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 service licence granted by ICASA (the Independent Communications Authority of South Africa) in 2012 and renewed on 26 May 2017 with an effective date of 12 September 2017 and an expiry date of 11 September 2022. The licence was originally valid for five years under the 2010 regulations. On 25 March 2021, ICASA promulgated the 2021 regulations extending the period of validity of class broadcasting licences to seven years. During November 2021, Open Heaven experienced governance challenges that affected its operations. It sought and received advice from ICASA to hold an AGM to elect a new board. Before the AGM, on 23 March 2022, ICASA advised Open Heaven that it had failed to renew its licence timeously and must cease broadcasting on 11 September 2022. On 30 March 2022, Open Heaven gave notice for renewal of its licence, 14 days outside the six-month period stipulated in s 19(2) of the Electronic Communications Act 36 of 2005. ICASA refused to accept the application as out of time. On 15 June 2022, Open Heaven requested condonation for the late filing, which ICASA rejected stating it had no legislative authority to condone non-compliance. Open Heaven then approached the High Court seeking an interdict, review and a declarator that its licence had been automatically extended to seven years by the 2021 regulations.

• Whether ICASA has statutory powers to entertain a notice of renewal of a class broadcasting licence submitted outside the period stipulated under s 19(2) of the Electronic Communications Act 36 of 2005
• Whether ICASA has discretion to condone late filing of notices of renewal of class broadcasting licences
• Whether the 2021 amendments to the Standard Terms and Conditions Regulations for Class Licenses applied retrospectively to existing licences
• Whether Open Heaven's class broadcasting licence was automatically extended from five to seven years by the 2021 regulations

The appeal was dismissed. The cross-appeal was upheld. The order of the high court was set aside and substituted with a declaration that: (i) 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; (ii) Open Heaven's Class Broadcasting Service Licence is valid for a term of seven years from the effective date; (iii) Open Heaven's notice of renewal is remitted back to ICASA to be processed; (iv) ICASA is ordered to pay costs. The appellant was ordered to pay the costs of the appeal and cross-appeal, including costs of two counsel.

ICASA, as the beneficiary of the six-month notice period stipulated in s 19(2) of the Electronic Communications Act, has discretion to condone late notices of intention to renew class broadcasting licences where there has been substantial compliance with the object of the statutory provision. The six-month period is for ICASA's administrative benefit, not a jurisdictional requirement. Regulation 4 of the 2021 regulations extending the validity period of class broadcasting licences from five to seven years applies retrospectively to all existing licences. The presumption against retrospectivity does not apply where the legislation confers a benefit rather than invading vested rights. The amended regulations define validity by reference to the "effective date" in a licence without limitation to new licences, and must be interpreted purposively to extend the benefit to all class licensees.

The Court observed that the appeal and cross-appeal should be determined despite mootness because the issues raised affect not only the parties but other existing licensees and community broadcasters in similar positions. The Court noted that while the principle expressio unius est exclusio alterius (express mention of one thing excludes another) still applies in South African law, its application is limited and must be considered within the parameters of context and overall purpose of the document under interpretation. The Court remarked that if ICASA intended to limit the extended validity period only to new licences granted after 25 March 2021, one would expect to find such an express provision in the regulations themselves. The Court emphasized that the modern approach to statutory interpretation has discarded the strict mechanical distinction between "mandatory/peremptory" and "directory" provisions.

This judgment is significant for several reasons: (1) it clarifies the extent of ICASA's powers to condone non-compliance with statutory time limits in the broadcasting regulatory framework; (2) it confirms that administrative authorities established for public benefit have inherent discretion to condone technical non-compliance with procedural requirements where this serves the purpose of the enabling legislation; (3) it provides important guidance on the retrospective application of beneficial regulatory amendments, particularly in the administrative law context; (4) it reinforces the modern purposive approach to statutory interpretation as opposed to mechanical formalism; (5) it has practical implications for numerous community broadcasters who hold class licences and the regulatory relationship between ICASA and licensees; and (6) it demonstrates the application of constitutional principles of legality and reasonableness to administrative decision-making in the communications sector.