Independent Communications Authority of South Africa and Others v Open Heaven Community Radio and Others (1133/2023) [2025] ZASCA 117 (12 August 2025)

Independent Communications Authority of South Africa and Others v Open Heaven Community Radio and Others (1133/2023) [2025] ZASCA 117 (12 August 2025)

The Supreme Court of Appeal held that ICASA has the discretion to condone late submissions of renewal notices for class broadcasting licences under s 19(2) of the Electronic Communications Act, as the six-month period is intended for ICASA’s administrative benefit. The court found that substantial compliance with...

Source-derived case information.

Citation
[2025] ZASCA 117
Parties
Appellant: Independent Communications Authority of South Africa; Appellant: Dr Charley Lewis NO; Appellant: Mketheleni Gidi NO; Respondent: Open Heaven Community Radio; Amicus Curiae: South African Community Radio Organisation
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 August 2025
Case Number
1133/2023
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed; cross-appeal upheld. High court order set aside and replaced with declaratory relief in favour of the respondent. Costs awarded against ICASA for both appeal and cross-appeal.
Judges
Dambuza, Mbatha, Dolamo
Legal Topics
Broadcasting Licence Renewal, Retrospective Application of Regulations, Condonation of Late Filing, Statutory Interpretation, Regulatory Discretion
Telecoms and Media Administrative Law Broadcasting Licence Renewal Retrospective Application of Regulations Condonation of Late Filing Statutory Interpretation Regulatory Discretion

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Summary, issues, holding and outcome

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Parties

Independent Communications Authority of South Africa

Appellant

Dr Charley Lewis NO

Appellant

Mketheleni Gidi NO

Appellant

Open Heaven Community Radio

Respondent

South African Community Radio Organisation

Amicus Curiae

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether ICASA has statutory powers to condone late submission of a notice of renewal of a class broadcasting licence under s 19(2) of the Electronic Communications Act 36 of 2005.
  2. 2 Whether the 2021 regulations automatically extended the respondent’s class broadcasting licence by a period of two years.
  3. 3 Whether the presumption against retrospectivity applies to the 2021 regulations.

Ratio Decidendi

The Supreme Court of Appeal held that ICASA has the discretion to condone late submissions of renewal notices for class broadcasting licences under s 19(2) of the Electronic Communications Act, as the six-month period is intended for ICASA’s administrative benefit. The court found that substantial compliance with the statutory purpose suffices and that ICASA should have considered Open Heaven’s late renewal notice, which was only 14 days out of time. Regarding the 2021 regulations, the court determined that the extension of licence validity from five to seven years applies to all class licences from the effective date, not only to new licences issued after the regulations came into...

Court Disposition

Appeal dismissed; cross-appeal upheld. High court order set aside and replaced with declaratory relief in favour of the respondent. Costs awarded against ICASA for both appeal and cross-appeal.

Orders

  • It is declared that in terms of regulation 4 of Government Notice 44328 of 25 March 2021, the period of validity of a Class Broadcasting Service Licence is seven years from the effective date.
  • It is declared that the applicant’s Class Broadcasting Service Licence is valid for a term of seven years from the effective date.