Swazi Express Airways (Pty) Limited v Honourable Minister Of Foreign Affairs And Trade And Others (47 of 2006) [2006] SZSC 13 (13 November 2006)

Key Facts

Issues

• The primary issue was whether the right of appeal granted to Airlink Swaziland against the Licensing Authority's decision to award a licence to Swazi Express Airways ceased to exist after the Minister of Public Works and Transport was disqualified from hearing the appeal due to a conflict of interest. The court also addressed the legal implications of this disqualification on the validity of the appeal process.
• A secondary issue involved the allocation of costs between the parties following the High Court's ruling. The appellant argued it was substantially successful, while the respondents contended they were entitled to costs. The court upheld the lower court's decision that each party should bear its own costs, emphasizing the lack of misdirection in the original ruling.

Holdings

• The court upheld the lower court's costs order, requiring each party to bear their own costs in the application and appeal, noting both parties achieved partial success.
• The court declared the Minister of Public Works and Transport disqualified from hearing Airlink Swaziland's appeal due to a conflict of interest arising from his 60% shareholding in the company, which sought to maintain its monopoly on the Swaziland-Johannesburg route.
• The court made the Consent Order an order of court, referring the appeal to an independent panel of adjudicators composed of a retired judge or legal expert and an airline industry expert. The adjudicators' decision will be final and binding, deemed as the Minister's decision under the legislation.

Remedies

• The court ordered that the appeal against the licence grant be referred to an independent panel of adjudicators. The panel, comprising a legal expert and an airline industry expert, will decide the appeal following the same process as the Minister. Their decision is final and binding. The adjudication must conclude by 31 January 2007, with costs for the process split equally between the parties.
• The court upheld the lower court's costs order, requiring each party to bear its own appeal costs. However, adjudication-related costs (panel members, venue, proceedings) are to be split equally between the appellant and the 7th respondent. Other respondents (1st to 5th, 8th) do not receive costs on appeal as their opposition was unsuccessful in the lower court.

Legal Principles

• The judgment reaffirmed costs principles, noting that while the successful party typically recovers costs, the High Court's discretion to order each party to bear their own costs was justified here. The court cited precedents like Penny v Walker and Merber v Merber to support this approach.
• The court applied principles of natural justice, specifically the rule against bias, to disqualify the Minister of Public Works and Transport from adjudicating the appeal due to his commercial interest in Airlink Swaziland. This ensured impartiality in the decision-making process.

Precedent Name

• MERBER V MERBER
• PENNY V WALKER
• LEVIN V FELT AND TWEEDS LTD

Cited Statute

Judge Name

• P.H. Tebbutt
• N.W. Zietsman
• M.M. Ramodibedi

Passage Text

• The declaratory order against the Minister was therefore clearly against the Government.
• The Court makes the following order: 1. The Consent Order hereto annexed marked "A" is made an Order of Court. 2. Save for what is contained in Paragraph 10 of the said Consent Order, there shall be no order as to costs.
• Concluding that the appellant and the Government had each achieved a measure of success, Mamba AJ therefore exercised his discretion by ordering each party to bear its own costs.