THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no:
402/03
In the matter between:
RADIO PRETORIA

Appellant
and
THE CHAIRPERSON OF THE
1st Respondent
INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA
THE INDEPENDENT COMMUNICATIONS
2nd Respondent
AUTHORITY OF SOUTH AFRICA
_______________________________________________________
Coram:
Mpati DP, Streicher, Navsa, Heher et Van Heerden JJA
Date of hearing: 16 August 2004
Date of delivery: 2 September 2004
Summary:
Application of s 21A of the Supreme Court Act 59 of 1959 •
consideration of s 21A(3) • whether exceptional circumstances
present justifying a hearing of the appeal • repeated warnings by
Court against persisting with appeals that will have no practical
effect or result being ignored.
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA:

[1] On 16 August 2004 this appeal was heard and dismissed in
terms of s 21A(1) of the Supreme Court Act 59 of 1959 (the SC Act).
The following order was made:
‘1.
The appeal is dismissed.
2.
Appellant is to pay:
(a)
all costs occasioned by the application for amendment of the Notice
of Appeal.
(b)
all costs in relation to the appeal incurred after 30 June 2004.’
Reasons for the order were to follow. These are the reasons.
[2] Subsections 21A(1) and 21A(3) of the SC Act provide as
follows:
‘(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.
…
(3)
Save under exceptional circumstances, the question whether the
judgment or order would have no practical effect or result, is to be determined
without reference to consideration of costs.’

[3] There have been too many appeals in the recent past which
have been dismissed by this Court on the basis set out in the
statutory provisions referred to in the preceding paragraph. This
unfortunately appears to demonstrate that a number of appeals that
have no prospect of being heard on the merits are being persisted in:
Premier, Provinsie Mpumalanga, en ‘n Ander v Groblersdalse
Stadsraad 1998 (2) SA 1136 (SCA), Western Cape Education
Department and Another v George 1998 (3) SA 77 (SCA), Coin
Security Group (Pty) Ltd v SA National Union for Security Officers
and Others 2001 (2) SA 872 (SCA), Port Elizabeth Municipality v Smit
2002 (4) SA 241 (SCA), Rand Water Board v Rotek Industries (Pty)
Ltd 2003 (4) SA 58 (SCA).
[4] The primary question in this appeal was whether a judgment by
this Court would indeed have any practical effect. An answer in the
negative, absent the exceptional circumstances referred to in
s 21A(3) of the SC Act, would mean that the appeal was destined to
be dealt with like those referred to above.
[5] The background facts against which this question fell to be
decided are set out briefly in the succeeding paragraphs. As will

become apparent the path to the appeal before this Court was
protracted and convoluted.
[6] Second
respondent,
the
Independent
Communications
Authority of South Africa (ICASA), is in terms of the Independent
Communications Authority Act 13 of 2000 (the Act) presently the
statutorily entrenched authority that issues radio broadcasting
licences. ICASA came into being on 1 July 2000. The first respondent
is its chairperson.
[7] The appellant company (Radio Pretoria) was incorporated in
1994 in terms of s 21 of the Companies Act 61 of 1973. In 1995 the
Independent
Broadcasting
Authority
(the
IBA),
the
second
respondent’s immediate statutory predecessor, granted Radio
Pretoria a temporary one-year licence to conduct business as a
community radio station and broadcaster.
[8] In 1996, 1997 and 1998, further one-year licences were granted
by the IBA to Radio Pretoria to continue broadcasting as a community
radio station.

