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[2011] ZAGPJHC 83
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Radio Pulpit v Chairperson of the Council of the Independent Communications Authority of South Africa and Another (09/19114) [2011] ZAGPJHC 83 (8 March 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
09/19114
DATE:08/03/2011
In the matter between:
RADIO
PULPIT
....................................................................................
Applicant
and
CHAIRPERSON OF THE COUNCIL OF
THE INDEPENDENT COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
.........................................
First
Respondent
INDEPENDENT COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
....................................
Second
Respondent
J U D G M E N T
WEPENER, J
:
[1] The applicant (“
Radio
Pulpit
”)
launched an application to review and set aside a decision of the
second respondent (Independent Communications Authority
–
“
ICASA
”)
in which it refused Radio Pulpit’s application for a community
sound broadcasting licence to broadcast in the Western
Cape on 729
kHz medium wave frequency (“
the
decision
”) on
the basis,
inter alia,
that the committee delegated by ICASA to deal with the application
was not properly constituted. It also seeks an order in terms
of
which the decision is substituted with a decision to allow Radio
Pulpit to broadcast in the Western Cape on the 729 kHz medium
wave
frequency and an order directing ICASA to issue a broadcasting
licence to Radio Pulpit.
[2] ICASA, which has been
established in terms of the Independent Communications Authority Act
13 of 2000 (“
the
ICASA Act
”),
consists of a council, on which the ICASA councillors sit, and
various committees.
1
[3] For the hearing of the Radio
Pulpit application, the ICASA council, as it was entitled to do,
constituted a committee to deal
with the application and thereafter
to make recommendations to the council. The ICASA council designated
two councillors to sit
on the committee which would deal with the
Radio Pulpit applications.
[4] The council resolution
appointing the committee stipulated that the two councillors had to
be present for all stages of the
committee’s cessions:
“
2.4
The quorum for any meeting of this committee shall be two
Councillors and three Committee members.
…
Any member of the committee
who is for any reason absent during any cession of the committee
where the parties herein request
the committee to make a
determination with regard to substantive issues relating to the
merits of the matter before it, the
preliminary point or the
evidence led by either of the parties, shall be disqualified from
further participating on the deliberations
of the committee
relating to those issues that were discussed, presented or heard in
his/her absence.
”
It is common cause that one of
the nominated councillors did not participate at all in the
deliberations of the committee in respect
of Radio Pulpit’s
second application.
[5] ICASA concedes the review
and setting aside of the decision on the basis of one of the
councillor’s absence from the
deliberations “
as
this could potentially be regarded as having been procedurally
unfair
”.
[6] The concession is consistent
with a well entrenched line of authority going back to the decision
of
Schierhout v Union
Government (Minister of Justice)
1919
AD 30
at 44 where it was said:
“
When
several persons are appointed to exercise judicial powers, then in
the absence of provision to the contrary, they must all
act together;
there can be only one adjudication, and that must be the
adjudication of the entire body … and the same
rule would
apply whenever a number of individuals were empowered by Statute to
deal with any matter as one body; the action taken
would have to be
the joint action of all of them … for otherwise they would not
be acting in accordance with the provisions
of the Statute.
”
[7] On this basis the decision
taken by ICASA’s council regarding Radio Pulpit’s
application to broadcast in the Western
Cape on the 729 kHz medium
wave frequency (“
the
729 kHz frequency
)
based on the recommendation of an improperly constituted committee,
was procedurally unfair. The decision consequently falls
to be
reviewed and set aside in terms of section 6(2)(c) of the Promotion
of Administrative Justice Act 3 of 2000 (“
PAJA
”).
[8] Radio Pulpit not being
satisfied with the concession, continues to press further review
grounds which would, according to its
argument, lead to the court
substituting its decision for that of the decision of ICASA with a
resultant order directing ICASA
to issue the relevant broadcasting
licence to Radio Pulpit.
[9] The grounds for review are
“
that ICASA’s
decision was impermissible based on its policy that community
broadcasters had to be geographically bound
”
and “
that ICASA
failed to take into account or properly take into account the
relevant considerations in coming to its decision
”.
These two grounds were dealt with together in argument by Mr Kennedy
on behalf of Radio Pulpit because they were said to
be closely
related.
