In
the High Court of Swaziland
Civ.
Case No. 1349/93
In
the matter between:
LEORNARD
DLAMINI APPLICANT
And
ROAD
TRANSPORTATION BOARD 1ST RESPONDENT
REJOICE
KUNENE 2ND RESPONDENT
ROAD
TRANSPORTATION BOARD 3RD RESPONDENT
ATTORNEY
GENERAL 4TH RESPONDENT
CORAM:
Hull, CJ.
FOR
APPLICANT Attorney General
FOR
FIRST RESPONDENT Attorney General
FOR
SECOND RESPONDENT Zwane, M.
FOR
THIRD RESPONDENT Attorney General
Judgment
(15/11/93)
Section
18(3) of the Road Transportation Act 1963, as amended, provides that
notice of an appeal against a decision of the Road Transportation
Board is to be lodged in writing with the board and a copy thereof
forwarded to each other party to the application within twenty one
days of the decision.
The
notice must set out fully the grounds on which the appeal is based.
It is in my view the duty of the appellant to comply with these
requirements.
The
section, which regulates appeals, does not set out in any detail the
procedure to be followed on an appeal. Section 28(c) enables
regulations to be made for that purpose, though none have yet been
promulgated.
2
Notwithstanding
either of these pointsman appeal is to be conducted in accordance
with the rules of natural justice. The parties must be notified of
the date of hearing and given a reasonable opportunity to be heard.
This is a requirement of the common law.
The
second respondent on this present application for review had applied
to the Road Transportation Board for a permit under the Act. The
applicant successfully opposed her application. Then she appealed
under section 18.
When
the matter first came up on 19th July 1993 the Appeals Board directed
that it be deferred to its next sitting because the present applicant
had not been given notice of the hearing.
The
appeal was therefore set down for hearing on 13th September. On that
day it was heard and allowed.
The
present applicant complains (inter alia) that he was never given a
copy of the notice of appeal and that he was not given notice of the
date of the hearing on 13th September.
In
his founding affidavit he says simply that he had never received the
notice of appeal. He also said, without going into further detail,
that a copy of a purported letter of invitation to the hearing of the
appeal, (which bears the date 12th August 1993), had been made
available to him. He said (with some measure of justification in my
view) that it was unclear in its purport. However his more
fundamental assertion was that he had never received this either.
The
second respondent in an answering affidavit states that she sent a
copy of the notice of appeal to the applicant (amongst others) by
registered post, as long ago as 22nd December 1992. She has annexed
at "A" and "B1" to her
3
affidavit
documents showing that the post office received for registration
documents addressed to the applicant on that day.
The
Chairman of the Appeals Board, in his answering affidavit, said in
paragraph 2.8 that he was unable to comment on any invitation dated
12th August, but also said that a letter of invitation dated 17th
August was sent to the respondent (amongst others.) He has annexed
this and documents showing the receipt by the post office of items
for posting by registered mail to various persons, including the
applicant.
The
respondents also relied on an assertion that a Mr. Harry S. Dlamini
appeared at the hearing on 13th September and attempted to represent
the applicant, but withdrew when he was unable to produce a written
authority to do so.
The
applicant has said on oath that he did not receive either the notice
of appeal or notice of the hearing. Although it is asserted
otherwise, it appears from the first respondent's affidavit, from the
minute annexed at "A", that in fact Mr. Harry Dlamini
withdrew (after he had been asked to produce a written authority to
act) because he had no instructions in the matter from the applicant.
The other documents annexed by the respondents to their affidavits do
not establish that the applicant did in fact receive the notices.
They only show that they were lodged in the post office. No receipts
from the applicant, acknowledging delivery, have been produced.
It
was submitted that, under section 33 of the Interpretation Act 1970
(No. 21 of 1970), service had been validly effected by the posting of
the notices to the applicant in envelopes addressed to him at his
post office box number. Those provisions only apply, however, in
cases where a "law" authorises or requires service. "Law"
in the section, means a statutory provision or order : see section
2(1) of the same Act.
4
That
may be sufficient for the notice of appeal as such, but the
requirement for notice of the hearing is a common law stipulation,
and in any event in either case it is open to the applicant to prove
that he did not in fact receive either document. From the whole
history of the matter before the road transportation authorities, it
appears to me unlikely that the applicant would not have sought to
contest the appeal if he had in fact been aware of the date of
hearing. He was not challenged in cross-examination on his deposition
that he did not receive the notices. I conclude that he probably did
not do so.
In
the circumstances, the application for review is allowed. The
decision of the Appeals Board is set aside. The matter is remitted to
it for rehearing, on due notice to the applicant. I will express the
view that it should be re-heard as quickly as possible.
The
respondents are to pay the applicant's costs on this review.
DAVID
HULL
CHIEF
JUSTICE
