Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002)

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[2002] ZACC 3
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Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT 36/01
THE
ISLAMIC UNITY CONVENTION                                                                  Â
Applicant
versus
THE
INDEPENDENT BROADCASTING AUTHORITY                            First Respondent
THE
HEAD: MONITORING AND COMPLAINTS
UNIT
OF THE INDEPENDENT BROADCASTING
AUTHORITY                                                                                            Â
Second
Respondent
THE
CHAIRPERSON OF THE BROADCASTING
MONITORING
AND COMPLAINTS COMMITTEE                                 Third Respondent
THE
SOUTH AFRICAN JEWISH BOARD OF DEPUTIES                    Fourth Respondent
THE
MINISTER OF COMMUNICATIONS                                                 Fifth
Respondent
Heard
on         :           22 November 2001
Decided
on     :           11 April 2002
JUDGMENT
LANGA
DCJ:
Introduction
[1]
The applicant, the Islamic Unity Convention, runs a community radio
station known as Radio 786 under a broadcasting licence issued
to it by the
first respondent, the Independent Broadcasting Authority (the IBA).
[1]
Â
On 8 May 1998 the station broadcast a programme entitled “Zionism and Israel:
An in-depth analysis” in which an interview with
one Dr Yaqub Zaki, 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
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 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, i.e. Jews
and other communities.”Â
The Code is contained in Schedule 1 to the Independent
Broadcasting Authority Act (the Act).
[3]
[1]
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 thirty days required
by the relevant complaints procedures.Â
After some correspondence had passed between the Board and the Complaints Unit
however,
it was accepted by the latter that the complaint was not out of time.Â
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.
[2]
The Complaints Unit had however failed to comply with the 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 launched an
application in the Witwatersrand High Court challenging the decisions that had
been taken by the second
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 wide-ranging, but much of it
had fallen away by the time the hearing before the High Court
concluded.
[3]
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 section 16 of the Constitution.  Second, 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.
[4]
Full argument was addressed to the High Court on both 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.
[5]
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 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.Â
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.
The judicial
discretion in an application in terms of section 172 of the Constitution
[6]
Marais J declined to deal with the issue of the constitutionality 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.Â
Secondly, the judge took the applicant’s
request for a declaration that the provision was inconsistent with the
Constitution to
be a prayer for a declaratory order in terms of section
19(1)(a)(iii) of the Supreme Court Act.
[5]
  This led him
to hold that, on the assumption that section 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”.
[7]
In terms of section 19(1)(a)(iii), the High Court has the power, in its
discretion, to enquire into and determine any 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 section 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 to exercise its powers in terms of section 172(1)(a) of
the Constitution
and to declare clause 2(a) invalid.
[6]
[8]
A court’s power under section 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 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
JT 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.Â
But the requirement does not mean that we
are compelled to determine the anterior issue of inconsistency when, owing to
its wholly
abstract, 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.]
[9]
In determining when a court should decide a constitutional matter, the
jurisprudence developed under section 19(1)(a)(iii) will have
relevance, as
Didcott J pointed out in the
JT Publishing
case.  It is however also
clear from that judgment that the constitutional setting may well introduce
considerations different from
those which are relevant to the exercise of a
judge’s discretion in terms of section 19(1)(a)(iii).
[9]
[10]
What is clear is that the High Court erred in approaching the
prayer for constitutional invalidity as if it were a prayer for discretionary
relief in terms of section 19(1)(a)(iii).  The 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.
[10]
Â
Nor should it ordinarily
decide a constitutional issue which is moot.
[11]
Â
The decision as to whether a court 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 section 19 of the Supreme Court
Act would be granted.
[11]
The matter is in
any event not academic.  The setting aside of the decisions of the second and
third respondents was not dispositive
of the real issue between the applicant
and the Board.
[12]
  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 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 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 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.
  In
this Court, counsel were unable to throw any light on the causes for the delay
in the implementation of the IBA’s proposals.
[12]
I accordingly find that the High Court should have dealt with the
constitutionality of the provision which 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 Court.