[10] In order to consider the
further review grounds in its proper perspective it is necessary to
set out the framework within
which ICASA operates as well as the
regulation of broadcasting under the Electronic Communications Act,
36 of 2005 (“
ECA
”).
[11] Broadcasting is regulated
in terms of the ECA which came into force on 19 July 2006. It was
previously regulated by the Independent
Broadcasting Authority Act,
153 of 1993 (“
the
IBA Act
”) now
repealed by the ECA and the
Broadcasting Act, 4 of 1999
(“
the
Broadcasting Act
&rdquo
;).
ESTABLISHMENT OF ICASA
[12] ICASA was established in
terms of section 3(1) of the ICASA Act. ICASA acts through a council
contemplated in section 5 of
the ICASA Act. The composition of the
council is set out in section 5 of the ICASA Act. Section 5(1) makes
it clear that the council
consists of a chairperson and eight other
members appointed by the Minister of Communications (“
the
Minister
”) upon
approval by the National Assembly, according to the following
principles: participation by the public in the nomination
process;
transparency and openness; and the publication of a short list of
candidates for appointment, with due regard to the
provisions of
subsection (3) and section 6. The National Assembly may, in terms of
section 5(1A)(b) of the ICASA Act, invite technical
experts to assist
it in the selection, evaluation and appointment of the councillors.
The experts may include those set out in
section 5(1A)(c)(i) to (v)
of the ICASA Act. In terms of section 5(3) of the ICASA Act persons
appointed to the council must be
persons who:
are committed to fairness, freedom of expression, openness and
accountability on the part of those entrusted with the governance
of the public service; and
when viewed collectively:
12
.1.1
are representative of a broad cross-section of the population of the
Republic; and
12
.1.2
possess suitable qualifications, expertise and experience in the
fields of, amongst others, broadcasting, electronic communications
and postal policy or operations, public policy development,
electronic engineering, law, marketing, journalism, entertainment,
education, economics, finance or any other relevant expertise or
qualifications.
[13
]
In terms of section 11(3) of the ICASA Act, the quorum for any
meetings of the council is a majority of the councillors in office
at
the time. Section 11(4)(a) provides that a decision of the council
is taken by resolution agreed to by the majority of councillors
at
any meeting of the council. The chairperson has a casting vote, in
addition to his or her deliberate vote, in the event of
an equality
of votes regarding any matter.
[14
]
The council is entitled in terms of section 14A of the ICASA Act to
appoint as many experts as may be necessary to assist it
in the
performance of its functions.
[15
]
In terms of section 17 of the ICASA Act, the council may establish
standing committees or special committees for such purposes
as it may
deem necessary with a view to assist it in the effective exercise and
performance of its powers and duties. A committee
performs such
functions as may be delegated or assigned to it by the council.
[16
]
Despite the establishment of special committees to assist the
council as contemplated in section 17 of the ICASA Act, the final
decision is that of the council in respect of matters that require a
council decision, such as the award of a licence under the
ECA.
THE REGULATION OF BROADCASTING UNDER THE ECA
[17
]
Section 5(2) and (4) of the ECA provides that ICASA may grant
individual and class licences for the following:
electronic communications network services;
broadcasting services; and
electronic communications services.
[18
]
Section 5(1)
of the
Broadcasting Act provides
that ICASA may, on
such conditions as it may determine, issue a sound or television
broadcasting service licence for a specified
area in the following
broadcasting service categories:
18.
1
a public broadcasting service;
18
.2
a commercial broadcasting service; and
18
.3
a community broadcasting service.
[19
]
Applications for the above broadcasting licences must be made in
terms of the applicable provisions of the ECA and any regulations
prescribed thereunder. Thus the above broadcasting service licences
are granted upon application in a manner prescribed under
the ECA.
[20
]
Section 7
of the ECA prohibits any person, except for services
exempted in terms of
section 6
of the ECA, from providing any service
without a licence.
[21
]
The
Broadcasting Act defines
a “
community
broadcasting service
”
to mean a broadcasting service which:
is fully controlled by a non-profit entity and carried on for the
non-profitable purposes;
serves a particular community;
encourages members of the community served by it or persons
associated with or promoting the interests of such community to
participate in the selection and provision of programmes to be
broadcast in the course of such broadcasting service; and
may be
funded by donations, grants, sponsorships or advertising or
membership fees, or by any combination of the aforementioned.
