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[2007] ZASCA 90
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Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa (296/06) [2007] ZASCA 90; 2008 (2) SA 164 (SCA) ; [2007] 3 All SA 484 (SCA); 2007 (10) BCLR 1136 (SCA) (8 June 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
: 296/06
In the matter between :
RADIO
PRETORIA
.......................
Appellant
and
THE CHAIRPERSON OF
THE INDEPENDENT
COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA
.......................
First Respondent
and
THE
INDEPENDENT COMMUNICATIONS AUTHORITY
OF
SOUTH AFRICA
.......................
Second Respondent
___________________________________________________________________________
Before: HOWIE P, STREICHER, BRAND JJA, HANCKE & MUSI AJJA
Heard: 4 MAY 2007
Delivered: 8 JUNE 2007
Summary:
Administrative law – refusal of broadcasting licence reviewed –
application not properly considered.
Neutral citation: This judgment may be referred to as
Radio
Pretoria v The Independent Communications Authority of South Africa
[2007] SCA 90 (RSA)
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
STREICHER JA
STREICHER JA:
[1] This is an appeal against the
dismissal by the High Court, Pretoria of an application by the
appellant for the review of a decision
by the second respondent not
to grant the appellant a community broadcasting licence.
1
The court a quo granted the appellant
leave to appeal to this court. The main contention of the appellant
on appeal is that the second
respondent’s refusal of its
application for a broadcasting licence should be set aside in that
the second respondent treated
the appellant’s application as an
application for a licence to broadcast to a certain area whereas the
application was for
a licence in respect of a different area.
[2] The second respondent, the
Independent Communications Authority of South Africa (‘Icasa’),
is a juristic person established
in terms of s 3 of the
Independent Communications Authority of South Africa Act 13 of 2000
(‘the Icasa Act’), to
perform, with effect from 1 July
2000, the duties imposed upon the Independent Broadcasting Authority
(‘IBA’) by or under
the
Broadcasting Act 4 of 1999
and
the Independent Broadcasting Authority Act 153 of 1993 (‘the
IBA Act’).
2
For this purpose all the powers
conferred upon the IBA in terms of the IBA Act were conferred on
Icasa.
3
Included among these is the power to
administer the statutory scheme for the granting, renewing and
amending of broadcasting licences.
4
[3] Section 39 of the IBA Act
provides that subject to the provisions of the Act, a person shall
not provide a broadcasting service
unless such service is provided
under and in accordance with a broadcasting licence issued to that
person by the IBA under Chapter
VI (sections 39 to 55) of the IBA
Act. The Chapter makes provision for the issuing of various types of
broadcasting licences. One
such licence is a community broadcasting
licence.
5
[4] Acting in terms of section 41 of
the IBA Act the IBA, on 9 May 1997, in terms of a notice published in
the Government Gazette
6
,
invited applications for broadcasting licences to provide community
sound broadcasting services. The notice stated that the IBA
decided
to produce an interim community radio frequency plan (‘the
RFP’) on a province by province basis, containing
all FM and MW
frequencies that were available for community broadcasting in all
nine provinces until such time as the national frequency
plan had
been finalised.
7
According to the RFP each province
was divided into numbered licence areas indicated on an index map and
the frequencies, the maximum
effective radiated power (‘the
ERP’) of the transmitter and the maximum permissible effective
antenna height that could
be used from each such licence area were
specified. Applicants had to perform a coverage study from the
proposed transmitter site
and a copy of such coverage study had to
accompany each application. The target area to which an applicant
wanted to transmit had
to be identified and well defined as this
target area or part of it was to form part of the licence conditions.
Transmitters had
to be so located as to ensure that the target area
and licence area overlap. An application form was provided and
applicants were
required to answer all the questions set out in the
form. Under the heading ‘Licence(s) Applied for’ an
applicant had
to specify the licence area, band, frequency, maximum
ERP and maximum effective antenna height. Applicants were also
required to
provide particulars of the geographic target area
‘including a map showing predicted 66, 60 and 48 dBuV/m
coverage contours’.
[5] From the aforegoing it is clear
that a distinction is drawn in the RFP, the invitation and the
application form between licence
areas and target areas. The licence
area referred to in the RFP, the invitation and the application form
is the area from which the
broadcasting on the prescribed frequency
could take place ie the site where a transmitter complying with the
prescribed parameters
could be located. The target area in terms of
these documents, on the other hand, is the area to which the
applicant wishes to broadcast.
However, in terms of s 1 of the
IBA Act ‘licence area’ is defined as ‘the
geographical target area of a broadcasting
service as specified in
the relevant broadcasting licence’. It follows that the
‘licence area’ referred to in the
invitation and in the
prescribed application form, is not to be equated with ‘licence
area’ within the meaning of the
IBA Act. It is the target area
to which the applicant wishes to broadcast that is to be equated with
such ‘licence area’.