The enquiry as to whether leave to
appeal should be granted
[13]
The broad consideration in determining whether or not to grant leave to
appeal directly to this Court is the interests of justice.Â
The exercise
involves the weighing up of a number of factors, some of which were summed up
by this Court in
MEC for Development Planning and Local Government in
Gauteng v Democratic Party & Others
[13]
as follows:
“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 disadvantages to the management of the Court’s roll and to the
ultimate
decision of the case if the SCA is bypassed.”
[14]
[14]
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 Fund
[15]
this Court held that the benefit of a judgment by the Supreme Court of Appeal
is 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.
[15]
The present case involves a comparison of a piece of legislation with a
provision of the Constitution and an evaluation of their compatibility.Â
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.
[16]
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.Â
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 in relation
to that part of the provision that is presently in dispute.
[17]
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 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.
[18]
In the circumstances, I consider that it is in the interests of justice
that leave to appeal directly to the Constitutional Court
be granted.
The constitutional
issue
[19]
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 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 section 16 of the Constitution.
[20]
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 relations between sections of the population.”
[21]
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 approach to the constitutional challenge was that the clause is
“internally severable”
[16]
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 matter was argued
before this
Court, the applicant did not expressly abandon its position that clause 2(a)
was unconstitutional in its entirety.Â
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.
[22]
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 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 of clause 2(a) on a broader basis
than
that required by the 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
[23]
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
(d)
academic freedom and freedom of scientific research.
(2) The right in subsection (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, gender, or
religion, and that constitutes incitement to cause harm.”
[24]
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 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”.
[17]
As to its relevance to a democratic
state, the Court has pointed out that freedom of expression -
“. . . lies at the heart
of a democracy.  It is valuable for many reasons, including its instrumental
functions 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 that individuals in our society need to be able
to hear, form and
express opinions and views freely on a wide range of matters . . . .”
[18]
[footnotes omitted.]
and in
S v Mamabolo (E TV, Business Day and
the Freedom of Expression Institute Intervening)
the following was said -
“Freedom of
expression, especially when gauged in conjunction with its accompanying
fundamental freedoms, is of the utmost importance
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 market-place 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.  Therefore we should be particularly astute to outlaw any form of thought
control,
however respectably dressed.”
[19]
[25]
Notwithstanding
the fact that the right to freedom of expression and speech has always been
recognised in the South African common
law,
[20]
we have recently emerged from a severely restrictive past where expression,
especially political and artistic expression, was extensively
circumscribed by
various 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 for South Africans of all
ages, classes and colours”.
[21]
  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 sections
15 to
19 of the Bill of Rights.”
[22]
[26]
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 . . .”.
[23]
  As such it is protected in almost
every international human rights instrument.  In
Handyside v The United
Kingdom
[24]
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
. . . .  Such are the demands of that pluralism, tolerance and
broadmindedness
without which there is no ‘democratic society’.”
[25]
[27]
The pluralism and broadmindedness that is central to an open and
democratic society can, however, be undermined by speech which seriously
threatens democratic pluralism itself.  Section 1 of the Constitution declares
that South Africa is founded on the values of “human
dignity, the achievement
of equality and the advancement of human rights and freedoms.”  Thus, open and
democratic societies permit
reasonable proscription of activity and expression
that pose a real and substantial threat to such values and to the
constitutional
order itself.
[26]
  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.
[28]
There is thus recognition of the potential that expression has to impair
the exercise and enjoyment of other important rights, 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 section 36(1) of the Constitution.Â
Determining
its parameters in any given case is therefore important,
particularly where its exercise might intersect with other interests.Â
Thus in
Mamabolo,
[27]
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 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.]
[29]
Section 16 is in two parts.  Subsection (1) is concerned 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.
[30]
How is section 16(2) to be interpreted?  The words “[t]he right
in subsection (1) does not extend to . . .” imply that the categories
of expression
enumerated in section 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.Â
Implicit in its provisions is an acknowledgment
that certain expression does not deserve constitutional protection because,
among
other things, it has the potential to impinge adversely on the dignity of
others and cause harm.  Our Constitution is founded on
the principles of
dignity, equal worth and freedom, and these objectives should be given effect
to.
[31]
Three categories of expression are enumerated in section 16(2).Â
They are expressed in specific and defined terms.  Section 16(2)(a)
and (b) are
respectively concerned with “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
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 non-racial and
non-sexist
society based on human dignity and the achievement of equality.
