Islamic Unity Convention V Independent Broadcasting Authority and Others 2002 (4) Sa 294 (CC)

Source:
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to March 2023/2002/Volume 4: 1 453 (July)/ISLAMIC UNITY
CONVENTION v INDEPENDENT BROADCASTING AUTHORITY AND OTHERS 2002 (4) SA 294 (CC)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/5133/5337/5357?f=templates$fn=default.htm
ISLAMIC UNITY CONVENTION v INDEPENDENT BROADCASTING AUTHORITY AND OTHERS 2002 (4) SA 294 (CC)
2002 (4) SA p294
Citation 2002 (4) SA 294 (CC)
Case No CCT 36/01
Court Constitutional Court
Judge Chaskalson CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokroro J, O'Regan J, Sachs J, Yacoob J, Du Plessis J and
Skweyiya AJ
Heard November 22, 2001
Judgment April 11, 2002
Counsel J J Gauntlett SC (with him A Schippers) for the applicant.
M Seligson SC (with him A Katz and M Chaskalson) for the fourth respondent.
No appearance for the remaining respondents.
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Constitutional practice Courts Powers of High Court Application H for declaration of constitutional invalidity Although guidelines
developed under s 19(1)(a)(iii) of Supreme Court Act 59 of 1959 relevant to decision whether Court should determine constitutional matter, such
decision ultimately governed by Constitution and its imperatives Constitution of the Republic of South Africa Act 108 of 1996. I
Constitutional practice Courts Powers of High Court Application for declaration of Constitutional invalidity Such application not prayer
for discretionary relief in terms of s 19(1)(a)(iii) of Supreme Court Act 59 of 1959 High Court required to exercise its powers in terms of s
172(1)(a) of Constitution of the Republic of South Africa Act 108 of 1996. J
2002 (4) SA p295
Constitutional practice Appeal Constitutional Court Direct access A to When granted Less reluctance to grant direct access where
matter concerns direct application of Constitution, matter not involving common law and interests of justice require early resolution of dispute
Application for leave to appeal directly to Constitutional Court against High Court's refusal to determine constitutionality of provision in Code of
Conduct for Broadcasting Services (Schedule 1 to B Independent Broadcasting Authority Act 153 of 1993) granted.
Constitutional law Human rights Right to freedom of expression Clause 2(a) of Code of Conduct for Broadcasting Services (Schedule 1 to
Independent Broadcasting Authority Act 153 of 1993) prohibiting, inter alia, broadcasting of material likely to prejudice relations between
sections of population Such C prohibition extending beyond constitutionally unprotected expression enumerated in s 16(2) of Constitution
Prohibition so widely phrased and so farreaching as to deny broadcasters and audiences right to hear, form, freely express and disseminate
their views and opinions on wide range of subjects Notwithstanding that appropriate regulation of D broadcasting serving important and
legitimate purpose, limitation on right not justifiable Prohibition in clause 2(a) prohibiting broadcasting of material 'likely to prejudice relations
between sections of the population' accordingly unconstitutional Constitution of the Republic of South Africa Act 108 of 1996, ss 16(1) and
(2), 36(1). E
Constitutional law Human rights Right to freedom of expression Unprotected expression Categories of expression enumerated in s 16(2) of
Constitution not protected Regulation of expression falling within those categories not a limitation on right to freedom of expression
Constitution of the Republic of South Africa Act 108 of 1996, s 16(2).
Constitutional practice Courts Powers of Declaration of invalidity Remedies Court declaring part of clause 2(a) of F Code of Conduct for
Broadcasting Services (Schedule 1 to Independent Broadcasting Authority Act 153 of 1993) unconstitutional and invalid insofar as clause
prohibiting broadcasting of material 'likely to prejudice . . . relations between sections of the population' Section 192 of Constitution
specifically mandating G regulation of broadcasting Neither just and equitable nor in public interest to strike down relevant portion without
replacement Court formulating notional severance to render relevant portion ineffective in application to expression protected by s 16(1) of
Constitution Prohibition to remain in place to prevent broadcast of unprotected expression as enumerated in s 16(2) Constitution of the
Republic of South Africa Act 108 of 1996, ss 16(1) and (2), 192. H
Headnote : Kopnota
Clause 2(a) of the Code of Conduct for Broadcasting Services (Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993) provides
that '(b)roadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to
the religious convictions or feelings of any section of the population or likely to prejudice the I safety of the State or the public order or
relations between sections of the population'.
The fourth respondent had lodged a formal complaint in terms of clause 2(a) with the second respondent (the Head: Monitoring and Complaints
Unit) following a broadcast by the applicant's community radio station. The J
2002 (4) SA p296
fourth respondent's complaint was that the applicant's broadcast had been 'likely to A prejudice . . . relations between sections of the
population'. Arising out of the complaint and the action taken pursuant thereto, the applicant applied to a High Court for (a) an order declaring
that clause 2(a) of the Code was unconstitutional and invalid because it was inconsistent with the right to freedom of expression protected by
s 16 of the Constitution of the Republic of B South Africa Act 108 of 1996; and (b) an order reviewing and setting aside the second
respondent's decision to refer the complaint against the applicant to the third respondent (the chairperson of the Broadcasting Monitoring and
Complaints Committee) and the decision by the third respondent to hold a formal hearing into the complaint. The Court ruled that, because it
had granted the C application to review and set aside the second and third respondents' decisions, it would be unnecessary to decide on the
constitutionality of clause 2(a) as the matter had become academic. In an application for leave to appeal directly to the Constitutional Court
against the High Court's refusal to deal with the constitutionality of clause 2(a),
Held, that the High Court had erred in approaching the application for a declaration of constitutional invalidity as if it
© 2018 Juta and Company (Pty) Ltd. D were a prayer for
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discretionary relief in terms of s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959: it had been asked to exercise its powers in terms of s 172(1)
Complaints Committee) and the decision by the third respondent to hold a formal hearing into the complaint. The Court ruled that, because it
had granted the C application to review and set aside the second and third respondents' decisions, it would be unnecessary to decide on the
constitutionality of clause 2(a) as the matter had become academic. In an application for leave to appeal directly to the Constitutional Court
against the High Court's refusal to deal with the constitutionality of clause 2(a),
Held, that the High Court had erred in approaching the application for a declaration of constitutional invalidity as if it D were a prayer for
discretionary relief in terms of s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959: it had been asked to exercise its powers in terms of s 172(1)
(a) of the Constitution. (Paragraphs [9] and [12] at 302B C/D and 302H 303A/B.)
Held, further, that, although the jurisprudence developed under s 19(1)(a)(iii) would be relevant in determining when E a Court should determine
a constitutional matter, that decision remained one to be governed by the Constitution and its imperatives, rather than one to be determined
solely by a consideration of the circumstances in which declaratory relief under s 19 of the Supreme Court Act would be granted. (Paragraphs
[11] and [12] at 302G and 303B C.)
Held, further, that, in any event, the matter was not academic: setting aside the decisions of the second and third F respondents had not
disposed of the real issue between the applicant and fourth respondent and, since it was likely that the fourth respondent would renew its
complaint based on clause 2(a), the determination of its constitutionality would preclude the applicant, or anyone else in a similar situation, from
being subjected to an enquiry held on the basis of a provision of G doubtful constitutionality. The High Court should therefore have dealt with
the constitutionality of clause 2(a). (Paragraphs [13] and [14] at 303C D/E and G/H H.)
