Justice Alliance of South Africa v Mncube N.O and Others ; In Re: Cause for Justice and Another v Independent Communications Authority of South Africa and Others; In Re: Doctors for Life International WC v Independent Communications Authority of South Africa and Others (18519/2013) [2014] ZAWCHC 162; [2015] 1 All SA 181 (WCC); 2015 (4) BCLR 402 (WCC) (3 November 2014)

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[2014] ZAWCHC 162
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Justice Alliance of South Africa v Mncube N.O and Others ; In Re: Cause for Justice and Another v Independent Communications Authority of South Africa and Others; In Re: Doctors for Life International WC v Independent Communications Authority of South Africa and Others (18519/2013) [2014] ZAWCHC 162; [2015] 1 All SA 181 (WCC); 2015 (4) BCLR 402 (WCC) (3 November 2014)

THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
DATE:
03 NOVEMBER 2014
Case
no: 18519/2013
In
the matter between:
JUSTICE
ALLIANCE OF SOUTH AFRICA
....................................
Applicant
And
STEPHEN
SIPHO MNCUBE N.O
..............................................
1
st
Respondent
INDEPENDENT
COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
...........................................
2
nd
Respondent
ON
DIGITAL MEDIA (PTY) LTD t/a TOP TV
...........................
3
rd
Respondent
PETRUS
FRANCOIS VAN DEN STEEN N.O
............................
4
th
Respondent
MINISTER
OF COMMUNICATIONS
.......................................
5
th
Respondent
And
CAUSE
FOR
JUSTICE
.................................................................
1
st
Applicant
GABRIEL
JACOBUS VENTER
...................................................
2
nd
Applicant
And
INDEPENDENT
COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
.......................................
1
st
Respondent
STEPHEN
SIPHO MNCUBE N.O
........................................
2
nd
Respondent
ON
DIGITAL MEDIA (PTY) LTD t/a TOP TV
.......................
3
rd
Respondent
PETRUS
FRANCOIS VAN DEN STEEN N.O
.........................
4
th
Respondent
MINISTER
OF COMMUNICATIONS
....................................
5
th
Respondent
And
DOCTORS
FOR LIFE INTERNATIONAL WC
...............................
Applicant
And
INDEPENDENT
COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
...........................................
1
st
Respondent
STEPHEN
SIPHO MNCUBE N.O
.............................................
2
nd
Respondent
ON
DIGITAL MEDIA (PTY) LTD t/a TOP TV
............................
3
rd
Respondent
PETRUS
FRANCOIS VAN DEN STEEN N.O
.............................
4
th
Respondent
MINISTER
OF COMMUNICATIONS
.......................................
5
th
Respondent
JUSTICE
ALLIANCE OF SOUTH AFRICA
...............................
6
th
Respondent
CAUSE
FOR
JUSTICE
...............................................................
7
th
Respondent
GABRIEL
JACOBUS VENTER
..................................................
8
th
Respondent
Coram
:
BOZALEK J
Heard:
11 - 14 AUGUST & 13 OCTOBER 2014
Delivered:
3 NOVEMBER 2014
JUDGMENT
BOZALEK
J:
[1]
This matter involves a review of the
decision of the Independent Communications Authority of South Africa
(‘
ICASA’
),
the second respondent, taken on 23 December 2013 granting the third
respondent, On Digital Media (Pty) Ltd (‘
ODM’
),
authorisation to carry three pay-to-view television channels
containing pornographic programmes between 8pm and 5am daily. The

first respondent is the chairman of ICASA whilst the fourth
respondent is a business rescue practitioner, ODM being presently
under business rescue.
[2]
Three separate review applications were
brought, two in the North Gauteng High Court, but by agreement were
consolidated with the
application launched in this Court. The
applicants are Doctors for Life (‘
DFL’
),
Cause for Justice (‘
CFJ’
)
and the Justice Alliance of South Africa (‘
JASA’
),
each of which is a voluntary association constituted, broadly
speaking, to advocate for chosen moral positions and values in

society and, if necessary, to litigate towards such ends.
[3]
Certain of the applicants sought ancillary
or wider relief, namely, permission to institute the litigation in
terms of
section 133(1)
of the
Companies Act, 71 of 2008
, interim
relief pending the determination of the review and constitutional
relief, namely, a determination of the constitutionality
of
regulations adopted by ICASA, alternatively of certain provisions of
the Independent Communications Authority of South Africa
Act, No 13
of 2000 (‘
the ICASA Act’
),
but all such relief has either been the subject of agreement,
deferred or is no longer pursued.
[4]
DFL and CFJ seek, upon a successful review,
the remittal of ODM’s application for authority to carry the
three channels back
to ICASA. JASA seeks, on one review ground only,
namely, ICASA’s failure to take into account that the
broadcasting of the
channels would ‘
rewire’
the brains of viewers, a substitution for ICASA’s decision with
one by this Court refusing to authorise ODM’s three
channels.
In the alternative it seeks the remittal of the application back to
ICASA. On all other grounds the relief sought by
JASA was the
remittal of the decision back to ICASA.
[5]
The fifth respondent is the Minister of
Communications who was cited because of the constitutional relief
sought. The Minister has
played no active part in the hearing since
that relief is not pursued at this stage.
BACKGROUND
[6]
At all material times ODM was the holder of
a broadcasting licence offering a subscription i.e. pay-per-view
service to its customers.
[7]
In July 2011 ODM lodged an application with
ICASA to broadcast three pornographic content channels on a 24-hour
basis. In November
2011 ICASA published a notice in the Government
Gazette inviting interested parties to submit representations within
30 days in
relation to ODM’s application. It later issued a
notice inviting interested parties to make oral representations at a
public
hearing.
[8]
Various parties made written or oral
representations. ODM did not attend the public hearing. In January
2012 ICASA refused to grant
ODM the necessary authority and published
the reasons for its refusal in March 2012.  In its reasons ICASA
stated that ODM’s
absence at the hearing had precluded it from
raising concerns regarding the proposed content of the pornographic
material.
[9]
On 28 November 2012, ODM, under the name
Top TV, lodged a new application with ICASA for authorisation to
broadcast three pornography
channels. On 19 December 2012 ICASA
issued a notice in the Government Gazette inviting interested parties
to submit representations
in respect of the application. The closing
date for the submission of such representations was 22 January 2013.
[10]
According to ICASA a total of 569
representations were received by the cut-off date from members of the
public or interest groups.
A further 75 representations were received
after the cut-off date but these were also taken into account by
ICASA.
[11]
On 31 January 2013 ICASA’s Council,
acting in terms of section 17 of the ICASA Act, established a special
committee to consider,
conduct public hearings and provide a
recommendation to ICASA’s Council on ODM’s application.
Two of ICASA’s
counsellors were appointed to the special
committee.
[12]
On 1 March 2013, ICASA gave notice in the
Government Gazette of a public hearing scheduled for 14 March 2013.
The notice advised
that the programme for the hearing would be made
available on the ICASA website.
[13]
On 14 March 2013 ICASA’s special
committee held a public hearing at its offices in Sandton, Gauteng.
The proceedings were
transcribed and formed part of the review
record. It was chaired by one of the two counsellors forming the
special committee and
it first heard short presentations from
representatives of approximately ten organisations who had submitted
written representations,
one of which was DFL.
[14]
The Film and Publications Board (‘
the
FPB’
), which had also filed
written representations, sought to make an oral presentation.
However, in the face of an objection from
ODM, which had not received
its written representations timeously, the chair ruled that the FPB
would not be permitted to make
an oral presentation.
[15]
The chair advised that each of the
representatives of the ten organisations would be allowed 15 minutes
to make their presentation
but 5 minutes thereof would be reserved
for questions.
[16]
After all these presentations were heard
ODM presented its case. It comprised presentations from two senior
managers, a brief input
from a representative of Playboy TV, the
producer of the material intended for broadcast, and a presentation
by counsel retained
on ODM’s behalf on the legal framework
within which the application fell to be dealt.
[17]
The final part of ODM’s presentation
featured the views of a Dr Wasserman who described herself as a
clinical couples and
sex therapist and a clinical sexologist in
private practice. She dealt, broadly speaking, with current research
concerning the
effects of pornography on viewers.
[18]
On 19 April 2013 the special committee made
its detailed submission to ICASA. In the recommendation section it
stated:
‘
9.1.
Discussions at the public hearings crystallised two important aspects
of the application:
·
whether there is a law of general
application that can be held to limit On Digital Media’s right
to freedom of expression
in terms of section 16 of the Constitution.
·
whether there is a direct relationship
between the dissemination of adult pornography and gender-based
violence.
9.2
The committee accepts that there is no law of general application
prohibiting the production
and distribution of adult pornography in
the Republic. Only the production and distribution of child
pornography is expressly prohibited
by law.
9.3
The committee accepts that there is no evidence to demonstrate that
pornography is a direct
cause of gender-based violence in the
Republic …
9.4
Accordingly the committee is of the view that there is no basis in
law or research evidence
to refuse On Digital Media’s
application for channel authorisation of three adult pornographic
channels.’
[19]
The committee concluded its recommendations
as follows:
‘
9.10
The committee is of the considered view that the Authority should
authorise the applicant to broadcast three
adult pornographic
channels, Playboy TV, Desire TV and Private Spice within the
watershed period and with the security measures
outlined in the
application to safeguard children’s rights.’
[20]
On 23 April 2013 ICASA announced its
decision to authorise ODM to broadcast the three channels subject to
the condition that this
could only be within the watershed period and
that certain security measures, namely, a double pin (personal
identification number)
code and the availability of the channels only
as a separate subscription from ODM’s main subscription
service, were to be
implemented at all times.
[21]
On 24 July 2013 ICASA furnished its written
reasons for the decision authorising the channels.
[22]
On 4 December 2013 ODM applied for
authorisation to rebrand the Private Spice channel to the Brazzers TV
channel. On 1 January 2014
it effected this rebranding and received
final authorisation to do so from ICASA on 11 March 2014.
GROUNDS OF
REVIEW
[23]
The applicants relied on both procedural
and substantive grounds of review.
[24]
JASA’s grounds of review were, in the
first instance, the argument based on an alleged ‘
rewiring
of the brain’
to which the
viewers of the channels would be subjected to and, secondly, an
alleged error of law on the part of ICASA in finding
that there was
no law of general application which prohibited the distribution of
pornography with the result that, as ICASA perceived
the situation,
it lacked any legal basis to refuse ODM’s application. JASA’s
third ground related to the alleged inadequacy
of the security
measures upon which the authorisation was made conditional, most
notably the double pin code. A further ground
was that ICASA had
erred in concluding that there was no evidence to demonstrate that
pornography was a direct cause of gender-based
violence. Fifthly, it
was contended that ICASA ought not to have permitted the broadcasting
of pornography from 20h00 but only
from substantially later at night.
Sixthly, in reaching its decision ICASA ignored evidence of the
addictive nature of pornography.
A seventh and final ground of review
was that regulatory breaches by Playboy TV UK/Benelux Ltd in the
United Kingdom, ODM’s
partner and the supplier of material for
the three channels, were not disclosed by ODM and, despite being
discovered by ICASA,
were ignored by it. At a later stage JASA sought
to introduce a further ground of review, namely, the alleged
discrepancy between
the actual and the proclaimed content of the
channels.
[25]
As far as DFL was concerned, one of its
principal grounds of review was that the administrative action taken
by ICASA had not met
the requirements of procedurally fair action. In
this regard it took issue with and criticised the limited opportunity
afforded
to the public to make meaningful representations, the
inadequate notice of the public hearing, the treatment of the FPB at
the
public hearing, the allegedly defective appointment and
composition of the special committee, and the bias allegedly
displayed
by ICASA inter alia through treating objectors differently
to ODM and the manner in which it conducted the public hearing.
[26]
As far as substantive grounds of review
were concerned, DFL in essence challenged ICASA’s decision on
the grounds that it
was irrational. As an adjunct to this ground DFL
contended that ICASA had failed to interrogate, investigate or make
findings on
the security measures applicable to the broadcasting of
the three channels, and the watershed period in which such broadcast
would
be permitted. As a further ground it contended that ICASA,
through the special committee, had failed to investigate or consider

regulatory breaches by Playboy TV in the United Kingdom and had
failed to properly scrutinise the content of the proposed channels.

