Independent Communications Authority of South Africa and Others v Open Heaven Community Radio and Others (1133/2023) [2025] ZASCA 117 (12 August 2025)

Case Note

Independent Communications Authority of South Africa and Others v Open Heaven Community Radio and Others
[2024] ZASCA 117; Case No 1133/2023 (Supreme Court of Appeal, 12 August 2025)

Reportability

This judgment has been marked Reportable by the Supreme Court of Appeal because it clarifies the statutory powers of the Independent Communications Authority of South Africa (ICASA) in relation to the renewal of class broadcasting licences. It also determines the effect of the 2021 amendment to the Standard Terms and Conditions Regulations for Class Licences, thereby providing authoritative guidance to the broadcasting industry, regulatory bodies, and practitioners. The case resolves an uncertainty that affected numerous community broadcasters whose licences were due to expire after the regulatory amendment.

Cases Cited

No earlier case authorities are expressly analysed in the body of the judgment. The court’s reasoning is rooted primarily in statutory interpretation of the Electronic Communications Act 36 of 2005 and related regulations.

Legislation Cited

Electronic Communications Act 36 of 2005
Independent Communications Authority of South Africa Act 13 of 2000
Constitution of the Republic of South Africa, 1996

Rules of Court Cited

Uniform Rule 53 – Review of administrative action in the High Court

HEADNOTE

Summary

The Supreme Court of Appeal was required to determine two principal questions. First, whether ICASA possesses statutory power to entertain and condone a notice of renewal of a class broadcasting licence submitted outside the six-month period prescribed by section 19(2) of the Electronic Communications Act. Second, whether a 2021 amendment to the Standard Terms and Conditions Regulations for Class Licences automatically and retrospectively extended the term of all community sound broadcasting licences from five to seven years.

In a unanimous judgment delivered by Dolamo AJA (with Dambuza and Mbatha JJ A concurring) the court dismissed ICASA’s appeal and upheld the broadcaster’s cross-appeal. It held that the amended regulation validly lengthened the duration of existing class community sound broadcasting licences to seven years. Consequently, Open Heaven’s licence, which took effect on 12 September 2017, would now expire on 11 September 2024, rendering arguments about late renewal largely moot.

The court further found that ICASA lacked any residual or implied statutory power to condone the late filing of a renewal notice under the unamended section 19(2). However, because the licence had not in fact expired (owing to the regulatory extension), ICASA’s refusal to process the renewal was set aside and replaced with declaratory relief confirming the continued validity of the licence.

Key Issues

Whether section 19(2) of the Electronic Communications Act empowers ICASA to condone a late renewal notice for a class licence.
Whether Regulation 4 of the 2021 Standard Terms and Conditions Regulations retrospectively extended all community broadcasting licences from five to seven years.
The proper interpretation of regulatory amendments and their temporal application to existing broadcasting licences.

Held

The appeal by ICASA is dismissed with costs.
The cross-appeal by Open Heaven Community Radio is upheld.
The High Court’s order is replaced with declarations that the term of a community sound broadcasting service licence is seven years from its effective date and that Open Heaven’s licence therefore remains valid until 11 September 2024.
ICASA is ordered to pay the costs of both the appeal and the cross-appeal, including the costs of two counsel.

THE FACTS

Open Heaven Community Radio obtained a class community sound broadcasting licence on 12 September 2012, renewed on 26 May 2017 for a five-year term ending 11 September 2022. In March 2021, ICASA amended the Standard Terms and Conditions Regulations, extending the duration of such licences to seven years.

From late 2021 the station experienced governance difficulties. ICASA advised it to hold an Annual General Meeting to regularise its affairs. Preparations were made for an AGM on 26 March 2022. Before that meeting, ICASA alerted the station that it had failed to file a renewal notice six months before its licence expiry and would have to cease broadcasting on 11 September 2022.

Open Heaven lodged a renewal notice on 30 March 2022, 14 days late. ICASA refused to accept it, asserting it lacked power to condone non-compliance with section 19(2). The broadcaster sought internal condonation to no avail. It then launched High Court proceedings: urgently to interdict ICASA from shutting it down and, in the main, to review and set aside ICASA’s refusal or, alternatively, to declare that its licence term had been extended to seven years by the 2021 amendment. The High Court granted partial relief, prompting both sides to appeal.

THE ISSUES

The Supreme Court of Appeal needed to determine whether ICASA has any statutory authority, express or implied, to condone late renewal applications under section 19(2). It also had to decide whether Regulation 4 of the 2021 amendments automatically lengthened existing licences, thereby rendering the renewal debate unnecessary. Finally, the court was asked to resolve the appropriate costs order stemming from the parties’ competing success.

ANALYSIS

First, the court undertook a textual and purposive interpretation of section 19(2). It concluded that the subsection’s language is peremptory: a class licensee “must” give notice of renewal “not less than six months” before expiry. Nothing in the Act confers a discretion on ICASA to waive or condone non-compliance, and regulatory bodies may not supplement their statutory powers by implication in the face of clear wording.

Secondly, the court considered Regulation 4 of the 2021 amendments. Reading the regulation in its ordinary grammatical sense, the court held that it applies to “the following licences” and prescribes a seven-year validity period “from effective date”. Because the regulation was not expressly prospective and because nothing suggested an intention to differentiate between existing and future licences, the provision operated retrospectively, automatically extending Open Heaven’s licence.

Thirdly, the court rejected ICASA’s submission that such a retrospective extension infringes the principle of legality. Parliament had empowered ICASA, under section 4 of the Electronic Communications Act, to make regulations governing the duration of licences. The amended regulation was accordingly within power and its retrospective effect merely enlarged rather than curtailed existing rights, which is permissible in administrative law.

Finally, the court dealt with costs. Given ICASA’s failure in the appeal and the broadcaster’s success in the cross-appeal, the regulatory authority was ordered to pay costs in both proceedings, including the costs of two counsel, as was appropriate in litigation of public importance.

REMEDY

The order of the High Court was set aside and replaced with declaratory relief confirming that, by operation of Regulation 4 of Government Notice 44328 of 25 March 2021, community sound broadcasting licences now endure for seven years. The court declared Open Heaven’s licence valid until 11 September 2024. ICASA must bear the costs of the appeal and cross-appeal on a party-and-party scale, inclusive of the costs of two counsel.

LEGAL PRINCIPLES

A regulatory body such as ICASA possesses only such powers as are conferred upon it by statute or reasonably incidental to those powers. In the absence of an express power to condone non-compliance with statutory time-limits, no such discretion exists.

Where a regulation validly made under an empowering statute alters the duration of licences, that alteration applies to existing licences unless the instrument expressly or by necessary implication provides otherwise. A retrospective extension that benefits licence holders does not offend the rule against retrospective law-making.

Administrative agencies must act within the four corners of their statutory mandate. Attempts to decline applying a valid regulation or to insist on expiry dates inconsistent with amended regulations constitute legally reviewable errors warranting declaratory and corrective relief.