[9] When Radio Pretoria applied for its fifth consecutive temporary
licence for the period 30 April 1999 to 29 April 2000, a dispute arose
with the IBA concerning signal distribution licences for twelve relay
stations. As a result of negotiations a licence was issued in terms of
which Radio Pretoria could continue broadcasting via its Kleinfontein
transmitter as well as through twelve signal distribution stations.
[10] On 10 February 2000 Radio Pretoria applied to the IBA for a
temporary community sound broadcasting and signal distribution
licence to continue as a radio broadcaster for the period 30 April 2000
to 29 April 2001 on the same terms and conditions as had applied in
the previous year.
[11] After the preliminary statutory procedure was followed ICASA,
which (as stated above) succeeded the IBA from 1 July 2000, set up
a committee, duly delegated, to deal with the application.  The
committee, consisting of three ICASA members, conducted a hearing
during September and October 2000 at which Radio Pretoria made
oral and written representations.
[12] Subsequent to the hearing the committee wrote to Radio
Pretoria asking it to further address, in writing, questions that had

been raised during the hearing, namely inter alia, the question of
community involvement in the election of its board of directors and its
stated strict policy of employing only Boere-Afrikaners.
[13] Radio Pretoria responded in writing, contending that it acted in
accordance with its articles of association and that it had done all it
could to actively encourage the communities it served to become
members. It was unrepentant concerning its employment practices,
which it stated were necessary to preserve its cultural and overall
identity.
[14] After having regard to the report of the committee that
considered Radio Pretoria’s application, the Council of ICASA
decided to refuse the application for a temporary licence. On 28
February 2001 ICASA wrote to Radio Pretoria informing it of that
decision.
[15] On 10 July 2001 ICASA supplied reasons for the refusal. It
stated that, in terms of Radio Pretoria’s articles of association, not
every member of the community it served was entitled to become a
member, and that, as only persons nominated or appointed by the
board of directors by majority vote could become members, for all

practical purposes membership of Radio Pretoria was restricted to
those persons invited by the Board to become members. The Board
of directors of Radio Pretoria was, in turn, elected by members at its
annual general meeting. Simply put, ICASA took the view that, since
the directors nominate or appoint the members and the members
elect the directors, the form of governance followed by Radio Pretoria
was undemocratic and in contravention of s 32(3) of the Broadcasting
Act 4 of 1999 (‘the BA Act’). This section provides that a licencee
must be managed and controlled by a board that must be
democratically elected from members of the community in the
licensed geographical area.
[16] In respect of Radio Pretoria’s practice of employing only Boere-
Afrikaners, the following was stated by ICASA as a ground for
refusing the application:
’31.1
The applicant’s policy of only employing Boere-Afrikaners amounts to
discrimination against other persons on the basis of race, ethnic or social
origin, colour, religion, belief, culture and language, as contemplated in
section 9(4) of the Constitution. In terms of section 9(5) of the Constitution,
discrimination on one or more of these grounds is unfair, unless it is
established that the discrimination is fair. In the Authority’s view, the

applicant has not established that its discriminatory employment policy,
referred to above, is fair.
31.2
It may be an inherent requirement of some of the positions at the
applicant’s radio station that such positions should be filled by Boere-
Afrikaners. For example, in view of the fact that the applicant has been
granted a licence to serve the interests of the Boere-Afrikaner community,
which is defined in terms of its language, cultural and religious
characteristics, it is arguable that management positions should be filled
by Boere-Afrikaners (or, at least, by persons who identify with the ideals of
the Boere-Afrikaner community) and that announcers should speak the
form of Afrikaans generally spoken by Boere-Afrikaners. However, it does
not follow that it is an inherent requirement of every position that it should
be filled by a Boere-Afrikaner person. For example, there is no reason why
sound technicians or cleaning staff should be Boere-Afrikaners.’
[17] ICASA advised Radio Pretoria that it was to terminate its
broadcasting services and those of its relay stations within thirty days
after receiving the reasons for the refusal.
[18] Subsequent to the refusal of its application and facing the
termination of its broadcasting services, Radio Pretoria applied to the
Pretoria High Court to have the decision by ICASA reviewed and set
aside and to have the matter remitted to ICASA for reconsideration.