Held, further, as to whether granting leave to appeal directly to the Constitutional Court would be in the interests of justice, that, where a case
concerned the direct application of the Constitution and did not involve the common law, and the interests of H justice required an early
resolution, there would be less reluctance to grant direct access. (Paragraph [16] at 304D/E E.)
Held, further, that it would be in the interests of justice that direct leave to appeal be granted for the following reasons: (a) the matter
concerned the direct application of the Constitution; (b) the resolution of the issue would contribute to certainty on the part of the general
public and the independent regulatory authority as to what would constitute legitimate conduct in relation to the impugned provision; I (c) the
parties had accepted that the clause constituted a limitation on the right to freedom of expression, though they differed as to whether or not
the limitation was justifiable; and (d) there was no doubt that hearing the appeal would avoid protracted procedures and unnecessary costs.
(Paragraphs [17] [20], summarised, at 304E 305A.) J
2002 (4) SA p297
Held, further, that it would be inappropriate to decide the constitutionality of clause 2(a) on a basis broader than A that required by the
underlying dispute between the parties, namely that portion of clause 2(a) prohibiting the broadcasting of material which was 'likely to prejudice
relations between sections of the population', because the other prohibitions in clause 2(a) dealt with complex and contentious issues upon
which the parties had not focused their argument. (Paragraph [24] at 305G/H 306A.) B
Held, further, as to whether the prohibition in clause 2(a) against broadcasting material which was likely to prejudice relations between sections
of the population was a limitation on the right to freedom of expression, that, in recognition of the fact that expression might potentially impair
the exercise and enjoyment of other rights, such as the right to dignity, as well as other State interests, such as the pursuit of national unity
and reconciliation, C the right to freedom of expression was not absolute. Like other rights, it was subject to limitations under s 36(1) of the
Constitution. (Paragraph [30] at 308C D.)
Held, further, that the introductory words to s 16(2) of the Constitution implied that the categories of expression enumerated in ss (2) were not
regarded as constitutionally protected and that any regulation of expression falling within those categories would thus not D be a limitation on
the right to freedom of expression. (Paragraphs [32] and [33] at 308G H and 309D/E.)
Held, further, that, where the scope of regulation extended beyond the categories of expression enumerated in s 16(2), such regulation would
encroach upon the terrain of protected expression and would have to meet the justification criteria in s 36(1). (Paragraph [34] at 309E.) E
Held, further, that the prohibition in clause 2(a) against broadcasting material that was 'likely to prejudice relations between sections of the
population' clearly went beyond the categories of expression enumerated in s 16(2). It did not, for example, require that the prohibited material
should amount to advocacy of hatred, least of all hatred based on race, ethnicity, gender or religion, nor that it should have any potential to
cause harm (see s 16(2)(c)). (Paragraph [35] at 309E/F G.) F
Held, further, as to whether clause 2(a) was a constitutionally permissible limitation on expression not excluded from the protection of s 16(1),
that it was in the public interest that people be free to speak their minds openly and robustly and that they be free, in turn, to receive
information, views and ideas. It was also in the public interest that reasonable limitations be applied, provided that those limitations were
consistent with the Constitution. (Paragraph [37] at 310C D.) G
Held, further, that it would require an unduly strained interpretation of the very wide language of the phrase 'likely to prejudice relations
between sections of the population' in the light of the very concise and specific provisions of s 16(2)(c) to achieve the narrow interpretation
contended for by the fourth H respondent. The phrase was accordingly not reasonably capable of being read to give the meaning favoured by
the fourth respondent. (Paragraph [43] at 312A B/C.)
Held, further, as to whether the provision in clause 2(a) was nevertheless justifiable, that the prohibition was so widelyphrased and so far
reaching that, in the absence of any intelligible standard to assist in determining the scope of the I prohibition, it would be difficult to know
beforehand what really was prohibited or permitted, thus denying broadcasters and their audiences the right to hear, form, freely express and
disseminate their opinions and views on a wide range of subjects. (Paragraph [44] at 312C E.)
Held, further, that the purpose behind the regulation of broadcasting, as expressed in the preamble to the Code, namely that 'the freedom of all
J
2002 (4) SA p298
broadcasting licensees . . . is founded on the individual's fundamental right to be informed and to freely receive A and disseminate opinions',
was undermined by the prohibition insofar as it inhibited the 'freedom to receive or impart information or ideas'. (Paragraph [46] at 313C/D E.)
Held, further, that there was no doubt that the inroads on the right to freedom of expression made by the prohibition on which the B fourth
respondent's complaint had been based were far too extensive and outweighed the factors considered by the fourth respondent as ameliorating
their impact. Although it was true that the appropriate regulation of broadcasting served an important and legitimate purpose because of the
critical need in South Africa to protect and promote human dignity, equality, freedom, the healing of past divisions and the building of a united
society, it had not been C shown that that need could not adequately be met by the enactment of a provision which was appropriately tailored
and more adequately focused. The relevant portion of clause 2(a) accordingly impermissibly limited the right to freedom of expression and was
unconstitutional. (Paragraph [51] read with para [45] at 314F/G 315A/B and 312F/G 313A.)
Held, further, as to appropriate relief, that, given that s 192 of the Constitution specifically mandated the regulation of D broadcasting, the
dangerous gap which would be left if the relevant portion of clause 2(a) were struck down in its entirety with nothing to replace it would neither
be just and equitable nor in the public interest. (Paragraph [56] at 316A B.)
The Court accordingly formulated a notional severance to ensure that the relevant part of clause 2(a) was rendered ineffective in E its
application to protected expression, but that a prohibition remained in place to prevent the broadcasting of expression which was unprotected
in terms of s 16(2) of the Constitution and ruled that such formulation should serve as a guiding principle for the determination of the fourth
respondent's complaint against the applicant. (Paragraphs [57] and [58] at 316C F.)
Cases Considered
Annotations
Reported cases F
Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207): referred to
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Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to G
Cases Considered
Annotations
Reported cases F
Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207): referred to
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to G
Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR
1015): dictum in paras [2] [3] applied
De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) 1998 (11) BCLR 1345 (CC): referred to
Handyside v The United Kingdom (1976) 1 EHRR 737: dictum at 754 applied H
Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A): referred to
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883): referred to
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: I In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (10) BCLR 1079): dictum in paras [23] [24] applied
J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599): dictum in para
[15] applied J
2002 (4) SA p299
Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party A and Others 1998 (4) SA

1157 (CC) (1998 (7) BCLR 855): dictum in para [32] applied
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39):
referred to B
President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others 1999 (4) SA 682 (CC) (1999 (11) BCLR 1219):
referred to
Publications Control Board v William Heinemann Ltd and Others 1965 (4) SA 137 (A): referred to
R v Keegstra (1991) 61 CCC (3d) 1: dictum at 36g 37h applied
R v Zundel (1992) 10 CRR (2d) 193 (SCC): referred to C
S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579): considered
S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum in para [102] applied
S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (5) BCLR 449): dicta in paras [28] and [37] applied
S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793): referred to D
S v Turrell and Others 1973 (1) SA 248 (C): referred to
Shabalala and Others v AttorneyGeneral, Transvaal, and Another 1996 (1) SA 725 (CC) (1995 (2) SACR 761; 1995 (12) BCLR 1593): dictum in
para [26] applied
South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) (1999 (6) BCLR 615): dictum in para [8] applied
Stanley v Georgia 394 US 557 (1969): considered E
United Communist Party of Turkey and Others v Turkey (1998) 26 EHRR 121: considered
United Democratic Front and Another v Acting Chief Magistrate, Johannesburg 1987 (1) SA 413 (W): referred to
Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424): referred to. F
Statutes Considered
Statutes
The Constitution of the Republic of South Africa Act 108 of 1996, Preamble, ss 1(a), 16(1) and (2), 36(1), 172(1) and 192: see Juta's Statutes
of South Africa 2000 vol 5 at 1145, 1146, 1147, 1149, 1169, 1172 G
The Independent Broadcasting Authority Act 153 of 1993, s 56, Schedule 1 Preamble, clause 2(a): see Juta's Statutes of South Africa 2000 vol
2 at 236, 242
The Supreme Court Act 59 of 1959, s 19(1)(a)(iii): see Juta's Statutes of South Africa 2000 vol 1 at 187. H
Case Information
Application for direct leave to appeal to the Constitutional Court against a High Court's refusal to consider an application for a declaration of
constitutional invalidity. The facts and the nature of the issues appear from the judgment of Langa DCJ. I
J J Gauntlett SC (with him A Schippers) for the applicant.
