution of Botswana, and should be set aside.

4. That the Ministry of Industry and Commerce be directed to forthwith, issue the applicants their discotheque/night club licenses which they have long applied for.

5. That the continued disruption by the police of the applicants’ operation of their night club businesses is unlawful.

6. That the police be interdicted from continuing their disruption of the applicants’ night club businesses.

7. That paragraph 6 above operates as an interim relief, pending the final determination of the matter.

8. That the respondents pay the costs of the application.

9. That the Honourable Court grants any further or alternative relief.”

2. The respondent resisted the orders sought, mainly on the ground that the matter was not urgent within the contemplation of order 12 (12) of the rules of the High Court. However, having regard to the uncontradicted averment that the police were unlawfully harassing the applicants and that such harassment was continuing, it became unconscionable for a Court of law, in a constitutional democracy, to turn a blind eye to grave averments that law enforcement agents are taking the law into their own hands. It is for this reason that I had no hesitation whatsoever in holding that the matter was urgent. Self help, especially, by law enforcement officers is a grave matter which requires urgent Court attention, lest the constitutional order of the State is undermined.

3. Thereafter, Mr. Kamwendo, learned counsel for the respondent sought an indulgence to consult his principals on the way forward. He was granted the indulgence.

4. When the Court resumed both counsel, agreed that the Court may issue the order sought by the applicant. A rule nisi in the terms earlier outlined was issued.

5. On the return day, the respondent took a number of preliminary points. However, for convenience and reasons of efficiency, it was agreed that the parties will argue both the preliminary points and the merits at once.

6. By way of background, it is worth-noting that the applicants in this matter, or some of them, won a notable victory in this Court and before the Court of Appeal against the respondent in a matter pertaining to terms and or conditions of their licences, issued in terms of the Trade and Liquor Regulations of the Trade Act of 1986 (see Stratosphere Investments & others v Attorney General MAHLB 000221-08 and the Attorney General v Stratosphere Investments (Pty) Ltd Court of Appeal Civil Appeal No. CACLB 014-08).

7. The High Court held that the applicants, so long as their licences run, are 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.

8. An appeal by the respondents against the decision of this Court to the Court of Appeal was unsuccessful.

9. This application is a different kettle of fish from the one described in the preceding paragraphs.

10. The application attacks Regulation 8 (and the hours of trading prescribed by the second schedule) and 13 of the Liquor Regulations, 2008, Statutory Instrument No. 26 of 2008, as being discriminatory, and ultra vires Section 15 1 (3) of the Constitution of Botswana; as they do not affect other entities trading in the same commodity as the applicants and infringe upon the existing rights conferred upon the applicants under the Trade & Liquor Act of 1986, by reducing the trading hours?

11. The Founding Affidavit of Steve Raman (Managing Director of 1^st, 2^nd, and 3^rd applicants) which sets out the factual basis of the applicants’ case and is used in support of the relief sought, complains that some retailers of alcohol are exempted from the regulatory provisions of the laws/regulations sought to be impugned, particularly the hotel and tourism industry.

12. Mr. Raman avers that exempting the hotel and tourism industry, which also deals with the same commodity (alcohol), is unjustifiably discriminating.

13. Mr. Raman also avers that there are certain other “drinking holes” which are exempted by the Regulations under challenge. Amongst these holes, he cites the Parliamentary bars, both at Government Enclave, and Parliamentary village and the University of Botswana. He also complains that certain other alcoholic beverages in the form of traditional brews like chibuku (shake- shake) are not covered by the regulations.

14. Mr. Raman also avers that the applicants, following the expiry of the old licences, had applied for licenses under the new Liquor Act, as far back as June, but to date such applications have not been processed.

15. According to Mr. Raman, following their applications aforesaid, they were issued with waivers, which the police do not recognize and that inconsequence, sometime in October, 2008, the police, who were armed, closed down the business on the basis that they had no licenses to trade. The latest such incident, in terms of which the police interrupted applicants’ operations, was on the 24^th of October, 2008.

16. It is the incident of the 24^th October, 2008; it would appear, that precipitated the urgent application.

17. I turn now to consider the preliminary points raised by the respondent and the substantive answer on the merits of the application.

