- within International Law, Environment and Antitrust/Competition Law topic(s)
In Independent Communications Authority of South Africa ("ICASA") and Others v Open Heaven Community Radio ("Open Heaven") and Others, the South African Supreme Court of Appeal ("SCA") provided clarity regarding whether ICASA has the power to condone a late submission of a notice of renewal of a broadcasting license. The SCA also confirmed the retrospective application of the Regulations relating to broadcasting licenses published by ICASA in 2021.
Legal framework
ICASA is a statutory body established in terms of section 3 of the Independent Communications Authority Act, 2000 ("ICASA Act"). Section 2 of the ICASA Act states that the purpose of ICASA is to regulate broadcasting in the public interest and to ensure fairness and a diversity of views representing the South African society.
Section 4 of the Electronic Communications Act, 2005 ("ECA") provides that ICASA may make regulations regarding matters falling within the scope of the ECA or other related legislation. This includes regulations pertaining to the granting, amendment, renewal, transfer or disposal of broadcasting licenses.
A party seeking to renew its broadcasting license must, in writing and not less than six months prior to the expiration of the broadcasting license, notify ICASA of their intention to continue to provide broadcasting services in terms of section 19(2) of the ECA.
The 2010 Regulations provided for a class community sound broadcasting license to be valid for five years. In March 2021, these Regulations were amended and the period of validity for this type of license was amended to seven years.
Background
Open Heaven acquired a class community sound broadcasting license on 12 September 2012, which was renewed on 26 May 2017 for a further five years, expiring on 11 September 2022. Following the renewal in 2017, ICASA published new Regulations in 2021, lengthening the period of validity for the license from five years to seven years.
In late 2021, Open Heaven experienced governance issues. It gave notice to ICASA on 30 March 2022 to renew its license. This, however, was done 14 days out of the six month period prescribed under section 19(2) of the ECA. ICASA refused to accept the application on the grounds that it was out of time. Subsequently, Open Heaven wrote to ICASA on 15 June 2022, pleading for condonation for the late filing of its renewal notice.
Following Open Heaven's plea for condonation, ICASA's response was that it had no legislative authority or regulatory discretion to condone non-compliance, if a licensee fails to file its renewal application within the six month prescribed period.
Consequently, Open Heaven instituted review proceedings in the Gauteng Division of the High Court, Pretoria. Open Heaven sought to review and set aside ICASA's refusal to process the notice of renewal of its broadcasting license. It also sought a declaratory order to the effect that the 2021 Regulations applied retrospectively, in other words that its license granted in 2017 would be valid for seven years, opposed to five years.
Proceedings in the High Court
The Gauteng Division of the High Court, Pretoria, held that ICASA does not have the legislative authority or power to grant condonation for the late filing of a renewal application for a broadcasting license. Despite this, the court explained that the law permits condonation of non-compliance with peremptory requirements in cases where condonation is not incompatible with the public interest and if the condonation is granted by the body for whose benefit the powers were enacted. The court found that the most probable purpose for the six months' time limit in section 19(2) of the ECA is to afford ICASA sufficient time to process an application for renewal. Holding otherwise would mean that the legislature arbitrarily and for no reason at all enacted the time limit, the court reasoned. It was held that ICASA may, in its discretion, waive the six-month time limit.
In respect of the 2021 Regulations applying retrospectively to existing licenses prior to the Regulations coming into effect, the court rejected the argument that the 2021 Regulations automatically added an additional two years of validity to existing licenses.
Open Haven was unsuccessful in the High Court. As such, the court dismissed the review application and ordered Open Haven to pay the costs of the application.
Proceedings in the SCA
The SCA held along the same lines as the High Court, namely, that section 19(2) of the ECA was enacted for the benefit of ICASA, the six month lead-time being for ICASA's administrative convenience. From a purposive reading of the ICASA Act, the court held that ICASA has the discretion to condone late notices of intention to renew licenses.
Regarding the issue of the retrospective application of the 2021 Regulations, the court acknowledged that the issue had become moot as Open Haven's license had already expired, even if its contentions that the 2021 Regulations applied retrospectively and its license being valid for seven years were correct. Despite this, the SCA highlighted that it would be in the interests of justice to determine the appeal, as an order regarding the retrospective application of the 2021 Regulations would impact more entities than just Open Haven and ICASA.
Whilst the SCA was mindful of the presumption against the retrospective application of laws, the court explained that this presumption is to protect against the invasion of a vested right by a new legislative enactment. The presumption is not intended to exclude the benefit of rights sanctioned by new laws. In light of the fact that the 2021 Regulations were intended to confer a benefit by increasing the period of validity of a license from five years to seven years, the SCA held that the presumption against retrospectivity does not apply.
Open Haven was successful in the appeal and the SCA ordered ICASA to pay the costs of the High Court review, as well as the costs of the appeal, including the costs of three counsel.
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