Finally, it also relied on ICASA’s alleged error of law in
accepting that in the absence of a law of general application

prohibiting the broadcast of pornography it could not refuse the
application. Its case was further that the applicable legislation

could justify a decision by ICASA refusing the application.
[27]
CFJ’s main ground of review was that
the administrative action taken by ICASA was procedurally unfair
regard being had to
alleged inadequate notice to the public, limited
availability of relevant documentation, ICASA’s failure to
appoint experts
and inspectors, its failure to scrutinise intended
broadcast material, the limited ambit of the public hearing, the
unfair manner
in which the public hearing was conducted and
inadequate record keeping by ICASA.
[28]
CFJ also relied on a variety of alleged
errors of law which materially influenced ICASA in its decision,
namely, the findings that
there was no law of general application on
the basis of which it could refuse the application and its
misapprehension of the laws
relating to freedom of expression, the
protection of children and various enactments relating to
broadcasters. Finally, CFJ contended
that in the light of the harm
which pornography causes to the dignity of persons affected thereby,
ICASA’s decision could
not be justified.
THE APPROACH
TO REVIEW
[29]
It is appropriate firstly to note the
limits of the power of review which the courts enjoy over
administrative action and the distinction
to be drawn between reviews
and appeals. This distinction finds expression in the ‘
deference’
that is shown by the courts to such administrative action.
[30]
The
need for such an approach was explained by the Constitutional Court
in
Bato
Star
[1]
where it held, at para’s [46] and [48], as follows:
‘
[46]
… The use of the word 'deference' may give rise to
misunderstanding
as to the true function of a review Court. This
can be avoided if it is realised that the need for Courts to treat
decision-makers
with appropriate deference or respect flows not
from judicial courtesy or etiquette but from the fundamental
constitutional
principle of the separation of powers itself…
[48]
In treating the decisions of administrative agencies with the
appropriate
respect, a Court is recognising the proper role of the
Executive within the Constitution. In doing so a Court should be
careful
not to attribute to itself superior wisdom in relation
to matters entrusted to other branches of government. A Court
should
thus give due weight to findings of fact and policy decisions
made by those with special expertise and experience in the field.
The
extent to which a Court should give weight to these considerations
will depend upon the character of the decision itself, as
well as on
the identity of the decision-maker. A decision that requires an
equilibrium to be struck between a range of competing
interests or
considerations and which is to be taken by a person or institution
with specific expertise in that area must be shown
respect by the
Courts. Often a power will identify a goal to be achieved, but
will not dictate which route should be followed
to achieve that goal.
In such circumstances a Court should pay due respect to the route
selected by the decision-maker.’
[31]
The
distinction between a review and an appeal was recently highlighted
in
MEC
v Clairison’s CC
[2]
where the Court stated as follows:
‘
It
bears repeating that a review is not concerned with the correctness
of a decision made by a functionary, but with whether he
performed
the function with which he was entrusted. When the law entrusts a
functionary with a discretion it means just that: the
law gives
recognition to the evaluation made by the functionary to whom the
discretion is entrusted, and it is not open to a court
to
second-guess his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed the function
with which
he was entrusted.
’
[3]
[32]
These observations are relevant to the
present matter since much of the contents of the affidavits and
annexures filed, as well
as the argument, was directed at persuading
the Court that ICASA had arrived at an incorrect decision on the
merits of pornography
being broadcast at all. In the nature of the
decision which ICASA had to take, where there was a proliferation of
contested evidence
on the effects on adults and children of viewing
pornography, most, if not all, of this material and the argument
directed at the
Court was misplaced.
THE
LEGISLATIVE FRAMEWORK
[33]
It is appropriate also to
set out the legislative and regulatory framework within which ICASA
is required to exercise its functions
and to take the administrative
decision presently under challenge.
[34]
The starting point is the Constitution
which provides in section 192 for national legislation to 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’
.
[35]
Rights
enshrined in the Bill of Rights which have a bearing on this matter
are every person’s right to ‘
inherent
dignity and the right to have their dignity respected and
protected
[4]
’,
the
right to privacy
[5]
, the right
to freedom of expression
[6]
which includes ‘
freedom
of the press and other media, freedom to receive or impart
information or ideas and freedom of artistic creativity’
and
the rights of children
[7]
which
include the right to ‘
be
protected from maltreatment, neglect, abuse or degradation’
and
the provisions that ‘
a
child’s best interests are of paramount importance in every
matter concerning the child.’
[36]
Finally, there are the provisions of
section 36 of the Constitution which prescribe that the aforesaid
rights may be limited ‘
only in
terms of law of general application to the extent that the limitation
is reasonable and justifiable in an open and democratic
society based
on human dignity, equality and freedom …’
Section 36(2) provides that no law may limit any right entrenched in
the Bill of Rights save as provided above and taking into
account all
relevant factors including certain listed factors.
[37]
The ICASA Act provides in section 2 that
the objects of ICASA inter alia are to:
1.
regulate broadcasting in the public
interest and to ensure fairness and a diversity of views broadly
representing South African
society, as required by section 192 of the
Constitution;
2.
regulate electronic communications in the
public interest;
3.
achieve the objects contemplated in the
underlying statutes.
[38]
In terms of section 4(1)(a) of the ICASA
Act it must exercise the powers and perform the duties conferred and
imposed upon it by
the Act, the underlying statutes and by any other
law. Those underlying statutes include the
Broadcasting Act, No 4 of
1999
and the Electronic Communications Act, No 36 of 2005 (‘
the
ECA’
). The ECA provides in
section 54 that ICASA must, ‘
prescribe
regulations setting out a code of conduct for broadcasting service
licensees’
.
[39]
The object of the
Broadcasting Act is
to
establish and develop a broadcasting policy in the Republic in the
public interest inter alia to ‘
contribute
to democracy, development of society, gender equality, nation
building, provision of education and strengthening the
spiritual and
moral fibre of society’
and to
‘
safeguard, enrich and strengthen
the cultural, political, social and economic fabric of South Africa’
.
[40]
On 31 January 2006 the Subscription
Broadcasting Service Regulations were published in the Government
Gazette. They provide in part
as follows:
‘
3.1
A subscription broadcasting service licensee may not add a channel to
its service unless the Authority,
on application by the licensee, has
authorised the channel  ...
…
3.4
Within 60 days of receipt of an application made in terms of this
regulation, the Authority
shall issue a certificate authorising or
refusing to authorise the channel’
‘
6.
CODE OF CONDUCT
6.1
Subject to the provisions of 6.2, all subscription broadcasting
service licensees must adhere
to a code of conduct for subscription
broadcasting service licensees as prescribed.
6.2
The provisions of 6.1 do not apply to any subscription broadcasting
service licensee if
that licensee is a member of a body which has
proved to the satisfaction of the Authority that its members
subscribe and adhere
to a code of conduct for subscription
broadcasting service licensees enforced by that body by means of its
own disciplinary mechanisms
and provided such code and disciplinary
mechanisms are acceptable to the Authority.’
[41]
It is common cause that ODM is a member of
the National Association of Broadcasters (‘
NAB’
),
a signatory to the Broadcasting Complaints Commission of South Africa
(‘
BCCSA’
).
ODM is thus subject to the BCCSA Code of Conduct for subscription
broadcasting service licensees (‘
the
Code’
). In terms of that Code a
licensee may not knowingly broadcast material which, judged within
context, contains a scene or scenes,
simulated or real, of child
pornography, bestiality, incest or rape, explicit violent sexual
conduct or explicit sexual conduct
which violates the right to human
dignity of any person or which degrades a person and which
constitutes incitement to cause harm.
[42]
This constraint, deriving from
section 54 of the ECA, was the first of at least three constraints on
content applicable to ODM’s
proposed channels derived either
from legislation or instruments created pursuant to legislation. The
second such constraint is
section 19 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, No 32 of 2007 (‘
The
Sexual Offences Act’
) which
provides that:
‘
A
person (‘A’) who unlawfully and intentionally exposes or
displays or causes the exposure or display of –
a)
Any image, publication, depiction,
description or sequence of … pornography
…
to
a child (‘B’), with or without the consent of B, is
guilty of the offence of exposing or displaying or causing the

exposure or display of ... pornography to a child.’
[43]
A similar further legislative restraint on
the broadcast of pornography to minors is found in section 24A(4) of
the Films and Publications
Act, No 65 of 1996 (‘the FPA’)
which provides:
‘
Any
person who knowingly distributes or exhibits any film…
a)
classified as ‘X18; or
b)
which contains depictions,
descriptions or scenes of explicit sexual conduct, unless such film …
is a bona fide documentary
or is of scientific, literally or artistic
merit or is on a matter of public interest,
to a person under
the age of 18 years, shall be guilty of an offence and liable, upon
conviction, to a fine or imprisonment for
a period not exceeding 5
years or to both a fine and such imprisonment’.
[44]
The legal framework was central to ODM’s
argument that, in considering ICASA’s decision, deference had
to be paid not
only to the decision-maker’s expertise and
evaluation of the channel authorisation application but also to the
law, statutory
and otherwise, dealing with the distribution and
broadcasting of pornography, both to adults and children. An
important pillar
of ODM’s case was the absence from that legal
framework of a law of general application which permitted ICASA to
limit ODM’s
constitutional right to freedom of expression by
broadcasting adult pornography to adults.
[45]
As far as the question of procedural
fairness is concerned the following statutory prescriptions are
relevant.
[46]
Section 4B of the ICASA Act provides as
follows:
‘
1.
The Authority may conduct an inquiry into any matter with regard to –
a.
the achievement of the objects of
this Act or the underlying statutes;
…
e.  the
exercise and performance of its powers, functions and duties in terms
of this of Act or the underlying statutes.
2.
The Authority must, in the Gazette,
give notice of its intention to conduct an inquiry and such notice
must indicate the purpose
of the inquiry and invite interested
persons to –
a.
submit written representations on or
before a date specified in the notice, which date may not be less
than 45 days from the date
of the publication of the notice, and
b.
indicate in  their written
representations whether they require an opportunity to make oral
representations to the Authority.
3.
Written representations made
pursuant to a notice referred to in sub-section 2 must, subject to
sub-section 5, be open to inspection
by the public at the premises
and during the normal office hours of the Authority.
4.
The Authority must, when so
requested by any person upon payment of the prescribed fee, provide
such person with a copy of or extract
from any representation made.
5.
…
6.
…
a.
The Authority must advise persons
contemplated in section 2(b) of the place where and time when oral
written representations may
be made;
b.
Oral representations must, subject
to section 4C, be open to the public
7.
The period provided for in
sub-section 2(a) may be extended if an inquiry is of a complex nature
or where substantial research or
analysis is required by any
interested person.’
[47]
Although none of the parties drew the
Court’s attention to the above provisions, they clearly
prescribe the standards against
which the procedural fairness of the
inquiry instituted by ICASA must be judged. This is confirmed by
section 4 of The Promotion
of Administrative Justice Act, No 3 of
2000 (‘
PAJA’
)
which deals with administrative action affecting the public and
provides inter alia as follows:
‘
1.
In cases where an administrative
action materially and adversely effects the rights of the
public, an
administrator, in order to give effect to the right to procedurally
fair administrative action, must decide whether
–
a.
to hold a public inquiry in terms of
sub section (2);
b.
to follow a notice and comment
procedure in terms of sub section (3);
c.
to follow the procedures in both sub
sections (2) and (3);
d.
where the administrator is
empowered by any empowering provision to follow a procedure which is
fair but different, to follow that
procedure
…
[my underlining]
e.
to follow another appropriate
procedure which gives effect to section 3
2.
…
3.
…
4.
…
a.
If it reasonable and justifiable in
the circumstances, an administrator may depart from the requirements
referred to in sub-sections
1(a) – (e)…;
b.
In determining whether a departure
as contemplated in para (a) is reasonable and justifiable, an
administrator must take into account
all relevant factors, including
–
i.
the objects of the empowering
provision;
ii.
the nature and purpose of the need
to take the administrative action;
iii.
the likely effect of the
administrative action;
iv.
the urgency of taking the
administrative action or the urgency of the matter; and
v.
the need to promote an efficient
administration and good governance’.
PROCEDURAL
GROUNDS OF REVIEW
[48]
I turn now to consider the procedural
grounds of review without attributing such grounds to any particular
applicant. The first
challenge was to the timing and contents of the
notice published by ICASA in terms of the ECA in the Government
Gazette on 19 December
2012 advising that it had received ODM’s
application and inviting interested parties to make representations
in response.
It was contended that the information given therein was
completely insufficient, that making ODM’s application
available
only at ICASA’s library in Johannesburg was unfair
and that the timing, six days before Christmas, was similarly unfair.
[49]
There can be no doubt that, for want of
clarity and sufficient information, the notice fell far short of
adequate. It referred to
an application by ODM for the authorisation
of three video channels without indicating in any way that they would
be used to broadcast
pornography. This was less than a year after
ICASA had held a public hearing in January 2012 to deal with ODM’s
earlier application
to broadcast pornography on a 24-hour per day
basis and pursuant to which it had received a range of written
representation from
members of the public and interested bodies.
ICASA must have realised that the renewed application to broadcast
pornographic material
on three channels would excite considerable
public interest and, in many instances, opposition. Its failure to
advise of this material
fact in the notice is inexplicable.
[50]
In its first notice ICASA did not express
its intention to conduct an inquiry. Nor did it do so in its second
notice, published
in the Gazette on 1 March 2013, which only advised
of the date of a public hearing. In terms of section 4B of the ICASA
Act ICASA’s
first notice should have given notice of its
intention to conduct an inquiry arising out of ODM’s
application, indicated
its purpose, invited interested persons to
make written representations and indicate therein whether they
required an opportunity
to make oral representations to the
Authority. Although ICASA’s notice invited interested parties
to lodge written representations
it did not fulfil the remaining
requirements. Furthermore, ICASA truncated the period of 45 days for
making representations provided
for in section 4B to a period of 21
days. The initial notice was overall, in my view, grossly inadequate.
[51]
I do not consider that the timing of the
notice, six days before Christmas, is necessarily sinister or
impacted on the fairness
of the process. It is also somewhat
surprising, given the obvious expected public interest in the matter,
that ICASA did not see
fit to publish its notices in the press as
well but this was not a requirement in terms of section 4B.
Fortunately for ICASA, the
press did become aware of ODM’s
application and publicised it. It would seem that it was owing to
this publicity that the
flood of objections and public
representations poured in to ICASA during January 2013.
[52]
Given the nature of ODM’s application
and ICASA’s recent refusal of its 2011 application, ICASA ought
to have anticipated
the need for a public hearing at the earliest
stage and ought, in its first notice, to have detailed not only the
nature of ODM’s
application, namely, authorisation for three
channels broadcasting pornography, but also the precise nature of
inquiry that ICASA
intended to conduct, plus all related procedural
information. This it did not do.
[53]
The second focus of the challenge to
procedural fairness was that the public were not afforded a
meaningful opportunity to make
representations. Aspects of this
challenge are that publication in the Government Gazette alone was
inadequate and its timing,
together with the truncated 21 day period
within which to submit representations, was unfair. Another aspect
criticised was ICASA
making ODM’s written application available
only at its library in Johannesburg and not, for example, on its
website, or at
other major centres throughout the country. These
were, in my view, further shortcomings affecting the fairness of the
administrative
process since clearly it was necessary for interested
parties to gain access to ODM’s application in order to
appreciate
in the first place that it sought authorisation for the
broadcasting of pornography. No explanation was provided why the
application
could not have been made available on ICASA’s
website.
[54]
A third point of attack was the alleged
defective nature of the notice of public hearing. Notwithstanding the
deadlines established
earlier, this notice was only published in the
Gazette by ICASA on 1 March 2013 and still did not apprise the public
that the application
was for authorisation to broadcast pornography
on the three channels. It gave two weeks’ notice of the hearing
to be held
in Gauteng and, ironically, stated that the programme for
the hearings was available on the ICASA website.
[55]
By this time ICASA has received more than
500 representations and it is a little difficult to understand why it
set aside only one
day for a public hearing in one centre,
particularly since it had followed a similar procedure in 2011 after
it had received only
15 objections to ODM’s initial
application. The notice also did not invite oral submissions from
interested parties as also
required by section 4B(2)(b) of the ICASA
Act. Again ICASA did not use the press to advertise the hearing.
[56]
A further procedural challenge related to
ICASA’s decisions concerning the appointment and composition of
the special committee.
This decision was taken on 31 March by the
Council of ICASA in terms of section 17 of the ICASA Act when it
established the special
committee consisting of two Councillors to
‘
consider, conduct public hearings
and provide a recommendation to Council’
on
ODM’s application.
[57]
In terms of section 17 of the ICASA Act,
the special committee had to consist of one or more Councillors…
and ‘
such additional members as
the Council may determine.’
A
requirement for such additional members was that ‘
their
expertise, qualifications and experience’
qualified
them to serve on the relevant committee.
[58]
ICASA’s failure to appoint
independent experts to the committee was criticised by the applicants
on the grounds of the considerable
public interest in the application
and, as it was put, the need to ‘
investigate,
interrogate and properly understand and appreciate all relevant
information issues including the nature of the pornography,
its
impact on society, the medical submissions and the legal argument’
.
However, neither section 4(2) of PAJA, the provisions of the ICASA
Act nor the resolution which ICASA passed obliged it to appoint

