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[2021] ZAGPPHC 302
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Primedia (Pty) Ltd v Independent Communications Authority of South Africa and Another (42817/2019) [2021] ZAGPPHC 302 (19 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/
NO
(3)
REVISED
19/5/2021.
Case number: 42817/2019
Date:
In
the matter between:
PRIMEDIA
(PTY) LTD
Applicant
And
INDEPENDENT
COMMUNICATIONS AUTHORITY
First
Respondent
OF
SOUTH AFRICA
ACTING
CHAIRPERSON, INDEPENDENT
Second
Respondent
COMMUNICATIONS
AUTHORITY OF
SOUTH
AFRICA
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1] The applicant
(Primedia) brought an application seeking the issuing of a
declaratory
order declaring that the exemption granted by the first
respondent, The Independent Communications Authority of South Africa
(“ICASA”),
to Primedia on 23 March 2006 in terms of which
section 49 of the Independent Broadcasting Authority Act 153 of 1993
did not cease
to exist or expire upon expiry of the commercial
broadcasting licences controlled by Primedia. Secondly an order
was also
sought that when renewing the commercial broadcasting
licences, the respondents are obliged to only have regard to the
factors
set out in section 11 of the Electronic Communications Act 36
of 2005 (“ECA”) and may not require Primedia to apply
for
the exemption. This prayer was however not proceeded with.
Thirdly an order was sought that, the decision taken by ICASA
on 13
March 2019, requiring Primedia to make a fresh application in terms
of section 65(6) of the ECA before the respondents would
consider
Primedia’s application to renew its commercial broadcasting
licence in respect of Radio 702, should be reviewed
and set aside.
[2] The issues that
required determination were, firstly, whether ICASA could raise new
reasons for its decision in the answering affidavit, and if it could,
whether these reasons have any merit. The other issues requiring
determination were the duration of the exemption granted, whether the
review was brought prematurely and whether a declaratory
order should
be issued.
[3] Primedia is a
broadcaster and holds three commercial FM sound broadcasting licences
in terms of the ECA. These licences are for three radio
stations, namely 94.7, Radio 702 and K-FM. The Radio 702
licence
was due to expire on 16 December 2018. Primedia accordingly
applied to ICASA for a renewal of the licence on 13 March 2018.
ICASA took a year to respond to the renewal application. In its
response, ICASA indicated that Primedia had to submit an
exemption
application in terms of section 65(6) of the ECA, before it would
consider the renewal application. Primedia was
of the view that
the exemption granted in 2006, was unconditional and would remain
valid, whilst ICASA took the view that the exemption
would lapse when
the existing Radio 702 licence expired.
THE
LEGISLATIVE FRAMEWORK
[4] The Independent
Broadcasting Authority Act 153 of 1993 (“the IBA Act”)
came into effect on 30 March 1994. Section 46(2)(a) of the IBA
Act states that any person who, prior to 30 March 1994, provided
a
private broadcasting service under a valid licence, was deemed to be
a holder of a licence under the IBA Act.
[5]
Section 49 of the IBA Act provides for limitations of the
control of a commercial broadcasting service. In particular, sections
49(2) and (3) provides as follows:
“(2) No person shall –
(a) be in a position to exercise control over more than two
private FM sound broadcasting licences;
(b) be a director of a company which is, or of two or more
companies which between them are, in a position to exercise control
over more than two private FM sound broadcasting licences; or
(c) be in a position to exercise control over two private
FM sound broadcasting licences and be a director of any company
which
is in a position to exercise control over any other private FM sound
broadcasting licence.
(3) A person referred to in subsection (2) shall not be in a
position to control two private FM sound broadcasting licences
which
either have the same licence areas or substantially overlapping
licence areas.”
[6] The effect of the
aforesaid sections was that no one could exercise control over more
than two commercial
FM sound broadcasting licences in total and only
one commercial FM sound broadcasting licence, in a specific licence
area.
[7]
However, the
Independent Broadcasting Authority (“IBA”) was empowered,
under section 49(6), to grant an exemption from
the limitations in
sections 49(2) and (3), subject to terms and conditions. Sections
49(6)(a) and (b) provided as follows:
“(6)(a) On application by any person the Authority may, on good
cause shown and without departing from the objects and principles
as
enunciated in section 2, exempt such person from adhering to any one
of the limitations contemplated in the preceding subsections.
(b) An exemption in terms of paragraph (a)
may be made subject to such terms and conditions as the Authority
deems appropriate and equitable in the circumstances.”
[8] The Independent
Communications Authority of South Africa Act 13 of 2000 (“the
ICASA Act”) substituted the IBA and the South African
Telecommunications Regulatory Authority, and ICASA was created as the
regulator for both telecommunications and broadcasting. The ECA
came into operation on 19 July 2006 and repealed both the
IBA Act and
the
Telecommunications Act 103 of 1996
. The result was that a
single piece of legislation governed broadcasting and
telecommunications.
[9]
Existing licences were converted in terms of
section 93
of the
ECA, which provides that ICASA must convert pre-existing licences by
granting one or more new licences that comply with
the ECA on no more
favourable terms than the pre-existing license.
[10]
The
exemption provisions are contained in
section 65
of the ECA. These
provisions are substantially similar to the exemption provisions
contained in section 49 of the IBA Act. Section
65 provides, in
relevant part, as follows:
“…
(2) No
person may—
(a) be in a position to exercise
control over more than two commercial broadcasting service licences
in the FM sound broadcasting service;
(b) be a director of a company which
is, or of two or more companies which between them are, in
a position
to exercise control over more than two commercial broadcasting
service licences in the FM sound broadcasting service;
(c) be in a position to exercise
control over two commercial broadcasting service licences in the
FM
sound broadcasting service and be a director of any company which is
in a position to exercise control over any other commercial
broadcasting licence in the FM sound broadcasting service.
(3) A person referred to in
subsection
(2)
must not be in a position to control two
commercial broadcasting service licences in the FM sound broadcasting
service, which
either have the same licence areas or substantially
overlapping licence areas.
…
(6) The Authority may, on application by any person, on
good cause shown and without departing from the objects and
principles enunciated in section 2, exempt such person from the
provisions of
subsections
(1)
to
(5)
.”
[11] As a result, section 65 precludes
a person from, controlling more than two FM licences in total,
controlling
two FM licences in the same licence area, or
substantially overlapping licence areas; and permits ICASA to grant
on application,
an exemption from these limitations.
