Radio Pretoria v Chairman, Independent Communications Authority of South Africa, and Another

• Jurisdiction: South Africa
• Judge: Mpati DP, Streicher JA, Navsa JA, Heher JA and Van Heerden JA
• Judgment Date: 02 September 2004
• Citation: 2005 (1) SA 47 (SCA)
• Docket Number: 402/03
• Hearing Date: 16 August 2004
• Counsel: W R C Prinsloo SC (with P Oosthuizen) for the appellant. D N Unterhalter SC (with Terry Motau) for the respondent.
• Court: Supreme Court of Appeal

Navsa JA:

[1] On 16 August 2004 this appeal was heard and dismissed in terms of s 21A(1) of the Supreme Court Act 59 of 1959 (the SC Act). The following order was made:

'1.

The appeal is dismissed. G

2.

Appellant is to pay:

(a)

all costs occasioned by the application for amendment of the notice of appeal;

(b)

all costs in relation to the appeal incurred after 30 June 2004.'

Reasons for the order were to follow. These are the reasons. H

[2] Subsections 21A(1) and 21A(3) of the SC Act provide as follows:

'(1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone. I

. . .

(3) Save under exceptional circumstances, the question whether the judgment or order would have no practical effect or result, is to be determined without reference to consideration of costs.' J

Navsa JA

[3] There have been too many appeals in the recent past which have been dismissed by this Court on the basis set out in the statutory A provisions referred to in the preceding paragraph. This unfortunately appears to demonstrate that a number of appeals that have no prospect of being heard on the merits are being persisted in: Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA), Western Cape Education Department and Another v George 1998 (3) SA 77 (SCA), Coin Security Group (Pty) Ltd B v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA), Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA), Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA). C

[4] The primary question in this appeal was whether a judgment by this Court would indeed have any practical effect. An answer in the negative, absent the exceptional circumstances referred to in s 21A(3) of the SC Act, would mean that the appeal was destined to be dealt with like those referred to above. D

[5] The background facts against which this question fell to be decided are set out briefly in the succeeding paragraphs. As will become apparent the path to the appeal before this Court was protracted and convoluted.

[6] Second respondent, the Independent Communications E Authority of South Africa (ICASA), is in terms of the Independent Communications Authority Act 13 of 2000 (the Act) presently the statutorily entrenched authority that issues radio broadcasting licences. ICASA came into being on 1 July 2000. The first respondent is its chairperson.

[7] The appellant company (Radio Pretoria) was incorporated in 1994 in terms of s 21 of the Companies Act 61 of 1973. In 1995 the Independent Broadcasting Authority (the IBA), the second F respondent's immediate statutory predecessor, granted Radio Pretoria a temporary one-year licence to conduct business as a community radio station and broadcaster.

[8] In 1996, 1997 and 1998, further one-year licences were granted by the IBA to Radio Pretoria to continue broadcasting as a G community radio station.

[9] When Radio Pretoria applied for its fifth consecutive temporary licence for the period 30 April 1999 to 29 April 2000, a dispute arose with the IBA concerning signal distribution H licences for 12 relay stations. As a result of negotiations a licence was issued in terms of which Radio Pretoria could continue broadcasting via its Kleinfontein transmitter as well as through 12 signal distribution stations.

[10] On 10 February 2000 Radio Pretoria applied to the IBA for a temporary community sound broadcasting and signal distribution I licence to continue as a radio broadcaster for the period 30 April 2000 to 29 April 2001 on the same terms and conditions as had applied in the previous year.

[11] After the preliminary statutory procedure was followed ICASA, J

Navsa JA

which (as stated above) succeeded the IBA from 1 July 2000, set up a committee, duly delegated, to deal with the application. The A committee, consisting of three ICASA members, conducted a hearing during September and October 2000 at which Radio Pretoria made oral and written representations.

[12] Subsequent to the hearing the committee wrote to Radio Pretoria asking it to address further, in writing, questions that had B been raised during the hearing, namely inter alia, the question of community involvement in the election of its board of directors and its stated strict policy of employing only Boere-Afrikaners.

[13] Radio Pretoria responded in writing, contending that it acted in accordance with its articles of association and that it had C done all it could to actively encourage the communities it served to become members. It was unrepentant concerning its employment practices, which it stated were necessary to preserve its cultural and overall identity.

[14] After having regard to the report of the committee that considered Radio Pretoria's application, the Council of ICASA decided D to refuse the application for a temporary licence. On 28 February 2001 ICASA wrote to Radio Pretoria informing it of that decision.

[15] On 10 July 2001 ICASA supplied reasons for the refusal. It stated that, in terms of Radio Pretoria's articles of association, not every member of the community it served was E entitled to become a member, and that, as only persons nominated or appointed by the board of directors by majority vote could become members, for all practical purposes membership of Radio Pretoria was restricted to those persons invited by the Board to become members. The Board of directors of Radio Pretoria was, in turn, elected by F members at its annual general meeting. Simply put, ICASA took the view that, since the directors nominate or appoint the members and the members elect the directors, the form of governance followed by Radio Pretoria was undemocratic and in contravention of s 32(3) of the Broadcasting Act 4 of 1999 ('the BA Act'). This section provides that a licensee must be managed and controlled by a board that must be G democratically elected from members of...