Vanderbijlpark Estate Company and Another v Langa NO and Others (16679/04) [2007] ZAGPHC 138 (22 May 2007)

15

BEGIN DEUR 'N "HEADER" TE MAAKSneller Verbatim/lks

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG CASE NO: 16679/04

2005-11-14

In the matter between

VANDERBIJLPARK ESTATE COMPANY First Applicant

IFM 102.2 RADIO STATION Second Applicant

and

LANGA, MANDLA N.O. First Respondent

INDEPENDENT COMMUNICATIONS

AUTHORITY OF SA Second Respondent

KATHORUS COMMUNITY RADIO Third Respondent

________________________________________________________________

J U D G M E N T

SPILG, AJ:

1. The first applicant is Vanderbijlpark Estate Company. It conducted a community radio broadcasting service under a temporary community sound broadcasting and signal distribution licence issued in 1995.

2. The temporary licence allowed the first applicant to operate on the 102.2 Mhz radio frequency and to service principally the Vanderbijlpark community region. The radio station was initially called "Iscorian FM", but later changed its name to "IFM 102.2". 3. IFM 102.2 Radio Station is the second applicant. It is a section 21 company, established to operate the existing IFM 102.2 radio station of the first applicant. It is common cause that the second applicant is the legitimate successor in title to the temporary licence rights. Accordingly nothing turns on making reference in this judgment to either the applicants or to IFM Radio. In each case it will be a reference to the particular applicant which enjoyed the rights to the temporary licence at the relevant time and the relevant applicant to the application for the licence to which I refer later. 4. The applicants brought Rule 53 review proceedings on motion against the Chairperson of the Independent Communications Authority of South Africa (ICASA) and ICASA itself. 5. The order sought was to review and correct or set aside the respondent's decision, taken in September 2003, not to grant a 4 year community sound broadcasting licence to the applicants and the category 3 signal distribution licence which accompanied it, and which was inseparable from it. 6. In conformity with the Rule 53 procedural rules the applicants sought and the respondent produced a record of the decisions taken by ICASA that are the subject matter of this application. 7. The applicants also cited the successful tenderer, Kathorus Community Radio, as a respondent. They however sought no order against this respondent. Whilst the orders sought were couched in a way which focused only on the applicant's unsuccessful bid, plainly a finding in their favour will invalidate the grant of the licence to Kathorus. ICASA's FUNCTIONS 8. ICASA is the successor in title to the Independent Broadcasting Authority (IBA). It is established to regulate broadcasting in South Africa "... in the public interest, and to ensure fairness and a diversity of views broadly representing South African society (s192 of the Constitution, 108 of 1996). 9. Although the events to which this application relate commenced during the existence of the IBA it is adequate for the purpose of this judgment to refer to the statutory provisions governing ICASA. ICASA took over IBA's functions on 1 July 2000 on the latter's dissolution as provided for in the ICASA Act 13 of 2000. 10. The Constitutional injunction mentioned earlier finds expression in the objects of ICASA which are set out in s2 of the ICASA Act, 13 of 2000. These objects were conveniently summarised in the heads of argument presented by Mr Kennedy on behalf of the respondents and include: a. To promote the provision of a diverse range of sound and television broadcasting services on a national, regional and local level which, when viewed collectively, cater for all languages and cultural groups and provide entertainment, education and information; b. To promote the development of public, private and community broadcasting services which are responsive to the needs of public, private and community broadcasting services and which are responsive to the needs of the public; c. To ensure that broadcasting services, viewed collectively, develop and protect a national and regional identity, culture and character. d. To encourage ownership and control of broadcasting services by persons from historically disadvantaged groups; e. To ensure that private and community broadcasting licences, viewed collectively, are controlled by persons from a diverse range of communities in the country; f. To promote the most efficient use of the broadcasting service frequency bands." SOUND BROADCASTING LICENCES 11. It is axiomatic that radio frequencies are a limited and valuable resource that require proper management and regulatory control so as to prevent airwave chaos whilst attaining the statutory objectives. It should be borne in mind that all frequency transmissions must be accommodated within the appropriate spectrums within which they are able to function from television to cellular telephony services, from emergency radio band widths to wifi. 12. The ICASA Act recognises that three different classes or categories of licences may be issued, namely; a public sound broadcasting service, a private (or commercial) sound broadcasting service and a community sound broadcasting service (Section 40 read with section 1). 13. This case is concerned exclusively with sound (ie radio) broadcasting in respect of community services. Accordingly, I need only focus on aspects of the ICASA Act which are concerned with radio broadcasting. 