[12]
The ECA also provides for
the renewal of licenses. Section 11 of the ECA provides, in relevant
part, as follows:
(1) A licensee may, subject to the conditions of his or her
individual licence, apply for the renewal of his or her individual
licence in the manner prescribed by the Authority.
…
(6) Subject to subsection (7), the Authority must renew
the individual licence on no less favourable terms and conditions
as
were applicable during its preceding period of validity except where
the amendments meet the requirements set out in section
10.
(7) Subject to
subsection
(12)
, the Authority may refuse to renew a licence
or may renew the licence on less favourable terms and conditions than
those that were
applicable during the preceding period of validity or
renew the licence with terms and conditions that are not applicable
to similar
licences if the Authority determines that the licensee has
materially and repeatedly failed to comply with—
(a) the terms and
conditions of the licence;
(b) the provisions
of this Act or of the related legislation; or
(c) any regulation
made by the Authority.”
[13] Section 11of the ECA makes it
clear that ICASA is required to renew an individual licence subject
to the limited circumstances provided for in section 11(7) of the
ECA.
THE
FACTUAL BACKGROUND
[14] In the founding
affidavit the history of Radio 702 was set out and the history seemed
to be common
cause between the parties. The radio station was founded
in 1980, and in the 1980’s and 1990’s provided an
independent
voice in broadcasting. The aim was to
counterbalance the radio stations operating under the South African
Broadcasting Corporation,
which were regarded as mere mouthpieces for
the apartheid state at the time. Radio 702 set out how it still
continues to
play an important role in providing political education.
[15]
During the course of the late 1990’s and early 2000’s,
Primedia Broadcasting (Pty) Ltd, which held the Radio 702 licence,
came to hold additional licenses, bringing it to the maximum
permissible limit under section 49 of the IBA Act. It controlled two
MW licences, which were not in overlapping areas, and two FM
licences, which were also not in overlapping areas.
[16]
However, in 2005, it began to experience problems regarding the
medium-wave signal on which the Radio 702 service was being
transmitted. This resulted in a significant decrease in listeners. It
therefore applied to ICASA, in terms of the IBA Act, for
an amendment
to the Radio 702 licence, whereby it would migrate from the MW
frequency band to the FM band at 92.7 MHz in Johannesburg
and 106 MHz
in Pretoria.
[17]
At the time it sought the licence amendment, it also applied, in
terms of section 49(6) of the IBA Act, for an exemption
from the
requirements of section 49(2) and (3). This would allow it to hold
three FM licences (in respect of K-FM, 94.7 and Radio
702), two of
which were in an overlapping coverage area (94.7 and Radio 702). On
23 March 2006, while the Radio 702 renewal application
was still
pending, ICASA granted the exemption.
[18]
Following a process of internal restructuring, Primedia became the
holder of all four licences in November 2008, and
this has been the
case ever since. On 17 December 2008, in terms of section 93 of the
ECA (which required ICASA to convert all
pre-existing licences issued
under the IBA), ICASA issued Primedia with an individual commercial
sound broadcasting service licence
and a radio frequency spectrum
licence in respect of Radio 702. Primedia’s current Radio 702
licence was due to expire on
16 December 2018. On 13 March 2018,
prior to its expiry, Primedia submitted an application to renew the
licence. ICASA gave
notice of the application in the Government
Gazette. No objections or comments were received.
ICASA
failed to attend to the application for a year. In terms of section
15 of the ECA, a licence whose renewal application is
pending may
continue to provide broadcasting services, as a result Radio 702 has
been able to continue broadcasting. On 13 March
2019, ICASA held that
Primedia was required to submit a fresh exemption application in
terms of section 65(6) of the ECA, in order
for its licence renewal
application to be considered. Following this, Primedia’s
legal representatives wrote to ICASA
requesting reasons.
THE REASONS PROVIDED BY ICASA
[19] On 16 April 2019, ICASA provided its reasons.
It stated that the exemption previously granted, was granted
“under
a licence” and accordingly ceases to exist upon the expiry of
that licence and ICASA could therefore lawfully
decide to require
Primedia to apply for a valid exemption before renewing its licence.
[20] However in the answering affidavit
the reasons raised for the first time, were that an exemption
from
sections 49(2) and (3) of the IBA Act was never actually granted in
2006. The exemption granted was in terms of section 49(1)
of the IBA
Act. ICASA further alleges that no “decision” had yet
been taken in respect of Primedia’s renewal
application, as a
result whereof it was argued that the review was premature.
[21]
Section 49(1) of the IBA provides as follows:
“(1) No person shall
(a) directly or indirectly exercise control over more than one
private television broadcasting licence; or
(b) be a director of a company which is, or of two or more
companies which between them are, in a position to exercise control
over more than one private television broadcasting licence; or
(c) be in a position to exercise control over a private
television broadcasting licence and be a director of any company
which is in a position to exercise control over any other private
television broadcasting licence.”
[22] This argument by ICASA is both
wrong and opportunistic. Primedia never applied for, or
held a
television broadcasting licence. Primedia also never applied
for an exemption from section 49(1) of the IBA Act, this
much is
clear from a perusal of the exemption application, which explained
that if the amendment was approved, Primedia would control
three
commercial FM broadcasting service licences. This was also
clearly understood by ICASA as an application under section
49(2), if
one considers the correspondence exchanged in this regard.
[23]
In its reasons for the impugned decision, ICASA understood
itself to have granted Primedia an exemption from section 49(2) and
(3).
As it stated:
“In 2005, PRIMEDIA submitted a
request for (i)Talk Radio 702 to be migrated from its use of a Medium
Wave Frequency to the
FM band and (ii) an exemption from the
restrictions imposed on the number of FM stations that can be held by
one licensee. The
Authority granted both requests and as a result
PRIMEDIA currently holds three (3) 1-CSBS licences in the FM sound
broadcasting
service which are due for renewal.”
[24]
ICASA proceeded to consider that application, on its merits,
by listing and considering each reason advanced. The crux of the
reasoning
by ICASA was that “
[t]he Authority considers
that the only realistic and financially feasible option to ensure
that Radio 702 remains on-air in the
medium to long-term and does so
with transmission of reasonable quality, is migration to the FM band”
.
[25] It is clear that the reference to section 49(1) of
the IBA Act, in the document granting exemption, could only
be a
typographical error as the application never referred to a television
broadcasting licence. ICASA clearly intended to
grant
Primedia’s application in terms of section 49(6) of the IBA Act
to be exempted from sections 49(2) and (3).
