Judgment No. SC. 111/04
Civil Appeal Nos. 320/03 and 359/03 and Constitutional Application No. 323/03
ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED
(1) THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY (2) MEDIA AND INFORMATION COMMISSION (3) THE ATTORNEY-GENERAL OF ZIMBABWE
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA
HARARE, MARCH 3, 2004 & MARCH 14, 2005
J C Andersen SC, with him E Matinenga, for the applicant
J Tomana, for the respondents
CHIDYAUSIKU CJ: This judgment determines the constitutional court application launched by the applicant in case number SC-7-03 as well as the appeal by the second respondent against the judgment of the Administrative Court in case number SC-359-03. As will appear from the facts, the two cases involve the same parties, except for the first and third respondents who were not parties to the proceedings in the Administrative Court, and the facts are very closely related. It is convenient to deal with the two matters in one judgment. I shall refer to Associated Newspapers of Zimbabwe (Pvt) Ltd as the applicant throughout the judgment and the other parties as the respondents. The second respondent is, however, the appellant in the appeal from the Administrative Court.
The applicant is an incorporated company with limited liability and registered in terms of the laws of Zimbabwe.
The first respondent is the Minister of State for Information and Publicity (hereinafter referred to as “the Minister”) in the Office of the President responsible for the administration of the Access to Information and Protection of Privacy Act [Chapter 10:27] (hereinafter referred to as “the Act”).
The second respondent is the Media and Information Commission (“the Commission”), a body corporate capable of suing and being sued, established in terms of s 38 of the Act. The functions and powers of the Commission include the power to register the mass media service providers in Zimbabwe.
The third respondent is the Attorney-General who has been cited in terms of s 24(6) of the Constitution of Zimbabwe.
The applicant is the owner and publisher of The Daily News, a daily newspaper published and distributed physically, throughout Zimbabwe and worldwide, on the Internet. It is common cause that the applicant is a provider of a mass media service.
In terms of s 66 of the Act a provider of a mass media service is required to register before it can provide such service. Upon the coming into operation of the Act, the existing mass media service providers, including the applicant, were given a grace period of three months within which to register. The Regulations necessary to facilitate the registration of mass media service providers were not promulgated in time and the registration date was extended. Further extensions for registration were granted, with 31 December 2002 as the new deadline date. It is common cause that the applicant did not apply for registration by the deadline date of 31 December 2002. Despite not being registered, the applicant continued to publish The Daily News and its sister newspaper, The Daily News on Sunday. The applicant’s failure to register was a deliberate contravention of s 66 of the Act.
The applicant’s stance was that it could not, in good conscience, obey a law that required it to register as such a law, in its view, was unconstitutional. In pursuance of this stance the applicant challenged the constitutional validity of several sections of the Act, including s 66.
At the hearing of the constitutional challenge the respondents raised the point in limine that the applicant had approached the Court with dirty hands because the applicant was operating as a mass media service provider without being registered in terms of s 66 of the Act. On this basis, it was argued that the Court should refuse to entertain the court application until such time as the applicant had submitted itself to the law. This Court determined the preliminary point in favour of the respondents. In this regard the Court had this to say:
“This Court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards. It was entirely open to the applicant to challenge the constitutionality of the Act before the deadline for registration and thus avoid compliance with the law it objects to pending a determination by this Court. In the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable. For the avoidance of doubt the applicant is not being barred from approaching this Court. All that the applicant is required to do is to submit itself to the law and approach this Court with clean hands on the same papers.
Compliance with the law does not necessarily mean submission of an application for registration to carry on the activities of a mass media service. It certainly means desisting from carrying on the activities of a mass media service illegally.”
See Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors S-20-2003.
The above citation has been the subject of varied interpretation by the parties. The citation simply means that a number of options were open to the applicant to bring itself within the law. In particular, the applicant could have challenged s 66 of the Act, before the Act came into operation, and sought the Court’s indulgence to continue publishing pending the determination of its constitutional challenge. The applicant could have stopped providing a mass media service pending the determination of its constitutional challenge. The applicant could have applied for registration and upon being registered continued providing a mass media service while at the same time challenging the constitutionality of s 66. Other mass media service providers exercised one or more of the above options enabling them to operate within the law.
The applicant chose to operate outside the law pending the determination of the constitutional challenge. In adopting this course, the applicant created problems for itself. The issue is not the contents or slant of the applicant’s newspapers. There are several mass media service providers that are as critical of the Government and the establishment as the applicant’s newspapers. They registered and are operational. The issue, as far as this Court is concerned, is one of compliance with the law. Nothing more and nothing less. Nobody is above the law and that includes the applicant. The applicant’s contention that it is being victimised because of its editorial inclination is totally without foundation. Once the applicant complies with the law this Court will accord it the same protection that it accords all citizens who are law-abiding.
The judgment on the point in limine in this case, No. SC-20-03, was handed down on 11 September 2003. Despite the Court’s ruling that the applicant was operating illegally, it continued providing mass media services. The applicant was eventually stopped by the police from its continued breach of the law. On 15 September 2003 the applicant applied to the Commission for registration as a mass media service provider. The Commission turned down the application on 19 September 2003. The reasons for the refusal to register the applicant are contained in a determination of the Commission, to which I shall refer later.
The applicant was aggrieved by the refusal of registration and appealed to the Administrative Court in terms of s 60 of the Act. The notice of appeal sets out ten grounds of appeal. The Administrative Court dealt with only three of the ten grounds of appeal, namely, improper constitution of the second respondent; the allegation that the Commission acted ultra vires; and bias on the part of the Chairman of the Commission. It is not clear from the record why the other grounds of appeal were not dealt with.
The Administrative Court allowed the appeal. It ordered that the Commission be re-constituted and register the applicant by 30 November 2003, failing which the applicant would be deemed to be registered. The order reads as follows:
“Accordingly it is ordered that –
(a) there be appointed by the appointing authority a validly constituted board as envisaged in section 40 by the 30th of November 2003;
(b) the board is to issue the appellant with a certificate of registration on or before that date, failing which the appellant shall be deemed to be registered as from that date.”
The Commission, dissatisfied with the determination by the Administrative Court, appealed to this Court. That appeal was noted on 31 October 2003, under case No. SC-320-03.
The noting of the appeal suspended the order of the Administrative Court. The applicant was desirous of commencing the publication of its newspapers immediately, without having to await the outcome of the appeal. The applicant, by way of an urgent chamber application, applied to the Administrative Court for an order authorising the execution of its judgment despite the noting of an appeal.
The Administrative Court granted the application and ordered the execution of its judgment despite the noting of the appeal. The respondents again appealed against that judgment.
Various exchanges between the parties occurred, culminating with an application to this Court by the respondents to stay execution of the Administrative Court’s judgments pending the determination of the appeal by this Court.
