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HH 29-2007
HC 1786/06
apply for registration in terms of the Act. Those findings touched in a fundamental way on the
manner in which the Commission had conducted business in relation to the application by the
applicant. The Commission had been found to be devoid of impartiality in regard to the registration
of the applicant.
It is immaterial in this instance whether or not the Minister was a party to the proceedings in
the Supreme Court matter relating to the first application for registration, as whatever the outcome of
that case would have been, it would have been brought to his attention what the findings by the
Supreme Court would have been. It is to be noted however, that in view of the fact that the challenge
by the applicant on constitutional basis on the Act also cited the Minister as a respondent, it therefore
stands to reason that the judgment would have been availed to him as he was an interested party. He
could not have failed to realize that the Commission‟s chairman having been found wanting by the
Supreme Court had been effectively disabled from determining any further applications involving
the applicant. It therefore behooved him, bearing in mind the time limitations set in the Act, which
Act he administers, to put in place measures for the speedy determination of the application for
registration by the applicant which obviously was not going away. This he failed to do. Even if it did
not occur to the Minister at that early stage when the Commission still sat as it was and considered
the application resulting in the review proceedings before MAKARAU J as she then was, it must
have then occurred to the Minister once those proceedings were taken on review before this court, to
then put his house in order to accommodate the findings by the Supreme Court. An amendment to
the Act to appoint ad hoc members of the Commission to deal with the issue of the applicant could
have been resorted to. After the decision of MAKARAU JP it was confirmed that the Commission
could not be clothed with any measure of acceptability on the issue. In fact the learned judge having
made a finding that the Commission in its entirety was disabled from dealing with the application,
ordered that the application be considered de novo. It was not done nor were there measures put in
place to deal with it. It must have occurred to all the parties concerned at that stage that the
Commission could not by any stretch of the imagination be considered as being able to consider the
application which was not going to be abandoned any time soon by the applicant and therefore
measures had to be put in place for a structure that could do so in terms of the Act.
The Minister indicated that he is having consultations with his legal practitioners over how to
resolve the issue. By now his consultations should have borne fruit but still the court is none the
wiser as to what course he intends to take to ensure that the application is dealt with. He does not
even suggest that the amendment, which he believes is the best course possible, has been put into
effect and that the Legislature has been requested to pass such amendment. The suggestion is made
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