THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no:1133/2023


In the matter between:

INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA FIRST APPELLANT
DR CHARLEY LEWIS N O SECOND APPELLANT
MKETHELENI GIDI N O THIRD APPELLANT

and

OPEN HEAVEN COMMUNITY RADIO RESPONDENT
SOUTH AFRICAN COMMUNITY RADIO
ORGANISATION AMICUS CURIAE

Neutral citation: Independent Communications Authority of South Africa and
Others v Open Heaven Community Radio and Others
(1133/2023) [2024] ZASCA 117 (12 August 2025)
Coram: DAMBUZA and MBATHA JJA and DOLAMO AJA
Heard: 20 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand-down of the judgment is deemed
to be 11h00 on 12 August 2025.

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Summary: Electronics Communications Act 36 of 2005 – whether the Independent
Communications Authority of South Africa ( ICASA) has statutory powers to entertain
a notice of renewal of a class broadcasting licence submitted outside the period
stipulated under s 19(2) of the Electronics Communications Act 36 of 2005 – whether
the respondent’s class broadcasting licen ce was retrospectively and automatically
extended by a period of two years by an amendment to the Standard Terms and
Conditions Regulations for Class Licenses which came into effect on 25 March 2021.

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___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from : Gauteng Division of the High Court , Pretoria (Janse van
Niewenhuizen J, sitting as court of first instance):
1 The appeal is dismissed.
2 The cross-appeal is upheld.
3 The order of the high court is set aside and substituted with the following order:
‘(i) it is hereby declared that in terms of regulation 4 of the regulations
published in Government Notice 44328 of 25 March 2021, the period of validity
of a Class Broadcasting Service Licence is seven (7) years from the effective
date.
(ii) it is hereby declared that the applicant’s Class Broadcasting Service
Licence was valid for a term of seven (7) years from the effective date.
(iii) the respondent is ordered to pay the applicant’s costs of the application.’
4 The appellant is ordered to pay the costs of the appeal and cross appeal. Such
costs to include the costs of the employment of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Dolamo AJA (Dambuza and Mbatha JJA concurring):

Introduction
[1] This is an appeal and a cross appeal emanating from the Gauteng Division of
the High Court, Pretoria (the high court). The appeal is against the judgment and order
of the high court declaring that in terms of s 19(2) of the Electronic Communications
Act 36 of 2005 (ECA), the first appellant, the Independent Communication Authority of
South Africa (ICASA),1 has the legislative power to condone a late submission of a
notice of renewal of a broadcasting licence. The high court then remitted to ICASA for
determination the respondent’s late notice of renewal of a broadcasting licence which
ICASA had refused to consider. The cross -appeal is against the dismissal of an

ICASA had refused to consider. The cross -appeal is against the dismissal of an

1 In the high court ICASA was cited together with two of its officials as the first, second and third
respondents. In this appeal they are first second and third appellants.

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application by the respondent, Open Heaven Community Radio (Open Heaven), for a
declarator that the validity of its broadcasting licence was extended from five years to
seven years. Open Heaven is also appealing the adverse costs order made against it
by the high court. The appeal and cross appeal are with the leave of the high court.

Background
[2] ICASA is a statutory body, established in terms of s 3 of the Independent
Communications Authority of South Africa Act 13 of 2000 (ICASA Act), ‘to regulate
broadcasting in the public interest and to ensure fairness and a diversity of views
broadly representing the South African society ’, as provided in s 192 of the
Constitution.2 In terms of s 4 of the ECA, ICASA may make regulations regarding any
matter which, in terms of the ECA, or related legislation, must or may be prescribed,
governed, or determined by regulation. In this respect ICASA may make regulations
regarding applications for and the grant, amendment, renewal, transfer or disposal of
licences or any interest in a licence. In terms of s 19(2) of the ECA, class licensees
seeking to renew their class licences must, in writing and not less than six months
prior to the expiration of their class licences, notify ICASA of their intention to continue
to provide the services.

[3] Open Heaven is the holder of a class community sound broadcasting service
licence3 granted to it by ICASA in terms of s 5 of the ECA. The licence was originally
granted on 12 September 2012 and was renewed on 26 May 2017, with an effective
date of 12 September 2017 and an expiry date of 11 September 2022. ‘Effective date’
is defined in the Process and Procedures Regulations for Class Licences promulgated
in terms of s 4(2) of the ECA and published in Government Notice No 525 of 2010
(2010 regulations) to mean the date specified in the licence which may be a past,
present or future date from the date of signature.

present or future date from the date of signature.