M Seligson SC (with him A Katz and M Chaskalson) for the fourth respondent.
No appearance for the remaining respondents.
Cur adv vult. J
2002 (4) SA p300
Postea (April 11). A
Judgment
Langa DCJ:
Introduction
[1] The applicant, the Islamic Unity Convention, runs a community B radio station known as Radio 786 under a broadcasting licence issued to it
by the first respondent, the Independent Broadcasting Authority (the IBA).1 On 8 May 1998 the station broadcast a programme entitled
'Zionism and Israel: An indepth analysis' in which an interview with one Dr Yaqub Zaki, C described as an historian and author, was featured. In
the interview, Dr Zaki dealt with the historical, political, social and economic factors which, according to him, played a role in the establishment
of the State of Israel. He expressed views which, among other things, questioned the legitimacy of the State of Israel and Zionism as a political
ideology, asserted that Jewish people were not gassed in concentration camps during the Second World War but died of infectious D diseases,
particularly typhus, and that only a million Jews had died.
[2] Following the broadcast fourth respondent, the South African Jewish Board of Deputies (the Board), lodged a formal complaint with the
second respondent, the Head: Monitoring and Complaints Unit,2 claiming that the material that had been E broadcast contravened clause 2(a)
of the Code of Conduct for Broadcasting Services (the Code) in that it was 'likely to prejudice relations between sections of the population, ie
Jews and other communities'. The Code is contained in Schedule 1 to the Independent Broadcasting Authority Act (the F Act).3
[3] A copy of the complaint was sent to the applicant for its comment. In its response, applicant denied that it had contravened clause 2(a) of
the Code and claimed that the complaint had in any event lapsed as it had not been lodged within the 30 days required by the relevant
[2] Following the broadcast fourth respondent, the South African Jewish Board of Deputies (the Board), lodged a formal complaint with the
second respondent, the Head: Monitoring and Complaints Unit,2 claiming that the material that had been E broadcast contravened clause 2(a)
of the Code of Conduct for Broadcasting Services (the Code) in that it was 'likely to prejudice relations between sections of the population, ie
Jews and other communities'. The Code is contained in Schedule 1 to the Independent Broadcasting Authority Act (the F Act).3
[3] A copy of the complaint was sent to the applicant for its comment. In its response, applicant denied that it had contravened clause 2(a) of
the Code and claimed that the complaint had in any event lapsed as it had not been lodged within the 30 days required by the relevant
complaints procedures. After some correspondence had passed between the Board and the Complaints Unit, G however, it was accepted by the
latter that the complaint was not out of time. It then referred the complaint to the third respondent, the chairperson of the Broadcasting
Monitoring and Complaints Committee (the BMCC), who decided that the matter should be dealt with by the BMCC by way of a formal hearing.
[4] The Complaints Unit had failed, however, to comply with the H IBA's procedures, which required it to advise the applicant that the complaint
had not lapsed, but had been referred to the third respondent. When the applicant discovered that the complaint was in fact being processed,
it I
2002 (4) SA p301
LANGA DCJ
launched an application in the Witwatersrand High Court challenging the decisions that had been taken by the second A and third respondents.
Largely as a result of misleading information which applicant had received from the IBA and its Complaints Unit, the relief sought initially was
wideranging, but much of it had fallen away by the time the hearing before the High Court concluded. B
[5] Only two aspects of the relief for which the applicant applied have relevance to these proceedings. First, applicant asked the High Court to
grant an order declaring that clause 2(a) of the Code is unconstitutional and therefore invalid because of its inconsistency with the right to
freedom of expression in s 16 of the Constitution of the Republic of South Africa Act 108 of 1996. Second, C the Court was requested to review
and set aside the decision of the second respondent to refer the complaint to the third respondent, and that of the third respondent to hold a
formal hearing to deal with the complaint.
[6] Full argument was addressed to the High Court on both D issues. On 12 April 2001 Marais J held in favour of the applicant that the referral
of the complaint by the second respondent to third respondent was fatally flawed. He accordingly set aside the decisions of the second and
third respondents. In the light of this finding, Marais J ruled that it was not necessary for him to consider the constitutional issue concerning
clause 2(a) and he expressly declined to do so. E
[7] The applicant now seeks leave to appeal directly to this Court against the High Court's decision not to deal with the constitutionality of the
impugned provision. The respondents do not oppose the application to bring the appeal directly to this Court. The Board's opposition is
concerned only with the substantive dispute on F the constitutionality of clause 2(a). Marais J has certified under Rule 18(2)4 that it is in the
interests of justice for the appeal to be brought directly to this Court. Notwithstanding the unanimity on the question of a direct appeal, it
remains the duty of this Court to consider whether this is an appropriate matter for leave to appeal to be granted. G
The judicial discretion in an application in terms of s 172 of the Constitution
[8] Marais J declined to deal with the issue of the constitutionality H of clause 2(a) of the Code for two reasons. The first was that the issue
had become academic in view of his decision to review and set aside the decisions of the second and third respondents. Secondly, the Judge
took the applicant's request for a declaration that the provision was inconsistent I
2002 (4) SA p302
LANGA DCJ
with the Constitution to be a prayer for a declaratory order in terms of s 19(1)(a)(iii) A of the Supreme Court Act.5 This led him to hold that,
on the assumption that s 19(1)(a)(iii) gave him the power to decide the constitutional issue, this was 'not an appropriate case to decide so
important an issue'.
[9] In terms of s 19(1)(a)(iii) the High Court has the power, in its discretion, to enquire into and determine any B existing, future or contingent
right or obligation, notwithstanding that the person seeking the order cannot claim any relief consequential upon the determination. In this case
the applicant sought an order declaring that clause 2(a) is inconsistent with s 16(1) of the Constitution and without force or effect. The High
Court was not being asked to 'enquire into and determine' applicant's rights, but C to exercise its powers in terms of s 172(1)(a) o f t h e
Constitution and to declare clause 2(a) invalid.6
[10] A Court's power under s 172 of the Constitution is a unique remedy created by the Constitution. The section is the constitutional source of
the power to declare law or conduct that is D inconsistent with the Constitution invalid. It provides that when a Court decides a constitutional
matter, it must declare invalid any law or conduct inconsistent with the Constitution. It does not, however, expressly regulate the
circumstances in which a Court should decide a constitutional matter. As Didcott J stated in J T E Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others:7
'Section 98(5) admittedly enjoins us to declare that a law is invalid once we have found it to be inconsistent with the Constitution. But the
requirement does not mean that we are compelled to determine the anterior issue of inconsistency when, owing to its wholly abstract, F academic
or hypothetical nature should it have such in a given case, our going into it can produce no concrete or tangible result, indeed none whatsoever
beyond the bare declaration.'8
[Footnote omitted.]
