IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
Case No: 050968/2022
(1) REPORTAB LE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
3APRIL 2025
SIGNATURE DATE
In the matter between:
THE CHAIRMAN OF THE INDEPENDENT
COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
(ICASA)
and
PRETORIA FM NPC
IN RE: Applicant
Respondent
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PRETORIA FM NPC Applicant
and
THE CHAIRMAN OF THE INDEPENDENT
COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
(ICASA) Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. Th e date for handing down is deemed to be 3 April 2025.
JUDGMENT
RETIEF J
INTRODUCTION
[1] The applicant, the Chairman of the Independent Communications Authority
of South Africa [ICASA] applies for leave to the Supreme Court of Appeal
alternatively to the Full Bench of this Court against the whole of the judgment and
order (including costs) handed down on the 11 December 2024 in which the
applicant’s decision to disqualify the respondents 6(six) applications for the pre -
registration of community sound broadcasting services and radio frequently
spectrum licences [respondents’ applications] in terms of the Electronic
Communications Act. 36 of 2005, as amended [ECA] , was declared unlawful and
set aside. The 6(six) applications were remitted back to the applicant for
reconsideration.
[2] It is common cause that on the 14 December 2021, Dr Keabetswe
Modimoeng [ Dr Modimoeng] in the Government Gazette of the 15 December 2021,
published an invitation for pre -registration for Community Sound Broadcasting
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Services and Radio Frequency Spectrum Licen ces in terms of section 17, 31(1) and
31(2) of the ECA read with regulation 4(5) of the Community Broadcasting
Regulations, of 2019 . Dr Modimoeng stated that: “All pre -registration notices will be
considered based on the requirements set out in th e invitation to pre-register “ITP -
R”, read with the EC A Act (own emphasis) and applicable regulations. ”
[3] In consequence the invitation informed applicants that it was a call for class
licences (section 17) for the transmission of signals by radio or radio apparatus in
accordance with a radio frequency spectrum licence (section 31(1) and (2) ) of the
ECA Act. Furthermore , Dr Modimoeng confirmed that all pre -registration notices
would be considered based on the ITP -R (invitation) read with the ECA Act and
applicable regulations. The use of the words “ -read with -“ implying that the basis for
consideration was not only confined to the ITP -R nor to sections 17, 31(1) and (2)
of the ECA as suggested by the applicant in its application for leave to appeal.
[4] Be that as it may, t he ITP -R itself too include d certain guidelines which were
to be read by each the pre -registration notice . The guidelines marked “Schedule A”
echoed the same message as that announced by Dr Modimoeng in that it stated :
“NON -COMPLIANCE WITH PROVISIONS OF THE EC A ACT, THIS ITP -R
AND/OR ANY APPLICABLE REGULATIONS WILL RESULT IN THE
REJECTION BY THE AUTHORITY OF SUCH NON -COMPLIANT PRE -
REGISTRATION NOTICE ”
[5] Non-compliance was to be considered having regard to the provisions of the
ECA Act, considering the ITP -R and/or considering any applicable regulations.
[6] Furthermore the guidelines at Paragraph s 14 and 19 of schedule A stated
that:
“14. Every pre -registration notice must be accompanied by proof of
payment (own emphasis) of the non -refundable application fee of Four
Thousand One Hundred and Eighteen Rand (R4 118.00). The
payment must be made by an electronic funds transfer or via a direct
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deposit into the following bank account of the Authority prior to the
submission closing date and time indicated in paragraph 16 below:
(the applicant’s bank account follows ).
19. The Authority reserves its right not to consider (own emphasis) a pre -
registration notice should applicants not meet the requirements as set
out in this ITP -R or applicable legislations and regulations. (own
emphasis) ”
[7] Having regard to such guidelines, it was a common cause fact that the
Committee of the applicant , before the closing date for submissions (30 June 2022)
of pre-registration applications , communicated with pre-registration applicants.
These applicants, inter alia, included PundaMaria FM, Lakazi FM and South West
Township Radio . In the communique the Committee request ed such pre -registration
applicants to submit their proof of payments of their non -refundable pre -registration
fee of R4,118.00 . Such proof of payment was required in terms of paragraph 14 of
schedule A. The need for the communication was th at such proof of payments did
not accompany their pre -registration notices. The applicant contended that
notwithstanding the omission it did not view these applications as deficient. No
matter how the applicant viewed the applications the Court accepted that the
Committee must have considered the pre -registration notices , pick-up the oversight
and took action. Whether such action would remedy the omission , at that stage was
unknown. The action taken was to notify PundaMaria FM, Lakazi FM and South
West of the missing proof of payment and to urged them to remedy the same by
return mail with their proof of payments before the closing date . The facts
demonstrated that no proof of payments were forthcomi ng, the omission remained
and these applications disqualified.
