Dlamini Holdings (Proprietary) Limited v Director of Customs and Excise and Others (CIV/APN 304 of 98) [1998] LSCA 75 (31 July 1998)

CIV/APN/304/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: D L A M I NI H O L D I N GS ( P R O P R I E T A R Y) LIMITED A P P L I C A NT and. T HE D I R E C T OR OF C U S T O MS A ND EXCISE T HE M I N I S T ER OF F I N A N CE T HE A T T O R N EY G E N E R AL L E S O T HO B R E W I NG C O M P A NY ( P R O P R I E T A R Y) L I M I T ED FIRST R E S P O N D E NT S E C O ND R E S P O N D E NT T H I RD R E S P O N D E NT F O U R TH R E S P O N D E NT R E A S O NS F OR J U D G M E NT On the 31st July, 1998, applicant's application w as dismissed and the Rule Nisi which the court issued on the 15th July discharged. There w as no order as to costs. Reasons were to be Sled later. These are the reasons. Applicant brought an urgent application in which it w as asking for the Order:- 1. Restraining the Director of Customs and excise and his officials f r om obstructing or preventing applicant f r om importing liquor in terms of i m p o rt permit n u m b er 0 0 0 91 dated 2 2 nd January, 1 9 98 a nd f r om i m p o u n d i ng or confiscating such liquor or vehicle transporting s u ch liquor. 2. Interdicting the Director of C u s t o ms a nd the Minister of Finance f r om advising suppliers of liquor in the Republic of South Africa that the aforesaid permit of applicant is invalid a nd of no force or effect. 3. Interdicting the Director of C u s t o ms a nd the Minister of Finance from cancelling, a m e n d i ng or withdrawing applicant's i m p o rt permit n u m b er 0 0 0 91 dated 2 2 nd J a n u a r y, 1 9 9 8. 4. Directing the first t wo respondents to p ay costs. T he Court did not grant a ny interim relief but ordered applicant to serve the respondents after dispensing with the n o r m al rules so that the matter could be finalised on the 2 2 nd July, 1 9 9 8, a period of seven days. on the 31st July, 1 9 9 8, M r. Letsie first a nd second respondents, stated the permit w as valid for other liquor except beer. Beer h ad b e en a d d ed fraudulently. M r. Roberts Lesotho Brewing C o m p a ny (Pty) Ltd. m a de an application f r om the bar in w h i ch he asked for leave to intervene as a respondent. There w e re no papers Sled as M r. Roberts stated that his client, Lesotho B r e w i ng C o m p a ny (Pty) Ltd., h ad just b e en informed of the application by M r. Buys, the attorney for applicant. Mr. Roberts stated that his client b r e w ed beer in the country a nd w as against beer being i m p o r t ed into Lesotho on a permit that w as not only invalid but that h ad expired. M r. Letsie for the three respondents did not oppose the application. E v en the applicant did not oppose this application for joinder of Lesotho B r e w i ng C o m p a ny Ltd. provided interim relief w as granted in terms of w h i ch applicant w o u ld continue to operate on the said permit pending the finalisation of the application. I granted the application for joinder. On the return day, M r. Lubbee for applicant argued that Lesotho B r e w i ng h ad no locus s t a n di in the application. B this time Lesotho B r e w i ng C o m p a ny h ad b e c o me the fourth respondent in these proceedings. Indeed fourth respondent a nd the other respondents h ad b e en authorised to do w h a t e v er they w i s h ed to test if portions of the applicant's permit w e re not forged. Applicant in papers stated that there w as internal a nd external pressure w as being brought to bear on the Lesotho authorities to stop h im f r om bringing liquor in Lesotho. T he application w as argued on the basis that the South African B r e w i ng Limited a nd Lesotho B r e w i ng C o m p a ny (Pty) Limited w e re sister companies. It w as on this basis that applicant h ad obtained an interdict against South African Breweries Limited in Bloemfontein on the 15th J u n e, 1 9 9 8. W h en M r. L u b be for applicant raised the question of locus standi, as already stated, Lesotho Brewing C o m p a ny Ltd. w as already a party, because applicant had, t h r o u gh M r. Buys, m a de Lesotho B r e w i ng C o m p a ny Ltd. a party by consent. I do not therefore h a ve to decide this question. M r. Roberts h ad argued that applicant w as i m p o r t i ng liquor illegally without a licence to do so. Although I did not h a ve to decide that issue on the d ay application for joinder w as m a d e, w h at Prest said in the Law and Practice of Interdicts page 3 10 m i g ht apply. T he learned author says:- "If a person w a n ts to obtain an interdict restraining s o me o ne from carrying on business illegally because he did not h a ve the necessary licence or certificate, in order to satisfy the court that he h as locus standing he m u st establish...that the particular legislation w h i ch prohibits the illegal trade w as m a de in his special interest." It w as argued that Lesotho Brewing C o m p a ny h as w h at a m o u n ts to merely a financial interest in the Minister's exercise of the p o w er to grant licences to import liquor from South Africa, therefore it h ad no legal interest in the validity of applicant's permit to