Islamic Unity Convention v Minister of Telecommunications and Others (CCT 33/07) [2007] ZACC 26; 2008 (3) SA 383 (CC); 2008 (4) BCLR 384 (CC) (7 December 2007)

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Islamic Unity Convention v Minister of Telecommunications and Others (CCT 33/07) [2007] ZACC 26; 2008 (3) SA 383 (CC); 2008 (4) BCLR 384 (CC) (7 December 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 33/07
[2007]
ZACC 26
ISLAMIC UNITY CONVENTION                                                                           Â
Applicant
versus
MINISTER OF TELECOMMUNICATIONS                                               First
Respondent
INDEPENDENT COMMUNICATIONS AUTHORITY OF
SOUTH AFRICA                                                                                      Â
Second
Respondent
CHAIRPERSON OF THE BROADCASTING
MONITORING AND COMPLAINTS COMMITTEE                                Third
Respondent
SOUTH AFRICAN JEWISH BOARD OF DEPUTIES                            Fourth
Respondent
Heard on         :           11 September
2007
Decided on     :           7 December 2007
JUDGMENT
MPATI AJ:
Introduction
[1]
This case concerns the constitutional validity
of sections 62(3), 63, 64 and 66 of the Independent Broadcasting Authority Act 153

of 1993 (IBA Act) and sections 17A(3), 17B(a), 17C(1)(b), (2), (3) and (7)(a),
17D, 17E(1)(a), (2) and (3), and 17F(5)(d) and (e)
of the Independent Communications
Authority of South Africa Act 13 of 2000 (ICASA Act).  The IBA Act and the
ICASA Act are aimed
at the regulation of broadcasting, as contemplated by
section 192 of the Constitution.
[1]
  In essence, the impugned
provisions prescribe a procedure for handling breaches by holders of
broadcasting licences of, inter
alia, their licence conditions.
[2]
The issue is whether the impugned provisions are
inconsistent with the right to just administrative action and the right of
access
to courts as guaranteed by sections 33
[2]
and 34
[3]
of the Constitution respectively.  The Johannesburg High Court (Van Oosten J)
held that they were and declared them to be constitutionally
invalid, together
with certain paragraphs of procedures followed, and regulations applied, in the
investigation and adjudication
of complaints against broadcasting licensees.
[4]
Â
This matter comes before this Court as confirmatory proceedings, coupled with
appeals.
The statutory framework
[3]
From 1994
[5]
until 11 May 2000 broadcasting was regulated by the Independent Broadcasting
Authority (IBA) which was established in terms of
section 3
[6]
of the now repealed IBA Act.  The
IBA was governed by a council, which was, in turn, required to establish two
standing committees,
one being the Broadcasting Monitoring and Complaints
Committee (BMCC).
[7]
Â
The third respondent was the Chairperson of the BMCC.  The BMCC’s
responsibilities included monitoring compliance by broadcasting
licensees, or
their adherence to the terms of their broadcasting licences
[8]
and the Code of Conduct for Broadcasting Services as contained in Schedule 1 of
the IBA Act (Code of Conduct).
[9]
Â
In this regard it was required to “inquire into and adjudicate any alleged or
suspected non-compliance or non-adherence contemplated
in [section 62(1)].”
[10]
[4]
The IBA Act made provision for interested
persons who had reason to believe that licensees were guilty of non-compliance
with the
terms and conditions of their licences to lodge complaints with the
BMCC.
[11]
Â
The BMCC accordingly adopted procedures
(Complaints Procedures)
[12]
to be followed by it and
another entity, the Monitoring and Complaints Unit (MCU),
[13]
in the processing and
adjudication of complaints.
[5]
On 13 October 1995 the IBA published regulations
(the Regulations) regarding the powers of the BMCC in relation to the summoning

and examining of witnesses and related matters.
[14]
  Regulations 5 and 6 of the
Regulations formed part of the subject matter of the constitutional challenge.Â
They relate to the
summoning and examination of witnesses before the BMCC.
[6]
The ICASA Act came into force on 11 May 2000.Â
It repealed certain sections of the IBA Act, provided for the establishment of
the
second respondent, the Independent Communications Authority of South Africa
(ICASA)
[15]
and dissolved the IBA.
[16]
  Part
of the functions and duties of ICASA is to investigate and adjudicate
complaints submitted to it, which relate to alleged
breaches by broadcasting
licensees of their licence conditions.
[17]
[7]
The impugned provisions of the IBA Act and section
21(1), which established the BMCC, were not repealed and remained in
operation.Â
The BMCC consequently became a standing committee of ICASA.
[18]
  The establishment and constitution of the BMCC as a standing
committee of ICASA was published on 5 December 2001.
[19]
  That
General Notice has been loosely referred to in this Court as “the constitution
of the BMCC”.  I shall continue to refer
to it as such.  In the Complaints Procedures
the BMCC was then defined as the “Broadcasting Monitoring and Complaints
Committee
of ICASA” and the MCU as the “Monitoring and Complaints Unit of ICASA.”
[20]
[8]
The IBA Act was ultimately repealed by the
Electronic Communications Act
[21]
which came into operation on
19 July 2006, but the Regulations that had been made under it were kept in
force.
[22]
Â
The repeal of the IBA Act meant that the life of the BMCC and its constitution
came to an end.  On the same date, sections 17A
to 17H of the ICASA Act were
inserted.
[23]
Â
These sections and the impugned provisions of the IBA Act are for all intents
and purposes identical.  Section 17A(1)
[24]
enjoins ICASA to establish a Complaints and Compliance Committee (CCC), whose
functions are almost identical to those hitherto
performed by the BMCC.
[25]
Factual background
[9]
The applicant is the holder of a community
broadcasting licence.  On 8 June 1998, and following a particular broadcast over
the
applicant’s radio station
[26]
on 8 May 1998, the fourth respondent lodged a formal complaint with the IBA.Â
The allegation was that the applicant had contravened
clause 2(a)
[27]
of the Code of Conduct.  The
complaint was referred to the Chairperson of the BMCC who decided that it be
dealt with by way of
a formal hearing.  The applicant brought an application to
review that decision and also challenged the constitutionality of clause
2(a)
of the Code of Conduct.  The Johannesburg High Court (Marais J) set aside the
decision of the Chairperson of the BMCC but
declined to consider the
constitutional issue.  On appeal to this Court, however, clause 2(a) of the
Code of Conduct was declared
to be inconsistent with section 16 of the
Constitution and thus invalid to the extent that it prohibited the broadcasting
of material
that was “likely to prejudice relations between sections of the
population”.
[28]
[10]
Subsequent to the judgment of this Court, the
fourth respondent requested ICASA to refer the complaint to the BMCC for a
formal
hearing, contending that the broadcast constituted hate speech within
the meaning of clause 2(a) of the Code of Conduct “as determined”
by this
Court.  On 14 October 2002, the Senior Manager of the Licensing, Monitoring and
Complaints Department of ICASA, wrote
to the National Executive Director of the
fourth respondent and advised that “the Unit has decided to refer the matter to
the
BMCC for adjudication”.  The Acting Chairperson of the BMCC, Advocate Sutherland
SC, decided that the complaint did not merit
a hearing and that no further
action would be taken.  On review to the Johannesburg High Court, at the
instance of the fourth
respondent, the decision of the Acting Chairperson was
set aside.  The court (Malan J) directed that a formal hearing be convened.
[29]
Â
The complaint was then set down for a hearing before the BMCC on 13 March
2006.  On 15 February 2006, following a lengthy process
pertaining to
procedural aspects, the applicant applied to the Johannesburg High Court for an
order declaring the impugned provisions
of the IBA Act constitutionally
invalid.  Further orders of constitutional invalidity were sought in respect of
paragraphs 1.6
to 1.21, 1.23 to 1.28 and 2 (disputed paragraphs) of the
Complaints Procedures and regulations 5 and 6 of the Regulations.
[11]
On the day of the hearing of the complaint
before the BMCC, the applicant requested a postponement on two bases.  First,
it had
not been furnished with a “charge sheet” which ICASA had allegedly undertaken
to provide.  Second, the outcome of the application
for constitutional
invalidity could render the proceedings before the BMCC nugatory.  The request
was refused and the applicant
took no further part in the proceedings.  The
hearing proceeded in its absence.  On 12 May 2006 the BMCC published its
decision.Â
It found that the applicant’s radio station had contravened clause
2(a) of the Code of Conduct.  On 30 June 2006 ICASA imposed
a sanction on the
applicant
[30]
in terms of the provisions of section 66 of the IBA Act.
[31]
  A review application relating
to those proceedings is pending in the Cape High Court.
[12]
After the coming into operation of the impugned
provisions of the ICASA Act, the applicant amended its notice of motion to
include,
in the order of constitutional invalidity sought, these impugned provisions.Â
This constitutional challenge was based on the same
grounds as those raised in
respect of the impugned provisions of the IBA Act.  The High Court granted the
orders sought, but suspended
the order of declaration of invalidity subject to
certain conditions.
[13]
It will be convenient to record, at this stage,
the relevant paragraphs of the order of the High Court.  They read as follows:
“1.        . . . .
2.         The following provisions are in terms of s 172(1)(a) of
the Constitution of the Republic of South Africa 1996
(‘the Constitution’),
declared to be inconsistent with the Constitution and invalid:
2.1.       Sections 62(3), 63, 64 and 66 of the Independent
Broadcasting Authority Act 153 of 1993 (‘the IBA Act’);
2.2.       Paragraphs 1.6–1.21, 1.23–1.28 and 2 of the ‘Procedures
to be followed by the Monitoring and Complaints Committee
of the Independent
Communications Authority of South Africa in the processing and adjudication of
complaints from the public, and
the processing and adjudications of
investigations by the [Broadcasting] Monitoring and Complaints Unit’, published
under GN
No. 779 of 2002 in Government Gazette No. 23444 of 22 May 2002;
2.3.       Regulations 5 and 6 of the ‘Regulations regarding the
powers of the Broadcasting Monitoring and Complaints Committee
in relation to
the summoning and examining of witnesses, the administering of the oath or
affirmation, recalcitrant witnesses and
the producing of books, documents,
objects and material’, published under GN No. R 1604 in Government Gazette No. 16758
of 13
October 1995.
2.4.       Sections 17A(3), 17B(a), 17C(1)(b), (2), (3) and (7)(a),
17D, 17E(1)(a), (2) and (3); and 17F(5)(d) and (e) of the
Independent
Communications Authority of South Africa Act 13 of 2000 (‘the ICASA Act’).
3.         . . . .
4.         The declaration of invalidity made in terms of par 2
above is suspended for a period of 12 months from the date
of this order to
enable Parliament to amend the ICASA Act to correct the inconsistencies which
have resulted in the declaration
of invalidity, subject to the following
conditions:
4.1.       Complaints received by ICASA shall be investigated and
prosecuted by a unit within ICASA, which is wholly independent
of the
Complaints and Compliance Committee (‘the CCC’), to be established within 60
days of the date of this order.
4.2.       The CCC shall exercise only adjudicative powers in
relation to complaints lodged with ICASA.
4.3.       Nothing in this order precludes the CCC, after it has
adjudicated a complaint, from making a recommendation to ICASA
as to what
action should be taken against a licensee found guilty of a contravention of
the ICASA Act.”
Preliminary issues
Condonation
[14]
The Minister of Telecommunications (first
respondent) has noted an appeal against the High Court’s order of constitutional
invalidity
in respect of the impugned provisions.
[32]
  Her notice of appeal was,
however, filed out of time.
[33]
Â
The failure to lodge timeously the notice was neither deliberate nor negligent.
[15]
In my view, condonation should be granted.  The
period of delay is not inordinately long and is satisfactorily explained.  The