[8] It too is common cause that the respondent omitted to pay the full non -
refundable fee of ’ R4,118.00 in respect of each application it submitted before the
closing date. The respondent contents that this was done in error. However , proof
of such erroneous payment s did accompan y each application notice . The
Committee made no attempt to communicate with the respondent in any way to
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remedy the omission before the closing date as they had with PundaMaria FM,
Lakazi FM and South West .
[9] In consequence, the applicant disqualified the respondents’ applications on
the basis of their non -compliance with paragraph 14 . The respondent however,
after receiving notice of its disqualification and the reason, rectified the non -
compliance by paying the balance owing in respect of such fees [top-up fee] .
Notwithstanding the disqualification the applicant did not tender the repayment of
the top -up fee.
[10] The Court found that having regard to the wording of paragraph 14 of
schedule A and its application in particular , the actions taken by the Committee of
the applicant in respect of PundaMaria FM, Lakazi FM and South West before the
closing date compared to the inaction of the Committee in respect of the
respondents’ applications , the disqualifi cation based on the same paragraph 14 of
Schedule A was not only procedurally unfair on the facts but unreasonable . It was
unreasonable the court found having regard to the object of the ECA Act itself which ,
inter alia , is to regulate broadcasting in the public interest and to ensure fairness
and diversity of views broadly representing South African society, as required by
section 192 of the Constitution . On the facts, n o other applicants had applied for
licences in the territories applied for by the respondent . On th at basis as raised in
terms of section 6 Promotion of Administrative Justice Act, 3 of 2000 [PAJA] the
Court set aside the applicant’s decis ion to disqualify the applications and remitted it
back to the applicant for reconsideration.
GROUNDS OF REVIEW
[11] The applicant grounds of appeal are not specifically pegged on the Court’s
findings of procedur al unfairness nor unreasonableness brought in terms of PAJA
having regard to the common cause fact that the Committee sent a communique to
PundaMaria FM, Lakazi FM and South West before the closing date and the
reasons therefore. The thrust of the appeal lies as against the Courts regard of
sections 18(1)(a) and sections 31(7) of the ECA Act . The applicants too, did not
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raise a specific ground relating costs nor did it deal with the manner in which this
Court exercised is discretion regarding costs.
[12] Sections 18(1)(a) and sections 31(7) of the ECA Act i n context, was
considered by the Court as a means to test the applicant’s own assertion in its
pleading s that the ITP -R did not provide a discretion to condone a clear non -
compliance and , to the extent necessary, no other legislation which it was bound to
afford ed it such a discretion [the assertion]. The Court tested the assertion as
against the common cause facts and the applicant ’s own evidence. The applicant in
its answering affidavit confirmed that the communique was, inter alia , sent “ -to
satisfy itself of the payment status and if there had been compliance with the
requirement“
[13] Bearing the evidence in mind, if the assertion is correct and the Committee
sent the communication to remedy a non -compliance, then the a pplicant’s decision
must surely be unlawful and stands to be set aside . Notwithstanding the Court in an
attempt to t ested the veracity of the assertion consider ed the specific word ing of the
ITP-R, the ECA Act as invited to do by the applicant itself by the assertion and
applied it to the facts and the evidence .
[14] The applicant is now unhappy that the Court applied the ECA Act and in doing
so, confi ned its ground s of appeal on the basis that the Court’s err ed in considering
the provisions of the ECA Act , namely sections 18(1)(a) and sections 31(7), instead
of only “ -specified sections -“ of the ECA Act (namely only section 17, section 31(1)
and (2)) contending that the Court was bound to “specific terms or wordings of the
ITP-R-.” arguing that it was not open for the Court to consider other subsections of
31 and that it this went beyond the ITP -R and the pleadings . In so far as the Court
did consider sections 18(1)(a) and sections 31(7), the applicant stated that the Court
failed to adhere to the audi alteram partem principle to afford it an opportunity to
make further submissions.
