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Judgement in ANZ case reserved
Media Institute of Southern Africa - Zimbabwe Chapter (MISA-Zimbabwe)
March 04, 2004

The Supreme Court has reserved indefinitely the judgement in three cases involving the Associated Newspapers of Zimbabwe (ANZ) publishers of The Daily News and The Daily News on Sunday, Media and Information Commission (MIC) and the Minister of information Professor Jonathan Moyo.
The full bench of the superior court comprising Chief Justice Chidyausiku and Justices Misheck Cheda, Vernada Ziyambi, Luke Malaba, Elizabeth Gwaunza heard the arguments by both parties.

The first issue to be determined by the court was the case of the "dirty hands ruling" in which Johannes Tomana, representing the MIC, attempted to argue that factually the ANZ still had dirty hands as they published on the 12th of September after the Supreme Court ruling and on the 25 October 2003 a day after the Administrative Court ruling.

Advocate Chris Anderson, representing the ANZ argued that indeed there was an attempt to comply and the fact that the MIC could also be found to have dirty hands as they had refused to comply with the Administrative Court and the High Court rulings.

However, this appeal by the Tomana was dismissed on the basis that the ANZ had attempted to comply with the law.

Tomana then proceeded to make the second submissions on the sections of AIPPA, which are being challenged by ANZ. His argument was that it is reasonable to limit the right to freedom of expression.
He also stated that it is being done in other countries such as Sweden and Britain.

Anderson submitted that the Swedish Act had more reasonable provisions than AIPPA.

The ANZ was challenging Sections 39,40,41,65,66,69,70 and 71 arguing that they are unconstitutional in as far as they unreasonably limit freedom of expression.

The third appeal to be heard was against a judgement by retired Administrative Court President Mr Michael Majuru in which he ordered the MIC to grant ANZ a license.

In his first submission, Mr Johannes Tomana, representing the MIC argued that the Administrative Court had no jurisdiction to order the MIC to register the ANZ.

Mr Tomana argued that after hearing arguments from both ANZ and the MIC lawyers, it should have remitted the matter to MIC for reconsideration in respect of whatever findings the court would have made.

Mr Tomana also argued the logic of the Administrative Court in ordering Prof Jonathan Moyo, to reconstitute the MIC after it ruled that the board was not properly constituted.

He argued that Prof Moyo was not legally bound by the decision of the Administrative Court in as much as he was not legally able to challenge the same decision to which he was not party.

Mr Tomana urged the court to set aside the decision against the appointing authority, saying the lower court had seriously misdirected itself when it ruled that the commission was improperly constituted.

On the decision by the Administrative Court to force the MIC to register the ANZ Mr Tomana said the court erred as the newspaper group could not be registered in terms of the law.

Mr Tomana said the disqualification of the MIC Chairman Dr Tafataona Mahoso on account of bias could not have invalidated the commission's decision in terms of the provisions of AIPPA.

In defence, Advocate Matinenga, in the appeal cases, said the Administrative Court properly decided the ANZ case in terms of the powers vested on it.

He said that finding of the court that one of the commissions was biased was sufficient to vitiate the entire proceedings.

He also argued that since the Court had the jurisdiction to hear the case it had power to enforce its judgement.

Advocate Anderson said the ANZ had since complied with the order made by the court in September last year that they should register with the MIC before challenging the constitutionality of AIPPA.

Anderson also argued that the MIC was not an independent body as the Minister of information appointed the members and had the authority to hire and fire them arbitrarily.

Anderson said this was not proper as it amounted to being "subjected to discipline by the Minister."

BACKGROUND
The ANZ went to court last year challenging the constitutionality of the Access to Information and Protection of Privacy Act (AIIPA) arguing that it was an unconstitutional piece of legislation whose mandate was inconsistent with the provisions of the Constitution.

The ANZ was ordered to stop publishing by the Supreme Court in September 2004 after the court ruled that it should first comply with the law before challenging its constitutionality.

Since then, a protracted legal battle has insured in which the ANZ seeks court order to start publishing its two titles, the Daily News and The Daily News on Sunday.

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