[4] In terms of the 2010 regulations the period of validity of a class community
sound broadcasting licence was five years. During the currency of Open Heaven’s
2017 licence, on 25 March 2021, the period of validity of that type of licence was

2 See s 2(a) of the ICASA Act.
3 Broadcasting service licence means a licence granted by ICASA to a person in terms of s 5(2) (b) or
s 5(4)(b) of the Electronic Communications Act 36 of 2005.

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amended to seven years in terms of regulations published in Government Notice
44328 of 25 March 2021 (the 2021 regulations). The amended regulations provide as
follows:
‘4. DURATION OF THE LICENCE
(1) The following licences are valid for seven (7) years from effective date:
(a) Community Sound Broadcasting Service;
(b) Community Television Broadcasting Service;
(c) Community Low Power Broadcasting Service; and
(d) Commercial Low Power Sound Broadcasting Service.’

[5] During November 2021 Open Heaven started experiencing governance
challenges which affected the smooth running of its affairs. These challenges made it
difficult for it to comply with its licence obligations and the applicable regulatory
framework. As a result, it sought advice from ICASA on how to regularise its affairs.
ICASA advised Open Heaven to hold an Annual General Meeting (AGM) for purposes
of, inter alia, electing a new and properly constituted board. The board would enable
Open Heaven to comply with its constitution as well as with ICASA’s regulations. Acting
on this advice Open Heaven made preparations to hold its AGM on 26 March 2022.
Before the AMG could be held ICASA advised Open Heaven, in a letter dated 23 March
2022, that it (Open Haven) had failed to renew its licence timeously and that it had to
cease broadcasting on 11 September 2022. Notwithstanding th at letter ICASA still
wrote to Open Heaven requesting the minutes of the AGM and other related
information, which the latter duly furnished.

[6] On 30 March 2022, Open Heaven gave notice in the prescribed manner for the
renewal of its licence, but ICASA refused to accept the application. This was on the
ground that the application was out of time, precisely 14 days out of the six month
period within which it should have been filed. On 15 June 2022 , Open Heaven wrote
to ICASA pleading for condonation of the late filing of its renewal notice. ICASA’s
response was that it has ‘no legislative authority or regulatory discretion to condone

response was that it has ‘no legislative authority or regulatory discretion to condone
non-compliance in the event that a licensee fails or has failed to file its renewal
application within the stipulated time frame…’. Consequently, Open Heaven launched
the application in the high court seeking, in Part A, an urgent interdict against ICASA
restraining it from interfering with its broadcasting services, including seizing its

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broadcasting/electronic equipment, interfering with its allocated broadcasting
spectrum, or de-registering its broadcasting licence. In Part B , Open Heaven sought
an order reviewing and setting aside ICASA’s refusal to process the notice of renewal
of its broadcasting service licence.

[7] In its amended notice of motion, after the rule 53 record of decision was filed,
Open Heaven sought an order in the following terms:
‘1 A declarator that the Applicant’s Class Broadcasting Service Licence/s (NO .
Class/Com/R183/Sep/12) is valid for a term of SEVEN YEARS from the effective date and its
term of validity will expire on 11 September 2024;
2 The Respondents’ instruction to the Applicant embodied in a letter dated 11 July 2022 to
cease broadcasting on 11 September 2022 be declared unlawful, reviewed and set aside;
3 Alternative to par a 1 and 2 above, the respondents’ decision to refuse to process the
applicant’s notice of renewal of its Class Broadcasting Service Licence/s (No.
Class/Com/R183/Sep/12) be reviewed and set aside in terms of PAJA or the principle of
legality;
4 The applicant’s notice of renewal be remitted back to the respondents to process on terms
imposed by [the court];
5 The respondents be ordered to pay the applicant’s legal costs including costs of two
Counsel; and
6 Further and/or alternative relief.’

[8] ICASA opposed the application. I n the first instance, it contended that s 19(2)
of the ECA does not empower it to extend the duration of a class licence by regulation.
Secondly, that when the amendment extending the period of validity of a class licence
from five to seven years was promulgated Open Heaven was already in possession
of its licence which, in clause 2, expressly provide d that the licence would expire in
five years. Thirdly, it contended that it was factually and legally incorrect to argue that
the duration of Open Heaven’s class licence was extended from five to seven years

the duration of Open Heaven’s class licence was extended from five to seven years
because the amended regulation did not automatically extend the period of validity of
existing licences.

