Africa Tribune Newspapers (Pvt) Ltd and Others v The Media and Information Commission and Another

The first applicant was a registered company publishing a weekly newspaper called the Tribune. The second applicant acquired all shares in the first applicant from UKI (Pvt) Ltd. The Media and Information Commission (first respondent) charged the first applicant with contravening section 67 of the Access to Information and Protection of Privacy Act for failing to notify the Commission of material changes, including change of ownership, trade name, and frequency of publication. The Commission also charged the first applicant with contravening section 79(6) for employing an unaccredited journalist, Bekithemba Mhlanga. After a hearing on 2 June 2004, the Commission found the first applicant guilty of both charges and additionally guilty of contravening section 71(1)(a) for misrepresenting facts about Mhlanga's employment during the hearing. The Commission cancelled the first applicant's licence for one year. The applicants sought urgent review of this decision on grounds that the Commission acted ultra vires, the decision was grossly unreasonable and irrational, and the Commission was biased.

• Whether the application was urgent and should be heard on an urgent basis
• Whether the Commission acted ultra vires in cancelling the licence for contraventions of sections 67 and 79(6) of the Act
• Whether section 71(1)(a) permitted cancellation for non-disclosure occurring after registration
• Whether the Commission's conviction under section 71(1)(a) based on misrepresentation during the hearing without prior notice under section 71(4) was irregular
• Whether the Commission's decision was grossly unreasonable and irrational warranting review
• Whether the Commission and its chairman were biased against the first applicant

The Commission's finding that the first applicant contravened section 71(1)(a) by misrepresenting during the hearing was set aside. The application in respect of the contraventions of sections 67 and 79(6) was dismissed with no order as to costs. Each party was to bear its own costs.

1. Section 71(1)(a) of the Access to Information and Protection of Privacy Act permits suspension or cancellation of a media licence for misrepresentation or non-disclosure of material facts occurring after registration, not only those occurring during or prior to registration. 2. Before convicting a media service under section 71(1)(a), the Commission must comply with section 71(4) by giving notice of its intention to cancel, stating reasons, and allowing the media service a reasonable opportunity to show cause. Failure to do so renders the conviction irregular. 3. Judicial review is concerned with the decision-making process, not the correctness of the decision. A decision can only be set aside for gross unreasonableness if it is so outrageous as to be explicable only on the basis of mala fides, ulterior motive, or failure to apply the mind. 4. Where a tribunal has discretion to impose a particular penalty for proven contraventions, a review court cannot interfere with the exercise of that discretion even if it considers the penalty severe, as this is a matter for an appeal court.

The court observed that the Commission's duty is not merely to promote, develop and grow the media, but also includes monitoring and controlling media services, investigating non-compliance, and ensuring compliance with the Act. The court noted that an error of law is not necessarily an irregularity entitling proceedings to be reviewed, unless the error caused the tribunal to misunderstand its jurisdiction, ask the wrong question, or substantially influenced the decision. The court also commented that compliance with statutory notice requirements (such as section 71(4)) cannot constitute bias, as the Commission is simply following the procedure set down by statute.

This case clarifies important principles of administrative law and media regulation in Zimbabwe. It establishes that judicial review is concerned with the decision-making process, not the correctness of the decision, and that gross unreasonableness as a ground for review has a limited role. The judgment confirms that administrative tribunals must comply with statutory procedural requirements, particularly notice and hearing requirements, before imposing penalties. The case also interprets section 71(1)(a) of the Access to Information and Protection of Privacy Act to extend to post-registration misrepresentations and non-disclosures, not just those occurring during registration. It illustrates the distinction between review and appeal, and the limited circumstances in which a court can interfere with decisions within an administrative body's discretion.