[26] Apart from the aforesaid, the
subsequent facts also indicated that the exemption was granted
in
terms of sections 49(2) and (3) of the IBA Act, as Primedia has been
operating in the broadcasting sphere for the last fourteen
years,
without ICASA ever raising the alarm that it was acting unlawfully,
which would have been the case if the exemption was
granted under
section 49(1).
[27]
It has been held by our courts that administrators are bound by the
reasons they give at the
time of their decisions, and it is not
permissible to, after the fact, provide a new reason as a
justification for a decision.
[1]
It is accordingly not permissible to, after the fact, provide a new
reason as a justification for a decision.
[2]
Any further reasons are irrelevant
[3]
and “
an
ex post facto rationalization of a bad decision.”
[4]
[28]
The aforesaid rule was endorsed by the Constitutional Court in
National
Energy Regulator of South Africa and Another v PG Group (Pty) Limited
and others
[5]
where it was stated that “. . . reasons formulated after a
decision has been made cannot be relied upon to render a decision
rational, reasonable and lawful.”
[6]
[29] It must be noted that state organs
are under a constitutional and statutory duty to review and
set aside
an exemption if it was unlawful. This much was made clear by
the Constitutional Court and the Supreme Court of
Appeal (“SCA”).
[30]
In
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
[7]
,
the Constitutional Court held that state functionaries are subject to
a duty to rectify their own unlawful decisions. This follows
from the
fact that the rule of law is a founding value of our constitutional
democracy.
[8]
It also follows from section 195 of the Constitution of the Republic
of South Africa, 1996 (“Constitution”) which provides
for
accountable public administration.
[9]
[31]
The Constitutional Court therefore upheld the Labour Appeal Court’s
finding that the MEC
“
was
not only entitled but also duty bound to approach a court to set
aside her irregular administrative act.”
[10]
[32]
In
Merafong
City Local Municipality v Anglogold Ashanti Limited
,
[11]
the Constitutional Court restated the position as follows:
“
This court has affirmed as a
fundamental principle that the state 'should be exemplary in its
compliance with the fundamental constitutional
principle that
proscribes self-help'. What is more, in Khumalo this
court held that state functionaries are
enjoined to uphold and
protect the rule of law by inter alia seeking the redress of their
departments' unlawful decisions.
Generally, it is the
duty of a state functionary to rectify unlawfulness. The courts have
a duty 'to insist that the state,
in all its dealings, operate within
the confines of the law and, in so doing, remain accountable to
those on whose behalf
it exercises power'. Public
functionaries 'must, where faced with an irregularity in the public
administration, in
the context of employment or otherwise, seek to
redress it'. Not to do so may spawn confusion and
conflict, to the
detriment of the administration and the public.”
[12]
[33] In
MEC for Health, Eastern Cape &
Another v Kirland Investments (Pty) Ltd
[13]
itself, the majority of the Constitutional Court held that where the
state has taken a defective decision, “
government should
generally not be exempt from the forms and processes of review. It
should be held to the pain and duty of proper
process. It must apply
formally for a court to set aside the defective decision, so that the
court can properly consider its effects
on those subject to it.
”
[14]
[34] As a result ICASA cannot be allowed to
raise new reasons belatedly, and had a duty to rectify the
situation
if the licence was indeed dealt with under section 49(1). As a result
not only is ICASA not allowed to rely on new reasons
in the answering
affidavit, but even if one considers those reasons they have no
merit.
[35] ICASA also contended that the
review application was not ripe for hearing, as a final decision
was
yet to be made. ICASA therefore contended that Primedia must
wait for its renewal application to be determined and rejected,
before applying to review and set aside the decision.
[36]
However, this is not a requirement under the principle of
legality.
[15]
Primedia accordingly argued, and correctly so, that even if the
decision did not constitute an administrative action, it
did
constitute the exercise of public power and was accordingly subject
to review.
[37]
Under the principle of legality “
every
exercise of public power, including every executive act is subject to
review.
”
[16]
The Constitutional Court declared that “
the
exercise of all public power is subject to constitutional
control.”
[17]
[38]
As a result, it was argued that the only question that remained was
whether the review is ripe
for challenge and this question should be
answered by looking at the aspect of prejudice. The appropriate
criteria by which
ripeness is to be determined is “
whether
prejudice has already resulted or is inevitable, irrespective of
whether the action is complete or not
”.
[18]
The SCA in
Chairman
of the State Tender Board v Digital Voice Processing (Pty) Ltd,
Chairman of the State Tender Board v Sneller Digital (Pty)
Ltd and
Others
,
[19]
cited the aforementioned approach with approval and also pointed out
that the question whether a decision is ripe for challenge
is a
question of fact and not of dogma.
[39] Primedia argued that, on the
facts, prejudice as a result of the impugned decision is inevitable,
as ICASA required Primedia to submit an application for exemption in
terms of section 65(6) of the ECA. Accordingly it is clear
that, if
Primedia does not submit an exemption, its licence renewal
application will be unlawfully refused and the result will
be that
Radio 702 will go off air, resulting in economic prejudice and job
losses. Primedia estimated that the revenue loss
for a period
of one year off air is estimated at R230 million, adjusted to R200
million as a result of the Covid-19 pandemic.
Radio 702 employs
162 full time employees and 43 freelancers. Of the fulltime
employees, 35 are station specific, the rest
constitutes shared human
resources within Primedia. Furthermore, if Primedia should lose
Radio 702’s contribution,
various departments are likely to be
scaled back in terms of staff resulting in more job losses. It was
also argued that there
will also be the further prejudice that the
public will suffer if Radio 702 is taken off air.
[40] It was further pointed out that
ICASA itself considered the impugned decision as a “decision”.
This is so, Primedia argued, because in response to Primedia’s
request for reasons on 20 March 2019, ICASA stated that it
was
providing reasons for its decision. Therefore, Primedia argued
that the decision has external legal effect and affects
the rights of
Primedia adversely, accordingly the decision amounts to an
administrative action. Alternatively due to the prejudice
discussed
earlier, the review is ripe under the principle of legality.
[41]
In
Sneller
[20]
the following was said:
“
Generally
speaking, whether an administrative action is ripe for challenge
depends on its impact and not on whether the decision-maker
has
formalistically notified the affected party of the decision or even
on whether the decision is a preliminary one or the ultimate
decision
in a layered process … Ultimately, whether a decision is ripe
for challenge is a question of fact, not one of dogma
.