[9] On the question of condonation for the late filing of the renewal of Open Haven’s
licence, ICASA contended that it is not empowered to entertain late renewal
applications. The fact that the relevant legislation was silent on condonation or

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acceptance of late renewal notices meant that it was not authorised to entertain late
renewal application.

[10] The high court (Mdlokovane J) dismissed part A of the application . However,
Open Heaven’s station was not closed down. It continued to operate. Part B then came
before Van Nieuwenhuizen J ( the high court). That court held that indeed, the 2021
regulations do not expressly state whether regulation 4 thereof is applicable to existing
licences or whether it is only applicable to licences approved after 25 March 2021 (the
date of their promulgation). The court found that the terms and conditions of a class
licence, including its duration, are determined and published on the date on which the
licence is granted and remain applicable for the duration thereof . It held further that
the ECA does not provide for the amendment of th e licence terms and conditions
during the period of its validity; and an automatic amendment of the period of a licence,
as contended for by Open Heaven, would be in direct conflict with the express
provisions of ss 16 and 17 of the ECA.

[11] Regarding condonation for the late application for renewal of the licence, the
high court held that ICASA does not have the legislative authority or power to grant
condonation for the late filing of a renewal application for a class licence. It
consequently rejected the contention by Open Heaven that, on a proper construction
of s 19(2) of the ECA, the court should find that the ECA confers an implied discretion
on ICASA to accept notices of renewal that were filed out of time. The high court,
however, recognised that our law permits condonation of non -compliance with
peremptory requirements in cases where condonation is not incompatible with public
interest and if such condonation is granted by the body for whose benefit the powers
were enacted.4 The high court held that the most probable purpose for the six months’
time limit in s 19(2) of the ECA is to afford ICASA sufficient time to process an

time limit in s 19(2) of the ECA is to afford ICASA sufficient time to process an
application for renewal. Holding otherwise would mean that the legislature arbitrarily
and for no reason at all enacted the time limit, the court reasoned. It held that ICASA
may, in its discretion, waive the six-months’ time limit. It further held that none of the

4 Millennium Waste Management (Pty) Ltd v Chairperson Tender Board: Limpopo Province and Others
[2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA 481 (SCA); 2008 (5) BCLR
508 para 17.

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grounds for review in PAJA ha d been satisfied by Open Haven. C onsequently, no
proper basis was established for a review of ICASA’s decision.

[12] Having held that ICASA did not err in refusing to accept the late application for
renewal, the high court nevertheless held that ICASA does not have the legislative
power to interpret the ECA and that this power falls within the domain of the court. It
consequently granted an order, which it deemed to be just and equitable in the
circumstances, declaring that ICASA has the necessary legislative power to, in its
discretion, condone the late filing of a notice for the renewal of a class licence in terms
of s 19(2) of the ECA. Such an order, according to the high court, would achieve the
actual purpose of the relief sought by Open Heaven, which was a reconsideration of
its request for condonation for the late filing of its notice of renewal. The high court
remitted Open Heaven’s request for condonation back to ICASA for consideration but
ordered Open Heaven to pay the costs of the application.

[13] It is against the above order that ICASA is appealing. Open Heaven, on the
other hand, is cross-appealing against what it considers to be an implied dismissal of
its application for a declarator . It had sought a declarator that it's class broadcasting
service licence is valid for seven years from the effective date and would expire on 11
September 2024.

[14] The first question which arises for determination in th is appeal is whether
ICASA has statutory powers to entertain a request to condone the non-compliance
with the provisions of s 19(2) of the ECA. Arising from the cross appeal is the second
question, whether the 2021 regulations automatically extended Open Heaven’s class
broadcasting licence by a period of two years.

[15] When the appeal was heard, Open Heaven’s broadcasting licence had already
expired, even on its own case that its licence had been extended by virtue of the 2021

expired, even on its own case that its licence had been extended by virtue of the 2021
regulations. The question arose as to whether the matter had since become moot. A
matter is moot if it no longer presents an existing or live controversy. Generally, courts
should not decide matters that are abstract or academic , and which do not have any
practical effect, either on the parties before court or the public at large . However, the
answer to the question whether the 2021 regulations applied to existing licences is not

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of interest only to ICASA and Open Heaven, it is important to other existing licensees
as well. In addition, ICASA’s interpretation of s 19(2) will continue to affect other
community broadcasters who are in a position similar to Open Heaven. The interests
of justice require determination of the appeal despite its mootness.5

[16] In the appeal ICASA contends that there is no legal basis for the high court to
grant the order declaring that it has the legislative power to consider the request to
consider notice of renewal . It was common cause that the notice was submitted
outside the time limit prescribed in s 19(2) of the ECA . It contends that the refusal
decision remains of full force and effect . Consequently, it was improper of the high
court to remit the matter back to ICASA for reconsideration, ICASA contends.