[22
]
The
Broadcasting Act defines
a “
community
”
as follows:
“
’
community’
includes a geographically founded community or any group of persons
or sector of t he public having a specific
ascertainable common
interest.
”
[23
]
In terms of
section 5(5)(b)
of the ECA, a class licence is required
in order to provide a community broadcasting service. In contrast, an
individual licence
is required to provide a commercial broadcasting
service in terms of
section 5(3)(b)
of the ECA.
[24
]
The process by which class licences are granted is described in
sections 16
and
17
of the ECA. It is in summary as follows:
A person who intends to operate under a class licence must, in the
manner prescribed, submit a registration notice in writing
to
ICASA.
ICASA may, upon receipt of a written registration notice in the
manner prescribed, grant a class licence.
A registration for a class licence may be submitted at any time in
the manner prescribed by ICASA.
Other than where grounds for refusal of a class licence (as set out
in
section 18
of the ECA) exist, ICASA must, within sixty days
after receipt of a registration notice, grant the class licence,
unless ICASA
gives written notice of a delay.
[25
]
The procedure for the grant of individual licences is different from
that of class licences and is set out in
section 9
of the ECA. A
significant difference is that no application for an individual
licence can be made other than in response to an
invitation to apply
(“ITA”) issued by ICASA.
[26
]
Section 5(7)(a)(i)
of the ECA requires ICASA to prescribe
regulations setting out the process and procedures to be followed
when
inter
alia
registering for a class licence. The Regulations which ICASA made in
terms of this section set out the prescribed registration
notice
which prospective licensees to provide community broadcasting
services must submit to ICASA. In terms of the Regulations
a
registration for a class licence to provide a community broadcasting
service may be submitted to ICASA at any time. It does
not have to
be submitted in response to an ITA.
[27
]
Chapter 5 of the ECA deals with radio frequency spectrum. This
chapter includes sections 30 to 34 of the ECA.
[28
]
In terms of section 30(1) of the ECA, ICASA controls, plans,
administers and manages the use and licensing of the radio frequency
spectrum except as provided for in section 34. In controlling,
planning, administering, managing and licensing the use of the
radio
frequency spectrum, ICASA must comply with or take into account the
matters set out in section 30(2) of the ECA.
[29
]
Section 31(1) and (2) obliges any licensee under the ECA to obtain a
radio frequency spectrum licence in addition to any licence
contemplated in Chapter 3 of the ECA, which includes a community
service broadcasting licence, where the provision of such service
entails the use of radio frequency spectrum. In this case the
provision by Radio Pulpit of the envisaged community broadcasting
service entails the use of the 729 kHz medium wave frequency. It
requires a spectrum licence in respect of this medium wave frequency,
which it currently does not have.
[30
]
ICASA has an obligation to develop a national radio frequency plan
in terms of section 34(2) of the ECA. The section requires
the
Minister to approve the national radio frequency plan developed by
ICASA who must also have regard to the international allotment
of
radio frequency spectrum and the international coordination of radio
frequency spectrum usage, in accordance with international
treaties,
multinational and bilateral agreements entered into by the Republic.
[31
]
The national radio frequency plan must set out the specific
frequency bands designated for use by particular types of services
(such as community broadcasting services, in contrast to commercial
broadcasting services), taking into account the radio frequency
bands
allocated to the security services.
[32
]
Section 34(5) of the ECA requires that the radio frequency plan be
updated and amended when necessary in order to keep the plan
current.
When updating and amending the plan, due regard must be given to the
current and future usage of the radio frequency
spectrum.
[33
]
ICASA is required by section 34(7) to do the following when
preparing the national radio frequency plan:
to take into account the International Telecommunications Union’s
international spectrum allotments for radio frequency
spectrum use,
in so far as ITU allocations have been adopted or agreed by the
Republic, and give due regard to the reports
of experts in the
field of spectrum or radio frequency planning and to
internationally accepted methods for preparing such
plans;
to take into account existing uses of the radio frequency spectrum
and any radio frequency band plans in existence or in the
course of
preparation; and
consult with the Minister for the purposes set out in section
34(7)(c)(i) to (iii) of the ECA.
[34
]
ICASA is required by section 34(8) and (9) of the ECA to follow a
notice and comment procedure and a public hearing in the preparation
of the national radio frequency plan. It is only once this public
participation process is completed that the proposed national
radio
frequency plan is forwarded to the Minister for approval. The
national radio frequency plan becomes effective upon approval
by the
Minister. ICASA is required to publish the approved plan in the
Government Gazette.