14. The legislative distinction between the three categories of broadcasting licences enables ICASA to issue different classes of licences even though they may overlap geographically. It is obvious that in such a case the frequency spectrum allocated to each category of licence must be such as to ensure that there is no interference with the transmission of any other broadcaster. Moreover, it is necessary to ensure that there is no frequency interference between the same category of licences at points of potential contiguity. These aspects will depend in part on the proximity of the one band width to the other and also on the strength of the broadcaster's proposed transmitter. 15. In order to avoid frequency interference, referred to as spillage, ICASA is required to prepare a Frequency Plan after taking into consideration internationally accepted methods of preparing such a plan and also the reports of experts in frequency planning. The enabling Act required that the Plan is reviewed annually (section 31(5)(b) of the old IBA Act 153 of 1993). ICASA is vested with the power to administer, manage and plan the broadcast frequency bands (section 29 of IBA Act). 16. The Frequency Plan determines the maximum number of frequencies available for broadcasting services and divides up each province into licence areas. The Frequency Plan seeks to allow for the maximum number of frequencies without creating interference between frequencies. Gauteng is divided into 19 licence areas. Each licence area is allotted a series of appropriate frequencies in such a way that no one frequency interferes with another frequency within the same area or in a proximate area. 17. Once determined and approved, the Frequency Plan forms the basis for allocating the number of licences that can be allocated in the community broadcasting category for each area or group of proximate areas. THE INVITATION TO TENDER 18. On 9 May 1997 IBA published a Notice in the Government Gazette inviting applications for community broadcasting licences which would be valid for a period of four years. This was in terms of section 41 of the old IBA Act. Schedule 9 of the Notice contained the Frequency Plan for Gauteng. The Notice included a map identifying by number each licence area for community radio stations and the frequency or frequencies that were available in that area. 19. On 10 June 1997 the IBA published a Position Paper on the granting of four year community licences. This Paper set out the policy and regulatory framework for community broadcasting services in the country and was guided by submissions presented at public hearings conducted nationwide. 20. On 28 June 1997 the IBA published a revised Frequency Plan for community radio stations in all the nine provinces. 21. The applicants do not challenge the Frequency Plan which determines the number, area size, frequency channels or number of available community licenses. 22. Applications had to be submitted by 20 March 1998. In excess of 50 applications were received for the Gauteng province. 23. The applicants applied for a licence using the 102.2 Mhz frequency. Although the applicants sought the licence in respect of the Vaal Triangle for the purposes of transmitting to the community in the Vanderbijlpark/Vereeniging/Sasolburg/ Meyerton area, it is common cause that the applicants did not actually specify the licence area number in their application. 24. Kathorus applied for a licence in the centre of areas 26, 27, 31 and 32 utilising the 95.4 Mhz frequency. 25. In accordance with the requirements of s41(6) of the IBA Act, the then IBA published a notice in the Gazette of 3 April 1998 which contained the relevant details of all the applications for licences and invited those interested to lodge written representations if they so wished. 26. Subsequently, and in November 1998 a draft revised Frequency Plan was published. This became final during 1999. The 1999 Frequency Plan was revised again in 2002 and 2003. 27. It appears that the 1999 Frequency Plan had a more precisely defined objective than its predecessors. It sought to achieve a diverse range of radio and television services on a national, regional and local level which would collectively cater for all language and cultural groups. The objectives were to provide entertainment, education and information and to ensure that audiences had access to different categories of services on different technological platforms (such as radio and television). 28. The processing of applications only commenced from August 2001. By that stage ICASA was established. 29. Both Kathorus and the applicants applications required clarification. To this end: 1. Kathorus was advised that its application in fact fell within area 27 (serving the Katlehong/Tokoza/ Vosloorus communities) in respect of which only the 102.2 frequency was available, and not the requested 95.4 Mhz. Initially, the 95.4 Mhz frequency had been allocated to Area 27 (in terms of the May 1997 Frequency Plan). Kathorus was informed that it would be competing with two other radio stations in area 27 for the 102.2 frequency, ie Radio Good News and Radio Springbok. Kathorus confirmed that it would apply for the 102.2 frequency in area 27. No mention was made to Kathorus that IFM Radio (the second applicant) was a potential competitor. 2 Applicants were requested to confirm that their application related to area 27. This they did. 30. It is evident that applicants and ICASA were in error. In terms of the Frequency Plan the applicants radio licence was in respect of area 35 and not area 27. It is also evident that areas 27 and 35 are not adjacent to each other - Area 32 lies between the two. However Areas 27 and 35 were sufficiently proximate that only one community radio station utilizing a 100 watt transmitter could be allowed to operate within those areas on the 102.2 Mhz frequency. Indeed according to the Plan only one community station within three areas (26, 27 and 35) could be granted a licence to utilise that frequency if each were to use 100 watt transmitters. The applicants had advised that they would be using only a 25 watt transmitter. COURT'S OVERSIGHT FUNCTION OF REVIEW 31. Mr Kennedy on behalf of ICASA impressed on me that ICASA is a specialist regulatory authority, the members of which are selected for their specialist skill and expertise. He also impressed on me that the decisions taken by members of ICASA involve complex broadcasting issues. 