Discussion
[17] This argument by ICASA is not correct. ICASA’s refusal to process Open
Heaven’s licence renewal is what gave rise to Open Heaven approaching court. The
essence of Open Heaven’s argument in the high court was that ICASA has the power
to condone the lateness and consider renewal notices that are submitted to it outside
of the prescribed period. The issue of condonation was therefore pleaded and argued
in the high court . In its order the high court compelled ICASA to consider Open
Heaven’s notice of renewal despite it being out of time.

[18] Did ICASA have the power to consider Open Heaven’s late notice of renewal?
Section 19(2) of the ECA provides that:
‘Class licensees seeking to renew their class licences must, in writing and not less than six
months prior to the expiration of their class licence, notify the Authority of their intention to
continue to provide the services.’
In its argument that it had no power under the section to condone non-compliance with
the prescribed time limit, ICASA relied on the judgments of the Constitutional Court in
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others (Fedsure)6 and Pharmaceutical Manufacturers

5 Member of the Executive Council for Cooperative Governance and Traditional Affairs KwaZulu -Natal
v Nkandla Local Municipality and Others [2021] ZACC 46; (2022) 43 ILJ 50 5(CC); 2022 (8) BCLR 959
(CC) para 16.
6 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others 1999 (1) SA 374; 1998 (12) BCLR 1458 para 56.

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Association of South Africa and Another: in re ex Parte President of the Republic of
South Africa and Others (Pharmaceutical Manufacturers)7. ICASA submitted that if it
were to purport to exercise powers not vested upon it by law, its conduct would violate
the principle of legality and its conduct or decision would be liable for review.

[19] Our law permits condonation of non-compliance with peremptory requirements
in cases where condonation is not incompatible with public interest and if such
condonation is granted by the body for whose benefit the provision was enacted.8 Even
where the formalities required by statute are peremptory it is not every deviation from
the literal prescription that is fatal .9 In Allpay Consolidated Investment Holdings (Pty)
Ltd and Others v Chief Executive Officer of South African Social Security Agency and
Others (Allpay),10 the Constitutional Court held that:
‘Assessing the materiality of compliance with legal requirements in our administrative law is,
fortunately, an exercise unencumbered by excessive formality. It was not always so. Formal
distinctions were drawn between “mandatory” or “peremptory” provisions on the one hand and
“directory” ones on the other, the former needing strict compliance on pain of non-validity, and
the latter only substantial compliance or even non -compliance. That strict mechanical
approach has been discarded. Although a number of factors need to be considered in this kind
of enquiry, the central element is to link the question of compliance to the purpose of the
provision. In this Court O’Regan J succinctly put the question in ACDP v Electoral Commission
as being “whether what the applicant did constituted compliance with the statutory provisions
viewed in the light of their purpose”. This is not the same as asking whether compliance with
the provisions will lead to a different result.’

[20] In this case , the question whether ICASA has a discretion to condone late

[20] In this case , the question whether ICASA has a discretion to condone late
submission of the notice of renewal of broadcasting licences is dependent on the
purpose of its empowering provision, s 4(3A)(a) of the ICASA Act. That section states
that:
‘The Authority, in exercising its powers and performing its duties-

7 Pharmaceutical Manufacturers Association of South Africa and Another: In re ex Parte President of
the Republic of South Africa and Others 2000 (2) SA 674; 2000 (3) BCLR 241 para 17.
8 Op cit fn 4 para 17.
9 Unlawful Occupiers of the School Site v City of Johannesburg [2005] 2 All SA 108 (SCA); 2005 (4) SA
199 (SCA) para 22.
10 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1
(CC) para 30.