[35
]
Section 34(15) of the ECA makes it clear that the provisions of
section 34(6) to (14), i.e. the due process provisions, apply
with
the necessary changes to any amendment made by ICASA to the radio
frequency plan.
[36
]
In consequence of the provisions of section 34(15) of the ECA, any
amendments to a national frequency plan with respect to the
allocations of frequency spectrum usage have to comply with the
provisions of section 34(6) to (14) of the ECA. Factors that are
relevant in terms of these provisions have to be taken into account
and not simply current demand for a particular frequency.
[
37]
In considering the grant of a new community broadcasting service
licence ICASA is required by section 50 of the ECA, with due
regard
to the objects and principles enunciated in section 2 of the ECA,
amongst others, to take into account whether:
the applicant (for a licence) is fully controlled by a non-profit
entity and carried on or is to be carried on for non-profit
purposes;
the applicant intends to serve the interests of the relevant
community;
as regards the provision of the proposed broadcasting service, the
applicant has the support of the relevant community or of
those
associated with or promoting the interests of such community, which
support must be measured according to such criteria
as may be
prescribed;
the applicant intends to encourage members of the relevant
community or those associated with or promoting the interests of
such community to participate in the selection and provision of
programmes to be broadcast in the course of such broadcasting
service; and
the applicant has never been convicted of an offence in terms of
the ECA or the related legislation.
[
38]
As section 50 of the ECA makes clear, the factors listed in
subsections (a) to (e) thereof are not exhaustive. Some of the
critical factors not specifically mentioned are whether the
application is in respect of a community as envisaged in the ECA and
that the frequency sought to be used in providing the community
broadcasting service is available for community broadcasting services
in the sense that is so allocated.
CHRONOLOGY OF EVENTS
[39
]
ICASA published a Terrestrial Broadcast Frequency Plan 2004, being
the national radio frequency plan, under GN 1513 in Government
Gazette 28299 of 5 December 2005 (“
the
Previous RF Plan
”).
[4
0]
The Previous RF Plan was in force when Radio Pulpit submitted its
application for a community broadcasting service licence and
when
ICASA made the decision. The Previous RF Plan was published in terms
of the provisions of the IBA Act.
[4
1]
The Previous RF Plan was replaced by a new Terrestrial Broadcasting
Frequency Plan 2008 (“
the
Present RF Plan
”)
which was published under GN 1538 in Government Gazette 32728 on 18
November 2009. The Present RF Plan was published in
terms of the
provisions of the ECA, i.e. section 34 of the ECA. It was published
after ICASA had made the decision.
[4
2]
The adoption of the Present RF Plan followed a public notice and
comment procedure, a public hearing (on 16, 17 and 18 September
2009)
and ministerial approval as envisaged in section 34 of the ECA. Radio
Pulpit was one of the interested parties that made
comment on the
draft RF Plan which became the Present RF Plan.
[4
3]
Both the Previous RF Plan and the Present RF Plan set out various
frequencies which have been designated for television and
radio
frequency broadcasting services throughout South Africa. In general,
frequencies are categorised as either for purposes
of public,
commercial or community broadcasting services. In certain instances,
however, the field is left blank to indicate that
the particular
frequency has not yet been assigned to any particular category of
service.
[4
4]
Annexure “C” to the Present RF Plan sets out the medium
frequency assignments.
[4
5]
It is common cause that the 729 kHZ medium wave frequency in the
Western Cape which Radio Pulpit applied to use was, and still
is,
assigned for purposes of commercial broadcasting services. The
assignment stands and remains valid until set aside by a competent
court. See Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2
004 (6) SA 222
(SCA) para 26.
[
46]
Radio Pulpit has not applied to ICASA, and does not apply to this
Court, for the 729 kHz medium wave frequency in the Western
Cape to
be assigned for purposes of community broadcasting services by way of
an amendment to the Present RF Plan.
[
47]
Certain points made in the second application and in the supporting
documents show that Radio Pulpit was aware that the assignment
of
frequencies in the Previous RF Plan was crucial to whether or not its
application would succeed – and that any changes
to the RF Plan
required ICASA to follow due process as provided for in section 34(6)
to (14) of the ECA. We point out certain
of these indications.