After a hearing in Chambers, I issued, by consent, the following order on 28 January 2004:
“IT IS ORDERED BY CONSENT –
1. THAT Supreme Court Civil Appeals Numbers 320/03 and 359/03 be and are hereby consolidated;
2. THAT the registrar of the Administrative Court is hereby directed to prepare the records in the above cases as a matter of urgency;
3. THAT the consolidated appeals and the constitutional case no. SC-323-03 are set down for argument on 18 February 2004;
4. THAT the applicant’s (the Media and Information Commission) prayer in paragraph 4 of the draft order is held over and the parties are granted leave to file further papers; and
5. THAT the costs of this application are reserved.”
On 9 February 2004 the following additional order was issued by me:
“IT IS ORDERED THAT:
The relief sought in paragraph 4 of the applicant’s (the Media and Information Commission) draft order be referred to the Court sitting on 18 February 2004 to hear the consolidated cases between the parties and that costs be costs in the cause.”
The relief sought in paragraph 4 of the applicant’s (the Media and Information Commission) draft order reads as follows:
“The respondent (Associated Newspapers of Zimbabwe) be and is hereby ordered to refrain from publishing pending the finalisation of the consolidated appeals.”
The constitutional application and the consolidated appeals were then duly set down for hearing. At the hearing the following issues fell for determination:
1. Whether or not the applicant had now brought itself within the law to enable this Court to hear the constitutional challenge on the merits;
2. In the event of the applicant satisfying the Court that it was now operating within the law, the merits of the constitutional challenge; and
3. The merits of the appeal against the judgment of the Administrative Court, including the issue of whether or not the Administrative Court had jurisdiction to order execution of its judgment despite the noting of an appeal.
I will deal with these issues seriatim.
HAS THE APPLICANT BROUGHT ITSELF WITHIN THE LAW TO ENABLE THIS COURT TO HEAR THE CONSTITUTIONAL CHALLENGE ON THE MERITS?
The respondents contend that the applicant is still in contempt of both the law and this Court and its court application challenging the constitutionality of several sections of the Act should not be heard on the merits until the applicant has purged itself of the contempt. In particular, it was submitted that:
(a) The day after the judgment of this Court, namely on 12 September 2003, the applicant continued publishing its newspapers. It was averred, and not seriously disputed, that had the police not stopped the applicant from publishing its newspapers it would have continued doing so despite this Court’s ruling that in doing so the applicant was acting illegally. It was also averred, and not disputed, that the applicant made disparaging remarks about the judgment of this Court. This, it was argued, demonstrated the applicant’s persistent contempt of the law and this Court; and
On 25 September 2003 the applicant again published its newspapers, despite the explicit language of the judgment of the Administrative Court that the applicant was to submit its application for registration in terms of s 66 of the Act and that that application was to be considered by a newly re-constituted Commission as soon as possible and that, in the event of the newly constituted Commission failing to register the applicant by 30 November 2003, the applicant was to be deemed registered.
It was also argued for the respondents that the publication of the applicant’s newspaper on 25 September 2003 was unlawful and constituted contempt of the law and the Administrative Court.
The reasons advanced by the applicant for this unlawful conduct were firstly, that it did not understand the full import of the two judgments, namely that of this Court and the Administrative Court, and secondly, that the violation was not intentional. With respect to the applicant, I find this explanation spurious and without substance.
It was also submitted by the respondents, and not seriously disputed by the applicant, that it was finally stopped from publishing its newspapers illegally only when the journalists working for the applicant refused to continue working for it until their accreditation in terms of s 79 of the Act had been finalised.
Whilst the conduct of the applicant is not condoned the fact that it was not in contempt of court at the time the application was brought before the Court entitled it to be heard on the merits especially when regard is had to the fact that the cessation of the illegal publication of newspapers was as a result of the refusal by journalists to continue acting without accreditation, that is to say, outside the law.
The first issue is therefore resolved in favour of the applicant.
THE CONSTITUTIONALITY OF THE IMPUGNED SECTIONS OF THE ACT
The applicant has challenged the constitutionality of a number of sections of the Act. These are set out in the draft order. The impugned sections are - 39(1) (g), (i), (j), (n) and (p), 40, 41, 65, 66, 69, 70, 71, 72, 79, 80, 83 and 89, and para (4) of the Fourth Schedule of the Act. In addition, the applicant seeks the following declaratory orders, namely: (i) that the Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations, 2002, published in Statutory Instrument 169C of 2002, infringe the right of the freedom of expression set out in s 20 of the Constitution of Zimbabwe (“the Constitution”) and are therefore invalid and of no force and effect in respect of the registration of newspapers and the accreditation of journalists; (ii) that s 65 of the Act infringes the right of the freedom of association set out in s 21 of the Constitution and is, therefore, invalid and of no legal effect; and (iii) that s 76, insofar as it refers to the second respondent, infringes the applicant’s right against the compulsory acquisition of property set out in s 16 of the Constitution and is therefore invalid and of no legal effect. An order of costs is also sought against the respondents. I will now deal with the particular sections under challenge.
Section 39 of the Act provides as follows:
“39. Functions and powers of Commission
(1) Subject to this Act, the powers and functions of the Commission shall be -
(a) to ensure that Zimbabweans have access to information and effective control of mass media services; and
to receive and act upon comments from the public about the administration and performance of the mass media in Zimbabwe; and
to comment on the implications of proposed legislation or programmes of public bodies on access to information and protection of privacy; and
to comment on the implications of automated systems for collection, storage, analysis or transfer of information or for access to information or protection of privacy; and
to inform the public about this Act; and
to engage in or commission research into anything affecting the achievement of the purposes of this Act; and
to conduct investigations in terms of Part IX to ensure compliance with the provisions of this Act; and
to advise the Minister on the adoption and establishment of standards and codes relating to the operation of mass media; and
to receive, evaluate for accreditation and consider applications for accreditation as a journalist; and
to enforce professional and ethical standards in the mass media; and
to review the decisions of public bodies in terms of Part X; and
to bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants; and
to authorise a public body, at the request of its head, to disregard requests that would unreasonably interfere with the operations of the public body; and
to accredit journalists; and
to monitor the mass media and raise user awareness of the mass media; and
to register mass media in Zimbabwe; and
to investigate and resolve complaints against any mass media service in terms of the provisions of this Act.
(2) In the exercise of its functions, the Commission shall have regard to the desirability of securing the following objects -
to foster freedom of expression in Zimbabwe;
to make information easily accessible to persons requiring it;
to ensure accurate, balanced and unbiased reporting by the mass media in Zimbabwe;
the development of mass media that uphold professional and ethical codes of conduct;
to promote the preservation of the national security and integrity of Zimbabwe;
to foster a Zimbabwean national identity and integrity;
to be responsible for enforcing and monitoring the enforcement of provisions of this Act, and to ensure that its purposes are achieved.
(3) Subject to this Act, for the better exercise of its functions, the Commission shall have power to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Third Schedule, either absolutely or conditionally and either solely or jointly with others.”