first respondent is the member of the Executive charged with the administration
of the legislation at issue.  The interest in
the matter cannot be gainsaid.Â
Moreover, there was no opposition to the condonation application.  It is, in my
view, in the
interests of justice that condonation for the late filing of the
first respondent’s notice of appeal be granted.
The second and fourth respondents’
applications for leave to appeal
[16]
The second respondent was cited but did not
oppose the proceedings and abided the decision of the court.  The second
respondent
now desires to enter the fray and has applied for leave to note an
appeal against the order of constitutional invalidity in respect
of the
impugned provisions.  Like the fourth respondent, who has also noted an appeal,
the second respondent seeks, in addition,
leave to appeal against the order in
respect of which the disputed paragraphs and regulations 5 and 6 of the
Regulations were declared
unconstitutional.  The applicant opposes the
applications by the second respondent on the basis that: (a) it is not in the
interests
of justice to grant them since the fourth respondent is before court
and appeals against the same order; and (b) the attempt by
the second
respondent to introduce new facts in its affidavit in support of the
application for leave to appeal was potentially
prejudicial to it.
[17]
In my view, the second respondent has sufficient
interest in the matter and, as an organ of state, is entitled, without leave,
as
are the first and fourth respondents, to appeal against the order in
question.
[34]
Â
Furthermore, this Court has consistently expressed its displeasure at the
failure, by organs of state, to participate in proceedings
of a constitutional
challenge against the validity of statutory provisions that they administer or
under which they function.
[35]
Â
This failure inevitably deprives courts of valuable information that could, and
should, have been placed before them, so as to
assist in the proper evaluation
of the issues at hand.  The present matter was no exception.  The first
respondent, as expected,
stated in her answering affidavit that she was in no
position to comment on the challenge in respect of the Complaints Procedures

and the Regulations, since “section 78 of the IBA Act allocates the power to
make Regulations to the Council of ICASA”.
[18]
The High Court was thus left to decipher from
documentation placed before it by the applicant and from the impugned
provisions,
how the BMCC, the MCU and the CCC functioned.  This is unacceptable
and the failure by the second respondent to participate in
the proceedings
before the High Court was regrettable, to say the least.  It is so that the Councillor
of the second respondent,
who deposed to the affidavit in support of the
application for leave to appeal, was not part of the second respondent when the
decision to abide the ruling of the High Court was taken.  For that reason, he
is unable to offer an explanation for that unfortunate
decision.  What he
states, though, is what he believes to have been the reason for the second
respondent’s failure to participate
in the proceedings before the High Court.Â
I find it unnecessary to say more on this issue.
[19]
As to the second and fourth respondents’ applications
for leave to appeal against the order of constitutional invalidity in respect

of the disputed paragraphs and regulations 5 and 6 of the Regulations, it would
undoubtedly be convenient were they to be considered
together with the
confirmatory proceedings.  The Complaints Procedures and the Regulations were
an integral part of the regulatory
scheme provided for in the impugned
provisions of the IBA Act.  In my view, it is in the interests of justice that
leave to appeal
be granted to both the second and fourth respondents.
[20]
The submission by the applicant’s counsel that
the introduction of new facts was potentially prejudicial to the applicant was
levelled mainly at the allegation, on behalf of the second respondent, that the
MCU was not a unit within the BMCC (as the High
Court seems to have erroneously
accepted as a fact), nor is it now a unit of the CCC, but rather a unit of
ICASA.  This is no
new evidence.  I have mentioned above, that in the General
Notices
[36]
reference is made to the MCU as a unit of ICASA.  The submission cannot be
upheld.
The impugned provisions of the IBA
Act
[21]
As will be seen later in this judgment, the gravamen
of the constitutional challenge is that the impugned provisions confer
investigative,
prosecutorial and adjudicative powers on the BMCC (in respect of
the IBA Act) and the CCC (in respect of the ICASA Act).  I shall
accordingly
set out what I consider to be the relevant sections that relate to the alleged
conferral of these powers.  With regard
to the impugned provisions of the IBA
Act, I shall, merely for convenience, set out the subsection that speaks of the
examination
of witnesses.  As counsel for the applicant submitted, the rest of
the impugned provisions are tainted by those sections that confer
investigative
and adjudicative powers.  The relevant sections of the IBA Act provided as
follows:
“
Broadcasting Monitoring and Complaints
Committee
62         (1)        . . .
(2)        . . .
(3)        The Broadcasting Monitoring and Complaints Committee
shall, in accordance with the provisions of section 63, inquire
into and
adjudicate any alleged or suspected non-compliance or non-adherence
contemplated in subsection (1).
Hearings held by the Broadcasting
Monitoring and Complaints Committee
63         (1)        . . .
(2)        . . .
(3)        . . .
(4)        The Broadcasting Monitoring and Complaints Committee
shall as soon as may be reasonably practicable, having regard
to the urgency of
the matter, investigate and adjudicate any complaint received by it and shall,
in doing so, afford the complainant
and the respondent a reasonable opportunity
to make representations and to be heard in relation thereto.
(5)        . . .
(6)        . . .
(7)(a)    After having considered the complaint and the
representations (if any) and evidence in regard thereto, the Broadcasting

Monitoring and Complaints Committee shall make its finding as regards the
alleged or suspected non-compliance or non-adherence.
(8)        . . .
(9)        . . .
(10)      With regard to the summoning and examination of witnesses,
the administering of the oath or an affirmation, recalcitrant
witnesses and the
production of books, documents, objects and material, the Broadcasting
Monitoring and Complaints Committee shall
have such powers as may be
prescribed.”
[22]
Section 64 enjoined the BMCC, upon making a
finding that any complaint adjudicated by it in terms of section 63 is
justified, to
make recommendations to ICASA on what sanction should be imposed
by the latter in terms of section 66.  Section 66 conferred on
ICASA the power
to impose one or more of the orders set out in subsection (1)(a) to (g).
[37]
The disputed paragraphs of the
Complaints Procedures
[23]
The Complaints Procedures made provision for the
lodging, with the MCU, of a complaint of an alleged or suspected non-compliance

with, or non-adherence to, its broadcasting licence conditions by a licensee and
the referral, by the MCU, of the complaint to
the BMCC for its consideration.Â
Disputed paragraph 1.6 provided as follows:
“If the Unit determines that the complaint
is frivolous or vexatious, or that it does not fall within the jurisdiction of
the
BMCC or any outside body with which the Unit is familiar, the Unit shall
inform the complainant in writing that no further action
shall be taken on the
matter.  This letter shall furnish the complainant with reasons for the
decision taken.”
Provision was then made, where the
MCU determined that a complaint fell within the jurisdiction of the BMCC, for
the former to communicate
with the licensee concerned and to call for a
response to the complaint.
[38]
Â
Where the MCU found a licensee’s response to be unsatisfactory, it was required
immediately to forward the matter to the Chairperson
of the BMCC and to advise
the complainant and the licensee thereof in writing.
[39]
  Disputed paragraph 1.14
stated that where a licensee’s response adequately addressed the complaint, the
MCU had to inform the
complainant of this fact and advise the latter that she
or he may appeal against its decision to the Chairperson of the BMCC.
[24]
Disputed paragraphs 1.16 to 1.19 and 1.21 then
provided as follows:
“1.16    In the case of both paragraphs 1.14 and 1.15, the BMCC
Chairperson shall decide whether the complaint merits a formal
hearing of the
Broadcasting Monitoring and Complaints Committee.
1.17      The Chairperson may convene a meeting of representatives
of the BMCC, the licensee and in the case of a complaint,
the complainant, in
an attempt to resolve the complaint through mediation.
1.18      In the case where the BMCC Chairperson decides not to hold
a formal BMCC hearing on the complaint, the broadcaster
shall be informed in
writing of this decision and no further action shall be taken with regards to
the complaint.
1.19      In the case where the BMCC Chairperson decides that the
complaint merits a formal BMCC hearing, the complainant and
the licensee shall
be advised in writing by the Unit of the date, time and venue for the hearing.Â
The complainant and the licensee
shall be advised that they are entitled to
legal representation at the hearing.
1.20      . . .
1.21      The BMCC shall have such powers as are prescribed in the
Regulations with regard to the summoning and examination
of witnesses, the
administering of the oath or an affirmation, recalcitrant witnesses and the
production of books, documents, objects
and material.”
Paragraphs 2.1 to 2.4 set out the
procedures to be followed in the case of investigations by the MCU where,
through its monitoring
activities, or by means of a tip-off, a suspected
contravention of licence conditions comes to its attention.  In such a case,