Radio Pulpit stated in the covering letter dated 5 June 2007 that
in terms of the Frequency Plan published in Government Gazette
No.
16764 dated 13 October 1995 under Notice 1097, the 657 medium wave
frequency had been assigned to Radio Pulpit and was
still indicated
as such on ICASA’s frequency plan today, i.e. the Previous RF
Plan. Radio Pulpit repeated this statement
at page 12 of the
actual application. Significantly, Radio Pulpit did not make
similar statements about the 729 kHz frequency
in the Western Cape
– indicating its awareness that this frequency was not
available to it in terms of the Previous RF
Plan (which applied at
the time).
In a document from Sentech, and which Radio Pulpit submitted in
support of the second application, the following is stated:
“
With
cognisance of the above Sentech remains aware of the expectations and
sensitivities of the South African broadcasting fraternity
and
therefore, in the case of Radio Pulpit’s application,
considered it inappropriate to propose ‘available frequencies’
where it might be reflected in the national broadcast frequency plan
but where it is reserved for broadcast categories other than
community. Apart from regulatory process, such an approach would
further burden that already scarce carrying capacity of broadcasting
spectrum and instead Sentech followed a process of deterministic
frequency identification where the capacity of the broadcasting
spectrum may now be enhanced by the addition to the broadcast
frequency plan of the newly identified and tested frequencies
proposed
for the roll-out of Radio Pulpit in the FM band. Such an
approach can therefore also be seen as not to compromise the rights
of
any other aspiring broadcaster to access spectrum in terms of the
published broadcast frequency plan and regulatory process. The
proposed addition of these frequencies to the plan can be done by due
process as provided for by Council.
”
[
48]
In the absence of an application for the reallocation of the 729 kHz
frequency in the Western Cape to community broadcasting
services,
ICASA did not at the time commence the process envisaged in section
34(6) to (14) in order to possibly amend the Previous
RF Plan by
allocating the 729 kHz frequency in the Western Cape to community
broadcasting services.
[
49]
The 729 kHz frequency in the Western Cape remains allocated to
commercial broadcasting services also under the Present RF Plan.
Although there is currently a process pursuant to section 34 of the
ECA in progress to reconsider the RF plan, it is of no consequence
to
the present application as it had not been completed or the plan
amended at the time when Radio Pulpit’s application was
considered.
[
50]
I consequently agree with Mr Unterhalter that this Court, nor ICASA,
is entitled to award a community broadcasting licence
to Radio Pulpit
notwithstanding the assignment of the 729 kHz frequency in the
Western Cape for purposes of commercial broadcasting
services. To do
so without first effecting a valid amendment to the Present RF Plan
by ICASA to assign to 729 kHz frequency for
purposes of community
broadcasting services will, in my view, be in conflict with the
provisions of section 34 read with section
31(1) and (2) of the ECA.
[
51]
Without a lawful amendment of the RF Plan to allocate the 729 kHz
medium wave frequency in the Western Cape to community broadcasting
services as opposed to commercial broadcasting services, ICASA was
precluded by the provisions of sections 31(1) and (2) and 34
of the
ECA from considering and awarding a licence to Radio Pulpit to
provide a community broadcasting service on the 729 kHz frequency
as
per the second application.
[
52]
Having regard to this finding this Court will not be in a position
to substitute its decision for ICASA’s decision until
an
amendment of the RF Plan has been effected and, even if it can be
said that ICASA’s decision falls to be reviewed for
the
additional reasons advanced by Radio Pulpit. In view of this finding
it is not necessary to decide upon the validity of the
other review
grounds raised by Radio Pulpit.
[
53]
Counsel for Radio Pulpit argued that the allocation of the 729 kHz
frequency in the Western Cape, contrary to the existing
frequency
plan, will not lead to an amendment of the frequency plan, which, may
only be amended subsequent to procedural requirements
set out in
section 34 of the ECA.
[
54]
It is argued that such allocation would lead to a mere updating of
the frequency plan and therefore does not trigger the requirements
of
section 34. I do not agree. Section 34(15) of the ECA provides:
“
The
provisions of subsections (6) to (14)
(the
procedural requirements)
apply, with the necessary changes, in relation to any amendment made
by the Authority to the radio frequency plan.