The applicant’s founding affidavit sets out no details as to how the impugned provisions of s 39 of the Act are unconstitutional or in what manner s 39 abridges the applicant’s constitutional rights. In para 13 of the founding affidavit there is a broad reference to s 39 of the Act. It is as follows:
“13. It is the view of the applicant therefore that the provisions of the Act concerning the second respondent and its functions and also the provisions of the Act relating to the registration of mass media owners and related provisions set out in sections 39(1) (g), (i), (j), (n) and (p), 40, 41, 65, 66, 69, 70, 71, 72, 76, 79, 83 and 89 are unconstitutional and should be declared to be so.”
Also in para 37 of the applicant’s heads of argument there is an oblique reference to s 39 of the Act which does not in any way take the averments any further. The remaining subsections of s 39 of the Act are not, in any way, impugned by the applicant. In particular, the applicant does not impugn the functions of the Commission but does impugn the Commission’s powers to investigate issues of compliance with the Act; powers of accreditation of journalists (paragraph (g) and (n)); powers to enforce professional and ethical standards (j); to monitor the mass media and raise user awareness of the mass media (o); and the registration of the providers of mass media services in Zimbabwe.
As I have already stated, the applicant does not state in what manner these provisions are unconstitutional. This Court has already held 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. See Capital Radio (Private) Limited v Broadcasting Authority of Zimbabwe and Others SC-128-02 and Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President’s Office & Others SC-136-02.
Section 39 deals not with the qualifications for accreditation but with the requirements for accreditation, which this Court has declared to be constitutional.
When an applicant 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 this Court to fully appreciate the issues which it is required to determine. Section 24 of the Constitution entitles a litigant to approach this Court on the allegation that the litigant’s fundamental right has been violated. It is not enough to make a bare allegation unless such violation is obvious. The factual basis for such an allegation has to be set out in a manner that enables the Court to understand the nature of the allegation.
I am satisfied, therefore, that there is nothing on the papers that establishes that the impugned provisions of s 39 of the Act are unconstitutional.
Section 40 of the Act provides as follows:
“40. Appointment and composition of Media and Information Commission
(1) The operations of the Commission shall, subject to this Act, be controlled and managed by a Board.
(2) Subject to subsection (3), the Board shall consist of no fewer than five members and not more than seven members (at least three of whom shall be nominated by an association of journalists and an association of media houses) appointed by the Minister after consultation with the President and in accordance with any directions that the President may give him.
(3) The Fourth Schedule shall apply to the qualifications of members of the Board and the Commission, their terms and conditions of office, vacation of office, suspension and dismissal, and the procedure to be followed by the Commission at meetings.”
Section 4 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] is similar to s 40 of the Act. It provides as follows:
“4. Establishment and composition of Broadcasting Authority of Zimbabwe Board
(1) The operations of the Authority shall, subject to this Act, be controlled and managed by a board to be known as the Broadcasting Authority of Zimbabwe Board.
(2) Subject to subsection (3), the Board shall consist of not fewer than seven members and not more than nine members appointed by the Minister after consultation with the President and in accordance with any directions the President may give him.
(3) Of the members appointed in terms of subsection (2) -
two shall be persons chosen for their experience or professional qualifications in the field of broadcasting technology and broadcasting content respectively; and
one shall be a chief as defined in the Traditional Leaders Act [Chapter 29:17] and nominated by the Council of Chiefs referred to in that Act; and
one shall be a legal practitioner of not less than five years’ standing registered in terms of the law in force relating to the registration of legal practitioners; and
one shall be a public accountant of not less than five years’ standing registered in terms of the law in force relating to the registration of public accountants; and
one shall be a representative of churches or other religious bodies chosen from a list of nominees submitted by groups representative of churches or other religious bodies.
(4) At least three of the members referred to in subsection (3) shall be women.
(5) The Third Schedule shall apply to the qualifications of members of the Board, their terms and conditions of office, vacation of office, suspension and dismissal, and the procedure to be followed by the Board at its meetings.
(6) If any council or group referred to in subsection (3), or the Board or portfolio committee referred to in subsection (1) of section four A, fails or refuses to submit any nomination within thirty days of being requested to do so by the Minister in writing, the Minister may, subject to subsection (4), appoint any person to represent that council or group or the Board or portfolio committee, and the person so appointed shall hold office as a member of the Board or of the Independent Disciplinary Committee in all respects as if he or she had been duly nominated and appointed in terms of subsection (3) or subsection (1) of section four A.”
Again, the manner in which s 40 is alleged to violate the applicant’s fundamental right is not clearly spelt out. It would appear, however, that the basis of the challenge to s 40 of the Act is that it fails to provide for a Board that is independent of the Minister and is therefore unconstitutional. Similar submissions were made in respect of s 4 of the Zimbabwe Broadcasting Services Act (“the Broadcasting Act”) in the case of Capital Radio case, supra. The Court came to the conclusion that s 4 of the Broadcasting Services Act was constitutional and that the method of appointment did not make a Board subservient to the Minister.
The factors relied upon by the Court in upholding the constitutionality of section 4 of the Broadcasting Act, which are equally valid in the determination of the constitutionality of s 40 of the Act, were that it merely created the regulating authority and identified the Minister as the person to appoint its members. Someone had to make the appointments to the Board. The persons to be appointed were not identified in such a manner as to leave the Minister with no choice but to appoint people dependent on government. 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 section 40 could not be successfully impeached on the mere ground that the executive has the power to appoint the members of the Commission.
On the authority of the Capital Radio case, supra, and for the same reasons, I hold that s 40 of the Act is constitutional.
Section 41 of the Act provides as follows:
“41. Financial and miscellaneous provisions relating to Commission
The Fifth Schedule shall govern the financial and certain other aspects of the operations of the Commission”.
The Fifth Schedule referred to in this section provides for regulation of the financial management of the Commission funds and how those funds are to be acquired. It also provides for the appointment of auditors of the Commission and the powers of those auditors.
Again no attempt has been made, either in the founding affidavit or in the heads of argument to establish how the provision for the management of the Commission’s finances, as set out in s 41 of the Act, violates the applicant’s constitutional rights. There is nothing in s 41 which is blatantly unconstitutional.
In the result I am satisfied that s 41 of the Act is constitutional.
Section 65 of the Act provides as follows:
“65. Restriction of ownership of mass media services
The following persons and bodies may not be mass media owners -
(a) an individual who is not a citizen of Zimbabwe or any body corporate in which a controlling interest is not held, directly or indirectly, whether through any individual, company or association or otherwise, by one or more individuals who are citizens of Zimbabwe;
(b) an association of persons or an organisation whose activity is banned or prohibited by law; or
(c) any person who is insolvent or bankrupt under a law in force in Zimbabwe or any other country, and has not been rehabilitated or discharged.