”
[42]
Thus, even for the purposes of administrative action under the
Promotion of Administrative Justice
Act 3 of 2000 (“PAJA”),
it is not necessary that such action actually affects the party’s
rights. The courts
have repeatedly confirmed that it is enough that
it has the capacity to affect legal rights.
[21]
[43]
That is why the SCA held that parties are entitled to challenge not
only a tender award, but
a tender advertisement, and are not required
to await the award of the tender before instituting review
proceedings. Relying on
the above dicta in
AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
[22]
and
Sneller
,
the SCA held in
Airports
Company South Africa SOC Ltd v Imperial Group Ltd
[23]
that Imperial could not wait until after ACSA had made a final award
because it would, upon its disqualification from the bid,
have to
vacate ACSA’s premises.
[24]
Furthermore the automatic disqualification of Imperial and the first
hurdle of the evaluation process would have an external effect
and
adversely affect Imperial’s legal rights, because “
[e]xpecting
Imperial to wait until it was formally notified of the outcome
before resorting to judicial review in terms of
PAJA would indeed be
tantamount to putting form above substance.
”
[25]
[44] Notably, the above dicta applies
to administrative action, which must have direct, external
legal
effect. Even on that heightened test, ICASA’s decision in this
case is reviewable for precisely the reasons set out
in that matter.
[45]
A lower bar for ripeness applies under the principle of legality.
This was made clear by Cameron
J (albeit in the minority) in
Electronic
Media Network
,
[26]
where
he explained that “
review
under the principle of legality does not require, as PAJA does, that
the decision has direct, external, legal effect for
it to be
reviewable
”.
For purposes of legality review, the only question is whether the
review is ripe for challenge. This is a question primarily
of
prejudice, whether prejudice has already resulted or is
inevitable.
[27]
[46] ICASA’s suggestion that
Primedia can avoid prejudice by submitting an exemption application
does not have any substance. If there is no obligation in law to
apply for an exemption, then ICASA’s stipulation that Primedia
must do so is a reviewable irregularity. As a result the decision
cannot be rendered unreviewable by requiring Primedia to do that,
which is unlawful.
[47] Considering the facts and the law,
it is in my view clear that a decision was taken in terms
of PAJA and
as a result the decision constitutes an administrative action and
therefore it is reviewable, but even if I am wrong
on that score the
decision is reviewable under the principle of legality and therefore
the review was not brought prematurely as
argued by ICASA.
[48] Regarding the question of whether
a decision was taken, it is clear that a decision was taken.
The
decision was that ICASA would not consider Primedia’s
application, unless an exemption application was filed. While ICASA
claimed that Primedia mischaracterized its 13 March 2019 letter as
containing a decision, both Primedia and ICASA considered the
letter
at the time to contain a decision, that much was clear from the
correspondence between the parties.
[49]
It is important to note that section 11 of the ECA regulates
the renewal process. Sub-sections (6) and (7) empower ICASA to refuse
applications only on a limited set of specified grounds.
“(6) Subject to subsection (7), the Authority must renew the
individual licence on no less favourable terms and conditions
as were
applicable during its preceding period of validity except where the
amendments meet the requirements set out in section
10.
(7) Subject to subsection (12), the Authority may refuse to
renew a licence or may renew the licence on less favourable
terms and
conditions than those that were applicable during the preceding
period of validity or renew the licence with terms and
conditions
that are not applicable to similar licences if the Authority
determines that the licensee has materially and repeatedly
failed to
comply with-
(a) the
terms and conditions of the licence;
(b) the
provisions of this Act or of the related legislation; or
(c) any
regulation made by the Authority.”
[50]
In light of the aforesaid, ICASA is under an obligation to renew
licences, upon application, unless one of the
grounds in sub-section
7 of the ECA applies.
Sub-section
7 sets out the limited bases upon which the renewal may be refused,
as is clear from the wording of the section.
[51] It was not disputed that ICASA is limited to
consider the grounds in section 11 of the ECA and there is no
evidence
that Primedia materially and repeatedly failed to comply
with the law or the licence. ICASA argued that it may
nevertheless
require an applicant to re-apply for exemption, when it
decides a renewal application, because section 11(6) of the ECA
permits
it to renew licences on “
less favourable
”
terms, provided that the amendments meet the requirements of Section
10.
[52]
Section 10 of
the ECA sets out the circumstances under which ICASA may amend a
licence. ICASA argued that where those factors
are present, it
is entitled to renew the licence on less favourable terms and
conditions. Section 10 provides as follows:
“(1) The Authority may amend an individual licence after
consultation with the licensee—
(a) to make the terms and conditions of the individual licence
consistent with the terms and conditions being imposed generally
in
respect of all individual licences of the same type;
(b) for the purpose of ensuring fair competition between
licencees;
(c) to the extent requested by the licensee provided it will
not militate against orderly frequency management and will
not
prejudice the interests of other licencees;
(d) to the extent necessitated by technological change or in
the interest of orderly frequency management;
(e) in accordance with a decision made by the Authority in
terms of section 17E of the ICASA Act following a finding and
recommendation by the Complaints and Compliance Committee;
(f) where the Authority is satisfied that the amendment
is necessary to ensure the achievement of the objectives of
this Act;
(g) if the amendment relates to universal access or universal
service and is necessary, in the opinion of the Authority,
as a
result of—
(i)
changed circumstances in the market; or
(ii) lack of electronic
communications network services, broadcasting services, or electronic
communications services in specifically identified areas of the
Republic.
(h) if the amendment is in accordance with Chapter
10 and any regulations that have been made under it.
(2) The provisions of section 9 (2) to (6) apply,
with the necessary changes, to the amendment
of an individual
licence.”
[53] However, Primedia argued correctly, that
what ICASA failed to do is to explain how any of the factors
in
section 10 of the ECA apply to Primedia, or, more importantly, how
any of them could conceivably justify requiring the submission
of a
fresh exemption application, when determining the Radio 702 renewal
application.
[54] Even if ICASA was considering a decision
on whether to renew the Radio 702 licence on less favourable
terms,
the submission of an exemption application seems to be an irrelevant
consideration to the decision on whether to do so.
It is accordingly
unlawful for ICASA to require such an application, before granting
the renewal.