the MCU was required to institute an investigation and to take the necessary
steps in terms of those sub-paragraphs.
[25]
Briefly, the scheme set up by the IBA Act and
the Complaints procedures functioned as follows.  The MCU received a
complaint.Â
If the complaint fell within the jurisdiction of the BMCC and was
not frivolous or vexatious, the MCU would request a response to
it from the
licensee against whom the complaint was lodged.  Should it find the response to
address the complaint adequately,
the MCU informed the complainant of this in
writing.  The complainant could appeal against that decision to the Chairperson
of
the BMCC.  Should the MCU find the response to be unsatisfactory, it
immediately forwarded the matter to the Chairperson of the
BMCC and informed
the complainant and licensee of its decision.  The Chairperson then decided whether
the complaint merited a
hearing of the BMCC.  She or he could convene a meeting
of representatives of the BMCC, the licensee and in the case of a complaint
the
complainant, in an attempt to resolve the complaint through mediation.
[26]
Where she or he decided that the complaint
merited a formal hearing, the hearing took place (obviously after appropriate
arrangements
had been made), whereafter the BMCC made its finding as regards
the complaint.  The licensee and the complainant would then be
afforded an opportunity
to make representations to the BMCC for it to make recommendations to ICASA as
to what penalty, if any,
should be imposed.  Once it had decided on its
recommendations the BMCC forwarded its finding and recommendations, together
with
the record of the proceedings before it, to ICASA for the latter’s
consideration and final decision regarding what penalty, if
any, to impose.Â
Should ICASA decide that the contravention warranted a penalty heavier than
that recommended by the BMCC, the
licensee would be given yet another
opportunity to make representations, in writing, before ICASA made a final
decision on the
matter.
The impugned provisions of the
ICASA Act
[27]
Again, as regards the impugned provisions of the
ICASA Act, only sections 17A(3), 17B and part of 17C need be set out.  They
provide
as follows:
“
Establishment of Complaints and
Compliance Committee
17A      (1)        . . .
(2)        . . .
(3)        The chairperson of the Complaints and Compliance
Committee must—
(a)        manage the work of the Complaints and Compliance Committee;
and
(b)        preside at hearings of the Complaints and Compliance
Committee.
Functions of Complaints and Compliance
Committee
17B      The Complaints and Compliance
Committee—
(a)        must
investigate, and hear if appropriate, and make a finding on—
(i)         all matters referred to it by the Authority;
[40]
(ii)        complaints received by it; and
(iii)       allegations of non-compliance with this Act or the
underlying statutes received by it.
Procedure of Complaints and Compliance Committee
17C      (1)        (a)        . . .
(b)      Â
The Authority may direct the
complaint
[41]
to the Complaints and Compliance Committee for consideration.
(2)        Before the Complaint and Compliance Committee hears a
matter it must—
(a)        provide the licensee to the dispute with—
(i)         a copy of the complaint where a complaint has been
lodged; and
(ii)        a notice setting out the nature of the alleged non-compliance;
(b)        afford the licensee a reasonable opportunity to respond
to the allegations in writing; and
(c)        afford the complainant a reasonable opportunity to reply
to such response in writing where a complaint has been
lodged.”  (Footnotes
added.)
[28]
In terms of section 17D, the CCC is required to
make a finding within 90 days from the date of conclusion of a hearing and to
recommend
to ICASA what action, if any, should be taken by the latter against a
licensee.  Section 17E(1) enjoins ICASA, when making a decision
as to what
action to take against a licensee, “to take all relevant matters into account”,
including the recommendations of
the CCC.  Section 17E(2) then lists the type
of actions the CCC may recommend to ICASA.  Subsections 17F(5)(d) and (e) make
provision
for inspectors, appointed by ICASA, to monitor compliance by
licensees with the terms and conditions of their licences and to refer
all
non-compliance matters to the CCC for consideration after an investigation into
a complaint has been carried out.
The grounds of attack
[29]
The impugned provisions of the IBA Act, the
disputed paragraphs of the Complaints Procedures and regulations 5 and 6 of the
Regulations
were challenged on grounds that they were inconsistent with
sections 33, 34 and 192 of the Constitution.  As regards the impugned

provisions of the IBA Act, it was submitted that the BMCC was the sole
functionary charged both with investigating a complaint
and deciding whether the
complaint merited a formal hearing.  The same body would then adjudicate the
complaint.  The applicant
contended that an objective licensee, “charged with
contravening the Code of Conduct”, would reasonably apprehend that the BMCC

would not be impartial in the adjudication of the complaint.  The impugned
provisions, therefore, gave rise to an inherent bias,
alternatively, a
reasonable apprehension of bias.  The investigation of a complaint by the BMCC
and its referral to the same body
for adjudication represented an
after-the-fact justification for a decision already made.  The impugned
provisions of the ICASA
Act were challenged on the same grounds.
[30]
A further contention that section 63(6) of the
IBA Act was inconsistent with sections 33 and 34 of the Constitution, on
grounds
that a complainant effectively was allowed to prosecute its own
complaint, was abandoned in this Court.  That decision, in my view,
was wisely
taken.  That subsection merely entrenched complainants’ and respondents’
entitlement to legal representation at
any hearing held by the BMCC for the
purpose of adjudicating a complaint.
[31]
The disputed paragraphs were challenged on the
basis that ICASA’s purported conferral of monitoring, investigative and
adjudicative
functions on the MCU violated the principle of legality.  It was
contended that only the BMCC had the power, in terms of sections
62 and 63 of
the IBA Act, to monitor non-compliance or non-adherence by licensees as
contemplated in section 62(1).
[42]
[43]
The decision of the High Court
[44]
[32]
The High Court upheld the applicant’s
submissions and stated that in our criminal justice system, the office, duties
and functions
of the prosecutor are, for good reason, distinctly separate and
independent from that of the decision-maker and that in the “absence
thereof a
reasonable suspicion of bias is unavoidable”.
[45]
Â
It held that there was no reason why the principles underscoring fundamental
concepts such as independence, impartiality and
resulting fairness, should not,
with equal force, apply to administrative bodies like the BMCC.  The court
found, accordingly,
that—
“a reasonable suspicion of influence,
dependency or bias arising from the direct connection existing between the
prosecutor of
the complaint (the chairperson of the BMCC) and the decision maker
(the BMCC), cannot be excluded”.
[46]
The impugned provisions were thus
held to be inconsistent with the Constitution and consequently invalid.  In
making this finding
the court relied heavily on the decision of the Canadian
Federal Court of Appeal in
MacBain v Canadian Human Rights Commission et al;
MacBain v Lederman et al
.
[47]
  I shall return to
MacBain
later.
[33]
As to the disputed paragraphs, the court
concluded that insofar as they conferred on the MCU both investigative and
adjudicative
powers they are inconsistent with the Constitution.  It held that
the disputed paragraphs conferred regulatory functions on the
MCU; that under
the IBA Act the powers could be exercised only by the BMCC; and that therefore
the submission that they violated
the principle of legality was unassailable.Â
The disputed paragraphs were thus held to be invalid.
[34]
Regulations 5 and 6 were held to be
“indisputably at odds with the normal rights of cross-examination, which had
become well entrenched
in our law.”
[48]
Â
The court found that there was no reason for restricting those rights “on the
basis envisaged in the regulations”;
[49]
that regulations 5 and 6 unreasonably curtailed the right of a party properly
to conduct its case; and that they are inconsistent
with the right to a fair
hearing,
[50]
and ought to be struck down.
Submissions on behalf of the
applicant
[35]
The independent authority, (ICASA and the IBA
before it) tasked with regulating broadcasting is required to ensure fairness
in the
industry.
[51]
Â
This means that the CCC, whose functions specifically relate to the regulation
of broadcasting, is enjoined to ensure fairness
when exercising its regulatory
powers.
[36]
As has been mentioned above, the attack on the
constitutional validity of the impugned provisions was that because of the conferral

on the BMCC and CCC of both investigative and adjudicative powers, an objective
licensee, charged with contravening the provisions
of the IBA Act or the ICASA
Act, would reasonably apprehend that the BMCC or CCC would not be impartial in
the adjudication of
the complaint.  That is to say that the conferral of these powers
on one entity gives rise to a reasonable apprehension of bias
in the mind of
the reasonable licensee against whom a complaint has been lodged.  It was
submitted that section 34 of the Constitution
requires that by its very nature
and structure a tribunal, or other forum, resolving disputes by the application
of law, must be
impartial, fair and independent.
[37]
On the question of impartiality, the argument on
behalf of the applicant was that a “litigant” in the position of the applicant

would reasonably apprehend that the CCC might not be impartial because the CCC
acts as prosecutor, in that the Chairperson decides
whether a complaint prima
facie has merit and must formulate and provide a licensee with a charge sheet.
[52]
  It was submitted that there
is a direct connection between the prosecutor (the Chairperson) and the
decision-maker (the CCC)
which gives rise to a reasonable apprehension of
influence or dependency.  It was further contended that given the legal
qualifications
of the Chairperson,
[53]
a reasonable litigant would apprehend that the other members of the CCC might
easily form the view that a Chairperson would not
refer a complaint to the CCC
unless it had substance.  The prosecutor (the Chairperson) is obliged, in terms
of the ICASA Act,
to preside at the hearing of the very complaint that she or
he prima facie found to have merit.  Moreover, the Chairperson has
a deliberate
vote and a casting vote in the event of a deadlock.  Consequently, the argument
proceeded, the very structure of
the CCC as expressly authorised by the ICASA
Act, creates a reasonable apprehension that the members of the CCC might be
predisposed
to decide a complaint in a certain way.
[38]
As to fairness, it was submitted that for the
reasons advanced in relation to the impartiality component of the section 34
right,
the impugned provisions of the ICASA Act are such that they negate the
fairness of the procedure at the hearing.  It was argued
that the ability of the
CCC to hold a fair hearing was irredeemably compromised by virtue of the
obligation on that body to exercise
investigative, prosecutorial and
adjudicative powers, and that until the adjudicative power is severed from the
former two, the
CCC cannot render legally valid decisions.  The impugned
provisions were therefore said to be inconsistent with the fairness components

