IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
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Not reportable
Case no: 5235/2024
In the matter between:
SYDNEY TSHOKOLO FUBANE
(In his capacity as the Station Manager of
Mosupatsela FM Stereo)
and
JIM JOSEPH MOOKO N .0.
MOJALEFA ABRAM MNYANE N.O.
MOEKETSI DAVID TSHEISI N.O .
MOEKETSI MOKHETHI N.O.
(in their capacities as members of the
Board of Directors: Mosupatsela FM Stereo)
[hereafter collectively referred to as "the Board']
INDEPENDENT COMMUNICATIONS AUTHORITY
OF SOUTH AFRICA (ICASA)
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Neutral citation: Fubane v Mooko N . 0 . and Others (5235/2024) [2025] ZAFSHC
259 (25 August 2025)
Coram: Reinders J
Heard: 6 February 2025
Delivered: 25 August 2025
Summary: Locus standi - declaratory and interdictory relief - Board of Directors
elected at Annual General Meeting
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ORDER
1 The fifth respondent is ordered to refer the dispute in respect of the lawful Board
of Directors of Mosupatsela FM Stereo, to its Complaints and Compliance Committee
(CCC) on the papers filed in this application (duly supplemented if so elected by the
parties) within ten (10) days of service of this court order,
2 Each party is ordered to pay its own costs.
JUDGMENT
Reinders J
[1] Mosupatsela FM Stereo is a community-based radio station, broadcasting from
Botshabelo in the Free State Province. Although the music broadcasted by the radio
station might be harmonious, its governance and management seem to be out of tune.
[2] The applicant, as cited, is Mr JJ Fubane who deposed to affidavits on 12
September and 6 December 2024, stating that he acts in his capacity as the station
manager of the radio station. The first and second respondents are cited as respectively
the chairperson and secretary of the Board of Directors of the station (the board), whilst
the third and fourth respondents are cited as members of the board. The fifth respondent
is the Independent Communications Authority of South Africa (ICASA), a juristic person
established in terms of s 3(1) of the Independent Communications Authority of South
Africa Act 13 of 2000 (the ICASAAct). ICASA did not file an opposition to this application.
For purposes of this judgment, reference to the respondents is only in respect of the first
to fourth respondents who opposed the relief claimed by the applicant, with separate
reference to ICASA where applicable.
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[3] The applicant seeks interdictory and declaratory relief in the notice of motion,
praying:
'1. That the Board of Directors elected at the Annual General Meeting of Mosupatsela FM
Stereo held on 27 July 2024 be declared the current and duly elected Board of Directors of
Mosupatsela FM Stereo.
2.That the Board of Directors, of which the First, Second, Third and Fourth Respondents form
part, be declared to have been dissolved in terms of the provisions of the Mosupatsela FM Stereo
Constitution from September 2017.
3. That any actions taken by the First, Second, Third and Fourth Respondents during such
time as they had acted as the Board of Directors of Mosupatsela FM Stereo after the date on
which it was considered to be dissolved in terms of the provisions of the Mosupatsela FM Stereo
Constitution [be declared] as being null and void.
4. That the First, Second, Third and Fourth Respondents be interdicted and restrained from
declaring and/or presenting itself as the duly elected Board of Directors of Mosupatsela FM
Stereo.
5. That the Fifth Respondent be interdicted and restrained from declaring and/or presenting
and/or recognising the First, Second, Third and Fourth Respondents as the duly elected Board of
Directors of Mosupatsela FM Stereo.
6. That the Fifth Respondent be directed to accept and recognise the Board of Directors
declared to be the duly elected Board of Directors of Mosupatsela FM Stereo.
7. In the alternative to (1) to (6) above, that the Fifth Respondent be ordered to refer this
matter/dispute to the Complaints and Compliance Committee of the Fifth Respondent on the
papers filed in this application duly supplemented.'
The applicant also seeks cost orders against the respondents.
[4] Applications for condonation in respect of the late filing of papers by both parties
served before me , and at the commencement of the proceedings, I granted such
condonation and ordered that the matter proceed to have it properly ventilated. For the
condonation and ordered that the matter proceed to have it properly ventilated. For the
latter reason, I requested the parties to argue the two points in limine raised by the
respondents, to wit the locus standi of the applicant and mootness of the relief claimed,
together with the rest of the application.
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[5] From the papers before court, holistically viewed, it is evident that the radio station
has been plagued for several years by animosity and disputes between different role
players who have an interest in its day-to-day business. The station is duly registered as
a non-profit company. Its constitution (annexed to the founding affidavit as Annexure FA 1
- the constitution) provides, amongst others, that the station shall be a commun ity radio
not for personal ownership and it shall be represented by 'the Board of Directors in all
matters not limited to legal matters or/and proceedings or/and transactions.' The
constitution regulates inter alia the convening of an annual general meeting (AGM) ,
membership of the station, the election procedure of the board, the board's composition
and functions, the station's management committee (of which the station manager is in
charge with the professional management of the station, accountable to the board), board
meetings and quorum , and the board's dissolution.