[11] In determining when a Court should decide a constitutional matter, the jurisprudence developed under s 19(1)(a)(iii) G will have relevance,
as Didcott J pointed out in the J T Publishing case. It is, however, also clear from that judgment that the constitutional setting may well
introduce considerations different from those that are relevant to the exercise of a Judge's discretion in terms of s 19(1)(a)(iii).9
[12] What is clear is that the High Court erred in approaching the prayer H
2002 (4) SA p303
LANGA DCJ
for constitutional invalidity as if it were a prayer for discretionary relief in terms of s 19(1)(a)(iii). The A relief was sought in terms of the
Constitution itself and not under the Supreme Court Act. It is already settled jurisprudence of this Court that a Court should not ordinarily
decide a constitutional issue unless it is necessary to do so.1 0 Nor should it ordinarily decide a constitutional issue which is moot.1 1 The
decision as to whether a Court B should decide a constitutional matter remains one governed by the Constitution and its imperatives, not one
determined solely by a consideration of the circumstances in which declaratory relief under s 19 of the Supreme Court Act would be granted.
[13] The matter is in any event not academic. The setting aside C of the decisions of the second and third respondents was not dispositive of
the real issue between the applicant and the Board.1 2 The dispute concerning the constitutionality of the provision on which the Board's
complaint is based is an acute and continuing one. Since it was always highly likely that the Board would renew its complaint, making a
determination on the D constitutional validity of the provision would avoid subjecting applicant, and anyone similarly situated, to an enquiry held
on the basis of a provision of doubtful constitutionality. The dispute is a burning issue and one that is necessary in the public interest to
resolve, involving as it does a provision that is fundamental to the regulation of broadcasting and, more particularly, what may be broadcast and
what may not. This is quite apart from another factor E which Marais J took into account in coming to the conclusion that the matter was
academic, and that is the impression that he had been given to the effect that new proposals which had been made by the IBA to replace
provisions of the Code, including the impugned provision, would soon be put into operation. As Marais J later discovered, that F impression was
based on erroneous information. A position paper, which reflected the IBA's view that clause 2(a) was overbroad and therefore constitutionally
objectionable, had indeed been given to the national Minister of Posts and Telecommunications in March 1999, but to date, three years after
the proposals were made, there is still no indication when the proposed legislation would be enacted, if at all. G In this Court counsel were
unable to throw any light on the causes for the delay in the implementation of the IBA's proposals.
[14] I accordingly find that the High Court should have dealt with the constitutionality of the provision that formed the basis of the dispute
between the applicant and the Board. I turn now to deal with the question whether leave to appeal should be granted by this H Court.
based on erroneous information. A position paper, which reflected the IBA's view that clause 2(a) was overbroad and therefore constitutionally
objectionable, had indeed been given to the national Minister of Posts and Telecommunications in March 1999, but to date, three years after
the proposals were made, there is still no indication when the proposed legislation would be enacted, if at all. G In this Court counsel were
unable to throw any light on the causes for the delay in the implementation of the IBA's proposals.
[14] I accordingly find that the High Court should have dealt with the constitutionality of the provision that formed the basis of the dispute
between the applicant and the Board. I turn now to deal with the question whether leave to appeal should be granted by this H Court.
2002 (4) SA p304
LANGA DCJ
The enquiry as to whether leave to appeal should be granted A
[15] The broad consideration in determining whether or not to grant leave to appeal directly to this Court is the interests of justice. The
exercise involves the weighingup of a number of factors, some of which were summed up by this Court in Member of the Executive Council for
Development Planning and Local Government, Gauteng v Democratic Party and Others1 3 as follows: B
'Relevant factors to be considered in such cases will, on the one hand, be the importance of the constitutional issues, the saving in time and
costs that might result if a direct appeal is allowed, the urgency, if any, in having a final determination of the matters in issue and the prospects of
success, and, on the other hand, the C disadvantages to the management of the Court's roll and to the ultimate decision of the case if the SCA is
bypassed.'1 4
[16] The nature of the dispute is a factor in determining the interests of justice in a particular case. In Amod v Multilateral Motor Vehicle
Accidents Fund1 5 this Court held that the benefit of a judgment by the Supreme Court of Appeal is D of particular relevance where the
development of the common law is at issue. When a case concerns the direct application of the Constitution and does not involve the common
law, and the interests of justice require its early resolution, direct access to this Court may be granted with less reluctance. E
[17] The present case involves a comparison of a piece of legislation with a provision of the Constitution and an evaluation of their
compatibility. It is not concerned with the development of the common law but with the direct application of the Constitution. This is therefore
a case where the benefit of first obtaining the views of the SCA may readily be outweighed by other considerations. F
[18] A resolution of this issue would have distinct implications for the interests of justice, going beyond the immediate needs of the applicant
and the respondents. It would further contribute to certainty, on the part of both the general public and the independent regulating authority,
as to what is legitimate conduct G in relation to that part of the provision that is presently in dispute.
[19] With regard to prospects of success, in addition to the positive certificate from Marais J, it is also significant that the applicant, the IBA
and the Board accept that the provision on which the complaint is based constitutes a limitation of the right to freedom of expression. The
Board maintains that the limitation is justifiable and H applicant argues that it is not. Apart from the fact that all the parties to this litigation
support the matter being dealt with directly by this Court, there is no doubt that hearing the appeal would avoid protracted procedures and
unnecessary costs. I
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[20] In the circumstances, I consider that it is in the interests of justice that leave to appeal directly to the A Constitutional Court be granted.
The constitutional issue
[21] Although the matter has its origins in the complaint by the Board in respect of a specific broadcast, the function of this Court in the
present proceedings is to adjudicate on the question of the B constitutionality of clause 2(a) of the Code in relation to that complaint as an
abstract and objective one. The contents of the particular statement in respect of which the Board complains are not relevant to the enquiry.
What the Court is concerned with is whether the provision on which the complaint was based is consistent with the right to freedom of
expression in s 16 of the Constitution. C
[22] Clause 2(a) provides that:
'Broadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the
religious convictions or feelings of any section of a population or likely to prejudice the safety of the State or the public order or D relations
between sections of the population.'
[23] In its written argument, the applicant's attack was directed at the whole of clause 2(a) and criticised each prohibition, largely on the
grounds of vagueness and overbreadth. It was contended that the whole clause was unconstitutional. The Board's E approach to the
constitutional challenge was that the clause is 'internally severable'1 6 and that each of the individual prohibitions contained in it are severable
from the other prohibitions in the clause. It argued that since its complaint was that the offending broadcast was 'likely to prejudice relations
between sections of the population', only the last segment of the clause was implicated and should be subject to constitutional enquiry. When
the F matter was argued before this Court, the applicant did not expressly abandon its position that clause 2(a) was unconstitutional in its
entirety. However, faced with the Board's response, which confined itself to the defence of the one prohibition on which its complaint was
based, applicant's argument also concentrated on that issue. G
[24] The complaint was based entirely on the portion of clause 2(a) that refers to material that is 'likely to prejudice relations between sections
of the population'. It is this part of the clause, therefore, that is the relevant portion for the purposes of this judgment. It is clear that the
other prohibitions in clause H 2(a) deal with complex and contentious issues which were not the focus of argument in this Court. It would not
be appropriate in the circumstances for the Court to deal with the constitutionality
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of clause 2(a) on a broader basis than that required by the A underlying dispute between the parties in this case. I proceed therefore to deal
with the question whether the prohibition against the broadcasting of material that is 'likely to prejudice relations between sections of the
population' is a limitation of the right to freedom of expression.
