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HH 29-2007
HC 1786/06
Minister or Deputy Minister of the State. It is therefore not correct that there is no administrative
authority in existence to deal with the application. Consequently there is no reason why the relief
provided for in terms of section 4 of the Act cannot be availed to the applicant. Indeed it would be
most appropriate for an order in terms of section 4(2)(c)for the Minister to be directed to take such
administrative action as would put in place conditions and a legal frame work for the application for
registration by the applicant to be considered and determined. I am therefore not with the applicant
when it suggests that there is in fact no administrative body to deal with its application. The bodies
currently constituting the Commission have been disabled by the judgments of the Supreme Court
and the High Court but it is within the power of the Minister to deal with such disablement as
regards the applicant.

Is it a correct submission by the respondents then that the relief the applicant ought to have
sought is what is provided for in terms of section 4 of the Administrative Justice Act? Should and
can the court, as argued by the applicant issue a mandatory interdict and deem the applicant to be
duly registered in terms of the Act? Examining in detail the relief sought by the applicant, it is clear
that it is premised on a lack of action on the part of the Commission. What is before me is not the
review of a decision made by the Commission. What I have been asked to consider is for this court
to place itself in the shoes of the Commission and make the decision whether or not the applicant
should be granted a licence to operate a mass media service. This court is in fact being requested to
substitute its own discretion for that of the Commission. It might be argued on behalf of the
applicant that AIPPA allows no discretion to the Commission to deny a licence save in certain
limited circumstances. Whilst this proposition might have substance, it is nevertheless correct that in
order to be granted such licence, an applicant needs to satisfy the Commission that there has been
compliance with the AIPPA That is an issue that has not been determined by the Commission in
casu. The application was not considered. The Commission did not make a finding as to whether or
not the applicant had complied with the Act. In order to accede to the relief being sought this court
would then to consider whether the applicant has complied with AIPPA and hence itself become the
licensing authority.
In Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt ) Ltd (supra) the court was faced with the
question of when or how far a court may go in usurping the functions of an administrative authority.
Quoting from Baxter,10 MCNALLY JA had this to say at p 24D-F.

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Administrative Law p 681

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Select target paragraph3