Islamic Unity Convention v Independent Broadcasting Authority and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokroro J, O'Regan J, Sachs J, Yacoob J, Du Plessis J and Skweyiya AJ
• Judgment Date: 11 April 2002
• Citation: 2002 (4) SA 294 (CC)
• Docket Number: CCT 36/01
• Hearing Date: 22 November 2001
• Counsel: J J Gauntlett SC (with him A Schippers) for the applicant. M Seligson SC (with him A Katz and M Chaskalson) for the fourth respondent. No appearance for the remaining respondents.
• Court: Constitutional Court

Langa DCJ:

Introduction

[1] The applicant, the Islamic Unity Convention, runs a community B radio station known as Radio 786 under a broadcasting licence issued to it by the first respondent, the Independent Broadcasting Authority (the IBA). [1] On 8 May 1998 the station broadcast a programme entitled 'Zionism and Israel: An in-depth analysis' in which an interview with one Dr Yaqub Zaki, C described as an historian and author, was featured. In the interview, Dr Zaki dealt with the historical, political, social and economic factors which, according to him, played a role in the establishment of the State of Israel. He expressed views which, among other things, questioned the legitimacy of the State of Israel and Zionism as a political ideology, asserted that Jewish people were not gassed in concentration camps during the Second World War but died of infectious D diseases, particularly typhus, and that only a million Jews had died.

[2] Following the broadcast fourth respondent, the South African Jewish Board of Deputies (the Board), lodged a formal complaint with the second respondent, the Head: Monitoring and Complaints Unit, [2] claiming that the material that had been E broadcast contravened clause 2(a) of the Code of Conduct for Broadcasting Services (the Code) in that it was 'likely to prejudice relations between sections of the population, ie Jews and other communities'. The Code is contained in Schedule 1 to the Independent Broadcasting Authority Act (the F Act). [3]

[3] A copy of the complaint was sent to the applicant for its comment. In its response, applicant denied that it had contravened clause 2(a) of the Code and claimed that the complaint had in any event lapsed as it had not been lodged within the 30 days required by the relevant complaints procedures. After some correspondence had passed between the Board and the Complaints Unit, G however, it was accepted by the latter that the complaint was not out of time. It then referred the complaint to the third respondent, the chairperson of the Broadcasting Monitoring and Complaints Committee (the BMCC), who decided that the matter should be dealt with by the BMCC by way of a formal hearing.

[4] The Complaints Unit had failed, however, to comply with the H IBA's procedures, which required it to advise the applicant that the complaint had not lapsed, but had been referred to the third respondent. When the applicant discovered that the complaint was in fact being processed, it I

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launched an application in the Witwatersrand High Court challenging the decisions that had been taken by the second A and third respondents. Largely as a result of misleading information which applicant had received from the IBA and its Complaints Unit, the relief sought initially was wide-ranging, but much of it had fallen away by the time the hearing before the High Court concluded. B

[5] Only two aspects of the relief for which the applicant applied have relevance to these proceedings. First, applicant asked the High Court to grant an order declaring that clause 2(a) of the Code is unconstitutional and therefore invalid because of its inconsistency with the right to freedom of expression in s 16 of the Constitution of the Republic of South Africa Act 108 of 1996. Second, C the Court was requested to review and set aside the decision of the second respondent to refer the complaint to the third respondent, and that of the third respondent to hold a formal hearing to deal with the complaint.

[6] Full argument was addressed to the High Court on both D issues. On 12 April 2001 Marais J held in favour of the applicant that the referral of the complaint by the second respondent to third respondent was fatally flawed. He accordingly set aside the decisions of the second and third respondents. In the light of this finding, Marais J ruled that it was not necessary for him to consider the constitutional issue concerning clause 2(a) and he expressly declined to do so. E

[7] The applicant now seeks leave to appeal directly to this Court against the High Court's decision not to deal with the constitutionality of the impugned provision. The respondents do not oppose the application to bring the appeal directly to this Court. The Board's opposition is concerned only with the substantive dispute on F the constitutionality of clause 2(a). Marais J has certified under Rule 18(2) [4] that it is in the interests of justice for the appeal to be brought directly to this Court. Notwithstanding the unanimity on the question of a direct appeal, it remains the duty of this Court to consider whether this is an appropriate matter for leave to appeal to be granted. G

