Radio Pretoria v Chairperson of Independent Authority of South Africa (CCT 38/04) [2004] ZACC 24; 2005 (4) SA 319 (CC); 2005 (3) BCLR 231 (CC) (8 December 2004)

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[2004] ZACC 24
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Radio Pretoria v Chairperson of Independent Authority of South Africa (CCT 38/04) [2004] ZACC 24; 2005 (4) SA 319 (CC); 2005 (3) BCLR 231 (CC) (8 December 2004)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 38/04
RADIO PRETORIA                                                                                                  Â
Applicant
                                                                                                                                        Â
versus
THE CHAIRPERSON OF THE
INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA                                                            Â
First
Respondent
THE INDEPENDENT COMMUNICATIONS                                                                        Â
AUTHORITY OF SOUTH AFRICA                                                       Â
Second
Respondent
Decided on     :           8 December 2004
JUDGMENT
THE COURT:
[1]
Radio Pretoria seeks leave of this Court to
appeal against the decision of the Supreme Court of Appeal (SCA).  On 2
September 2004,
the SCA dismissed its appeal against the judgment and order of
the Pretoria High Court (High Court), which had refused to make an
order setting
aside the decision of the Independent Communications Authority of South Africa (ICASA)
not to grant Radio Pretoria
a temporary sound broadcasting licence.
[2]
Radio Pretoria is a community broadcaster
founded for the purpose of serving the needs of what it describes as the “Boere-Afrikaner”

community.  It began operating in 1993 on a
temporary broadcasting licence issued under the previous dispensation.  Before
1995, it interrupted its broadcasting activities
in order to apply for a new
licence under the new dispensation.  In 1995 Radio Pretoria was granted its
first one-year temporary
community broadcasting licence.  In the years between
1996 and 1999, the Independent Broadcasting Authority (IBA) granted it temporary

community broadcasting licences annually and later issued additional
broadcasting signal distribution licences to twelve signal
distribution points.
[3]
ICASA and its Chairperson are the respondents.  The
respondents do not oppose the application for leave to appeal.  They have filed