18. As I understand the preliminary points raised, they are that:

18.1 The applicants’ attempt to torpedo or set aside the regulations as stated in their Notice of Motion is misconceived in that Section 15 of the Constitution under which the application is brought specifically relates to “discriminatory” treatment attributable to or on account of their “race, tribe, place of origin, political opinions, colour, creed or sex”. The respondent argues that the applicants made no attempt whatsoever to show that their circumstances fit into any of the types of discrimination contemplated by Section 15 of the Constitution.

18.2 That the Ministry of Trade and Industry is not the lawful authority to issue licenses because in terms of Section 9 of the Liquor Act, No. 9 of 2003, such authority vests on the liquor control authorities in respect of each district, subordinate, town, and city established under Section 3 of the Act.

18.3 That in terms of Section 9 of State Proceedings (Civil Actions by or against Government or Public Officers) Cap 10:01 final orders as sought by the applicants are not competent against government.

19. On the merits, the respondent through the Affidavit of Gaylard Kombani, the Deputy Permanent Secretary in the Ministry of Trade & Industry, filed in support of its case, aver essentially that there is no discrimination as suggested by the applicants.

20. The respondent points out that in terms of Section 38 of the Liquor Act, the Minister, may in public interest exempt by regulations certain persons from the provisions of the Act. She says that the minister has acting pursuant to Section 38 aforesaid, exempted tourism enterprises from the provisions of the Act – all in an attempt to diversify the economy of the country.

21. The respondent avers that this differential treatment is well within the parameters of the Constitution.

22. In a nutshell, the respondent avers that the tourism enterprises are exempt from trading licenses as they trade under their tourism licenses, but they operate under the same hours as all other bars.

23. With respect to the parliamentary bar, the respondent’s answer is that it is not a public bar. The respondent deny that the university bars are exempt from the provisions of the Act and with respect to chibuku outlets the respondent avers that they are in the process of formulating regulations to govern the sale of chibuku.

24. The respondent denies that the new Liquor Act has taken away the applicants existing rights. She avers that the applicants traded under special licences which had the terms of conditions of trading and such licences were valid for six months at a time.

25. I have had regard to the arguments of the parties, which mostly mirror the heads of arguments filed and the papers filed of record.

26. I propose to deal first with the question whether the applicants have made out a case of discrimination as contemplated by Section 15 of the Constitution.

27. The applicants are juristic persons. In my opinion, juristic persons can also be bearers of constitutional rights, to the extent that it could be shown that such rights are applicable to them. This must be so because not every right entrenched in the Constitution apply to juristic persons. (See Investigating Directorare: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others [2000] ZACC 12; 2000 (10) BCLR 1079 (CC).)

28. In the aforesaid case the South African Constitutional Court held that juristic persons, like natural persons, may have the right to privacy. The Constitutional Court expressed itself in the following terms:

“[P]rivacy is a right which becomes more intense the closer it moves to the intimate personal personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the flows …from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that the right to privacy does not protect juristic persons. Exclusion of juristic persons would lead to the possibility of grave violations, of privacy in our society, with serious implications for the conduct of affairs. The State might, for instance, have free licence to search and seize material from any non-profit organization or corporate entity at will. This would obviously lead to grave disruptions and would undermine the very fabric of our democratic State. Juristic persons therefor do enjoy the right to privacy, although not to the same extent as natural persons. The level of justification for any particular limitation of the right will have to be judged in the light of the circumstances of each case.”

29. Section 15 (2) of the Constitution say “no person” shall be treated in a discriminatory manner. It defines “discriminatory” as affording different treatment to different “persons” attributable to certain listed grounds.

30. The question that arises is whether the applicants are “persons” as used in Section 15 (3) of the Constitution?

31. Section 44 (2) of the Interpretation Act Cap 01:04 provides that:

“Where an enactment employs the term “person” or “party”, the use of a pronoun importing gender shall not of itself be construed as limiting the term to a natural person.”

32. There can be no doubt that the Interpretation Act applies to every enactment, including the Constitution.

33. Section 2 of the Interpretation Act provides that:

“Each provision of this Act applies to every enactment (whether enacted before, on or after the commencement of this Act) being –

a) the Constitution;

b) an Act (including this Act) of the Parliament of Botswana;

c) an instrument made (directly or indirectly) under an enactment,

except in so far as the contrary intention appears.”