No person other than -
(a) a citizen of Zimbabwe or person who is regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02]; or
(b) a body corporate in which a controlling interest is not held, directly or indirectly, whether through any individual, company or association or otherwise, by one or more individuals who are citizens of Zimbabwe or are regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02];
may hold or acquire any shares in a mass media service.
(3) Nothing contained in this section shall prevent any person who was an existing mass media owner as at 31st January 2002, from continuing to be a mass media owner after that date to the extent of his ownership on that date.”
The above section seeks to control the ownership of the mass media services and limits the ownership of the media by non-citizens of Zimbabwe. Section 8 of the Broadcasting Act imposes similar restrictions on non-citizens in respect of licensing of broadcasters.
Section 65 of the Act and s 8 of the Broadcasting Act deal with the same principle, namely, restrictions on foreign ownership of the Zimbabwean media. In the Capital Radio case supra this Court concluded that s 8 of the Broadcasting Act was constitutional.
The decision in that case, as it should be in this case, was that the applicant had to show 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 are not regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02]. Similarly s 65 of the Act specifies who may and who may not own a mass media or hold or acquire shares therein. If the applicant fell into the prohibited class it was expected to make those allegations in its affidavit in order to lay the basis for impunging the constitutionality of section 65. It is to be inferred from the applicant’s silence that there was no contravention of its right to freedom of expression arising from those provisions.
I am, therefore, satisfied that s 65 of the Act is constitutional.
Section 66 of the Act provides as follows:
“66. Registration of mass media services
(1) A mass media owner shall carry on the activities of a mass media service only after registering and receiving a certificate of registration in terms of this Act:
Provided that this section shall not apply to –
(a) the activities of a person holding a licence issued in terms of the Broadcasting Services Act [Chapter 12:06] to the extent that such activities are permitted by such licence; or
(b) a representative office of a foreign mass media service permitted to operate in Zimbabwe in terms of section ninety; or
(c) in-house publications of an organisation which is not mass media service.
(2) An application for the registration of a mass media service whose products are intended for dissemination in Zimbabwe shall be submitted by its owner to the Commission in the form and manner prescribed and accompanied by the prescribed fee.
(3) The Commission shall, upon receiving an application for registration send a notification of receipt of the application to the owner or person authorised by him indicating the date when the application was received, and the Commission shall consider such application within a month of receiving it.
(4) A mass media service shall be registered when it is issued with a certificate of registration by the Commission.
(5) A certificate issued in terms of subsection (4) shall be valid for a period of two years and may be renewed thereafter.
(6) The registered owner shall start circulating his mass media’s products six months from the date of issue of the registration certificate, failing which the registration certificate shall be deemed to be cancelled.”
Section 66 is very similar to s 79 of the Act. Section 79 of the Act provides for accreditation of journalists, whilst s 66 provides for the registration of providers of mass media services.
The mandatory registration by the Commission to which the owner of a mass media service has to submit himself in order to exercise the right to freedom of expression as a mass media service provider is a means rationally connected to the objects of the Act the achievement of which it is the duty of the Commission to oversee. One of the objects of the Act is the achievement of effective ownership and control of mass media services by citizens of Zimbabwe. For historical reasons this source of economic and political power was owned and controlled by foreigners. It cannot 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.
This Court considered s 79 of the Act in the case of Association of Independent Journalists case supra and concluded that the principle of accreditation was constitutional. The Court also expressed the view that the conditions for such accreditation would be held to be unconstitutional if they are onerous.
Again, for the same reasons given by this Court when it considered s 79 of the Act in the Association of Independent Journalists case supra, I am satisfied that s 66 is constitutional. This section merely sets out the requirement for registration and not the conditions for such registration.
Section 69 of the Act provides as follows:
“69. Refusal of registration of mass media service
(1) The Commission may not refuse to register a mass media service unless -
(a) it fails to comply with the provisions of this Act; or
(b) the information indicated in an application for registration is false, misleading or contains any misrepresentation; or
(c) that mass media service seeks to be registered in the name of an existing registered mass media service;
and the Commission shall forward a written notification of the refusal of registration, stating the grounds upon which such refusal is based.
(2) An application for the registration of a mass media service shall not be considered –
(a) if it contravenes any provision of this Act;
(b) if the application has been filed by a person who has no authority to do so;
(c) if the application fee has not been paid.
(3) An application for registration may be re-submitted for consideration after the removal of any contraventions or when there is a change of circumstances.” (The underlining is mine)
Subsections (2) and (3) have since been repealed. Section 69 of the Act sets out the powers of the Commission in regard to an application for registration of a mass media service provider.
The first point I wish to make in regard to this section relates to the use of the word “may” in subsection (1). It is quite clear from the context in which that word is used that it should be taken to mean “shall”. The word “may” generally confers discretion, but when followed by the negative word “not”, i.e. “may not”, as is the case here, it means absence of discretion as in “shall”. When this Court dealt with the word “may” in s 79 in the Association of Independent Journalists case supra the Court made the following observation:
“It is quite clear from the context that the word ‘may’ means ‘shall’ in this subsection.
In ordinary usage, ‘may’ is a permissive and ‘must’ is imperative, and, in accordance with the usage, the word ‘may’ in a statute will not generally be held to be mandatory. In some cases, however, it has been held that expressions such as ‘may’ or ‘shall have power’ or ‘shall be lawful’ have – to say the least – a compulsory force and so their meaning has been modified by judicial exposition.
See Maxwell on The Interpretation of Statutes 12 ed by P St. J Lagan at pp 234-235 and the cases there mentioned.”
I am satisfied that the word “may” in subsection (1) of s 69 of the Act means “shall”. It follows therefore that s 69(1) of the Act confers no discretion on the Commission and consequently an applicant who has complied with the Act is entitled to registration as a matter of law.
Paragraph 69(1)(b) provides that registration could be refused if the information indicated in an application for registration is false, misleading or contains any misrepresentation. This provision confers on the Commission the power to determine whether the information indicated in an application for registration is false, misleading or contains a misrepresentation. While the use of the words, false, misleading and misrepresentation may, on the face of it, appear vague and uncertain such words are commonly found in legal instruments and courts have been called upon, in numerous cases, to determine what, in legal terms, constitutes what is false, misleading or what constitutes a misrepresentation. In the event of a dispute between an applicant and the Commission over the meaning of the above words, such a dispute is justiciable and thus eliminates the possibility of abuse.
In the result I am satisfied that s 69(1)(b) is constitutional.
Section 69(1)(c) of the Act prohibits the registration of a mass media service provider in the name of an already existing registered mass media service provider. It prohibits passing off. The Constitution of Zimbabwe does not confer on anyone the right to pass off. The applicant does not have a constitutional right to register itself in the name of an already existing mass media service provider. The applicant has not even alleged on the papers that that is what it intends to do. I am satisfied that s 69(1)(c) of the Act is constitutional.
