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HH 29-2007
HC 1786/06
a certificate of registration in accordance with the same. That is knowledge that would peculiarly be
in the ambit of the Commission as the administrative authority for purposes of issuing a certificate of
registration. In the T S Maisiyiwa matter all the requirements for the granting of a licence to an
applicant were in the papers submitted to the court. I also observe that in the two authorities from
within this jurisdiction, Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd (supra) and Director of
Civil Aviation v Hall (supra) the issue related to the review of decisions refusing to issue permits or
licences provided for in the enabling legislation. In the Affretair case, MK had made an application
to the Board for a licence to run an air freight service. The Board had shown clear bias in favour of
Affretair in refusing to grant MK Airlines an operating licence. Before the Board dismissed the
application it held an inquiry so all the facts pertaining to the application were before it. An appeal
against an order of the High Court granting the order was unsuccessful. In the case of Hall the
Supreme Court refused to uphold an order in terms of which the High Court had granted an order
renewing an aeroplane licence in favour of Hall. The court was of the view that such renewal or
grant required to ensure the safety of the pilot and his passengers and that the determination of such
was based on specialist technical knowledge which would be in the purview of the Director. The
Legislature taking into account the gravity of the responsibility had as a result given wide
discretionary powers to the director to impose conditions on such grant or renewal. In such an
instance, the court was not in a position to substitute the discretion of the Director with its own.
One of the reasons given by the Supreme Court in granting the appeal against the decision of the
Administrative Court was that there were no facts placed before the President of the Administrative
Court to the effect that there had been compliance with the Act on the part of the applicant. I want to
believe that the judgment by the Supreme Court was perused by the applicant and its legal
practitioners. The applicant and its legal practitioners were aware that the Supreme Court stated that
there is no way that the applicant could be deemed to have been registered in the absence of a factual
basis of compliance on its part with the provisions of the Act. Before me, such relief is also being
sought yet no effort has been made, in the event that this court would have assumed such discretion,
to place before the court evidence that there has been due compliance with the provisions of the Act.
Failure to comply with the provisions of the Act is one of the criteria provided in the Act to deny the
applicant a registration certificate. An onus is therefore on an applicant to show such compliance.
This has not been done in casu.
The contention is made that the question of delay especially where there is no administrative
agency to deal with the application should convince the court that the applicant should be registered.
I have already commented that in terms of the definition in the Administrative Justice Act there is an
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