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(a) must consider policy made, and policy directions issued by the Minister in terms of the Act,
the underlying statutes and any other applicable law.
It is trite that ‘any other applicable law’ includes statutes, subordinate legislation, the
common law, judicial precedents, as well as indigenous and customary law. 11
Section 19(2), in my view, was enacted for the benefit of ICASA. The six-month period,
within which to submit a notice of renewal of a licence, is to afford ICASA time to deal
with its internal administrative tasks, such as updating its register of licences and
taking decisions regarding the allocation of radio spectr a. The beneficiary of the time
stipulation is ICASA. Consequently, ICASA has a discretion to condone late notices of
intention to renew licences where there has been substantial compliance with the
object of the statutory provision . ICASA should have considered Open Heaven’s
request for consideration of its late notice of renewal, which was out of time by a mere
14 days. ICASA’s appeal against the order of the high court remitting Open Heaven’s
application back to it for reconsideration stands to be dismissed.

[21] In support of its contention that s19(2) of the ECA does empower it to condone
late application s for renewal of community sound broadcasting licences, ICASA
contrasted the provisions of this section with those of s 11(9) of the ECA. It submitted
that contrary to s 19(2), the former section clearly demonstrates empowerment to
condone late notices of renewal. Section 11(9) provides that:
‘The Authority may on good cause shown by the applicant, accept for filing, an application for
renewal that is not submitted within the time period prescribed by the Authority in terms of sub-
section (2).’
This contention is without merit. Apart from the argument regarding the express
mention under s 11(9) , ICASA does not provide any reason why the provisions of

mention under s 11(9) , ICASA does not provide any reason why the provisions of
s 19(2) should not be interpreted consistently with the principles set out in Allpay. I can
find none. While the principle expressio unius est exclusio alterius still applies in our
law, its application is somewhat limited and it is considered within the parameters of
the context and overall purpose of the document under interpretation as explained by
the Constitutional Court in Allpay. Within the context of both the ICASA and the ECA,
ICASA does have the power to condone the late submission of a notice of renewal of
a class broadcasting licence in an appropriate case.

11 Op cit fn 7 para 47.

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Retrospective application of regulation 4 of the 2021 regulations
[22] On the interpretation of regulation 4 of the 2021 regulations ICASA contend s
that the effect of the extension of the period of validity from five to seven years,
properly construed, is that at the end of the existing five years of a licence a qualifying
class licence holders’ licence would be renewed for a period of seven years . New
licences, issued after 25 March 2021, would be valid for seven years , it argues. This
interpretation, according to ICASA, takes into consideration that there is a presumption
against retrospectivity. It contends that the words used in the amendment do not permit
an interpretation of retrospectivity. It submit s that an interpretation in terms of which
the amendment applied to existing licences would be in conflict with existing laws . It
relies as support for this proposition the judgment in Adampol (Pty) Ltd v Administrator,
Transvaal12 where it was held that laws and decrees give shape to future matters and
are not applied to acts of the past, unless express provision is made for past time and
for matters which are still pending.

[23] Open Heaven, on the other hand, contend s that there is no provision in the
amended regulations which limits the new term of validity to licences which were
granted or renewed after the regulations came into effect. It submitted that if that was
the intention one would expect to find such an expr ess provision in the regulations
themselves.

[24] Our law recognises a general presumption against the retrospective application
of laws. This, however, is no more than a presumption which may be rebutted either
by express words in a statute showing that the provision is intended to be
retrospective, by necessary and distinct implication demonstrating such an intention,13
or by provisions or indications to the contrary, in the enactment under consideration.14
It is trite that a presumption against retrospective application is intended to protect

It is trite that a presumption against retrospective application is intended to protect

12 Adampol (Pty) Ltd v Administrator, Transvaal [1989] 4 All SA 776 (AD); 1989 (3) SA 800 (A) at 805E-
J.
13 Ibid at 805E-J.
14 Workmen’s Compensation Commissioner v Jooste 1997 (4) SA 418 (SCA); [1997] 3 All SA 157 (A)
at 162.

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against the invasion of a vested right by a new legislative enactment .15 It is not
intended to exclude the benefit of rights sanctioned by the new piece of legislation.16
The presumption against retrospectivity would not apply where the consequences of
holding an Act to be non-retrospective will lead to an absurdity or practical injustice.17

[25] I turn attention to the interpretation of the 2021 regulations to determine whether
expressly or by necessary implication are intended to apply retrospectively. The
starting point in interpreting any document is to give consideration to the language
used in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears, the apparent purpose to which it is directed and the material known
to those responsible for its enactment.18 This approach has been endorsed by the
Constitutional Court in Cool Ideas 1186 CC v Hubbard and Another.19 There the Court
held, inter alia, that the fundamental tenet of statutory interpretation is that the words
in a statute must be given their ordinary grammatical meaning, unless to do so would
result in an absurdity. There are three important interrelated riders to this general
principle, namely:
‘(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preserve their
constitutional validity.’