a notice stating that should leave to appeal be granted they would exercise their
option to oppose the appeal.  ICASA is an independent
authority established in
terms of the Independent Communications Authority of South Africa Act
[1]
(the ICASA Act).  One of its
primary mandates is to issue radio broadcasting licences.  From 1993 that power
vested in the IBA.
 However, from 1 July 2000, ICASA assumed that role.
[4]
In March 1998, Radio Pretoria applied for a
permanent four-year community broadcasting licence.  The application was not
considered
then.  Seemingly, neither the IBA nor ICASA had enough resources to
handle properly the large volume of applications for radio
broadcasting
licences.  Both regulatory bodies resorted to an interim arrangement of
granting annual temporary licences.
[5]
In February 2000,
Radio Pretoria applied for its sixth temporary community broadcasting licence
for the year ending April 2001.
 By the effective date, ICASA had neither
refused nor granted the application.  To meet this difficulty, it issued a
series of
short licence extensions and
set up a small
committee from among its members to evaluate the application.  The committee
arranged oral hearings at which Radio
Pretoria made oral and written
presentations.  Later, at the invitation of the committee, Radio Pretoria made
additional written
submissions on issues which arose during the hearing.  They
related to the involvement of the broader community in the election
of the
board of directors and the policy of employing only “Boere-Afrikaners”.  In its
submissions, Radio Pretoria made it
plain that it had acted within the
requirements of its articles of association and that it had done all that it
could to encourage
the communities it served to become its members.  It stoutly
defended its exclusive employment practices, which it stated, were
necessary to
preserve its cultural purpose and identity.
[6]
On 28 February 2001, ICASA had regard to the
report of the committee and refused to grant Radio Pretoria a sixth annual
temporary
licence.  It required Radio Pretoria to terminate its broadcasting
service and those of its relay stations within 30 days of receiving
the reasons
for the refusal.  The reasons for the refusal were furnished on 10 July 2001.  However,
the parties agreed that whilst
awaiting the decision on the review proceedings
to be brought in the High Court, Radio Pretoria would be permitted to continue
broadcasting.
In the
High Court
[7]
Radio Pretoria approached the High Court for an
order to review and set aside the decision of ICASA not to grant it an annual
temporary
broadcasting licence for the year ending April 2001.  The application
was heard only in January 2003.  It was brought on several
substantive and
procedural grounds.  Let it suffice to mention a few.  Radio Pretoria argued that
the decision of ICASA was irrational,
offended the principle of legality and
was taken without a proper hearing.  It contended that ICASA misconceived and
exceeded
its power under the Broadcasting Act
[2]
by, first, failing to recognise that the board of directors of Radio Pretoria
is chosen democratically by members of its holding
company as permitted under company
law and, second, by conducting an enquiry into its employment policy and
practices.
[8]
After hearing the merits of the attack, the High
Court dismissed the review application.
[3]
 It
is self-evident that
the High Court’s
decision was delivered long after the envisaged temporary licence period had
expired.
 Nevertheless, it granted Radio Pretoria leave to appeal to the
SCA on the grounds that the matter involves issues of great importance
to the
parties, the broadcasting community, and the broader public and
that t
here was a reasonable prospect that
another court might arrive at a different outcome.
In the Supreme Court of Appeal
[9]
On 2 September
2003 Radio Pretoria filed its notice of appeal in the SCA.  The notice sought
an order setting aside the impugned
decision and remitting it to ICASA for reconsideration.
 Clearly, when the notice was drawn the applicant did not know of the
outcome of its four-year licence application
which was heard on 9 May 2003 and refused on 30 September 2003.
[10]
In April 2004 Radio Pretoria gave notice that at
the hearing of the appeal it would move for an amendment of its notice of
appeal
in the following terms:
“2.2.1   The present authorisation by the
Second Respondent, in terms of which the Appellant is broadcasting on the same
terms
and conditions as their 2000/2001 licence [including 12 additional
frequencies for signal distribution] is extended until final
adjudication or
decision, successful or unsuccessful, of all remedies available to the
Appellant to obtain a four-year Community
Broadcasting Licence.
2.2.2     Such extended broadcasting will
be subject to the lawful regulatory powers of the Second Respondent as intended
by
the provisions of section 192 of the Constitution and the empowering
Statutes and Regulations applicable to the Second Respondent.”
[11]
The notice of amendment seems to anticipate another
judicial review and a final decision on ICASA’s refusal of the four-year
community
broadcasting licence.  Be that as it may, ICASA opposed the proposed
amendment, on the basis that the temporary licence period
had expired and that
a decision on it would not serve any practical purpose.
[12]
Ahead of the hearing in the SCA, in May 2004, ICASA
furnished reasons for the refusal of the four-year licence application.  On
24
May 2004, ICASA informed the applicant that in light of the decision, it was
required to terminate its broadcasting activities
by midnight on 23 June 2004.Â
From then until presently Radio Pretoria continued broadcasting but on the strength
of successive
court orders of the High Court granting it interim relief pending
the final adjudication of the temporary licence and the four-year
permanent
licence.
[4]
[13]
However, during the hearing before the SCA, Radio
Pretoria did not persist with its proposed amendment.  It urged the SCA to dispose