independent experts. Section 4(3)(m) read with 4(4)(a)(ii) and 17 of
the ICASA Act, do not, in my view, oblige ICASA to appoint

independent members to a special committee. The relevant section
reads:
‘
[17]
Standing and special committees
1.
The Council may establish standing
committees or special committees for such purposes as the Council may
deem necessary with a view
to assisting it in the effective exercise
and performance of its powers and duties;
2.
Each committee established in terms
of this section must consist of:
a.
one or more Councillors or any member of staff designated by the
Council; and
b.
such additional members as the Council may determine.’
[59]
In my view the power referred to in section
17(2)(b) is permissive in nature. The terms of the resolution passed
by the Council,
notably clauses 2.4.10 and 2.4.11, make it clear that
it lay within the discretion of the special committee whether to
appoint
independent experts or inspectors to assist it in the
performance of its functions. Nor can I find that this discretion was
improperly
exercised.
[60]
DFL made the further submission that,
judging from the manner in which the chairperson conducted the
inquiry, it was clear that
ICASA had not appointed suitably qualified
persons to the special committee and it cited various shortcomings in
this regard. CFJ
argued, similarly, that it would have been useful
had the special committee appointed external experts or inspectors to
assist
it with the performance of its functions.
[61]
These submissions, however, beg the
question as to whether the two Council members of the special
committee conducted the inquiry
fairly and in accordance with the
applicable legislation.
[62]
A further challenge to the procedural
fairness of the process was that ICASA’s record keeping had
been inadequate. This allegation
related to the fact that although
ICASA had recorded receiving 569 written representations, those made
by Mr Ryan Smit of CFJ were
neither acknowledged nor recorded,
undoubtedly due to an error on the part of ICASA.
[63]
I now deal, cumulatively, with all these
aspects of the applicants’ challenges to procedural fairness.
[64]
Dealing with public inquiries in The
Promotion of Administrative Justice Act – a Commentary 2
nd
Edition, Currie states as follows [at pages 128 – 129]:
‘
The
inquiry procedure consists in essence of the publication of
information about the proposed administrative action and an
invitation
to make submissions on these proposals to the person or
panel conducting the inquiry. An inquiry must also involve a public
hearing
(or hearings) at which affected members of the public may
attend and have their viewpoints heard…
The Regulations
on Fair Administrative Procedures prescribe the inquiry procedure in
detail. Notice must be published of the inquiry;
the notice must
contain the names of the person or panel appointed to conduct the
inquiry and the terms of reference; it must invite
members of the
public to submit written representations to or requests to appear
before the inquiry; it must contain sufficient
information about the
matter to be investigated to enable the public to submit meaningful
representations and, where appropriate,
a way of obtaining further
information about the subject matter of the inquiry’.
[65]
Dealing with the consequences of
non-compliance with the procedure Currie states [at pages 132 –
133]:
‘
To
insist on strict compliance with the detailed procedural rules in the
PAJA and Regulations would be to elevate form over substance.
The
assessment of compliance with the procedures should therefore
consider whether the steps actually taken by the administrator
were
‘
effective,
measured against the intention of the legislature as ascertained from
the language, scope and purpose of the enactment
as a whole and the
statutory requirements in particular.’
[8]
[66]
Broadly
speaking, the purpose of the notice and hearing procedures is to
ensure that those persons likely to be affected by proposed

administrative action have a reasonable opportunity to make their
views known. Only if there has not been such an opportunity should

the resultant administrative action be considered procedurally
unfair. In
Premier,
Mpumalanga and Another v Executive Committee, Association of State
Aided Schools, Eastern Transvaal
[9]
O’Reagan J stated as follows (at para [41]):
‘
In
determining what constitutes procedural fairness in a given case, a
court should be slow to impose obligations upon government
which
will inhibit its ability to make and implement policy effectively (a
principle well recognised in our common law and that
of other
countries). As a young democracy facing immense challenges of
transformation, we cannot deny the importance of the need
to ensure
the ability of the Executive to act efficiently and promptly.’
[67]
This
point was reinforced by the Supreme Court of Appeal in a different
context when it stated ‘
even
where the formalities required by statute are peremptory it is not
every deviation from the literal prescription that is fatal.
Even in
that event, the question remains whether, in spite of the defects,
the object of the statutory provision has been achieved
.’
[10]
)
[68]
On
behalf of ODM Mr Budlender submitted that only a party who is denied
a hearing may raise a procedural challenge
[11]
pointing out that neither JASA nor CFJ itself (as opposed to one of
its executive members) had made submissions to the special
committee
whilst DFL had made submissions to the special committee and had been
afforded an oral hearing. On the basis of these
facts Mr Budlender
contended that the complaint of a lack of a fair hearing was not
properly before the Court.
[69]
I do not consider, however, that the
argument that there was no fair hearing should be considered on such
a narrow basis. The challenge
by CFJ and DFL to the fairness of the
hearing went further than merely claiming that they were not afforded
any hearing. Both parties
approached this question in a wider context
having regard to how interested members of the public may have been
prejudiced and
raising a number of issues, including the adequacy of
the notice of the hearing, the opportunity given for making
representations
and the truncated nature of the right to make oral
representations, amongst other criticisms.
[70]
Bearing all these observations in mind the
question which must ultimately be asked is whether the public or,
perhaps more accurately,
those with an interest in the question of
whether pornography should be broadcast on television on a
subscription basis, had a
reasonable opportunity to make their views
known. In my view the principal shortcoming in the process was the
inadequacy of the
first notice published by ICASA in the Government
Gazette. However, its deficiencies must be seen in the wider context,
particularly
the fact that by 11 January 2013 considerable press
publicity appears to have been given to ODM’s application. Such
publicity,
judging by the one example thereof, an annexure to CFJ’s
founding papers, drew the link between ODM, its more popular working

name ‘
Top-TV’
and its earlier unsuccessful application in 2011 to broadcast
pornography on a subscription basis.
[71]
On the probabilities it was primarily this
and other press reports which led to the flood of representations
which ICASA received.
It is also significant that whereas ODM’s
2011 application had attracted a total of 15 representations from the
public, at
least 569 were received in 2012. Some parties did
experience difficulty in accessing ODM’s original application
but it is
not clear that this problem was widespread. Further,
although many written representations were received beyond the 21 day
period
initially announced, ICASA decided that all representations
would be considered by it.
[72]
The argument can be made that ICASA should
have made provision for a more extended hearing to accommodate oral
representations from
more members of the public. Similarly, the case
can be made that ICASA should have held more hearings in centres
across the Republic.
However, the decision to hold a one day hearing
in Johannesburg represents an exercise of the special committee’s
discretion
and, in my view, was not one which can be considered
irrational or evidencing bias. Nor is it helpful to approach the
decisions
relating to the hearing on the basis that ICASA could not
have been acting in good faith. That case was simply not made out.
Finally,
as far as poor record-keeping is concerned, ICASA’s
mislaying of Mr Smit’s submissions was unfortunate but, seen in

the wider context, and without any indication that his
representations were so different or powerful that they could have
made
a decisive impact upon the final decision, this defect cannot be
considered as one which alone, or cumulatively, led to material

procedural unfairness.
[73]
On balance, taking all the shortcomings of
the process into account, and leaving aside the bias ground for the
time being, I consider
that the applicants have failed to make out a
case that ICASA’s decision must be set aside on the grounds of
procedural unfairness.
Notwithstanding that the process had
significant defects, most importantly the lack of adequate notice, I
consider that the steps
taken by ICASA, together, crucially, with the
press publicity ODM’s application received, were ultimately
effective in ensuring
that interested parties had a reasonable
opportunity to make their views on the matter known.
BIAS
[74]
On behalf of CFJ it was alleged that the
actions of the special committee and the decision of the Council
reflected bias. It was
submitted that even if there was no actual
bias the impression of bias was created by the manner in which the
hearing was conducted.
[75]
DFL alleged that an indication of bias was
that ICASA treated objectors differently to ODM and accepted ODM’s
submissions
without testing them against opposing submissions. The
complaint was made that DFL’s representative at the hearing, Dr
van
Eeden, was limited to a ten minute presentation and the five
minutes set aside for questions was only utilised by a single
question
from the chairperson of the special committee and one from
the other ICASA Councillor.
[76]
I cannot agree that the Councillors’
interventions were, as DFL’s counsel submitted, intended to
ridicule Dr van Eeden
or to be dismissive of his presentation. Nor
can I conclude, as was urged on this very limited basis, that the
only conclusion
that could be drawn was that the special committee
members failed to understand Dr van Eeden’s submission or the
importance
thereof or dismissed it as being of no consequence to the
inquiry. It must be noted that the question of the linkage between
the
viewing of pornography and sexual violence is both complex and
contentious. This was demonstrated alone by the voluminous material

placed before the Court in this regard, a salient feature of which is
the divide between those who conclude that there is a direct
link and
those who do not. This question is clearly the subject of ongoing
sociological debate and research.
[77]
It was further contended that ICASA’s
bias was manifested in the special committee allocating much greater
time to ODM to
present its case than to the objectors. The latter
were only given a 15 minute slot each. Furthermore, it was contended,
allowing
Dr Wasserman to sum up the proceedings for ODM in
unchallenged evidence was grossly unfair.
[78]
On behalf of ICASA it was contended that
when the hearing started rules of engagement were set out and no
parties present raised
any objection. This is borne out by the
transcript of the hearing. Amongst those rules of engagement were
that ODM would be first
to begin its presentation which it partly
completed. Thereafter approximately nine objectors made presentations
of ten minutes
apiece following which ODM responded and, in the last
session, called Dr Wasserman as its expert witness. The fact that she
would
testify last was made apparent quite early in the proceedings
and no objection was registered to this at the time. Furthermore,