THE DURATION OF THE EXEMPTION
[55] According to Primedia the exemption does
not expire upon the expiry of the licence. ICASA on
the other
hand is of the view that the exemption granted does not exist in
perpetuity and ceases to exist on expiry of the licence
term for
which it was granted.
[56] Counsel for Primedia argued that
there is nothing in the relevant statutory provision which
automatically ties the duration of an exemption to the duration of a
licence, as a result the duration of the exemption will therefore
only be limited or tied to a licence when the exemption itself makes
this clear. A perusal of the papers provides clarity
in that
the 2006 exemption did not contain any limit on the duration of the
exemption, nor did it link the exemption to the duration
of
Primedia’s licence, despite the Act making provision for
conditions to be set.
[57] ICASA advanced an argument based
on a broad statutory interpretation, during which reference
was made
to ICASA’s broad and polycentric powers. ICASA further stated
that Primedia’s interpretation was contrary
to the language and
purpose of the ECA and would render ICASA unable to perform its
statutory duties and would furthermore undermine
the Competition Act
89 of 1998 (“
Competition Act&rdquo
;), and would divest ICASA of
its regulatory powers.
[58] Counsel for Primedia however
pointed out that Primedia did not suggest that all exemptions are
of
an unlimited duration, or that ICASA is prevented from granting
exemptions for a limited duration. The argument was that
section 49 of the IBA Act did not constrain ICASA either way and an
exemption of limited or indefinite duration could have been
granted.
Section 49(6)(b) of the IBA Act provides that ICASA could grant an
exemption “
subject to such terms and conditions as the
Authority deems appropriate and equitable in the circumstances
.”
It is accordingly clear that the IBA Act gives effect to ICASA’s
discretionary powers, and leaves it
free to impose constitutionally
compliant and administratively just conditions on the exemption. In
this instance such a discretion
was not exercised
[59] Counsel for Primedia argued that
as a result the duration of the exemption must be determined
with
reference to the specific terms and conditions which ICASA chose to
impose on it. As a result, so the argument went,
an exemption
would only be limited in duration, or tied to a licence, when the
exemption itself made it clear. There was nothing
in the papers to
indicate this, nor did ICASA argue, that the exemption itself was
subject to any limitation as to its duration.
[60]
It was argued by counsel for Primedia that
Private
Security Industry Regulatory Authority v Anglo Platinum Management
Services Ltd
[28]
provides the guidelines that needs to be applied in
circumstances like this. In that matter the Private Industry
Regulation
Act 56 of 2001 (“PSIRA”) prohibited the
provision of security services by unregistered persons. The PSIRA
thus required
the respondent, which provided in-house security
services, to register, and to comply with various other statutory
requirements.
The Respondent accordingly applied for two exemptions,
one for itself and one for its employees, in terms of section 20(5)
of the
PSIRA. The Minister granted the exemptions, without any terms
and conditions as to the duration of the exemptions. The Minister
subsequently promulgated regulations, which provided that any
exemption granted before the regulations came into force would lapse
after a year. The Respondents challenged the validity of those
regulations, and also sought an order declaring that the exemptions
were valid and of an indefinite duration, and that the Respondents
did not need to apply for the renewal of the exemptions.
[61]
In
Private
Security
two
questions required determination, the first one was whether the
Minister was empowered to issue exemptions of an indefinite
duration;
and the second was whether the exemptions in question were, in fact,
of a limited or indefinite duration. The Authority
argued, along the
same lines as ICASA did in this matter, that “
indefinite
exemptions militate against the main object of the Act, which is to
regulate the security industry, since the Authority
would lose its
power to control a security service provider ‘indefinitely and
forever’ once the exemption was granted.”
[29]
The SCA however did not agree with this submission, it held as
follows:
“
The
Act clearly does not prohibit the grant of indefinite exemptions. As
previously indicated, s 20(5) empowers the Minister to
grant an
exemption from the provisions of the Act, ‘either generally or
subject to such conditions as [he may specify]’.
Clearly, the
Minister has the power to grant an exemption with or without
condition. Contrary to submissions made on the Authority’s
behalf in this regard, ‘condition’ must include the
duration of an exemption, where one is fixed. If that be the case,
one must then ask why the Minister should not have the power to
impose an exemption without term. The answer must be that he does
not
have that power. This is precisely what he did in the instant matter.
The exemptions are indefinite.
[30]
”
[62] Section 20(5) of the PSRIA is cast
in materially similar terms to section 49(6)(b) of the IBA
Act.
Section 20(5) empowers the Minister to exempt any security service
provider, “
either generally or subject to such conditions as
may be specified in the notice
”, from the operation of the
PSRIA. Section 49(6)(b) of the IBA Act empowers ICASA to issue an
exemption subject to “
such terms and conditions as the
Authority deems appropriate and equitable in the circumstances
.”
[63] It was argued that ICASA was
empowered to impose conditions in the same way that the Minister
could impose conditions in
Private Security
, but chose not to,
resulting in an exemption of indefinite duration. Similarly, in this
instance ICASA did not impose any conditions
on Primedia’s
exemption, resulting in Primedia having an exemption for an
indefinite duration.
[64] ICASA sought to persuade the Court
that Primedia’s interpretation of section 49 of the
IBA Act and
section 65 of the ECA is contrary to section 9 of the Constitution,
however as illustrated above, the interpretation
proposed by Primedia
does not violate the Bill of Rights, nor does it limit ICASA’s
regulatory powers or discretion.
Once that is unaffected there
can be no argument that the interpretation is unconstitutional.
[65]
ICASA sought further to distinguish
Private
Security
from the present matter and it was argued that t
he
decision was concerned with an exemption to private security
legislation which was granted under entirely different legislation,
namely the Private Security Industry Regulation Act 56 of 2001 (“the
Security Act”), and by an entirely different functionary,
namely the Minister of Safety and Security (“the Minister of
Security”). The decision was, so it was argued, furthermore
concerned with an entirely different legal question, namely, whether
regulations promulgated by the Minister of Security were intended
by
the Minister to be of an indefinite duration.
[66]
Another important distinction, it was argued, was that the Minister
of Security, as the decision-maker,
was not a party to the
proceedings. The Court was required to interpret the legal import of
the exemption he had previously granted
in his absence.
[67]
It was pointed out by counsel on behalf of ICASA that when the
Minister of Security in
Private Security
granted the prior
exemption, he did so in the exercise of “
quite different
powers
” to the powers vested in the Minister to promulgate
regulations. That, it was argued, was diametrically opposed to the
present
case, because in this case, Primedia’s exemption and
its licence are “
integrally connected”.
