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

Radio Pretoria, an association not for gain incorporated under s 21 of the Companies Act 61 of 1973, had been broadcasting on frequency 104.2 MHz since 1995 under temporary one-year community broadcasting licences. In March 1998, pursuant to an invitation by the Independent Broadcasting Authority (later replaced by ICASA), Radio Pretoria applied for a four-year community broadcasting licence. The application was for a licence to broadcast to a target area comprising RFP (Radio Frequency Plan) licence areas 17 to 23, serving the "Boere-Afrikaner" community (described as conservative core Afrikaners with common cultural-historical descent, West European language and cultural heritage, Protestant Christian religion). The transmitter would be located in RFP licence area 18. The application stated the target area included Pretoria, Johannesburg and districts, with approximately 546,646 Afrikaans speakers. The hearing of the application only took place on 9 May 2003. On 30 September 2003, ICASA refused the application. In May 2004, ICASA provided four reasons for refusal, all based on treating the application as being for a licence limited to RFP licence area 18 only.

• Whether ICASA properly considered Radio Pretoria's application for a community broadcasting licence
• Whether ICASA erred in treating the application as one for a licence limited to RFP licence area 18 when the application was for a broader target area comprising RFP licence areas 17 to 23
• Whether ICASA's interpretation of s 32(3) of the Broadcasting Act 4 of 1999 was correct
• Whether ICASA's equal employment opportunity requirements were contradictory given the defined community served

The appeal was upheld with costs including the costs of two counsel. The order of the High Court was set aside and replaced with an order that: (1) ICASA's refusal of Radio Pretoria's applications for a community broadcasting licence and a signal distribution licence were set aside and the applications were referred back to ICASA for reconsideration; and (2) the respondents were ordered to pay the costs of the application jointly and severally.

An administrative body acts unreasonably and irrationally, and its decision is reviewable and must be set aside, when it fails to consider the actual application before it and instead treats the application as being for something materially different. Where an applicant for a community broadcasting licence clearly applies for a licence to broadcast to a defined target area comprising multiple RFP licence areas, and the licensing authority treats the application as being limited to only one RFP licence area, the licensing authority has failed to consider the actual application and its decision refusing the application must be set aside and referred back for proper consideration. Section 32(3) of the Broadcasting Act 4 of 1999 requires that the board managing and controlling a community broadcasting licensee must be democratically elected "from" (not "by") members of the community in the licensed geographic area.

The Court expressed doubt about ICASA's interpretation that the RFP requires the RFP licence area and the target area to substantially coincide, noting that "overlap" in its ordinary meaning requires only some coincidence, even to a minor extent. The Court observed that it would make no sense to require a broadcaster to apply for separate licences on different frequencies for each RFP licence area when transmission from one RFP licence area with prescribed maximum power would reach multiple RFP licence areas. However, the Court declined to definitively decide this issue, noting it was not necessary to do so at that stage and that the appellant was entitled to have its application properly considered first. The Court also noted that ICASA's requirement for equal employment opportunity practices (requiring all races to be given equal opportunity for employment) was contradictory with its requirement that management and staff composition reflect the racial and gender demographics of the community served, given that the defined community (Boere-Afrikaner) does not by definition include all races. The Court observed that people participating in democratic elections for a community broadcaster's board cannot be the community being served, as unless board members are elected by the members of the broadcasting entity itself, the service cannot be said to be "fully controlled" by that entity as required by the definition of community broadcasting service in s 1 of the IBA Act.

This case is significant for establishing important principles in South African administrative law and broadcasting regulation. It reinforces the fundamental principle that an administrative decision-maker must actually consider the application before it, and that treating an application as being for something different from what was actually applied for constitutes reviewable administrative action. The case clarifies the interpretation of s 32(3) of the Broadcasting Act 4 of 1999 regarding democratic election of boards of community broadcasting licensees. It also provides guidance on the proper interpretation of the Radio Frequency Plan and the distinction between RFP licence areas (transmission sites) and target areas (geographic areas to be served). The case demonstrates judicial oversight of ICASA's licensing decisions and the limits of administrative discretion. It is also relevant to understanding the definition and requirements of community broadcasting services under South African law, particularly in relation to communities of interest rather than purely geographic communities.