[19] The review application was heard by Bosielo J. Radio Pretoria
contended, inter alia, that in requiring it to make written
representations rather than permitting it to make further oral
representations, ICASA unlawfully negated the audi alteram partem
principle, rendering the hearing unfair and the decision null and void.
It contended further that ICASA construed the words ‘democratically
elected’ as they appear in s 32(3) of the BA Act too narrowly.
According to Radio Pretoria, its Constitutional rights to freedom of
expression and lawful administrative action were infringed and ICASA
acted beyond its statutory powers when it based its decision to refuse
the licence application on the employment practice referred to above
and on its narrow interpretation of s 32(3) of the BA Act.
[20] It was contended on behalf of ICASA before Bosielo J, that
since the period in respect of which the temporary licence had been
applied for had expired, the application was academic and should for
that reason alone be dismissed.
[21] The learned judge, however, considered the merits of the
review application. He had regard to the two separate bases on which
the application for a licence had been refused and held that ICASA

had acted properly and within its powers. On 21 February 2003 he
dismissed the review application with costs. The judgment is reported
as Radio Pretoria v Chairman, Independent Communications
Authority of South Africa, and Another 2003 (5) SA 451 (T). The
present appeal is directed against that judgment.
[22] It is clear from the scheme of the Act and the regulations made
thereunder that it is envisaged that community broadcasting licences
are to be granted for a four year ‘permanent’ term.  It is common
cause that the system of successive annual temporary licences was
an interim measure to deal with the enormous volume in applications
for radio broadcasting licences that first the IBA and thereafter
ICASA, each with its limited resources, was struggling to process and
bring to finality.
[23] Radio Pretoria submitted an application for a four-year licence
during March 1998 which was refused by ICASA on 30 September
2003, approximately seven months after the decision by Bosielo J.
[24] In its application before Bosielo J, Radio Pretoria sought an
order merely reviewing and setting aside ICASA’s decision,
alternatively, correcting it. The court below delivered its judgment

long after the envisaged temporary licence period had expired.
Indeed, as can be seen from what is set out above, that period had
already expired by the time ICASA had supplied reasons for its
refusal.
[25] In its notice of appeal, dated 2 September 2003 (prior to
ICASA’s refusal of its application for a four-year licence), the order
sought on appeal by Radio Pretoria was that ICASA’s decision be set
aside and that the matter be remitted to the latter for reconsideration.
[26] In April 2004, probably with an eye on a review of ICASA’s
refusal of the four-year licence, Radio Pretoria gave notice that, at the
hearing of the present appeal, it would move an amendment to 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.’
[27] ICASA objected to the proposed amendment, inter alia on the
basis that the temporary licence period had expired and that the
review application was thus moot.
[28] Events
have
subsequently
overtaken
that
proposed
amendment.
[29] In May 2004 ICASA supplied Radio Pretoria with reasons for
the refusal of the four-year licence application. On 24 May 2004
ICASA informed Radio Pretoria that, in the light of the decision, it was
required to terminate its broadcasting activities by midnight on
23 June 2004.
[30] Radio Pretoria resorted to further litigation. An application was
then launched in the Pretoria High Court for an order permitting it to
continue broadcasting pending the outcome of the present appeal.
De Vos J who heard the application refused it on the following basis:
‘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.’
[31] An urgent application on the basis suggested by De Vos J was
launched by Radio Pretoria. It was heard in the Pretoria High Court
by Preller J, who, on 30 June 2004, 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. Final determination included such appeal as
might be prosecuted by either party. In terms of the order by Preller J,
Radio Pretoria was given 180 days after 14 May 2004 within which to
institute the review proceedings.
[32] Before us, Radio Pretoria abandoned its proposed amendment,
contending that the matter should now be determined on the merits,
namely, the correctness of the bases on which the application for a
temporary licence was refused.
[33] In its affidavit in reply to ICASA’s opposition to its proposed
notice of amendment, the deponent on Radio Pretoria’s behalf had

