13
HH 29-2007
HC 1786/06
court to direct the issue of a licence in any other circumstances would constitute an unwarranted
usurpation of the powers entrusted by the Legislature to liquor licensing boards.11
My reading of the above quoted authorities does not lead me to conclude that the orders that
were granted were in circumstances where the court assumed unto itself the mantle thrust upon the
administrative authority and imposed its own discretion. The court in the first decision had to
consider the reasonableness of the decision made by the administrative authority. Having found the
decision to be unreasonable it accordingly set aside such decision and declared that the applicant
qualified to be given the position in issue. In the second decision the court was required to make a
declaratur as to the employment status of the applicant taking into account the actions of her
employer. There was no requirement on the court to make a decision that would entail the
establishment of an entity subject to licencing and permits by an administrative authority, as is the
current application. The authorities therefore presented before me have not given me comfort such
that I can depart from the norm and assume unto myself the discretion that should be in terms of our
legislation exercised by the Commission.
Although an application for registration under AIPPA is made in terms of section 66 of the
same, it is section 69 which determines the powers of the Commission in

considering such

application. The section provides:-

b)
c)

“(1) The Commission may not refuse to register a mass media service unlessa) it fails to comply with the provisions of this Act; or
the information indicated on the application for registration is false, misleading or contains
misrepresentation; or
the 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.”
The applicant contends that there is within this jurisdiction precedent for this court to grant the
order sought and declare the applicant to be deemed duly registered in terms of the enabling Act. In
Enhanced Communications Network (Pvt) Ltd v The Minister of Information, Posts and
Telecommunications (supra) this court, in a judgment rendered by SANDURA JP (as he was then)
gave an order declaring the applicant to have been deemed to be a licenced cellular
telecommunications provider from March 1997. The other relief granted is not pertinent to the
resolution of this matter. This in fact was the final chapter of a long and bitter battle fought by the
applicant, Econet, to operate a cellular network. The legal battles are chronicled in T S Masiyiwa

11

At 503E-F

13

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