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Alert

Court rules that ANZ's registration request be considered afresh

(MISA/IFEX) - The High Court has quashed the Media and Information Commission's (MIC) refusal to grant Associated Newspapers of Zimbabwe (ANZ) an operating license and ruled that its application for registration should be considered afresh.

ANZ, publishers of the "Daily News" and "Daily News on Sunday", had appealed to the High Court seeking a review of the MIC's decision on the basis of procedural irregularity and alleged bias on the part of the commission's chairman Dr. Tafataona Mahoso.

On 9 February 2006, High Court Judge Justice Rita Makarau set aside the MIC's decision of 18 July 2005, after the commission's lawyers conceded there could have been a perception of bias even in the absence of actual bias.

Makarau refused to consider whether there had in fact been any bias, as she could not tamper with an issue already ruled upon by the Supreme Court. She noted that, while the Supreme Court had found that Mahoso made utterances likely to raise reasonable apprehensions that the ANZ would not receive a fair hearing before the commission he chaired, there had been no ruling on actual bias.

The ANZ had also requested the court to order the MIC disbanded, as its decisions could be tainted by Mahoso's alleged bias. The judge said there was nothing in the submissions of the ANZ to justify such an action.

"I, however, do not have power to order the appointing of a new commission, as that issue is not before me and the appointing authority (Minister of Information) is not before me," she said. "I cannot make an order binding a party that is not before me without first affording the party the right to be heard."

BACKGROUND:
On 14 March 2005, the Supreme Court referred the ANZ, which was seeking an order allowing them to resume publication, back to the MIC.

The ANZ duly filed its application with the MIC. However, in July 2005, the MIC refused to grant the ANZ an operating license, citing the latter's alleged breach of certain sections of the Access to Information and Protection of Privacy Act (AIPPA). This decision, in turn, led the ANZ to submit its appeal to the High Court.

The protracted legal battle between ANZ and the MIC goes back to Chief Justice Chidyausiku's earlier judgment in September 2003, in which he ruled that the publishing company had approached the court with "dirty hands" when it challenged the constitutionality of sections of AIPPA.

The ANZ had refused to register with the MIC pending the decision of the Supreme Court on its constitutional challenges. It subsequently applied to be registered following Chidyausiku's "dirty hands" judgment.

In turn, the MIC refused to grant them the license, opening a series of appeals and counter-appeals between ANZ and the MIC after the Administrative Court ruled that the Commission should allow them to publish.

The Supreme Court then consolidated the appeals and counter-appeals debacle to be heard as one case, leading to the March 2005 judgment. However, in his March 2005 judgment, the Chief Justice allowed the MIC's appeal against the Administrative Court's decision for the ANZ to be allowed to operate.

In the same vein, however, he ruled that the MIC had erred in refusing to grant ANZ an operating license at the material time in question. He then referred, for consideration as a fresh issue, the question of the registration of ANZ back to the same Commission which had previously refused to license the publishing company.