Freedom of expression B
[25] Section 16 of the Constitution provides as follows:
'(1) Everyone has the right to freedom of expression, which includes
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and C
(d) academic freedom and freedom of scientific research.
(2) The right in ss (1) does not extend to
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, D gender, or religion, and that constitutes incitement to cause harm.'
[26] This Court has held that
'. . . freedom of expression is one of a ''web of mutually supporting rights'' in the Constitution. It is closely related to freedom of religion, belief
and opinion (s 15), the right to dignity (s 10), as well as the right to freedom of association (s 18), the E right to vote and to stand for public office
(s 19), and the right to assembly (s 17). . . . The rights implicitly recognise the importance, both for a democratic society and for individuals
personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.'1 7
As to its relevance to a democratic State, the Court has pointed out that freedom of expression F
'. . . lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit
recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society
'. . . freedom of expression is one of a ''web of mutually supporting rights'' in the Constitution. It is closely related to freedom of religion, belief
and opinion (s 15), the right to dignity (s 10), as well as the right to freedom of association (s 18), the E right to vote and to stand for public office
(s 19), and the right to assembly (s 17). . . . The rights implicitly recognise the importance, both for a democratic society and for individuals
personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.'1 7
As to its relevance to a democratic State, the Court has pointed out that freedom of expression F
'. . . lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit
recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society
generally. The Constitution recognises G that individuals in our society need to be able to hear, form and express opinions and views freely on a
wide range of matters . . .'.1 8
[footnotes omitted] and in S v Mamabolo (E TV and Others Intervening) the following was said:
'Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance H in
the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control,
censorship and enforced conformity to governmental theories, freedom of expression the free and open exchange of ideas is no less important
than it is in the United States of America. It could actually be contended with much force that the public interest in the open I marketplace of
ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. J
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Therefore we should be particularly astute to outlaw any form of thought control, however respectably A dressed.'1 9
[27] Notwithstanding the fact that the right to freedom of expression and speech has always been recognised in the South African common
law,2 0 we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively
circumscribed by various B legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself,
but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be
incompatible with South Africa's present commitment to a society based on a 'constitutionally protected culture of openness and democracy
and universal human rights C for South Africans of all ages, classes and colours'.2 1 As pointed out by Kriegler J in Mamabolo,
'. . . freedom to speak one's mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is
specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by ss 15 19 of the Bill
of Rights'.2 2 D
[28] South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has
been described as 'one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the
development of every one of its members . . .'.2 3 As such it is protected in almost E every international human rights instrument. In Handyside
v The United Kingdom2 4 the European Court of Human Rights pointed out that this approach to the right to freedom of expression is
'applicable not only to ''information'' or ''ideas'' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb F . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no
''democratic society''.'2 5
[29] The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which G
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seriously threatens democratic pluralism itself. Section 1 of the Constitution declares that South Africa is founded on the values of A 'human
dignity, the achievement of equality and the advancement of human rights and freedoms'. Thus, open and democratic societies permit
reasonable proscription of activities and expressions that pose a real and substantial threat to such values and to the constitutional order B
itself.2 6 Many societies also accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory or unduly abusive
kind may be restricted so as to guarantee free and fair elections in a tranquil atmosphere.
[30] There is thus recognition of the potential that expression has to impair the exercise and enjoyment of other important rights, C such as the
right to dignity, as well as other State interests, such as the pursuit of national unity and reconciliation. The right is accordingly not absolute; it
is, like other rights, subject to limitation under s 36(1) of the Constitution. Determining its parameters in any given case is therefore important,
particularly where D its exercise might intersect with other interests. Thus in Mamabolo2 7 the following was said in the context of the
hierarchical relationship between the rights to dignity and freedom of expression:
'With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as
worthy of protection as the right to freedom of E expression. How these two rights are to be balanced, in principle and in any particular set of
circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression
does not enjoy superior status in our law.'
[Footnote omitted.]
[31] Section 16 is in two parts. Subsection (1) is concerned F with expression that is protected under the Constitution. It is clear that any
limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals
with expression that is specifically excluded from the protection of the right. G
[32] How is s 16(2) to be interpreted? The words '(t)he right in ss (1) does not extend to . . .' imply that the categories of expression
enumerated in s 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond
which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an
acknowledgment that certain H expression does not deserve constitutional protection because,
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among other things, it has the potential to impinge adversely on the dignity of others and cause A harm. Our Constitution is founded on the
principles of dignity, equal worth and freedom, and these objectives should be given effect to.
[33] Three categories of expression are enumerated in s 16(2). They are expressed in specific and defined terms. Section 16(2)(a) and (b) are
respectively concerned with B 'propaganda for war' and 'incitement of imminent violence'. Section 16(2)(c) is directed at what is commonly
referred to as hate speech. What is not protected by the Constitution is expression or speech that amounts to 'advocacy of hatred' that is
based on one or other of the listed grounds, namely race, ethnicity, gender or religion C and which amounts to 'incitement to cause harm'.
There is no doubt that the State has a particular interest in regulating this type of expression because of the harm it may pose to the
constitutionally mandated objective of building the nonracial and nonsexist society based on human dignity and the achievement of equality.
There is accordingly no bar to the enactment of legislation that prohibits such D expression. Any regulation of expression that falls within the
categories enumerated in s 16(2) would not be a limitation of the right in s 16.
[34] Where the State extends the scope of regulation beyond expression envisaged in s 16(2), it encroaches on the terrain of protected
expression and can do so only if such regulation meets the E justification criteria in s 36(1) of the Constitution.
[35] The prohibition against the broadcasting of material that is 'likely to prejudice relations between sections of the population' selfevidently
limits the right in s 16 of the Constitution. The F phrase 'section of the population' in this part of clause 2(a) is less specific than 'race,
ethnicity, gender or religion' as spelt out in s 16(2)(c). The prohibition clearly goes beyond the categories of expression enumerated in s 16(2).
It does not, for instance, require that the material prohibited should amount to advocacy of hatred, least of all hatred based on race, ethnicity,
gender or religion, nor that it should have any potential to cause harm. G
[36] Whilst, on the one hand, the categories of speech referred to in s 16(2)(c), are carefully circumscribed, no such tailoring is evident in the
relevant portion of clause 2(a). There is no doubt that each of the forms of expression listed in s 16(2) could produce the result envisaged in
clause 2(a). H Expression that makes propaganda for war (s 16(2)(a)) may, depending on the circumstances, threaten relations between
sections of the population, or produce a situation where these are likely to be prejudiced. The converse is not true, however. Not every
expression or speech that is likely to prejudice relations between sections of the population would be 'propaganda for war', or 'incitement of
imminent I violence' or 'advocacy of hatred' that is not only based on race, ethnicity, gender or religion, but that also 'constitutes incitement to
[36] Whilst, on the one hand, the categories of speech referred to in s 16(2)(c), are carefully circumscribed, no such tailoring is evident in the
relevant portion of clause 2(a). There is no doubt that each of the forms of expression listed in s 16(2) could produce the result envisaged in
clause 2(a). H Expression that makes propaganda for war (s 16(2)(a)) may, depending on the circumstances, threaten relations between
sections of the population, or produce a situation where these are likely to be prejudiced. The converse is not true, however. Not every
expression or speech that is likely to prejudice relations between sections of the population would be 'propaganda for war', or 'incitement of
imminent I violence' or 'advocacy of hatred' that is not only based on race, ethnicity, gender or religion, but that also 'constitutes incitement to
cause harm'. There may well be instances where the prohibition in clause 2(a) coincides with what is excluded from the protection of the right.