32. It is clear that a court will not second guess a tribunal on review nor replace its decision for that of the body simply because it disagrees with the decision reached. A court will only interfere with the decision of an administrative tribunal provided grounds of review, are present. See : Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at paras [22] and [25] where the Constitutional Court indicated that PAJA was intended to codify our common law grounds of review, but left open whether it is indeed exhaustive. In that case, the Constitutional Court referred to Section 6(2)(h) of PAJA which provides that a decision must not be "so unreasonable that no reasonable person" could have reached it. The Court expressed the view that in considering this provision, a court" .. should take care not to usurp the function of administrative agencies. Its task is to ensure that decisions taken by administrative agents fall within the bounds of reasonableness as required by the Constitution" [para 45]. 33. In terms of PAJA, this court not only retains oversight powers of review where a decision was unreasonable in the sense described in Bato Star but also in cases of procedural irregularity, bias or reasonable suspicion of bias, failure to comply with the mandatory or material procedure or condition prescribed by an empowering provision, procedurally unfair action, an action that was materially influenced by an error of law, the taking into account of irrelevant considerations or the failure to take into account relevant considerations and those other grounds set out in section 6 of PAJA. GROUNDS OF REVIEW RAISED 34. Mr Marcus has raised seven grounds challenging the regularity of the decision not to award a community service licence to the applicants. 35. The first is that the decision making process was fundamentally flawed because ICASA invited licence applications in particular geographic areas at particular frequencies, yet considered applications in respect of another geographic area at different frequencies. The consequence, it is contended, was to subvert the public's statutory right of participation and the applicant's right to a fair hearing in respect of its application. 36. The second ground is based on the contention that different panels were constituted to hear what were in fact competing applications of IFM Radio and Kathorus. Mr Marcus submitted that as a result IFM was deprived of a right to a fair consideration of its application. 37. Thirdly, it is submitted that ICASA created a reasonable suspicion of bias towards Kathorus by unduly favouring it in a partial and arbitrary manner. 38. Fourthly, it is argued that ICASA misunderstood the basis of IFM Radio’s mandate from its community. 39. Fifthly, the applicants contend that ICASA overlooked a 2000 survey relating to Community and Support which it argues was a relevant document that required ICASA’s consideration before it could competently make a decision. 40. Sixthly, it is contended that ICASA misread IFM's programming schedule. 41. Finally, it is submitted that ICASA failed to take into account a document relating to IFM Radio's balance between music and speech. FINDINGS 42. In my view the first ground raised, is determinative of the matter in favour of the applicants. 43. I preface my decision in respect of the first ground by referring to the unenviable situation in which ICASA found itself. It was obliged to issue licences pursuant to a lengthy process involving every radio broadcast licence in the country and where it sought to ensure that the process would be above reproach. However, the sands shifted when the annual revised frequency plans were gazetted. The annual frequency plans kept seeking an optimal balance between area and available frequency within a provincial grid so as to facilitate the largest number of communal radio stations. 44. Unfortunately, ICASA did not appear to have applied its mind to the effect which the changed frequency plans had on the decisions it was required to make or on the necessary information it should impart to members of the public in order to make them aware of the impact the change in frequency allocations would have on licence applications in other areas. Whilst ICASA complained that IFM Radio relied on the incorrect area number, that was equally the fault of ICASA. ICASA failed to comprehend that the revision of frequencies in terms of the frequency plan would directly affect the way in which it was obliged to consider licence applications and who would be affected by the changes. 45. Its failure to consider the impact of the revised frequency plans in the most fundamental way impacted not only on the decision-making process and the considerations that ought to have been taken into account (c/f Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at paragraphs 20, 24 and 25), but also impacted on the procedural fairness of the process in that members of the public were left uninformed, were unable to appreciate that not only were community broadcast stations competing with each other in the same area, but also were competing with each other for the same frequency band albeit that they were located in different areas on the frequency plan grid.