of sections 34 and 192 of the Constitution.
[39]
On independence counsel submitted, in addition
to the contentions made under the impartiality component, that in the
performance
of her or his duties of managing the work of the CCC, the
Chairperson selects the other members who will sit with her or him on
the
tribunal that hears a complaint.  Those selected members will be dependent on
the guidance and direction of the Chairperson
by virtue of her or his legal
training or experience.  It was accordingly contended that the impugned
provisions violate the independence
component of section 34 of the Constitution
in that they encroach on the decision-making process of individual members of
the CCC.
Bias
[40]
In considering the constitutional challenge, the
High Court
[54]
reasoned that the test for bias as applied in recusal applications was equally
appropriate in the present matter.  The test was
formulated in
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another
[55]
as follows:
“[T]he existence of a reasonable suspicion
of bias satisfies the test; and . . . an apprehension of a real likelihood that
the
decision maker will be biased is not a pre-requisite for disqualifying
bias.”
[56]
The question, as posed in
President
of the Republic of South Africa and Others v South African Rugby Football Union and Others
(
SARFU
), is—
“whether a reasonable, objective and
informed person would on the correct facts reasonably apprehend that the Judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence and
the submissions of
counsel.”
[57]
The test is objective and the onus of
establishing it rests on the applicant.
[58]
[41]
The present matter does not concern the recusal
of a presiding officer.  The applicant asserts bias at a structural level.  In

as much as the applicant raises the issue of a relationship of influence and
dependency between the Chairperson of the CCC and
other individual members, the
argument was that the decision-maker (CCC) is inevitably biased as a result of
institutional factors
rather than an individual member being biased by virtue
of personal traits.  The court a quo held, however, that the test remains
the
same.  In
Québec Inc v Québec (Régie des permis d’alcool)
the Supreme
Court of Canada held that the determination of institutional bias—
“presupposes that a well-informed person,
viewing the matter realistically and practically — and having thought the
matter through
― would have a reasonable apprehension of bias
in a
substantial number of cases
.”
[59]
[42]
In
Financial Services Board and Another v
Pepkor Pension Fund and Another
[60]
the issue for decision
was whether the provisions of section 26(1)(b) of the Financial Services Board
Act
[61]
were inconsistent with the provisions of section 33 of the Constitution read
with item 23(2)(a) and (b)
[62]
of Schedule 6 thereto, and thus invalid.  The “Board” referred to in section
26(1)(b) of the Financial Services Board Act
was the applicant in that case.Â
It meets from time to time to transact its business.  When it is not meeting an
executive performs
its functions.  The executive consists of the Registrar as
executive officer and two other persons.  The executive may not vary
or set
aside a decision of the Board unless so directed, but the Board may set aside
or vary a decision of the executive, save
for certain exceptions.
[43]
The contentions in that case were summarised by
the presiding judge as follows:
“
Mr Henning
, who appeared for the
applicants, had a difficulty with the presence on the Appeal Board of Mr
Haslam, one of the members of the
Board, which he articulated by submitting
that the relationship between the Board and the Registrar was so close that any
tribunal
on which a member of the Board sat would not be objectively
independent, that is to say would not exhibit that absence of institutional

bias (created by its composition or structure) which is implicitly required by
ss 33 and 34 of the Constitution (read with item
23(2)(a) and (b) of Schedule
6).  This item declares that every person has the right to lawful
administrative action.  For a
body to act lawfully it must comply with its
enabling Act which, in turn, must not fall foul of the Constitution.”
[63]
The Cape High Court (Conradie J), applying the test for institutional bias as applied in
R v
Lippe
,
[64]
said:
“The test for this kind of bias is stated
in
Lippe’s
case . . . to be whether, having regard,
inter alia
,
to the parties who appear before a decision maker, a fully informed person
would harbour a reasonable apprehension of bias in
a substantial number of
cases.”
[65]
In the
Lippe
case the issue
was whether part-time judges, who were permitted simultaneously to remain
active in private practice, might preside
over municipal courts.
[44]
We did not have the benefit of full argument on
what the appropriate test for institutional bias ought to be and in the view I
take
of this matter, it is not necessary to consider it.  For present purposes,
I accept, without deciding, that the court a quo was
correct in its view that
the test is as enunciated in
BTR.
Is the conferral of investigative
and adjudicative powers on one body permissible?
[45]
For convenience, I first consider the impugned
provisions of the IBA Act.  What follows, though, applies also in respect of
the
impugned provisions of the ICASA Act.
[46]
It was not in dispute that the BMCC was an
administrative tribunal performing an administrative function when investigating
and
adjudicating complaints.  In the course of his submissions that the
impugned provisions of the IBA Act were inconsistent with section
33 of the
Constitution, counsel for the applicant argued forcefully, and correctly, that
there can be no question that the adjudication
of a complaint constitutes
administrative action as contemplated by the Promotion of Administrative
Justice Act (PAJA).
[66]
[47]
To “investigate” or “inquire into” a complaint
means more than simply to sit back and decide on the complaint on an
adversarial
basis in the same way as a criminal court.  The term “investigate”
means to “search or inquire into” or “examine”,
[67]
while “inquire” means to “seek
knowledge of (a thing) by putting a question” or to “request to be told.”
[68]
  As counsel for the second
respondent suggested, the BMCC was required to play an active and inquisitorial
role in determining
matters before it.  If the investigative powers that were
conferred on the BMCC were understood, as they must, to have referred
to the
inquisitorial role played by the BMCC, then there was nothing unconstitutional
and thus impermissible, in the arrangement.Â
In
S v Baloyi (Minister of
Justice and Another Intervening)
[69]
this Court considered
the constitutionality of section 3(5) of the Prevention of Family Violence Act,
[70]
which allowed for an
inquisitorial process in terms of which the magistrate enquired into the
reasons for the accused’s failure
to comply with an interdict and allowed the
court to sentence him to a fine and imprisonment.  This Court held that
fairness to
the complainant required that the proceedings be inquisitorial in
that it places—
“the judicial officer in an active role to
get at the truth, which usually will be done through questioning the accused.Â
Fairness
to the accused, on the other hand, dictates that within this format
the general protection granted by the CPA should apply in measure
similar to
that available to a person charged under s 170.  Such a balancing of
constitutional concerns leaves the presumption
of innocence undisturbed.  At
most it may affect the right to silence.  The procedure involved in the Magistrate’s
Court in
the present case did not raise this issue, nor was it an issue before
us in the confirmation.  That issue would have to be resolved
when it arises.”
[71]
  (Footnotes omitted.)
I mention
Baloyi
to
illustrate that even regarding certain aspects or instances in judicial
proceedings an inquisitorial process is countenanced,
provided that fairness to
the accused is assured.
[48]
I agree with counsel for the respondents that
the inquisitorial role is an inherent aspect of regulatory authority, which in
this
case, the BMCC represented.  Licencees in the broadcasting industry are
part of a regulatory realm which requires that they abide
by their concomitant
responsibilities.
[72]
Â
They accept as a condition of their licences “that they will adhere to the same
reasonable controls as are applicable to their
competitors”.
[73]
Â
The BMCC fulfilled its objects of conducting investigations into complaints by
engaging in a fact-finding exercise so as to be
able to make a finding, which
it then forwarded to ICASA.  What was required was for the scheme, created in
terms of the impugned
provisions of the IBA Act and the Complaints Procedures,
to ensure fairness.
[49]
In my view the impugned provisions of the IBA
Act endeavoured to achieve this goal.  Section 63(4) enjoined the BMCC, when
investigating
and adjudicating a complaint, to afford the complainant and the
licensee a reasonable opportunity to make representations and to
be heard.  In
terms of section 63(6), both were entitled to legal representation.  Disputed
paragraph 1.24 of the Complaints
Procedures also made provision for the
licensee, where the finding was against it, to be afforded an opportunity to
make representations
with regard to the BMCC’s recommendations to ICASA as to
what penalty, if any, should be imposed.  Should ICASA consider that
a heavier
penalty than that recommended by the BMCC was warranted, the licensee would be
given yet another opportunity to make
representations.
[74]
  Section 22(3)(a) provided
that the Chairperson of the BMCC must be a judge of the High Court, whether in
active service or retired,
a practising advocate or attorney with at least ten
years’ appropriate experience, or a magistrate with at least ten years’

appropriate experience.  This requirement, in my view, was aimed at ensuring
fairness, impartiality and independence.  The Chairperson
was an experienced,
legally trained person.  In my view, the scheme adequately ensured fairness.
Were the impugned provisions of
the IBA Act inconsistent with section 34 of the Constitution?
[50]
It will be recalled that when this matter was
argued before the High Court, the IBA Act had already been repealed.  The
question
whether the issue of the constitutional validity of the repealed
impugned provisions of the IBA Act had become moot was raised before
the High
Court, which reasoned that the issue—
“remains alive in view of the fact that the
applicant has been found guilty of a breach of the Code of Conduct . . . pursuant
to a hearing conducted in terms of the very provisions under attack.”
[75]
That question was not pursued in this
Court.
[51]
Section 34 of the Constitution guarantees the
right “to have any dispute that can be resolved by the application of law
decided
in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”  The purpose
of the section is—
“to emphasise and protect
generally, but also specifically for the protection of the individual, the
separation of powers, particularly
the separation of the Judiciary from the
other arms of the State.  Section 22 achieves this by ensuring that the courts
and other
fora
which settle justiciable disputes are independent and
impartial.  It is a provision fundamental to the upholding of the rule of
law,
the constitutional State, the ‘regstaatidee’, for it prevents legislatures, at
whatever level, from turning themselves
by acts of legerdemain into ‘courts’.Â
One recent notorious example of this was the High Court of Parliament Act.  By
constitutionalising
the requirements of independence and impartiality the
section places the
nature
of the courts or other adjudicating
fora
beyond debate . . .”
[76]
Â
(Footnote omitted.)
In
Zondi v MEC for Traditional and
Local Government Affairs and Others,
this Court held that “section 34 is an
express constitutional recognition of the importance of the fair resolution of
social conflict
by impartial and independent institutions.”
[77]
[52]
Some writers hold the view that where
legislation gives decision-making powers to a tribunal which lacks the required
impartiality
because of its composition or structure, the constitutional
validity of such legislation would have to be determined under section
33(1) of
the Constitution, where the issue would be whether the scheme set out in the
legislation is procedurally fair.
[78]
[53]
In this case we are not concerned with a court
of law or with the fair resolution of social conflict, but with a regulatory
body
that performed an administrative function.  The question is whether a
constitutional challenge against legislation conferring investigative
and
adjudicative powers on an administrative tribunal like the BMCC, based on
institutional bias, can be sustained under the right
of access to court
provisions of section 34 of the Constitution.
[54]
It was submitted on behalf of the first
respondent that section 34 was not implicated in this case and that section 33
was.  Counsel
for the applicant argued, however, that the “dispute” was whether
the applicant had breached the Code of Conduct which was determined
by the BMCC
by the application of that Code of Conduct (a law) to the facts in relation to
the complaint.  The guarantees of independence,
impartiality and fairness in
section 34 are not limited to a hearing before a court, but extend to a hearing
before other tribunals
or fora resolving disputes by the application of law.  This
is buttressed, so the argument continued, by section 8(1) of the Constitution

which provides, inter alia
,
that the Bill of Rights applies to all law
and all organs of state, including the BMCC.
[55]
In view of the basis of the applicant’s
constitutional challenge, it is unnecessary to express a firm opinion on this
issue.Â
It suffices to say that it is doubtful whether section 34 is implicated
in the present matter.  Even if the complaint could be
characterised as a “dispute”
the BMCC did not resolve it.  The BMCC’s function of investigating and
adjudicating the complaint
was but the first of a two-stage process.  It was a
higher authority, namely ICASA, which took the final decision.  The writers

