The Independent Communications Authority of South Africa (ICASA) is weighing its next steps after a seminal judgement in which the Supreme Court of Appeal (SCA) found it had been misinterpreting its own regulations.
The ruling is part of an appeal after Open Heaven Community Radio succeeded in compelling ICASA to allow it to continue broadcasting, despite submitting its licence renewal application 14 days late.
ICASA argued, on cross appeal, that the seven-year licence term introduced in 2021 applied only to new class broadcasting services licences, not existing ones. The SCA rejected this interpretation, confirming the seven-year term applies to all these service licences, including Open Heaven’s.
In the ruling, the judges said the “2021 regulations are not limited to new licences granted after their publication, or to those renewed after the amended regulations came into effect”.
In a response to ITWeb’s request for comment, ICASA said: “The authority is still considering the matter internally.”
The regulator defines class broadcasting services licences as including community sound broadcasting licences, community television broadcasting licences, low power community sound broadcasting licences and low power commercial sound broadcasting licences.
ICASA’s SCA appeal hinged on its challenge to a North Gauteng High Court ruling in favour of Open Heaven, which ordered ICASA to reconsider the station’s renewal application while allowing it to continue broadcasting.
That lower court stated the “refusal by ICASA to accept the applicant’s renewal notice constitutes unlawful administrative action and stands to be set aside”.
The SCA confirmed that ICASA has the discretion to condone late filings. “ICASA should have considered Open Heaven’s request for consideration of its late notice of renewal, which was out of time by a mere 14 days,” the ruling said.
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 through 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.
Central to ICASA’s cases in both courts was its argument that it lacked authority to condone late submissions.
Open Heaven first obtained a licence in 2012 and renewed it in 2017. The 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.
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