ICASA has taken on a community station in the apex court. (Graphic: Nicola Mawson | Unsplash and official images)
Having lost two previous cases over whether it can condone the late application for a licence renewal, the Independent Communications Authority of South Africa (ICASA) has taken the matter – which involves a community radio station – to the Constitutional Court.
Open Heaven had already won the dispute, over whether it could file its renewal paperwork two weeks late, in both the Pretoria High Court and Supreme Court of Appeal (SCA), with both courts rejecting ICASA’s interpretation of its powers under the law – that it wasn’t enabled to condone late renewal applications for radio licences.
ICASA now wants clarity from the Constitutional Court as to the extent of its powers under the Electronic Communications Act (ECA) over whether it can accept late notices – or not. The Constitutional Court heard the matter last Thursday, although it has yet to hand down a ruling.
ICASA, in its written submission to the court, says, because Open Heaven submitted its paperwork late and didn’t comply with the ECA, “the question that then arose was whether ICASA had statutory powers to condone such non-compliance”.
The regulator, in determining the answer to its question, argues it “can only exercise the powers vested upon it by law”, and that it has no legislative authority to condone non-compliance with section 19 of the ECA, which governs class licence renewals.
The regulator’s argument hinges on two sections of the ECA: section 11(9) and section 19(2).
In section 11(9), the Act says ICASA can “on good cause shown by the applicant, accept for filing, an application for renewal that is not submitted within the time period prescribed by the Authority [ICASA]”. This section applies to individual licences, such as telecoms companies and commercial broadcasters.
Section 19(2) states that “class licensees seeking to renew their class licences must, in writing and not less than six (6) months prior to the expiration of their class licence, notify the Authority of their intention to continue to provide the services”.
Class licences include community broadcasters such as Open Heaven. The community radio station describes itself on Facebook as “dedicated to amplifying local voices and fostering community connections”.
Zeno.fm, a platform for streaming audio content, notes Open Heaven “brings all nationalities together for the Glory of God,” broadcasting “from the heart of Hammanskraal” − a rural community about 30 minutes from Pretoria.
Open Heaven argues that the ECA gives ICASA some latitude to accept late renewal notices where good cause has been shown.
Conversely, ICASA says Open Heaven’s interpretation of the law is wrong, as Parliament “deliberately excluded the power to condone non-compliance with section 19(2),” which it argues means that it, under that section, can’t accept late renewal paperwork.
Open Heaven describes itself as “dedicated to amplifying local voices and fostering community connections”.
The “rule of law requires ICASA to exercise only the powers vested upon it by law and not powers vested upon it by itself or by licence-holders,” its written submission says.
ICASA says Parliament specifically gave it the power to accept late renewal applications for individual licences but did not give it the same power for class licences, and argues the omission was deliberate.
“According to Open Heaven, the fact that the legislation does not prohibit the consideration of a renewal notice submitted out of time means ICASA is empowered to consider and approve such renewal notices,” the regulator says.
ICASA says the Pretoria High Court and SCA “were wrong in purporting to speak for the Legislature”, because Parliament’s “silence is not a mistake”.
Open Heaven also argues that ICASA’s March 2021 amendment, which extended community broadcasting licences from five to seven years, applied to its existing licence. This would mean its licence, first obtained in 2012 and renewed in 2017, remained valid until September 2024.
ICASA disagrees, saying the amendment does not automatically or retrospectively apply to existing licences. It argues that Open Heaven’s licence still expired on 11 September 2022, and that the 2021 amendment did not automatically extend it by another two years.
The extension, it says, “will be effective upon the date of renewal of the current licence or new licences. The regulation does not automatically extend the duration of your current five-year licence.”
Open Heaven’s dispute with ICASA dates back to November 2021, when the station faced “governance challenges” that “affected the smooth running of its affairs”.
The station sought guidance from ICASA, which advised it to appoint a new board via an annual general meeting (AGM), but it missed the licence renewal deadline in the process of doing so.
Even though the authority rejected the late application, the judgement noted that “ICASA still wrote to Open Heaven requesting the minutes of the AGM and other related information”. The station supplied these documents to ICASA.