Currie and De Waal submit on this issue that before an administrative agency
has taken a final decision, there is no “dispute”
that can be resolved by an
application of law.
[79]
Â
This view is indeed persuasive.  Moreover, ICASA was not bound by the
recommendations of the BMCC regarding the sanction to
be imposed.
[80]
  As the record of the
proceedings before the BMCC was transmitted to it with the BMCC’s recommendations,
ICASA could, for whatever
reason, which, in my view could include a
disagreement with the findings of the BMCC, decide not to impose any sanction.Â
The
final determination was thus the responsibility of ICASA.
[81]
[56]
I return to the basis of the constitutional
challenge.  The grounds for the charge that a reasonable person in the position
of
the applicant would reasonably apprehend that the BMCC might not be
impartial, fair or independent when dealing with a matter before
it, are founded
on an erroneous construction of the impugned provisions.  There was no provision
in the IBA Act which empowered
the Chairperson of the BMCC to decide whether a
complaint “prima facie [had] merit”.  Nor was there any provision that required

the Chairperson of the BMCC to formulate a “charge sheet”.  The assertion that
the Chairperson of the BMCC acted as prosecutor
is therefore ill-founded.
[57]
The argument relating to a direct connection
between “prosecutor” and the decision-maker, which allegedly gave rise to a
reasonable
apprehension of influence and dependency, is also based on an
incorrect premise, which is that the Chairperson decided that a complaint
had
merit.  As counsel for the second respondent correctly pointed out, the
applicant frequently conflated the impugned provisions
and the disputed
paragraphs.  It was disputed paragraphs 1.16 and 1.19 that speak of the BMCC
Chairperson “deciding that the
complaint merits a formal hearing”.  None of the
impugned provisions of the IBA Act conferred such power.  The disputed
paragraphs
cannot be used as an aid to interpret the impugned provisions, in
the same way that regulations made in terms of legislation cannot
be used as an
aid to interpret that legislation.
[82]
Â
The question of the Chairperson of the BMCC having a deliberative and a casting
vote was also not provided for in the impugned
provisions.  It was contained in
the constitution of the BMCC.
[83]
[58]
What has just been said in the preceding two
paragraphs applies to the applicant’s contentions relating to fairness as
summarised
above.  It remains for me merely to add that the impugned provisions
of the IBA Act did not bestow any authority on the Chairperson
of the BMCC to
select other members who will sit on the tribunal at a particular hearing
[84]
and neither did the Complaints
Procedures.  There is no evidence that this occurred as a fact.  There is thus no
factual or statutory
basis for the assertion that the Chairperson selected
other members to sit with her or him at a hearing and if it did occur as a

fact, the remedy would be to attack that process.  It follows that the
constitutional challenge against the impugned provisions
of the IBA Act on the
grounds that they are inconsistent with section 34 of the Constitution cannot
be sustained.
Are the impugned provisions of the
IBA Act inconsistent with section 33 of the Constitution?
[59]
Section 33 of the Constitution guarantees
everyone the right to administrative action that is reasonable, lawful and
procedurally
fair.  As stated earlier in this judgment, the BMCC is an
administrative tribunal performing an administrative function.  In
Zondi
this
Court held that PAJA, which was enacted to give effect to section 33 “governs
the exercise of administrative action in general”.
[85]
  The Court stated that all
decision-makers entrusted with the authority to make administrative decisions
by any statute are required
to do so in a manner that is consistent with PAJA.Â
The effect of this is that statutes that authorise administrative action must

now be read together with PAJA, unless, upon a proper construction, the
provisions of the statutes in question are inconsistent
with PAJA.
[86]
  The Court held further that—
“where there is a constitutional challenge
to the provisions of a statute on the ground that they are inconsistent with
the provisions
of s 33 of the Constitution, the proper approach is first to
consider whether the provisions in question can be read in a manner
that is
consistent with the Constitution.  If they are capable, they will ordinarily
pass constitutional muster.”
[87]
[60]
The applicant’s arguments under this head are no
different to those advanced under the section 34 attack.  It was submitted,
though, that the standard of procedurally fair administrative action laid down
in section 3 of PAJA does not, and indeed cannot,
cure a decision-making
structure that is inconsistent with section 34 of the Constitution.  As will
have become clear from the
discussion on section 34, there was nothing
unconstitutional in the performing, by the BMCC, of investigative and
adjudicative
functions.  And the prescribed procedure has not been shown to be
at odds with PAJA.  The standard of procedural fairness in section
33, at the
minimum, entrenches the common law right to natural justice.
[88]
  The content of this right to
procedural fairness must be determined with reference to the context in which
it is asserted.
[89]
Â
As has been mentioned above the impugned provisions of the IBA Act in fact
ensured procedural fairness.  The submissions on
behalf of the applicant under
the section 33 attack can therefore not be sustained.
The constitutional validity of the
complaints procedures
[61]
Disputed paragraphs 1.6 to 1.15 and 2.1 to 2.6
were challenged on the basis that they violated the principle of legality.  It
was
contended that General Notice 779
[90]
violated the provisions of section 192 of the Constitution and the principle of
legality in that it attempted to establish the
MCU as an authority to regulate
broadcasting without national legislation authorising it.  In my view, it is
not necessary to
consider the grounds of attack pertaining to the
constitutional validity of the establishment of the MCU.  The fourth respondent’s

complaint was investigated and adjudicated by the BMCC and the sanction imposed
on the applicant by ICASA as provided for in the
impugned provisions of the IBA
Act.  The fact that the complaint may have gone through the MCU, which referred
it to the BMCC
did not invalidate the proceedings before the BMCC and ICASA.  A
declaration of invalidity of the MCU will have no practical effect.
[91]
Â
I have mentioned that the Complaints Procedures would have perished with the
BMCC when the IBA Act was repealed, unless they
were adopted by the CCC.  There
is no evidence to that effect.
[62]
Disputed paragraphs 1.16 to 1.21 and 2.7 were
challenged on the ground that they conferred investigative, prosecutorial and
adjudicative
functions on the BMCC and, in particular, on its Chairperson.  It
was accordingly contended that these paragraphs were inconsistent
with sections
33 and 34 of the Constitution for the same reasons advanced in respect of the
challenge against the impugned provisions
of the IBA Act.  In terms of these
disputed paragraphs, the Chairperson of the BMCC considered a complaint that was
referred to
the BMCC and decided whether or not the complaint merited a formal
hearing.  It was contended that the Chairperson’s decision
was foundational to
these paragraphs.  In dealing with the allegation that the impugned provisions
of the IBA Act did confer prosecutorial
powers, I held that to be unfounded.Â
For the same reasons, the submission that these disputed paragraphs conferred
prosecutorial
functions on the BMCC cannot be upheld.
[63]
In my view, the constitutional challenge against
the disputed paragraphs has also become moot.  I have already held, when I
dealt
with the section 34 challenge against the impugned provisions of the IBA
Act, that the investigative and adjudicative powers conferred
on the BMCC did
not extend also to prosecutorial functions.  It is not insignificant that the
applicant makes no allegation of
prejudice anywhere in its papers, in the sense
that a reasonable person in the position of the applicant would have
entertained
a reasonable apprehension that the BMCC might be biased in dealing
with the complaint against it.  Indeed, it could not, because
the complaint was
not referred to the BMCC by its Chairperson, but by order of court.
[92]
  In fact, the Chairperson had
decided against a hearing and a different Chairperson presided at the eventual
hearing.  There
could therefore not have been any suggestion of an apprehension
of bias, reasonable or otherwise.  A declaration of constitutional
invalidity
of the disputed paragraphs 1.16 to 1.21 and 2.7 will not affect the decision of
the BMCC nor the sanction imposed by
ICASA and will therefore be of no
practical effect.
[93]
[64]
Disputed paragraphs 1.23 to 1.28 were challenged
on the basis that they conferred investigative, prosecutorial and adjudicative
functions on the BMCC and were thus inconsistent with the provisions of
sections 33, 34 and 192 of the Constitution.  They read:
“1.23    After having considered the complaint and the
representations (if any) and evidence in regard thereto, the panel of
the BMCC
which heard the complaint shall make its finding as regards the complaint.
1.24      Upon having made a finding, the BMCC shall inform the
licensee of the finding within a reasonable time.  Should the
BMCC find against
the licensee, the Committee shall provide the licensee and the complainant with
an opportunity to make representations
to the BMCC with regard to its
recommendations to the Council as to what penalty (if any), as contemplated in
Section 66 of the
IBA Act, should be imposed on the licensee.
1.25      Once it has heard the arguments of the parties the BMCC
shall decide on its recommendation to the Council, in accordance
with Section
66 of the IBA Act.
1.26      The finding of the BMCC and the recommended penalty (if
any) to be imposed, together with a record of the proceedings,
shall be
submitted to the Council of the Authority for its consideration and decision on
what penalty (if any) should be imposed.Â
The licensee and the complainant
shall also be provided with a copy of the recommendation of the BMCC.
1.27      In the event of the Council deciding that the
contravention warrants a penalty heavier than that recommended by the
BMCC, the
licensee shall be given the opportunity to make representations to the Council,
in writing, before the Council makes
a final decision on the matter.
1.28      The Council of the Authority shall as soon as it has taken
a decision on the recommendations made by the BMCC inform
both the licensee and
complainant of such decision with regards to the steps to be taken.”
It was argued that these disputed
paragraphs could only take effect once the BMCC had held a hearing and that
inasmuch as the impugned
provisions of the IBA Act were inconsistent with the
Constitution because they conferred investigative, prosecutorial and
adjudicative
functions on the BMCC respectively, they could not stand.  These
submissions must fail for the same reasons given in respect of
the submissions
on the impugned provisions of the IBA Act.
[65]
These paragraphs were also challenged on the
basis that they were constitutionally tainted as a result of the exercise of
investigative
and adjudicative powers by the MCU, a body without legal
authority.  Further, that the exercise of monitoring, investigative and

