Trinity Broadcasting, Ciskei v Independent Communications Authority of SA (56/2003) [2003] ZASCA 119; [2003] 4 All SA 589 (SCA) (21 November 2003)

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Trinity Broadcasting, Ciskei v Independent Communications Authority of SA (56/2003) [2003] ZASCA 119; [2003] 4 All SA 589 (SCA); 2004 (3) SA 346 (SCA) (21 November 2003)

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 56/2003
In the matter between
TRINITY BROADCASTING, CISKEI
Appellant
and
INDEPENDENT COMMUNICATIONS AUTHORITY OF SA
Respondent
________________________________________________________________________
CORAM: HOWIE P, SCOTT, MTHIYANE, BRAND JJA et MOTATA AJA
________________________________________________________________________
Date Heard:
3 November 2003
Delivered:
21 November 2003
Summary
: Judicial review – rationality test –
community television licence
conditions
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE P
[1] The appellant is the sole licensed community
television broadcaster in South Africa. It has been so since 1986.
Its designated
area of operation was initially the former ‘homeland’
territory of Ciskei. Later it was extended to include the adjacent
territory
of Transkei. In November 2000 the appellant applied to the
respondent, the Independent Communications Authority of South Africa,
for renewal of its licence for four years. Encompassed by the
application was the request that the appellant’s area of operation
be extended to include the Nelson Mandela metropole comprising Port
Elizabeth, Uitenhage and Dispatch. The application was eventually
granted, with effect from 22 April 2002. However, the new licence
was subject to a number of conditions which had not been imposed
before. In addition, the broadcast area remained restricted to the
Ciskei and Transkei regions.
[2] The appellant applied in the High Court at
Johannesburg for the review of certain of the conditions and their
substitution by
appropriate conditions imposed either by the court or
by the respondent upon remittal. The matter was heard by Jajbhay J
who dismissed
the application but granted leave for this appeal.
The judgment of the Court
a quo
is reported in
2003 (5) SA 97.
[3] The appellant is an association not for gain,
incorporated in South Africa at the instance of its parent
organisation which is
based in the United States of America. The
appellant has always been predominantly funded by that organisation.
The appellant
operates a Christian television service known as
Trinity Broadcasting Network. Its broadcast rights were originally
acquired in
terms of the laws of the so-called independent states of
Ciskei and Transkei. After 1994 statutory provisions, including some
specifically
for the appellant’s benefit, enabled it to continue as
a licensed broadcaster until the time of the application presently in
issue.
[4] The respondent was established under the Independent
Communications Authority of South Africa Act 13 of 2000 (the ‘ICASA
Act’)
with effect from 1 July 2000. It is in all relevant respects
the successor to the Independent Broadcasting Authority (‘the IBA’)
established under the Independent Broadcasting Authority Act 153 of
1993 (‘the IBA Act’). The respondent is now the body responsible
for regulating broadcasting countrywide and must, among other things,
perform the duties imposed, and exercise the powers conferred,
upon
the IBA by the IBA Act. In terms of s 21(2) of the ICASA Act any
order ruling or direction of the IBA is deemed to have been
given by
the respondent.
[5] The object of the ICASA Act is, in terms of s 2, to
establish an authority that regulates broadcasting in the public
interest,
ensures fairness and diversity of views broadly
representing South African society and achieves the objects
contemplated in, among
other statutes, the IBA Act.