However,
the wording of the Act does not bear this argument out. Nowhere in
the act is a link created between the licence, the duration
and the
exemption granted.
[68]
It was also argued that the Court in
Private Security
, held
that the exemptions were indefinite because (
a
) indefinite
exemptions were not prohibited in terms of the Security Act; and,
because (
b
) an interpretation that the exemptions were
intended to be indefinite would not absolve the beneficiaries of the
exemption from
mandatory compliance with the security-related
obligations under the Security Act.
[69]
The
argument that this matter should be distinguished from
Private
Security
need
some more scrutiny in order to determine its validity. It is
true that
Private
Security
involved different legislation and functionaries, one should however
not loose sight of the fact that the crux of the matter should
be the
legal principle involved, and not the parties who were involved.
As a result, a comparison of the statutory provisions
in this matter
and that of
Private
Security
is appropriate. The relevant finding in
Private
Security
was that because the relevant provision empowered the Minister to
grant an exemption, “
either
generally or subject to such conditions as may be specified.
”
[31]
[70]
Section
20(5) of PSRIA empowers the Minister to exempt any security service
provider or security service provider, either generally
or subject to
such conditions as may be specified in the notice, from the operation
of the PSRIA. Similarly, section 49(6)(b) of
the IBA Act empowers
ICASA to issue an exemption subject to such terms and conditions as
the Authority deems appropriate and equitable
in the circumstances.
[71] An analysis of the above reveals
that the power exercised by the Minister was identical to the
power
exercised in this matter. It was argued, on behalf of ICASA, that if
the exemption is indefinite it will compromise ICASA’s
regulatory power. This argument however was based on the
assumption that all exemptions granted under section 65 of the ECA
will be indefinite, which is clearly not the case as ICASA may grant
an exemption with or without conditions as set out above.
[72]
In
Private
Security
the same objection was raised as in this present case, namely
indefinite exemptions militate against the main object of the
Security Act, which is to regulate the security industry, since the
Authority would lose its power to control a security service
provider
‘indefinitely and forever’ once the exemption was
granted.
[32]
In this case, ICASA submitted along similar lines that the perpetuity
of an exemption effectively creates a loophole in ICASA’s
regulatory power and would undermine ICASA’s obligation under
the ECA to promote stability in the ICT sector and ensure fairness.
[73]
This argument was rejected in
Private
Security
by the SCA. Indefinite exemptions were found not to be in conflict
with the objects of that Act. The court found that the argument
ignored other measures contemplated by the Act to regulate the
sector, such as the obligation of individual employees to register,
and the application of the Code of Conduct.
[33]
The SCA’s reasoning on this score applies with even greater
strength in the present case.
[74] The exemption at issue in
Private
Security
was an exemption from the operation of the Security Act.
It allowed the beneficiary of the exemption to practice as a private
security
company and render security services without being
registered. The exemption in the present case is far more limited in
scope.
It merely exempts Primedia from the prohibition on controlling
multiple licences. As a licensee, Primedia remains bound by the
balance of the ECA in all others respects.
[75] It was also argued that if the
exemption exists in perpetuity it will undermine the purpose
and
provisions of the
Competition Act, as
Primedia would have an unfair
advantage in the commercial and broadcasting sector, which may
facilitate an abuse of dominance,
as it could prevent new entrants
from entering the market as radio band frequencies are limited. It is
not impossible that such
a situation may in the future arise.
However, at this point no factual basis was set out to support the
argument that any new entrants
are attempting to enter the market,
and that those entrants are disadvantaged by Primedia’s
exemption or that the
Competition Act should
find application. A
court should not be tempted to decide an issue which is, at present,
based on vague speculation, courts are
empowered to determine live
disputes and should not venture into the realm of speculation.
[76] ICASA also argued that the 2006
exemption and the reasons given, record that the application
for
exemption is integrally connected to the amendment of Primedia’s
licence and therefore the decision linked the exemption
to the
licence. In considering the statutory provision there is nothing that
automatically tied the duration of the exemption to
the duration of
the licence. One needs to interpret the exemption itself.
A perusal of the exemption, despite the section
making provision for
conditions to be put, reveal none.
REVIEW
[77] A perusal of all the facts and the
law set out above clearly illustrates that PAJA applies,
but the
impugned decision also amounts to the exercise of public power and
therefore is subject to the principle of legality.
[78] Seeing however
that PAJA was promulgated as a result of section 9 of the
Constitution, this Court
should review the matter under PAJA in light
of the fact that the requirements of PAJA were met, however nothing
much turns on
this, even if I am wrong on this score the principle of
legality will still apply.
[79]
ICASA
derives its power to renew licences from section 11 of the ECA. It
may not lawfully exercise any power in relation to the
renewal of
licences not conferred on it by section 11.
In
deciding not to consider Primedia’s renewal application, until
it has submitted an exemption application, ICASA acted in
a manner
that section 11 of the ECA does not permit.
[80] In doing so
ICASA contravened section 6(2)(a) of PAJA as it was not authorized to
take the impugned
decision by the empowering provision. It also
contravened section 6(2)(f)(i) of PAJA in that the impugned decision
is not
authorized by the empowering provision. In terms of the
principle of legality the impugned decision was both unlawful and
ultra vires
.
[81] I
n
Democratic
Alliance v the President of South Africa and others
[34]
the Constitutional Court states as follows:
“
The reasoning in these cases
shows that rationality review is really concerned with the evaluation
of a relationship between means
and ends: the relationship,
connection or link (as it is variously referred to) between the means
employed to achieve a particular
purpose on the one hand and the
purpose or end itself. The aim of the evaluation of the relationship
is not to determine whether
some means will achieve the purpose
better than others but only whether the means employed are rationally
related to the purpose
for which the power was conferred.”
[35]
[82] Therefore, in order for the exercise of
public power to be rational, there must be a rational connection
between the exercise of that power and the purpose for which the
power was granted.
[36]
However, there is no rational connection between the impugned
decision and the purpose of ICASA’s power to renew a licence.
[83] In light of the aforesaid ICASA
contravened section 6(2)(e)(i) of PAJA as the impugned decision was
taken for a reason not authorized by the empowering provision and
section 6(2)(f)(ii) of PAJA in that the impugned decision was
not
rationally connected to the purpose for which it was taken, the
information before ICASA, or the reasons given for it.
