Islamic Unity Convention v Independent Broadcasting Authority and Others

• Jurisdiction: South Africa
• Citation: 2002 (4) SA 294 (CC)

Islamic Unity Convention v Independent Broadcasting Authority and Others
2002 (4) SA 294 (CC)

2002 (4) SA p294

Citation	2002 (4) SA 294 (CC)
Case No	CCT 36/01
Court	Constitutional Court
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
Heard	November 22, 2001
Judgment	April 11, 2002
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.

Flynote : Sleutelwoorde G

Constitutional practice — Courts — Powers of — High Court — Application H for declaration of constitutional invalidity — Although guidelines developed under s 19(1)(a)(iii) of Supreme Court Act 59 of 1959 relevant to decision whether Court should determine constitutional matter, such decision ultimately governed by Constitution and its imperatives — Constitution of the Republic of South Africa Act 108 of 1996. I

Constitutional practice — Courts — Powers of — High Court — Application for declaration of Constitutional invalidity — Such application not prayer for discretionary relief in terms of s 19(1)(a)(iii) of Supreme Court Act 59 of 1959 — High Court required to exercise its powers in terms of s 172(1)(a) of Constitution of the Republic of South Africa Act 108 of 1996. J

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Constitutional practice — Appeal — Constitutional Court — Direct access A to — When granted — Less reluctance to grant direct access where matter concerns direct application of Constitution, matter not involving common law and interests of justice require early resolution of dispute — Application for leave to appeal directly to Constitutional Court against High Court's refusal to determine constitutionality of provision in Code of Conduct for Broadcasting Services (Schedule 1 to B Independent Broadcasting Authority Act 153 of 1993) granted.

Constitutional law — Human rights — Right to freedom of expression — Clause 2(a) of Code of Conduct for Broadcasting Services (Schedule 1 to Independent Broadcasting Authority Act 153 of 1993) prohibiting, inter alia, broadcasting of material likely to prejudice relations between sections of population — Such C prohibition extending beyond constitutionally unprotected expression enumerated in s 16(2) of Constitution — Prohibition so widely phrased and so far-reaching as to deny broadcasters and audiences right to hear, form, freely express and disseminate their views and opinions on wide range of subjects — Notwithstanding that appropriate regulation of D broadcasting serving important and legitimate purpose, limitation on right not justifiable — Prohibition in clause 2(a) prohibiting broadcasting of material 'likely to prejudice relations between sections of the population' accordingly unconstitutional — Constitution of the Republic of South Africa Act 108 of 1996, ss 16(1) and (2), 36(1). E

Constitutional law — Human rights — Right to freedom of expression — Unprotected expression — Categories of expression enumerated in s 16(2) of Constitution not protected — Regulation of expression falling within those categories not a limitation on right to freedom of expression — Constitution of the Republic of South Africa Act 108 of 1996, s 16(2).

Constitutional practice — Courts — Powers of — Declaration of invalidity — Remedies — Court declaring part of clause 2(a) of F Code of Conduct for Broadcasting Services (Schedule 1 to Independent Broadcasting Authority Act 153 of 1993) unconstitutional and invalid insofar as clause prohibiting broadcasting of material 'likely to prejudice . . . relations between sections of the population' — Section 192 of Constitution specifically mandating G regulation of broadcasting — Neither just and equitable nor in public interest to strike down relevant portion without replacement — Court formulating notional severance to render relevant portion ineffective in application to expression protected by s 16(1) of Constitution — Prohibition to remain in place to prevent broadcast of unprotected expression as enumerated in s 16(2) — Constitution of the Republic of South Africa Act 108 of 1996, ss 16(1) and (2), 192. H

Headnote : Kopnota

Clause 2(a) of the Code of Conduct for Broadcasting Services (Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993) provides that '(b)roadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the I safety of the State or the public order or relations between sections of the population'.