[6] Section 2 of the IBA Act, in turn, states that its
objects are to
‘(a) promote the provision of a diverse range of sound and
television broadcasting services on a national, regional and local
level which, when viewed collectively, cater for all language and
cultural groups and provide entertainment, education and
information;
(b) promote the development of public, commercial and community
broadcasting services which are responsive to the needs of the
public;
(c) ensure that broadcasting services, viewed collectively –
(i) develop and protect a national and regional identity, culture
and character;
(ii) provide for regular –
(aa) news services;
(bb) actuality programmes on matters of public interest;
(cc) programmes on political issues of public interest; and
(dd) programmes on matters of international, national, regional and
local significance;
(d) protect the integrity and viability of public broadcasting
services;
(e) ensure that, in the provision of public broadcasting services –
(i) the needs of language, cultural and religious groups;
(ii) the needs of the constituent regions of the Republic and local
communities;
and
(iii) the need for educational programmes,
are duly taken into account;
(f) encourage ownership and control of broadcasting services by
persons from historically disadvantaged groups;
(g) encourage equal opportunity employment practices by all
licensees;
(gA) promote the empowerment and advancement of women in the
broadcasting services;
(h) ensure that broadcasting services are not controlled by foreign
persons;
(i) ensure that commercial and community broadcasting licences,
viewed collectively, are controlled by persons or groups of persons
from a diverse range of communities in the Republic;
(j) impose limitations on cross-media control of commercial
broadcasting services;
(k) promote the most efficient use of the broadcasting services
frequency bands;
(l) ensure that public broadcasting licensees, commercial
broadcasting licensees and signal distribution licensees comply with
internationally
accepted technical standards;
(m) ensure that broadcasting signal distribution facilities are made
available in respect of all licensed broadcasting services;
(n) refrain from undue interference in the commercial activities of
licensees, whilst at the same time taking into account the
broadcasting
needs of the public;
(o) ensure fair competition between broadcasting licensees;
(p) promote and conduct research into broadcasting policy and
technology;
(q) encourage investment in the broadcasting industry;
(r) promote the stability of the broadcasting industry;
(s) ensure equitable treatment of political parties by all
broadcasting licensees during any election period;
(t) ensure that broadcasting licensees adhere to a code of conduct
acceptable to the Independent Broadcasting Authority; and
(u) encourage the provision of appropriate means for disposing of
complaints in relation to broadcasting services and broadcasting
signal distribution.’
[7] These, then, subject to some changes which are
presently irrelevant, were the statutory criteria to be considered by
the relevant
authority in relation to all licence applications made
by the appellant since the inception of the IBA Act.
[8] It is pertinent by way of further background to
refer to some of the appellant’s earlier licence or licence related
applications
and the relevant authority’s responses.
[9] When the appellant applied for its previous licence
in December 1996 it sought extension of the broadcast area to cover
the entire
province of the Eastern Cape, its reason being that the
existing broadcasts were confined to impoverished communities who
could offer
the appellant’s primary fundraising efforts, by way of
voluntary donations, little, if any, enhancement. To become
self-supporting
it therefore wanted access to the more affluent
population in the Port Elizabeth – Uitenhage area.
[10] The licence was granted but the extension refused.
The reason given for the refusal was that broadcast frequencies,
especially
those necessary for television, were a scarce national
resource and the IBA had not yet finalised policies and regulations
in respect
of any private or community television services. The
authority went on to express the view that it was not possible at
that stage
to grant a community television licence for an extended
area until policies on community television were in place. That was
in August
1997.
[11] The application for the area extension had been
coupled with an application for extension of broadcast time.
Dissatisfied with
the IBA’s response in that regard as well, the
appellant pursued its quest for more area and time. By letter in
September 1998
the IBA conveyed its resolution to allow more time
but, again, no area extension. In both respects it relied on the
absence of policies
on community television as well as the
recommendations of a then current White Paper on Broadcasting Policy.
[12] In February 1999 the appellant applied for an
amendment of its licence conditions. It had all along been using its
assigned
channel – channel 24 – and now wished to use channel 49,
which the IBA had already earmarked for community television, and
which
would enable it to broadcast into the greater Port Elizabeth
area. In making this application the appellant undertook that if the
channel was needed by another broadcaster the appellant would cease
using it. The application was refused but no reasons were given
for
the refusal.
[13] In October 2000 the president of the appellant’s
parent organisation wrote to President Mbeki asking that he support
the appellant’s
efforts to broadcast more widely. That letter was
answered by the respondent’s chair in January 2001. He explained
that there
was no developed policy on licences for community
television but that an enquiry into the issue would be held in the
2001/2002 financial
year and that the policy process could not be
pre-empted by increasing the appellant’s broadcast area at that
stage.