[6] From the applicant's founding affidavit it can be gleaned that the basis for the relief
sought by him (relying on several clauses in the station's constitution), is the averment
that the respondents were at the time of launching this application not a functioning board
of directors. As mentioned, the applicant prays that this court declares the board elected
at the AGM held on 27 July 2024 (which from a reading of annexures to the founding
affidavit, excludes the respondents), to be the current and duly elected board of the
station, and the board of which the respondents had formed part 'from since 2017' be
declared to have been dissolved (with subsequent declaratory and interdictory relief). The
respondents, in opposing the relief claimed, aver that the current board was selected at
an AGM held on 14 September 2024, subsequent to the 27 July 2024 meeting. The
respondents argued that the applicant does not have legal standing to institute this
respondents argued that the applicant does not have legal standing to institute this
application. However, in their answering affidavit it is stated that notice of the meeting of
14 September 2024 was broadcasted by the radio station ' ... of which the Applicant is
the Station Manager ... 'already on 20 August 2024. This is despite a letter dated 6 August
2024 attached to the applicant's founding affidavit, wherein the applicant was informed
that he had been placed on 'precautionary suspension' for the reasons advanced therein.
[7] In United Watch and Diamonds (Ply) Ltd v Disa Hotels Ltd1 the court outlined the
test for determination of the right or legal capacity of a party to sue or be sued, to wit locus
1 United Watch and Diam onds (Pfy) Ltd v Disa H otels Ltd 1972 (4) SA 409 (C ) at 415A.
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standi in judicio, as follows: 'To establish that one has locus standi ... that he has an
interest in the subject matter of the judgment or order sufficiently direct or substantial.'2
In my view the applicant indeed has a direct and substantial interest in the outcome of
this application, and accordingly this point in limine cannot be sustained.
[8] Numerous correspondence exchanged between the parties are annexed to the
papers and relied upon for their respective contentions. The respondents argue that the
relief claimed by the applicant had become moot or, put differently, had been overtaken
by an AGM held on 14 September 2024 where the current board (of which the first, second
and fourth respondents are seemingly directors) had been duly elected in terms of the
constitution, as set out in the answering affidavit.
[9] It would seem to me that, despite the respondents' averments regarding their
election to what they submit to be the current board, the issues between them and the
applicant are still very much alive. There can be no mootness of the relief sought, nor
would relief granted by this court be of an academic nature only and serving no purpose.
I say so because the applicant argued that the respondents did not answer to or grapple
with some averments made by him regarding, amongst others, his precautionary
suspension and the invalidity thereof. It is evident from the papers that ICASA has been
extensively involved in the station's affairs, and correctly so. After all, the station's very
existence is dependent on a mandatory license issued by ICASA for its operation. To this
extent, extensive communication took place between the station's management and
board, and ICASA's officials, more specifically, its compliance officer. From a reading of
the applicant's founding affidavit, a picture is painted that seems , to me , to imply that the
mentioned compliance officer either neglected, failed in or was not impartial in the
mentioned compliance officer either neglected, failed in or was not impartial in the
execution of her duties. The applicant states that on 17 July 2024, the manager of
ICASA's Broadcasting Compliance Division filed a report on a meeting held on 9 July
2024 with the purpose 'to address and resolve the conflict' between the station's
management and board. The applicant is dissatisfied with the said report, averring that
the manager made certain incorrect statements. It is evident that the applicant is not at
2 Ibid at 415A. See also Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at
661.
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ease with the manner in which the mentioned representatives of ICASA dealt with the
issues between ma nagement and the board.
[1 0] The applicant sought relief in the alternative to the declaratory and interdictory
relief in prayers 1-6 of its notice of motion, with prayer 7 reading ' ... that the Fifth
Respondent be ordered to refer the matter/dispute to the Complaints and Compliance
Committee of the Fifth Respondent on the papers filed in this application duly
supplemented.'
[11] ICASA, as a creature of statute, is endowed with powers and duties under two
principal statutes, the ICASA Act and the Electronic Communications Act 36 of 2005. The
Complaints and Compliance Committee (CCC) is an independent tribunal of ICASA
established in terms of the ICASA Act. It is mandated in terms of s 178 of the Act to
investigate, hear submissions, deliberate on the issues in dispute and make decisions
through its legislative empowerment in terms of the Act. In my view, the CCC is par
excellence geared to deal with the disputes between the parties regarding the station's
board of directors. Considering all the circumstances of this application, I deem the said
alternative relief by the applicant, to be appropriate. In my discretion I deem it just that
each party should be liable for its own costs.
[12] Accordingly, I make the following order:
1 The fifth respondent is ordered to refer the dispute in respect of the lawful Board
of Directors of Mosupatsela FM Stereo, to its Complaints and Compliance Committee
(CCC) on the papers filed in this application (duly supplemented if so elected by the
parties) within ten (10) days of service of this court order,
2 Each party is ordered to pay its own costs.
Appearances
On behalf of the applicant:
Instructed by:
On behalf of the first to fourth respondents:
Instructed by:
JJ Grundlingh
Webbers Attorneys
Bloemfontein
TL Manye
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Phatshoane Henney Attorneys
Bloemfontein