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MIC divided over ANZ fate
The Financial Gazette (Zimbabwe)
March 09, 2006

http://www.fingaz.co.zw/story.aspx?stid=831

THE Media and Information Commission board last week held a meeting to decide the fate of the beleaguered Associated Newspapers of Zimbabwe application, but the meeting broke up in disarray.

Impeccable sources said the meeting on Thursday failed to agree amid charges that it was illegal in terms of a recent High Court judgment that reversed a decision of the MIC board decision of l8 July 2OO5. Three members of the board were reported to have joined Mahoso in the meeting with the other three absent. In terms of Justice Rita Makarau judgment of 8 February 2006, MIC chairman Tafataona Mahoso is barred from presiding over any hearing called to decide the fate of the application because of his proven bias against the applicant.

Both the Supreme Court and the High Court have found Mahoso to be biased against the ANZ, with Justice Makarau barring him from attending any meeting called to resolve the matter. The MIC Board has until tomorrow to formalise registration of the ANZ.

Informed sources said Mahoso invited a select three commissioners and, in flagrant defiance of the court order, tried to decide the fate of the application, with him presiding. The meeting broke up in disarray with charges that it was illegally constituted. Mrs Daphne Tomana, a legal practioner, was reported to have stormed out of the boardroom, saying no decision could be taken without other board members.

Two other commissioners present were Alphinos Makoni and Rino Zhuwarara. Those who either boycotted the meeting or were simply not invited were Pascal Mukondiwa, Jonathan Maphenduka and an S Mlambo.

A commissioner, unaware there was a meeting in progress, spoke to Mahoso on Thursday on the ANZ case. "He referred me to Justice Makarau’s judgment which is quite explicit: Mahoso is barred from attending the hearing, let alone presiding over it," the commissioner said. "I am surprised that Mahoso, who is not a simpleton but a highly educated and intelligent man, can stoop so low in his judgment. If there is any honour left in the world, he should resign," he said.

Meanwhile, it was learned yesterday (Wednesday) that ANZ chief executive Sam Sipepa Nkomo had written to the Minister of Information and Publicity, Tichaona Jokonya, appealing to the minister to intervene. This followed a letter to the MIC calling on the commission to fulfil its obligation under the law.

The letter to the MIC chairman was dated February l3 2006, five days after Justice Makarau’s landmark ruling. Mahoso responded tersely, saying the matter would be attended to in due course.

By close of day yesterday (Wednesday) the minister had not responded to the ANZ appeal. "We are waiting to hear from him," said Nkomo.

Justice Makarau’s damning judgment which set aside the controversial MIC decision of 18 July 2OO5, also awarded costs against the Commission.

The full text of the judgment makes interesting reading. Justice Makarau said she found the issue for determination relatively simple. The Supreme Court had found Mahoso to be biased, had set aside both the decision of the Administrative Court and that of the MIC`s refusal to register, ordering the Commission to consider the application afresh.

The impression created by the litigants was that they were "locked in a deadly legal battle in which no party will take prisoners." It was a fight to the finish.

The judge said it had to be determined whether the specific Supreme Court finding that the respondent was biased avoided the stain of Mahoso’s bias or was tainted by the same.

Mahoso had been less than impressive in his affidavits submitted to the court. There were no affidavits submitted by the respondent’s "retiring legal practitioners" explaining defaults in those before the court, she said. Further Mahoso had not explained why he had not observed omissions when he "deposed to the answering affidavit".

Justice Makarau said considering all information before the court, the Commission’s l8 July decision could not stand, and the application was remitted de novo.

The applicant, the judge observed, had submitted that the MIC chairman had considered its application with others on the board. "I must order that the commission as presently constituted is now disabled from validly considering the applicant’s application." Their decision would be tainted by the bias of the chairperson as found by the Supreme Court, she said.

"There is merit in the submission of the applicant in this regard and the respondent is (will be) well advised to take this on board when next dealing with the applicant’s application," declared Justice Makarau.

What this means is that the current board, announced by the minister last December is barred from sitting to consider the ANZ application. This ruling, which has not been adequately highlighted in recent reports on the case, means that the minister must appoint a special board to consider the ANZ application.

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