made the following, somewhat cryptic, statements:
‘Respectfully, I am advised to also notify the Honourable Court that the reasons
offered by the Respondents for refusing the Appellant’s application for a four-
year community broadcasting licence, are substantially the same as those
presently under attack and to be considered by this Honourable Court. The
reasons are those dealing with the composition of the Board of Directors, and the
employment policies of the Appellant. This much was common cause in the
proceedings before Preller J. There were two other reasons of a more peripheral
nature which were not seriously relied upon before Preller J.’
[34] Throughout the period from ICASA’s refusal of Radio Pretoria’s
last application for a temporary licence, namely 28 February 2001,
until the present time, Radio Pretoria has continued its radio
broadcasting, in the main in terms of extensions by ICASA or by
arrangements between the parties or through a court order. In terms
of the order made by Preller J, that will continue until the review of
ICASA’s decision in respect of the four-year application is finally
determined.
[35] That review application has not yet been launched. We do not
know the bases of Radio Pretoria’s challenge to the decision or the

details of opposition. The reasons for ICASA’s refusal were not
placed before us.
[36] We invited counsel for Radio Pretoria to give us an assurance
that the facts in respect of these two issues as they were to be
presented to the review court would be identical to those presented to
us and that a decision by this Court would put an end to the disputes
between the parties. Such an assurance was not forthcoming. We
were informed from the bar that, to the best of counsel’s recollection,
during the ICASA hearing on the four-year licence application there
was an indication by Radio Pretoria that it might give consideration to
some of ICASA’s concerns in respect of its employment practices.
We were also informed that, in respect of the issue of community
participation in the governance of Radio Pretoria, there were
additional facts placed before the ICASA hearing concerning
geographical location and regional participation that might impact on
the question of the election of members and of the Board. We were
informed that there might be a change in emphasis or accent in
respect of aspects of Radio Pretoria’s challenge to the refusal of its
application for a four-year licence. The specifics were not supplied.

[37] Counsel for Radio Pretoria submitted that a decision by us on
an interpretation of s 32(3) of the BA Act and on the correctness of
ICASA’s refusal in respect of the employment practice referred to
earlier would be useful as a guide for the court reviewing ICASA’s
decision in respect of the four-year licence application and to other
broadcasters who might experience similar problems. We were
referred to remarks by Bosielo J when he granted leave to appeal on
certain issues (leave in general terms was granted by this Court). The
learned judge said the following:
‘… I have no doubt ... that this matter involves issues of substance and great
importance, not only to the parties themselves but to the broader broadcasting
community, and the public in general.’
[38] The learned judge no doubt had in mind a fixed set of facts
against which a decision by this Court might be made and an ensuing
practical effect or result. He was speaking without the knowledge of
the events that overtook his judgment.
[39] In National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC), Ackermann J said the following at
para [21] (footnote 18) with reference to JT Publishing (Pty) Ltd and

Another v Minister of Safety and Security and Others 1997 (3) SA
514 (CC):
‘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.’
[40] Assuming without deciding, as this Court did in the Western
Cape and Rotek cases, supra, at 83E-F and 63C-E respectively, that
the practical effect or result referred to in s 21A(1) of the SC Act is not
restricted to the parties inter se and that the expression is wide
enough to include a practical effect or result in some other respect,
there is no clear indication that another case on identical facts will
surface in the future. Furthermore, the parties themselves have
indicated that a decision by us will not resolve the issues between
them.
[41] It is clear that the question of a temporary licence is no longer a
live issue. That question is moot. No order by us will impact on Radio
Pretoria’s ability to continue broadcasting until the litigation
concerning ICASA’s decision to refuse the four-year licence
application has been finally resolved. Courts of appeal often have to
deal with congested court rolls. They do not give advice gratuitously.

They decide real disputes and do not speculate or theorise (see the
Coin Security case, supra, at para [7] (875A-D)). Furthermore,
statutory enactments are to be applied to or interpreted against
particular facts and disputes and not in isolation.
[42] We were referred by counsel for Radio Pretoria to the judgment
in Oudebaaskraal (Edms) Bpk en Andere v Jansen van Vuuren en
Andere 2001 (2) SA 806 (SCA) as support for his submission that, in
the circumstances of the present appeal, Radio Pretoria was entitled
to rely on s 21A(3). In terms of this subsection, the question whether
a judgment or order by a court of appeal would have a practical effect
or result may in exceptional circumstances be decided with reference
to considerations of costs. It was submitted on behalf of Radio
Pretoria that the circumstances that prompted the present appeal
were, as in the Oudebaaskraal case, exceptional.
[43] I disagree. The Oudebaaskraal case is distinguishable. Apart
from a costs order the appeal became academic as a result of the
repeal of the Water Act 54 of 1956 at a time when the appeal was
ripe for hearing. This Court held in respect of an argument that the

