Radio Pretoria v The Chairperson of the Independent Communications Authority of South Africa and Another

Radio Pretoria was a community broadcaster serving the "Boere-Afrikaner" community, which began operating in 1993. From 1995 to 1999, it received annual temporary community broadcasting licences from the IBA (later ICASA). In March 1998, Radio Pretoria applied for a permanent four-year licence. In February 2000, it applied for a sixth temporary one-year licence for the year ending April 2001. ICASA established a committee to evaluate the application, which held hearings. Issues arose concerning the democratic election of Radio Pretoria's board of directors and its policy of employing only "Boere-Afrikaners". On 28 February 2001, ICASA refused to grant the temporary licence. Radio Pretoria sought judicial review in the High Court, which dismissed the application in January 2003. The SCA dismissed the appeal on 2 September 2004 under section 21A(1) of the Supreme Court Act, finding the matter moot as the temporary licence period had expired. Radio Pretoria also applied for a four-year licence in 2003, which ICASA refused on 30 September 2003. Radio Pretoria continued broadcasting under successive interim court orders pending litigation.

The application for leave to appeal was dismissed. No order as to costs was made.

This case clarifies the Constitutional Court's approach to applications for leave to appeal in moot cases. It demonstrates that even where important constitutional issues are raised (concerning broadcasting regulation, freedom of expression, and administrative justice), the Court will refuse leave to appeal if deciding the matter would serve no practical purpose and the actual live controversy (the four-year licence dispute) has not been properly brought before the courts. The judgment reinforces that the Constitutional Court will not issue advisory opinions on abstract propositions of law, even on matters of constitutional importance, where the specific factual dispute is not properly before it. The case also touches on significant but undecided constitutional issues regarding the interpretation of section 192 of the Constitution (independent broadcasting authority), the scope of section 16 freedom of expression rights in broadcasting, and the limits that may be imposed on broadcasters through licensing conditions.