In terms
of the principle of legality the decision was both irrational and
unlawful.
[84] The decision was for the reasons set out
above also based on material errors of law, took into account
irrelevant considerations and failed to take into account relevant
considerations.
[85]
Section 6(2)(d) of
PAJA permits judicial review where “
the
action was materially influenced by an error of law
.”
Material errors of law are also grounds for review under the
principle of legality. In
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
,
[37]
the Constitutional Court held that an error of law will be material
where it affects the outcome of a decision.
[86] ICASA failed to
recognize that as a matter of law, an exemption granted under section
49 of the IBA
Act does not automatically expire upon the expiration
of the licence and failed to recognize that its election not to
impose a
time limit on the validity of the exemption, meant that the
exemption was of an indefinite duration. It also failed to
recognize
that under section 11 of the ECA it is obliged to renew the
licences, without insisting on a new exemption application.
[87]
Moreover,
taking into account irrelevant considerations, and failing to take
into account relevant considerations, are also grounds
of review
under
section 6(2)(e)(iii) of
PAJA. It is subsumed under legality review, as an incident of
rationality. As the Constitutional Court stated in
Democratic
Alliance
:
“
[t]here is … a
three-stage enquiry to be made when a court is faced with an
executive decision where certain factors were
ignored. The
first is whether the factors ignored are relevant; the second
requires us to consider whether the failure to
consider the material
concerned (the means) is rationally related to the purpose for which
the power was conferred; and the third,
which arises only if the
answer to the second stage of the enquiry is negative, is whether
ignoring relevant facts is of a kind
that colours the entire process
with irrationality and thus renders the final decision
irrational.”
[38]
[88] The only
considerations that are relevant to the determination of the renewal
of the licence
are those set out in section 11 of the ECA.
ICASA however considered the provisions of section 65(2) and (3) of
the ECA,
which are irrelevant in a licence renewal process.
[89] As this is
a
constitutional matter, the relief must be approached with due
consideration of section 172 of the Constitution. When a court
considers a remedy, the starting point, as a matter of constitutional
principle, is that invalid administrative decisions must be
declared
unlawful.
[39]
[90] As the Court held in
AllPay I
,
“
Once a ground of review under PAJA has been established
there is no room for shying away from it. Section 172(1)(a) of
the
Constitution requires the decision to be declared unlawful.
”
[40]
[91] Following a declaration of invalidity,
the consequences must be dealt with in a just and equitable
order in
terms of section 172(1)(b). The default position is that the just and
equitable relief granted must be aimed at correcting
or reversing the
consequences of an invalid administrative action. As was stated in
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v
Chief Executive Officer of the South African Social Security Agency
and Others
[41]
“
This
corrective principle operates at different levels. First, it
must be applied to correct the wrongs that led to the declaration
of
invalidity in the particular case. This must be done by having
due regard to the constitutional principles governing public
procurement, as well as the more specific purposes of the Agency Act.
Second, in the context of public-procurement matters
generally,
priority should be given to the public good. This means that
the public interest must be assessed not only in
relation to the
immediate consequences of invalidity – in this case the setting
aside of the contract between SASSA and Cash
Paymaster – but
also in relation to the effect of the order on future procurement and
social-security matters
.
”
[42]
[92] Therefore, having found that the
administrative action is constitutionally invalid, a court must grant
appropriate relief that is corrective of the consequences of the
unlawfulness found. Ordinarily, this entitles an applicant to
call
for the unlawful action to be set aside.
[43]
Under certain circumstances, courts have permitted deviations from
this “
corrective principle
”.
[44]
But they have stipulated that relief that does not give “
full
effect
” to the finding of invalidity must be justified by
the circumstances of the case,
[45]
giving primacy to the public interest and balancing the parties’
interests.
[46]
[93] In this case ICASA seeks a deviation
from the corrective principle. It suggests that any declaration
of
invalidity of the impugned decision should be suspended. This, it
says, is because a suspension would “
obviate the otherwise
inevitable waste of time and resources that the complete setting
aside
of
ICASA’s renewal process would entail”
[94] This submission is based on a
misunderstanding of what it was that Primedia sought to set aside.
If the review succeeds, only the decision reflected in the letter of
13 March 2019, which requires Primedia to submit an exemption
application in terms of section 65(6) of the ECA before its licence
renewal application will be processed, will be set aside. No
time or
resources will be wasted in simply setting that impugned decision
aside. ICASA will then be free to determine the renewal
application
on a proper and lawful footing and without Primedia being required to
submit a fresh exemption application.
THE DECLARATORY ORDERS
[95] As far as the
declaratory orders are considered, Primedia conceded that there is no
need for
prayer 2. At this point the only declaratory relief
that is sought, is that contained in prayer one.
[96]
The
granting of declaratory relief is discretionary. The court should
have regard to several factors, including the existence, or
absence
of a live dispute; the utility of the declaratory relief; and
whether, if granted, it would settle the question in issue
between
the parties.
[47]
Courts generally will not grant declaratory relief in respect of an
issue that is
moot, abstract,
hypothetical and academic.
[48]
[97] It is in my
view abundantly clear that there is a live
bona
fide
dispute between the parties and
declaratory relief will bring clarity to this dispute.
[98] It was argued by
Primedia that t
he declaratory relief will provide important
guidance to ICASA as to the proper exercise of its functions. In
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
,
[49]
O’Regan J explained that this is an important purpose served by
declaratory orders:
“
It is quite clear that before
it makes a declaratory order a court must consider all the relevant
circumstances. A declaratory order
is a flexible remedy which can
assist in clarifying legal and constitutional obligations in a manner
which promotes the protection
and enforcement of our Constitution and
its values. Declaratory orders, of course, may be accompanied by
other forms of relief,
such as mandatory or prohibitory orders, but
they may also stand on their own. In considering whether it is
desirable to order
mandatory or prohibitory relief in addition to the
declarator, a court will consider all the relevant circumstances.
It
should also be borne in mind that declaratory relief is of particular
value in a constitutional democracy which enables courts
to declare
the law, on the one hand, but leave to the other arms of government,
the Executive and the Legislature, the decision
as to how best the
law, once stated, should be observed.
”
[99] In this instance the declaratory
relief sought in prayer one would resolve the dispute between
the
parties and will provide guidance to ICASA regarding the ambit of its
decision making powers.
[100] In the light of the aforesaid the prayers one and
three should be granted.