In order to avoid confusion I shall
henceforth refer to the licence areas contemplated in the RFP, the
invitation and the application
form as RFP licence areas.
[6] A community and a community
broadcasting service are defined in s 1 of the IBA Act as follows:
‘“
community” includes a
geographically founded community or any group of persons or sector of
the public having a specific, ascertainable
interest.’
‘”
community broadcasting service”
means a broadcasting service which –
is fully controlled by a non-profit entity and carried on for
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
. . .’
[7] The appellant is an association
not for gain incorporated in terms of s 21 of the Companies Act
61 of 1973. In 1995 a one
year temporary community broadcasting
licence was granted to the applicant and since that time it has been
broadcasting on the frequency
104.2 MHz. Initially it did so in terms
of five consecutive temporary one-year community broadcasting
licences authorizing it to
broadcast in Pretoria and environs.
Pursuant to the invitation to apply for four year community
broadcasting licences the appellant,
in March 1998, applied for such
a licence in respect of RFP licence area 21. Subsequently, in the
light of the fact that, in terms
of the RFP, frequency 104.2 MHz was
only available in licence area 18, the RFP licence area applied for
was changed to RFP licence
area 18.
[8] In its application for a licence
the appellant states:
(a) That the community it wishes to serve is the
‘Boere-Afrikaner’ community. He describes the
Boere-Afrikaner as follows:
‘
Boere-Afrikaner is the conservative core of
Afrikaners with the following characteristics:
A common cultural-historical descent and heritage of some 350 years;
A west European language and cultural heritage;
A Protestant Christian religion and view of world affairs;
A common goal in maintaining and promoting their cultural and
religious values and identity.’
That Pretoria, Johannesburg and
districts is the target area to which it wishes to broadcast and
that, as required by the invitation,
a map showing the expected
reception area is annexed to the application.
That there are 546 646 Afrikaans speakers in the
districts which are targeted and that they are distributed as
follows:
Area 18 Bronkhorstspruit/Cullinan
(Source op
datum opnames) = 18 960
Area 21 (Kleinfontein)
Area 20
Area 19 = 527 686
Area 17
Area 22
Area 23
(Source 1996 Census)
= 546 646’ (881)
These areas (17-23) are clearly the
RFP licence areas.
[9] In the light of the fact that a
broadcasting licence is issued in respect of a target area and the
fact that the appellant made
it clear in its application that the
target area to which it wished to broadcast comprised RFP licence
areas 17 to 23, the application
was for a licence to broadcast to RFP
licence areas 17 to 23 by way of a transmitter and antenna complying
with the parameters prescribed
in respect of RFP licence area 18 and
located in RFP licence area 18.
[10] The hearing of the applicant’s
application only took place on 9 May 2003. At the hearing the
appellant’s representatives
made it clear that appellant
required a licence to broadcast to its target area and not to RFP
licence area 18. Counsel for the appellant,
referring to the maximum
ERP of 10 000 Watt specified in the RFP for RFP licence area 18 said:
‘
If the maximum ERP, which has been
available for a decade and which appears in the invitation to apply
is to be reduced in any way,
the applicant will not be able to reach
its target audience in neighbouring areas and equally importantly its
advertisers and debit
order subscribers. . . . This will effectively
mean the end of Radio Pretoria and render a four-year licence with a
limited ERP to
cover only the licence area quite useless.’
Mr Diedericks a member of the
applicant
’
s
senior management added:
‘
Our target population is outside area 18.
So if we are confined to area 18, you know, we’re off the air
in practice. Also our
income is from the Pretoria area and
environments. So that has been our target area and our target
audience all along. If we cut
down to area 18, that is as good as Mr
Prinsloo has said it’s just like shutting us down.’
[11] On 30 September 2003 Icasa
advised the appellant that its application had been refused. In May
2004 the following four reasons
for the refusal were furnished:
(a) The appellant does not comply
with
s 32(3)
of the
Broadcasting Act 4 of 1999
in that the appellant
is not managed and controlled by a board which was democratically
elected from members of the community in
the licensed geographic
area. In the entire Gauteng the appellant has only 54 members, only
three of whom are from licence area 18.
(b) The appellant does not comply
with Icasa’s requirement that measures be taken to ensure that
the people in its policy-making
structures are representative of the
community to be served in that only one of its ten directors emanates
from the community to
be served, being the Boere-Afrikaner community
in licence area 18.
(c) The appellant does not comply
with the standard condition, imposed by Icasa when issuing a
broadcasting licence, that the licensee
must ensure equal employment
opportunity practices and must at all times ensure that the
composition of its management and staff
reflects the racial and
gender demographics of the community it serves. The appellant does
not comply with these requirements in
that members of the
Boere-Afrikaner community are employed by preference and only
Boere-Afrikaners, who are inevitably white, qualify
for appointment
as voluntary workers.