2. The temporary licence allowed the first applicant to operate on the 102.2 Mhz radio frequency and to service principally the Vanderbijlpark community region. The radio station was initially called "Iscorian FM", but later changed its name to "IFM 102.2".

3. IFM 102.2 Radio Station is the second applicant. It is a section 21 company, established to operate the existing IFM 102.2 radio station of the first applicant. It is common cause that the second applicant is the legitimate successor in title to the temporary licence rights. Accordingly nothing turns on making reference in this judgment to either the applicants or to IFM Radio. In each case it will be a reference to the particular applicant which enjoyed the rights to the temporary licence at the relevant time and the relevant applicant to the application for the licence to which I refer later.

4. The applicants brought Rule 53 review proceedings on motion against the Chairperson of the Independent Communications Authority of South Africa (ICASA) and ICASA itself.

5. The order sought was to review and correct or set aside the respondent's decision, taken in September 2003, not to grant a 4 year community sound broadcasting licence to the applicants and the category 3 signal distribution licence which accompanied it, and which was inseparable from it.

6. In conformity with the Rule 53 procedural rules the applicants sought and the respondent produced a record of the decisions taken by ICASA that are the subject matter of this application.

7. The applicants also cited the successful tenderer, Kathorus Community Radio, as a respondent. They however sought no order against this respondent. Whilst the orders sought were couched in a way which focused only on the applicant's unsuccessful bid, plainly a finding in their favour will invalidate the grant of the licence to Kathorus.

ICASA's FUNCTIONS

8. ICASA is the successor in title to the Independent Broadcasting Authority (IBA). It is established to regulate broadcasting in South Africa "... in the public interest, and to ensure fairness and a diversity of views broadly representing South African society (s192 of the Constitution, 108 of 1996).

9. Although the events to which this application relate commenced during the existence of the IBA it is adequate for the purpose of this judgment to refer to the statutory provisions governing ICASA. ICASA took over IBA's functions on 1 July 2000 on the latter's dissolution as provided for in the ICASA Act 13 of 2000.

10. The Constitutional injunction mentioned earlier finds expression in the objects of ICASA which are set out in s2 of the ICASA Act, 13 of 2000. These objects were conveniently summarised in the heads of argument presented by Mr Kennedy on behalf of the respondents and include:

a. To promote the provision of a diverse range of sound and television broadcasting services on a national, regional and local level which, when viewed collectively, cater for all languages and cultural groups and provide entertainment, education and information;

b. To promote the development of public, private and community broadcasting services which are responsive to the needs of public, private and community broadcasting services and which are responsive to the needs of the public;

c. To ensure that broadcasting services, viewed collectively, develop and protect a national and regional identity, culture and character.

d. To encourage ownership and control of broadcasting services by persons from historically disadvantaged groups;

e. To ensure that private and community broadcasting licences, viewed collectively, are controlled by persons from a diverse range of communities in the country;

f. To promote the most efficient use of the broadcasting service frequency bands."

SOUND BROADCASTING LICENCES

11. It is axiomatic that radio frequencies are a limited and valuable resource that require proper management and regulatory control so as to prevent airwave chaos whilst attaining the statutory objectives. It should be borne in mind that all frequency transmissions must be accommodated within the appropriate spectrums within which they are able to function from television to cellular telephony services, from emergency radio band widths to wifi.

12. The ICASA Act recognises that three different classes or categories of licences may be issued, namely; a public sound broadcasting service, a private (or commercial) sound broadcasting service and a community sound broadcasting service (Section 40 read with section 1).

13. This case is concerned exclusively with sound (ie radio) broadcasting in respect of community services. Accordingly, I need only focus on aspects of the ICASA Act which are concerned with radio broadcasting.

14. The legislative distinction between the three categories of broadcasting licences enables ICASA to issue different classes of licences even though they may overlap geographically. It is obvious that in such a case the frequency spectrum allocated to each category of licence must be such as to ensure that there is no interference with the transmission of any other broadcaster. Moreover, it is necessary to ensure that there is no frequency interference between the same category of licences at points of potential contiguity. These aspects will depend in part on the proximity of the one band width to the other and also on the strength of the broadcaster's proposed transmitter.

15. In order to avoid frequency interference, referred to as spillage, ICASA is required to prepare a Frequency Plan after taking into consideration internationally accepted methods of preparing such a plan and also the reports of experts in frequency planning. The enabling Act required that the Plan is reviewed annually (section 31(5)(b) of the old IBA Act 153 of 1993). ICASA is vested with the power to administer, manage and plan the broadcast frequency bands (section 29 of IBA Act).

16. The Frequency Plan determines the maximum number of frequencies available for broadcasting services and divides up each province into licence areas. The Frequency Plan seeks to allow for the maximum number of frequencies without creating interference between frequencies. Gauteng is divided into 19 licence areas. Each licence area is allotted a series of appropriate frequencies in such a way that no one frequency interferes with another frequency within the same area or in a proximate area.

17. Once determined and approved, the Frequency Plan forms the basis for allocating the number of licences that can be allocated in the community broadcasting category for each area or group of proximate areas.

THE INVITATION TO TENDER

18. On 9 May 1997 IBA published a Notice in the Government Gazette inviting applications for community broadcasting licences which would be valid for a period of four years. This was in terms of section 41 of the old IBA Act.

Schedule 9 of the Notice contained the Frequency Plan for Gauteng. The Notice included a map identifying by number each licence area for community radio stations and the frequency or frequencies that were available in that area.

19. On 10 June 1997 the IBA published a Position Paper on the granting of four year community licences. This Paper set out the policy and regulatory framework for community broadcasting services in the country and was guided by submissions presented at public hearings conducted nationwide.