[26] The purpose of the 2021 regulations, which were drafted by ICASA, are to
extend the validity of class community sound broadcasting service licences from five
years to seven years. The amended regulations define the new period of validity by
express reference to the effective date specified in a licence. The 2021 regulations are
not limited to new licences granted after their publication or to those renewed after the

not limited to new licences granted after their publication or to those renewed after the
amended regulations came into effect. The wording of the regulation therefore does

15 Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman of the National Transport
Commission and Others , Transnet Ltd (autonet Division) v Chairman of the National Transport
Commission and Others [1999] 3 All SA 365 (A) para 12.
16 S v Mhlungu and Others 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (Mhlungu) para 38.
17 Lek v Estate Agents Board [1978]3 All SA 604(C) at page 611.
18 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) para 18.
19 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR
869 (CC) para 28.

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not admit of an interpretation contended for by ICASA: that the extended period of
validity would only apply to new licences.

[27] Furthermore, the 2021 regulations are clearly intended to confer a benefit by
increasing the period of validity of a licence from five years to seven years. The
Constitutional Court held in S v Mhlungu and Others 20 that the presumption against
retrospectivity is not intended to exclude the benefits of rights sanctioned by the new
legislation. The presumption against retrospectivity would therefore not apply in this
case, where the period of validity of all class licences is extended, i n terms of the
amended regulations, to a period of seven years. In the circumstances the high court
erred in holding that the presumption against retrospectivity limits the application of
the 2021 regulations to new licences issued after 25 March 2021. Consequently, the
cross appeal ought to be upheld.

Costs
[28] An award of costs is a matter wholly within the discretion of the trial court.21 An
appeal court will not generally interfere with a court of first instance’s decision on costs.
However, in Sublime Technologies (Pty) Ltd v Jonker and Another 22 this Court held
that an appeal court will only interfere with the discretionary orders granted by a lower
court where it is shown that the lower court had not exercised its discretion judicially,
or that it had been influenced by wrong principles or a misdirection on the effects, or
that it had reached a decision which in the result could not reasonably have been
made by a court properly directing itself to all the relevant facts and principles . In this
case the high court erred in its reasoning in relation to ICASA’s power to accept and
consider late notices of renewal . It’s award of costs against Open Heaven was
obviously influenced by its finding that ICASA had no authority under the
circumstances. Since Open Heaven ought to have been successful in the high court

circumstances. Since Open Heaven ought to have been successful in the high court
on the basis of interpretation of s 19(2) of the ECA, rather than a just and equitable
order, the appropriate costs order is that ICASA must pay the costs of the application
in the high court, the costs of the appeal as well as that of the cross-appeal.

20 Mhlungu fn 16 above para 38.
21 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC); 2000 (1) BCLR 39 para 11.
22 Sublime Technologies (Pty) Ltd v Jonker and Another [2009] ZASCA 149; 2010 (2) SA 522 (SCA);
[2010] 2 All SA 267(SCA) para 2.

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[30] In the result I make the following order:
1 The appeal is dismissed.
2 The cross-appeal is upheld.
3 The order of the high court is set aside and substituted with the following:
‘(i) it is hereby declared that in terms of regulation 4 Government Notice
44328 of 25 March 2021, the period of validity of a Class Broadcasting Service
Licence is seven (7) years from the effective date.
(ii) it is hereby declared that the applicant’s Class Broadcasting Service
Licence is valid for a term of seven (7) years from the effective date.
(iii) the applicant’s notice of renewal is remitted back to the respondents to
be processed.
(iv) the respondent is ordered to pay costs.’
4 The appellant is ordered to pay the costs of the appeal and cross appeal. Such
costs to include the employment of 3 counsel.




M J DOLAMO
ACTING JUDGE OF APPEAL

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Appearances

For the appellants: K Tsatsawane SC with K Lefaladi
Instructed by HM Chaane Attorneys, Pretoria
Honey & Partners Inc, Bloemfontein

For the respondent: M Nguta with B Zungu
Tsotetsi Inc Attorneys, Johannesburg
Mhlokonya Attorneys, Bloemfontein

For the amicus curiae: F J Erasmus SC with N Magwa
Hurter Spies, Pretoria
Hendre Conradie Attorneys, Bloemfontein.