of the appeal on the basis of the decision of ICASA to refuse the temporary
broadcasting licence.  Radio Pretoria also invited
the SCA to decide the
correctness of the decision of ICASA on the four-year broadcasting licence.
[14]
The SCA declined the invitation and dismissed
the appeal in terms of section 21A(1) of the Supreme Court Act, 59 of 1959.
[5]
 The provision empowers the SCA
to dismiss on that ground alone a civil appeal in which the judgment or order
sought will have
no practical effect or result.
[15]
The SCA
[6]
cited
Ackermann J in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[7]
where it was observed that:
“A case is moot and therefore not
justiciable if it no longer presents an existing or live controversy which
should exist if the
Court is to avoid giving advisory opinions on abstract
propositions of law.”
The SCA held
that its judgment on the refusal of the temporary one-year broadcasting licence
would not have any practical effect.Â
It found that the issue of a temporary
licence was no longer a live issue, it was moot.  It concluded that no order it
makes would
impact on Radio Pretoria’s ability to continue broadcasting until
the litigation concerning ICASA’s decision to refuse the four-year
licence
application was finally resolved.
[16]
The decision of the SCA appears to rest on three
considerations.  The first is that
at the
time the appeal was heard, the
review application to set aside the
decision of ICASA on the four-year licence had not been launched.  Therefore,
the grounds
of the envisaged challenge and of the respondents’ opposition were
unknown as were the reasons furnished by the respondents for
its refusal of the
four-year licence application.  Second,
counsel
for Radio Pretoria was
invited to give the SCA an assurance that the
facts relevant to the review of the decision on the four-year licence were
materially
the same to those applicable to the temporary one-year licence and
that a decision by the SCA would put an end to the disputes between
the
parties.  None of the parties was able to furnish the assurance sought by the
court.
[8]
 Third, the SCA considered but dismissed the submission of Radio Pretoria that
a decision on the interpretation of section 32(3)
of the Broadcasting Act
[9]
and on the correctness of ICASA’s
attitude towards its employment practices would serve as a useful guide for the
court which
would in time review the decision of ICASA on the four-year licence
and to other broadcasters who might face a similar difficulty.
Before
this Court
[17]
The applicant seeks leave to appeal the decision
of the SCA on the ground that the dismissal of appeal has resulted in a
violation
of its fundamental rights under sections 9(1), 16, 34, 36 and 38 of
the Constitution.  The applicant asserts that its equal protection
and benefit
of the law right under the Constitution has been infringed;  that it was denied
the right to have “a real dispute
. . . resolved in a fair public hearing
before a Court” as promised by section 34 of the Constitution; that in terms of
section
16 of the Constitution it has the right to apply for a licence to
broadcast, and that the licence application may only be refused
if it is justified
under section 36 of the Constitution and that ICASA has not established that it
acted in a manner the Constitution
allows in refusing the temporary licence
application.
[18]
The applicant contends that the proper
construction of the broadcasting legislation that confers licensing powers on ICASA
read
with sections 192, 16 and 36 of the Constitution is a constitutional
matter.  It argues that the judicial review of ICASA’s exercise
of public
power, given the provisions of the Promotion of Administration of Justice Act
(PAJA)
[10]
is
a constitutional issue under section 33 of the Constitution.  Lastly, the
applicant submits that it is in the interests of
justice for this Court to
entertain its application for leave to appeal.
Merits of
application for leave to appeal
[19]
The requirements for an application as the
present one for leave to appeal to this Court are now well settled in several
decisions
of this Court.
[11]
 The application must raise a constitutional matter, in other words an issue
which involves the interpretation, protection or
enforcement of the
Constitution.  Further, it must be in the interests of justice to grant leave
to appeal.
[12]
 Whether it is in the interests of justice to grant the application involves a
careful and balanced weighing up of all relevant
factors.
[13]
 The considerations could be
varied and are often case specific but informed by the broad requirement of
whether by hearing the
case the interests of justice will be advanced.
[20]
There can be no doubt that this application
raises very important constitutional issues.  Section 192 of the Constitution anticipates

and authorises the establishment of a broadcasting authority.  It provides:
“National legislation must establish an
independent authority to regulate broadcasting in the public interest, and to ensure
fairness
and a diversity of views broadly representing South African society.”
Therefore the
Broadcasting Act and the ICASA Act comprise the legislative framework that gives
practical effect to a constitutional
requirement and more importantly the
protection of the fundamental right of freedom of expression.  The scope of the
protection
relevant here is found in section 16(1)(a) and (b)
[14]
of the Constitution.
[15]
 The issues which arise
sharply in this case are the permissible limits to the freedom of expression in
the context of public
broadcasting and electronic media and the character and
boundaries of licensing conditions that a broadcasting authority envisaged
in
the Constitution may impose on a broadcaster.  The judicial review of these
powers in itself raises a constitutional issue
of administrative justice
foreshadowed in section 33 of the Constitution.  Therefore, the application
does indeed raise important
constitutional matters.  We however refrain from
expressing any view on their merits.
[21]
However, the difficulty which the applicant
faces before this Court is insurmountable.  As before the SCA, the review
application
challenging the decision of ICASA on the four-year permanent
licence is not before us.  That is so because Radio Pretoria has not,
in any
court, initiated such a claim.  The facts were not before the SCA and are now
not before us.  The applicant received reasons
for the refusal of the four-year
licence several months before the SCA hearing but chose not to commence a
review of the decision.
 As the SCA correctly found, there are no review proceedings
to attract a decision nor is there a compelling reason to decide so
grave a
matter without a proper claim and defence.
[22]
Clearly, the appeal before the SCA was limited
to the decision on the temporary licence for the year ending April 2001.  We
cannot
find any practical purpose to which a decision on the temporary licence
may now be put.  The applicant argues that a decision on
the constitutional
issues related to the temporary licence would serve a useful purpose for the
broadcasting industry and wider
community.  There may indeed be instances where
it is in the interests of justice for this Court to decide a constitutional
matter
for the benefit of the broader public or to achieve legal certainty or
other public purpose, even if the decision is of no practical
value to the
litigants themselves.
[16]
 This is not such a case.  Even if the temporary licence is favourably decided,
the applicant would not be in a position to carry
on broadcasting and the
disputes between the parties on the four-year licence would remain unresolved
until the decision is reviewed
or otherwise changed.
[23]
We do not think it is in the interests of
justice to grant this application.  The application should be refused.  Nobody
has sought
a costs order against the applicant.  No order as to costs is made.
Order
[24]
The following order is made:
“The
application for leave to appeal is dismissed.”
[1]
Act 13 of 2000.
[2]
Act 4 of 1999.
[3]
The judgement of the High Court is reported as
Radio Pretoria v
Chairman, Independent Communications Authority of South Africa, and Another
2003
(5) SA 451
(T);
2003 (4) BCLR 421
(T).
[4]
See
Radio Pretoria v The Chairperson of the Independent
Communications Authority of South Africa and Another
(SCA) Case no 402/03,
2 September 2004, as yet unreported, at para 30, refer to the order by De Vos J
in the Pretoria High Court:
“I am
of the view that the Applicant can therefore not succeed with the current
application before me.  To my mind, the Applicant,
who wants to protect its
rights to broadcasting which it claims it has, must ask for interim relief
pending the outcome of the
review application of the four-year licence, and, in
doing so, will have to place the merits of that review application before the