appeal should be dismissed in terms of s 21A (at 812D):
‘In die onderhawige geval het die saak in die Waterhof etlike dae geduur. Die
oorkonde beslaan 2 379 bladsye. Die appellante is verteenwoordig deur ‘n senior
en ‘n junior advokaat, die respondente deur ‘n prokureur en die Departement
deur ‘n senior advokaat. Verskeie deskundiges is as getuies geroep. Die
verhoorkoste is dus ‘n wesenlike faktor. Verder was die appèl gereed vir verhoor
op die stadium wat die Waterwet herroep is. Ten minste nege kopieë van die
oorkonde, bestaande uit 35 volumes elk, moes voorberei word. Hoofde van
argument was ook reeds geliasseer. Die voormelde oorwegings stel na my
mening buitengewone omstandighede soos bedoel in art 21A(3) daar. Ingevolge
die artikel kan die vraag of die uitspraak of bevel van hierdie Hof ‘n praktiese
uitwerking of gevolg sal hê dus bepaal word met verwysing na oorweging van
koste. Op dié basis sal die uitspraak van hierdie Hof, indien die appèl sou slaag,
wel ‘n praktiese uitwerking of gevolg hê en is hierdie Hof, indien die appèl sou
slaag, wel ‘n praktiese uitwerking of gevolg hê en is hierdie nie ‘n geval waar die
appèl ingevolge die artikel van die hand gewys behoort te word nie.’
In the present matter the appeal is against a judgment in motion
proceedings and the appeal record consists of eight volumes. The
Oudebaaskraal case and the present appeal are not comparable at
all.
[44] In the Groblersdalse Stadsraad case, supra, Olivier JA said the

following at 1143A-C:
‘…Die bedoeling van art 21A van die Wet op die Hooggeregshof is klaarblyklik
om die drukkende werklas van Howe van appèl te verlig. Appèlle behoort slegs
vir beregting voorgelê te word as daar ‘n werklike, praktiese uitwerking of gevolg
van ‘n uitspraak van die Hof van appèl sal wees. Praktisyns behoort dus
deurgaans die doel van art 21A voor oë te hou; in die besonder by ‘n aansoek
om na ‘n hoër Hof te appelleer en by die voortsetting, voorbereiding en
beredenering van die appèl.’
[45] In the Rotek case, supra, at 63H-I the following appears (at
para 26):
‘The present case is a good example of this Court’s experience in the recent
past, including unreported cases, that there is a growing misperception that there
has been a relaxation or dilution of the fundamental principle spelt out in the
Groblerdalse Stadsraad case, above, namely that Courts will not make
determinations that will have no practical effect.’
These statements by this Court continue to be ignored.
[46] The costs order made by us and set out in para [1] was arrived
at after considering what is set out hereafter. By the time ICASA
supplied reasons for refusal of the application for the temporary
licence, the period contemplated therein had already expired and the
relief sought in the notice of motion had been rendered redundant. At

that stage the parties’ attitudes were such that a new application for a
temporary licence would probably have met with the same response.
Although Radio Pretoria’s proposed amendment (now abandoned)
was misconceived in that the relief sought was more appropriately
within the province of a court of first instance, it did require some form
of interim protection pending a resolution of its dispute with ICASA
and its persistence in the appeal at that stage is understandable.
However, when it received the interim order from Preller J on 30 June
2004, pending a final resolution of the dispute concerning the four-
year application it must have been abundantly clear that no purpose
would be served by persisting in this appeal.
[47] These were the considerations on which the dismissal of the
appeal and the related costs order were based.
_________________
MS NAVSA
Judge of Appeal
CONCUR: Mpati
DP
Streicher
JA
Heher
JA
Van Heerden
JA