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FISHER J

Introduction

[1] This case involves the use by the first respondent of the term or name
Government of National Unity or the acronym GNU to describe the coalition of
political parties that formed a new government in the wake of the hung parliament
which resulted from the May 2024 general elections. These parties are: the
African National Congress (ANC), Democratic Alliance (DA), Patriotic Alliance,
Inkatha Freedom Party, Good Party, Pan Africanist Congress of Azania, Freedom
Front Plus, United Democratic Movement, Al Jama -ah and Rise Mzansi.

[2] The applicants , Mr Jacob Zuma and the Umkhonto Wesizwe (MK) Party seek a
declaration of constitut ional invalidity in relation to the conduct which entails the
use of the term and name in broadcasts by the first respondent, the South Af rican
Broadcasting Corporation Ltd (SABC) . The second and third respondents are
respectively the SABC ’s Chairperson and CEO .

[3] In the alternative to the declaratory relief th e applicants seek the review and
setting aside of the refusal by the third respondent to cause the SABC to desist
from the use of the term pursuant to a demand by the applicants.

The parties’ contentions

[4] The applicants argue that the use of the term is politically contentious – some ,
including the applicants - alleging that it does not conform to the definition of a
Government of National Unity because a major party , viz the MK pa rty is
excluded from the coalition ; other s take up the opposite position , being that it is
properly called a Government of National Unity in that it seeks to create a unified
South Africa and is a majority government made up of parties that have unified
along certain lines and with common aims.
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[5] The applicants contend that the use of the term implicates constitutional
imperatives and thus section 172 of the Constitution is implicated .

[6] The starting point of the applicants ’ argument is that GNU is a political term of art
– i.e. that it has a defined meaning within the political domain.

[7] It draws for this submission on a definition in the Oxford Diction ary of African
politics which defines a GNU as “A government that brings together a number of
rival leaders and political parties in order to promote national unity and political
stability and states that “[g]overnments of national unity are often formed after a
political crisis, after a period of conflict, or during a transition from one regime
type to another ”.

[8] The applicants contend that because th is definition is not strictly met, this political
term may not be used to describe the coalition government because it is
inaccurate and misleading and tendentious to one side of the debate.

[9] This argument presupposes that this term is definitive of a coalition that includes
all major parties .

[10] The SABC acknowledges that the use of the name is controversial from the point
of view of political ideology. It argues , however , that this is the name which the
Government goes by, and that it uses it in the same manner as it uses other
names which are given to parties by themselves. It argues that the use of this
name does not entail it taking sides in the debate .

[11] It is not in dispute that the SABC provides coverage aimed specifically at
identifying the existence of the political debate as to whether the coalition is
properly described as a GNU or not and at educating the public as to the tenets
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of this debate. There is no complaint that it suppresses information relating to the
existence of the controversy.


Declaration of invalidity

[12] The main foundation on which the case of the applicants’ rests is the declaratory
relief sought. Section 172(1)(a) of the Constitution states that this Court must
declare “any law or conduct that is inconsistent with the Constitution” to be invalid
to the extent of its inconsistency.

[13] Section 172 is a special constitutional provision, and its application is specifically
related to the breach of constitutional rights.

[14] The enquiry is an objective one. Conduct is either inconsiste nt with the
constitution or it is not . The subjective positions i n which the parties find
themselves has no bearing on the determination. A court will not restrict its
enquiry to the position of one of the parties to a dispute in order to determine the
validity of conduct that is contended to be inconsistent with the Constitution .1

[15] The starting point of the inquiry is whether the declaration involves constitutional
rights. The applicants contend that it does. The rights contended for are rights
under section 16 which encompasses the right to speak freely and receive
information or ideas.

[16] The framing of the constitutional issue along the lines that it invokes section 16
rights and thus other rights which are related to or implicated therein is counter -
intuitive . It seeks to constrain usage in the impugned te rrain rather than allow for
the free exchange of in formation . This argument inevitably invokes the language

1 Ferreira v Levin 1996 (2) SA 621 (CC) 57.
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of restraint and lack of freedom of expression. Such restraint is anathema to
section 16 rights and any other constitutiona l rights which their protection might
involve.

[17] The argument goes that , because the MK Party has deliberately been excluded
from the coalition, it offends section 16 rights for the populace to hear in
broadcasts of the SABC that the coalition espouses unity.

[18] To my mind , this is not a matter implicating section 16 in an y manner or form. At
best for the applicants the complaint devolves into one which is to the effect that
the use of the term is inaccurate.

[19] Were I to asses s the term , I would incline to the view that the use of the term
imports no more than that parties in a multi -party democracy which have differing
political leanings have banded together by agreement , not on the basis that they
abandon their fundamental values , but on the basis that they form a government
along some common grounds and for a common purpose.

[20] It is, after all, universal practice for political parties , by means of the names they
give themselves , to seek to encapsulate compelling ideals in a manner that is
accessible. But is this legally objectiona ble? Even if the term were definitive on
the ba sis that it conveys the inclusion of all major parties , can the use of the term
on be found to be objectionable and thus unlawful? I think not.

