Independent Communications Authority of South Africa and Others v Open Heaven Community Radio and Others

Open Heaven Community Radio held a class community sound broadcasting licence issued by ICASA under the Electronic Communications Act 36 of 2005. The licence was renewed in 2017 with an effective date of 12 September 2017 and an expiry date of 11 September 2022, based on a five-year validity period prescribed at the time. In March 2021, ICASA amended its regulations to extend the validity of such licences to seven years. In 2022, due to internal governance challenges, Open Heaven failed to submit its notice of intention to renew its licence at least six months before expiry, as required by s 19(2) of the ECA, and was 14 days late. ICASA refused to accept the late renewal notice, asserting it lacked statutory power to condone non-compliance, and instructed Open Heaven to cease broadcasting. Open Heaven approached the High Court seeking declaratory and review relief. The High Court held that ICASA could condone late renewal notices but rejected the argument that the 2021 regulations automatically extended the licence period. Both ICASA and Open Heaven appealed to the Supreme Court of Appeal.

The appeal by ICASA was dismissed. The cross-appeal by Open Heaven was upheld. The High Court’s order was set aside and substituted with a declaration that, in terms of regulation 4 of the 2021 regulations, a class broadcasting service licence is valid for seven years from its effective date, and that Open Heaven’s licence was valid for seven years from its effective date. ICASA was ordered to pay the costs of the appeal and cross-appeal, including the costs of two counsel.

The judgment clarifies that ICASA has an implied discretion to condone late renewal notices under s 19(2) of the ECA, reinforcing a purposive and flexible approach to administrative compliance in South African law. It also authoritatively interprets the 2021 broadcasting regulations as extending the duration of existing class broadcasting licences, providing certainty to community broadcasters and regulators regarding licence validity periods.