Section 69(2) of the Act, which has since been repealed, provided that an application for registration shall not be considered if it contravenes any of the provisions of the Act. The contraventions referred to in this section must be those that are apparent on the face of the application, such as those that are referred to in s 66(2) of the Act, which provides that an application shall be made in the form and manner prescribed and accompanied by the prescribed fee. Thus for an application to be considered at all, it must be in a prescribed form and accompanied by the prescribed fee. Where an application is not in the prescribed form and is not accompanied by the prescribed fee the Commission is barred from considering the application. Contraventions of the Act such as those envisaged in s 69(1) can only emerge after the commencement of consideration of an application by the Commission.
It is on this basis that I am satisfied that the Administrative Court’s decision that the Commission acted ultra vires s 69(2) is wrong. In this case the Associated Newspapers of Zimbabwe (Pvt) Ltd application complied with the formal requirements as set out in s 66(2) of the Act and the Commission, quite correctly in my view, considered the application. During the consideration of the application, or the meeting to adjudicate upon the application, alleged violations of the Act were brought to the attention of the Commission. On the basis of these alleged violations the registration of the applicant was refused. On these facts, to conclude that the Commission acted ultra vires does not make sense.
The same section also bars the Commission from considering an application submitted by an unauthorised person or if the prescribed application fee has not been paid. I am satisfied that the Constitution does not confer on the applicant the constitutional right to have its application submitted by an unauthorised person. The applicant has not alleged on the papers that it wishes to have its application submitted by an authorised person and that that right has been violated. The applicant has not alleged on the papers that the prescribed fees are onerous and there is nothing on the papers to suggest that they are.
In any event section 69(2) has been repealed and the question of its constitutionality is now academic.
I am satisfied that s 69(2) of the Act was constitutional.
I accordingly hold that s 69 of the Act is constitutional.
Section 70 of the Act reads as follows:
“70 Registration fee
The registration fee shall be as prescribed by the Minister:
Provided that the Minister may prescribe a higher fee for established mass media services specialising in commercial mass media services and advertising and a lower fee for a mass media service specialising in producing materials intended for children, adolescents and disabled persons and used for educational, philanthropic and social purposes.”
This section merely provides that the Minister can prescribe the registration fee. The payment of the registration fee in itself cannot, in my view, be unconstitutional although the amount of the prescribed fee could, in certain circumstances, be unconstitutional, for example, if the prescribed fees are excessive. In that case, a constitutional challenge against the level of fees is sustainable. Indeed the applicant, in its heads of argument, argues that it is the potential for charging exorbitant fees that could be unconstitutional. In the light of that, one has to look at the Statutory Instrument setting out the prescribed fees to see whether it is constitutional or not. Section 70 merely establishes the principle of the payment of a fee and that, in my view, cannot be unconstitutional.
Section 71 is a fairly lengthy provision but it essentially provides for the circumstances under which a registration certificate can be suspended or cancelled by the Commission. This is provided for in subs (1), which reads as follows:
“(1) Subject to this section, the Commission may, whether on its own initiative or upon the investigation of a complaint made by any interested person against the mass media service, suspend or cancel the registration certificate of a mass media service if it has reasonable grounds for believing that -
(a) the registration certificate was issued in error or through fraud or there has been a misrepresentation or non-disclosure of a material fact by the mass media owner concerned; or
the mass media service concerned does not publish or go on air within twelve months from the date of registration; or
the mass media service concerned has contravened sections sixty-five, seventy-five, seventy-six, seventy-seven or eighty-nine of this Act.”
The rest of the provisions deal with the consequences and the procedures to be followed in establishing the basis for the Commission to act in terms of subs (1). It is clear from subs (1) that the Commission is empowered to suspend or cancel a registration certificate for the three reasons set out in paras (a), (b) and (c) thereof.
In terms of para (b), the mass media service provider that does not publish or go on air within twelve months from the date of registration is liable to have its registration cancelled. I have no difficulty in upholding this ground of cancellation as constitutional. The mass media service provider that obtains registration but does not seek to exercise its right under that registration for a period of twelve months really has no basis for complaining that its registration has been cancelled.
I am also unable to see on what basis the applicant contends that its right is about to be violated by this provision. The applicant was an existing media service provider at the time that the Act came into operation. It was already publishing its papers and was unlikely to be affected by this provision. In any case, it does not state on the papers how it is being adversely affected by this provision.
Paragraph (c) of subs (1) provides that a mass media service provider that has contravened s 65, s 75 and s 89 of the Act can have its certificate of registration cancelled. Again, I have no problem in finding that this provision is intra vires the Constitution. The provision provides for the cancellation of a certificate for contravening the law. It is difficult to see the basis of the applicant’s complaint in that if it abides by the law its rights will not be affected but if it breaks the law, the consequence of such breach of the law is the cancellation of the registration. If the applicant is law-abiding then it has nothing to fear. It certainly has no basis to fear that its registration will be cancelled.
In considering s 69(1)(b) I expressed some misgivings regarding the use of the word “misrepresentation” but concluded that the meaning of misrepresentation is justiciable and capable of determination. I am also satisfied that what constitutes a material non-disclosure is justiciable and capable of determination. What is fraudulent is much easier to determine than non-disclosure of a material fact and misrepresentation. In my view, the Constitution confers no right on an individual to misrepresent, either directly or through non-disclosure of a material fact or to commit fraud. Accordingly, none can be violated. Section 71(1) is, therefore, constitutional.
Section 72 of the Act provides as follows:
“72 Penalties for operating mass media service without registration certificate
(1) No person shall carry on or operate a mass media service without a valid registration certificate, license or permit issued in terms of this Act or any other law.
(2) A person who contravenes subsection (1) shall be guilty of an offence and liable, upon conviction, to a fine not exceeding three hundred thousand dollars or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
(3) In addition to any fine imposed in terms of subsection (2) and without derogation from any of its powers granted under any enactment a court convicting a person of contravening subsection (1) may declare forfeited to the State any produce, equipment or apparatus used for the purpose of or in connection with the offence.
(4) The proviso to subsection (1) and subsections (3), (4), (5) and (6) of section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall apply mutatis mutandis, in relation to a declaration made in terms of subsection (3).”
This section is a penalty clause and the type of clause found in most acts of Parliament providing for a penalty for contravening a statute. Subsection (1) merely prohibits the operation of a mass media service without a registration certificate. In view of the fact that I have concluded that s 66 is constitutional, there is no basis for holding that s 72(1) is unconstitutional.
Subsection (2) of s 72 provides that a person who operates without a registration certificate commits an offence and is liable, upon conviction, to a fine not exceeding $300 000,00 or imprisonment not exceeding two years or to both such fine and imprisonment.
This section provides guidelines to the court on the level of the seriousness with which the legislature regards a contravention of subs (1) of s 72 of the Act. The fine and the period indicated cannot be described as totally disproportionate to the offence created under subs (1).