[14] In the meanwhile, on 14 November 2000, the
application now in issue was submitted to the respondent. It was
followed by a letter
to the respondent written by the Premier of the
Eastern Cape, the Rev M.A. Stofile, expressing his and the provincial
government’s
strong support for the application and especially the
appellant’s endeavours to broadcast in the Port Elizabeth area.
[15] A formal hearing in respect of the application was
held before a panel of councillors of the respondent at East London
on 25
April 2001 at which the appellant’s case was orally
presented. A transcript of what was said there is contained in the
appeal
record. During the proceedings the panel invited later
written submissions from the appellant regarding the subject of the
area
extension. Subsequent correspondence between the parties is
also before us in which answers were provided to various questions
posed
by the respondent as to
inter alia
the appellant’s
structure and broadcast service. I shall refer to the relevant
contents of the transcript and the correspondence
in due course where
relevant.
[16] The appellant was notified of the grant of the new
licence by letter dated 29 November 2001 which contained the
following:
‘We refer to previous correspondence herein and are pleased to
advise that the Council of the Authority has resolved to grant to
Trinity Broadcasting Network a Community Television Broadcasting
Licence. The broadcasting licence will be subject to certain
specific
conditions that are based on the representations made and
undertakings given by Trinity Broadcasting Network to the Authority
and
which inter alia reflect the spirit and ethos of the
Broadcasting
Act No. 4 of 1999
.
We are in the process of finalising the licensee’s
new
licence conditions. These will be furnished to you in due course.’
[17] The conditions were conveyed under cover of a
letter dated 19 April 2002 containing the following sentence:
‘Some of the members of the [respondent’s] Council are not
available to adopt and finalise the reasons due to other pressing
matters of the authority.’
Shortly afterwards the respondent furnished reasons for
imposing the conditions.
[18] In the application before the Court below there was
a general review ground based on the passage quoted above from the
respondent’s
letter of 19 April 2002 and there were individual
grounds aimed at certain specific conditions.
[19] Before dealing with the review grounds in issue it
is appropriate to refer to the standard of review of administrative
action
which must be applied in deciding this appeal. Section 33(1)
of the Constitution (the Constitution of the Republic of South Africa
Act, 108 of 1996) affords everyone the right to administrative action
that is lawful, reasonable and procedurally fair. Section
33(3)
demands the enactment of national legislation to give effect
inter
alia
to that right. Such legislation exists in the shape of the
Promotion of Administrative Justice Act 3 of 2000
.
Section 6(2)
confers the power to review administrative action judicially if
‘ …
(f) the action itself –
(i) …
(ii) is not rationally connected to –
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
…
(h) the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or performed
the function; or
(i) …’
[20] In requiring reasonable administrative action the
Constitution does not, in my view, intend that such action must in
review proceedings
be tested against the reasonableness of the merits
of the action in the same way as in an appeal. In other words it is
not required
that the action must be substantively reasonable, in
that sense, in order to withstand review. Apart from that being too
high a
threshold, it would mean that all administrative action would
be liable to correction on review if objectively assessed as
substantively
unreasonable: cf
Bel Porto School Governing Body
and Others v Premier, Western Cape and Another
1
.
As made clear in
Bel Porto
, the review threshold is
rationality
2
.
Again, the test is an objective one, it being immaterial if the
functionary acted in the belief, in good faith, that the action
was
rational
3
.
Rationality is, as has been shown above, one of the criteria now
laid down in
s 6(2)(f)(ii)
of the
Promotion of Administrative Justice
Act. Reasonableness
can, of course, be a relevant factor but only
where the question is whether the action is so unreasonable that no
reasonable person
would have resorted to it (see
s 6(2)(h)).
[21] We were invited by the respondent’s counsel to
adopt, instead of rationality, the test of perversity in the sense,
so suggested
counsel, of utter irrationality. In this regard
reliance was placed on the respective passages in
Attorney-General
(on the relation of McWhirter) v Independent Broadcasting Authority
[1973] 1 All ER 689
(CA) at 706e and
R v Radio Authority, ex
parte Bull and another
[1997] 2 All ER 561
(CA) at 578 a-b.