The fourth respondent had lodged a formal complaint in terms of clause 2(a) with the second respondent (the Head: Monitoring and Complaints Unit) following a broadcast by the applicant's community radio station. The J

2002 (4) SA p296

fourth respondent's complaint was that the applicant's broadcast had been 'likely to A prejudice . . . relations between sections of the population'. Arising out of the complaint and the action taken pursuant thereto, the applicant applied to a High Court for (a) an order declaring that clause 2(a) of the Code was unconstitutional and invalid because it was inconsistent with the right to freedom of expression protected by s 16 of the Constitution of the Republic of B South Africa Act 108 of 1996; and (b) an order reviewing and setting aside the second respondent's decision to refer the complaint against the applicant to the third respondent (the chairperson of the Broadcasting Monitoring and Complaints Committee) and the decision by the third respondent to hold a formal hearing into the complaint. The Court ruled that, because it had granted the C application to review and set aside the second and third respondents' decisions, it would be unnecessary to decide on the constitutionality of clause 2(a) as the matter had become academic. In an application for leave to appeal directly to the Constitutional Court against the High Court's refusal to deal with the constitutionality of clause 2(a),

Held, that the High Court had erred in approaching the application for a declaration of constitutional invalidity as if it D were a prayer for discretionary relief in terms of s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959: it had been asked to exercise its powers in terms of s 172(1)(a) of the Constitution. (Paragraphs [9] and [12] at 302B - C/D and 302H - 303A/B.)

Held, further, that, although the jurisprudence developed under s 19(1)(a)(iii) would be relevant in determining when E a Court should determine a constitutional matter, that decision remained one to be governed by the Constitution and its imperatives, rather than one to be determined solely by a consideration of the circumstances in which declaratory relief under s 19 of the Supreme Court Act would be granted. (Paragraphs [11] and [12] at 302G and 303B - C.)

Held, further, that, in any event, the matter was not academic: setting aside the decisions of the second and third F respondents had not disposed of the real issue between the applicant and fourth respondent and, since it was likely that the fourth respondent would renew its complaint based on clause 2(a), the determination of its constitutionality would preclude the applicant, or anyone else in a similar situation, from being subjected to an enquiry held on the basis of a provision of G doubtful constitutionality. The High Court should therefore have dealt with the constitutionality of clause 2(a). (Paragraphs [13] and [14] at 303C - D/E and G/H - H.)

Held, further, as to whether granting leave to appeal directly to the Constitutional Court would be in the interests of justice, that, where a case concerned the direct application of the Constitution and did not involve the common law, and the interests of H justice required an early resolution, there would be less reluctance to grant direct access. (Paragraph [16] at 304D/E - E.)

Held, further, that it would be in the interests of justice that direct leave to appeal be granted for the following reasons: (a) the matter concerned the direct application of the Constitution; (b) the resolution of the issue would contribute to certainty on the part of the general public and the independent regulatory authority as to what would constitute legitimate conduct in relation to the impugned provision; I (c) the parties had accepted that the clause constituted a limitation on the right to freedom of expression, though they differed as to whether or not the limitation was justifiable; and (d) there was no doubt that hearing the appeal would avoid protracted procedures and unnecessary costs. (Paragraphs [17] - [20], summarised, at 304E - 305A.) J

2002 (4) SA p297

Held, further, that it would be inappropriate to decide the constitutionality of clause 2(a) on a basis broader than A that required by the underlying dispute between the parties, namely that portion of clause 2(a) prohibiting the broadcasting of material which was 'likely to prejudice relations between sections of the population', because the other prohibitions in clause 2(a) dealt with complex and contentious issues upon which the parties had not focused their argument. (Paragraph [24] at 305G/H - 306A.) B

Held, further, as to whether the prohibition in clause 2(a) against broadcasting material which was likely to prejudice relations between sections of the population was a limitation on the right to freedom of expression, that, in recognition of the fact that expression might potentially impair the exercise and enjoyment of other rights, such as the right to dignity, as well as other State interests, such as the pursuit of national unity and reconciliation, C the...