Subsection (3) confers on the court, upon conviction of a person for contravening subs (1), the power to declare forfeited the equipment or apparatus used for the purpose of or in connection with the offence. Again, this is a standard clause found in most Acts of Parliament conferring on the court the power to declare a weapon used in the commission of the offence to be declared forfeited. That power is exercised by a court of law and there is no risk of that power being exercised in a capricious manner.
I also see no possible constitutional impediment to subs (4), which simply incorporates the provisions of the Criminal Procedure and Evidence Act.
Accordingly I hold that s 72 of the Act is constitutional.
Section 76 of the Act provides as follows:
“76 Deposit copies
The mass media service shall send free deposit copies of a periodical to the Commission and the National Archives.”
The applicant, in its heads of argument, has no objection to providing the National Archives with a copy of its publication, but objects to provide a free copy to the Commission. The applicant is here indulging in triviality and I have no hesitation in dismissing this challenge on the de minimis principle.
Sections 79, 80 and 83
The constitutionality of the above sections was challenged in the case of Association of Independent Journalists, supra. In respect of s 79 the Court concluded as follows:-
“It is common cause that s 79 is at the centre of the licensing system. Licensing of the media, as I have already stated, is sufficiently important to have been recognised as a constitutional exception. Accordingly I am satisfied that the object of s 79 is sufficiently important for the purpose set in (1) above.
Section 79 is rationally connected to the above objective because as was submitted by the applicant’s counsel, it is at the centre of the licensing process. On this basis s 79 is, therefore, rationally connected to the objective of legislation, The second requirement is therefore met.
The third requirement cannot be conveniently applied to s 79. Section 79 is essentially an enabling provision. The requirement that the means used be no more than is necessary to accomplish the objective can only be applied to the regulations that prescribe formalities and qualifications for accreditation. As I have said, none of the provisions of SI 169C have been challenged. Section 79 merely confers the powers to make regulations that prescribe the formalities and qualifications for accreditation. The test will have to be applied to the regulation that prescribes the formalities and the qualifications and not s 79 which only confers the powers to make such regulations.
In the result I come to the conclusion that the challenge to s 79 cannot succeed.”
The submissions made in the present case have not persuaded me to depart from that conclusion. For the reasons set out in the Association of Independent Journalists, supra, s 79 is constitutional.
In respect of s 80 this Court concluded that s 80(1)(a)(b) and (c) were unconstitutional and struck them down while the rest of s 80 was held constitutional. There is nothing, on these papers, that persuades me to depart from that conclusion. However s 80 has since been repealed and substituted by a new s 80 which provides as follows:-
“80. Abuse of journalistic privilege
A journalist who abuses his or her journalistic privilege by publishing –
(a) information which he or she intentionally or recklessly falsified in a manner which –
(i) threatens the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; or
(ii) is injurious to the reputation, rights and freedoms of other persons;
(b) information which he or she maliciously or fraudulently fabricated; or
(c) any statement –
(i) threatening the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; or
(ii) injurious to the reputation, rights and freedoms of other persons;
in the following circumstances –
A. knowing the statement to be false or without having reasonable grounds for believing it to be true; and
B. recklessly, or with malicious or fraudulent intent, representing the statement as a true statement;
shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years.”
It will be seen that the offending paragraphs have been repealed. The issue, therefore, has become academic.
In respect of s 83 the Court concluded:-
“Section 83 prohibits an individual from practicing as a journalist unless he or she is accredited as a journalist. The issues raised here are identical to those raised in respect of the challenge to s 79. What I said in regard to s 79 applies with equal force to s 83. In my view, s 83 is constitutional.”
Again, I am not persuaded by any submission in this case that the above conclusion is erroneous.
Section 89 provides as follows:
“89 Right of reply
(1) A person or organisation in respect of whom a mass media service has published information that is not truthful or impinges on his rights or lawful interests shall have a right of reply in the same mass media service at no cost to him, and the reply shall be given the same prominence as the offending story.
(2) The reply shall be featured in the next issue of the mass media service.”
Section 89 confers on the 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 that reply should be published within a certain period of time. In my view, 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.
Therefore I find that s 89 is constitutional.
The applicant, in paragraph 3 of the draft order, seeks the following relief:-
“Instrument 169C of 2002, infringes the right of the freedom of expression set out in s 20 of the Constitution and is therefore invalid and of no legal effect in respect of the registration of newspapers and the accreditation of journalists.”
No factual basis for this relief is set out in the affidavits and, accordingly, no proper determination of this issue can be made on these papers. The issue is left open.
THE APPEAL AGAINST THE JUDGMENT OF THE ADMINISTRATIVE COURT
The facts leading to the appeal against the determination of the Commission to the Administrative Court have already been set out in some detail. As I have already stated, the Commission turned down the application for registration by the applicant on the grounds set out in its determination.
The Commission in its determination concluded that the applicant had contravened ss 29, 39, 65, 72 and 79 of the Act. It would appear from the record that the applicant was denied an opportunity to be heard before the Commission concluded that it had contravened the above sections of the Act. This is a serious violation of the audi alteram partem principle and a gross irregularity justifying the setting aside of that determination.
The applicant was dissatisfied with the Commission’s determination and appealed to the Administrative Court. The grounds of appeal advanced before the Administrative Court are set out in the notice of appeal, to that court, which reads as follows:
“1. The respondent is improperly constituted in terms of law, and was accordingly unable to lawfully make the decision that it made.
2. The chairman of the respondent was and is hostile and biased towards the appellant and ought not to have participated in any decision relating to the application made by the appellant. His failure to do so deprived the appellant of a fair and proper hearing.
3. The respondent failed to apply the rules of natural justice, and failed to afford the appellant an opportunity to deal with the factual basis upon which the application for registration was refused.
4. The provisions of the Access to Information and Protection of Privacy Act [Chapter 10:27] and the Regulations made thereunder, dealing with the requirement to register and the requirements of registration are unconstitutional, and therefore unlawful.
5. The provision of the Act relied upon by the respondent, namely section 76, as one of the grounds for refusing registration is unconstitutional and in breach of section 16 of the Constitution.
6. The Commission erred in finding that the appellant had failed to comply with the provisions of the Act in a (sic) sense that requirement is set out in section 69(1)(a) of the Act.
7. Even if it is correct as found by the respondent that Chengetai Zvauya has a previous conviction, the respondent erred in failing to consider the nature of that conviction, the relevance of it to the application of the appellant, and the provisions of section 69 of the Act, and failed to give the appellant an opportunity to be heard on the allegation.
8. The respondent erred in considering that the appellant was a news agency, and accordingly erred in applying section 79(6) of the Act to the appellant.
9. The respondent erred in finding that any person or body who owned the appellant was an association of persons or an organisation whose activities were banned or prohibited by law, and accordingly erred in applying section 65(1)(b) of the Act to the appellant.