The first formulates the following test:
‘was [the authority’s] decision … one which no reasonable
authority could have made? In simpler terms, did they make a
perverse
decision?’
The second reads
‘The task of a supervisory court in a case of this kind is not to
concern itself with the merits of the decision … unless that
decision can be properly stigmatised as perverse or utterly
irrational.’
A reading of those cases reveals that the review ground
involved was that of unreasonableness, as developed and expounded in
the leading
English case of
Wednesbury Corporation
4
.
The passage quoted from the second of the two cases cited by counsel
is contained in the judgment of Brooke LJ. In the judgment
of Aldous
LJ at 577 h the test is put as follows:
‘Is the decision so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied
his
mind to the question to be decided could have arrived at it?’
It is clear that the standard expressed in those cases
approximates, to all intents and purposes, to the one constituted by
s 6(2)(h)
of the
Promotion of Administrative Justice Act. The
word
‘perversity’ may be appropriate (I need express no opinion on the
subject) to the standard set by
s 6(2)(h)
and
Wednesbury
Corporation
but it has no bearing on the rationality test set by
s 6(2)(f)(ii)
and explained in
Pharmaceutical Manufacturers,
Bel Porto
and
Carephone
. It is the latter test with which
we are concerned in the present case. In the application of that
test the reviewing court will
ask: is there a rational objective
basis justifying the connection made by the administrative decision
maker between the material
made available and the conclusion arrived
at?
5
[22] I shall proceed now to consider the various review
grounds and the facts material to them.
[23] The first review ground challenges all the
conditions on the basis of the quoted contents of the respondent’s
letter of 19
April 2002
6
.
The appellant alleges in its founding affidavit that the passage
concerned reveals, as a fact, that the conditions could not have
been
properly considered and determined because reasons were to be adopted
and finalised after their imposition. The respondent’s
answer is
to deny that the fact that the written reasons post-dated the
conditions indicates that the conditions were not properly
determined
or that all councillors did not apply their minds to the conditions.
In addition, the respondent describes its usual
procedure whereby it
formulates conditions at the time of deciding to grant a licence but
only finalises its written reasons later.
The appellant’s reply
points out that the respondent fails to allege that the usual
procedure was followed in this instance.
Given this factual
dispute, counsel for the respondent argued that, apart from others
considerations, the appellant’s success
was barred by the
application of the
Plascon Evans
rule.
[24] I think that the quoted sentence on which the
appellant relies for proving a reviewable irregularity is slender
material indeed.
Everything depends on the construction of just a
few words. It was not contended that there was anything amiss in
giving written
reasons later. The question is whether the words
show that no reasons existed at the time of the decision, or no
reasons that had
been agreed on by all the councillors. Firstly, it
is contextually important to point out that the immediately following
sentence
reads:
‘We shall be pleased if (you) would grant us an indulgence to
furnish you with the said reasons for Council’s decision on or
before 30 April 2002.’
Reading the two sentences together, it is clear enough
that the reasons to be furnished existed, even if not finally
formulated, when
the decision was made granting the licence and
imposing the conditions. At least the earlier sentence is capable of
bearing that
meaning read in isolation. Consequently, even assuming
in the appellant’s favour that the respondent’s denials were not
sufficiently
specific to attract advantage from the
Plascon Evans
rule, this ground of review was not established.
[25[ The first individual condition attacked is that
which limits the broadcasting area. The respondent’s reasons for
refusing
the requested extension may be summarised as follows. Until
policies on community television had been implemented it was the
respondent’s
view that it was not possible to extend the
appellant’s broadcast area. The same attitude had been taken in
1997 and no new reasons
or argument compelled a different response.
The shortage of frequencies would be dealt with in a position paper
on community television.
There had to be orderly frequency
management in the public interest and the respondent needed to
compile a frequency plan in order
to identify frequencies,
particularly for regional community television.
