THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE  NO: 296/06

In the matter between :

RADIO PRETORIA
Appellant

and

THE CHAIRPERSON OF THE INDEPENDENT
COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
First Respondent

and

THE INDEPENDENT COMMUNICATIONS AUTHORITY
OF SOUTH AFRICA
Second Respondent
___________________________________________________________________________
Before:
HOWIE P, STREICHER, BRAND JJA, HANCKE & MUSI AJJA
Heard:
4 MAY 2007
Delivered:
8 JUNE 2007
Summary:

Administrative law – refusal of broadcasting licence reviewed –

application not properly considered.

Neutral citation:
This judgment may be referred to as Radio Pretoria v The
Independent Communications Authority of South Africa [2007] SCA
90 (RSA)
___________________________________________________________________________

STREICHER  JA

STREICHER JA:

[1] This is an appeal against the dismissal by the High Court, Pretoria of
an application by the appellant for the review of a decision by the second
respondent not to grant the appellant a community broadcasting licence.1 The
court a quo granted the appellant leave to appeal to this court. The main
contention of the appellant on appeal is that the second respondent’s refusal
of its application for a broadcasting licence should be set aside in that the
second respondent treated the appellant’s application as an application for a
licence to broadcast to a certain area whereas the application was for a
licence in respect of a different area.

[2] The second respondent, the Independent Communications Authority of
South Africa (‘Icasa’), is a juristic person established in terms of s 3 of the
Independent Communications Authority of South Africa Act 13 of 2000 (‘the
Icasa Act’), to perform, with effect from 1 July 2000, the duties imposed
upon the Independent Broadcasting Authority (‘IBA’) by or under the
Broadcasting Act 4 of 1999 and the Independent Broadcasting Authority Act
153 of 1993 (‘the IBA Act’).2 For this purpose all the powers conferred upon
the IBA in terms of the IBA Act were conferred on Icasa.3 Included among
these is the power to administer the statutory scheme for the granting,
renewing and amending of broadcasting licences.4

[3] Section 39 of the IBA Act provides that subject to the provisions of the
Act, a person shall not provide a broadcasting service unless such service is
provided under and in accordance with a broadcasting licence issued to that

1 The judgment of the court a quo is reported as Radio Pretoria v Voorsitter van die Onafhanklike
Kommunikasie-owerheid [2006] 1 All SA 143 (T).
2 Section 4 of the Icasa Act. The Independent Broadcasting Authority was established in terms of s 3 of the
IBA Act and was, with effect from 1 July 2000, dissolved in terms of s 18 of the Icasa Act.
3 Section 4 of the Icasa Act.
4 Section 13(1)(a) of the IBA Act.

person by the IBA under Chapter VI (sections 39 to 55) of the IBA Act. The
Chapter makes provision for the issuing of various types of broadcasting
licences. One such licence is a community broadcasting licence.5

[4] Acting in terms of section 41 of the IBA Act the IBA, on 9 May 1997,
in terms of a notice published in the Government Gazette6, invited
applications for broadcasting licences to provide community sound
broadcasting services. The notice stated that the IBA decided to produce an
interim community radio frequency plan (‘the RFP’) on a province by
province basis, containing all FM and MW frequencies that were available
for community broadcasting in all nine provinces until such time as the
national frequency plan had been finalised.7 According to the RFP each
province was divided into numbered licence areas indicated on an index map
and the frequencies, the maximum effective radiated power (‘the ERP’) of
the transmitter and the maximum permissible effective antenna height that
could be used from each such licence area were specified. Applicants had to
perform a coverage study from the proposed transmitter site and a copy of
such coverage study had to accompany each application. The target area to
which an applicant wanted to transmit had to be identified and well defined
as this target area or part of it was to form part of the licence conditions.
Transmitters had to be so located as to ensure that the target area and licence
area overlap. An application form was provided and applicants were required
to answer all the questions set out in the form. Under the heading ‘Licence(s)
Applied for’ an applicant had to specify the licence area, band, frequency,
maximum ERP and maximum effective antenna height. Applicants were also

5 Section 47 of the IBA Act.
6 Notice no 785 of 1997 published in Government Gazette 17998.
7 As from 28 January 1994 all powers, functions and duties in relation to the administration, management,
planning and use of the broadcasting services frequency bands devolved upon or vested in the IBA (s 29(1)).
As soon as reasonably practicable after the commencement of the IBA Act the IBA had to prepare a
frequency plan whereby the maximum number of frequencies available for broadcasting services was
determined. (s 31).

required to provide particulars of the geographic target area ‘including a map
showing predicted 66, 60 and 48 dBuV/m coverage contours’.