although Dr Wasserman made her presentation last, this did not
necessarily give her an advantage over other presenters or render
her
immune to questioning from the special committee members. Although in
total ODM may have been granted more time to present
its case than
the objectors, the disparity was not so great as to suggest that
ICASA was merely going through the motions of hearing
objectors to
ODM’s application. Given that there were so many objectors and
only one day set aside for the hearing, a rough
parity of time
between the two groupings was perhaps all that could be realistically
hoped for.
[79]
The treatment of the FPB’s attempt to
make an oral presentation was also raised by CFJ and DFL as a
manifestation of ICASA’s
bias. DFL submitted that ICASA’s
refusals to hear the FPB’s submissions and its failure to deal
in its reasons with
the FPB’s written objections was
irrational.
[80]
The
test for bias is whether, seen objectively, the decision-maker is
actually biased or whether a reasonable, objective and informed

person would, on the correct facts, reasonably apprehend that the
decision-maker has not or will not bring an impartial mind to
bear on
the question at hand
[12]
. The
onus of proving bias or a reasonable apprehension of bias lies with
the party alleging bias.
[81]
As the record of the hearing shows, the FPB
had made a written submission to the special committee but had
omitted to deliver a
copy to ODM, as was required by the Government
Gazette notice of 19 December 2013. Nor was the FPB initially
recorded on the agenda
of the public hearing as being scheduled to
make oral representations. When the chairperson announced that the
FPB would be making
a presentation there was an objection from ODM on
the basis inter alia that they had not received the FPB’s
written submissions
timeously. After consideration the chairperson
upheld the objection. She stated that ICASA would still consider the
FPB’s
written submissions but would not afford it an
opportunity to make an oral presentation. It bears noting that the
FPB did not raise
any objection to the ruling at the public hearing
and did not seek to review ICASA’s ultimate decision in this or
in any
other respect.
[82]
The challenge to procedural fairness
alleging bias as manifested by ICASA’s treatment of the FPB
cannot be sustained. Although
there was much to be said for a more
flexible approach on the part of the chairperson of the special
committee, the decision taken
was, in my view, neither irrational nor
indefensible and cannot be relied upon as proof of bias on the part
of the special committee.
Ironically, had the FPB been allowed to
make oral presentation, a serious flaw in the legal reasoning
eventually adopted by ICASA
may have been avoided.
[83]
In my view, taking into account the factors
upon which the applicants relied for bias, either singly or
cumulatively, they have
failed to discharge the onus which they bore
of proving bias or a reasonable apprehension of bias.
ICASA’S
REASONS FOR ITS DECISION
[84]
Before dealing with the substantive grounds
of review it is necessary to consider in some detail ICASA’s
reasons for its decision
to authorise the channels. In them ICASA
first set out the nature of the application by ODM and then the
legislative framework,
most notably Regulation 3 of the Subscription
Broadcasting Services Regulations, 2006 which provides that ICASA
must consider such
an application and ‘
within
60 days of receipt (thereof) … shall issue a certificate
authorising or refusing to authorise the channel’
and
failing which, ‘
the channel shall
be regarded as having been authorised.’
It
set out the terms of section 54 of the ECA which provide for ICASA to
establish a code of conduct for broadcasting service licensees
but
exempts from that code any licensee which is a member of a body which
has proved to the satisfaction of ICASA that its members
subscribe to
and adhere to a code of conduct enforced by that body provided such
code and its disciplinary mechanisms are acceptable
to ICASA.
[85]
It is common cause that ODM, as a member of
NAB is bound by the BCCSA code of conduct, the relevant clauses of
which are 9, 12 and
13. Clause 9 prohibits, insofar as is relevant,
the broadcasting of material containing scenes of child pornography,
rape, explicit
violent sexual conduct or explicit sexual conduct
which violates the rights to human dignity of any person or which
degrades a
person  and which constitutes incitement to cause
harm. Clause 12 of the Code stipulates that a broadcasting service
licensee
must avoid broadcasting programming material which is
unsuitable for children and/or contains nudity, explicit sexual
conduct before
the watershed period. This is defined as the period
between 20h00 and 05h00. Clause 13 states that a licensee must
attempt to ensure
that the more the programming material is
unsuitable for children the later it is broadcast after the
commencement of the watershed
period.
[86]
ICASA’s reasons then set out the
provisions of the freedom of expression clause in the Bill of Rights,
section 16, and noted
that section 36 provides that such a right may
be limited only ‘
in terms of law
of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic
society based on
human dignity, equality and freedom ….’
ICASA
referred to the public hearing which was held and stated that flowing
therefrom it became evident that the two questions paramount
in
deciding the channel authorisation application were whether there was
a law of general application limiting ODM’s constitutional

right to freedom of expression and whether there was a direct
relationship between the dissemination of adult content and
gender-based
violence. It proceeded with an analysis in which it
dealt with the applicable legislation, the causal link between
pornography
and gender-based violence and security measures
pertaining to the proposed channels.
[87]
Dealing with legislation it noted that none
of the applicable statutes had provisions prohibiting the
broadcasting of adult pornography
and that it was only the production
and distribution of child pornography which is expressly prohibited
by law in South Africa.
It further noted that in terms of section 192
of the Constitution, ICASA was required to regulate broadcasting in
the public interest
and to ensure fairness and a diversity of views
broadly representing South African society. This, it stated, included
also the
views of the minority in a democratic society. It pointed
out that, as a broadcaster bound by the provisions of the BCCSA, ODM
was subject to clauses 9 – 13 of the Code which prohibited the
broadcast of material including scenes of child pornography
and
sexual conduct involving violence or violating the right to human
dignity. It noted that the material which ODM proposed to
broadcast
would only be X-rated but since the BCCSA’s code did not deal
with the category of classifications which are permissible
for
broadcasting, Regulation 9 of the ICASA code of conduct, which
prohibited the broadcasting of any film which has an XX (and
above)
classification in terms of the
Films and Publications Act was
applicable.
[88]
ICASA appeared to accept that since the
proposed material for the channels was packaged outside the country
ODM was not obliged
to submit their content for classification. It
accepted an undertaking by ODM that their content would not be
violent and would
comply with the BCCSA Code and the provisions of
the
Films and Publications Act.
[89
]
ICASA then dealt with the causal link
between pornography and gender-based violence referring to some of
the representations which
had been made to it prior to and during the
public hearing. It expressed the ‘
considered
view’
that there was no evidence
to demonstrate that pornography was a direct cause of gender-based
violence in the Republic. It referred
to research that analysed the
negative impact that pornography might have on children and stated,
somewhat curiously, that ‘
it is
the Authority’s view that as much as the results of the
research might be true, in the absence of the law of general

application that prohibits the distribution of pornography, the
Authority would have no legal basis under the Constitution, ICASA
Act
and underlying statutes to refuse the applicant’s application.’
[90]
Finally, under its analysis, ICASA dealt
with the proposed security measures and pointed out that parents also
have a role in, and
responsibility for, the parenting of their
children to ensure that they do not bypass such measures in order to
view adult pornography.
It noted that only adults would be permitted
to subscribe to the proposed channels upon proof of identity and
further verification
with regard to banking details. It concluded
that ODM had demonstrated sufficient security measures to safeguard
against unnecessary
exposure as required by the Code.
[91]
ICASA then set out its decision commencing
with the following key paragraph:
‘
After
due consideration, the Authority accepts that there is no law of
general application prohibiting the production and distribution
of
adult pornography in the Republic of South Africa. Only the
production and distribution of child pornography is expressly
prohibited
by law. A prohibition for the authorisation of channels as
applied for would be an unlawful limitation of applicant and its
prospective
customers’ rights to freedom of expression as there
is no law prohibiting the broadcast of adult content material.’
[92]
ICASA went on to repeat its conclusion that
there was no conclusive evidence to demonstrate that pornography was
a direct cause
of gender-based violence in South Africa. It concluded
‘
accordingly the Authority is of
the view that there is no basis in law or research evidence to refuse
the applicant’s application
for authorisation of three adult
pornographic channels.’
It added
that objectors had two forms of recourse, either to approach
Parliament to formulate a law of general application to prohibit
the
distribution of adult pornography or to monitor ODM’s
broadcasts to ascertain whether these complied with the BCCSA Code.
[93]
ICASA’s ultimate decision was to
authorise ODM to broadcast three pornographic channels subject to
them being broadcast within
the watershed period only, with the
security measures (double pin code) to be implemented at all times
and the channels to be available
to subscribers as a separate
subscription from the main ODM’s subscription service.
ERROR OF LAW /
FAILING TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS
[94]
One of the main substantive review grounds
advanced by the applicants related to ICASA’s finding that ‘
in
the absence of a law of general application that prohibits the
distribution of pornography, (ICASA) would have no legal basis
under
the Constitution, ICASA Act and the underlying statues to refuse
(ODM’s) application.’
In
general the applicants contended that ICASA committed an error of law
in accepting ODM’s submission that it only had authority
to
refuse the application if the broadcasting of pornography was
specifically prohibited by statute and, in any event, that there
was
no law of general application which permitted it to refuse the
application. JASA contended further that ICASA’s understanding

of its role, namely, that, in the absence of a law of general
application, it had no discretion to refuse to authorise the channels

was fundamentally flawed since in that case ICASA’s function in
such instances would boil down to a mere mechanistic determination
of
whether the proposed broadcasting of the channels was prohibited by
law or not.
[95]
It was submitted instead that ICASA enjoyed
a full discretion in terms of section 3.4 of the Subscription
Broadcasting Services
Regulations of 2006 to authorise or refuse to
authorise a channel. It was further submitted that ICASA should have
utilised section
28 of the Constitution which enshrines the rights of
children as further authority to limit ODM’s right to freedom
of expression
as well as section 192 of the Constitution. A further
legislative measure which could or should have been employed by the
ICASA
was section 4(4) of the Broadcasting Act.
[96]
JASA submitted that the fact that the
discretion to limit the right to freedom of expression was found in
abstract and general rules
was no bar to ICASA refusing to authorise
the channels being broadcast notwithstanding the right to freedom of
expression. In conclusion
it submitted that ICASA’s failure to
appreciate the meaning and effect of the limitation clause in the
circumstances of this
matter was a reviewable error and for that
reason alone its decision fell to be set aside.
[97]
DFL similarly relied on a material error of
law as a substantive ground of review. It contended that ICASA’s
acceptance of
ODM’s legal argument had blinded it to its
statutory mandate in relation to the function which it was required
to perform.
DFL likewise relied on section 192 of the Constitution
and various rights enshrined in the Bill of Rights which were in
competition
with the right to freedom of expression. It also placed
reliance on the provisions of the FPA, the Sexual Offences Act and
section 2(a)
of the
Broadcasting Act, No 4 of 1999
as well as the
Regulations, read together with the ECA. It submitted, in conclusion,
that the application of one or more of the
aforementioned laws,
properly interpreted, did not render ICASA’s mandate to
function in the public interest devoid of a
discretion to refuse
ODM’s application. It submitted further that this discretion
itself amounted to a law of general application
as contemplated by
section 36(1) of the Constitution authorising ICASA to limit the
right to freedom of expression generally.
[98]
CFJ advanced a similar ground of review,
relying particularly on the right to dignity as a counter-weight to
an unlimited right
to freedom of expression. It made the point that
although pornography was treated by the courts as enjoying
constitutional protection,
it had relatively little constitutional
value and was easily outweighed by the need to protect the rights of
vulnerable groups
such as children and women.
[99]
Section
16 of the Constitution, dealing with the right to freedom of
expression, distinguishes between protected speech (section
16(1))
and non-protected speech (section 16(2)). In
Print
Media
[13]
the Constitutional Court held that the expression of sexual conduct
is protected speech under section 16(1) of the Constitution.
It
follows then that such expression may only be curtailed by the
limitations clause in 36 of the Constitution, the first requirement