Ad hoc
concessions to the appellant would impair the planning of such
management and a proper assessment would probably first necessitate
enquiry in all relevant regions.
[26] In this Court counsel for the appellant submitted
that the refusal breached the respondent’s statutory duty to
promote community
television; that there was no rational link between
the absence of an existing policy on community television and
maintaining the
appellant’s area restriction; and that inviting
further submissions on area while persisting in its anti-extension
view showed
bad faith on the respondent’s part. Counsel said that
respondent was adhering blindly to the absence of a broadcast policy
when
such absence was due to its own failure to act with responsible
expedition. The respondent could, so it was argued, have allowed
the
appellant to broadcast to the Port Elizabeth region for the period of
the new licence on the same condition that had been offered
by the
appellant in relation to its request to use Channel 49. This was
that if it was eventually decided to grant some other broadcaster
the
licence to broadcast in the Mandela metropole area, the appellant
would terminate broadcasts to that region.
[27] Dealing with those submissions in the same order in
which I have summarised them, it is not, in my opinion, contrary to
the respondent’s
statutory duty that it intends to work towards the
establishment of a broadcasting policy in terms of which licences and
frequencies
will be dealt with in an orderly way and with the
advantages inherent in its having undertaken an overall assessment of
the public’s
needs and interests in all the relevant regions of the
country. The appellant, through nobody’s fault, finds itself in an
historically
advantaged position as the only community television
broadcaster. It would make good sense, and be fair to the appellant,
to let
the
status quo
remain in the interim, but it would be a
rational approach for the respondent eventually to allocate community
television licences
only on considered implementation of its eventual
policy and after evaluating the respective capacities of the aspirant
broadcasters
who will no doubt compete for those opportunities.
[28] As to a rational link between the current absence
of a policy and the maintenance of the
status quo
, this has
partly been dealt with in what I have just said. In addition, there
can be no doubt that if the appellant were to be allowed
to broadcast
in the Mandela metropole area
pro tempore
it would entail
financial outlay for the appellant which would occasion complications
in the unravelling process were the eventual
licensee under the newly
established policy to be some other broadcaster. It would not be a
situation from which one envisages the
appellant simply walking away.
It is readily imaginable that the appellant, in future competition
with others, would want to emphasise
the fact of its already incurred
expenditure and its established viewership in an endeavour to enhance
its own chances of obtaining
the licence. This is not what a
responsible authority, acting rationally, would want to cope with if
it sought to select a licensee
for the Port Elizabeth region at that
future stage on the basis of performances on a level playing field.
[29] As regards bad faith, the invitation to the
appellant at the East London hearing to advance additional
submissions on the present
topic runs counter to any possible
inference of bad faith. Despite its view in the earlier years that
the absence of an overarching
policy warranted refusal of the area
extension, the respondent’s invitation to make further submissions
was indicative of a preparedness
to ascertain whether changed
circumstances might not warrant an extension after all. Its
readiness to entertain further representations
also disposes, in my
view, of the blind adherence argument.
[30] It is true that the respondent has had since 1994
to formulate a broadcasting policy and has not yet done so but its
explanation
is that its attention has had to be given to other
matters which in its assessment warranted priority. Provided the
respondent acts
within the boundaries set by the applicable
legislation, it is entirely its decision what matters get priority
and how and when to
focus on community television. It has not been
suggested that, reasonably viewed, it could have progressed more
quickly. The delay
in policy formulation is therefore not a factor
which advances the appellant’s case.
[31] For the reasons given I consider that the refusal
to extend the broadcast area was a rational decision and that this
ground of
review must fail.