34. It is, therefore, clear that where an enactment which includes the Constitution uses the term “person” that term is not limited to natural person but includes juristic persons. In other words, juristic persons are entitled to rights under Chapter 2 of our Constitution to the extent that the nature of the right permits it.

35. I have earlier indicated that there are certain rights which by their very nature cannot apply to juristic persons. It appears to me that it should be obvious that a juristic person cannot lay claim to rights of human dignity, freedom and security of person, life, protection against forced labour to give but a few examples. But it can certainly lay claim to the rights to freedom of expression and the right to property.

36. It is therefore incumbent upon a party alleging an infringement of the Constitution to bring himself/herself or itself within the provisions of the section under which he/she/it seeks refuge, by showing that the section applies to him/her or it.

37. The provisions of Section 15 of the Constitution are central to the dispute and deserve being reproduced in their entirety.

38. Section 15 (1) (2) and (3) provides as follows:

15. (1) Subject to the provisions of subsections (4), (5)

and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(3) In this section, the expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

(4) …”

39. I must say, as a precursor, to my interpretation of the aforesaid Sections that I am fully conscious that the enterprise of constitutional interpretation is extremely complex. This complexity, arises in part, from the realization, now even shared by traditional lawyers, that the language of the Constitution, more particularly the Bill of Rights, has no ‘single’ objective meaning. Kentridge J exhibited this awareness, in the case of S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC) at paragraph 17 when he said:

“ I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of ones personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean”( emphasis mine)

40. I associate myself with the sentiments expressed by Kentridge J, and I shall approach the interpretation of Section 15, which I am called upon to interpret, with the aforesaid framework in mind.

41. I have read and re-read the provisions of Section 15 of the Constitution with extreme care.

42. It appears to me that for the applicants to succeed in their attempt to have the regulations declared unconstitutional, they must show that the section under which they seek refuge applies to them, based upon the grounds listed therein or other grounds shown to be analogous to one of those grounds that are listed.

43. It must always be borne in mind that discrimination per se is not prohibited. The discrimination that is prohibited is the one that is defined by Section 15 (3), as expounded by the authority of the Court of Appeal – the case of Attorney General v Dow 1992 BLR 119. (See also President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC).

44. It follows therefore differential treatment that is not unfair or irrational cannot fall foul of the provisions of Section 15 of the Constitution. The same point was made in the case of Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC) at para 31, when the Court observed that:

“It must be accepted that, in order to govern a modern country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so without differentiations and without classifications which treat people differently and which impact on people differently. It is unnecessary to give examples which abound in everyday life in all democratic based on equality and freedom. Differentiation which falls into this category very rarely constitutes unfair discrimination in respect of persons subject to such regulation, without the addition of a further element …

45. It is my view that if a corporate entity can show that a piece of legislation sought to be impugned or challenged discriminates against it on one of the listed grounds or other analogous grounds, there is no reason in principle, why the Courts should turn it down. (See Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); (1989) 1 SCR 143)

46. On the basis of the above premise, the question must be posed whether the applicants have succeeded in bringing themselves under the umbrella of Section 15 of the Constitution.

47. Section 15 (3) defines “discriminatory” for purposes of Section 15 of the Constitution as follows:

“(3) In this section, the expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

48. In my judgment, a careful consideration of Section 15 (3) appears to relate to “discriminatory” treatment attributable to “persons” wholly or mainly attributable to or an account of their race, tribe, place of origin, political opinion, colour or creed, or any other analogous grounds.

49. I have read the papers of the applicants with a fine comb and listened very carefully to submissions of their learned counsel, and I must say, with respect, that nowhere do the applicants state the ground upon which they are discriminated.

50. It has not been urged upon me that a specified ground upon which the applicants say they were discriminated against is analogous to the grounds listed in Section 15.

51. I hold therefore that failure by the applicants to bring themselves within the purview of Section 15 of the Constitution as indicated above, is fatal to their application, and consequently, on this ground alone, the application falls to be dismissed.

52. The applicants had a choice to seek refuge under Section 3 of the Constitution that has been interpreted as encapsulating the right to equal protection of the law, but chose not to do so.