 There is accordingly no
bar to the enactment of legislation that prohibits such expression.  Any
regulation of expression that
falls within the categories enumerated in section
16(2) would not be a limitation of the right in section 16.
[32]
Where the state extends the scope of regulation beyond expression
envisaged in section 16(2), it encroaches on the terrain of protected
expression and can
do so only
if such regulation meets the justification criteria in section 36(1) of the
Constitution.
[33]
The prohibition against the broadcasting of material that is
“likely to prejudice relations between sections of the population”
self-evidently limits the right in section 16 of the Constitution.
  The 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 section 16(2)(a).  The prohibition clearly
goes beyond the categories of expression enumerated in section 16(2).Â
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.
[34]
Whilst, on the one hand, the categories of speech referred to in
section 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 section 16(2)
could produce the result envisaged in
clause 2(a).  Expression that makes propaganda for war (section 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.Â
The converse is however not true.  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 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 excluded from the protection of section 16(1),
does so in a manner which
is constitutionally impermissible.Â
It is to that enquiry that I now
turn.
The justification enquiry
[35]
The responsibility for the regulation of broadcasting in South Africa
stems from section 192 of the Constitution which 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.”
In fulfilling this regulatory
function the broadcasting authority is bound to respect the provisions of the
Bill of Rights
[28]
while the
legislation may limit the protected rights only as permitted by the
Constitution.
[29]
  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.
[36]
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
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.
[30]
  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 that
the clause is
constitutionally objectionable, the IBA has set a process in
train for the relevant legislation and the Code to be revised.
[37]
The relevant part of clause 2(a) prohibits licensees from
broadcasting any material of the nature which it describes.Â
Applicant has argued that the
prohibition is unreasonable and unjustifiable and accordingly inconsistent with
the Constitution.Â
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 which renders it justifiable in terms of
section 36(1).
[38]
In
Investigating
Directorate, Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others
[31]
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 judicial officer to interpret
legislation in conformity with the Constitution in so
far 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.
[32]
  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 time being sufficiently clear and precise to enable the IBA (ICASA) and
the BMCC to handle complaints
in a consistent manner.
[39]
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 identifiable sections of the population are hit
by
the proscription.  In order to cause legally cognizable prejudice to relations
between sections of society, so the argument goes,
the broadcast must promote
prejudice and stereotyping or the demonizing of a target victim group by
violating their dignity in such
a way that -
a.        Â
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
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.
[40]
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 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 must, in turn, blame the perpetrator group for
this.
[41]
It is obvious
that the interpretation contended for would 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 section 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
with that
of the impugned clause on any reasonable interpretation, without being unduly
strained.Â
This
segment of the clause is accordingly not reasonably capable of being read to
give the meaning which is favoured by the Board.
[42]
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 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 is really prohibited or permitted.Â
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.Â
The wide ambit of this prohibition may also impinge on
other rights, such as the exercise and enjoyment of the right to freedom of
religion, belief and opinion guaranteed in section 15 of the Constitution.
[43]
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 Constitution,
[33]
and national unity, which is an important and legitimate state objective.
[34]
Â
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.
[35]
Â
This is because of the critical need, for the South African community, to
promote and protect human dignity, equality, freedom,
[36]
the healing of the divisions of the past
[37]
and the building of a united society.
[38]
Â
South African society is 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.
[39]
Â
Left unregulated, such expression has the potential to perpetuate the negative
aspects of our past and further divide our society.Â
The Constitution
accordingly demands that regulation should “ensure fairness and a diversity of
views broadly representing South
African society”,
[40]
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.
[44]
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 right to be informed and to freely receive and disseminate
opinions.”
[41]
That purpose is undermined by the
prohibition in so far as it inhibits the right to “freedom to receive or impart
information or
ideas.”
[45]
The Board contended further that the impact of the prohibition is not
extensive.  This factor is relevant in the balancing exercise
since the more
substantial the inroad into fundamental rights, the more persuasive the grounds
of justification must be.
[42]
  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.  This ground
ignores the two-sided nature of the right, not only to
impart information but also to receive it.
[43]
Â
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 section 16(1)(a) makes specific mention of “freedom of the . . .
media” is a clear
indication of 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.Â
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.