[32] Before moving on to the next ground it is
appropriate to refer to the letter of support expressed by the
Premier of the Eastern
Cape for the appellant’s entry into the Port
Elizabeth area. There is also in the record a letter of support
addressed by the
Speaker of the Eastern Cape Legislature. (The
appellant was irritated by the respondent’s patently incorrect and
dismissive reference
in the papers to the writers as ‘government
officials’ but be that as it may.) The letters were not written
solely in the writers’
respective personal capacities but very
obviously also on behalf of the provincial government. Admittedly one
does not know, if there
had been a competing application, whether the
government of the Eastern Cape would in that instance have supported
one candidate
above another but in my view it is not acceptable that
government support should be given or even expressed in applications
such
as this. The relevant legislation declares the respondent to be
an independent arbiter and it must be left to act independently,
without governmental pressure, real or apparent, of any kind. If, in
time, community television is the subject of an implemented
policy
and there are competing licence applications to broadcast in the
Mandela metropole area none of the competitors should be
burdened, or
advantaged, by past or present government support for one of them.
[33] The next condition to be considered is that
requiring the appellant to broadcast in English for no more than 50%
of the broadcast
period, in isiXhosa for no less than 20% and in
Afrikaans for no less than 20%. The reason given by the respondent
for the imposition
of this condition is that the appellant gave an
undertaking to that effect.
[34] At the hearing at East London the appellant’s
Director of Operations explained that its programme make-up was 75%
foreign –
all in English – and 25% local content and that making
local programmes was extremely expensive. In its letter of 3 May
2001 the
respondent required ‘in clear measurable terms Promise of
Performances (sic)’ in various respects. One was:
‘Kindly specify what would be the maximum on foreign programming.
What is the proposed language breakdown of the broadcasting
service?’
The answer contained in the appellant’s reply of 16
May 2001 was:
‘75% on foreign programming, 50% English, 30% Xhosa, 20%
Afrikaans.’
(This exchange presumably reflected the undertaking
referred to.)
[35] Counsel for the respondent defended the imposition
of the condition on the basis that it reflected the appellant’s
answer to
a direct question, alternatively, the respondent’s
understanding, which was not irrational, of the meaning of the
answer. Significantly,
counsel did not rely on the suggestion in the
respondent’s opposing affidavit that it would not be unreasonable
for the respondent
to assume that even if 75% of programming was
foreign, some of the foreign programmes could be dubbed into
Afrikaans or isiXhosa.
It seems to me that this suggestion was
opportunistic. There is no allegation in the papers that the
respondent did so assume.
Dubbing was not raised at the hearing or in
any exchange of letters.
[36] Apart from the fact that there is correspondence in
the record which shows that the 50:30:20 language breakdown applied
to local
content only and that local content constituted 25% of
appellant’s programmes, there is no feasible basis on which the
respondent
could possibly have thought (absent dubbing) that foreign
programmes would be in isiXhosa or Afrikaans. It is unnecessary,
however,
to pursue the question as to what the respondent’s
understanding might have been. The reason for the condition was
simply that
the appellant gave a specific undertaking. It did no
such thing. Its answer was perhaps thoughtlessly compiled and the
respondent
would have been justified in requiring clarification but
there is, in my view, no rational connection between the condition
and the
information before the respondent. This ground of review
must therefore succeed.
[37] The condition to be considered next is one
requiring the appellant, after the first six months of the licence
period, to ‘broadcast
during prime time, at least 10 minutes of
news packaged as a single programme daily’. The respondent’s
reasons do not deal with
this condition at all. In the respondent’s
opposing affidavit, however, the deponent, Mr Ncetezo, a councillor
of the respondent,
states that the authority is required to ensure
that broadcasting services provide for regular news services and that
the appellant
is not exempt. In particular, the deponent bases this
approach on the provisions of s 2(c) of the IBA Act. The Court
a
quo
relied on that reasoning in holding against the appellant on
this issue.
[38] At the East London hearing the question of a news
broadcast was raised. The appellant’s representatives said then
that it
did not have a specific news ‘spot’ such as that of the
SABC which gave the latest news of the day. What it did was to focus
on national and regional news in its community programmes.
[39] The appellant was later asked in the respondent’s
letter of 3 May 2001
‘How much time will the service set aside for News? What provision
will you make for newsgathering? What staff do you propose
to
engage? And whether there is a budget set aside for news. The
Applicant to provide the Authority with a clear commitment to
generate its own news.’