adjudicative powers by the MCU was a condition precedent
for the
exercise of the adjudicative powers of the BMCC.  Whatever the legal status of
the MCU, it has not been suggested that
its establishment had the result that
the BMCC became deprived of its monitoring, investigative and adjudicative
functions.
Are the impugned provisions of the
ICASA Act inconsistent with sections 33 and 34 of the Constitution?
[66]
After the IBA Act was repealed
[94]
and the impugned provisions were
inserted
[95]
into the ICASA Act, the applicant amended its notice of motion to include, in
the orders sought, an order declaring those provisions
constitutionally
invalid.  The constitutional challenge was based on the same grounds as those
raised in respect of the constitutional
challenge against the impugned
provisions of the IBA Act.  It must follow that the constitutional challenge
against the impugned
provisions of the ICASA Act must fail for the same reasons
given above for the rejection of the challenge against the impugned provisions

of the IBA Act.
[67]
I deal, however, with two specific subsections.Â
With regard to the submission that the Chairperson of the CCC selects other
members
of panels for hearings, it was submitted that this is done consequent
upon the Chairperson’s responsibility of managing the work
of the CCC.  Section
17A(3) of the ICASA Act provides only that the Chairperson of the CCC must
manage the work of the CCC and
that she or he must preside at hearings of the
CCC.  Managing the work of the CCC does not necessarily entail also the
selection
of a panel of the CCC for a hearing.  But even if it did, the
selection would be open to a court challenge were it to be done in
a manner
that created, in the mind of an objective licensee, a reasonable apprehension
that the hearing would not be fair.
[68]
Section 17C(2) of the ICASA Act enjoins the CCC
to provide the licensee with a copy of the complaint if a complaint has been
lodged
and a notice setting out the nature of the non-compliance before it
hears a matter.
[96]
Â
In this regard it was argued that the Chairperson of the CCC formulated a
charge sheet in respect of the complaint.  I am prepared
to accept that in all
probability it will be the task of the Chairperson to provide such notice to
the licensee by virtue of being
the person tasked with managing the work of the
CCC.  However, a notice setting out “the nature of the non-compliance” is a

far-cry from “formulating and providing a charge sheet” as a prosecutor would.Â
There is, in my view, no rational basis for
equating the function of providing
the kind of notice referred to, with formulating a charge sheet.  The
contention that the Chairperson
of the CCC acts as a prosecutor is without
foundation.
The
MacBain
judgment
[69]
In declaring the impugned provisions unconstitutional
and therefore invalid, the High Court relied on the
MacBain
decision
referred to earlier.  The High Court observed that the complaints procedure
under the Canadian Human Rights Act
[97]
“is almost identical to the procedure provided for in the impugned provisions”.
[98]
  In
MacBain,
a
complaint had been lodged with the Canadian Human Rights Commission (the
Commission) which appointed an investigator.
[99]
Â
After she had completed her task, the investigator submitted her report to the
Commission, which, after it had decided that the
complaint had been
substantiated, appointed a tribunal to enquire into the complaint.  Before the
tribunal the Commission appeared
as prosecutor.  The tribunal also found that a
complaint had been substantiated and imposed a sanction.  The Federal Appeal Court
invalidated the relevant provisions, holding that the scheme of the
Canadian Human Rights Act provided for a direct connection between
the
prosecutor (the Commission) and the decision-maker (the tribunal).  The court
expressed the view that the prosecutor should
not be able to choose the judge.Â
It accordingly concluded that an informed person viewing the matter
realistically and practically
and having thought the matter through, would
conclude that a reasonable apprehension of bias existed under the statutory
scheme.
[100]
[70]
In the present matter, the High Court agreed
with the reasoning and conclusion of the court in
MacBain
and applied
it.  The court held as follows:
“In the scheme provided
for in the IBA Act, the complaint is ultimately heard by the very same body,
having firstly investigated
the complaint and secondly made a decision that
sufficient evidence exists for the referral thereof to a hearing.  In our
criminal
justice system the office, duties and functions of the prosecutor are
for good reasons distinctly separate and independent from
that of the decision
maker.  In the absence thereof a reasonable suspicion of bias is unavoidable.Â
I can see no reason why the
principles underscoring fundamental concepts such
as independence, impartiality and resulting fairness, should not with equal
force
apply to administrative bodies like the BMCC.  It is accordingly my
finding that a reasonable suspicion of influence, dependency
or bias arising
from the direct connection existing between the prosecutor of the complaint
(the chairperson of the BMCC) and the
decision maker (the BMCC), cannot be
excluded.  It follows that the constitutional challenge of the impugned
provisions of the
IBA Act must be upheld.  The impugned provisions of the ICASA
Act, which are similar to the impugned provisions of the IBA Act,
must
accordingly suffer the same fate.”
[101]
Â
(Footnote omitted.)
[71]
This reasoning is flawed.  I have already found
that the impugned provisions of the IBA Act did not provide for a prosecutor.Â

The Chairperson of the BMCC did not act as a prosecutor and there is no
evidence that she or he chose or appointed other members
of the panels for
hearings.  The same applies with regard to the Chairperson of the CCC.Â
Reliance on the
MacBain
case was, in my view, erroneous.
Regulations 5 and 6
[72]
 The High Court held these Regulations to be
inconsistent with the right to a fair hearing, which, it said, is a founding
value
of our Constitution, and declared them invalid.  Regulation 5 makes
provision for a witness who appears before the CCC to be questioned
through the
Chairperson.
[102]
Â
In terms of regulation 6 such witness may only be cross-examined if the
Chairperson deems it necessary and in the interest of
the functions of the CCC.
[103]
  It was submitted on behalf
of the applicant that the Chairperson of the CCC, by being able to determine
what cross-examination
is necessary and in the interest of the functions of the
CCC, and what evidence is to be led, might exercise her or his powers such
as
to justify the initial decision to refer the matter to the CCC for hearing.Â
The Chairperson might thus be predisposed to deciding
the matter in accordance
with his or her decision that the complaint has merit.
[73]
In my view, the argument cannot be sustained.Â
The Regulations do not prohibit cross-examination.  There is nothing unusual,
in
an inquisitorial process, in the cross-examination of witnesses being done
through the Chairperson.  Nor is it impermissible, I
would suggest, for a
Chairperson to have the power to allow cross-examination only where she or he
deems it to be necessary.Â
The question is whether a decision to disallow
cross-examination or certain questions will lead to unfairness.  That question
would have to be answered on a case-by-case basis.  There may be a perfectly
valid reason why, in a particular instance, cross-examination
was disallowed.Â
And if the decision of the Chairperson renders the hearing unfair, it may be
reviewed and set aside under PAJA.Â
I find that the Regulations at issue are
not unconstitutional.
Costs
[74]
These are mainly confirmatory proceedings
although appeals were also considered.  It was in the interests of justice that
the appeals
against the order of constitutional invalidity of the Complaints
Procedures and Regulations be argued together with the confirmation

proceedings.  As was said in
Mistry
[104]
the split between the referral and the appeals resulted from the procedural
requirements of the interim Constitution.
[105]
Â
The matter thus had to be argued in this Court.  In the court below no costs
order was made.  I think it is only fair that
the same should apply in this
Court.
Order
[75]
The following order is made:
1.         The Court declines to confirm the order of constitutional
invalidity made by the Johannesburg High Court on 26
April 2007 in case No 06/3431.
2.         The late filing of the first respondent’s notice of
appeal is condoned.
3.         The second and fourth respondents’ applications for leave
to appeal are granted.
4.         The appeals of the first, second and fourth respondents are
upheld and the order of the High Court is set aside
and is replaced with an
order dismissing the application.
4.         There
is no order as to costs.
Langa CJ, Moseneke DCJ, Madala J,
Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van der Westhuizen J, and Yacoob J
concur in the judgment
of Mpati AJ.
For the Applicant:                             Advocate A Schippers
SC and Advocate MC Solomon instructed
by LA Adams & Associates.
For the First Respondent:                 Advocate KD Moroka SC and Advocate PL Nobanda instructed by The State Attorney,
Pretoria.
For the Second Respondent:            Advocate GJ Marcus SC and
Advocate S Budlender instructed by Mkhabela Huntley Adekeye
Inc.
For the Fourth Respondent:             Advocate DN Unterhalter SC , Advocate AD Stein and Advocate N Rajab-Budlender instructed
by Feinsteins Attorneys.
[1]
Section 192 provides:
“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.”
[2]
Section 33(1) provides:
“Everyone has the right to
administrative action that is lawful, reasonable and procedurally fair.”
[3]
Section 34 provides:
“Everyone has the
right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum.”
[4]
Islamic Unity Convention v Minister of Telecommunications
Case no 06/3431, 26 April 2007, unreported at para 26.
[5]
The IBA Act came into force on 30 March 1994.
[6]
Section 3(1)(a) provided that:
“There is
hereby established a juristic person to be known as the Independent
Broadcasting Authority, which shall exercise and
perform the powers, functions
and duties conferred and imposed upon it by this Act or by or in terms of any
other law.”
[7]
The BMCC was established in terms of section 21(1)(b) of the
IBA Act.
[8]
Section 62(1) of the IBA Act provided:
“Subject to the provisions of sections 56 and 57, the Broadcasting
Monitoring and Complaints Committee shall—
(a)           monitor compliance by broadcasting licensees or their
adherence to—
                (i)            the terms, conditions and obligations of
their broadcasting licences;
(ii)           the Code of Conduct for Broadcasting
Services as set out in Schedule 1 to this Act;
(iii)          the Code of Advertising Practice contemplated
in subsection (1) of section 57;
(b)           monitor compliance by broadcasting
licensees with the provisions of sections 58, 59, 60 and 61;
(c)           monitor compliance by broadcasting
signal distribution licensees with the terms, conditions and obligations
of
their broadcasting signal distribution licences and with any requirement
relating to such a licensee or licence as imposed by
Chapter V or any
regulation in terms of section 78; and
(d)           monitor
compliance by licensees with any other material provisions of this Act relevant
to them or their
respective licences.”
[9]
Section 56(1) of the IBA Act provided: “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.”
[10]
These powers are provided for in section 62(3) of the IBA Act which
is quoted in paragraph [21] below.
[11]
In terms of section 63(1) of the IBA Act.
[12]
An amended version of the Complaints Procedures was
published in Government Gazette 23444 GN 779, 22 May 2002.  The amended version