i m p o rt liquor f r om South Africa. Lesotho Brewing Company's argument amounted to that as they brewed liquor in Lesotho they had a direct and special interest in the validity of permits to import liquor. Lesotho Brewing Company Ltd. had applied for leave to intervene. Corbett J (as he then was) in United Watch & Diamond Co. v Disa Hotels 1974(4) SA 409 at 416 AB expressed his views on joinder as follows: "It is often said that the court has a discretion where a party seeks to intervene...and that the power of the Court to grant leave to intervene is wider than where joinder of a party is demanded as of right... But so far as I am aware, ...it would seem that the test of a direct and substantial interest in the subject matter of the action is again regarded as being the decisive criterion." During argument, Mr. Lube for applicant had to concede that since Lesotho Brewing Company Ltd. had already been made a party by consent pursuing this argument on its locus standi was too late. Mr. Letsie for the first three respondents argued that the rest of the permit was valid except for beer. This addition of beer had been made contrary to the Ministers' orders to the Director of Customs and excise. He argued that beer was fraudulently added. He produced the affidavit of the Minister to the effect that his instructions had been exceeded by including beer. As he had not got evidence that beer had been added fraudulently, that argument was not helpful. It was also not taking the matter anywhere to argue that the Minister's orders were exceeded. / Mr. Lubbe for applicant had correctly argued that the internal affairs of the department of Customs and excise were not the concern of applicant. The Minister could not inconvenience the public by claiming that what is authorised in his name on his instructions had not been authorised by him. If there were mistakes, the Minister must accept they were his mistakes. I agreed with this argument because government would be impossible if what was done by the public servants on the instructions of the Minister could be declared invalid merely because between the public servants and the Minister there had been a misunderstanding or a mistake. I found the Minister's affidavit to be not advancing the respondent's case at all. I had no problem in accepting the permit on the face of its contents. Mr. Woker for Lesotho Brewing Company Ltd. persisted in challenging the permit on the issue of importing beer. He argued the Director of Customs was wrong to delegate the power of issuing of permits furtherto his subordinate. The observation I made was that the Minister and the Director of Customs and Excise were not complaining. I found this argument not helpful at all since the other respondents said the permit was still valid. Mr. Woker persistent in arguing that the permit must be fraudulent on the importation of beer merely because affidavits of respondents said it was so, did not take this matter anywhere. It seemed strange that one permit could be valid for other liquor other than beer w h en it was issued by the same person. There was no genuine dispute of / fact because what was implied was that the officer put more on the permit than the Minister had instructed, something that was irrelevant as far as applicant was concerned. Eventually Mr. Woker came to the real issue about the permit. On the face of the permit it had been issued on the 23rd December, 1997, for seven days and for one entry only. This permit was on the 22nd January, 1998 renewed and extended on the same conditions. On the face of it, it had expired on the 29th January, 1998. The first three respondents still maintained it was valid and stated it had continued to be used and should still be used provided beer was not imported into Lesotho. Mr. Lubbe for applicant conceded it was not in perpetuity. I was left puzzled that this permit should have been used beyond the 29th January, 1998, w h en on the face of it it should have expired. It was clear that applicant stood of fell by the permit and what was contained in it ex facie. That being the case, applicant had no valid permit to import liquor into Lesotho at all beyond the 29th January, 1998. I did not understand why the Minister of Finace and the Director of Customs strenuously maintained a permit that had long expired was still in force. It seemed to me that since applicant had succeeded in showing that his permit included beer throughout he should not be made to pay costs. This w as particularly fair because he had. continued to use this permit and. could still h a ve continued, to do so because the G o v e r n m e nt officials said it w as still in force. F o u r th respondent h ad b e en m a de a party by applicant t h r o u gh kindness. I took the view that it w o u ld be unfair to m a ke applicant pay costs merely because fourth respondent succeeded in s h o w i ng the permit h ad long lapsed.. T h at being the case, I m a de the following order: T he rule nisi is discharged a nd application is dismissed. There will be no order as to costs. W . C . M. M A Q U TU J U D GE For appellant For 1st, 2 nd & : M r. Lubbe 3rd respondents : M r. Letsie