[40] The appellant’s response in its letter of 16 May
2001 was that it was not clear to it what the respondent meant by
news as
opposed to own news. It said that on its understanding of
news, most of its local content programmes contained news but largely
community news.
[41] Subsequently the respondent indicated that what it
wanted to know was whether the appellant had its own reporters and
own news
department. The appellant did not answer this query but the
information before the respondent showed clearly enough that the
appellant
is a small organisation, with a staff of only 11 people and
a limited budget, and that what news it broadcast was included in
local
community programmes.
[42] The respondent’s conclusion in respect of all
this is stated in the opposing affidavit to be that the appellant
failed to make
a commitment to provide news in its programming and
that the respondent was entitled to impose a condition not
inconsistent with
the IBA Act.
[43] In my opinion the respondent took a misdirected
view of the facts and of relevant provision of the IBA Act. The
appellant did
not fail to make a commitment to provide news in its
programming. It said that it had provided, and would go on
providing, regional
news in its community based local content
programmes. Moreover, s 2(c) of the IBA Act does not require every
broadcaster to have
a programme specifically devoted to news. All it
must do as regards news is to ensure that all existing broadcasting
services, ‘viewed
collectively’, provide for regular news
services. It follows that the condition in question was not
rationally connected to the
empowering provision or the information
before the respondent. The review on this point ought therefore
also to have succeeded.
[44] The penultimate challenge launched by the appellant
relates to two conditions concerned with employment equity. It is
convenient
to deal with them together. They required that within
three days, that is to say by 22 April 2002 (the conditions
having been
conveyed to the appellant on 19 April) 40% of its
employees at all levels had to be from historically disadvantaged
backgrounds
and 40% had to be women. The only relevant comment in
the respondent’s reasons in this respect is that the appellant
‘currently
has a small staff complement’.
[45] The relevant exchanges in the correspondence
contain the following. In a letter of 20 September 2001 the
respondent said
‘The applicant is further requested to stipulate (again as a
measurable promise of performance) how it proposes to ensure that
the
following structures: management, programme committee and any other
committees it may establish, are representative of the demographics
of its community in the coverage area’.
The answer by letter of 17 October 2001 was this
‘Our client undertakes to have a minimum of 40% of the composition
of the various structures referred to in your [letter] from
members
of previously disadvantaged groups. There are certain areas however
(particularly technical) where this will be difficult
initially.’
[46] The respondent’s approach to that undertaking and
to the appellant’s objection to the conditions, is revealed in its
opposing
affidavit. As far as the respondent is concerned the three
day compliance period was inconsequential; the appellant had not set
a time frame and once it gave the undertaking it did, it was required
to comply with it.
[47] The grant of the licence was made known to the
appellant in November 2001 but the conditions were only conveyed on
19 April 2002.
In these circumstances it was misplaced for the
respondent to think that the appellant would take measures in the
interim that
might not be required at all or that might be different
from any that might eventually be required. The three day compliance
period
is therefore not objectively understandable. Nor was it based
on anything that could be inferred from the appellant’s
representations.
In addition, the appellant’s limitation of the
undertaking to certain structures, and its reservation that there
would be difficulty
implementing it initially as regards technical
personnel, were both ignored by the respondent. In any event, apart
from those considerations,
the respondent sought to hold the
appellant to an undertaking it did not actually give.
[48] It must follow that the conditions were not
rationally linked to the conditions under discussion and that this
review ground
ought to have been upheld.
[49] By reason of the last condition under attack, the
appellant is obliged to spend R2 000 per staff member per year on
training.
The issue of training was merely mentioned, in
non-specific terms, at the East London hearing. Later, in its letter
dated 17 October
2001 the appellant said it performed in-house
training and external training. The latter was performed at the
appellant’s expense
but did not yet apply to cleaning and
maintenance staff. The relevant passage ended with the sentence –
‘Our client budgets a minimum of R2 000,00 per person per year of
training’.
The appellant maintains that this expenditure relates
only to external training and that its letter conveyed as much.