of which is that any limitation may only derive from ‘
law
of general application’
to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality
and
freedom and taking into account all relevant factors.
[100]
In
Constitutional
Law of South Africa, 2
nd
Edition, Vol 2
[14]
Woolman et al comment as follows on the requirement that only ‘
law
of general application’
may limit fundamental constitutional rights in the Bill of Rights:
‘
When
determining whether a type of law – and any token of such a
type – qualifies as law of general application it is
important
to remember that this threshold requirement is designed to promote
two primary ends:
(1) to give
effect to the rule of law;
(2) to filter out
bills of attainder.
To
give effect to the rule of law, a law of general application must
possess four formal attributes. First, the law must ensure
parity of
treatment in two respects: it must treat similarly situated persons
alike; and it must impose the same penalties on the
governed and the
governors, and accord them the same privileges. Second, the rule of
law – as opposed to the rule of man
– requires that those
who enforce the law – the executive or the judiciary – do
so in terms of a discernible
standard. Our rule of law culture sets
its face against the arbitrary exercise of State power. Third, the
law must be precise enough
to enable individuals to conform their
conduct to its dictates. Laws may not grant officials largely
unfettered discretion to use
their powers as they wish, nor may laws
be so vaguely worded as to lead reasonable people to differ
fundamentally over their extension.
Fourth, a commitment to the
non-arbitrary exercise of power entails that the law must be
accessible to the citizenry. Law must
be publicly promulgated and
available ex ante in order to avoid the appearance that its
application and its execution are selective.
Finally, as we noted
above, the phrase ‘law of general application’ is meant
to prevent any attempt at justification
for bills of attainder. Bills
of attainder are laws that pick out specific individuals or easily
ascertainable members of a group
for punishment without judicial
trial.’
[101]
JASA
argued in effect that the ‘
law
of general application’
requirement is met by the exercise of the discretion afforded to
ICASA in terms of legislation. However, it offered only academic

authority for this proposition which itself is equivocal. In
Currie
and De Waal
[15]
the authors state:
‘
It
is possible for a law to authorise an administrator to exercise a
discretionary power that has the effect of limiting rights.
However,
an empowering law will lack the quality of general application if it
simply grants an administrator a wide and unconstrained
discretion to
limit rights.’
[102]
JASA also relied upon Regulation 3.4 of the
SBS Regulations. However, that clause, which provides simply that
ICASA may refuse or
grant a channel authorisation application, is,
standing alone, also a wide and unconstrained discretion to limit
rights without
any guiding principles.
[103]
Insofar as the applicants seek to rely on
section 192 of the Constitution, it too does not appear to meet the
requirements of a
‘
law of general
application’
. Section 192
provides that ‘
national
legislation must establish an independent authority to regulate
broadcasting in the public interest, and to ensure fairness
and a
diversity of views broadly representing South African society
.’
It would be a strained interpretation to find that this confers any
powers upon ICASA let alone a power to limit constitutional
rights.
Section 4
of the
Broadcasting Act provided
that one of its objects
was the establishment and development of a broadcasting policy in the
Republic in the public interest and
for that purpose to contribute
towards a range of values including gender equality and strengthening
the spiritual moral fibre
of society but it was repealed by the
enactment of the ECA.
[104]
ODM’s counsel described the
interpretation which the applicants sought to place on
Regulation 3.4
as affording ICASA a ‘
freewheeling
discretion’
and submitted that
this was untenable. The argument proceeded that it would require the
clearest language in the SBS Regulations
before a Court could
conclude that a proper construction was to confer such wide powers on
ICASA. Further, an interpretation of
the regulations which did not
limit fundamental rights was to be preferred, in accordance with
constitutional principles. Counsel
for ODM ultimately contended that,
at most, Regulation 3.4 conferred a limited power on ICASA to ensure
that any proposed channel
would not be in breach of the law or the
BCCSA Code before it was broadcast.
[105]
It
was further contended if such a power were to be given to ICASA it
would be essential that it be subjected to specified criteria
laid
down by Parliament which in this case were absent. Of relevance in
this regard is the decision in
Dawood
v Minister of Home Affairs
[16]
were the Court held that it was not permissible to afford officials a
discretion which could result in limitations of fundamental
rights
without providing any guidance on this score.
[106]
In my view, however, an interpretation of
ICASA’s discretionary power limiting its role to a mere
mechanistic determination
of whether any channel authorisation
application was legally compliant or not, is too narrow. On such an
interpretation it is difficult
to see the point of an inquiry, a
public hearing or indeed soliciting the views of the public at all.
It is significant, furthermore,
that ICASA itself did not see its
discretion as being such a narrow one. In 2012 it refused ODM’s
earlier similar application
notwithstanding that the same legal
framework applied. Dealing with ODM’s second application it did
not limit itself to the
question of legal compliance but investigated
a number of issues including the question of whether there was a link
between pornography
and gender violence.
[107]
Furthermore, the ambit of an administrative
agency’s discretion is not always narrowly circumscribed. In
Dawood’s
case O Reagan J, speaking on behalf the Court stated in this regard
(at para [53]):
‘
[53]
Discretion plays a crucial role in any legal system. It permits
abstract and general rules to be applied to specific and particular

circumstances in a fair manner. The scope of discretionary powers may
vary. At times they will be broad, particularly where the
factors
relevant to a decision are so numerous and varied that it is
inappropriate or impossible for the Legislature to identify
them in
advance. Discretionary powers may also be broadly formulated where
the factors relevant to the exercise of the discretionary
power are
indisputably clear. A further situation may arise where the
decision-maker is possessed of expertise relevant to the
decisions to
be made.’
[108]
Ideally,
the guidelines applicable to program content should be clear as
possible since they impact upon the right to freedom of
expression
which is so frequently a much contested area, not least where it
concerns sexual conduct. The need for clear guidelines
was
highlighted in
Case
v Minister of Safety and Security
[17]
where Mokgoro J held as follows:
‘
One
need not go so far as to accept the notion of a preference for free
expression over other rights, to appreciate the danger of
overbroad
statutory proscriptions. It is incumbent upon the Legislature to
devise precise guidelines if it wishes to regulate sexually
explicit
material. Especially in the light of the painfully fresh memory of
the executive branch of government ruthlessly wielding
its
ill-checked powers to suppress political, cultural, and, indeed,
sexual expression, there is a need to jealously guard the
values of
free expression embodied in the Constitution of our fledgling
democracy.’
[109]
However, for reasons which will become
apparent, it is not necessary for this Court to determine either the
precise scope or the
sources of ICASA’s discretion in
authorising channels. Suffice it to state that the provisions of the
BCCSA Code or any applicable
code will undoubtedly play an important
role in this question.
[110]
Initially, at least, the applicants were
not able to refer to any common law or statutory criminal prohibition
prohibiting the broadcasting
of ODM’s proposed channels.
Section 24A of the FPA deals with prohibitions, offences and
penalties relating to the distribution
and exhibition of films, games
and publications. The FPB enforces these measures in the first place
by requiring parties to register
with it as a distributor or
exhibitor of films thereby subjecting themselves to its
classification system (section 18). However,
in section 24A(2)(a) an
exemption is created for broadcasters that are subject to regulation
by ICASA as far as the broadcasting
of films not classified by the
board. That exemption does not extend to films which have been
classified as
a ‘refused
classification’
or as ‘
XX’
but the basis of ODM’s case and the undertaking which it gave
to ICASA was that none of the material to be broadcast on the

channels would fall outside the class of ‘
X18’
.
The further possible proscription which might have affected ODM’s
application is that contained in section 24A(4) which
prohibits the
distribution or exhibition of any film classified as X18, amongst
other material, but which covers distribution or
exhibition to
persons under the age of 18 years.
[111]
However, ODM’s proposed channels and
subscription procedures were designed to ensure that only adults
could view the channels.
Thus ODM’s proposed broadcasts would
arguably not fall foul of either section 19 of The Sexual Offences
Act which proscribes
the exposure or display of pornography to
children, or section 24A(4) of the FPA. A key element of the former
offence is the unlawful
and intentional exposure of children to such
pornography. In the case of section 24A(4) the prohibition is on
‘
knowingly’
distributing the film. Given the licence conditions relating to
security features on the ODM decoder and the separate and verified

subscription process which only adults could access it is doubtful
whether these provisions justified a refusal of channel
authorisation.
[112]
It was against this background that ODM
submitted both to ICASA and in the review application that its
application for channel authorisation
steered a careful course
through all legal proscriptions relating to the distribution of
pornography. The final result, it contended,
was that in the absence
of a law of general application prohibiting what it proposed to
flight, its authorisation application could
not be refused by
ICASA.

 
[113]
At an advanced stage in argument, however,
in fact during JASA’s reply, Mr Cooke pertinently raised for
the first time the
implications for the validity of ICASA’s
decision of the hitherto overlooked section 24A(3) of the FPA which
provides as
follows:
‘
24A(3)
Any person
,
not being the holder of a licence to conduct the business of adult
premises and,
with regard to
films and games, not being registered with the Board as a distributor
or exhibitor of films
or games,
and
who knowingly broadcasts
,
distributes, exhibits in public, offers for exhibition, sale or hire
or advertises for sale or hire
any
film
, game or publication
which
has been classified ‘X18’ shall be guilty of an offence
and liable, upon conviction, to a fine or to imprisonment for a
period not exceeding five years or to both a fine and such
imprisonment.’
[my
underlining]
[114]
On the face of it ODM is hit by the
provisions of section 24A(3) since it is not the holder of the
licence to conduct the business
of adult premises and is not
registered with the Board as a distributor or exhibitor of films. The
significance of the proscription
contained in section 24A(3),
furthermore, was that it apparently undermined the central thrust of
ODM’s argument in the presentations
which it made out to ICASA,
namely, that there was nothing in South African law, either common or
statute, which prohibited it
from displaying adult pornography
falling within the X18 classification provided that this was not
knowingly and intentionally
shown, broadcast or made available to
children, which hurdle it surmounted by virtue of its various
security measures.
[115]
Given the late stage at which the point was
raised and the lack of detailed argument which the issue enjoyed, the
Court requested
ODM, to whose argument the legal framework relating
to the broadcasting of pornographic material was central, to file a
short note
on the implications of section 24A(3), with all other
parties being entitled to respond thereto.
[116]
In response, however, ODM also sought leave
to file a set of further supplementary affidavits dealing with the
classification of
the material flighted by ODM after it had received
authorisation from ICASA to broadcast the three channels. The
substance of these
affidavits was that in regard to its one channel,
Playboy TV, the programmes broadcast had not been classified by the
FPB. Were
they to be so classified, at least some thereof would not
have been classified as X18 but in a less restrictive classification
in accordance with the guidelines applicable to material unsuitable
for viewing by children. That channel continues to be broadcast
by
ODM.
[117]
As regards ODM’s second channel, the
Private Spice channel, it had been broadcast for one month only from
1 December 2013
to 1 January 2014. During that month approximately
fifty percent of the content broadcast had indeed been classified by
the Board
as X18 with the remaining material unclassified. This was
because the X18 content had been part of an entire library which had
been classified by the FPB as X18 for DVD release. As far as the
balance of the content, ODM accepted that had such material been

classified by the Board, it would, at least in significant part, have
fallen within the criteria for X18 classification.
[118]
From 2014 onwards the Private Spice channel
was rebranded as Brazzers TV channel which broadcast material not
classified by the
FPB but which, if classified, would also, at least
in significant part, fall in the X18 classification. ODM applied for
such authorisation
to so rebrand the channel on 4 December 2013 and
received final authorisation from ICASA on 11 March 2014. That
decision by ICASA
falls outside the scope of the present reviews.
[119]
It was common cause that, at all material
times, ODM did not use the third channel for which it had received
authorisation.
[120]
ODM’s chief executive officer
concluded his further supplementary affidavit by stating that ODM had
always been of the view
that section 24A(3) was not intended to apply
to licenced broadcasters and that the facts he had set out
demonstrated that the
applicants’ reliance on section 24A(3)
did not establish any ground of review.
[121]
CFJ objected to the filing by ODM of its
further supplementary affidavits, as an irregular step and reserved
its right to supplement
its papers. At the Court’s invitation,
CFJ provisionally filed an affidavit responding to ODM’s
further supplementary
affidavits. Notes on the implications of
section 24A(3) were filed on behalf of all the parties save for ICASA
and its chairman.
[122]
In the light of all the submissions
received and the objection to ODM’s filing of a further
supplementary affidavit, I directed
that the Court would convene on
13 October 2014 to hear argument regarding the implications of
section 24A(3) of the FPA for the
decision sought to be reviewed.
[123]
At the hearing neither ICASA nor any of the
applicants, save for CFJ, persisted with any objection to the
admission of ODM’s
further supplementary affidavits. CFJ
withdrew its objection to the filing of ODM’s affidavits
subject to its affidavit responding
thereto being admitted. Having
regard to the fact that the point relating to section 24A(3) had only
enjoyed focused attention
relatively late in the hearing, and bearing
in mind that all parties had enjoyed an opportunity to respond to
ODM’s further
supplementary affidavits, the content of which
bore directly on the relevance of section 24A(3), I ruled that both
sets of affidavits
could be admitted. In CFJ’s affidavit a
member of its executive committee alleged, in some detail, that the
case being made
out by ODM in its further supplementary affidavits
was contrary to what it had represented to ICASA and to what it had
stated in
its answering affidavits. In my view, however, the contents
of CFJ’s affidavit take the matter no further.
[124]
In argument DFL contended that section
24A(3) was a law of general application which had been overlooked by
ICASA and, furthermore,
that ODM had sought authorisation to
broadcast material classified X18 by the FPB in breach of the
section. ICASA had not only
understood ODM to be seeking
authorisation to broadcast such material, it had unlawfully granted
such authority which ODM had then
proceeded to act upon. It was
further contended by DFL that ICASA was obliged to give effect to
section 24A(3) but had erred in
law in failing to take it into
account. CFJ likewise contended that section 24A(3) was a law of
general application.
[125]
JASA submitted that, contrary to the
central thrust of ODM’s arguments, both before ICASA’s
special committee and in
the review proceedings, rather than the
legal framework generally permitting the broadcasting of pornography
to adults, section
24A(3) rendered it a criminal offence to broadcast
such material if it had been classified  X18 by the FPB.
Implicit in its
argument was the notion that section 24A(3) is a law
of general application. JASA argued that no distinction should be
drawn between
material already classified as X18 and that which, if
submitted to the FPB, would be classified as such. In fact, counsel
contended,
ODM should not be entitled to broadcast material not
classified X18 but which would be classified as such if submitted to
the FPB.
It would be an absurdity, it was submitted, if ODM could
lawfully broadcast material not yet classified X18 but not material
already
classified X18. All three applicants contended that the
existence and implications of section 24A(3) for the review had been
properly
and timeously raised in the litigation.
[126]
On behalf of ODM, Mr Budlender performed
something of a volte face when he conceded that section 24A(3) was,
and remained, applicable
to his client to the extent that it
prohibited the broadcasting by ODM of material which had been
classified by the FPB as X18.
He conceded, furthermore, that ODM had,
as set out in its further supplementary affidavits, pursuant to
ICASA’s authorisation,
broadcast such material during the
period 1 December 2013 to 1 January 2014 on its Private Spice
channel, subsequently rebranded
as the Brazzers TV channel. He
stressed, however, that the material which ODM had broadcast since 1
January 2014 had not been classified
as X18 by the FPB.
[127]
In response to the applicants’
arguments, Mr Budlender contended that no absurdity would follow from
making a distinction
between program content already classified X18
by the FPB and content which, if submitted to that body, would be so
classified.
He submitted that the apparent anomaly, namely that
broadcasting the former material was a criminal offence in terms of
section
24A(3) but not the latter, was no more than the product of a
compromise made by the Legislature in a situation of competing
institutional
jurisdiction and constitutional rights.
[128]
I understood Mr Budlender’s
concession that section 24A(3) was applicable to ODM’s channel
authorisation application
to impliedly concede also that ICASA’s
decision was unlawful to the extent that it purported to authorise
ODM to broadcast
material which had been classified X18. He argued
that this shortcoming could be corrected by the Court adopting an
appropriate
remedy, namely, reviewing and setting aside ICASA’s
decision but only to the extent that it failed to impose on ODM a
condition
requiring it to comply with the provisions of section
24A(3) of the FPA. The Court should then add such condition, the
wording
of which, he ultimately submitted, should read ‘
in
broadcasting the channels … ODM shall not knowingly broadcast
any film which has been classified as X18 by the Films and