[5] From the aforegoing it is clear that a distinction is drawn in the RFP,
the invitation and the application form between licence areas and target areas.
The licence area referred to in the RFP, the invitation and the application
form is the area from which the broadcasting on the prescribed frequency
could take place ie the site where a transmitter complying with the prescribed
parameters could be located. The target area in terms of these documents, on
the other hand, is the area to which the applicant wishes to broadcast.
However, in terms of s 1 of the IBA Act ‘licence area’ is defined as ‘the
geographical target area of a broadcasting service as specified in the relevant
broadcasting licence’. It follows that the ‘licence area’ referred to in the
invitation and in the prescribed application form, is not to be equated with
‘licence area’ within the meaning of the IBA Act. It is the target area to
which the applicant wishes to broadcast that is to be equated with such
‘licence area’. In order to avoid confusion I shall henceforth refer to the
licence areas contemplated in the RFP, the invitation and the application form
as RFP licence areas.

[6] A community and a community broadcasting service are defined in s 1
of the IBA Act as follows:
‘“community” includes a geographically founded community or any group of persons or
sector of the public having a specific, ascertainable interest.’
‘”community broadcasting service” means a broadcasting service which –
(a)
is fully controlled by a non-profit entity and carried on for non-profitable
purposes;
(b)
serves a particular community;
(c)
encourages members of the community served by it or persons associated with
or promoting the interests of such community to participate in the selection and

provision of programmes to be broadcast in the course of such broadcasting
service; and
(d)
. . .’

[7] The appellant is an association not for gain incorporated in terms of
s 21 of the Companies Act 61 of 1973. In 1995 a one year temporary
community broadcasting licence was granted to the applicant and since that
time it has been broadcasting on the frequency 104.2 MHz. Initially it did so
in terms of five consecutive temporary one-year community broadcasting
licences authorizing it to broadcast in Pretoria and environs. Pursuant to the
invitation to apply for four year community broadcasting licences the
appellant, in March 1998, applied for such a licence in respect of RFP licence
area 21. Subsequently, in the light of the fact that, in terms of the RFP,
frequency 104.2 MHz was only available in licence area 18, the RFP licence
area applied for was changed to RFP licence area 18.

[8] In its application for a licence the appellant states:
(a)
That the community it wishes to serve is the ‘Boere-Afrikaner’
community. He describes the Boere-Afrikaner as follows:
‘Boere-Afrikaner is the conservative core of Afrikaners with the following characteristics:
-
A common cultural-historical descent and heritage of some 350 years;
-
A west European language and cultural heritage;
-
A Protestant Christian religion and view of world affairs;
- A common goal in maintaining and promoting their cultural and religious values
and identity.’

(b)
That Pretoria, Johannesburg and districts is the target area to which
it wishes to broadcast and that, as required by the invitation, a map
showing the expected reception area is annexed to the application.
(c)
That there are 546 646 Afrikaans speakers in the districts which are
targeted and that they are distributed as follows:

Area 18
Bronkhorstspruit/Cullinan (Source op
datum opnames)
= 18 960
Area 21
(Kleinfontein)
Area 20

Area 19
=  527 686
Area 17
Area 22
Area 23

(Source 1996 Census)

=  546 646’ (881)
These areas (17-23) are clearly the RFP licence areas.

[9] In the light of the fact that a broadcasting licence is issued in respect of
a target area and the fact that the appellant made it clear in its application that
the target area to which it wished to broadcast comprised RFP licence areas
17 to 23, the application was for a licence to broadcast to RFP licence areas
17 to 23 by way of a transmitter and antenna complying with the parameters
prescribed in respect of RFP licence area 18 and located in RFP licence area
18.

[10] The hearing of the applicant’s application only took place on 9 May
2003. At the hearing the appellant’s representatives made it clear that
appellant required a licence to broadcast to its target area and not to RFP
licence area 18. Counsel for the appellant, referring to the maximum ERP of
10 000 Watt specified in the RFP for RFP licence area 18 said:
‘If the maximum ERP, which has been available for a decade and which appears in the
invitation to apply is to be reduced in any way, the applicant will not be able to reach its
target audience in neighbouring areas and equally importantly its advertisers and debit
order subscribers.  . . . This will effectively mean the end of Radio Pretoria and render a
four-year licence with a limited ERP to cover only the licence area quite useless.’

Mr Diedericks a member of the applicant’s senior management added:
‘Our target population is outside area 18. So if we are confined to area 18, you know,
we’re off the air in practice. Also our income is from the Pretoria area and environments.
So that has been our target area and our target audience all along. If we cut down to area
18, that is as good as Mr Prinsloo has said it’s just like shutting us down.’

