IN a setback to attempts by Associated Newspapers of Zimbabwe (ANZ) to get the Daily News back on the streets, Chief Justice Chidyausiku has condoned the late filing of pa
pers of appeal by the police who are opposing a High Court ruling by Justice Yunis Omerjee that the company should be allowed to operate.
At the time of Justice Omerjee’s judgement on September 18, the court ordered by consent that the police should lodge any appeal by close of business on September 22. Omerjee ordered the police to return computer equipment confiscated from ANZ and to stop interfering with the activities of the organisation.
The Daily News and its sister paper, the Daily News on Sunday, were closed on September 12, a day after Chidyausiku dismissed an ANZ application challenging the Access to Information and Protection of Privacy Act (Aippa).
The latest ruling by Chidyausiku, made last week, effectively means that the police can withhold the equipment until the case has been determined by the Supreme Court.
Although the lawyers representing the police managed to file the notice of appeal on the ANZ judgement before the September 22 deadline, they only filed their court papers with arguments after the deadline.
The police lawyer, a Mrs FC Maxwell of the Attorney-General’s Office, said the appeal had not been filed on time because their messenger was delayed and the office ran out of bond paper while preparing the documents. Chidyausiku allowed this explanation to prevail.
“The explanation for the delay is plausible,” the Chief Justice said in a chambers order. “The bond paper ran out causing the preparation of the record to be completed a few hours after the deadline.
“In any event the appeal itself was lodged on time. It is the record of the proceedings that could not be filed on time. There is hardly any prejudice that could have been caused to the respondent,” said Chidyausiku.
He said condonation was allowed as the police had a prospect of success in the application.
“In cases, as in casu, where the delay is minimal and the explanation for the delay is plausible, condonation should be granted unless prospects of success on the merits are virtually non-existent and the applicant is only seeking to delay the day of reckoning,” said Chidyausiku.
Advocate Adrian de Bourbon, for the ANZ, had argued the appeal by the police was “fatally defective in that it was not an appeal against the relief granted by the learned judge (Omerjee) but the reasoning behind the granting of the relief”.
The condonation means the Supreme Court is now swamped with cases to do with the media. The Supreme Court has since November last year still not produced a judgement on the application by the Independent Journalists Association of Zimbabwe challenging the constitutionality of Aippa. It has to rule on the police’s appeal against Omerjee’s judgement.
And it has yet to decide on the appeal by the Media and Information Commission after the Administrative Court ruled that the regulatory body was not properly constituted and that ANZ should be deemed licensed by November 30.