20. On 28 June 1997 the IBA published a revised Frequency Plan for community radio stations in all the nine provinces.

21. The applicants do not challenge the Frequency Plan which determines the number, area size, frequency channels or number of available community licenses.

22. Applications had to be submitted by 20 March 1998. In excess of 50 applications were received for the Gauteng province.

23. The applicants applied for a licence using the 102.2 Mhz frequency. Although the applicants sought the licence in respect of the Vaal Triangle for the purposes of transmitting to the community in the Vanderbijlpark/Vereeniging/Sasolburg/ Meyerton area, it is common cause that the applicants did not actually specify the licence area number in their application.

24. Kathorus applied for a licence in the centre of areas 26, 27, 31 and 32 utilising the 95.4 Mhz frequency.

25. In accordance with the requirements of s41(6) of the IBA Act, the then IBA published a notice in the Gazette of 3 April 1998 which contained the relevant details of all the applications for licences and invited those interested to lodge written representations if they so wished.

26. Subsequently, and in November 1998 a draft revised Frequency Plan was published. This became final during 1999. The 1999 Frequency Plan was revised again in 2002 and 2003.

27. It appears that the 1999 Frequency Plan had a more precisely defined objective than its predecessors. It sought to achieve a diverse range of radio and television services on a national, regional and local level which would collectively cater for all language and cultural groups. The objectives were to provide entertainment, education and information and to ensure that audiences had access to different categories of services on different technological platforms (such as radio and television).

28. The processing of applications only commenced from August 2001. By that stage ICASA was established.

29. Both Kathorus and the applicants applications required clarification. To this end:

1. Kathorus was advised that its application in fact fell within area 27 (serving the Katlehong/Tokoza/ Vosloorus communities) in respect of which only the 102.2 frequency was available, and not the requested 95.4 Mhz. Initially, the 95.4 Mhz frequency had been allocated to Area 27 (in terms of the May 1997 Frequency Plan). Kathorus was informed that it would be competing with two other radio stations in area 27 for the 102.2 frequency, ie Radio Good News and Radio Springbok. Kathorus confirmed that it would apply for the 102.2 frequency in area 27. No mention was made to Kathorus that IFM Radio (the second applicant) was a potential competitor.

2 Applicants were requested to confirm that their application related to area 27. This they did.

30. It is evident that applicants and ICASA were in error. In terms of the Frequency Plan the applicants radio licence was in respect of area 35 and not area 27. It is also evident that areas 27 and 35 are not adjacent to each other - Area 32 lies between the two. However Areas 27 and 35 were sufficiently proximate that only one community radio station utilizing a 100 watt transmitter could be allowed to operate within those areas on the 102.2 Mhz frequency. Indeed according to the Plan only one community station within three areas (26, 27 and 35) could be granted a licence to utilise that frequency if each were to use 100 watt transmitters. The applicants had advised that they would be using only a 25 watt transmitter.

COURT'S OVERSIGHT FUNCTION OF REVIEW

31. Mr Kennedy on behalf of ICASA impressed on me that ICASA is a specialist regulatory authority, the members of which are selected for their specialist skill and expertise. He also impressed on me that the decisions taken by members of ICASA involve complex broadcasting issues.

32. It is clear that a court will not second guess a tribunal on review nor replace its decision for that of the body simply because it disagrees with the decision reached. A court will only interfere with the decision of an administrative tribunal provided grounds of review, are present. See : Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at paras [22] and [25] where the Constitutional Court indicated that PAJA was intended to codify our common law grounds of review, but left open whether it is indeed exhaustive.

In that case, the Constitutional Court referred to Section 6(2)(h) of PAJA which provides that a decision must not be "so unreasonable that no reasonable person" could have reached it. The Court expressed the view that in considering this provision, a court" .. should take care not to usurp the function of administrative agencies. Its task is to ensure that decisions taken by administrative agents fall within the bounds of reasonableness as required by the Constitution" [para 45].

33. In terms of PAJA, this court not only retains oversight powers of review where a decision was unreasonable in the sense described in Bato Star but also in cases of procedural irregularity, bias or reasonable suspicion of bias, failure to comply with the mandatory or material procedure or condition prescribed by an empowering provision, procedurally unfair action, an action that was materially influenced by an error of law, the taking into account of irrelevant considerations or the failure to take into account relevant considerations and those other grounds set out in section 6 of PAJA.

GROUNDS OF REVIEW RAISED

34. Mr Marcus has raised seven grounds challenging the regularity of the decision not to award a community service licence to the applicants.

35. The first is that the decision making process was fundamentally flawed because ICASA invited licence applications in particular geographic areas at particular frequencies, yet considered applications in respect of another geographic area at different frequencies. The consequence, it is contended, was to subvert the public's statutory right of participation and the applicant's right to a fair hearing in respect of its application.

