The applicant was formed by Harare residents in 2003 and registered as a Trust in 2006 with the objective of establishing a community radio in Harare. On 28 September 2010, the applicant submitted an application for a community radio broadcasting licence to the first respondent (Broadcasting Authority of Zimbabwe). The first respondent rejected the application on 24 January 2011, stating that in terms of section 10 of the Broadcasting Services Act, applications can only be received after an invitation for such applications has been published by the Authority. The applicant alleged that since its establishment more than 11 years prior, the first respondent had never invited applications and never issued a Community Radio Licence, constituting a dereliction of duty. The applicant sought an order compelling the first respondent to call for applications and to consider its application, and if the first respondent failed to comply, the licence should be deemed granted.
The application was dismissed with costs.
A trust, not being a juristic person or body corporate, lacks locus standi to apply for a community radio broadcasting licence under section 8(3) of the Broadcasting Services Act, which permits such licences to be issued only to bodies corporate. For a mandamus to be granted, the applicant must establish a clear or definite right, and where such a right cannot be demonstrated due to statutory disqualification, the application must fail regardless of the merits of other arguments.
The court observed that it was unfortunate that the first respondent had not included Community Radio stations in its published statement of priorities, meaning consideration of such services would be delayed. However, the court noted that the propriety of that statement of priorities was not the subject of the present application. The court also stated that the application was not about protection of freedom of expression enshrined in the Constitution, nor about the validity of section 8 of the Broadcasting Services Act, nor about challenging the priority plan published by the first respondent. The court indicated it was not persuaded that the applicant would have established the remaining requirements for a mandamus even if locus standi had been proved, but found it unnecessary to address these issues given the threshold failure on standing.
This case is significant as it clarifies the requirements for standing to apply for broadcasting licences in Zimbabwe, particularly emphasizing that trusts, lacking corporate personality, cannot apply for community radio broadcasting licences under the Broadcasting Services Act. The case demonstrates the strict application of statutory requirements regarding the legal personality of entities seeking broadcasting licences and reinforces the principle that procedural and substantive legal requirements must be met before seeking mandamus relief. While this is a Zimbabwean case and not binding in South African law, it may have persuasive value in similar contexts involving trust law and administrative law remedies.