indicates that the complaints procedures were adopted by the BMCC on 8 May
1995, and amended on 9 April 2002.
[13]
The MCU is referred to in the amended version as the
Monitoring and Complaints Unit of ICASA and in the earlier judgment of this
Court
in
Islamic Unity Convention v Independent Broadcasting Authority
[2002] ZACC 3
;
2002
(4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at fn 2 as “[a] unit of the IBA’s
Licensing, Monitoring and Complaints department.”
[14]
The Regulations were made in terms of section 78(1) read with
section 63(10) of the IBA Act and published in Government Gazette
16758 GN
R1604, 13 October 1995.
[15]
ICASA was established in terms of section 3 which reads:
“(1)         There is hereby established a juristic
person to be known as the Independent Communications Authority of South
Africa.
(1A)        The Authority is deemed to be the Regulator contemplated in
the Postal Services Act.
(2)           The Authority acts through the Council contemplated in
section 5.
(3)           The Authority is independent, and
subject only to the Constitution and the law, and must be impartial and
must
perform its functions without fear, favour or prejudice.
(4)           The
Authority must function without any political or commercial interference.”
[16]
The dissolution was in terms of section 18(1) of the ICASA
Act which provided as follows: “The IBA and SATRA are hereby dissolved
with
effect from [1 July 2000].”
[17]
Section 4(3)(n) of the ICASA Act provides that the Authority
“must investigate and adjudicate complaints submitted in terms of
this Act, the
underlying statutes, and licence conditions.”
[18]
Section 22(3) of the ICASA Act provides that the Authority
(ICASA) is the legal successor of the IBA.
[19]
In Government Gazette 22919 GN 2355.
[20]
Although the amended version of the Complaints Procedures was
published on 22 May 2002, it still made mention of the MCU as the Monitoring

and Complaints Unit of the IBA which no longer existed.
[21]
Act 36 of 2005.
[22]
Section 95(1)(d)
of the
Electronic Communications Act 36 of
2005
provides:
“Within twenty-four
months of the coming into force of this Act, the Authority [ICASA] may, if the
Authority considers it necessary,
repeal or amend the regulations made under
the IBA Act . . . .”
[23]
These sections
were
inserted by
section 19
of the
Independent Communications Authority of South
Africa Amendment Act 3 of 2006
.
[24]
Section 17A(1)
provides:
“The Authority must
establish a Complaints and Compliance Committee which consists of not more than
seven members, one of whom
must be a councillor.”
[25]
The functions of the CCC are set out in section 17B of the
ICASA Act quoted in paragraph [27] below.
[26]
Radio 786.
[27]
Clause 2(a) provided:
“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.”
[28]
Above n 13 at para 60.
[29]
This judgment is reported as
South African Jewish Board
of Deputies v Sutherland NO and Others
2004 (4) SA 368
(W) at para 40.
[30]
The sanction is as follows:
“1.           That the Islamic Unity Convention
(“Radio 786”) be ordered to:
1.1           [D]esist from any further
non-compliance with or non-adherence to the Act, including but not limited to,

the broadcasting and publication of hate speech;
1.2           Generally the advocacy of
hatred which constitutes incitement to cause harm against the Jewish people and

including the impairment of their dignity;
2.             The Licensee is directed to
broadcast and/or publish the ruling of the BMCC (dated 12 May 2006) as well
as
its full Judgment and this Order at its own cost and in the following manner:
2.1           As part of its news
broadcasts on the two (2) days following the grant of this Order, save that in
respect
of such news broadcasts, it shall only be required to broadcast the
ruling of [the] committee and this Order and not the full Judgment;
2.2           Prominently on the home page
of its website for a minimum period of six (6) months from the date hereof,

together with a link to the actual Ruling, Judgment and Order of this
Committee;
2.3           In full in the next edition of its own in-house news
letter and magazine.”
[31]
Section 66 empowered the IBA to impose a sanction on a party
found by the BMCC to have been guilty of non-compliance with the IBA
Act,
license conditions and the Code of Conduct.
[32]
Section 172(2) of the Constitution in relevant part
provides:
“(a)         The Supreme Court of
Appeal, a High Court or a court of similar status may make an order concerning
the constitutional
validity of an Act of Parliament, a provincial Act or any
conduct of the President, but an order of constitutional invalidity has
no
force unless it is confirmed by the Constitutional Court.
. . . .
(d)           Any person or organ of state with a
sufficient interest may appeal, or apply, directly to the Constitutional
Court
to confirm or vary an order of constitutional invalidity by a court in terms of
this subsection.”
[33]
Rule 16(2) of the Rules of the Constitutional Court provides
that a notice of appeal must be lodged within 15 days of the making
of an order
of constitutional invalidity.
[34]
See section
172(2) of the Constitution above n 32.
[35]
See for example
Phillips and Another v Director of Public
Prosecutions
,
Witwatersrand
Local Division, and Others
[2003] ZACC 1
;
2003
(3) SA 345
(CC);
2003 (4) BCLR 357
(CC) at paras 11-12 and
Ex parte Omar
2006 (2) SA 284
(CC);
2003 (10) BCLR 1087
(CC) at paras 5-6.
[36]
See above at paragraph [4].
[37]
See below n 81.
[38]
Paragraphs 1.7-1.8.
[39]
Paragraph 1.15.
[40]
The Authority is ICASA.
[41]
The complaint is one referred to in section 17C(1)(a), which
reads:
“A person
who has reason to believe that a licensee is guilty of any non-compliance with
the terms and conditions of its licence
or with this Act or the underlying
statutes may lodge a complaint with the Authority within 60 days of becoming
aware of the alleged
non-compliance.”
[42]
See section 62(1) quoted a
bove n 8.
[43]
Under the ICASA Act these functions are performed by inspectors.Â
Section
17F(5) of the ICASA Act in relevant part provides:
“An inspector must—
(a)           monitor compliance by licensees of
licence terms and conditions;
(b)           monitor compliance by licensees with the
provisions of this Act and the underlying statutes;
(c)           investigate and evaluate any alleged or
suspected—
(i)            non-compliance by a licensee with its
licence terms and conditions and provisions of this Act or the underlying

statutes;
(ii)           breach by a licensee of an agreement
between such licensee and its subscribers;
(iii)          failure
to provide a communications service that the licensee is required to provide
under the terms of
its licence or in terms of this Act or the underlying
statutes . . . .”
[44]
Above n 4.
[45]
Id at para 21.
[46]
Id.
[47]
22 DLR (4
th
) 119 (FedCA).
[48]
Id at para 23.
[49]
Id.
[50]
Section 34 of the Constitution, quoted above n 3.
[51]
S
ection 192 of the Constitution, quoted above n 1.
[52]
Given that the BMCC no longer exists, counsel dealt only
with the CCC.  The submissions, however, apply equally to the BMCC.
[53]
Section 17A(2) of the ICASA Act provides that the
Chairperson of the CCC must be (a) a judge of the High Court, whether in active

service or not; (b) an advocate or attorney with at least ten years’
appropriate experience; or (c) a magistrate with at least
ten years’
appropriate experience, whether in active service or not.
[54]
Above n 4 at para 17.
[55]
1992 (3) SA 673 (A).
[56]
Id a
t 693I-J.  See also
President of the
Republic of South Africa and Others v South African Rugby Football Union and
Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC)
at paras 36-38;
S v Roberts
1999 (4) SA 915
(SCA) at paras 32 and 33;
and
Moch v Nedtravel
(Pty) Ltd t/a American Express
Travel Service
1996 (3) SA 1
(SCA) at 8H-I.
[57]
SARFU
a
bove n 56 at para 48.  The court at para 38
confirmed the correctness of the test as enunciated in
BTR
, but
preferred the use of the phrase “apprehension of bias” to “suspicion of bias”.
[58]
Id at para 45.
[59]
[1996] 3 SCR. 919
at para 44.  The underlining appears in
the report.
[60]
1999 (1) SA 167 (C); 1998 (11) BCLR 1425 (C).
[61]
Act 97 of 1990.  Prior to amendment by the
Financial Services Board
Amendment Act 12 of 2000
, s
ection 26(1) of Act 97 of 1990 provided:
“There is hereby established a board of appeal, which shall consist of three
persons, appointed by the Minister, of whom—
(a)           one shall be a person appointed on
account of his knowledge of law, who shall be the chairman;
(b)           one shall be one of the members of the board; and
(c)           one
shall be a person registered as an accountant and auditor under section 23 of
the Public Accountants’
and Auditors’ Act, 1951 (Act No. 51 of 1951), and who
in the opinion of the Minister has wide experience of, and expert knowledge
of
the latest developments in, the accountants’ and auditors’ profession.”
[62]
Item
23(2)(a) and (b) of Schedule 6 provides:
“
Until the legislation
envisaged in sections 32(2) and 33(3) of the new Constitution is enacted—
(a)           section 32(1) must be regarded to read
as follows:
‘(1)          Every person has the right of
access to all information held by the state or any of its organs in any sphere