[46]
The second reason advanced by the Board was that no criminal sanction
goes with the prohibition and it therefore carries none of the
“chilling”
consequences of the criminal law.  This ignores 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 thirty days at most.
[44]
Â
I do not agree that the absence of a criminal sanction necessarily means that
other sanctions cannot be adequate or effective punishments
and deterrents.Â
Broadcasters are in the business of broadcasting; having a licence suspended
for a month would have significant
implications for their business.
[47]
Thirdly, the Board contended that the prohibition has minimal impact on
the right because broadcasters are not compelled to 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.
[45]
Â
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;
[46]
the
objective invalidity is not lessened by the ability of the person affected to
choose not to be bound by it.
[48]
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 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
[49]
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.Â
As already stated, no grounds
of justification have been advanced by the IBA
and the Minister
for such a
serious infraction of the right guaranteed by section 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 adequately
served by the enactment
of a provision which is appropriately tailored and more
narrowly focussed.  I find therefore that the relevant portion of clause
2(a)
impermissibly limits the right to freedom of expression and is accordingly
unconstitutional.
[50]
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 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, or the relevant regulatory
authority, might be expected to concern
itself.  I express no view on the
question whether these prohibitions pass constitutional muster.Â
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 is obviously
necessary to ensure that the regulatory provisions are in line with the
Constitution.Â
It is presumably this realisation that prompted the IBA to
embark on an exercise to revise the Code.
Relief
[51]
 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
(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.”
[52]
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 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.
[53]
Various forms of relief were suggested in the course of
argument.  These include severance, notional severance and the striking 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 twelve 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.
[54]
If the relevant portion of clause 2(a) were struck down in its
entirety with nothing to replace it, a dangerous gap would result.Â
Since the
Constitution specifically mandates regulation in this field,
[47]
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,
[48]
it is the legislature, not the courts, that must provide the necessary
regulations and 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 fulfill its
constitutional mandate.
[55]
I
consider that an order which is just and equitable 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
section 16(2) of the Constitution.  Such
an approach would meet the concerns of
the applicant, address the legitimate concerns raised by 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 section
36(1).
[56]
This order will also provide a guiding principle for the determination
of the complaints brought against the applicant by the Board.Â
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.
[57]
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
[58]
The following order is accordingly made
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) 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 section 16
of the
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)
propaganda
for war; (ii) incitement of imminent violence; or (iii) advocacy of
hatred that is based on race, ethnicity, gender or 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 concur
in the judgment of
Langa DCJ.
For the Appellants:                               JJ
Gauntlet SC and A Schippers instructed by LA Adams
& Associates, Wynberg.
For the Fourth Respondent:                  M
Seglison SC, A Katz and M Chaskalson instructed by Feinsteins Attorneys,
Johannesburg.
[1]
         Â
In terms of
section 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]
         Â
A unit in the IBA’s Licensing, Monitoring and
Complaints’ department.
[3]
         Â
Act 153 of 1993.  Section 56(1) of the Act provides
that “[s]ubject to the provisions of subsection (2), all broadcasting licensees
shall adhere to the Code of Conduct for Broadcasting Services as set out in
Schedule 1.”
[4]
         Â
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]
         Â
Act 59 of 1959.
[6]
         Â
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]
         Â
[1996] ZACC 23
;
1996 (12) BCLR 1599
(CC);
1997 (3) SA 514
(CC) para
15.
[8]
         Â
Section 98(5) of the interim Constitution, a provision
which is comparable to section 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]
         Â
JT Publishing
above
n 7 para 15
.
[10]
        Â
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (7) BCLR 793
(CC);
1995 (3) SA 867
(CC) para
59.Â
Zantsi v the Council of State, Ciskei, and Others
[1995] ZACC 9
;
1995 (10)
BCLR
1424
(CC);
1995 (4) SA 615
(CC) para 2-3.
[11]
        Â
JT Publishing
above
n 7 para 15;
 National Coalition for Gay and Lesbian Equality and Other v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC); 2000(2) SA 1(CC)
footnote 18;Â
President Ordinary Court Martial and Others v Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (11) BCLR 1219
(CC);
1999 (4) SA 682
(CC) para 16;
Independent Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(9) BCLR 883
(CC);
2001 (3) SA 925
(CC) para 9.
[12]
        Â
Id.
