South African Jewish Board of Deputies v Sutherland NO and Others

• Jurisdiction: South Africa
• Citation: 2004 (4) SA 368 (W)

South African Jewish Board of Deputies v Sutherland NO and Others
2004 (4) SA 368 (W)

2004 (4) SA p368

Citation	2004 (4) SA 368 (W)
Case No	03/9955
Court	Witwatersrand Local Division
Judge	Malan J
Heard	February 25, 2004
Judgment	March 19, 2004
Counsel	Michael Kuper SC (with him Anton Katz and Johan de Waal) for the applicants.; J J Gauntlett SC (with him A Schippers SC) for the second respondent.

Flynote : Sleutelwoorde G

Administrative law — Administrative act — What constitutes — Decision by Chairperson of Broadcasting Monitoring and Complaints Committee, in terms of para 1.16 of Complaints and Adjudication Procedure formulated in terms of s 63(5) of Independent Broadcasting Authority Act 153 of H 1993, not to allow formal hearing after complaint — Such amounting to 'administrative action' as intended in s 1 of Promotion of Administrative Justice Act 3 of 2000.

Radio and television — Broadcasting Monitoring and Complaints Committee — Decisions of — Review I of — Decision of Chairperson not to allow formal hearing after complaint about radio programme — Chairperson having discretion when to convene formal hearing — Chairperson failing to consider basis of discretion — Paragraph 1.16 of Complaints and Adjudication Procedure formulated in terms of s 63(5) of Independent Broadcasting J

2004 (4) SA p369

Authority Act 153 of 1993 providing insufficient guidance for exercise of A discretion — Regard to be had to purpose of relevant statutory provisions in Act to determine which factors to be taken into account in exercise of discretion — Chairperson first deciding, on incorrect interpretation of Constitutional Court judgment as to constitutionality of clause 2(a) of Code of Conduct for Broadcasting Services (Schedule 1 to Independent Broadcasting Authority Act), that no 'merit' in complaint, and then concluding B that formal hearing not justified — Merits of complaint not only factor to be taken into account in exercise of discretion — Chairperson's decision involving material error of law and resulting in failure to apply mind to issue — Decision unjust and violating applicant's right to procedural fairness — Decision set aside and formal hearing ordered. C

Headnote : Kopnota

The applicant applied for the review and setting aside of the first respondent's decision that the applicant's complaint about a programme broadcast by the second respondent (Radio 786) entitled, 'Zionism and the State of Israel: An In-depth Analysis' (the broadcast) did not merit a formal hearing before the Broadcasting Monitoring and Complaints Committee (BMCC). The applicant had lodged a D formal complaint with the Head: Monitoring and Complaints of the Independent Broadcasting Authority (the IBA), the predecessor of the third respondent (the Independent Communications Authority of South Africa), concerning the broadcast. The complaint was that the broadcast violated the Code of Conduct for Broadcasting Services contained in Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993 (the Act). It was contended that the broadcast had E contravened clause 2(a) of the Code of Conduct in that 'it was likely to be offensive to the religious convictions or feelings of any section of the population [namely the Jewish Community] or likely to prejudice relations between sections of the population [namely the Muslim and Jewish Communities, in particular, and the relations between the Jewish Community and the wider Community in general]'. After a F further explanation of the complaint, the applicant was informed by the IBA that the matter had been handed over to the first respondent, who was to preside at a hearing of the Broadcasting Monitoring Complaints Committee. Radio 786 then launched an application in which it asked the present Court for a review of the IBA's decisions leading up to the convening of a hearing and a declaratory order concerning the G constitutional validity of clause 2(a). On 12 April 2001, Marais J upheld the review application but declined to deal with the declaratory order sought. The Constitutional Court granted Radio 786 leave to approach it directly in order to challenge the constitutional validity of clause 2(a). On 11 April 2002, the Constitutional Court handed down a judgment (Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433)) in which the H following order was made (at 316I - 317A): 'Clause 2(a) of the said Code of Conduct for Broadcasting Services is declared to be inconsistent with s 16 of the Constitution and invalid to the extent that it prohibits the broadcasting of material that is ''likely to prejudice relations between sections of the population'', provided that this order does not apply to (i) propaganda for war; (ii) incitement of imminent violence; or (iii) advocacy of hatred that is I based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.' The effect of the order made by the Constitutional Court was that clause 2(a) of the Code of Conduct for Broadcasting Services continued to exist, but in an amended form. On 14 October 2002, the matter was referred to the first respondent for a determination as to whether a formal J

