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HH 29-2007
HC 1786/06
When one has regard to the preamble to the Act it is clear that amongst other rights, the intention is
to provide for the right to administrative actions and decisions that are lawful and procedurally fair
and to provide fro relief by a competent court against administrative actions and decisions that are
contrary to the provisions of this Act. None of the parties addressed me on the specific requirements
in the provisions and in the absence of full argument thereon, it is not for me to make a
pronouncement on the terms of the Act. My view is however, that the Act provides the best possible
form of relief to a litigant aggrieved by a recltrant administrative authority.
It is contended further on behalf of the applicant that in casu a mandatory interdict would be
appropriate as the legislation envisages registration except in limited circumstances. Mr Matinenga
contended on behalf of the applicant that the Media and Information Commission exists only if there
are functionaries appointed to it. If there are no functionaries then it ceases to exist. He further
argued that from the date that the Supreme Court judgment was handed down both respondents were
aware that the Commission could not entertain the application for its registration by the applicant.
This was reaffirmed by the judgment of MAKARAU J (as she then was). In so far as the applicant
was concerned it was clear that there was no administrative body to deal with the application.
Both respondents in their opposing affidavits have taken issue with the nature of the relief that
the applicant seeks. Both opine that this is not a competent prayer to seek before this court and that
in fact the court cannot grant the relief as it appears on the draft order as to do so would amount to
this court usurping the administrative functions of the Commission. Both are of the view that the
High Court does not have the power to grant such relief. They also contend that even the act of
deeming the applicant to have been registered is beyond the capacity of this court.
I cannot deny that there is merit in the argument being proffered on behalf of the applicant. Both
judgments reaffirmed the inability of the Commission to consider the application, and thus there was
no administrative body to deal with the matter of the applicant. Although the bodies are there, all the
Commissioners have effectively been disabled by the judgments which found them to be biased
against the applicant. However, to contend as Mr Matinenga states, that there in fact no
administrative body in existence is to go too far. The membership of the Commission has the lawful
authority envisaged in the Act to carry out the administrative acts for which it has been appointed.
None of the Commissioners suffer from a legal impediment as envisaged in s 40(3) of the Act. In
regard to the applicant it, the Commission, has however been found to suffer from a disability. Such
disability, being specifically to do with the applicant, does not denude its lawful authority to do its
tasks and perform the functions the Commission is meant to perform in terms of AIPPA except as it
relates to the applicant. In terms of section 2 of the Act, an administrative authority includes a
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