Judge grants banned Daily News green light to publish

Judge grants banned Daily News green light to publish

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By Mduduzi Mathuthu
19/12/03
A ZIMBABWEAN judge has granted the banned Daily News permission to resume publication following an appeal, igniting an angry response from the government which has described the decision as a “backdoor” attempt to grant the paper publishing rights.

Administrative Court chief judge Selo Nare was immediately besmirched by a flurry of virulent attacks by information minister Jonathan Moyo who vowed to resist the publication of The Daily News, claiming the court decision was “political”.

"We are seriously perturbed by this development which in our respectful and considered view is outrageously political," Prof Moyo said in a statement issued to the official Herald newspaper.

As of Thursday night, Daily News staffers were said to be preparing a paper for Friday. It will not be the first time the paper has published following a green light from the courts, only to be shut down again by the police.

Initially closed down in September for failing to register with a government appointed commission in accordance with draconian media legislation, The Daily News won a court challenge which was immediately appealed by government and it was shut down and it’s equipment seized.

Delivering judgement on Thursday, Nare merely endorsed an earlier decision by the same court which ruled that the government-appointed Media and Information Commission (MIC) should grant the paper a licence before 30 November, failure to which the paper would automatically have the right to publish.

The MIC, itself deemed to be improperly constituted by the Administrative Court, appealed to the Supreme Court but The Daily News returned to the court to ask for a right to resume publishing while the Supreme Court hears the MIC appeal.

Justice Michael Majuru who made the initial judgement and was set to hear the appeal stood down after the government claimed he had discussed the case with members of public and was not fit to hear The Daily News appeal.

But the government is now arguing that there was no legal basis for the Administrative Court to proceed and hand the judgment as the court had already made a final decision on the case – a decision being appealed in the Supreme Court.

In a stinging attack on the judiciary process, Moyo railed: “The record clearly shows that the Administrative Court made a final judgment in this matter and therefore ended its business. An appeal (by MIC) has been made in the Supreme Court and the matter is live in that court.

"The re-opening of the same matter relying on the same facts and in the same court in order to get a new and different judgment is scandalous and totally unacceptable in terms of the law," Prof Moyo said in the statement.

He added: "As a Minister of Government I have obtained in writing a considered opinion by the Acting Attorney-General which clearly and unambiguously says the original decision by Mr Michael Majuru the president of the Administrative Court renders that court functus officio (Latin term applied to something which once had life and power, but which now has no virtue whatsoever. E.g., When an agent has completed the business with which he was entrusted, his agency is functus officio) and incompetent to entertain any further application for relief in this matter. This is as clear as daylight and any backdoor approach is clearly political and will be resisted by all available legal means in the interest of upholding the rule of law."

Acting Attorney General Bharat Patel wrote to Moyo last week, details of the letter surfaced in the Herald, in which he pours scorn on the Administrative Court’s entertainment of The Daily News appeal to publish while the Supreme Court considers the MIC appeal.

"Looking at the litigation as a whole, I am of the considered view that the original decision made by the Administrative Court renders that court functus officio and incompetent to entertain any further application for relief in this matter.

"This is fortified by the fact that the original decision has been appealed against to the Supreme Court which, in my view, is the only forum before which any further litigation in this matter can be canvassed."

The Herald once again sought to smear Nare on Friday, suggesting that in a letter he wrote to the Registrar of the Administrative Court in Harare, “he echoed almost word for word the claims of the ANZ lawyers.”

The Herald further reported: “Sources familiar with the case said the surprise decision by Judge Nare had been made after a flurry of letters between ANZ lawyers Gill, Godlonton and Gerrans and MIC lawyers Muzangaza, Mandaza and Tomana in which the ANZ lawyers influenced the Administrative Court by claiming that the noting of the MIC appeal did not have the effect of suspending proceedings.”
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