18
more than three months before the date of expiry of the order.
(3) The provisions of section 31 shall mutatis mutandis apply in respect of any reference under this section or any
order made thereon, and the tribunal shall have power to make such order on any such reference as it deems just.
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Applications to tribunal
(1) For the purposes of this Chapter a case shall be taken to be covered by a licence scheme if, in accordance with
a licence scheme for the time being in operation, licences would be granted in cases of the class to which that case belongs:
Provided that where in accordance with the provisions of a licence scheme(a)
the licences which would be so granted would be subject to terms and conditions whereby particular
matters would be excepted from the licences; and
(b)
the case in question relates to one or more matters falling within such an exception,
that case shall be taken not to be covered by the scheme.
(2) Any person who claims that in a case covered by a licence scheme the licensing body operating the scheme has
refused or failed to grant him a licence in accordance with the provisions of the scheme or to procure the grant to him of
such a licence, may apply to the tribunal for an order under this section.
(3) An application for such an order may also be made by any person who claims that he requires a licence in a
case not covered by a licence scheme, and either(a)
that a licensing body or person has refused or failed to grant the licence or to procure the grant thereof,
and that in the circumstances it is unreasonable that the licence should not be granted; or
(b)
that any charges, terms or conditions subject to which a licensing body proposes that the licence should
be granted are unreasonable.
(4) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person
(whether requiring a licence or not) applies to the tribunal to be made a party to an application under subsection (2) or (3),
and the tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the tribunal
may if it thinks fit make that organization or person a party to the application.
(5) On any application under subsection (2) or (3) the tribunal shall give the applicant and the licensing body in
question and every other party to the application an opportunity of presenting his case, and if the tribunal is satisfied that
the claim of the applicant is well-founded, it shall make an order declaring that, in respect of the matters specified in the
order, the applicant is entitled to a licence on such terms and conditions and subject to the payment of such charges (if any)
as the tribunal may(a)
in the case of an application under subsection (2), determine to be applicable in accordance with the
licence scheme; or
(b)
in the case of an application under subsection (3), determine to be reasonable in the circumstances.
(6) Any reference in this section to failure to grant or procure the grant of a licence shall be construed as including
a reference to a failure to grant it or to procure the grant thereof within a reasonable time after being requested to do so.
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Diffusion service
In a dispute concerning the transmission of broadcasts in a diffusion service in the Republic, the tribunal shall
disallow any claim under this Act to the extent to which the licences of the broadcaster concerned provide for or include
such transmission in a diffusion service.
[S. 34 substituted by s. 57 of Act 38 of 1997.]
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Effect of orders of tribunal, and supplementary provisions relating thereto
(1) Any person who complies with the conditions of an order made by the tribunal under this Chapter or who has
given a satisfactory undertaking to the owner or prospective owner of the copyright to comply with such conditions, shall
be deemed to be the holder of a licence under this Act.
(2) In the exercise of its jurisdiction in respect of licences relating to television broadcasts, the tribunal shall have
regard inter alia to any conditions imposed by the promoters of any entertainment or other event which is to be comprised
in the broadcasts, and in particular the tribunal shall not hold a refusal or failure to grant a licence to be unreasonable if it
could not have been granted consistently with those conditions.
36
Appeals
(1) Any party to proceedings before the tribunal may appeal against any order or decision of the tribunal pursuant
to such proceedings.
(2) Every appeal shall be noted and prosecuted in the manner prescribed by law for appeals against a civil order or
decision of a single judge, and sections 20 and 21 of the Supreme Court Act, 1959 (Act 59 of 1959), shall apply mutatis
mutandis.
(3) The court may in respect of any such appeal(a)
confirm, vary or set aside the order or decision appealed against, as the court may deem fair;
(b)
if the record does not furnish sufficient evidence or information for the determination of the appeal, remit
the matter to the tribunal with instructions in regard to the taking of further evidence or the setting out of
further information;