[50] Counsel for the respondent argued that whatever the
appellant intended to say, the respondent was reasonably entitled to
construe
the letter as meaning that that sum would be expended on all
staff. This submission cannot prevail. It is not a question of what
was reasonably to be understood. The opposing affidavit does not
allege that the respondent relied on its own interpretation. From
what the deponent says it is plain that the respondent arrived at R2
000 per staff member entirely on the face value of what it calls
the
appellant’s undertaking in the letter of 17 October 2001. The fact
is that no such undertaking is contained in the letter.
What it sets
out is a summary of the appellant’s training activities and the
express statement that external training does not
apply to all staff.
Once again there is no factual basis for saying that the supposed
undertaking was given and therefore there
is no rational connection
between the information placed before the respondent and the
condition is question. Here, too, the review
application ought to
have succeeded.
[51] The conditions which therefore fall to be set
aside, according to the numbering in the Schedule containing the
licence conditions,
are 11, 15, 22.1, 22.2 and 22.7.
[52] By the end of the hearing before us counsel for the
parties were agreed that reconsideration and substitution of the
conditions
that had to be set aside entailed an exercise more
properly to be performed by the respondent than by this Court.
[53] As to costs, it was urged on behalf of the
respondent that the appellant’s success only on some of the grounds
involved in
the appeal would warrant an evaluation of the weight of
each ground so as to determine an appropriate order as to costs of
appeal
and costs in the Court below. Counsel for the respondent
sought to contend in this regard that the area question was really
the
focal point in the case and that the respondent’s success on
that issue should materially influence the making of a fair costs
order.
[54] There is no doubt that the matter of the
broadcasting area has all along been of major importance but none of
the conditions
to be set aside now were conditions in earlier years
or even seriously mooted before their imposition. Until they were
conveyed
to the appellant on 19 April 2002 they could not have been
as much debated or as contentious as the matter of area. What is
more,
there is no indication in the papers that had the area issue
fallen away in this case the respondent would probably have conceded
any of the other grounds in either Court. In addition, the language
condition could only be achieved by dubbing foreign programmes
into
Afrikaans and isiXhosa. The record reveals that this would involve
the appellant in expenditure of a sum four times its annual
budget.
Compliance would put the appellant out of business. A specific news
programme would also entail substantial expenditure.
[56] In all the circumstances I am satisfied that the
success which the appellant has achieved in the appeal makes it
appropriate
to award it the costs of appeal and the costs in the
Court below.
[56] The following order is made:
1. The appeal is allowed with costs, including the costs
of two counsel.
2. The order of the Court
a quo
is set aside and
substituted for it is the following.
‘1. The application is allowed with costs including
the costs of two counsel.
2. In the Broadcasting Licence Conditions contained in
Schedule A to the respondent’s letter to the appellant’s
attorneys
dated 19 April 2002 the following conditions are
set aside:
2.1 Condition 11
2.2 Condition 15
2.3 Condition 22.1
2.4 Condition 22.2
2.5 Condition 22.7
3. The matter is referred back to the respondent to
consider and impose substitute conditions, where deemed appropriate,
after receipt
of such representations as the appellant may wish to
make.’
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL
CONCURRED
:
Scott
JA
Mthiyane
JA
Brand
JA
Motata
AJA
1
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at 282-3
[46]
; and
Carephone (Pty) Ltd v Marcus NO and Others
1999 (3) SA 304
(LAC) at 315 [31] and [32]
2
At 292 [89].
3
Pharmaceutical Manufacturers Association of
SA and Another: In re: Ex parte President of the Republic of South
Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at 708
[86]
4
Associated Provincial Picture Houses Ltd v
Wednesbury Corporation
[1947] EWCA Civ 1
;
[1947] 2 All ER 680
,
[1948] 1 KB 223
(CA).
5
Carephone (Pty) Ltd v Marcus NO and Others,
supra, at 316
[37] (1998) 19 ILJ
1425; 1998 (10) BCLR 1326
read with the
provisions of s 6(2)(f)(ii)
6
Para [17] above