(d) Having regard to the broadcasting
services already available in the relevant licence area Icasa is not
satisfied that there is
sufficient need for the applicant’s
service as contemplated in
s 46(1)(b)
read with s 47(2) of
the IBA Act.
[12] The appellant thereupon applied
to the court a quo for the review and setting aside of Icasa’s
refusal of its application.
The court a quo held that Icasa’s
refusal to grant the applicant’s licence by reason of not being
satisfied that there
is a need for the applicant’s service was
irrational and should be set aside. The correctness of this decision
is not in issue
before us. Nonetheless the court a quo concluded that
Icasa’s decision to refuse the application for the other three
reasons
mentioned above was well founded and dismissed the
application.
[13] Before us the appellant’s
main submission why Icasa’s decision should be reviewed and set
aside is that the appellant’s
application was never considered
by Icasa in that Icasa treated the application as an application for
a community broadcasting licence
in respect of RFP licence area 18
whereas the application was for a licence to broadcast to a target
area comprising RFP licence
areas 17 to 23.
[14] As stated above the appellant in
fact applied for a licence in respect of the target areas comprising
RFP licence areas 17-23.
It is, however clear and indeed common cause
that Icasa treated the application as one for a licence in respect of
RFP licence area
18.
[15] Counsel for Icasa submits that this line of attack
on Icasa’s refusal of the application is not open to the
appellant in
that it is not one of the grounds relied upon in the
appellant’s founding affidavit. I do not agree. In regard to
the first
reason for refusal of its application by Icasa the
appellant said in its founding affidavit:
‘
[T]he Applicant’s detailed
application, which served before the Respondents, makes clear
provision for the fact that the target
audience and broadcasting area
of the Applicant extends well beyond the boundaries of licence area
18.
. . .
In this case, the “democratic” requirement lies in the
election of the directors, through majority vote, from the ranks
of
the target audience . . ..
. . .
In the present instance, there can be no doubt that the elected
Directors hail from the target broadcasting area [Boere-Afrikaners
spread over most of Gauteng, and some even coming from licence area
18] . . ..
. . .
If the Directors only had to be elected from the
ranks of listeners in licence area 18, it would be grossly unfair
[and undemocratic]
from the point of view of the hundreds of
thousands of listeners in the target broadcasting area beyond licence
area 18.’
[16] In regard to the second reason
for Icasa’s refusal of its application the appellant said that
it is wrong to confine the
Boere-Afrikaner community of interest to
licence area 18 and that ‘it also seems to suggest that the
other half a million Boere-Afrikaners
who form part of the target
broadcasting community of the Applicant for purposes of this
application, may as well not exist.’
[17] Although the appellant did not
specifically say that Icasa’s decision should be reviewed
because it never considered its
application for a licence in respect
of a target area comprising RFP licence areas 17 to 23 it did say
that Icasa erred in confining
its application to RFP licence area 18
in that its target area is much wider. That allegation provided a
sufficient basis for the
submission now advanced namely that Icasa
treated the application as being an application for a licence in
respect of RFP licence
area 18 and failed to consider the real
application being an application for a licence in respect of a much
wider area namely a target
area comprising RFP licence areas 17 to
23.
[18] The respondents submit that the
RFP is to the effect that the target area to which a licensee is
entitled to transmit its signal
(which it must specify in its
application and which will be specified in its licence) must
substantially be encompassed by one of
the numbered licence areas
identified in the RFP. According to the submission the geographical
parameters of a particular numbered
RFP licence area circumscribe the
maximum extent of the transmission area of a licensee who holds a
licence in respect of that numbered
licence area. The only basis
advanced for this submission (apart from unsubstantiated submissions
by counsel in respect of technical
matters) is that the construction
is consistent with the express requirement of the RFP that the
transmitter should be located so
as to ensure that the target area
and the licence area overlap. The respondents submit that to require
that these two areas overlap
is to require that they substantially
overlap. However, according to the ordinary meaning of the word
‘overlap’ the two
areas need merely coincide to some
extent, even a minor extent will suffice.
[19] I doubt that the RFP is to the
effect that the RFP licence area and the target area in respect of
which a licence is sought should
substantially coincide. For each RFP
licence area the RFP prescribes the maximum power of the transmitter
and the maximum height
of the antenna that may be used. In the case
of RFP licence area 18, transmission by way of such a transmitter and
antenna would
reach a much wider area comprising various other RFP
licence areas. It would make no sense to require a broadcaster to
apply for
a separate licence, to transmit on a different frequency,
in respect of each of those areas. It seems to me that Icasa’s
interpretation
of the RFP is wrong. However, this is not an issue to
be decided at this stage. The appellant’s application was not
refused
for this reason as its application was not treated as an
application in respect of the target area identified by it. The
appellant
is entitled to have its application considered by Icasa and
only when that is done will it be necessary to determine whether
Icasa’s
understanding of the RFP is correct.