53. It may well be that such a complaint would have yielded a different result.

54. Mr. Moncho, learned counsel for the applicants, during the course of his argument tried to invoke the provisions of Section 3, although this ground is not raised in the papers in any meaningful manner, except in passing. (See para 30 of the Applicant’s Founding Affidavit)

55. It is not the function of the Courts to deal with issues they are not asked to deal with on the papers filed of record. It would therefore be improper to even consider the question whether the regulations offend against the provisions of Section 3.

56. Three remaining issues deserve short treatment.

57. These are the issue of license applications that the applicants complain were not being processed; that the new Liquor Act has taken the applicants’ existing rights and the complaint relating to police harassment or actions.

58. Both counsels herein have informed the Court that the applicants have since been issued with the licences. To this extent, the issue has become to some extent academic, and I need not spend much time on it.

59. However, I must say that the authority in law to issue the licenses of which the applicants complain about is not the responsibility of the Ministry of Trade, but the Liquor control authorities (See Section 9 of the Liquor Act No. 9 of 2003).

60. Section 3 of the aforesaid Act creates a liquor control authority for each district, sub district, town and city.

61. Section 9 of the Liquor Act No. 9 of 2003, provides that:

“9(1) A control authority shall –

(a) Issue, in accordance with the provisions of this Act, the following licences

(i) bar liquor licence

(ii) bottle store liquor licence

(iii) liquor depot licence

(iv) discotheque/night club liquor licence

(v) distributor liquor licence

(vi) club liquor licence

(vii) temporary liquor licence

(viii) wholesale liquor licence”

62. It is clear from the above provision that there was therefore no legal basis to seek such licences from any authority that in law did not have the power to issue the licenses.

63. It is trite learning that any exercise of public law must be sanctioned by law.

64. No public authority may exercise power or perform any function not authorized by law. What this simply means is that any action performed without lawful authority is illegal (see FedSure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374, para 58)

65. In my view, it would be incompetent, nay, illegal if parliament, through legislation, gives power to liquor control authorities to issue licenses, and the Ministry of Trade Industry, usurps the power conferred on the liquor control authorities and start issuing licences.

66. It would also appear to me having regard to the Liquor Act, No 9 of 2003 that trading without a license is an offence; and to this extent, the actions of the police aimed at forestalling a commission of an offence cannot be unlawful.

67. A final interdict even if it was competent, (a matter which I need not address) would not be competent for this reason alone.

68. I must say in passing, however, that the landmark decision of the Court of Appeal in the Medical Rescue International Botswana Ltd v The Attorney- General and Others 2006 (1) BLR page 516 holding that a final interdict against government where there is an violation of fundamental freedom and rights of individuals is competent, may need to be extended in the course of time in an appropriate case, to cover other deserving situations, not necessarily relating violation of fundamental rights and freedoms, given the country’s Constitution clear commitment to the rule of law, that includes among other things the notion that nobody is above the law.

69. With respect to the Liquor Act taking away applicants’ existing rights, I do not understand how rights that accrued out of a special license that had conditions attached to that licence, which licenses were valid for a period of six months at a time, will remain in existence after such licences have expired.

70. In any event, the Court of Appeal has effectively ruled that the applicants’ licences expired. Any trading with liquor must now be in terms of the new Liquor Act.

71. At page 6 of its judgment cited supra, the Court of Appeal when dealing with the question of licences granted under the old legislation said the following:

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 licenses held by the respondents. In these circumstances, I do not think that any reason has been stated which would cast doubt on the reasoning and conclusions of Lesetedi J, with which I entirely agree.”

72. Having regard to my conclusions aforesaid, it is not necessary to traverse other grounds raised by counsel for the respondent.

73. In the premises:

73.1 The rule nisi issued on the 17^th of November, 2008 is discharged with costs.

DELIVERED IN OPEN COURT THIS 15^TH DAY OF DECEMBER,

2008.

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OBK DINGAKE

JUDGE

Y S MONCH ATTORNEYS – APPLICANTS’ ATTORNEYS

ATTORNEY GENERAL’S CHAMBERS – RESPONDENT’S ATTORNEYS

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