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

Radio Pretoria, a community radio station incorporated in 1994, received successive temporary one-year broadcasting licences from the IBA (later ICASA) from 1995-1999. In February 2000, it applied for another temporary licence for the period April 2000 to April 2001. After hearings, ICASA refused the application on 28 February 2001, citing two main grounds: (1) Radio Pretoria's articles of association allowed only board-nominated members, making its governance undemocratic and contravening section 32(3) of the Broadcasting Act which requires democratic election from community members; (2) its policy of employing only Boere-Afrikaners constituted unfair discrimination contrary to section 9 of the Constitution. Radio Pretoria applied to the Pretoria High Court to review and set aside this decision. Bosielo J dismissed the review application on 21 February 2003. Radio Pretoria appealed. Meanwhile, its application for a four-year licence was refused by ICASA in September 2003. By the time of the Supreme Court of Appeal hearing in August 2004, Radio Pretoria was broadcasting under an interim order granted by Preller J pending review of the four-year licence refusal.

• Whether the appeal should be dismissed under section 21A(1) of the Supreme Court Act 59 of 1959 on the basis that the judgment would have no practical effect or result
• Whether exceptional circumstances existed under section 21A(3) justifying consideration of the appeal with reference to costs
• Whether the temporary licence application had become moot given the expiry of the licence period and subsequent developments
• Whether courts should hear appeals that are academic and will not resolve live controversies between parties

The appeal was dismissed. Radio Pretoria was ordered to pay: (1) all costs occasioned by the application for amendment of the Notice of Appeal; and (2) all costs in relation to the appeal incurred after 30 June 2004. The costs order reflected that persistence in the appeal after receiving the interim order from Preller J on 30 June 2004 was unjustified as it was abundantly clear no purpose would be served.

An appeal will be dismissed under section 21A(1) of the Supreme Court Act where a judgment would have no practical effect or result. A case becomes moot and non-justiciable when it no longer presents an existing or live controversy. Courts do not give advisory opinions on abstract propositions of law or decide theoretical questions to provide guidance for potential future cases. The practical effect or result must relate to resolving an actual dispute between parties, not merely providing interpretive guidance. The 'exceptional circumstances' contemplated in section 21A(3) that allow consideration of costs require more than the ordinary expense of litigation; they require circumstances such as legislative changes occurring after an appeal is ready for hearing. Where an appeal concerns a temporary licence that has expired, subsequent interim orders allow continued broadcasting pending other proceedings, and counsel cannot assure that facts will be identical in future proceedings, no practical effect exists to justify hearing the appeal.

The Court expressed strong concern about the growing number of appeals being persisted with despite having no practical effect, stating this demonstrates a 'growing misperception that there has been a relaxation or dilution' of the fundamental principle that courts will not make determinations with no practical effect. The Court noted that practitioners should keep the purpose of section 21A in mind when applying for leave to appeal and when continuing, preparing and arguing appeals. The Court emphasized that the provision was intended to relieve the heavy workload of appellate courts and that appeals should only be presented for adjudication where there will be a real, practical effect of the court's judgment. The Court observed that by the time ICASA supplied reasons for refusing the temporary licence application, the period had already expired and the relief sought had been rendered redundant, though Radio Pretoria's persistence at that stage was 'understandable' given its need for interim protection. However, once the interim order was obtained on 30 June 2004, 'it must have been abundantly clear that no purpose would be served by persisting in this appeal.'

This case is significant for reinforcing the application of section 21A of the Supreme Court Act 59 of 1959, which allows courts to dismiss appeals that will have no practical effect or result. The judgment addresses the growing problem of parties persisting with academic appeals that waste judicial resources. It clarifies that 'practical effect or result' requires a live controversy that will be resolved by the court's decision, not merely academic guidance for future cases. The case emphasizes that courts of appeal do not give advisory opinions or decide moot questions, particularly in the context of congested court rolls. It also clarifies the narrow scope of 'exceptional circumstances' under section 21A(3) that would allow consideration of costs - mere expense of litigation is generally insufficient. The judgment serves as a strong warning to legal practitioners to carefully consider whether appeals remain justiciable throughout the appellate process, consistent with earlier warnings in cases like Premier, Provinsie Mpumalanga v Groblersdalse Stadsraad and Coin Security Group v SA National Union for Security Officers.