Publications Board.’
[129]
In support of this approach Mr Budlender
relied on the fact that ODM was no longer broadcasting material which
had been classified
X18 and that ICASA had conducted a full hearing
process on the merits of the application. A remittal of the decision
back to ICASA,
he contended, would be inappropriate inasmuch as it
did not have, as he put it, a ‘
freewheeling
discretion’
to regulate the
content of ODM’s adult channels. Mr Budlender referred to
section 8 of PAJA which affords a court wide power
in arriving at an
appropriate remedy. It reads in part as follows:
‘
1.
The court … may grant any order that is just and equitable,
including orders –
a)
…
b)
..
c) setting aside
the administrative action and –
i.
remitting the matter for reconsideration by the administrator, with
or without directions; or
ii.
in exceptional cases –
aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative
action; …’
[130]
He also relied on the decision in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC) and
Retail Motor
Industry Organisation and Another v Minister of Water and
Environmental Affairs and Another
2014
(3) SA 251
(SCA). In
Steenkamp
the Court held as follows at para [29]:
‘
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle

the aggrieved party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate effectively the right violated. It must be just and
equitable in the light of the facts, the implicated
constitutional
principles, if any, and the controlling law…
Ultimately
the purpose of a public remedy is to afford the prejudiced party
administrative justice, to advance efficient and effective
public
administration compelled by constitutional precepts and at a
broader level, to entrench the rule of law.
[131]
In
Retail
Motor Industry Organisation
, the
Supreme Court of Appeal found that certain regulations should not
have applied to solid as opposed to pneumatic tyres and
set aside the
regulations, to the extent that they also referred to and purported
to deal with solid tyres. It held as follows
at para [46]:
‘
The
fact that the November plan deals with solid tyres as well as
pneumatic tyres, does not necessarily mean that the entire plan
must
be set aside. If the bad can be severed from the good, the bad can be
set aside and the good left intact.’
[132]
Mr Budlender also pointed to the
inconvenience and prejudice which ODM, its overseas content suppliers
and the subscribers to its
adult content channels would suffer in the
event that the decision was remitted back to ICASA to take what he
contended would be
the same decision but with the addition of a
condition relating to section 24A(3).
[133]
In the alternative, Mr Budlender contended,
should the Court set aside the decision and remit it back to ICASA,
it would be appropriate
for the Court to issue an order suspending
the invalidity of that decision pending a fresh decision by ICASA.
[134]
On behalf of ICASA Mr Kennedy adopted a
different position to that of ODM. He conceded that section 24A(3)
was applicable to ODM’s
broadcasting of its adult content
channels but contended, however, that this was not relevant to the
review since the point had
not been properly raised by the
applicants. He contended in any event that section 24A(3) was not a
law of general application
and, furthermore, that ICASA’s
failure to refer thereto either in its decision or in its reasons did
not render its decision
reviewable. This was because section 24A(3)
did no more than state the law and implicit in any authorisation
granted by ICASA to
ODM was the requirement that it comply with the
law. As Mr Kennedy put it, ICASA was entitled to assume that ODM
would comply with
all necessary legal stipulations and that
appropriate action would be taken against ODM if it contravened the
law. It was therefore
not incumbent on ICASA to impose a condition
such as that proposed by counsel on behalf of ODM.
[135]
In the alternative Mr Kennedy contended
that in the event of the Court nonetheless finding that the decision
fell to be reviewed
on this ground, this did not require that the
matter to be remitted back to ICASA for a fresh decision. He advised
that he was
mandated by ICASA to convey that it was happy to have a
condition, such as that proposed on behalf of ODM, imposed on its
original
decision.
[136]
In reply, counsel for JASA opposed the
imposition of the proposed condition as an appropriate remedy arguing
that the matter should
be remitted in full to ICASA. He pointed out,
furthermore, that the suspension of invalidity contended for by ODM
in the alternative
had been raised very late in the day and without
any basis being established on affidavit. A similar position was
adopted by CFJ
and DFL.
[137]
Three issues arise from what can be termed
the section 24A(3) point; firstly, whether the challenge to ICASA’s
decision based
on its provisions was properly raised by one or more
of the applicants; secondly, if so, the consequences thereof for the
validity
of ICASA’s decision and; thirdly, if the review is
successful on this basis, the appropriate remedy.
WAS THE
SECTION 24A(3) POINT PROPERLY RAISED?
[138]
It was submitted on behalf of the
applicants that DFL’s reliance upon the provisions of section
24A(3) was sufficiently foreshadowed
in its founding affidavit where
the deponent refers to various statutes including the FPA and states
that, ‘
at the very least the
applicable relevant legislation … above taken together and in
some instances on their own, can justify
the decision by ICASA in
refusing ODM’s application.’
He further alleged ‘
that ICASA has
contravened the statutes … in relation to the prohibition
against exposing children to disturbing or harmful
to or age
inappropriate for children film material. ICASA and its committee
evidently dismissed and had no regard whatsoever to
the Films and
Publications Act’ … broadcasters are only exempt from
the Film and Publications Board and not the Act.
As a result of not
considering the application of the Film and Publications Act to ODM
broadcasting pornography on three different
channels this Act and its
objectives were contravened by ICASA.’
[139]
These statements in DFL’s
supplementary founding affidavit were identified by it as grounds of
review under sections 6(2)(d)
and 6(2)(f)(i) of PAJA, namely, that
the administrative action was materially influenced by an error of
law, contravened a law
or was not authorised by the empowering
provision. In response to the recitation of these review grounds in
DFL’s founding
affidavit, ICASA’s chairman was satisfied
to merely deny that any ground for review was established under these
headings.
[140]
It is also noteworthy that ODM’s CEO
stated in his opposing affidavit that the FPA permitted the
distribution and broadcasting
to adults of X18 material or material
that had been classified X18. This averment was squarely denied and
disputed by JASA in its
replying affidavit. In any event, as JASA’s
counsel submitted, any prejudice which ODM might have suffered in
regard to the
late raising of the point had been cured by ODM’s
further supplementary affidavits and the opportunity it had enjoyed
to
make considered submissions in respect of section 24A(3).
[141]
The
following extract from
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) is relevant
[18]
:
‘
The
mere fact that a point of law is raised for the first time on appeal
is not in itself sufficient reason for refusing to consider
it. If
the point is covered by the pleadings, and if its consideration on
appeal involves no unfairness to the other party against
whom it is
directed, this Court may in the exercise of its discretion consider
the point. Unfairness may arise where, for example,
a party would not
have agreed on material facts, or on only those facts stated in the
agreed statement of facts had the party
been aware that there were
other legal issues involved. It would similarly be unfair to the
other party if the law point and all
its ramifications were not
canvassed and investigated at trial.’
[142]
Although this dictum deals with raising of
a point of law on appeal, in my view the present situation is
analogous. Given the many
statutory provisions in the legal framework
which were applicable to ODM’s application, I do not consider
that the applicants
had to identify, section and sub-section, those
provisions in the FPA which should have been taken into account by
ICASA in considering
ODM’s application.
[143]
In the result I consider that the section
24A(3) point was properly raised by the applicants, and that the
respondents were afforded
adequate opportunity to deal with it.
THE
IMPLICATIONS OF SECTION 24A(3) FOR ICASA’S DECISION
[144]
The next issue is whether the section
24A(3) point impacts on the validity of the decision taken by ICASA.
In my view the concessions
made by Mr Budlender on behalf of ODM
correctly recognised that ICASA’s failures to appreciate the
import of section 24A(3)
inevitably affected the lawfulness and
validity of its decision. It was a recurring theme in ICASA’s
reasoning that one of
the two paramount questions in deciding whether
to approve the channel authorisation was whether there was a law of
general application
that could be held to limit ODM’s right to
freedom of expression. ICASA concluded that ‘
in
the absence of a law of general application that prohibits the
distribution of pornography, the authority would have no legal
basis
under the Constitution or under the ICASA Act and the underlining
statutes to refuse the applicant’s application
’
ICASA thus accepted ODM’s submission that there was no law of
general application prohibiting the production and distribution
of
adult pornography. In further instances it reasoned and found that
there was ‘
no law prohibiting the
broadcast of adult content material
.’
[145]
In the light of the provisions of section
24A(3) it is quite clear that these assumptions, which were
fundamental to ICASA’s
decision, were incorrect. There was a
statutory prohibition on what ODM sought authority to broadcast i.e.
adult pornography, some
of which had been classified as X18 by the
FPB, and section 24A(3) was a law of general application.
[146]
In this regard there was no suggestion by
ODM that section 24A(3) was not ‘
a
law of general application’
and
in my view it plainly is. In its application dealing with the
applicable legal framework, ODM itself submitted to ICASA that
‘
the
FP Act has been established as the law of general application which
restricts certain rights and established pre-defined prohibitions.’
[147]
Mr Kennedy’s argument that ICASA’s
decision had to be understood as requiring ODM to comply with the
provisions of section
24A(3) of the FPA or any other applicable
statutory provision, does not stand up to scrutiny. In its
authorisation application
ODM referred, in an annexure dealing with
channel information, to the Playboy TV channel having content ‘
in
line with the South African Films and Publications Board R18 rating’.
It went further in relation to its
Private Spice channel stating that ‘
many
of the Private Spice titles have been cleared in South Africa by the
FPB and are currently on sale as DVD’s in Adult
Stores with a
single X-rating’.
[148]
Thus ICASA could have been under no
misapprehension that, at least in respect of one channel, ODM was
seeking authorisation to broadcast
material which had been classified
as X18 by the FPB. In the submission by the special committee to
ICASA’s Council the view
was expressed that there was no basis
in law to refuse ODM’s application for channel authorisation of
the three adult pornographic
channels, incorrectly so. The committee
ultimately recommended that the Council should grant ODM’s
application for authorisation
and made no mention of any
qualification relating to material which had been classified X18 by
the FPB. As part of its reasoning,
the committee stated that it
‘
accepts that there is no law of
general application prohibiting the production and distribution of
adult pornography in the Republic.
Only the production and
distribution of child pornography is expressly prohibited by law’
,
yet another erroneous statement of law.
[149]
ICASA’s decision to authorise ODM to
broadcast three pornographic channels did not limit the content to
material which had
not been classified by the FPB. Having regard to
the tenor and terms of ODM’s application, the only conclusion
which can
be reached is that, as a result of overlooking the
provisions of section 24A(3) of the FPA, ICASA purported to authorise
ODM to
broadcast adult content, whether it had been classified X18 by
the FPB or not.
[150]
It follows that ICASA’s decision
falls to be reviewed on several grounds listed in PAJA and relied on
by one or more of the
applicants viz it committed a material error of
law, it failed to take into account a relevant consideration (the
provisions of
section 24A(3)) or took an irrelevant consideration
into account, the action/decision contravened a law or is not
authorised by
the empowering provision or it was otherwise
unconstitutional or unlawful.
[151]
Before considering the question of the
appropriate remedy I propose to consider the remaining substantive
grounds of review. I do
so for the sake of completeness and having
regard to the possibility of an appeal.
FURTHER
SUBSTANTIVE GROUNDS
[152]
JASA’s main ground of review related
to the ‘
rewiring of the brain’
.
This arose out of the evidence of Dr Wasserman who, in responding to
representations concerning the addictive qualities of pornography,

