ASSOCIATED NEWSPAPERS OF ZIMBABWE (PVT) LTD v MINISTER OF STATE FOR INFORMATION AND PUBLICITY & ORS 2005 (1) ZLR 222 (S)

Flynote

Appeal — Administrative Court — noting of appeal against order of — no power in court to order execution pending appeal

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of D Rights — s 20 — protection of freedom of speech — whether infringed by SI 169C of 2002 — matter left open

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 24 — challenge to constitutionality of statutory provision — need for applicant to show how his rights would be affected — not usually enough to make a bare allegation

Court — Administrative Court — powers of — appeal from — court has no inherent or statutory jurisdiction to order execution of its judgment despite the noting of an appeal

Court — contempt of court — requirement that applicant G purge its contempt before approaching court for relief — whether contempt at relevant time proved

Court — judicial officer — impartiality — bias — likelihood of — vitiates requirement of maxim audi alteram partem — violation of rule a gross irregularity

Practice and procedure — contempt of court — requirement that applicant purge its contempt before approaching court for relief — whether contempt at relevant timeproved

Statutes — Access to Information and Protection of Privacy Act [Chapter 10:27] — ss 39(1)(g), (i), (j), (n) & (p), 40, 41, 65, 66, 69, 70, 71, 72, 76, 79, 80(1)(d)(2), 83, 89 & para 4 of Fourth Schedule — constitutionality of #### Headnote A This matter combined, by consent, a constitutional application and an appeal from the Administrative Court. The applicant contended that certain sections of the Access to Information & Protection of Privacy Act [Chapter 10:27], were unconstitutional. It had therefore declined to register in terms of s 66 of the Act, as it was required to do. The respondents contended that it was in contempt of court, and therefore should not be heard. The provisions of the Act being challenged included: (1) s 39, which deals with accreditation of journalists; (2) s 40, which dealt with the appointment of the Media and Information Commission. The applicant argued that the section failed to provide for a Board that is independent of the Minister and was therefore unconstitutional; (3) s 65, which seeks to control the ownership of the mass media services and limits the ownership of the media by non-citizens of Zimbabwe; (4) s 66, which provides for the registration of providers of mass media services; (5) s 70, which provides for the payment of fees; (6) s 71, which provides for the circumstances under which a registration certificate can be suspended or cancelled by the D Commission. These include fraud or misrepresentation and failure by a mass media provider to exercise its rights within 12 months; and (7) s 89, which confers on a person or organisation in respect of whom incorrect information has been published or whose rights or lawful interests have been infringed in a publication, the right to reply at no cost to him and for the reply to be published within a certain period of time. The applicant also challenged the constitutionality of the Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations 2002 (SI 169C of 2002).

The appeal against the judgment of the Administrative Court was an appeal by the second respondent, the Media & Information Commission set up by the Act, against a judgment in favour of the applicant. The Commission had turned down an application for registration by the applicant. The Administrative Court had allowed the appeal on three grounds, namely (1) the Board of the Commission had been improperly constituted; (2) the Commission had acted ultra vires; and (3) bias. It ordered that the Commission be re-constituted and that it should register the applicant by 30 November, failing which the applicant would be deemed to be registered. The Commission further appealed against a subsequent order by the Administrative Court that its order should be brought into effect pending the hearing of the appeal.

Held, that the applicant was not in contempt at the relevant time

Held, further, that in relation to the attack on s 39 of the Act, s 24 of the Constitution entitles a litigant to approach the Supreme Court on the allegation that its fundamental right has been violated. When such a litigant seeks to impugn a statutory provision the nature of the challenge should be set out in some detail. In particular, the application should set out the manner in which it is alleged that the offending provisions violate the applicant's constitutional rights. If this is not done respondents will have difficulty in understanding what case they have to meet. It will equally be difficult for the court to appreciate fully the issues which it is required to determine. It is not enough to make a bare allegation unless the violation is obvious. The factual basis for the allegation has to be set out in a manner that enables the court to understand the nature of the allegation. In the premises, it was not established that the impugned provisions of s 39 were unconstitutional.

