IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 2133/94
In
the matter between:
HERMON
SAMBO GULE Applicant
vs
THE
ROAD TRANSPORTATION BOARD 1st Respondent
THE
ATTORNEY GENERAL 2nd Respondent
ALBERTINAH
MTHUPHA 3rd Respondent
CORAM: Hull,
C.J.
FOR
THE APPLICANT Mr. Flynn
FOR
THE DEFENDANT Mr. Maseko
FOR
THE THIRD RESPONDENT Mr. J. Mavuso
Judgment
(oral)
(31/3/95)
By
the Road Transportation Act (No. 37 of 1963) Parliament, or the law
making authority, has constituted a regime for the granting of
permits to carry out certain road transportation services and it has
seen fit in this system - I will call it loosely a system of
licensing - to provide for the advertising of applications, and to
provide for the lodging of objections to applications, and then for
the hearing of applications and objections.
In
the present case the third respondent had an application before the
licensing authority, which is the Road Transportation Board. The
applicant has said on oath that he lodged an objection. He has
produced a copy of the objection which bears the stamp of the
secretary - the office of the secretary to the licensing board. It is
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his
evidence that he delivered the objection by hand, and he has annexed
to his papers a copy of the objection which is stamped with the stamp
of the Road Transportation Board - the secretary.
He
has said on oath that he also sent a copy to the third respondent but
there is no proof - for example, by way of a registered receipt
-there is no further proof that he did so. She herself has denied
that she received this.
Her
application was set down for hearing. The present applicant was not
given notice of the hearing but happened to be before the Board on
the day on which the other matter came on for hearing, and he got up
and he pointed out that he was objecting; and in the result although
he informed the Board that he was objecting, the Board said that they
had no such objection before them - they had received no such
objection - and they declined to postpone the matter so that it could
be checked; and they granted the application of the person who is
here the third respondent - and he now comes to this court seeking
relief by way of review.
The
basis for his relief is that he says that as a matter of fact, he had
given notice. He is also saying, as I understood him, that in the
circumstances, when it became clear that that was what he was saying,
the Board should have postponed the matter to allow it to be checked,
having become aware that he was giving notice.
Section
10(2) of the Act stipulates the procedure to be followed in giving
notice. The first requirement, and in my view the principal
requirement initially, is that the objector must lodge within
fourteen days after publication of the notice indicating that an
application has been made and may be examined - he must lodge within
fourteen days with the secretary to the Board his objection, and he
must also send his objection in writing to the applicant together
with the grounds on which it is based, and do so by registered post.
That is his duty. It is however clear, in my view, from section
11(3), in the proviso thereto, that the Board itself has a discretion
whether or not to hear an objection, if the objection does not comply
with these requirements.
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Now
clearly the purpose of the scheme of the Act, as I have indicated at
the outset, is that applications are to be advertised, there is to be
a hearing on them, and that objectors are to be given the chance to
stand up and oppose the application - and all of that therefore, I
have no doubt, and it has been held in this court many times,
involves ensuring that natural justice is followed, namely that each
side is given an opportunity to be heard.
If
it were the case that the Board had refused to postpone this matter
because it was not satisfied that the third respondent had been
served with notice of the objection, then I think that the applicant
would have difficulty in succeeding on this application for judicial
review. He would have difficulty, in my view, for the reason that the
granting of a postponement or not would be a matter of discretion for
the Board.
But
that is not the basis before me on which the Board declined to hear
him. The Board chose to decline to hear him on the basis that he had
not himself given notice of objection to the Board, and it declined
to hear him even though he stood up at the hearing, fortuitously, and
he said that he was an objector and he wished to be heard. Coming
back to the point that I have just raised, in other words if its
basis for refusing had been that he had not given Mrs. Mthupha due
notice, I think that even then in considering whether to exercise its
discretion or not, the Board may well have had regard to the fact
that he was now standing up before the court and asking that he be
heard and saying that he had an objection that he had lodged, even
though it had not been shown to have been served on her. It may have
exercised its discretion nevertheless in her favour and gone ahead
but that would be an additional factor to take into account in
deciding whether or not to postpone the matter. But as I say, on the
papers before me that is not the basis on which the Board refused to
grant a postponement or allow the present applicant to be heard. It
did so on the basis that he had never filed an objection and that, it
seems to me on the weight of evidence, is incorrect.
He
has deposed that he delivered an objection. He has produced a copy of
the objection which is stamped with the stamp of the secretary to
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the
Board. The Board has not seen fit - I do not say it reflectively but
the Board has not in fact produced an affidavit which is made by the
secretary, whom I think would have been the appropriate person to
make this affidavit; and it has not in any event sought to explain
how the stamp appears on the letter of objection.
For
all these reasons, and notwithstanding that it has not been proved
clearly that the third has been given notice of this objection, it is
my view that the Board has been shown to have failed to exercise its
discretion properly. It is my view therefore that the decision of the
Board should be set aside as sought, and that Mrs. Mthupa's
application should be referred back to the Board to be heard afresh
taking into account the objection lodged by the applicant in these
present proceedings and that will be my order.
There
will be costs in favour of the applicant against the first
respondent. No order as to costs against the third respondent.
The
application is allowed. The decision is set aside, the application to
be referred back to the Board for rehearing with all objections
(including, of course, the objection of the applicant here, and to be
heard of course in accordance with law, by which I mean in compliance
with natural justice.)
DAVID
HULL
CHIEF
JUSTICE