10. The decision of the respondent was motivated by political considerations, was made and considered in a mala fide manner, and accordingly did not comply with the law.”
As I have already stated, the determination of the Commission was based on the alleged contravention by the applicant of ss 29, 39, 65, 72 and 79 of the Act. It was, therefore, necessary for the Administrative Court to determine the factual basis of the alleged contraventions of the Act. The factual determination was critical because the applicant’s entitlement to registration depended on it. In terms of s 66 of the Act, as I have already stated, the applicant cannot, as a matter of law, be registered unless it has complied with the provisions of the Act. Equally an applicant who has complied with the Act becomes, as a matter of law, entitled to registration and the Commission has no discretion in the matter. Thus, whether or not the applicant had contravened the Act, as alleged, was a critical issue that the Administrative Court ought to have determined before granting the order it issued.
The Administrative Court’s failure to determine this issue as well as its order directing that the applicant be deemed to be registered without first satisfying itself that the applicant had complied with the Act, constitutes a very serious misdirection. This is particularly so because an applicant’s entitlement to registration, or refusal of such registration, is dependent upon its compliance, or non-compliance, with the provisions of the Act.
It must also be stated that the Administrative Court ordered the reconstitution of the board not for purposes of exercising its powers, that is, considering afresh the application on the merits and determining whether it should register the applicant but in order to grant to the applicant a certificate of registration regardless of the merits of the application. The board was relieved of its duty to determine the question of entitlement to registration because the court had done that for it and concluded that the applicant was entitled to be registered but for a badly or invalidly constituted board. But the fallacy of this approach by the court is that once the board was found to have been invalidly constituted its decision or determination of the proceedings was a nullity.
Given this misdirection, and the failure to determine the factual basis of the allegations of non-compliance with the provisions of the Act, the Administrative Court had no legal basis to issue the order that it did and that order is hereby set aside.
According to the notice of appeal the applicant requested for an opportunity to be heard on the issue of non-compliance with the Act and the request was refused. This, as I said, constitutes a serious breach of the audi alteram partem rule. Because of this irregularity the Commission’s decision refusing to register the applicant cannot stand and should also be set aside. The application should be reconsidered and the applicant should be given an opportunity to be heard on the allegations of non-compliance with the Act.
Finally, I wish to make the following observations regarding the three grounds upon which the Administrative Court sought to set aside the determination of the Commission, namely, improper constitution of the Commission, ultra vires and bias.
It was argued in the Administrative Court and in this Court that the Commission was not properly constituted in terms of s 40 of the Act. Upon the raising of the issue of the constitution of the Commission, the Administrative Court should have ordered the joinder of the first respondent because in terms of the Act the first respondent is responsible for the appointment of the members of the Commission. The first respondent, as the appointing authority, had a substantial interest in a case in which the issue of whether or not the Commission was properly constituted in terms of s 40 of the Act had to be determined. The learned President of the Administrative Court therefore misdirected himself in determining this issue without the first respondent being a party to the proceedings. It is also apparent from the record that the applicant conceded this point in the Chamber application to the Administrative Court in which it sought an order for the execution of its judgment despite the noting of an appeal. That issue is resolved in favour of the respondent.
The Administrative Court concluded that the Commission had acted ultra vires s 69(2) of the Act, in that it had considered an application by the applicant when it had not complied with the Act.
I am satisfied that, on a proper reading of s 69(2), the legislature intended s 69(2) of the Act to refer to compliance with the formal requirements of the Act which appear ex facie the application itself and not contraventions that emerge during the consideration of the application. The Commission did not err in this case because the application itself complied with the procedural requirement of the Act, s 66(2), in particular. The alleged contravention of sections 29, 39, 65, 72 and 79 by the applicant can only have emerged during the consideration of the application. These contraventions would not have been apparent on the face of the application.
In the result, the conclusion of the Administrative Court that the Commission acted ultra vires the Act has no legal basis.
The applicant placed before the Administrative Court a number of articles authored by the chairman of the Commission, in which he made certain remarks about the applicant. In particular, he referred to the applicant as an outlaw and indicated that its application would not be considered on the turn and that generally the applicant was conducting itself in an inappropriate manner.
In my view, the chairman of the Commission should have appreciated that he would chair the Commission that would determine the application for registration by the applicant. Accordingly, he should have refrained from making comments that were likely to make the applicant apprehensive of not getting a fair hearing from the Commission chaired by him.
The actual bias in the mind of the Chairman of the Commission against the applicant was not established on the evidence. But it was not necessary for the applicant to prove actual bias in one member of the Commission in order to get the decision of all the members vitiated. It was enough that there was a likelihood of bias in the evidence of the utterances made by the member who then took part in the deliberations of the Commission. It was shown that the utterances could have created an apprehension in the minds of reasonable men that justice would not be done. See Liebenberg and Others v Brakpan Liquor Licensing Board & Anor 1944 WLD 52 at 54 – 55; Metropolitan Properties (FCG) Ltd v Lannon  1 QB 577.
Accordingly, while I agree with the conclusion of the Administrative Court that the proceedings of the Commission are voidable on the grounds of bias, I, however, do not accept the Administrative Court’s conclusion that actual bias on the part of the chairman of the Commission was proved on the evidence placed before it.
JURISDICTION OF THE ADMINISTRATIVE COURT TO ORDER THE EXECUTION OF ITS OWN JUDGMENT DESPITE THE NOTING OF AN APPEAL
I turn now to the issue of whether or not the Administrative Court had jurisdiction to order the execution of its judgment despite the noting of an appeal.
The President of the Administrative Court concluded that he had jurisdiction to determine the issue of whether the Administrative Court has jurisdiction to order execution of its own judgments despite the noting of an appeal. He concluded that s 19(2)(b) of the Administrative Court Act conferred on him such jurisdiction.
He clearly erred in this regard. The Administrative Court does not have jurisdiction to order the execution of its judgment when an appeal is noted.
At common law the noting of an appeal suspends the operation of a judgment. This point is well settled.
However, a court of inherent jurisdiction has jurisdiction to order the execution of its own judgments despite the noting of an appeal. In other words, a court of inherent jurisdiction can alter the common law position.
