ICASA ConCourt: Seeks Clarity on ECA Late Class Licence Renewal

• ICASA has appealed to the Constitutional Court to clarify its power to condone late class licence renewal applications under the Electronic Communications Act (ECA).
• The dispute involves Open Heaven, a community radio station that won two previous cases against ICASA regarding its two-week late renewal submission.
• ICASA argues it lacks statutory power to condone non-compliance with ECA Section 19(2) for class licences, unlike Section 11(9) for individual licences.
• Open Heaven contends the ECA allows ICASA discretion to accept late renewals for good cause, while ICASA maintains Parliament deliberately omitted this power for class licences.
• The Constitutional Court heard the matter last Thursday, and its ruling will define ICASA's regulatory authority and impact compliance for all class licensees.

The Constitutional Court's impending decision will have far-reaching implications, definitively clarifying the extent of ICASA's condonation powers for class licensees under the Electronic Communications Act.

The Independent Communications Authority of South Africa (ICASA) has escalated a significant legal dispute to the Constitutional Court, seeking definitive clarity on its authority to condone late applications for class licence renewals. This move follows two previous legal defeats for ICASA in lower courts concerning a community radio station, Open Heaven, which had submitted its renewal paperwork two weeks beyond the stipulated deadline.

Open Heaven successfully challenged ICASA's interpretation of its powers in both the Pretoria High Court and the Supreme Court of Appeal. Both courts rejected ICASA's assertion that it lacked the legal capacity to accept late renewal applications for radio licences. The apex court recently heard arguments in the matter last Thursday, though a ruling has not yet been issued, leaving the extent of ICASA's condonation powers under the Electronic Communications Act (ECA) in question.

At the heart of the dispute lies ICASA's argument that its regulatory authority is strictly limited to powers explicitly vested by law. In its written submission, ICASA contends that since Open Heaven's submission was late and non-compliant with the ECA, the crucial question is whether ICASA possesses the statutory power to condone such non-compliance. The regulator maintains it has no legislative mandate to overlook breaches of Section 19 of the ECA, which specifically governs class licence renewals.

ICASA's position hinges on a distinction between two sections of the ECA: Section 11(9) and Section 19(2). Section 11(9) explicitly grants ICASA the power to accept late renewal applications for individual licences, such as those held by commercial broadcasters and telecommunications companies, provided “good cause” is shown by the applicant. However, Section 19(2), which applies to class licensees like Open Heaven, merely states that they must notify the Authority in writing of their intention to renew not less than six months before their licence expires, without mentioning any provision for condonation.

Open Heaven, a community radio station broadcasting from Hammanskraal, a rural community near Pretoria, argues that the ECA implicitly provides ICASA with the discretion to accept late renewal notices when good cause is demonstrated. The station, which describes itself as “dedicated to amplifying local voices and fostering community connections” and noted by Zeno.fm for bringing “all nationalities together for the Glory of God,” believes that the absence of a prohibition on considering late applications implies such a power. Conversely, ICASA asserts that Parliament deliberately excluded the power to condone non-compliance with Section 19(2), making its omission a conscious legislative choice rather than an oversight. ICASA further criticised the Pretoria High Court and the Supreme Court of Appeal for “purporting to speak for the Legislature,” insisting that Parliament’s “silence is not a mistake.” Open Heaven also raised an argument that ICASA's March 2021 amendment, which extended community broadcasting licences from five to seven years, should apply to its existing licence.

The Constitutional Court's impending decision will have far-reaching implications, definitively clarifying the extent of ICASA's condonation powers for class licensees under the Electronic Communications Act. This ruling is crucial for establishing regulatory certainty, not only for ICASA but also for all entities operating under class licences, including numerous community broadcasters across South Africa. It will shape how future licence renewal deadlines are enforced and interpreted, impacting compliance strategies for regulated entities.

The outcome will also provide vital guidance on the interpretation of legislative intent, particularly concerning instances where statutory language is silent on specific powers. The court's judgment will determine whether ICASA possesses inherent discretion to condone late applications for class licences or if its authority is strictly limited to powers explicitly enumerated in the ECA, thereby influencing the broader landscape of South Africa's communications regulatory framework.

This Constitutional Court ruling will definitively clarify the extent of ICASA's discretion to condone late licence renewal applications for class licensees under the Electronic Communications Act. Lawyers advising broadcasters and other regulated entities must monitor the outcome to inform clients on strict compliance deadlines and potential legal avenues for condonation, impacting future regulatory strategies and potential challenges.

Source: Original reporting via ITWeb