”
[
55]
The plan now provides that the frequency is for commercial use. In
order to allow the frequency to be utilised for community
use, the
plan needs to be amended. “
Amended
”,
according to the Concise Oxford Dictionary, is “
to
make minor improvements
”
whilst “
update
”
means “
make
more modern
”
or to “
gave
latest information
”
or “
an
act of updating or an updated version
”.
Clearly the procedural requirements need not be fulfilled in order
to update the frequency plan – by updating it
with that which
may be lawfully changed or inserted to be included therein.
[
56]
Changing the contents of the RF Plan by removing an assigned
commercial use and replacing it with a new community use would
be an
act of amending the frequency plan, which on the applicant’s
own argument requires the procedural requirements of section
34(1) to
(14) to be adhered to prior to any amendment of the plan being
effected.
[
57]
Mr Kennedy argued that ICASA contends before this Court for the
first time that Radio Pulpit’s application cannot be
granted
because the 729 kHz frequency was allocated for commercial use. This
is, however, not correct. In a letter of 15 May
2007 Radio Pulpit
stated:
“
6.2
Suggestion:
Radio Pulpit respectfully suggests that these frequencies (and
perhaps certain other available FM frequencies in order for Radio
Pulpit to reach its existing listeners and to provide services in
under-serviced areas such as the Northern Cape) are to [be]
applied
for as part of its amended application. The effect of this would be
that where the frequencies are either allocated to
other services or
do not appear on the ICASA band plan at all, ICASA will, on receipt
of the amended application, be in a position
immediately to commence
a government gazette-initiated open and transparent process in the
public interest to:
6.2.1 have the FM
frequencies appear on the band plan, where these do not currently
so appear;
6.2.2 have these
frequencies (both FM and AM) allocated or re-allocated (as the case
may be) to ’community’ alternatively
to ’open’
news; and
6.2.3 assign
the frequencies to the best candidate therefor, as part of which
process Radio Pulpit is confident it will be able
to compete with
other applicants therefor.
”
On 19
September 2007
ICASA
supplied Radio Pulpit with lists of concerns ahead of the hearing,
where it is stated:
“
The frequency identified for Western Cape is 729 kHz. This
is a frequency that has been pre-coordinated and reserved as a
commercial
frequency and as such not available for a community
broadcaster.”
[
58]
There can be no doubt that the process that Radio Pulpit had in mind
was that required by section 34(6) to (14) read with (15)
of the ECA.
Any contentions in Radio Pulpit’s argument to the contrary,
i.e. that the process envisaged in section 34(6)
to (14) need not be
followed, are not correct and contrast with Radio Pulpit’s own
position adopted in the letters referred
to.
[
59]
ICASA acknowledged receipt of Radio Pulpit’s letter dated 15
May 2007 in a letter dated 28 June 2007. ICASA stated that
it
permitted Radio Pulpit to submit an amended application on the
correct prescribed form, noting that Radio Pulpit allegedly acted
on
the advice of an official of ICASA in submitting the first
application on a form prescribed for commercial broadcasting service
licences. In its letter, ICASA “
noted
”
the suggestion made by Radio Pulpit that it would, as part of its
amended application, apply for the reallocation of radio
frequencies
to enable it to apply to use the 729 kHz medium frequency in the
Western Cape. Radio Pulpit was consequently alive
to this issue from
the outset.
[
60]
ICASA would only initiate a process in terms of section 34(6) to
(14) of the ECA for the reallocation of the 729 kHz medium
wave
frequency to community broadcasting services once Radio Pulpit had
formally applied for such an amendment in terms of its
amended
application (in line with the suggestion made in paragraph 6.2 of
Radio Pulpit’s letter of 15 May 2007).
[
61]
Radio Pulpit submitted to ICASA the amended application on 5 June
2007 (“
the
second application
”).
[
62]
It submitted the second application in the form prescribed for
community broadcasting service licence. It applied,
inter
alia,
for a licence to broadcast on the 729 kHz medium wave frequency in
the Western Cape and no application for a reassignment of the
frequency from commercial use to community use was lodged.
[6
3] Even
if it can be said that ICASA raised the question of the allocation of
the frequency for the first time during these proceedings,
the result
would be the same in that ICASA was lawfully precluded from
reassigning the frequency without following the section
34 procedural
requirements.