36. The second ground is based on the contention that different panels were constituted to hear what were in fact competing applications of IFM Radio and Kathorus. Mr Marcus submitted that as a result IFM was deprived of a right to a fair consideration of its application.

37. Thirdly, it is submitted that ICASA created a reasonable suspicion of bias towards Kathorus by unduly favouring it in a partial and arbitrary manner.

38. Fourthly, it is argued that ICASA misunderstood the basis of IFM Radio’s mandate from its community.

39. Fifthly, the applicants contend that ICASA overlooked a 2000 survey relating to Community and Support which it argues was a relevant document that required ICASA’s consideration before it could competently make a decision.

40. Sixthly, it is contended that ICASA misread IFM's programming schedule.

41. Finally, it is submitted that ICASA failed to take into account a document relating to IFM Radio's balance between music and speech.

FINDINGS

42. In my view the first ground raised, is determinative of the matter in favour of the applicants.

43. I preface my decision in respect of the first ground by referring to the unenviable situation in which ICASA found itself. It was obliged to issue licences pursuant to a lengthy process involving every radio broadcast licence in the country and where it sought to ensure that the process would be above reproach. However, the sands shifted when the annual revised frequency plans were gazetted. The annual frequency plans kept seeking an optimal balance between area and available frequency within a provincial grid so as to facilitate the largest number of communal radio stations.

44. Unfortunately, ICASA did not appear to have applied its mind to the effect which the changed frequency plans had on the decisions it was required to make or on the necessary information it should impart to members of the public in order to make them aware of the impact the change in frequency allocations would have on licence applications in other areas. Whilst ICASA complained that IFM Radio relied on the incorrect area number, that was equally the fault of ICASA. ICASA failed to comprehend that the revision of frequencies in terms of the frequency plan would directly affect the way in which it was obliged to consider licence applications and who would be affected by the changes.

45. Its failure to consider the impact of the revised frequency plans in the most fundamental way impacted not only on the decision-making process and the considerations that ought to have been taken into account (c/f Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at paragraphs 20, 24 and 25), but also impacted on the procedural fairness of the process in that members of the public were left uninformed, were unable to appreciate that not only were community broadcast stations competing with each other in the same area, but also were competing with each other for the same frequency band albeit that they were located in different areas on the frequency plan grid.

ICASA’s failure therefore directly impacted upon its ability to ensure that the requirements of section 41(6) of the IBA Act and its successor could be properly implemented. This not only affected the fairness of the process but rendered the process

itself fundamentally flawed because a mandatory and material procedure required by the enabling statute was compromised - and hence not complied with. 47. In my view, this court is entitled to review the decision of ICASA by reason of the provisions of section 6(2)(c) of PAJA in that the action was procedurally unfair, the provisions of section 6(2)(e)(iii) because relevant considerations were not considered and also section 6(2)(b) because the mandatory and material procedure or condition prescribed by the empowering provision was not complied with. 48. Since I have found in favour of the applicants on the first ground it is unnecessary to deal in much detail with the other grounds. I therefore will deal only briefly with those grounds. 49. The second ground is that a different tribunal was constituted for each application. The respondent's answer is that only one panel was constituted which comprised councillors Bulbulia and Mtimde and that both presided when each competing application was considered. Although the advisers or consultants present on each occasion may have been different, Mr Kennedy submitted that they did not constitute the decision making body and therefore the make up of the advisers was irrelevant. I am afraid that I am unable to share this view. A tribunal may be significantly influenced by the advisers who are present. Moreover, the impact of the influence one person has over a decision maker may be subtle and imperceptible, although very real. In the present case the two councillors were dependent on the advice they received. The members for the Kathorus application included Mr Ndlovu, a licensing officer. He was not present at the IFM Radio application. Another licensing officer, Mr Fisher attended. He was not present at the Kathorus application. Mr Kennedy is correct that the presence or absence of all panel members did not impact on the authority of the panel to preside, but in my view it did impact on the fairness of the process and rendered it arbitrary. In particular I refer to a Council resolution of 20 March 2003 which considered it advisable that the committee be assisted inter alia by the licensing officers for the licensing unit. It therefore cannot be gainsaid that their input was irrelevant. On the contrary it appears that the input of the licensing officers was regarded as useful and was intended to be influential and to carry weight. 50. I turn to the third ground. I agree with Mr Kennedy that the applicants do not find factual support for this ground. I am satisfied that the facts presented do not support any reasonable suspicion of bias in the form of partiality towards Kathorus. There appears to be good reason for ICASA engaging the latter as it did. The fact that ICASA did not deal with IFM Radio in a similar fashion appears to be accounted for on the basis of misperceptions. Such an explanation precludes me from finding any sinister or perceived improper motivation on the part of ICASA. 51. It does appear that ICASA misunderstood the mandate, as contended for by IFM Radio in its fourth ground. However ICASA claims that this was not the only ground upon which it declined to give IFM Radio a licence. I was also referred to ICASA's statement that each ground in itself justified the decision taken. This sounds more as a tactical position and I place little store on it. The decision was really taken by reference to the population demographics, the number of potential listeners, their literacy and the programme mix.