[101] An order is made in terms of the following:
1.
It
is declared that the exemption granted by the First Respondent to
Primedia Broadcasting (Pty) Ltd on 23 March 2006, in terms
of section
49 of the Independent Broadcasting Authority Act 153 of 1993 (the
“exemption”) does not cease to exist or
expire upon the
expiry of the commercial broadcasting licences controlled by the
Applicant.
2.
The
decision taken by the First Respondent on 13 March 2019, requiring
the Applicant to make a fresh application for exemption in
terms of
section 65(6) of the ECA before the Respondents will consider the
Applicant’s application to renew its commercial
broadcasting
licence in respect of Radio 702 is reviewed, set aside and declared
unlawful and invalid.
3.
The
Respondent are ordered to pay the costs of the Applicant, jointly and
severally the one paying the other to be absolved, which
costs will
include the costs of two counsel.
R G TOLMAY
JUDGE OF THE HIGH COURT
DATE OF HEARING:
11 FEBRUARY 2021
DATE OF JUDGMENT:
19 MAY 2021
APPEARANCES
ATTORNEY FOR APPLICANT:
EDWARD NATHAN
SONNEN-BERGS INC
ADVOCATE FOR APPLICANT:
ADV S BUDLENDER
SC
ADV M M MBIKIWA
ADV T POOE
ATTORNEY FOR RESPONDENTS:
FASKEN (Incorporating in South
Africa as BELL DEWAR INC)
ADVOCATE FOR RESPONDENTS: ADV A R
BHANA SC
ADV M STUBBS
[1]
National Lotteries Board v South African Education and Environment
Project
2012 (4) SA 504
(SCA) (National Lotteries Board); Van Zyl
and others v Government of the Republic of South Africa and others
2008 (3) SA 294
(SCA) at para 55.
[2]
National
Lotteries Board,
ibid
at paras 24-28.
[3]
PG
Group Ltd and Others v South African Education and Environment
Project
2018 (5) SA 150
(SCA) at para 41.
[4]
National
Lotteries
supra fn 1, at para 27, Minister of Defence and Military Veterans v
Motau and others 2014(5) SA 69 (CC) at para 55.
[5]
2020(1) SA 450 (CC) at para 39.
[6]
Ibid
.
[7]
2014(5) SA 579 (CC).
[8]
Ibid
at para 29.
[9]
Ibid
at para 33.
[10]
Ibid
at para 34 read with para 38.
[11]
2017(2) SA 211 (CC) (Merafong).
[12]
Ibid
at
para 61.
13
2014(3) SA 481 (CC) (Kirland).
14
Ibid
at
para 64.
[15]
Electronic Media Network Limited and Others v E.tv (Pty) Ltd and
Others 2017 (9) BCLR 1108 (CC).
[16]
Ministry of Defence and Military Veterans v Motau 2014 (5) SA 69
(CC).
[17]
National Treasury v Opposition to Urban Tolling Alliance 2012 (6)
223 (CC) at para 64.
[18]
L Baxter,
Administrative
Law
(1984) at 720.
[19]
2012 (2) SA 16
(SCA) at paras 17-20.
[20]
Para 21.
[21]
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works
2005 (6) SA (SCA); AllPay Consolidated Investment Holdings
(Pty) Ltd
and Others v Chief Executive Officer, South African Social Security
Agency and Others 2014 (1) SA 604 (CC)
[22]
2014
(1) SA 604 (CC).
[23]
2020 (4) SA 17 (SCA).
[24]
Ibid
at para 16.
[25]
Ibid
at para 18.
[26]
Supra
fn15,
at para 122.
[27]
Rhino Oil and Gas Exploration SA (Pty) Ltd v Normandien Farms (Pty)
Ltd & another
[2019] ZASCA 88
at para 33.
[28]
[2007] 1 All SA 154 (SCA).
[29]
Ibid
at
para 19.
[30]
I
bid
at
para 21
[31]
Ibid
at
para 11.
[32]
Ibid
at
para 19.
[33]
Ibid
at
paras 22 – 23.
[34]
2013(1) SA 248 (CC) (Democratic Alliance). See also Pharmaceutical
Manufacturers Association of South Africa & another: In
Re Ex
Parte President of the Republic of South Africa & others 2000(2)
SA 674 (CC).
[35]
Ibid
para 33, See also Van Der Merwe v Road Accident Fund 2006(4) SA 230
CC.
[36]
Ibid
at para 85. See also Democratic Alliance v President of the Republic
of South Africa
2013 (1) SA 248
(CC) (Democratic Alliance) at para
36.
[37]
2010 (6) SA 182
(CC) para 91.
[38]
Supra
fn
39, at para 39
[39]
Bengwenyama Minerals (Pty) Limited v Genorah Resources (Pty) Limited
2011 (4) SA 113
(CC) at para 84;
Supra
fn22, at para 25)
(“AllPay I”).
[40]
Para 25.
[41]
2014 (4) SA 179
(CC)
(“AllPay
II”).
[42]
Ibid
at
para 32.
[43]
Eskom Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
[2009] ZASCA 8
,
2009 (4) SA 628
(SCA) at para 11.
[44]
Supra
fn
46 at paras 32 and 34.
[45]
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011(4)
SA 113 (CC) para 84.
[46]
Millennium Waste Management (Pty) Ltd v Chairperson of the Tender
Board: Limpopo Province and Others
2008 (2) SA 481
(SCA) at paras
22, 28-9, 32;
AllPay
II
at paras 32-34.
[47]
See Minister of Finance v Oakbay Investments (Pty) Ltd and
others; Oakbay Investments (Pty) Ltd and
others v
Director of the Financial Intelligence Centre 2018 (3) SA 515
(GP)
at para [59]; Herbstein and Van Winsen:
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
(5 ed),
2009 at 1438–1440. See also Smith v National Lotteries
Commission and another
[2018]
JOL 40345
(LC) at para 9.
[48]
Pheko
and others v Ekurhuleni Metropolitan
Municipality
2012 (2) SA 598
(CC)
at para 32; JT Publishing (Pty) Ltd and another
v Minister of Safety and Security and others
1997 (3) SA 514
(CC)
at para15; and Cordiant Trading CC v Daimler Chrysler Financial
Services (Pty) Ltd 2005 (6) 205
(SCA).
[49]
[2004] ZACC 20
;
2005 (2) SA 359
(CC) (Metrorail) paras 107 – 108.