In the case of Copthall Stores, Ltd v Willoughby’s Consolidated Co, Ltd 1913 AD 305 BUCHANAN J had this to say at p 308:
“I am of opinion that the Appellate Division has an inherent right to control its own judgments, and, in the light of the circumstances of each case, to say whether or not execution should be suspended pending such an application to (the) Privy Council.” (The emphasis is mine)
The Copthall case supra was cited with approval by DE VILLIERS ACJ in Fismer v Thornton 1929 AD 17 at 19, where the learned ACTING CHIEF JUSTICE had this to say:
“Now, although there is no right of appeal to the Privy Council and no provision in our rules for staying execution, this Court in Copthall’s Stores, Ltd v Willoughby’s Consolidated Company, Ltd (1913 AD 305) laid it down that it has an inherent right to control its own judgments, and in the light of the circumstances of each case to say whether or not execution should be suspended pending an application to (the) Privy Council for special leave to appeal. Since then the Court has on several occasions granted a temporary stay, but this has been done only on an order for specific performance or for a declaration of rights.” (The emphasis is mine)
The same view was echoed by CORBETT JA (as he then was) in the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) at pp 544H-545D, where the learned JUDGE OF APPEAL concluded:
“Whatever the true position may have been in the Dutch Court, and more particularly the Court of Holland (as to which see Ruby’s Cash Store (Pty) Ltd v Estate Marks and Anor 1961 (2) SA 118 (T) at pp 120-3), it is today the accepted common law rule of practice in our Courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the Court which granted the judgment. To obtain such leave the party in whose favour the judgment was given must make special application. (See generally Olifants Tin ‘B’ Syndicate v De Jager 1912 AD 377 at p 481; Reid and Anor v Godart and Anor 1938 AD 511 at p 513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p 667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p 746). The purpose of this rule as to the suspension of a judgment on the noting of an appeal is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid’s case supra at p 513). The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet 49.7.3; Ruby’s Cash Store (Pty) Ltd v Estate Marks and Anor supra at p 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf Fismer v Thornton 1929 AD 17 at p 19). In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors - …”. (The underlining is mine)
It is quite clear from the above authorities that the power of a court to order execution of its own judgments despite the noting of an appeal is founded in the common law doctrine of inherent jurisdiction. It is trite that only superior courts enjoy inherent jurisdiction. In this country these are 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.
The jurisdiction of the Administrative Court is to be found within the four corners of the Administrative Court Act and any other enactment that confers upon it jurisdiction. It does not have inherent jurisdiction. Accordingly, it has no power to order execution of its own judgments despite the noting of an appeal.
As I have said earlier, the learned President of the Administrative Court concluded that s 19(2)(b) of the Administrative Court Act conferred on him such jurisdiction. He reasoned thus:
“In the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 at p 549 CORBETT JA had this to say:
‘In a wide and general sense the term “interlocutory” refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the process of the litigation.” (my underlining)
I accept Advocate Matinenga’s submissions, that litigation is still in progress until the appeal court has pronounced (on) that appeal.
In the same case of South Cape Corporation (Pty) Ltd supra CORBETT JA had this to say (at) p 551A:
‘It remains to apply these principles to the case of an application for leave to execute a judgment pending an appeal. It seems clear that the litigation which resulted in the judgment being given against the applicant on 1 October 1976 (i.e. for the sum of R111 700.50, interest and costs) is still in progress. The appeal noted in this court is a step in that litigation and the case will not be concluded until this court has pronounced finally upon that appeal.’
The law, therefore, is clear as to when an interlocutory order can be applied for. The present application was made within the legal time frame.
Having addressed myself to the provisions of section 19(2)(b) of the Administrative Court Act and the law, I am quite satisfied that this court has the jurisdiction to hear this urgent chamber application before it.
In the result –
‘The point relating to the jurisdiction of this court, raised in limine, in this very court, is dismissed.’”
Section 19 of the Administrative Court Act, in terms of which the President of the Administrative Court purported to assume jurisdiction, provides as follows:
“19 Appeal from decision of Court
(1) Subject to subsection (2) and except as otherwise provided in any other enactment, any person who is dissatisfied with any decision of the court may lodge an appeal with the Supreme Court within the period of twenty-one days immediately following the announcement by the court of such decision.
(2) Except as otherwise provided in any other enactment, no appeal shall lie from -
(a) any order of the court or the President of the court made with the consent of the parties;
(b) an order as to costs only or an interlocutory order or an interlocutory judgment without the leave of the court or the President of the court or, if such leave has been refused, without the leave of a judge of the Supreme Court.
The learned President of the Administrative Court clearly erred in interpreting the above section as conferring on him the jurisdiction to order execution of a judgment despite the noting of an appeal. A proper interpretation of s 19 of the Administrative Court Act reveals that it creates a right of appeal to the Supreme Court, to be exercised within twenty-one days of the handing down of a judgment. The right of appeal conferred on the litigant by s 19 is automatic if exercised within the prescribed period. Subsection (1) of s 19 is explicit in this regard. Subsection (2) of s 19 is a derogation of the right conferred in subs (1). It is a derogation in that –
(a) there is no appeal against an order by consent of the Administrative Court; and
(b) an appeal against an order as to costs or against an interlocutory order or an interlocutory judgment can only be exercised with the leave of the court or the President of the court or, if such leave has been refused, with the leave of a judge of the Supreme Court.
Section 19 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. Section 19 merely defines the litigant’s right of appeal from the Administrative Court to the Supreme Court.
If the Administrative Court had the jurisdiction to order execution of its judgment pending appeal, derived from the Act, then any litigant who wishes to appeal against such a judgment or order would fall within the ambit of s 19(2)(b) and would need the leave of the Administrative Court to appeal, as it would be an interlocutory order or judgment.
That, in my view, is the effect of the case of South Cape Corporation Ltd supra, which the learned President sought to rely on. The South Cape Corporation Ltd case supra is authority for the proposition that an order for execution of a judgment pending appeal is an interlocutory order in the broader or wider sense and requires leave to appeal against it. The South Cape Corporation Ltd case supra is no authority for the proposition that a statutory court like the Administrative Court has inherent jurisdiction which confers on it jurisdiction to order the execution of its own judgment despite the noting of an appeal.
Having concluded that the Administrative Court has no jurisdiction to order the execution of its own judgment despite the noting of an appeal, the issue of whether this was a proper case for the issuance of such an order falls away.
It is on this basis that the appeal against the order of the Administrative Court ordering the execution of its judgment succeeds.
The inordinate delay in the handing down of this judgment was largely due to the unavailability, through illness, of one of the judges who sat in this case.
In the result the Court issues the following order –
1. The application to declare sections 39(1)(g)(i)(j)(n) and (p), 40,41,65,66,69,70,71,76,79,80(1)(d)(2), 83 and 89 and paragraph 4 of the Fourth Schedule of the Act, null and void is dismissed.
2. Section 80(1)(a)(b) and (c) (which have since been repealed) are struck down as unconstitutional.
3. The appeal against the decision of the Administrative Court is allowed and the orders of the Administrative Court are hereby set aside.
4. The determination of the Commission in which it refused the applicant registration as a mass media service provider is set aside.
5. The issue of the registration of the applicant as a mass media provider is remitted to the Commission for consideration de novo.
6. There will be no order as to costs.
CHEDA JA: I agree.
ZIYAMBI JA: I agree.
MALABA JA: I agree.
GWAUNZA JA: I agree.
Gill, Godlonton & Gerrans, applicant's legal practitioners
Muzangaza, Mandaza & Tomana, respondents' legal practitioners