ICASA’s failure therefore directly impacted upon its ability to ensure that the requirements of section 41(6) of the IBA Act and its successor could be properly implemented. This not only affected the fairness of the process but rendered the process

itself fundamentally flawed because a mandatory and material procedure required by the enabling statute was compromised - and hence not complied with.

47. In my view, this court is entitled to review the decision of ICASA by reason of the provisions of section 6(2)(c) of PAJA in that the action was procedurally unfair, the provisions of section 6(2)(e)(iii) because relevant considerations were not considered and also section 6(2)(b) because the mandatory and material procedure or condition prescribed by the empowering provision was not complied with.

48. Since I have found in favour of the applicants on the first ground it is unnecessary to deal in much detail with the other grounds. I therefore will deal only briefly with those grounds.

49. The second ground is that a different tribunal was constituted for each application. The respondent's answer is that only one panel was constituted which comprised councillors Bulbulia and Mtimde and that both presided when each competing application was considered.

Although the advisers or consultants present on each occasion may have been different, Mr Kennedy submitted that they did not constitute the decision making body and therefore the make up of the advisers was irrelevant. I am afraid that I am unable to share this view. A tribunal may be significantly influenced by the advisers who are present. Moreover, the impact of the influence one person has over a decision maker may be subtle and imperceptible, although very real. In the present case the two councillors were dependent on the advice they received. The members for the Kathorus application included Mr Ndlovu, a licensing officer. He was not present at the IFM Radio application. Another licensing officer, Mr Fisher attended. He was not present at the Kathorus application.

Mr Kennedy is correct that the presence or absence of all panel members did not impact on the authority of the panel to preside, but in my view it did impact on the fairness of the process and rendered it arbitrary. In particular I refer to a Council resolution of 20 March 2003 which considered it advisable that the committee be assisted inter alia by the licensing officers for the licensing unit. It therefore cannot be gainsaid that their input was irrelevant. On the contrary it appears that the input of the licensing officers was regarded as useful and was intended to be influential and to carry weight.

50. I turn to the third ground. I agree with Mr Kennedy that the applicants do not find factual support for this ground. I am satisfied that the facts presented do not support any reasonable suspicion of bias in the form of partiality towards Kathorus. There appears to be good reason for ICASA engaging the latter as it did. The fact that ICASA did not deal with IFM Radio in a similar fashion appears to be accounted for on the basis of misperceptions. Such an explanation precludes me from finding any sinister or perceived improper motivation on the part of ICASA.

51. It does appear that ICASA misunderstood the mandate, as contended for by IFM Radio in its fourth ground. However ICASA claims that this was not the only ground upon which it declined to give IFM Radio a licence. I was also referred to ICASA's statement that each ground in itself justified the decision taken. This sounds more as a tactical position and I place little store on it. The decision was really taken by reference to the population demographics, the number of potential listeners, their literacy and the programme mix.

Whilst the fifth, sixth and seventh grounds contend that ICASA ignored relevant facts presented to them, they are all put in issue. It most probably comes down to what weight ICASA truly gave to the documents at their disposal, which would have been influenced by the considerations that ICASA regarded as paramount in deciding the basis of conferring a licence in any given situation. There does not appear to be anything wrong with the type of considerations by which ICASA elected to be guided. They are eminently rational. These grounds of attack therefore are not so much directed at functional irregularity as they are to the reasons for the decision. Accordingly I would not uphold the challenges in respect grounds 4 to 7. 53. After hearing argument, I considered it advisable to notify Kathorus of the possibility that any order I might make could affect the validity of its licence. I directed that Kathorus be called upon to make such representations as it wished in this regard. Kathorus elected to abide the decision. 54. I was also asked to amend prayer 2 of the order sought pursuant to an urgent application launched under case number 12921/04 by the applicant. The respondents consented to such an amendment. Paragraph 2 of the original order read: "Interdicting the first and second respondents from making a final decision on the licence referred to above until such time as the application has been launched by the applicants by 31 July 2004 and has been determined by the above Honourable Court." The concern expressed was that this did not deal with all the appeal permutations that were possible. Without opposition I amend paragraph 2 of the court order under case number 12921/04 by replacing the words after "31 July 2004" with the words