The judicial discretion in an application in terms of s 172 of the Constitution

[8] Marais J declined to deal with the issue of the constitutionality H of clause 2(a) of the Code for two reasons. The first was that the issue had become academic in view of his decision to review and set aside the decisions of the second and third respondents. Secondly, the Judge took the applicant's request for a declaration that the provision was inconsistent I

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with the Constitution to be a prayer for a declaratory order in terms of s 19(1)(a)(iii) A of the Supreme Court Act. [5] This led him to hold that, on the assumption that s 19(1)(a)(iii) gave him the power to decide the constitutional issue, this was 'not an appropriate case to decide so important an issue'.

[9] In terms of s 19(1)(a)(iii) the High Court has the power, in its discretion, to enquire into and determine any B existing, future or contingent right or obligation, notwithstanding that the person seeking the order cannot claim any relief consequential upon the determination. In this case the applicant sought an order declaring that clause 2(a) is inconsistent with s 16(1) of the Constitution and without force or effect. The High Court was not being asked to 'enquire into and determine' applicant's rights, but C to exercise its powers in terms of s 172(1)(a) of the Constitution and to declare clause 2(a) invalid. [6]

[10] A Court's power under s 172 of the Constitution is a unique remedy created by the Constitution. The section is the constitutional source of the power to declare law or conduct that is D inconsistent with the Constitution invalid. It provides that when a Court decides a constitutional matter, it must declare invalid any law or conduct inconsistent with the Constitution. It does not, however, expressly regulate the circumstances in which a Court should decide a constitutional matter. As Didcott J stated in J T E Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others: [7]

'Section 98(5) admittedly enjoins us to declare that a law is invalid once we have found it to be inconsistent with the Constitution. But the requirement does not mean that we are compelled to determine the anterior issue of inconsistency when, owing to its wholly abstract, F academic or hypothetical nature should it have such in a given case, our going into it can produce no concrete or tangible result, indeed none whatsoever beyond the bare declaration.' [8]

[Footnote omitted.]

[11] In determining when a Court should decide a constitutional matter, the jurisprudence developed under s 19(1)(a)(iii) G will have relevance, as Didcott J pointed out in the J T Publishing case. It is, however, also clear from that judgment that the constitutional setting may well introduce considerations different from those that are relevant to the exercise of a Judge's discretion in terms of s 19(1)(a)(iii). [9]

[12] What is clear is that the High Court erred in approaching the prayer H

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for constitutional invalidity as if it were a prayer for discretionary relief in terms of s 19(1)(a)(iii). The A relief was sought in terms of the Constitution itself and not under the Supreme Court Act. It is already settled jurisprudence of this Court that a Court should not ordinarily decide a constitutional issue unless it is necessary to do so. [10] Nor should it ordinarily decide a constitutional issue which is moot. [11] The decision as to whether a Court B should decide a constitutional matter remains one governed by the Constitution and its imperatives, not one determined solely by a consideration of the circumstances in which declaratory relief under s 19 of the Supreme Court Act would be granted.

[13] The matter is in any event not academic. The setting aside C of the decisions of the second and third respondents was not dispositive of the real issue between the applicant and the Board. [12] The dispute concerning the constitutionality of the provision on which the Board's complaint is based is an acute and continuing one. Since it was always highly likely that the Board would renew its complaint, making a determination on the D constitutional validity of the provision would avoid subjecting applicant, and anyone similarly situated, to an enquiry held on the basis of a provision of doubtful constitutionality. The dispute is a burning issue and one that is necessary in the public interest to resolve, involving as it does a provision that is fundamental to the regulation of broadcasting and, more particularly, what may be broadcast and what may not. This is quite apart from another factor E which Marais J took into account in coming to the conclusion that the matter was academic, and that is the impression that he had been given to the effect that new proposals which had been made by the IBA to replace provisions of the Code, including the impugned provision, would soon be put into operation. As Marais J later discovered, that F impression was based on erroneous information. A position paper, which reflected the IBA's view that clause 2(a) was overbroad and therefore constitutionally objectionable, had indeed been...