[6
4] There
is a further reason why this court cannot substitute its decision for
that of ICASA. I have referred to the obligation
of ICASA to develop
a national frequency plan with regard to certain international
aspects in para 30 above. Without these issues
being fully canvassed
before me, I will not be in a position to properly consider an
amendment of the frequency plan.
[65]
In
addition to the public process component regarding the assignment of
frequencies, there is a technical component. In its answering
affidavit, ICASA explained it as follows:
“
Both
the Present RF Plan and the Previous RF Plan set out the various
frequencies which have been designated for television and
radio
broadcasting purposes throughout South Africa, in general,
frequencies are categorised as being for the purposes of either
a
public, commercial or community
broadcasting service although in certain instances the category field
is left blank to indicate that the particular frequency has
not yet
been assigned to any service. Annexure C of the Previous RF Plan set
out the MW frequencies which have been assigned for
sound
broadcasting purposes (RJP19 to the supplementary affidavit).
Annexure D to the Previous RF Plan set out the frequencies
which are
assigned for community sound broadcasting purposes in each province.
Both Annexure C and D specified the frequency, the
transmitting
station name, geographical coordinates of the transmitting station
(from which a broadcast signal may be transmitted
on the particular
frequency), maximum effective radio power (“ERP”), in the
case of FM frequencies, or effective monopole
radiated power
(“EMRP”), in the case of AM (MW) frequencies, and
dominant polarisation mode of the antenna and the
status of the
particular frequency (i.e. whether it is operational, has been
licensed but is not yet operational or is spare).
Annexure C of the
Present RF Plan (attached as annexure “PM4”) sets out the
MW frequency assignments and, like Annexure
C to the Previous RF
Plan, specifies the frequency, the transmitting station name,
geographical coordinates, EMRP, and dominant
polarisation mode of the
antenna and the status of the particular frequency. In each case, a
particular frequency is transmitted
from a specific transmitting
station located at a specific place determined by the applicable
geographical coordinates. A transmitting
station is operated by a
signal distributor who is, in terms of the ECA, required to be
authorised in terms of the ECNS licence.
A broadcasting service
licensee may self-provide its own signal distribution services,
provided that it holds an appropriate ECNS
licence, or may contract
with a provider of signal distribution services such as Sentech
Limited (“Sentech”). The ERP
or EMRP and polarisation
(“Transmission Parameters”) application to a particular
frequency transmitted from a particular
transmitting station
delineate the geographical area to which a broadcasting signal may be
transmitted. A higher ERP or EMRP value
in relation to a particular
transmitter will enable the broadcast service transmitted on the
frequency in question to reach a wider
geographical area. By
contrast, where the ERP or EMRP specified for a particular frequency
and transmitter is low, the geographical
area to which the broadcast
signal will be transmitted will be smaller. These Transmission
Parameters are set by ICASA so as to
allow for the greatest feasible
number of frequencies for broadcasting purposes for the provision of
broadcasting services without
interference with each other.
Determining the various available frequencies and appropriate
Transmission Parameters for each is
an extensive technical task.”
[6
6] Regardless
of the general rule that a court will only substitute its decision
for that of the administrative body in exceptional
circumstances (see
section 8(1)(c)(ii) of PAJA) and having regard to the bar to any ad
hoc amendment to the RF plan caused by the
procedural requirements of
section 34 of the ECA, this court cannot substitute the decision.
[67
] Mr
Unterhalter submitted that in case of a body which is statutorily
required to embody a wide spectrum of expertise relevant
to the
exercise of its powers, such as the council of ICASA as required by
section 5(3)(ii) of the ICASA Act, courts will be slow
to substitute
their decision for that of the council where such decisions call for
considerations which require expertise and experience
that exists in
the council as opposed to a court. I agree.
[68]
In
Onshelf
Trading Nine (Pty) Ltd v De Klerk NO
,
2
where the applicant sought an order of substitution against a
decision of the Council of ICASA’s predecessor-in-law, the
Court declined to substitute its decision. Streicher J reasoned
inter
alia
as
follows, which reasoning we submit is apposite:
“
As I have
already stated, this Court has jurisdiction to substitute its own
decision for that of an administrative tribunal where
the tribunal
or functionary has exhibited bias or incompetence to such a degree
that it would be unfair to require the applicant
to submit to the
same jurisdiction again. In the light of this fact it may be that
this Court also has jurisdiction to take the
decision in the first
instance where it is obvious that, because of bias on the part of
the tribunal, it would serve no purpose
to apply to the tribunal
first merely to have the tribunal's decision subsequently set aside
and to substitute the Court's decision
for the decision of the
tribunal. However, if this Court does have such jurisdiction, which
I doubt, it will only be in exceptional
cases where it can serve no
purpose to apply to the administrative tribunal first and where the
Court is in a position to decide
the matter.