made the following statement:
‘
Is
there an impact of adult content?  - Indeed.
Does it rewire
the brain?  - Indeed.
And are we
looking at research today to see how does it rewire the brain and
mostly what we are seeing is that is making men and
women make love
differently. Their ideas of how they want to make love are different
and we have to make adjustments to what now
is a different kind of
normality. Doesn’t mean pathological. So, definitely will it
cause rape?  - Absolutely not.’
[153]
JASA’s deponent, Mr Smythe (‘Smythe’)
alleged that it could be inferred from this evidence that the viewing
of
pornography on ODM’s authorised channels would result in the
rewiring of viewers brains i.e. the anatomy of the brain being

altered. He relied on a number of other inferences which he stated
arose from this portion of Dr Wasserman’s submission and

observed that there was no mention in ODM’s authorisation
application ‘
of the mind altering
effects of pornography’.
ODM did
not undertake to inform and/or warn viewers ‘
that
their brains will be rewired by the viewing of pornographic channels.
Nor are viewers warned that the watching of the pornographic
channels
will cause them to change the way they have sexual intercourse.’
Smythe alleged that the broadcasting of these channels would
‘
erode(s) the capacity of viewers
to express their own innate and personal sexual behaviour’,
constituted ‘
a
violation of the right to bodily and psychological integrity, as well
as the right to security in and control over one’s
body’
and amounted to an infringement of the privacy and dignity of
viewers.
[154]
In the circumstances Smythe concluded that
the decision to authorise the broadcasting of channels was plainly
reviewable in that
these consequences of viewing pornography were not
mentioned in ICASA’s reasons (nor in the special committee’s
submission),
the decision was not rationally connected to the purpose
for which it was taken, the purpose of the empowering provision or
the
information before ICASA and was not one that a reasonable
decision-maker could reach. Mainly on these grounds it was submitted

on JASA’s behalf that the authorisation of the pornographic
channels was clearly wrong, that no purpose would be served in

remitting the matter back to ICASA for reconsideration and that the
Court should substitute ICASA’s decision with one refusing
to
authorise the channels described in ODM’s application.
[155]
In an answering affidavit Dr Wasserman
addressed the meaning that she sought to convey by her statements.
She expressed the view
that, read in context, it was apparent that
what she meant by ‘
rewiring the
brain’
was the development of new
ideas of sexual intercourse and lovemaking and not any specific
neurological changes that might be categorised
as pathological. Be
that as it may, what is of more importance is what the special
committee understood her original evidence to
mean. In response to
Smythe’s claim, ICASA’s chairman merely alleged that JASA
had misinterpreted Dr Wasserman’s
statement. In the face of
this response, it was submitted on behalf of JASA, the Court should
apply ‘
the ordinary principles of
interpretation’
and find that the
inferences for which it contends are established.
[156]
In my view JASA has focused unduly upon a
single strand of evidence and sought to make a number of unjustified
inferences from such
evidence. It has argued moreover that these
inferences should also have been drawn by ICASA which, acting on the
strength thereof,
should have refused the channel authorisation
application.
[157]
I consider that JASA has read far too much
into Wasserman’s statement which, put in simpler terms, says no
more than that
persons who watch pornography are exposed to new
patterns of sexual behaviour which, potentially, can alter their own
sexual behaviour
albeit not in any pathological sense. This rather
broad and unsubstantiated statement appears to have made limited, if
any, impact
on the members of ICASA’s special committee if one
is to judge by the questions put to Dr Wasserman or the contents of
its
submission to ICASA’s Council. In my view it is a wholly
exaggerated and unfounded proposition that unsuspecting adults who

watch the pornography channels would find themselves exposed, without
prior warning, to material which would cause them any serious

neurological or social harm.
[158]
In the result I consider that there is no
substance to this ground of review, whether cast in terms of PAJA or
as breaches of fundamental
constitutional rights.
SECURITY
CONCERNS RELATING TO CHILDREN
[159]
The applicants contended that ICASA had
failed to take into account that the proposed security measures, most
notably the double
pin code, could be circumvented by children;
further, that for such security measures to be effective the adults
who subscribe
to the channels must act responsibly and vigilantly, an
assumption which ICASA should not have made. It was contended that
the
State had an obligation to create the necessary environment for
parents to provide proper parental care, at the very least to prevent

inadvertent exposure by children to pornography. It was further
contended that even if the security measures were foolproof the
mere
existence of the pornographic channels would encourage the use of
pornography by children and, in the final result, that in
approaching
this issue ICASA failed to take into account relevant considerations.
[160]
Much of the applicants’ papers were
taken up with technical evidence from experts regarding these
security measures including
the question of how long it would take a
child to ‘
crack’
the double pin code using a systematic trial and error approach. All
this evidence was irrelevant for the simple reason that it
was not
initially placed before ICASA. If this Court were to take such
evidence into account the process would be one not of review
but
appeal, one moreover where the parties were permitted to adduce
further evidence.
[161]
It was also contended by the applicants
that the special committee had not investigated the proposed security
features on the decoder
but simply accepted what ODM said in this
regard. This criticism is misconceived since I can see no basis on
which ICASA was obliged
to inspect or physically test the operation
of the security features on the ODM decoder particularly when, as I
understand the
position, this was not pertinently challenged by any
of the objectors who made representations to the special committee.
Secondly,
such criticism ignores the regulatory oversight function of
the BCCSA. Bearing in mind that the security measures were adopted by

ICASA as conditions for the broadcasting of the channels, any alleged
shortcomings in the measures or breaches of the security
conditions
could appropriately be the subject matter of a complaint to the
BCCSA.
[162]
I
regard it also as unrealistic to postulate, as the applicants appear
to, that if there is a reasonable possibility of children
gaining
access to the adult material broadcast by ODM the harm such children
might suffer as a result would necessarily mean that
the
authorisation should not be granted. The Constitutional Court has
recognised that ‘
a
vast range of private actions will have some consequences for
children’
and
further that ‘
no
constitutional injunction can in and of itself isolate children from
the shocks and perils of harsh family and neighbourhood

environments.’
[19]
[163]
I do not consider that, in stipulating as a
condition the double four digit pin code and the other provisions
aimed at ensuring
that only adults could subscribe to and view the
service, ICASA’s  decision was irrational or otherwise
reviewable for
failing to protect the interests of children from
exposure to pornography.
THE WATERSHED
PERIOD
[164]
ICASA gave ODM permission to broadcast its
channels during the watershed period which is defined by the BCCSA
code as between 20h00
and 05h00 hours. Clause 13 of the Code states
that:
‘
A
television or composite subscription broadcast service licensee,
wherever practical must attempt to ensure that the more the
broadcasting of programming material is unsuitable for children, the
later that programming material must be broadcast after the

commencement of the watershed period.’
[165]
Having regard to the fact that children
will be routinely watching television between 20h00 and 22h30 at
night JASA contended that
ODM should only have been permitted to
broadcast pornography from substantially later than 20h00 at night.
For this reason JASA
submitted that ICASA‘s decision was taken
without considering relevant considerations and was irrational or so
unreasonable
that no reasonable person could have taken it.
[166]
In my view there is nothing to suggest that
ICASA failed to take into account these considerations. Other
conditions imposed by
ICASA stipulated that only adults could
subscribe to those particular channels and ensured limited access
thereto through a double
four digit code and related security
provisions. Although many might consider that the channels should
only be flighted later at
night, I do not consider it to be
irrational or unreasonable for ICASA not to stipulate that the
channels could only be broadcast,
for example, from 10pm or 11pm
onwards.
[167]
I therefore consider this ground of review
is without merit.
REGULATORY
BREACHES BY PLAYBOY
[168]
ODM’s authorisation application
recorded that all three channels would be compiled and supplied by
Playboy TV UK/Benelux Ltd
in England. At the public hearing a
representative of Playboy SA assured ICASA that her company complied
with the laws of all countries
in which it operated. However, an
internal ICASA report in the record on review noted that Playboy TV
had recently breached rules
in the United Kingdom and had been
sanctioned by the UK broadcasting authority (OFCOM). There appeared
to be several of these breaches,
with varying degrees of seriousness.
There was, however, no mention of these regulatory breaches in the
submission made by the
special committee to ICASA’s Council nor
in the latter’s reasons. On this basis JASA submitted that
ICASA had irrationally
accepted the probity of Playboy TV at face
value which had rendered its overall decision susceptible to review
on the grounds that
it had not taken relevant considerations into
account and its ultimate decision was not rational nor one which a
reasonable decision-maker
could reach.
[169]
On a fair reading of the record, ODM never
contended that Playboy TV, the party responsible for the production
of the broadcast
material, had an unblemished regulatory record in
all other broadcasting jurisdictions. In any event ICASA dealt with
ODM’s
application on the basis that ODM took responsibility for
the content and compliance-monitoring itself and did not seek to rely

on Playboy’s reputation or record to suggest that it, ODM,
would be exonerated from responsibility in that regard. In fact
ODM
stated that it exercised its own compliance monitoring in addition to
the processes implemented by Playboy. Nor did ICASA’s
reasons
place any weight on Playboy’s compliance record. They recorded
instead ODM’s undertaking that it would comply
with the BCCSA
Code which contains its own complaint mechanism in the event of
breaches.
[170]
I therefore do not consider it necessary to
determine the extent to which Playboy TV allegedly breached
regulations in other jurisdictions
or how serious these were. There
is no suggestion that ICASA was materially influenced by any
contention that Playboy TV always
complied with regulatory standards.
In the result I find that this ground of review can also not be
sustained.
[171]
JASA sought to rely on a further ground of
review, namely, the alleged discrepancy between the description of
the content of the
proposed channels in the channel authorisation
application and the true content of these channels. It was only in
its replying
affidavit that JASA produced a UK program for one of
these channels which suggested, it contended, that the material being
broadcast
was far more explicit and lacking in any redeeming value
than was initially suggested by ODM in its channel authorisation
application.
[172]
Mr Cooke, for JASA, argued that the effect
of this alleged misrepresentation, whether intentional or negligent,
was that ICASA had
been unable to properly exercise its discretion
and therefore that its overall decision should be set aside. In
response ODM argued
that JASA had impermissibly raised this issue as
a ground of review for the first time in its replying affidavit.
[173]
JASA
contended, however, that it had timeously raised the ground,
alternatively, relying on
Pretoria
Portland Cement
[20]
,
that
it was entitled to raise the ground in its replying affidavit by
reason of the late stage at which it discovered the alleged

discrepancy between the actual and the promised channel content.
Further to its main argument, JASA’s counsel submitted that

certain passages in its supplementary founding affidavits prefigured
the issue of the alleged discrepancy between the proclaimed
and the
actual content of the channels. However, upon close analysis that
portion of the affidavits dealt with JASA’s ‘
rewiring
of the brain’
ground of review and therefore does not assist it.
[174]
Raising
a ground of review in reply is irregular. See
Director
of Hospital Services v Mistry
[21]
and
Telcordia
Technologies v Telkom SA Ltd
[22]
.
In
Telcordia the Court stated as follows:
‘
The
grounds for any review as well as the facts and circumstances upon
which the applicant wishes to rely have to be set out in
the founding
affidavit. These may be amplified in a supplementary founding
affidavit after receipt of the record from the presiding
officer,
obviously based on the new information which had become available
.’
[175]
As regards the alternative basis for the
belated reliance on the additional ground of review, neither
Pretoria
Portland Cement
nor
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T) are authority for the proposition that a ground of
review, as opposed to new facts, can be raised in reply. Furthermore,
when
regard is had to time constraints JASA had ample time, some two
months, to monitor ODM’s programming schedules and content

before it filed its supplementary affidavit. It could thus have
raised the new ground of review at that stage so that ODM could

