By Alex Tawanda Magaisa
IN the Supreme Court judgement of September 11, the court refused to hear the application brought by ANZ (publishers of the Daily News and the Daily News on Sunday) challenging sectio
ns of the Access to Information and Protection of Privacy Act (Aippa). That unprecedented refusal to hear a constitutional application was based on the grounds that ANZ had “unclean hands” because they had failed to comply with the law whose validity they were challenging.
I argued at the time that the Supreme Court had erred in applying the doctrine of “clean hands”, a doctrine of equity, in a matter involving the determination of fundamental constitutional rights. Such application poses a great hazard to the protection and uninterrupted enjoyment of human rights. Even deferring to that doctrine, given the events of the weeks since that unfortunate judgement, ANZ is now perfectly entitled to approach the court for the determination of the constitutional application on its merits.
This is because the ANZ has done everything required to comply with the law as required by the court. We must conclude that compliance has been satisfied for to hold otherwise could mean that any attempts by ANZ to comply will never measure up to the expectations of the court.
A number of events have taken place since the September 11 judgement. ANZ immediately submitted an application for registration to the Media and Information Commission, which within a few days delivered a decision refusing to grant the application. As required by Aippa, ANZ filed an appeal to the Administrative Court, which granted judgement in its favour, holding inter alia and significantly that at the time it gave its decision, the MIC was improperly constituted and was biased.
One inescapable implication is that the MIC was operating outside the law, the very same accusation that it and the Supreme Court had levelled against the ANZ. Following that appeal, ANZ tried to resume operations but was again thwarted as the MIC made an appeal to the Supreme Court.
Thus the Supreme Court is faced with two matters concerning the ANZ, the first of which is the constitutional application that it initially refused to hear and, secondly, the appeal by the MIC against the Administrative Court judgement in favour of ANZ.
Before pursuing this matter, one question stands in the way. Why would it be necessary to pursue the constitutional application at a time when there is another appeal before the Supreme Court in the matter of the application for registration?
It remains necessary because the resolution of the first matter has the potential of disposing of the necessity of dealing with the vexatious appeal by the MIC. It would also show that the ANZ never had dirty hands because in the event that the Administrative Court judgement that the MIC was improperly constituted is upheld, it would mean that not even the government nor its agent, the MIC, were complying with the law.
Where the regulatory body itself is operating outside the law, whether ANZ had attempted to comply by applying or had chosen to ignore (as it did), it could not be tainted. The court has stated that he who operates beyond the law has dirty hands and so if the MIC was operating outside the law, it too had dirty hands.
The Supreme Court finds itself in a potentially difficult position. This is because by refusing to hear the merits of the constitutional application it took it for granted that because the ANZ had failed to apply for registration it was operating illegally without taking into account the potential illegality of the operations of the MIC or the government. If it had done so, it might have realised that there was potential that the hands of government and MIC were tainted. Unless it is a foregone conclusion that the MIC appeal from the Administrative Court decision will succeed, there is every reason to believe that the Supreme Court will dismiss it.
The effect of a dismissal would be to declare that the MIC was improperly constituted and therefore operating outside the law, in which case, viewed retrospectively, it would mean that at the time that the government argued that ANZ lacked clean hands by failing to register, it and its agents were also acting outside the law and consequently also had dirty hands. It would fatally expose the reasoning of the court in refusing to hear the constitutional application on that shaky ground when it did not have all the information regarding the legality of each party’s position.
However, one must determine whether the constitutional application can be heard at all. The Supreme Court held that the ANZ could still bring the constitutional matter on the same papers but only after compliance with the law. Compliance, it would seem, cleanses ANZ’s dirty hands. Which of course raises the question of what it takes for compliance to be satisfactory for the purpose of cleansing the hands of ANZ. There are at least two questions that arise:
Does it mean ANZ must apply for registration and, if so, should the application be successful to satisfy the compliance requirement? Or: Is the mere submission of an application for registration, even if unsuccessful, adequate? In other words is compliance synonymous with a successful application or is the filing of an application enough?
In answer to these questions, the court attempted to supply some guidance. It stated that: “Compliance with the law does not necessarily mean submission of an application for registration to carry on the activities of a mass media service. It certainly means desisting from carrying on the activities of a mass media service illegally” (my emphasis).
That statement appears to mean that submission of an application is not enough. The court is certain however that ceasing operations would satisfy compliance. This meant that although the ANZ could submit an application for registration, it also needed to stop operations to satisfy the compliance requirement. This was probably meant to cover a situation whereby ANZ could have submitted an application to the MIC the minute they left the court and returned the next minute arguing that having complied with the law they now had clean hands.
Simultaneously they would still be publishing regardless of how long it took the MIC and the courts to fully determine the application for registration. As it is, because they have had to stop operations, the authorities can abuse the legal process, by delaying, appealing and cross-appealing until the oceans run dry while ANZ is not publishing, which satisfies them, for this has always been the chief aim. That is why the ANZ should approach the court again and argue for the hearing of the constitutional application, regardless of the fact that the Supreme Court is also due to hear the appeal by the MIC in the registration matter.
One might venture to ask, however, whether the existing appeal from the Administrative Court by the MIC has any negative impact on that constitutional application. I think not. The court stated in no uncertain terms that stopping operations is enough to satisfy compliance. If the court were to refuse on the ground that the appeal regarding registration must be finalised, it would introduce a new conundrum. It could mean that although mere submission of an application is not enough, its success is necessary to cleanse hands.
That would be a wrong approach. It is submitted that in a matter where successful registration is dependent upon someone’s decision it would be wrong to determine compliance based on the success of the application. Where registration is not dependent on someone’s decision and is a simple formality that can be completed by the applicant, there is no problem because you assess whether the applicant has done what is required.
However, where that success depends on someone, it may place an insurmountable barrier on the applicant to the extent that he will never measure up to the compliance requirement. That is particularly wrong where the compliance has a bearing on one’s constitutional rights to approach the court for the protection of a fundamental right. The argument therefore is that the cleanliness of ANZ’s hands is not dependent on the success of its application for registration and since the MIC appeal to the Supreme Court is about registration, it cannot negatively affect ANZ’s right to seek redress in the constitutional matter. It has no bearing whatsoever on the cleanliness of ANZ’s hands.
* Alex Tawanda Magaisa is law lecturer at the University of Nottingham in the UK.