In
the High Court of Swaziland
Civ.
Case 1513/93
In
the matter between:
Eldah
Mnisi Applicant/3rd
Respondent
And
Hermon
Sambo Gule 1st Respondent/
Applicant
Road Transportation Board 2nd Respondent/ 1st Respondent
The
Attorney General 3rd Respondent/ 2nd Respondent
CORAM :
Hull, CJ.
FOR
APPLICANT : Mr. Flynn
FOR
THIRD RESPONDENT Mr. Mamba
Judgment
(11/2/94)
The
Road Transportation Act 1963 (Act 37 of 1963) prohibits the operation
of public service vehicles on public roads otherwise than in
accordance with a permit issued under Part III.
That
Part of the Act provides for applications for permits, public
notification of such applications, the making of objections, and the
hearing and determination of applications.
The
authority to whom applications are made and by whom they are
determined in the first instance is the Road Transportation Board,
which is a body established by the
2
statute.
There is also a right of appeal to the Road Transportation Appeals
Board.
Under
section 10, the Road Transportation Board has the duty of advertising
applications. One purpose of advertising is to invite objections.
The
secretary to the Board has a duty under subsections (3) and (4) of
section 10 to give written notice, (inter alia) to persons who have
objected, of the time and place of the hearing.
In
considering applications, the Board has a duty to comply with the
provisions of the Act and to the extent that the Act does not exclude
them, the rules of natural justice. The Act does not do so. On the
contrary, the scheme of Part III reflects the rules of natural
justice, so far as it runs.
By
the present application, the applicant here seeks to have reviewed,
corrected and set aside a decision of the Board on 14th October 1993
granting a permit (No. 04400) to the third respondent.
Three
grounds of review are argued. The first is that the third
respondent's application was not advertised in accordance with
section 10.
The
other two are that the Board failed to invite the applicant here, as
an objector, to the hearings of the application of the third
respondent, and in particular the final hearing on 14th October, and
that it refused to hear him on that last occasion when he sought to
be heard.
The
Board has not appeared in this hearing. There is contention between
the applicant and the third respondent as to the facts and as to
whether the applicant himself observed all the requirements of the
Act.
3
The
following things however are quite clear. The applicant did at the
outset lodge with the Board in December 1991 an objection to the
third respondent's application, which at that time was advertised
with the number 00400.
He
appeared at a hearing on 25th May 1993, at which time the third
respondent's application had the number 04400. He did so having found
out, by chance, that it was set down on that day.
The
hearing was adjourned to 15th July 1993. The applicant here was
invited by the Board to that meeting, as an objector. The hearing
was, however, again adjourned.
The
matter then came on for hearing on 14th October. The applicant here
was not invited to that meeting. He attended but was not permitted to
be heard, on the basis essentially that no notice of objection was on
the file. On being shown a letter dated 1991, the Board concluded
that the dates on it had been tampered with.
The
fact was, however, that the Board and the third respondent clearly
knew that the applicant here was an objector. He had been accorded
that status at the previous hearing.
The
Board was obliged to take into account his objection before reaching
its decision. It did not do so. It had not given him notice of the
hearing. It is not disputed that, apart from the argument as to
whether he had duly notified his objection, the applicant here was a
person with locus standi at the hearing before the Board, being an
owner of transport services. The failures to notify him of the
hearing of 14th October and, more particularly, to hear him at that
hearing were serious irregularities.
Mr.
Mamba contends that he had not suffered any real prejudice, as the
third respondent's permit does not
4
interfere
with his own service. With respect, that is beside the point where
the irregularities in the hearing of her application are as serious
as they were here. He was, in respect of those irregularities, also
entitled to come directly to this court by way of review.
Assuming
for the argument that they have merit, the objections taken by the
third respondent are inconsequential. They were not raised at the
hearing in July. They are beside the point.
This
application is granted. The decision of the Board granting the permit
04400 to the third respondent on 14th October 1993 is set aside. The
matter is remitted to the Board, with directions to hear and
determine the application in accordance with law.
The
third respondent must pay the applicant's costs on this review.
DAVID
HULL
CHIEF
JUSTICE
Black Friday 19 