[11] On 30 September 2003 Icasa advised the appellant that its application
had been refused. In May 2004 the following four reasons for the refusal
were furnished:
(a)
The appellant does not comply with s 32(3) of the Broadcasting Act 4
of 1999 in that the appellant is not managed and controlled by a board
which was democratically elected from members of the community in
the licensed geographic area. In the entire Gauteng the appellant has
only 54 members, only three of whom are from licence area 18.
(b)
The appellant does not comply with Icasa’s requirement that measures
be taken to ensure that the people in its policy-making structures are
representative of the community to be served in that only one of its ten
directors emanates from the community to be served, being the Boere-
Afrikaner community in licence area 18.
(c)
The appellant does not comply with the standard condition, imposed
by Icasa when issuing a broadcasting licence, that the licensee must
ensure equal employment opportunity practices and must at all times
ensure that the composition of its management and staff reflects the
racial and gender demographics of the community it serves. The
appellant does not comply with these requirements in that members of
the Boere-Afrikaner community are employed by preference and only
Boere-Afrikaners, who are inevitably white, qualify for appointment as
voluntary workers.
(d)
Having regard to the broadcasting services already available in the
relevant licence area Icasa is not satisfied that there is sufficient need

for the applicant’s service as contemplated in s 46(1)(b) read with
s 47(2) of the IBA Act.

[12] The appellant thereupon applied to the court a quo for the review and
setting aside of Icasa’s refusal of its application. The court a quo held that
Icasa’s refusal to grant the applicant’s licence by reason of not being satisfied
that there is a need for the applicant’s service was irrational and should be set
aside. The correctness of this decision is not in issue before us. Nonetheless
the court a quo concluded that Icasa’s decision to refuse the application for
the other three reasons mentioned above was well founded and dismissed the
application.

[13] Before us the appellant’s main submission why Icasa’s decision should
be reviewed and set aside is that the appellant’s application was never
considered by Icasa in that Icasa treated the application as an application for
a community broadcasting licence in respect of RFP licence area 18 whereas
the application was for a licence to broadcast to a target area comprising RFP
licence areas 17 to 23.

[14] As stated above the appellant in fact applied for a licence in respect of
the target areas comprising RFP licence areas 17-23. It is, however clear and
indeed common cause that Icasa treated the application as one for a licence in
respect of RFP licence area 18.

[15] Counsel for Icasa submits that this line of attack on Icasa’s refusal of
the application is not open to the appellant in that it is not one of the grounds
relied upon in the appellant’s founding affidavit. I do not agree. In regard to
the first reason for refusal of its application by Icasa the appellant said in its
founding affidavit:

‘[T]he Applicant’s detailed application, which served before the Respondents, makes clear
provision for the fact that the target audience and broadcasting area of the Applicant
extends well beyond the boundaries of licence area 18.
. . .
In this case, the “democratic” requirement lies in the election of the directors, through
majority vote, from the ranks of the target audience . . ..
. . .
In the present instance, there can be no doubt that the elected Directors hail from the target
broadcasting area [Boere-Afrikaners spread over most of Gauteng, and some even coming
from licence area 18] . . ..
. . .
If the Directors only had to be elected from the ranks of listeners in licence area 18, it
would be grossly unfair [and undemocratic] from the point of view of the hundreds of
thousands of listeners in the target broadcasting area beyond licence area 18.’

[16] In regard to the second reason for Icasa’s refusal of its application the
appellant said that it is wrong to confine the Boere-Afrikaner community of
interest to licence area 18  and that ‘it also seems to suggest that the other
half a million Boere-Afrikaners who form part of the target broadcasting
community of the Applicant for purposes of this application, may as well not
exist.’

[17] Although the appellant did not specifically say that Icasa’s decision
should be reviewed because it never considered its application for a licence in
respect of a target area comprising RFP licence areas 17 to 23 it did say that
Icasa erred in confining its application to RFP licence area 18 in that its target
area is much wider. That allegation provided a sufficient basis for the
submission now advanced namely that Icasa treated the application as being
an application for a licence in respect of RFP licence area 18 and failed to
consider the real application being an application for a licence in respect of a
much wider area namely a target area comprising RFP licence areas 17 to 23.