[13]
        Â
[1998] ZACC 9
;
1998 (7) BCLR
855
(CC);
1998 (4) SA 1157
(CC).
[14]
        Â
Id para 32.
[15]
        Â
[1998] ZACC 11
;
1998 (10) BCLR 1207
(CC);
1998 (4) SA 753
(CC) para
33; See also
De Freitas and Another v Society of Advocates of Natal (Natal
Law Society intervening)
1998 (11) BCLR 1345
(CC) para 21.
[16]
        Â
It was suggested by the Board that this conclusion
would be self-evident 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.”
[17]
        Â
South African National Defence Union v Minister of
Defence and Another
[1999] ZACC 7
;
1999 (6) BCLR 615
(CC);
1999 (4) SA 469
(CC) para 8.
[18]
        Â
Id para 7.
[19]
        Â
[2001] ZACC 17
;
2001 (5) BCLR
449
(CC);
2001 (3) SA 409(CC)
para 37.
[20]
        Â
See
Publications Control Board v William Heinemann,
Ltd. and Others
1965 (4) SA 137(A)
at 160E-G;Â
Argus Printing and
Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 585 B-E;Â
Hix
Networking Technologies v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1)
SA 391
(A) at 400 H-J;Â
S v Turrell and Others
1973 (1) SA 248
(C) at
256 G;
United Democratic Front and Another v Acting Chief Magistrate,
Johannesburg
1987 (1) SA 413
(W) at 416 C-G.
[21]
        Â
Shabalala and Others v Attorney-General, Transvaal and
Another
[1995] ZACC 12
;
1995 (12) BCLR 1593
(CC);
1996 (1) SA 725
(CC) para 26.
[22]
        Â
Above n 19 para 28.
[23]
        Â
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.
[24]
        Â
[1976] ECHR 5
;
(1976) 1 EHRR 737
at 754.
[25]
        Â
See also
R v Zundel
(1992) 10 CRR (2d) 193
(SCC).
[26]
        Â
See the case of
United Communist Party of Turkey
and Others v Turkey
[1998] ECHR 1
;
(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).Â
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 - 215 and the minority
judgment of Cory J in
R v Zundel
(above n 25).
[27]
        Â
Above n 19 para 41.
[28]
        Â
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.”
[29]
        Â
Section 36(2) of the Constitution states:
“Except
as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the
Bill of Rights.”
[30]
        Â
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 3921
(CC) para 102.
[31]
        Â
[2000] ZACC 12
;
2000 (10) BCLR
1079
(CC)
;
2001 (1) SA 545
(CC).
[32]
        Â
Id para 23-24.
[33]
        Â
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.”
[34]
        Â
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.Â
See also
Azanian
Peoples Organisation (AZAPO) and Others v President of the Republic of South
Africa and Others
[1996] ZACC 16
;
1996 (8) BCLR 1015
(CC);
1996 (4) SA 671
(CC) paras 2-3.
[35]
        Â
Section 192 of the Constitution.
[36]
        Â
Section 1(a) of the Constitution.
[37]
        Â
The Preamble to the Constitution.
[38]
        Â
Preamble to the Constitution;
Azanian Peoples
Organisation
above n 34 paras 2-3.
[39]
        Â
See
R v Keegstra
(1991) 61 C.C.C (3
d
)
1 at 36g - 37h.
[40]
        Â
Section 192 of the Constitution.
[41]
        Â
Preamble to Code of Conduct, schedule 1 of the Act.
[42]
        Â
S v Bhulwana; S v Gwadiso,
[1995] ZACC 11
;
1995 (12) BCLR 1579
(CC);
1996 (1) SA 388
(CC) para
18.
[43]
        Â
Section 16(1)(b) of the Constitution.  See also
Stanley
v Georgia
[1969] USSC 73
;
394 US 557
(1969) at 564.
[44]
        Â
Section 67(2) read with section 66(1)(f) of the Act.
[45]
        Â
Section 56 of the Act provides that :
“(1)         Subject to the provisions
of subsection (2), all broadcasting licensees shall adhere to the Code of
Conduct
for Broadcasting Services as set out in Schedule 1.
(2)           The provisions of subsection (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.”
[46]
        Â
Section 2 of the Constitution.
[47]
        Â
Section 192 of the Constitution.
[48]
        Â
Id.