The real question though is whether the clause, in prohibiting that which is not J
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excluded from the protection of s 16(1), does so in a manner which is constitutionally A impermissible. It is to that enquiry that I now turn.
The justification enquiry
[37] The responsibility for the regulation of broadcasting in South Africa stems from s 192 of the Constitution, which provides that: B
'National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a
diversity of views broadly representing South African society.'
In fulfilling this regulatory function the broadcasting authority is bound to respect the provisions of the Bill of Rights2 8 while the legislation may
limit the C protected rights only as permitted by the Constitution.2 9 In the context of broadcasting, freedom of expression will have special
relevance. It is in the public interest that people be free to speak their minds openly and robustly, and, in turn, to receive information, views
and ideas. It is also in the public interest that reasonable limitations be applied, provided that they are consistent with the Constitution. D
[38] Section 36(1) of the Constitution sets out the criteria for the limitation of rights. The limitation must be by means of a law of general
application and determining what is fair and reasonable is an exercise in proportionality, involving the weighing up of various E factors in a
balancing exercise to determine whether or not the limitation is reasonable and justifiable in an open and democratic society founded on human
dignity, equality and freedom.3 0 No grounds for justification have been provided by either the IBA or the fifth respondent, the Minister of
Communications, who was joined in the proceedings at the instance of the applicant. On the contrary and consistent with its view F that the
clause is constitutionally objectionable, the IBA has set a process in train for the relevant legislation and the Code to be revised.
[39] The relevant part of clause 2(a) prohibits licensees from broadcasting any material of the nature which it describes. Applicant has argued
that the prohibition is unreasonable and unjustifiable and accordingly inconsistent with the Constitution. G The Board denies this and contends
that, on a proper interpretation of the prohibition, the limitation is justifiable and therefore consistent with the Constitution. The Board
submitted that if the prohibition against the broadcasting of material 'likely to prejudice relations between sections of the population' were given
a narrow interpretation, it is reasonably capable of a meaning that renders it H justifiable in terms of s 36(1).
[40] In Investigating Directorate: Serious Economic Offences and Others v
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Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and A Others3 1 this Court
held that, if there is an interpretation of the impugned provision that is reasonably capable of being read consistently with the Constitution,
such interpretation should be adopted. The interpretation must, however, not be unduly strained. Furthermore, a balance must be struck
between the duty of a B judicial officer to interpret legislation in conformity with the Constitution insofar as it is reasonably possible, and the
duty of the Legislature to pass legislation that is reasonably clear and precise, enabling citizens to understand what is expected of them.3 2 The
question in the present case is whether the relevant portion of clause 2(a) is capable of a meaning that is consistent with the Constitution,
while at the same C time being sufficiently clear and precise to enable the IBA (ICASA) and the BMCC to handle complaints in a consistent
manner.
[41] The Board's suggestion is that the relevant part of the clause should be interpreted to mean that only broadcasts which will probably
cause material damage to relations between readily D identifiable sections of the population are hit by the proscription. In order to cause legally
cognisable prejudice to relations between sections of society, so the argument goes, the broadcast must promote prejudice and stereotyping or
the demonising of a target victim group by violating their dignity in such a way that E
(a) other defined groups within society (as opposed to individuals) will be sufficiently moved by the stereotyping or demonizing to regard
the target victim group with contempt or hatred or to inflict harm on that target victim group; and F
(b) the offensive content of the broadcast is viewed by the target victim group as being the collective responsibility of a different
section of society ('the perpetrator group') and not the work or responsibility merely of individuals, and is sufficiently offensive to
a sufficient number of members of the target victim group that it moves them as a group, as opposed to individuals drawn from
that group, to regard the perpetrator group with contempt or hatred or to want to inflict harm on that perpetrator group. G
[42] Thus a breakdown of the phrase 'likely to prejudice relations between sections of the population' would go something like this: 'likely to
prejudice' would be interpreted to refer to material that would 'probably cause material damage' and 'sections of the H population' would be
understood to refer to such sections as are identifiable on the basis of race, ethnicity, gender and religion. According to the argument,
'relations' would be used in the context of there being a target victim group on the one hand, and a defined perpetrator group on the other,
whose expression moves other defined groups to demonise or stereotype the victim group, and the victim group I must, in turn, blame the
perpetrator group for this.
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[43] It is obvious that the interpretation contended for would A entail a complicated exercise of interpreting the very wide language of the
relevant part of clause 2(a) in the light of the very concise and specific provisions of s 16(2)(c). Whilst this process might assist in determining
whether particular expression can be regarded as hate speech, I fail to see how its meaning can coincide B with that of the impugned clause on
any reasonable interpretation without being unduly strained. This segment of the clause is accordingly not reasonably capable of being read to
give the meaning which is favoured by the Board.
[44] The next question to be considered is whether the provision is nevertheless justifiable despite its inability to be read in the way that the
Board suggests. The prohibition against the broadcasting of C any material which is 'likely to prejudice relations between sections of the
population' is cast in absolute terms; no material that fits the description may be broadcast. The prohibition is so widely phrased and so far
reaching that it would be difficult to know beforehand what D is really prohibited or permitted. No intelligible standard has been provided to
assist in the determination of the scope of the prohibition. It would deny both broadcasters and their audiences the right to hear, form and
freely express and disseminate their opinions and views on a wide range of subjects. The wide ambit of this prohibition may also impinge on
other rights, such as the exercise and E enjoyment of the right to freedom of religion, belief and opinion guaranteed in s 15 of the Constitution.
[45] The Board has submitted that the limitation of the right to freedom of expression may be justifiable in the interests of human dignity and
equality, which are founding values of the F Constitution,3 3 and national unity, which is an important and legitimate State objective.3 4 It is
indeed true that the appropriate regulation of broadcasting by the government and its organs, in the public interest, serves an important and
legitimate purpose in a democratic society, particularly in view of the constitutional duty to put such regulation in place.3 5 This is because of
the critical need, G for the South African community, to promote and protect human dignity, equality, freedom,3 6 the healing of the divisions of
the past3 7 and
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the building of a united society.3 8 South African society is A diverse and has for many centuries been sorely divided, not least through laws
and practices which encouraged hatred and fear. Expression that advocates hatred and stereotyping of people on the basis of immutable
the past3 7 and
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the building of a united society.3 8 South African society is A diverse and has for many centuries been sorely divided, not least through laws
and practices which encouraged hatred and fear. Expression that advocates hatred and stereotyping of people on the basis of immutable
characteristics is particularly harmful to the achievement of these values as it reinforces and perpetuates patterns of discrimination and
inequality.3 9 Left B unregulated, such expression has the potential to perpetuate the negative aspects of our past and further divide our
society. The Constitution accordingly demands that regulation should 'ensure fairness and a diversity of views broadly representing South
African society',4 0 a mandate which is hardly surprising in a country still riddled with a legacy of inequalities, and in which not all have equal
access to and control of resources, including the electronic media. C
[46] The purpose behind the regulation of broadcasting in South Africa, as expressed in the preamble to the Code, is that
'. . . the freedom of all broadcasting licensees is indivisible from and subject to the same restraints as those relevant to the individual person,
and is founded on the individual's fundamental D right to be informed and to freely receive and disseminate opinions'.4 1
That purpose is undermined by the prohibition insofar as it inhibits the right to 'freedom to receive or impart information or ideas'.