2004 (4) SA p370

hearing should be convened. He decided not to convene a formal hearing and A therefore no further action was to be taken with regard to the complaint. His ruling had the effect of dismissing the applicant's complaint.

Held, that the first respondent's decision in terms of para 1.16 of the Complaints Procedures (the Complaints and Adjudication Procedures determined by the BMCC pursuant to the powers conferred on it by s 63(5) of the Act and published under Government Notice 779 of 2002 in Government Gazette 23444 of 22 May 2002) to B refuse to convene a formal hearing to consider the complaint amounted to 'administrative action' for the purposes of s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and s 33 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). (Paragraph [21] at 382D/E - E/F.)

Held, further, that first respondent had, in concluding that the Constitutional Court judgment meant that certain words in C clause 2(a) had to be ignored as if struck out, wrongly construed the order of the Constitutional Court and committed an error of law. The question he had set out to determine was whether the broadcast violated that part of clause 2(a) he thought had remained after the Constitutional Court order was made: he could not have dealt with that part of the clause that he erroneously thought had to be struck out. (Paragraph [17] at 379F/G - 380B.) D

Held, further, that due to his misunderstanding of the judgment and order of the Constitutional Court, the first respondent had failed to consider the applicant's complaint. Instead of dealing with the issue of 'hate speech' and the meaning of s 16(2) of the Constitution, he had focused on the question whether the broadcast was 'offensive to the religious convictions or feelings E of any section of the population' (ie the Jewish community). He had asked himself the wrong question, applied the wrong test, failed to apply his mind to the relevant issue, and based his decision on matters not germane to the decision whether to convene a formal hearing. In making his decision he had failed to consider whether the issues raised in the complaint could be resolved without a formal hearing; whether the applicant and Radio 786 had been able to present evidence at a F formal hearing; and whether the parties had specifically requested a hearing. His error was material and had led to an injustice and disregard of the applicant's rights. (Paragraph [28] at 385I - 386D.)

Held, further, that the first respondent had dealt with the merits of the complaint on a mistaken basis. He had had the discretion to determine to convene a formal hearing but had failed to G consider the basis of this discretion. Clause 1.16 of the Complaints Procedure provided no guidance for the exercise of this discretion and he should have considered the purpose of the statutory provisions contained in the Act in order to determine which factors should be taken into account in the exercise of the discretion. An exercise of a power would not be lawful if the functionary misconstrued the purpose of a statute and as a result erred on the jurisdictional facts to be H taken into account when exercising a discretionary power. This ground of review had been entrenched in PAJA. (Paragraphs [29] and [30] at 386D/E - F and H/I - I.)

Held, further that para 1.16 required the first respondent to determine only whether the seriousness of the allegations and the complexity of the issues that arose and, in I particular, the dictates of procedural fairness, required the convocation of a formal hearing. While the substance of the complaint was not irrelevant, it was not the only factor to be considered. Where the complaint was not frivolous or vexatious as envisaged by para 1.6, a request for a formal hearing could not be refused simply on the basis that the complaint had no substance. Additional factors, such as the seriousness of J

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the complaint, the nature of the issues raised and complexity of the legal and factual issues, the question whether the A parties were willing and able to present evidence, and whether the complainant requested a formal hearing, had to be considered. The first respondent had failed to do so, and had instead decided, on an incorrect understanding of the Constitutional Court's judgment, that there was no 'merit' in the complaint and had then concluded that there was no sound reason to hold a formal hearing. (Paragraph [30] B at 387B - E/F.)

Held, further, that the gravity of the issue called...