respond thereto.
[176]
In any event, JASA failed to establish that
there was a misrepresentation on the part of ODM regarding its
channel content, whether
intentional or negligent. The language used
by ODM to describe the content of the three channels for which it
sought authorisation
in its application might have been downplayed
but no reasonable reader could have been under the misapprehension
that the material
would not be pornographic.
REMAINING
SUBSTANTIVE GROUNDS OF REVIEW RELATING TO THE MERITS OF ICASA’S
DECISION INCLUDING THE ASSESSMENT OF THE RELATIONSHIP
BETWEEN
PORNOGRAPHY AND SEXUAL VIOLENCE, EVIDENCE OF ADDICTION BEING IGNORED
AND THE MEDICAL CASE MADE OUT BY DFL
[177]
Many of the affidavits and annexures filed
contained arguments, evidence and opinions, in many cases relying
upon academic articles,
dealing with the psychological, social and
physiological effects of pornography. This material was relied upon
in support of various
grounds of review all of which contended that
ICASA had erred in assessing the social harm which the broadcasting
of pornography
would cause both to adults and children. Large tracts
of this material had been canvassed either directly or indirectly in
the
written and oral presentations made to ICASA.
[178]
In my view most if not all of this
material was irrelevant to the review application and served simply
to burden the papers and
the Court. As stated earlier a review cannot
serve as an appeal against the decision of administrative authority,
whether that
appeal is explicit or disguised. The reasons for this
approach are well established and essentially spring from the
doctrine of
the separation of powers which recognises that such
decisions lie in the province of the executive or other
administrative decision-making
authorities. Such functionaries
generally have the necessary experience and expertise to take the
required decisions and a court
must pay due deference to the bodies
seized with the task of making value-laden and, at times, polycentric
decisions.
[179]
The
judgment in
Clairisins
CC (supra)
is
also significant for what it stated in regard to a ground of review
heavily relied upon by the applicants in relation to various
aspects
of the present matter, namely, ICASA’s alleged failure to take
into account relevant considerations and its corollary
of taking into
account irrelevant considerations. The Court held that, where the
true complaint is directed at the weight or lack
of weight the
decision-maker attached to that consideration, the ground is not an
avenue for a court of review to second-guess
the decision-maker at
every turn
[23]
.
‘
It
has always been the law, and we see no reason to think that PAJA has
altered the position, that the weight or lack of it to be
attached to
the various considerations that go to making up a decision, is that
given by the decision-maker. As it was stated by
Baxter:
'The
court will merely require the decision-maker to take the relevant
considerations into account; it will not prescribe the weight
that
must be accorded to each consideration, for to do so could constitute
a usurpation of the decision-maker's discretion.'
[180]
It
is also material to observe, in relation to these remaining
substantive grounds of appeal, that the scope for review for material

mistake of facts appears to have narrowed to mistakes as to ‘
a
fact that is established in the sense that it is uncontentious and
objectively verifiable.’
[24]
The scope for review on such a basis in the present matter is
distinctly limited given the wide range of factors which the
ICASA
had to take into account, many of them of a contentious nature eg the
scientific evidence regarding the effects of pornography
and its
relationship to violence against women. As ODM’s counsel put
it, the factual issues that ICASA was called upon to
decide were
contested and controversial. In the circumstances it would clearly be
an error for a court to substitute its findings
for those of the
decision-maker.
[181]
In the result I find that none of the above
grounds of review which challenge the correctness of ICASA’s
conclusions regarding
the effects and consequences of flighting
pornography, including those I have not specifically dealt with, have
any merit.
[182]
This conclusion means that the only review
ground in respect of which the applicants have succeeded has been the
error of law point.
The remaining issue is thus the appropriate
remedy in the light of ICASA’s invalid administrative action.
REMEDY
[183]
The main remedy sought by ODM,
namely, the Court reviewing the decision only to the extent of
imposing a condition that ODM could
not knowingly broadcast material
which had been classified X18, was opposed by the applicants. The
remedy for which they contended
was the setting aside of the decision
and the remittal of the matter back to ICASA for a fresh decision.
[184]
Correction
or substitution of an administrative authority’s decision is,
at common law, the exception rather than the rule
[25]
.
This is reflected also in the provisions of PAJA which allow for the
correction of a defect only in ‘
exceptional
cases’
.
In
Gauteng
Gambling Board v Silverstar Development Ltd
[26]
the Court gave as the reasons for this that the administrator ‘
is
generally best equipped by the variety of its composition, by
experience and its access to sources of relevant information and

expertise to make the right decision. The Court typically has none of
these advantages and is required to recognise its own limitations.’
In
Littlewood
Nugent
JA justified a remittal back as follows ‘
It
cannot be said in the present case that the proper decision is a
foregone conclusion, nor that the Minister has disabled
himself from
properly making it, nor are there any other grounds for substituting
our decision for his. The proper course is to
remit the matter for
re-consideration by the Minister.’
[185]
In Hoexter’s
Administrative
Law in South Africa, 2
nd
Edition,
Juta, the author notes that in making a choice between these two
options, fairness to both sides is always an important consideration

and further, that three important common law principles are relevant
to a decision whether to correct or substitute an administrative

decision found to be reviewable:
‘
These
are that the court will be prepared to substitute the decision where
the end result is a foregone conclusion and it would
be a waste of
time to remit the decision to the original decision-maker; where
further delay would cause unjustifiable prejudice
to the applicants;
and where the original decision-maker has exhibited bias or
incompetence to such a degree that it would be unfair
to ask the
applicant to submit to its jurisdiction again.’
[186]
In my view ICASA has exhibited neither bias
nor incompetence to such a degree that it would be unfair to require
the parties to
submit to its jurisdiction again to take a decision
afresh. Nor is this an instance where further delay would cause
unjustifiable
prejudice to any party. The applicants seek a remittal
back to ICASA. It is ODM which resists a remittal on the grounds of
the
prejudice it will suffer. In this regard Mr Budlender alluded to
subscribers to the adult content channels who would be
inconvenienced,
presumably by the interruption of the service,
pending any fresh decision and, in very general terms, to content
suppliers, presumably
Playboy TV. However, no detail was given of any
of this prejudice and none of this material was conveyed by means of
an affidavit
which could be considered by the Court or responded to
by the applicants. Furthermore, ODM had nearly two months between the
two
court hearings in which to reconsider its position in the light
of the provisions of section 24A(3) and, if it saw fit, to place

relevant material on affidavit before the Court regarding the form of
a proposed order.
[187]
Most importantly, however, I do not
consider that this is a case where the end result is a foregone
conclusion, namely, that ICASA
will necessarily again grant ODM’s
application for authorisation to broadcast the channels but on this
occasion simply adding
a condition that the material to be broadcast
may not be in breach of section 24A(3) of the FPA. Turning to the
particular circumstances
of this matter, the error of law made by
ICASA, overlooking the provisions of section 24A(3), was far-reaching
also for its potential
influence on ICASA’s decision by reason
of what it indicates about the legislature’s position on the
broadcasting of
pornography. It is entirely appropriate, therefore,
that ICASA looks afresh at the authorisation application and makes a
fresh
decision in the light of the correct legal perspective, namely,
that the legislature has not given carte blanche for the broadcasting

of pornography to adults. That decision could, quite feasibly, be
different to the decision ICASA originally took or be subject
to
different or additional conditions. I am mindful too that ICASA is a
specialist body, one which the Legislature has established
to deal
with the issues and concerns thrown up by ODM’s application to
broadcast channels containing pornographic adult content.
[188]
For these reasons I consider that the
appropriate order is not simply to impose the proposed condition but
to set aside the decision
and to remit it back to ICASA for
reconsideration and a fresh decision.
[189]
For much the same reasons I consider that
the order sought in the alternative on behalf of ODM, namely,
remittal but with a suspension
of the invalidity of the order, is
likewise inappropriate. To grant such an order would come
uncomfortably close to assuming that
ICASA will, on remittal, take
the same decision as it previously did, save for the imposition of
the proposed condition. Such an
assumption is neither appropriate nor
justified. Nor does the fact that ICASA has indicated, through its
counsel, that it would
be prepared to accept the imposition of such a
condition make any difference to my conclusion. What is required of
ICASA is for
it to reconsider the matter afresh in the light of what
has emerged through this application and, in that light, take a fresh
decision
untrammelled by its earlier flawed analysis of the legal
framework.
COSTS
[190]
Although the applicants succeeded on a
relatively limited front or ground they have achieved substantial
success.  In
Cash Paymaster
Services (Pty) Ltd v Eastern Cape Province
1999 (1) SA 324(CkHC)
the Court held that where in a review an
independent tribunal  does no more that its duty in terms of
Rule 53 of the Uniform
Rules of Court and abides the decision of the
Court, a costs order will seldom be made against it. Where, however,
it strenuously
opposes the relief sought against it (and is
unsuccessful) the Court will have little alternative but to award
costs against it.
In my view that approach is appropriate in the
present matter.
[191]
I consider, further, that it would be
artificial to distinguish between the applicants in giving credit for
the successful result.
The section 24A(3) point was most pertinently
raised and advanced on behalf of JASA although it was canvassed most
directly by
DFL in the papers. In the matter as a whole the
applicants largely made common cause with each other in relation to
the point and
the broader review ground of which it forms part,
namely, that there
was
a law of general application prohibiting the broadcast of at least
some of the material for which ODM sought and obtained authorisation

to broadcast. Nor do I consider it appropriate to fashion any costs
award having regard to the not inconsiderable amount of time
spent in
argument on the procedural aspects and the other substantive grounds
of review which were unsuccessful. Although the procedural
challenges
did not prevail they brought to light serious shortcomings in the
notice procedure.
[192]
On behalf of ODM Mr Budlender argued that
ICASA, as the author of the decision successfully reviewed, should
bear any costs order
alone. However, both ODM and ICASA opposed the
review strenuously and made common cause with each other in the
review application
until late in the day when ODM made concessions,
certain of which were not shared by ICASA. From the inception of its
application
to ICASA ODM incorrectly espoused the position, and
persuaded ICASA thereof, that there was no law of general application
prohibiting
the broadcasting of at least part of the adult content
material it proposed for the subscribers to the channels for which it
sought
authorisation.
[193]
For these reasons I consider that the
appropriate order is that the applicants are awarded the costs of the
application, such costs
to be jointly and severally borne by ICASA
and ODM.
[194]
In the result the following order  is
made:
1.
The decision taken by the second
respondent (Independent Communications Authority of South Africa) on
23 April 2013, in terms of
which it authorised the third respondent
(On Digital Media (Pty) Ltd t/a Top TV) to broadcast three
pornographic channels, namely,
Playboy TV, Desire TV and Private
Spice, is reviewed and set aside;
2.
The matter is remitted back to the
second respondent for reconsideration;
3.
The second and third respondents are
ordered to pay the applicants’ costs, jointly and severally,
the one paying the other
to be absolved.
BOZALEK
J
APPEARANCES
For Justice
Alliance of South Africa: Mr D Cooke
Instructed
by:
Norman
Wink & Stephens
For Cause for
Justice & Mr G Venter: Mr M Bridgman
Instructed
by:
Smit
& Viljoen Attorneys
For
Doctors for Life International: Mr R Willis and Mr Mooij
Instructed
by:
SJM
Schneider & Company
For Independent
Communications Authority of
South Africa &
Mr S Mncube N.O: Mr P Kennedy SC and
Mr
TC Tshavhungwa
Instructed
by:
Damons
Magardie Richardson
Attorneys
For On Digital
Media (Pty) Ltd &
Mr Van Steen N.O
Mr S Budlender and Ms J Bleazard
Instructed
by:
Bowman
Gilfillan Inc
[1]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
CC,
[2]
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
2013
(6) SA 235
(SCA)
[3]
At
para [18]
[4]
Section10
[5]
Section14
[6]
Section
16
[7]
Section
28
[8]
q
uoting
from
Weenen
Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA) [13]
[9]
1999
(2) SA 91
(CC)
[10]
Unlawful
Occupiers, Schools Site v City of Johannesburg
2005
(4) SA 199
(SCA) at [para 22]
[11]
Doctors
for Life International v Speaker of the National Assembly
2006
(6) (SA) 416 (CC) at paras [216 – 224])
[12]
See
in this regard
President
of the Republic of South Africa v South African Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at 177B. See also
Ndlovu
v Minister of Home Affairs and Another
2011 (2) SA 621
(KZD) paras [20 – 21] albeit that the latter
case was decided in the context of an application for recusal.
[13]
Print
Media South Africa and Another v Minister of Home Affairs and
Another
2012
(6) SA 443
(CC)
[14]
At
Chapter 34 pages 48 - 50
[15]
The
Bill of Rights Handbook at page 161
[16]
[2000] ZACC 8
;
2000
(3) SA 936
(CC)
[17]
Case
and Another v Minister of Safety and Security and Others, Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996
(3) SA 617
(CC) at para
[63]
[18]
para
[39]
[19]
S
v M
(Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) at para
[20]
& [25]
[20]
Pretoria
Portland Cement Co Ltd and Another v Competition Commission and
Others
2003
(2) SA 385
(SCA)
[21]
1979
(1)  SA 626 (A) at 635H – 636B
[22]
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) at para
[32]
[23]
At
para [20]
[24]
See
Dumani
v Nair
2013 (2) SA 274
(SCA) at para [32]
[25]
See
Littlewood
v Minister of Home Affairs
2006 (3) SA 474
(SCA) at para [18]
[26]
2005
(4) SA 67
(SCA) at para [29]