[18] The respondents submit that the RFP is to the effect that the target area
to which a licensee is entitled to transmit its signal (which it must specify in
its application and which will be specified in its licence) must substantially
be encompassed by one of the numbered licence areas identified in the RFP.
According to the submission the geographical parameters of a particular
numbered RFP licence area circumscribe the maximum extent of the
transmission area of a licensee who holds a licence in respect of that
numbered licence area. The only basis advanced for this submission (apart
from unsubstantiated submissions by counsel in respect of technical matters)
is that the construction is consistent with the express requirement of the RFP
that the transmitter should be located so as to ensure that the target area and
the licence area overlap. The respondents submit that to require that these
two areas overlap is to require that they substantially overlap. However,
according to the ordinary meaning of the word ‘overlap’ the two areas need
merely coincide to some extent, even a minor extent will suffice.

[19] I doubt that the RFP is to the effect that the RFP licence area and the
target area in respect of which a licence is sought should substantially
coincide. For each RFP licence area the RFP prescribes the maximum power
of the transmitter and the maximum height of the antenna that may be used.
In the case of RFP licence area 18, transmission by way of such a transmitter
and antenna would reach a much wider area comprising various other RFP
licence areas. It would make no sense to require a broadcaster to apply for a
separate licence, to transmit on a different frequency, in respect of each of
those areas. It seems to me that Icasa’s interpretation of the RFP is wrong.
However, this is not an issue to be decided at this stage. The appellant’s
application was not refused for this reason as its application was not treated
as an application in respect of the target area identified by it. The appellant is

entitled to have its application considered by Icasa and only when that is
done will it be necessary to determine whether Icasa’s understanding of the
RFP is correct.

[20] The respondents also submit that Icasa’s reasons for refusing the
appellant’s application for a licence applied with equal force to an application
by the appellant for a licence in respect of the target area identified in its
application and that the application for the review of Icasa’s decision should,
in any event, for this reason not have succeeded. The submission is wrong in
that some of the reasons do not apply with equal force to an application for a
licence in respect of the target area. It is, in any event, no answer to the
appellant’s complaint to say that the reasons for the dismissal apply with
equal force to an application for a licence in respect of the appellant’s target
area. The appellant is entitled to have its application considered by Icasa.
Icasa failed to consider the appellant’s application for a community
broadcasting licence in respect of the target area identified by it and by
treating it as an application for a licence in respect of RPF licence area 18 it
acted so unreasonably and irrationally that its decision should be set aside.8
[21] The court a quo should therefore have reviewed and set aside Icasa’s
refusal of the appellant’s application and should have referred the matter
back to Icasa for reconsideration.
[22] In the light of the fact that the appellant’s application will be
reconsidered by Icasa the following additional comments should be made in
respect of the reasons furnished by Icasa for the refusal of the application:
(a)
Icasa interpreted s 32(3) of the Broadcasting act 4 of 1999 so as to
require that the board which manages and controls the licensee of a
community broadcasting service must be democratically elected by

8 See s 6(2)(f)(ii) and (h) of the Promotion of Administrative Justice Act 3 of 2000.

members of the community in the licensed geographic area, whereas
the section requires that such board must be elected from and not by
such members.9  Furthermore, the people taking part in the democratic
election cannot be the community being served by the applicant for a
broadcasting licence as was thought to be the case by Icasa.  In terms
of the definition of a community broadcasting service in s 1 of the IBA
Act, the licensee must be fully controlled by a non-profit entity. Unless
the members of the appellant’s board are elected by the members of the
appellant the broadcasting service cannot be said to be fully controlled
by the appellant.
(b)
Icasa required equal employment opportunity practices in the sense
that all races should be given an equal opportunity to be employed by
the appellant and also required a composition of management and staff
which reflects the racial and gender demographics of the community
the appellant serves. These requirements are contradictory in that, by
definition, the community served by the appellant does not include all
races.

[23] As a consequence of the refusal of the appellant’s application for a
community broadcasting license an application by the appellant for a signal
distribution licence was refused. The appellant asked that, in the event of the
application for the setting aside of the refusal of the former application being
successful, the refusal of the latter application also be set aside and referred
back to Icasa for reconsideration. The respondents did not object to this
request.

[24] For these reasons the following order is made:

9 Section 32(2) and (3) of the Broadcasting Act 4 of 1999 read as follows:
‘(2) The licence of a community broadcasting service must be held by a licensee.
(3) 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.’

(1)
The appeal is upheld with costs including the costs of two
counsel.
(2)
The order of the court a quo is set aside and replaced with the
following order:
(a)
The second respondent’s refusal of the applicant’s application for a
community broadcasting licence and the applicant’s application for a
signal distribution licence are set aside and the applications are referred
back to the second respondent for reconsideration.
(b)
The respondents, jointly and severally, are ordered to pay the costs of
the application.

____________________
P E STREICHER
JUDGE OF APPEAL

CONCUR:

HOWIE P)
BRAND JA)
HANCKE AJA)
MUSI AJA)