Associated Newspapers of Zimbabwe v The Media Information Commission

The applicant (Associated Newspapers of Zimbabwe) applied to the respondent (Media Information Commission) in September 2003 for registration as a media service provider in terms of the Access to Information and Protection of Privacy Act. The application was declined. The applicant appealed to the Administrative Court, which ruled in its favour. The respondent appealed to the Supreme Court, which set aside both the Administrative Court's decision and the respondent's refusal to register the applicant, ordering the respondent to consider the application de novo. The Supreme Court specifically found that the proceedings were voidable due to perceived bias on the part of the Chairperson of the respondent, who had made utterances and remarks about the applicant likely to raise reasonable apprehension that the applicant would not receive a fair hearing. After reconsideration, the respondent again denied the applicant registration on 18 July 2005. The applicant filed a court application on 28 July 2005 for review of this decision on grounds of procedural irregularity and bias.

• Whether the decision of the respondent taken after the Supreme Court's finding of perceived bias against its Chairperson was tainted by that bias
• Whether leave should be granted to file additional affidavits after the answering affidavit
• Whether the court should withhold jurisdiction due to an appeal pending before the Administrative Court (lis pendens)
• Whether the commission as constituted could validly consider the applicant's application given the finding of bias

1. The decision by the respondent of 18 July 2005 is set aside. 2. The respondent is to consider the applicant's application de novo. 3. The respondent is to bear the applicant's costs.

A finding of perceived bias by a superior court creates issue estoppel that binds the parties in subsequent proceedings. Where a decision-maker has been found to be biased (whether actual or perceived), any subsequent decision made with the participation of that decision-maker is void and must be set aside. Leave to file additional affidavits after the answering affidavit will not be granted where no adequate explanation is provided for the omission of facts from the original affidavits and where the party will not be prejudiced by the exclusion of such affidavits.

The court observed that while there was merit in the submission that the commission as presently constituted might be disabled from validly considering the applicant's application due to the taint of bias from the Chairperson's participation, the court lacked power to order appointment of a new commission as the appointing authority was not before the court. The court noted it would be inappropriate to give directions to any future panel as this would amount to judicial interference in an administrative function. The court also commented that the litigation between the parties had been clouded by allegations of political machinations and unfortunate language, creating unnecessary complications that obscured the relatively simple legal issue at the heart of the dispute.

This case reinforces the fundamental principle that perceived bias is sufficient to void administrative decisions, and that findings by superior courts on bias create issue estoppel that binds parties in subsequent proceedings. It demonstrates the courts' strict approach to ensuring procedural fairness in administrative decision-making, particularly where registration or licensing decisions are concerned. The case also provides guidance on the court's discretion regarding leave to file additional affidavits and the application of lis pendens principles in administrative review matters.