[21] It could equally be argued that the second applicant’s use of its own name – is
evocative of the struggle of the ANC and thus that it attempts to appropriate those
laurels; that the Democratic Alliance is not truly democratic; that the African
National Congress is neither National nor African in the true sense, that the
Communist Party does not adhere to the ideals of Marxist theory. I could go on,
but the point is made.

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[22] It is not the remit of the court to enter into political debate as to the names that
players in the political field adopt to brand themselves. What is Democratic?
What is National? What represents unity ? The applicants would have this court
decide the political ideals bound up in the use of the name on the basis of their
meaning not in a linguistic sense but in the realm of political theory. This is
untenable.

[23] To my mind the challenge is mischievous. It seeks to have the courts enter these
idealistic debates which is neither its place nor, more formally put – its sphere of
jurisdiction.

[24] The Constitution does not accord to persons the right to hear only information
which is considered objectively accurate.

[25] Thus, Constitutional rights are not implicated and the claim under section 172
must fail.

The review

[26] The South African Broadcasting Corporation Ltd (SABC) is a State -owned entity
created in terms of the Broadcasting Act .2 It’s conduct , policies and the content
it offers are heavily regulated by statute .

[27] Section 6(4) of the Broadcasting Act provides that the SABC must provide a wide
range of programming that "reflects South African attitudes, opinions, ideas,
values and artistic creativity" and "offers a plurality of views and a variety of news,
informatio n and analysis from a South African point of view ."


2 Broadcasting Act 4 of 1999 .
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[28] Section 6(8) obliges the SABC to adopt a Code of Practice that ensures that
both the services it provides, and its own personnel comply with a range of
standards including "a high standard of accuracy, fairness and impartiality in
news and programmes that deal with matters of public interest".

[29] The Free to Air Code of Conduct to which the SABC is bound provides that ,
where controversial issues of public importance are discussed , the SABC should
make a reasonable effort to present opposing points of view and that issues
should be presented in a balanced way, allowing the audience to make up its
own mind .

[30] Section 192 of the Constitution provides that 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" .

[31] The purpose of t he ICASA Act3 is to, "regulate broadcasting in the public interest
and to ensure fairness and a diversity of views broadly representing South
African society, as required by s 192 of the Constitution .”4

[32] The ICASA Act establishes the Independent Communications Authority (the
Authority) which is the authority contemplated by section 192 of the Constitution .

[33] The Authority is a juristic person that is independent, and subject only to the
Constitution and the law . It is admonished to be impartial and to perform its

3 The Independent Communications Authority of South Africa Act 13 of 2000 .
4 Section 2 of the I CASA Act
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functions without fear, favour or prejudice .5 It functions without any political or
commercial interference .6

[34] In terms of section 3 (5) of the ICASA Act, a person affected by any action, finding
or decision of the Authority may apply to a court with competent jurisdiction for
review of that action, finding or decision.

[35] The Complaints and Compliance Committee (Complaints Committee) of the
Authority investigate s, hear s if appropriate, and make s a finding on complaints
lodged with the Authority regarding , inter alia , allegations of non -compliance with
the ICASA Act or the underlying statutes , which are defined a s the Broadcasting
Act7, Postal Services Act8 and Electronic Communications Act .9

[36] The C omplaints Committee is an administrative tribunal performing an
administrative function when investigating and adjudicating complaints. This
adjudication of a complaint constitutes administrative action as contemplated in
Promotion of Administrative Justice Act (PAJA) .10

[37] The SABC also contains its own internal up -wards referral process in relation to
complaints involving breaches of its editorial policy.


5 Section 3(3) of the ICASA Act .
6 Id section 3(4) .
7 Broadcasting Act 4 of 1999.
8 Postal Services Act 124 of 1998
9 Electronic Communications Act 36 of 2005.
10 Promotion of Administrative Justice Act 3 of 2000 .
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[38] Thus , to the extent that any person is of the view that the use of the term
constitutes misinformation or the taking of a particular side in the debate by the
SABC he has his remedies which ultimately include judicial review .

[39] The revi ew is directed at the refusal of the CEO to have the SABC stop using the
term.

[40] The respondents contend that the refusal does not constitute administrative
action or the exercise of public power . The y raise, in any event , issues of
subsidiarity and failure to exhaust remedies under the ICASA Act .

[41] There is a statutorily required administrative process that has to be undertaken
by persons in the position of the applicants in the event of them being aggrieved
by a broadcast . This does not involve demand being made to the CEO of the
SABC. The corollary of this as that t he C EO of the SABC is not empowered to
take the steps demanded by the applicants . This was conveyed in the letter
containing the refusal in issue .

[42] The refusal to comply with the demand does not constitute administrative action
and n either is it an exercise of public power.

[43] Thus , the claim for revi ew under PAJA or legality must fail.

Conclusion

[44] This is not a constitutional matter, and it is not one where the court has
jurisdiction . Furthermore , the CEO simply does not have the power which the
applicants seek to invoke .


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APPEARANCES:
Applicant’s counsel: Adv. D C Mpofu SC
Adv. L Moela
Adv. L Ndabula
Applicant’s Attorneys: KMNS Attorneys

Respondent's Counsel: Adv. T Motau SC
Adv. M Salu kazana
Adv. P Njokweni
Respondent Attorneys: ENS Africa