Court.”
On 30 June 2004, Preller
J, granted an order permitting
Radio Pretoria to continue broadcasting on the same terms and
conditions as set out in its last temporary licence, pending final

determination of a review of ICASA’s decision in respect of the four-year
licence application.  In terms of this order Radio
Pretoria was given 180 days
after 14 May 2004 within which to institute the review proceedings.
[5]
Section
21A(1) of the Supreme Court Act provides:
“Powers of court of appeal in certain
civil proceedings—
(1) When at the hearing of any civil
appeal to the Appellate Division or any Provincial or Local Division of the
Supreme Court the
issues are of such a nature that the judgment or order sought
will have no practical effect or result, the appeal may be dismissed
on this
ground alone.”
[6]
Above n 4 at para 39.
[7]
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 21 with reference
to
JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and
Others
1997 (3) SA 514 (CC); 1996 (12) BCLR 1599 (CC).
[8]
Radio Pretoria
(SCA) above n 4 at paras 36 and 40.
[9]
Section 32(3) of the Broadcasting Act provides:
“The licensee referred to in
subsection (2) must be managed and controlled by a board which must be
democratically elected, from
members of the community in the licensed
geographic area.”
[10]
Act 3 of 2000.
[11]
See
Fourie and Another v Minister of Home Affairs and Another
[2003] ZACC 11
;
2003 (5) SA 301
(CC);
2003 (10) BCLR 1092
(CC);
S v Bierman
[2002] ZACC 7
;
2002 (5) SA
243
(CC);
2002 (10) BCLR 1078
(CC);
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC);
Fraser v Naude and Others
1999 (1) SA 1 (CC);
1998 (11) BCLR 1357 (CC).
[12]
Section 167(6)(a) and (b) of the Constitution provides:
“National legislation or the rules of
the Constitutional Court must allow a person, when it is in the interests of
justice and
with leave of the Constitutional Court—
(a)
to bring a matter directly to the Constitutional
Court; or
(b)
to appeal directly to the Constitutional Court
from any other court.”
[13]
See
Fraser
above n 11;
De Freitas and Another v Society
of Advocates of Natal (Natal Law Society Intervening
)
1998 (11) BCLR 1345
(CC);
Member of the Executive Council for Development Planning and Local Government,
Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR
855
(CC);
S v Pennington and Another
1997 (4) SA 1076 (CC); 1997 (10)
BCLR 1413 (CC).
[14]
Section 16(1)(a) and (b) of the Constitution provides:
“Everyone has the right to freedom of
expression, which include—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas”.
[15]
See
South African National Defence Union v Minister of Defence
and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC);
Case and
Another v Minister of Safety and Security and Others; Curtis v Minister of
Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC);
Holomisa v Argus Newspapers Ltd
1996 (2) SA 588
(W);
1996 (6) BCLR 836
(W).
[16]
See
Janse van Rensburg NO and Another v Minister of Trade and
Industry and Another NNO
2001 (1) SA 29
(CC);
2000 (11) BCLR 1235
(CC);
President,
Ordinary Court Martial, and Others v Freedom of Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC);
JT Publishing
above
n 7.