The present case is
not such a case. In considering an application for a private
broadcasting licence, the third respondent is
enjoined, with regard
to the objects and principles as enunciated in s 2, inter alia to
take into account such factors as the
demand for the proposed
broadcasting service; the need for the broadcasting service having
regard to the broadcasting services
already existing in the licence
area; the expected technical quality of the proposed service; and,
having regard to developments
in broadcasting technology, the
capability and the expertise and experience of the applicant. The
objects and principles enunciated
in s 2 include such matters as the
promotion of the provision of a diverse range of sound and
television broadcasting services
which, when viewed collectively,
cater for all language and cultural groups and provide
entertainment, education and information;
the promotion of the
development of broadcasting services which are responsive to the
needs of the public; ensuring that broadcasting
services viewed
collectively develop and protect a national and regional identity,
culture and character; ensuring that, in the
provision of public
broadcasting services, the needs of language, cultural and religious
groups, the needs of constituent regions
of the Republic and local
communities and the need for educational programmes are duly taken
into account; encouraging ownership
and control of broadcasting
services by persons from historically disadvantaged groups;
encouraging equal opportunity employment
practices by all licensees
etc. The Legislature entrusted this function to:
(1) a chairperson or
two co-chairpersons appointed on the advice of, first, the
Transitional Executive Council and then the National
Assembly taking
into account the objects and principles enunciated in s 2 and
according to principles such as participation by
the public in the
nomination process; and to
(2) six councillors
who, when viewed collectively, should be persons who are suited to
serve on the council by virtue of their
qualifications, expertise
and experience in the fields of, inter alia, broadcasting policy and
technology, media law, frequency
planning, business practice and
finance, marketing, journalism, entertainment and education. The
councillors should also, when
viewed collectively, represent a broad
cross-section of the population of the Republic and be committed to
the objects and principles
as enunciated in s 2.
In the light of the
aforegoing it is clear that the council should consist of people who
are broadly representative of the population
of the Republic and who
collectively possess a variety of qualifications considered
necessary to deal with, inter alia, applications
for broadcasting
licences.
In my view a Court
consisting of a single Judge is clearly not qualified to fulfil the
functions of the council. Moreover, even
if the council is biased,
it cannot be contended that a decision by the council will serve no
purpose. Once a Court has been
furnished with the reasons of the
council it will be in a better position to substitute its own
decision for that of the council
if the council's decision is found
to be invalid because of bias and the circumstances are such that
the Court may substitute
its decision for that of the council.
The
matter should therefore be referred back to the third respondent
whether or not the third respondent is biased against the
applicant.
It follows that it is not necessary to deal with the question
whether any bias on the part of the third respondent
or any of its
councillors has been proved.”
3
[69
] For
these reasons it is not apposite for me to consider a substitution of
the decision of ICASA based on the additional grounds
of review
raised by Radio Pulpit.
[70] In these
circumstances this Court, like ICASA, is precluded from granting a
community broadcasting licence to Radio Pulpit
in conflict with the
provisions of sections 31(1) and (2) and 34 of the ECA and in the
absence of the necessary technical evidence
having been fully
canvassed before me.
[
71]
In all the circumstances I make the following order:
The decision
of ICASA to refuse Radio Pulpit’s application to broadcast in
the Western Cape on the 729 kHz medium wave frequency
is reviewed
and set aside and referred back to ICASA to consider upon completion
of its section 34 procedure presently embarked
upon by it.
ICASA is
ordered to pay the costs of the application, save that Radio Pulpit
is ordered to pay the costs of the application (including
the costs
of Part A of the relief claimed) from the time when ICASA’s
affidavit was delivered, such costs to include the
costs of two
counsel.
_____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
1
Sections 3 and 17 of the ICASA Act.
2
Onshelf Trading Nine
(Pty) Ltd v De Klerk NO and others
1997 (3) SA 103
(W).
3
At 112A-113D.