of government in
so far as that information
is required for the exercise or
protection of any of their rights.’; and
(b)           section 33(1) and (2) must be regarded
to read as follows:
‘Every person has the right to—
(a)           lawful administrative action
where any of their rights or interests is affected or threatened;
(b)           procedurally fair
administrative action where any of their rights or legitimate expectations is
affected
or threatened;
(c)           be furnished with reasons in
writing for administrative action
which
affects any of their rights or interests unless the reasons
for that
action have been made public; and
(d)           administrative action which is
justifiable in relation to the
reasons given
for it where any of their rights is affected or
threatened.’.”
[63]
Above n 60
at 170E-G and 1427G-H respectively.
[64]
[1991] 2 SCR 114
at 144; (1991) 64 CCC (3d) 513 at 534; [1991]
5 CRR (2
nd
) 31 at 56.
[65]
Above n 60 at 175D-E and 1432D-E respectively.
[66]
Act 3 of 2000.
[67]
Oxford English Dictionary Online
2 ed 1989 (Oxford
University Press, Oxford 2007)
.
[68]
Id.
[69]
2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC).
[70]
Act 133 of 1993.
[71]
Above n 69
at para 31.  See
also
S v
Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at paras 11 and 101;
De Lange v Smuts NO and
Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 79;
and
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC)
at paras 109 and 124.
[72]
See
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 85.
[73]
Mistry v Interim Medical and Dental Council of South
Africa and Others
1998 (4) SA 1127
(CC) at para 27
[1998] ZACC 10
; ;
1998 (7) BCLR 880
(CC)
at para 20.
[74]
Paragraph 1.27 of the Complaints Procedures reads:
“In the
event of the Council deciding that the contravention warrants a penalty heavier
than that recommended by the BMCC, the
licensee shall be given the opportunity
to make representations to the Council, in writing, before the Council makes a
final decision
on the matter.”
[75]
Above n 4 at para 10.
[76]
Bernstein
above n 72 at para 105.
[77]
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC)
at para 61.
[78]
D
e Ville
Judicial Review of Administrative Action in South
Africa
1 ed (revised) (LexisNexis Butterworths, Durban 2005) at 281.  See
also Currie and De Waal
The Bill of Rights Handbook
5 ed (Juta & Co,
Ltd, Lansdowne 2005) at 706-707, where the decision in
Financial Services
Board
, above n 60, was criticised.  In that case Conradie J held, at
175I-J, that the Appeal Board was an independent tribunal as envisaged
by
section 34 of the Constitution.
[79]
Currie and De Waal above n 78 a
t 707.  See too
Simelane
and Others NNO v Seven-Eleven Corporation and
Another
2003 (3) SA 64
(SCA) at
para 14 and 17 where reference was
made with approval to
Norvatis
SA (Pty) Ltd and Others v Main Street 2 (Pty) Ltd
[2001-2002] CPLR 470
(CT) at paras 35-61.
[80]
Section 64(1) provided:
“Upon having made a
finding, in terms of subsection (7) of section 63, that any complaint
adjudicated by it in terms of that section
is justified, the [BMCC] shall in
writing make recommendations to the Authority as to which of the steps provided
for in paragraphs
(a) to (g), inclusive, of subsection (1) of section 66 should
be taken against the licensee in relation to whom such finding was
made, and
forward its finding and such recommendations, together with the record of the
adjudication proceedings, to the Authority
for appropriate action in terms of
section 66.”
[81]
Section 66(1) provided:
“As soon as may be reasonably practicable after
receipt of any record of adjudication and the finding and recommendations
relevant
thereto, as forwarded to it by the [BMCC] in terms of section 64, or
section 65 read with section 64 (as the case may be), and having
duly taken
into account the nature, consequences and gravity of the non-compliance or
non-adherence to which such finding relates,
the circumstances in which it
occurred and the recommendations so received, the Authority shall make any one
or more of the following
orders, namely—
(a)           where such finding is founded
on non-compliance by the respondent with the provisions of section 58, 59,
60
or 61, an order whereby the respondent, if he or she—
(i)            is a sound broadcasting
licensee, is required to broadcast a party election broadcast or a political
advertisement
(as the case may be);
(ii)           is a broadcasting licensee,
is required to broadcast another version of the programme complained of or a

counter-version of the opinions expressed or alleged facts stated in such a
programme,
whichever is applicable;
(b)           directing the respondent to desist from
any further non-compliance or non-adherence;
(c)           directing the respondent to
publish such finding at his or her own cost and in the manner required by the

Authority;
(d)           directing the respondent to
pay, as a fine, the amount prescribed in respect of such non-compliance or
non-adherence;
(e)           directing the respondent to
take such remedial and other steps, not inconsistent with the objects and
principles
as enunciated in section 2, as may be determined by the Authority;
(f)            prohibiting a respondent who
is a licensee from carrying on his or her broadcasting service or broadcasting

signal distribution service (as the case may be) for such period as determined
by the Authority, or revoking his or her licence:
Provided that such a
prohibition shall not endure for longer than 30 days;
(g)           if satisfied that the non-compliance or
non-adherence to which such finding relates, constitutes an offence,
an order
directing such record of adjudication and the finding and recommendations of
the [BMCC] relevant thereto, to be referred
to the Attorney-General with a view
to instituting a criminal prosecution.”
[82]
Minister of Health and Another v New Clicks
South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as
Amici Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para 446;
Anglo South Africa Capital (Pty) Ltd and Others v Industrial
Development Corporation of South Africa and Another
2004 (6) SA 196
(CAC) at 203H-I;
Moodley and Others v Minister of Education
and Culture, House of Delegates, and Another
1989 (3) SA 221
(A) at 233E-F.
[83]
Clause 12(g) of the constitution of the BMCC provides: “In
the event of an equality of votes regarding any matter, the Chairperson
has a
casting vote in addition to his/her deliberative vote.”
[84]
Clause 12(d) of the constitution of the BMCC, which deals
with meetings and hearings of the BMCC, makes provision for a quorum consisting

of the Chairperson or her or his deputy, a representative from the Council of
the IBA and one additional member.  The constitution
of the BMCC does not say
that the other two members would be selected by the Chairperson.
[85]
Above n 77 at para 101.
[86]
Id.
[87]
Id at para 102.
[88]
Bel
Porto School Governing Body and Others v
Premier, Western Cape, and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC)
at para 84.
[89]
Truth and Reconciliation Commission v Du Preez and
Another
1996 (3) SA 997
(C) at 1008F-G.  See also
Premier, Mpumalanga,
and Another v Executive Committee, Association of State-Aided Schools, Eastern
Transvaal
[1998] ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) at paras 39 and 41;
Maharaj
v Chairman, Liquor Board
1997 (1) SA 273
(N) at 277F-G; and
Van
Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and
Others
1996 (1) SA 283
(C) at 305C-D.
[90]
Above n 12.
[91]
President,
Ordinary Court Martial, and Others v Freedom of Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999
(11) BCLR 1219
(CC)
at paras 16-18;
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) at paras 16-17.  The dictum in
JT
Publishing
at paras 16-17 were applied most recently by this Court in
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007
(1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at para 60:
“What was
in the rules is now contained in the Credit Act.  The content also differs from
the rules.  In those circumstances,
the enquiry into the constitutionality of
the Credit Act will be materially different from the enquiry into the
constitutional
validity of the rules relating to privacy.  A finding in
relation to this issue will therefore be of little practical significance.Â

Unlike the issue in relation to whether the rule-making by the Council
constituted private or public power, there are no conflicting
judgments in
existence on the privacy issue.”  (Footnote omitted.)
[92]
Above n 29.
[93]
Above n 91.
[94]
Above n 21.
[95]
Above n 23.
[96]
Section 17B(a)(iii) of the ICASA Act provides that the CCC
must investigate and hear, if appropriate, allegations of non-compliance
with
this Act or the underlying statutes received by it.
[97]
Section
39 of the Canadian Human Rights Act
provided:
“(1)         The Commission may, at any
stage after the filing of a complaint, appoint a Human Rights Tribunal
(hereinafter
in this Part referred to as a ‘Tribunal’) to inquire into the
complaint.
(2)           A Tribunal may not consist of more than
three members.
(3)           No member, officer or
employee of the Commission, and no individual who has acted as investigator or
conciliator
in respect of the complaint in relation to which a Tribunal is appointed,
is eligible to be appointed to the Tribunal.
(4)           A member of a Tribunal is
entitled to be paid such remuneration and expenses for the performance of
duties
as a member of the Tribunal as may be prescribed by by-law of the
Commission.
(5)           In selecting any individual or
individuals to be appointed as a Tribunal, the Commission shall make its
selection from a panel of prospective members, which shall be established and
maintained by the Governor in Council.”
Section 40 of the Canadian Human
Rights Act provided:
“(1)         A Tribunal shall, after due
notice to the Commission, the complainant, the person against whom the
complaint
was made and, at the discretion of the Tribunal, any other interested
party, inquire into the complaint in respect of which it was
appointed and
shall give all parties to whom notice has been given a full and ample
opportunity, in person or through counsel,
or appearing before the Tribunal,
presenting evidence and making representations to it.
(2)           The Commission, in appearing before a
Tribunal, presenting evidence and making representations to it, shall
adopt
such position as, in its opinion, is in the public interest having regard to
the nature of the complaint being inquired into.
. . .”
[98]
Islamic Unity Convention
above n 4 at para 18.
[99]
In accordance with section 35(1) of the Canadian Human Rights Act
which provided that: “The Commission may designate a person
(hereinafter
referred to as an ‘investigator’) to investigate a complaint.”
[100]
MacBain
above n 47 at 126-130.
[101]
A
bove n 4 at para 21.
[102]
Regulation 5 provides that:
“Any witness appearing
before the Committee may be questioned through the Chairperson while under oath
or affirmation in relation
to any matter which may arise in connection with the
inquiry or adjudication of the complaint in question.”
[103]
Regulation 6 provides that:
“Such
witness may only be cross-examined if the Chairperson deems it necessary and in
the interest of the functions of the Committee.Â
A witness appearing before the
Committee may have a legal representative or other adviser present.”
[104]
Above n 73 at para 53 and para 46 respectively.
[105]
Section 172(2)(a) of the Constitution above n 32.  See
Zondi
above
n 77 at para 29 where it was said that only the constitutional invalidity of an
Act of Parliament
, a provincial Act or any conduct of
the President
must be confirmed by this Court.  See also
Minister of
Home Affairs v Liebenberg
2002 (1) SA 33
(CC);
2001 (11) BCLR 1168
(CC) at
para 13.