[47] The Board contended further that the impact of the prohibition is not extensive. This factor is relevant in the balancing E exercise since
the more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.4 2 Three reasons were
advanced. The first was that, according to the Board, the prohibition has a very limited ambit, since it is contained in a broadcasting code
which is only applicable to broadcasting licensees and not to the public at large. F This ground ignores the twosided nature of the right, not
only to impart information but also to receive it.4 3 The broadcaster itself potentially has a wide audience that would be deprived of information
that it would receive, but for the prohibition. Furthermore, the fact that s 16(1)(a) makes specific mention of 'freedom of the . . . media' is a
clear indication of G the recognition by the Constitution of the powerful role that the media plays in shaping public opinion and providing the
public with information about current events. There can be no doubt that radio and television are extremely influential media. The extent and
impact of the infringement is therefore not rendered less significant by reason of the fact that the prohibition applies only to broadcasters. H
[48] The second reason advanced by the Board was that no criminal
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sanction goes with the prohibition and it therefore carries none of the 'chilling' consequences of the criminal law. This ignores A the fact that
the Act authorises the regulatory authority in instances of repeated violations to suspend the license of an errant broadcaster for up to 30 days
at most.4 4 I do not agree that the absence of a criminal sanction necessarily means that other B sanctions cannot be adequate or effective
punishments and deterrents. Broadcasters are in the business of broadcasting; having a licence suspended for a month would have significant
implications for their business.
[49] Thirdly, the Board contended that the prohibition has minimal impact on the right because broadcasters are not compelled to C subscribe
to the Code; it is open to those who wish to 'opt out' to do so provided they adopt another code, acceptable to the regulatory authority.4 5 It
is no answer to a constitutionality challenge to argue that the litigant has a choice to opt out. It is trite that law and conduct that is
inconsistent with the Constitution is invalid;4 6 the objective D invalidity is not lessened by the ability of the person affected to choose not to
be bound by it.
[50] The effect of the limitation in this case is substantial, affecting as it does the right of broadcasters to communicate and that of the public
to receive information, views and opinions. Could less restrictive means have been used to achieve the purpose of the regulation in this
instance? Without prejudging the constitutionality E of the IBA proposals in the position paper, it is clear that they are much less invasive of the
right to freedom of expression and there is nothing to indicate that they would be any less effective in achieving the purpose of regulation.
Conclusion of justification enquiry F
[51] There is no doubt that the inroads on the right to freedom of expression made by the prohibition on which the complaint is based are far
too extensive and outweigh the factors considered by the Board as ameliorating their impact. As already stated, no grounds of G justification
have been advanced by the IBA and the Minister for such a serious infraction of the right guaranteed by s 16(1) of the Constitution. It has also
not been shown that the very real need to protect dignity, equality and the development of national unity could not be served adequately by
the enactment of a provision which is appropriately tailored and more H
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narrowly focused. I find therefore that the relevant portion of clause 2(a) impermissibly limits the A right to freedom of expression and is
accordingly unconstitutional.
[52] Before dealing with the issue of appropriate relief, some general remarks concerning clause 2(a) are apposite. This judgment deals with the
determination of the constitutional validity of B one portion of the clause only. The rest of the prohibitions in clause 2(a) deal with the
regulation of material that is indecent, obscene or offensive to public morals, offensive to religious convictions or feelings of sections of the
population, or that is likely to prejudice the safety of the State or the public order. There is no doubt that these are important areas with which
the government, C or the relevant regulatory authority, might be expected to concern itself. I express no view on the question whether these
prohibitions pass constitutional muster. It is, however, relevant to observe that, together with the impugned part of clause 2(a), these
provisions were framed and put in place before the new constitutional order was established. They implicate important competing rights as well
as the government's interest and duty to protect those rights. It D is obviously necessary to ensure that the regulatory provisions are in line
with the Constitution. It is presumably this realisation that prompted the IBA to embark on an exercise to revise the Code.
Relief E
[53] Section 172(1) requires that when a Court decides a constitutional matter within its power, it
'(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and F
(b) may make any order that is just and equitable, including
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the
defect.' G
[54] Various considerations come into play in deciding on an appropriate order. On the one hand, there is recognition of the importance of
regulation in the public interest. The implications of striking down the impugned provision for government and for the public interest must be
assessed, as well as the time it will take for Parliament to come up with new legislation. On the other hand, there is H the need for this Court to
fulfil a judicial and not a legislative role, while at the same time ensuring that as far as possible the relief protects freedom of expression as
enshrined in the Constitution.
[55] Various forms of relief were suggested in the course of argument. These include severance, notional severance and the striking I down of
the relevant portion of clause 2(a) with nothing put in its place. Another suggestion by the Board was the suspension of a declaration of
invalidity for 12 months to enable Parliament to enact appropriate legislation. I have considered each submission in the light of what would be
appropriate relief in the circumstances of this case. J
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[56] If the relevant portion of clause 2(a) were struck down in its entirety with nothing to replace it, a dangerous gap A would result. Since the
Constitution specifically mandates regulation in this field,4 7 it would be neither just and equitable nor in the public interest to allow such a gap
to exist. Since the regulation of broadcasting in the public interest is required by the Constitution,4 8 it is the Legislature, not the Courts, that
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[56] If the relevant portion of clause 2(a) were struck down in its entirety with nothing to replace it, a dangerous gap A would result. Since the
Constitution specifically mandates regulation in this field,4 7 it would be neither just and equitable nor in the public interest to allow such a gap
to exist. Since the regulation of broadcasting in the public interest is required by the Constitution,4 8 it is the Legislature, not the Courts, that
must provide the necessary regulations and B guidelines for what broadcasters may or may not broadcast. As pointed out earlier in this
judgment, this is an area which the Legislature might do well to attend to with some urgency in order to fulfil its constitutional mandate.
[57] I consider that an order which is just and equitable C would be a notional severance formulated so as to ensure that the relevant part of
clause 2(a) is rendered ineffective in its application to protected expression, but that a prohibition is left in place to prevent the broadcasting of
unprotected expression as referred to in s 16(2) of the Constitution. Such an approach would meet the concerns of the applicant, address the
legitimate concerns raised by D the Board about protecting people's dignity and the values of equality and national unity, while at the same time
ensuring that the requirements of the Constitution are met. It will be open to the Legislature to decide to keep regulation at this minimal level or
to regulate further subject to the provisions of s 36(1).
[58] This order will also provide a guiding principle for the determination of the complaints brought against the applicant by the E Board. It
would be inappropriate for this Court to make that determination. It is a matter which falls primarily within the jurisdiction of the BMCC. I
therefore express no view on the merits of the Board's complaint which gave rise to this litigation. F
[59] There is no reason to limit the retrospectivity of the order, which is effective from the date on which the Constitution came into force.
Order
[60] The following order is accordingly made G
1. The application for leave to appeal directly to this Court is granted.
2. The appeal is upheld.
3. The decision of the Witwatersrand High Court declining to consider the issue of the constitutionality of clause 2(a) H of the Code of
Conduct for Broadcasting Services as contained in Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993 is
hereby set aside.
