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

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 08 December 2004
• Docket Number: CCT 38/2004
• Court: Constitutional Court
• Hearing Date: 08 December 2004
• Citation: 2005 (4) SA 319 (CC)

The Court: A

[1] Radio Pretoria seeks leave of this Court to appeal against the decision of the Supreme Court of Appeal (SCA). On 2 September 2004 the SCA dismissed its appeal against the judgment and order of the Pretoria High Court (High Court), which had refused to make an order setting aside the decision of the Independent Communications Authority of South Africa (ICASA) not to grant Radio Pretoria a B temporary sound broadcasting licence.

[2] Radio Pretoria is a community broadcaster founded for the purpose of serving the needs of what it describes as the 'Boere-Afrikaner' community. It began operating in 1993 on a temporary broadcasting licence issued under the previous dispensation. C Before 1995, it interrupted its broadcasting activities in order to apply for a new licence under the new dispensation. In 1995 Radio Pretoria was granted its first one-year temporary community broadcasting licence. In the years between 1996 and 1999, the Independent Broadcasting Authority (IBA) granted it temporary community broadcasting licences annually and later issued additional D broadcasting signal distribution licences to 12 signal distribution points.

[3] ICASA and its chairperson are the respondents. The respondents do not oppose the application for leave to appeal. They have filed a notice stating that should leave to appeal be granted they would exercise their option to oppose the appeal. ICASA is an E independent authority established in terms of the Independent Communications Authority of South Africa Act [1] (the ICASA Act). One of its primary mandates is to issue radio broadcasting licences. From 1993 that power vested in the IBA. However, from 1 July 2000 ICASA assumed that role. F

[4] In March 1998 Radio Pretoria applied for a permanent four-year community broadcasting licence. The application was not considered then. Seemingly, neither the IBA nor ICASA had enough resources to handle properly the large volume of applications for radio broadcasting licences. Both regulatory bodies resorted to an interim arrangement of granting annual temporary licences. G

[5] In February 2000 Radio Pretoria applied for its sixth temporary community broadcasting licence for the year ending April 2001. By the effective date, ICASA had neither refused nor granted the application. To meet this difficulty, it issued a series of short licence extensions and set up a small committee from among its members H to evaluate the application. The committee arranged oral hearings at which Radio Pretoria made oral and written presentations. Later, at the invitation of the committee, Radio Pretoria made additional written submissions on issues which arose during the hearing. They related to the involvement of the broader community in the election of the board I of directors and the policy of employing only 'Boere-Afrikaners'. In its submissions, Radio Pretoria made it plain that it had acted within the requirements of

The Court

its articles of association and that it had done all that it could to encourage the communities it served to become its A members. It stoutly defended its exclusive employment practices, which it stated, were necessary to preserve its cultural purpose and identity.

[6] On 28 February 2001 ICASA had regard to the report of the committee and refused to grant Radio Pretoria a sixth annual temporary licence. It required Radio Pretoria to terminate its B broadcasting service and those of its relay stations within 30 days of receiving the reasons for the refusal. The reasons for the refusal were furnished on 10 July 2001. However, the parties agreed that whilst awaiting the decision on the review proceedings to be brought in the High Court, Radio Pretoria would be permitted to continue broadcasting. C

In the High Court

[7] Radio Pretoria approached the High Court for an order to review and set aside the decision of ICASA not to grant it an annual temporary D broadcasting licence for the year ending April 2001. The application was heard only in January 2003. It was brought on several substantive and procedural grounds. Let it suffice to mention a few. Radio Pretoria argued that the decision of ICASA was irrational, offended the principle of legality and was taken without a proper hearing. It contended that ICASA misconceived and exceeded its power under the E Broadcasting Act [2] by, first, failing to recognise that the board of directors of Radio Pretoria is chosen democratically by members of its holding company as permitted under company law and, secondly, by conducting an enquiry into its employment policy and practices. F

[8] After hearing the merits of the attack, the High Court dismissed the review application. [3] It is self-evident that the High Court's decision was delivered long after the envisaged temporary licence period had expired. Nevertheless, it granted Radio Pretoria leave to appeal to the SCA on the grounds that the matter involves issues of great importance to the parties, the G broadcasting community and the broader public and that there was a reasonable prospect that another court might arrive at a different outcome.

In the Supreme Court of Appeal

[9] On 2 September 2003 Radio Pretoria filed its notice of appeal in the SCA. The notice sought an order setting aside the H impugned decision and remitting it to ICASA for reconsideration. Clearly, when the notice was drawn the applicant did not know of the outcome of its four-year licence application, which was heard on 9 May 2003 and refused on 30 September 2003. I

The Court

[10] In April 2004 Radio Pretoria gave notice that at the hearing of the...