"and has been finally determined." 55. In so far as the order sought in this application are concerned, it was agreed that the form of the order contained in the Notice of Motion was inappropriate. In view of my findings, I consider the appropriate order to be as follows, and before I give the final order I would just like to know from any of the parties and I would be dealing with the cost order. Is there anything in prayers 1 and 2 in the proposed order that requires reconsideration? I think this is addressed more to ICASA. I did not want the formula or the form the order I propose making to hinder ICASA in the way in which it may re-advertise or apply its mind to how it will deal with the licences for this area. NO OBJECTION BY BOTH COUNSEL. I should add before reading the order that it was also agreed between the parties that the costs incurred in the urgent application under case number 12921/04 would be costs in the cause. 56. I therefore make the following order: 1. The award of the community sound broadcasting licence in the 102.2 Mhz frequency to Kathorus Community Radio in respect of areas 27 and 35 is hereby set aside as null and void. 2. The entire process for awarding a community sound broadcasting licence and determining how many such licences can be awarded in terms of the prevailing frequency plan in respect of areas presently identified as 27 and 35, and in particular in respect of the available 102.2 Mhz frequency was fatally flawed and must commence de novo. 3. This order does not affect the validity of the award by the Independent Communications Authority of South Africa of any existing licence of any nature, other than the licence awarded to Kathorus Community Radio. 4. The applicant is awarded the costs of the application and also the costs of the urgent application in case number 42921/04 against the second respondent on a party and party scale which will include the costs of two counsel. 5. The order obtained under case number 12921/04 is amended in the fashion described earlier. Judgment Date: 22 May 2007 Order Date: 14 November 2004 Respondent ICASA - Counsel was Paul Kennedy Attorneys Edward Nathan Sonnenberg (Ms Vergarellis who has left the company) Applicant Vanderbijlpark - Gilbert Marcus SC Rosin Wright Rosengarten (Mr Rosengarten attended to the matter)

Whilst the fifth, sixth and seventh grounds contend that ICASA ignored relevant facts presented to them, they are all put in issue. It most probably comes down to what weight ICASA truly gave to the documents at their disposal, which would have been influenced by the considerations that ICASA regarded as paramount in deciding the basis of conferring a licence in any given situation. There does not appear to be anything wrong with the type of considerations by which ICASA elected to be guided. They are eminently rational. These grounds of attack therefore are not so much directed at functional irregularity as they are to the reasons for the decision. Accordingly I would not uphold the challenges in respect grounds 4 to 7.

53. After hearing argument, I considered it advisable to notify Kathorus of the possibility that any order I might make could affect the validity of its licence. I directed that Kathorus be called upon to make such representations as it wished in this regard. Kathorus elected to abide the decision.

54. I was also asked to amend prayer 2 of the order sought pursuant to an urgent application launched under case number 12921/04 by the applicant. The respondents consented to such an amendment. Paragraph 2 of the original order read:

"Interdicting the first and second respondents from making a final decision on the licence referred to above until such time as the application has been launched by the applicants by 31 July 2004 and has been determined by the above Honourable Court."

The concern expressed was that this did not deal with all the appeal permutations that were possible. Without opposition I amend paragraph 2 of the court order under case number 12921/04 by replacing the words after "31 July 2004" with the words

"and has been finally determined."

55. In so far as the order sought in this application are concerned, it was agreed that the form of the order contained in the Notice of Motion was inappropriate. In view of my findings, I consider the appropriate order to be as follows, and before I give the final order I would just like to know from any of the parties and I would be dealing with the cost order. Is there anything in prayers 1 and 2 in the proposed order that requires reconsideration? I think this is addressed more to ICASA. I did not want the formula or the form the order I propose making to hinder ICASA in the way in which it may re-advertise or apply its mind to how it will deal with the licences for this area.

NO OBJECTION BY BOTH COUNSEL.

I should add before reading the order that it was also agreed between the parties that the costs incurred in the urgent application under case number 12921/04 would be costs in the cause.

56. I therefore make the following order:

1. The award of the community sound broadcasting licence in the 102.2 Mhz frequency to Kathorus Community Radio in respect of areas 27 and 35 is hereby set aside as null and void.

2. The entire process for awarding a community sound broadcasting licence and determining how many such licences can be awarded in terms of the prevailing frequency plan in respect of areas presently identified as 27 and 35, and in particular in respect of the available 102.2 Mhz frequency was fatally flawed and must commence de novo.

3. This order does not affect the validity of the award by the Independent Communications Authority of South Africa of any existing licence of any nature, other than the licence awarded to Kathorus Community Radio.

4. The applicant is awarded the costs of the application and also the costs of the urgent application in case number 42921/04 against the second respondent on a party and party scale which will include the costs of two counsel.

5. The order obtained under case number 12921/04 is amended in the fashion described earlier.

Judgment Date: 22 May 2007

Order Date: 14 November 2004

Respondent

ICASA - Counsel was Paul Kennedy

Attorneys Edward Nathan Sonnenberg (Ms Vergarellis who has left the company)

Applicant

Vanderbijlpark - Gilbert Marcus SC

Rosin Wright Rosengarten (Mr Rosengarten attended to the matter)