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.

• Whether the application raised a constitutional matter warranting leave to appeal to the Constitutional Court
• Whether it was in the interests of justice to grant leave to appeal on a matter that had become moot
• Whether the SCA correctly dismissed the appeal as having no practical effect under section 21A(1) of the Supreme Court Act
• The interpretation and enforcement of sections 9(1), 16, 33, 34, 36 and 192 of the Constitution in the context of broadcasting licensing
• The permissible limits to freedom of expression in public broadcasting and the boundaries of licensing conditions that a broadcasting authority may impose

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

For an application for leave to appeal to the Constitutional Court to succeed, it must: (1) raise a constitutional matter (an issue involving the interpretation, protection or enforcement of the Constitution); and (2) it must be in the interests of justice to grant leave to appeal. Whether it is in the interests of justice requires a careful and balanced weighing of all relevant factors, informed by whether hearing the case will advance the interests of justice. Even where important constitutional matters are raised, it is not in the interests of justice to grant leave to appeal where the matter is moot, the decision would have no practical effect, and the actual live controversy between the parties (concerning a different decision) has not been properly brought before the courts through initiated review proceedings. The Court will not decide grave constitutional matters without a proper claim and defence before it, and will not issue advisory opinions on abstract propositions of law.

The Court observed that the case raised very important constitutional issues concerning: (1) the scope of protection of freedom of expression under section 16(1)(a) and (b) of the Constitution in the broadcasting context; (2) the permissible limits to freedom of expression in public broadcasting and electronic media; (3) the character and boundaries of licensing conditions that a broadcasting authority envisaged in section 192 of the Constitution may impose on broadcasters; and (4) the constitutional dimensions of judicial review of broadcasting authority powers under section 33 (administrative justice). The Court expressly refrained from expressing any view on the merits of these constitutional issues. The Court noted that there may be instances where it is in the interests of justice to decide a constitutional matter for the benefit of the broader public, to achieve legal certainty, or for other public purposes, even if the decision is of no practical value to the litigants themselves, but emphasized that this was not such a case.

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.