[15] In considering section 31(7) the Court tried to ascertain if there as any
statutory justification for the applicant’s actions namely, the Committees
communication to PundaMaria FM, Lakazi FM and South West at that stage . In so
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doing the Court reasoned that such justification was to be found in terms of the
provisions of section 31(7). In considering section 18(1)(a) the Court tried to
ascertain the weight of the applicant’s assertion having regard to paragraph 19 in
the ITP -R guidelines . The Court found that the reverse was true , that the applicant
may refuse to accept a registration for a class licence if the registration did not
contain information prescribed by the applicant. In consequence the Court now
understood why the ap plicant included paragraph 19 in the ITP -R, namely to affirm
that it reserved its right to refuse in such circumstances.
[16] Having regard to the provisions of sections 18(1)(a) and sections 31(7) in
context, this Court found that the applicant’s assertion was flawed and rejected it.
In consequence, t he respondent’s argument based on paragraph 19 of schedule A
became plausible. The Court did not go beyond the wording of the ITP -R nor the
scope of the pleadings but tested both versions by applying the law and the ITP -R
to the common cause facts and the evidence.
[17] The applicant was the author of its own pleadings and argument , it made the
bald assertion and relied on it. The Court accepted , as it correctly should have , that
if the assertion was made under oath that the applicant must have made it having
regard to all legislation binding it , including the ECA Act. In that way, the Court
correctly accepted that the applicant had regard to all the applicable sections,
including all the relevant sections in the ECA Act. Furthermore paragraph 19 and
the respondent’s argum ent pertaining t hereto was fully ventilated and the applicant
remained steadfast with its assertion. No further submissions were required. in fact
the assertion remained a theme in argument at the hearing. Any suggestion that the
Court did not afford the applicant the audi alteram partem in these circumstances i s
misguided. The applicant gave no indication that its assertion was false or
misguided.
[18] Of further consideration sections 18(1)(a) and 31(7) assist ed the applicant in
that its Committees actions and the wording of the ITP-R appear within the
legislative purview but, what it can’t argue away is that it did not afford the
respondent the same courtesy when an omission was evident which, is procedurally
unfair, as reasoned .
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[19] The scope of the applicable sections for consideration of the pre -registration
notices of the ECA Act was not confined by the ITP -R, such ground is raised at
variance with the ITP -R itself . The Court was not prohibited from applying the ECA
Act and the regulations as it applied to the material facts .
[20] The Court considered the judicial review applying the provisions and grounds
raised in terms of PAJA and found that the decisions were to be set aside not
because of section 18(1)(a) and 31(7) but on the basis of the grounds of review
raised by the respondent in terms of PAJA as reasoned .
[21] Having considered the arguments, the grounds raised and revisiting the
reasoned judgment this Court is of the opinion that the applicant has not met the
threshold of Section 17(1)(a)(i) or (ii) of the Superior Courts Act 10 of 2013. The
application for leave to appeal must fail.
[22] As far as costs are concerned the Court is mindful that although the
respondent’s Senior Counsel did not argue the matter on the date of this hearing,
Junior Counsel submitted that his Senior was the author of the heads of argument.
Having regard thereto the costs of two Counsel are to be confined to circumstances
when de facto , both Counsel were employed to attend to an instruction /s, this
includes the appearance before this Court on the date of the hearing. The cost order
is to be applied having regard h ereto.
[23] The following order:
1. The application is dismissed with costs, such costs to include the costs of two
Counsel in so far as two Counsel were so employed, taxed on scale C
Appearances:
For the Applicant:
Instructed by attorneys :
For the Respondent
Instructed by attorneys : LA. RETIEF
Judge of the High Court
Gauteng Division
Adv T Motau SC
Cell: 082 337 0144
Email: tmotau@counsel.co.za
Adv M Musandiwa
Cell: 082 818 1589
Email: musandiwamr@rathog wa.co.za
Motsoeneng Bill Attorneys Inc.
Tel: 011 463 9401
Email: admin@mba incorporated.co.za
michael@mba i ncorporated .co .za
sylvia@mbaincorporated .co .za
botlhale@mbaincorporated .co.za
Adv FJ Labuschagne
Email: fjl@brooklynadvocates.co.za
Hurter Spies Inc
Tel: 012 941 9239
Email: spies@hurterspies.co.za 9
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marjorie@hurterspies.co.za
Date of hearing : 12 March 2025
Date of judgment : 3 April 2025