Held, further, that accreditation of journalists and the licensing of electronic media is constitutional as long as the requirements for such accreditation and licensing are not onerous.

Held, further, that the security for the independence of the Commission does not depend upon the nature of the appointing authority but on the existence of qualification requirements, the consideration of which induces a sense of duty in the appointing authority and eliminates the exercise of discretionary power thereby ensuring that merit alone is the basis for selection. The constitutionality of s 40 could not be successfully impeached on the mere ground that the executive has the power to appoint the members of the Commission.

Held, further, with regard to s 65, that the applicant had to show that it was affected by the section, by alleging that it was a body corporate in which the controlling interest was not held directly or indirectly whether through any individual company or association by one or more individuals who are not citizens of Zimbabwe or permanently resident in Zimbabwe. It did not show that the section affected its rights.

Held, further, that for the same reasons that a requirement for accreditation of journalists was constitutional, the requirement for providers of mass media services to be registered was constitutional. It could not be said that a requirement that a mass media service provider should register itself with the Commission in order to exercise the right of freedom of expression is not justifiable in a democratic society when its object is to ensure that citizens of the country have effective ownership and control of the mass media for the exercise of their right to freedom of expression.

Held, further, that the requirement to pay fees was not in itself unconstitutional; it might so be if the fees were excessive.

Held, further, that the meaning of misrepresentation is justiciable and capable of determination, as is what constitutes a material non-disclosure. What is fraudulent is much easier to determine than non-disclosure of a material fact and misrepresentation. The Constitution confers no right on an individual to misrepresent, either directly or through non-disclosure of a material fact or to commit fraud.

Held, further, that freedom of expression carries with it certain responsibilities, one of which is not to infringe on the rights of others, and a law that offers a remedy for the wronged party is constitutional.

Held, further, that s 80(1)(a), (b) and (c) (which have since been repealed) should be struck down as unconstitutional.

Held, further, that the allegation that the Regulations contained in S1 169C of 2002 infringed the right of freedom of speech, as protected by s 29 of the Constitution, was not adequately supported by factual averments, and the issue should be left open.

In respect of the appeal against the order of the Administrative Court:

• Held*, that the Commission had seriously violated the audi alteram partem rule, which was a gross irregularity justifying the setting aside of its determination.

• Held*, further, that the Administrative Court had failed to determine the alleged basis of the alleged contravention of the Act by the applicant. This was a very serious misdirection.

• Held*, further, that the Administrative Court had misdirected itself by ordering that the Board of the Commission reconstitute itself, without first ordering the joinder of the Minister, the first respondent.

• Held*, further, that it had also misdirected itself by ordering the reconstitution of the Board, and then usurping the function of the Board by ordering it to register the applicant.

• Held*, further, that it had further misdirected itself in finding that the Commission had acted ultra vires.

• Held*, further, that although actual bias had not been shown, the Administrative Court's finding in this regard would be supported on the basis of a reasonable apprehension of bias.

• Held*, further, that the Administrative Court had no inherent jurisdiction to order the execution of its own judgment despite the noting of an appeal. Nor did its parent Act give it such jurisdiction. At common law the noting of an appeal suspends the operation of a judgment. However, a court of inherent jurisdiction has jurisdiction to order the execution of its own judgments despite the noting of an appeal. It is trite that only superior courts enjoy inherent jurisdiction, these being the High Court and the Supreme Court. Courts created by statute do not have inherent jurisdiction and consequently do not have power to order execution of their judgments unless such jurisdiction is conferred on them by the statute. Section 19 of the Administrative Court Act creates a right of appeal to the Supreme Court, to be exercised within twenty-one days of the handing down of a judgment. The section does not expressly or by implication confer on the Administrative Court either the power or the jurisdiction to order execution of its own judgments despite the noting of an appeal.

Held, therefore, that the appeal against the decision of the Administrative Court should be allowed, and the orders of the Administrative Court set aside; the determination of the Commission to refuse the applicant registration as a mass media service should be set aside; and the issue should be remitted to the Commission for consideration de novo.