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ANZ application should be considered afresh
MISA-Zimbabwe
February 09, 2006

The High Court has quashed the Media and Information Commission’s (MIC) refusal to grant Associated Newspapers of Zimbabwe (ANZ) an operating licence 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.

High Court Judge Justice Rita Makarau on 9 February 2006, set aside the MIC’s decision of 18 July 2005 after the commission’s lawyers conceded there could have been a perception of bias, without any actual bias.

She, however, refused to consider whether there had in fact been any bias, as she could not temper with an issue that had already been dealt with by the Supreme Court.

She noted that while the Supreme Court had made a finding that Mahoso made utterances that were 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 decision could be tainted by Mahoso’s alleged bias. The judge said there was nothing in the submissions of the ANZ on that aspect.

"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 back to the MIC the matter in which ANZ was seeking an order allowing them to resume publication.

The ANZ duly filed its application with the MIC. In July 2005, the MIC, however, refused to grant the ANZ an operating licence citing its alleged breach of sections of the Access to Information and Protection of Privacy Act (AIPPA) resulting in 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 be registered 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 licence 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, he however, ruled that the MIC had erred in refusing to grant ANZ an operating licence at the material time in question.

He then referred the issue of the registration of ANZ back to the same Commission which refused to license ANZ, for consideration as a fresh issue.

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