4. Clause 2(a) of the said Code of Conduct for Broadcasting Services is declared to be inconsistent with s 16 of the I Constitution and
invalid to the extent that it prohibits the broadcasting of material that is 'likely to prejudice relations between sections of the
population'; provided that this order does not apply to (i) J
2002 (4) SA p317
propaganda for war; (ii) incitement of imminent violence; or (iii) advocacy of hatred that is based on race, ethnicity, gender or A
religion, and that constitutes incitement to cause harm.
5. No order is made for costs.
Chaskalson CJ, Ackermann J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J, Du Plessis AJ and Skweyiya AJ concurred in the
judgment of Langa DCJ. B
Applicant's Attorneys: L A Adams & Associates, Wynberg, Cape Town. Fourth Respondent's Attorneys: Feinsteins, Johannesburg. C
1 In terms of s 3 of the Independent Communications Authority of South Africa Act 13 of 2000, the IBA has been succeeded by the Independent Communications
Authority of South Africa (ICASA).
2 A unit in the IBA's Licensing, Monitoring and Complaints department.
3 Act 153 of 1993. Section 56(1) of the Act provides that '(s)ubject to the provisions of ss (2), all broadcasting licensees shall adhere to the Code of Conduct for
Broadcasting Services as set out in Schedule 1'.
4 Rule 18(2) states:
'A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court shall . . . apply to the Court which gave the decision to
certify that it is in the interests of justice for the matter to be brought directly to the Constitutional Court and that there is reason to believe that the Court may give
leave to the appellant to note an appeal against the decision on such matter.'
5 Act 59 of 1959.
6 Section 172(1)(a) of the Constitution provides:
'When deciding a constitutional matter within its power, a Court
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.'
7 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599) at para [15].
8 Section 98(5) of the interim Constitution, a provision which is comparable to s 172(1)(a) of the final Constitution, provides:
'In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid
to the extent of its inconsistency. . . .'
9 J T Publishing above n 7 para [15].
1 0 S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793) at para [59]; Zantsi v Council of State, Ciskei, and Others 1995 (4) SA
615 (CC) (1995 (10) BCLR 1424) at paras [2] [3].
1 1 J T Publishing above n 7 para [15]; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1)
BCLR 39) fn 18; President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others 1999 (4) SA 682 (CC) (1999 (11) BCLR 1219) at para [16];
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883) para [9].
1 2 Id.
1 3 1998 (4) SA 1157 (CC) (1998 (7) BCLR 855).
1 4 Id para [32].
1 5 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207) at para [33]; see also De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) 1998
(11) BCLR 1345 (CC) at para [21].
1 6 It was suggested by the Board that this conclusion would be selfevident if the clause had taken the following form:
'Broadcasting licensees shall not broadcast any material which is
(i) indecent or obscene or offensive to public morals;
(ii) offensive to the religious convictions or feelings of any section of a population;
(iii) likely to prejudice the safety of the State or the public order, or
(iv) likely to prejudice relations between sections of the population.'
1 7 South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) (1999 (6) BCLR 615) at para [8].
1 8 Id para 7.
1 9 2001 (3) SA 409 (CC) (2001 (5) BCLR 449) at para [37].
2 0 See Publications Control Board v William Heinemann Ltd and Others 1965 (4) SA 137 (A) at 160E G; Argus Printing and Publishing Co Ltd v Inkatha Freedom
Party 1992 (3) SA 579 (A) at 585B E; Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) at 400H J; S v Turrell and
Others 1973 (1) SA 248 (C) at 256G; United Democratic Front and Another v Acting Chief Magistrate, Johannesburg 1987 (1) SA 413 (W) at 416C G.
2 1 Shabalala and Others v AttorneyGeneral, Transvaal, and Another 1996 (1) SA 725 (CC) (1995 (2) SACR 761; 1995 (12) BCLR 1593) at para [26].
2 2 Above n 19 para [28].
2 3 Sieghart The International Law of Human Rights (1983) at 330. See also art 19 of the Universal Declaration of Human Rights; art IV of the American Declaration of
the Rights and Duties of Man; art 19 of the International Covenant on Civil and Political Rights; art 10 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms; art 13 of the American Convention on Human Rights; art 9 of the African Charter on Human and Peoples' Rights.
2 4 (1976) 1 EHRR 737 at 754.
2 5 See also R v Zundel (1992) 10 CRR (2d) 193 (SCC).
2 6 See the case of United Communist Party of Turkey and Others v Turkey (1998) 26 EHRR 121 paras 38 48 and the as yet unreported judgment of the European
Court of Human Rights in Refah Partisi and Others v Turkey (App Nos 41340/98, 41342/98, 41343/98 and 41344/98). See also the judgments of the Federal
Constitutional Court of Germany (Bundesverfassungsgericht) cited in Currie The Constitution of the Federal Republic of Germany (The University of Chicago Press,
Chicago, 1994) at 213 15 and the minority judgment of Cory J in R v Zundel (above n 25).
2 8 Section 8(1) of the Constitution states:
'The Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.'
'Except as provided in ss (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.'
3 0 S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665) at para [102].
3 1 2001 (1) SA 545 (CC) (2000 (10) BCLR 1079).
Constitutional Court of Germany (Bundesverfassungsgericht) cited in Currie The Constitution of the Federal Republic of Germany (The University of Chicago Press,
Chicago, 1994) at 213 15 and the minority judgment of Cory J in R v Zundel (above n 25).
'The Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.'
'Except as provided in ss (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.'
3 0 S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665) at para [102].
3 1 2001 (1) SA 545 (CC) (2000 (10) BCLR 1079).
3 2 Id paras [23] [24].
3 3 Section 1(a) of the Constitution provides:
'The Republic of South Africa is one, sovereign, democratic State founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms;
. . . .'
3 4 The Preamble of the Constitution refers to 'build[ing] a united and democratic South Africa'. The promotion of national unity was also contained in Constitutional
Principle III, the principles which had to be complied with in the drafting of the final Constitution. See also Azanian Peoples Organisation (AZAPO) and Others v
President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015) at paras [2] [3].
3 5 Section 192 of the Constitution.
3 6 Section 1(a) of the Constitution.
3 7 The Preamble to the Constitution.
3 8 Preamble to the Constitution; Azanian Peoples Organisation above n 34 in paras [2] [3].
3 9 See R v Keegstra (1991) 61 CCC (3d) 1 at 36g 37h.
4 1 Preamble to Code of Conduct, Schedule 1 of the Act.
4 2 S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579) at para [18].
4 3 Section 16(1)(b) of the Constitution. See also Stanley v Georgia 394 US 557 (1969) at 564.
4 4 Section 67(2) read with s 66(1)(f) of the Act.
4 5 Section 56 of the Act provides that:
'(1) Subject to the provisions of ss (2), all broadcasting licensees shall adhere to the Code of Conduct for Broadcasting Services as set out in Schedule 1.
(2) The provisions of ss (1) shall not apply to any broadcasting licensee if he or she is a member of a body which has proved to the satisfaction of the Authority that
its members subscribe and adhere to a code of conduct enforced by that body by means of its own disciplinary mechanisms, and provided such code of conduct and
disciplinary mechanisms are acceptable to the Authority.'
4 8 Id.

Islamic Unity Convention V Independent Broadcasting Authority and Others 2002 (4) Sa 294 (CC)

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