[20] The respondents also submit that
Icasa’s reasons for refusing the appellant’s application
for a licence applied with
equal force to an application by the
appellant for a licence in respect of the target area identified in
its application and that
the application for the review of Icasa’s
decision should, in any event, for this reason not have succeeded.
The submission
is wrong in that some of the reasons do not apply with
equal force to an application for a licence in respect of the target
area.
It is, in any event, no answer to the appellant’s
complaint to say that the reasons for the dismissal apply with equal
force
to an application for a licence in respect of the appellant’s
target area. The appellant is entitled to have its application
considered by Icasa. Icasa failed to consider the appellant’s
application for a community broadcasting licence in respect of
the
target area identified by it and by treating it as an application for
a licence in respect of RPF licence area 18 it acted so
unreasonably
and irrationally that its decision should be set aside.
8
[21] The court a quo should therefore
have reviewed and set aside Icasa’s refusal of the appellant’s
application and should
have referred the matter back to Icasa for
reconsideration.
[22] In the light of the fact that
the appellant’s application will be reconsidered by Icasa the
following additional comments
should be made in respect of the
reasons furnished by Icasa for the refusal of the application:
(a) Icasa interpreted s 32(3) of the
Broadcasting act 4 of 1999 so as to require that the board which
manages and controls the licensee
of a community broadcasting service
must be democratically elected
by
members of the community in the
licensed geographic area, whereas the section requires that such
board must be elected
from
and not
by
such members.
9
Furthermore, the people taking part
in the democratic election cannot be the community being served by
the applicant for a broadcasting
licence as was thought to be the
case by Icasa. In terms of the definition of a community broadcasting
service in s 1 of the IBA
Act, the licensee must be fully controlled
by a non-profit entity. Unless the members of the appellant’s
board are elected
by the members of the appellant the broadcasting
service cannot be said to be fully controlled by the appellant.
(b) Icasa required equal employment
opportunity practices in the sense that all races should be given an
equal opportunity to be employed
by the appellant and also required a
composition of management and staff which reflects the racial and
gender demographics of the
community the appellant serves. These
requirements are contradictory in that, by definition, the community
served by the appellant
does not include all races.
[23] As a consequence of the refusal
of the appellant’s application for a community broadcasting
license an application by the
appellant for a signal distribution
licence was refused. The appellant asked that, in the event of the
application for the setting
aside of the refusal of the former
application being successful, the refusal of the latter application
also be set aside and referred
back to Icasa for reconsideration. The
respondents did not object to this request.
[24] For these reasons the following
order is made:
(1) The appeal is upheld with costs
including the costs of two counsel.
(2) The order of the court a quo is
set aside and replaced with the following order:
(a) The second respondent’s
refusal of the applicant’s application for a community
broadcasting licence and the applicant’s
application for a
signal distribution licence are set aside and the applications are
referred back to the second respondent for reconsideration.
(b) The respondents, jointly and
severally, are ordered to pay the costs of the application.
____________________
P E
STREICHER
JUDGE OF
APPEAL
CONCUR
:
HOWIE P)
BRAND JA)
HANCKE
AJA)
MUSI AJA)
1
The
judgment of the court a quo is reported as
Radio
Pretoria v Voorsitter van die Onafhanklike Kommunikasie-owerheid
[2006] 1 All SA 143
(T).
2
Section
4 of the Icasa Act. The Independent Broadcasting Authority was
established in terms of s 3 of the IBA Act and was,
with effect
from 1 July 2000, dissolved in terms of s 18 of the Icasa Act.
3
Section
4 of the Icasa Act.
4
Section
13(1)(a) of the IBA Act.
5
Section
47 of the IBA Act.
6
Notice
no 785 of 1997 published in
Government Gazette
17998.
7
As
from 28 January 1994 all powers, functions and duties in relation to
the administration, management, planning and use of the
broadcasting
services frequency bands devolved upon or vested in the IBA
(s 29(1)).
As
soon as reasonably practicable after the commencement of the IBA Act
the IBA had to prepare a frequency plan whereby the maximum
number
of frequencies available for broadcasting services was determined.
(s 31).
8
See
s 6(2)(f)(ii)
and (h) of the
Promotion of Administrative Justice Act
3 of 2000
.
9
Section
32(2)
and (3) of the
Broadcasting Act 4 of 1999
read as follows:
‘
(2) The licence of a community
broadcasting service must be held by a licensee.
(3) The licensee referred to in subsection (2) must be managed and
controlled by a board which must be democratically elected,
from
members of the community in the licensed geographic area.’