JOHANNESBURG – The Independent Communications Authority of South Africa (Icasa) might have erred when it authorised material for three adult content TV channels, the Western Cape High Court heard on Monday.
At the centre of the legal battle is an Icasa decision to allow On Digital Media to introduce the three channels.
Judge Lee Bozalek heard fresh submissions from applicants and respondents on Monday about whether the adult content needed to be sent back to Icasa to be reclassified.
After listening to arguments, Judge Bozalek said: “It has emerged that (Icasa) missed a material fact and made an error in law.
“On Digital Media also intended to do a criminal act by airing the content and Icasa, in allowing that decision, must have been unlawful as well.”
Judge Bozalek asked the parties to file further papers with regard the implications of section 24A(3) of the Films and Publication Act in the review application brought by the Justice Alliance of South Africa, Cause for Justice, and Doctors for Life.
At the initial hearing in August, On Digital Media and Icasa argued that section 24A(3) did not apply to On Digital Media and that Icasa need not take it into consideration.
They said no “bad pornography” would be aired and if Icasa had refused to authorise the channels, it would have been acting contrary to Parliament’s intention and the statutory scheme.
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Darryl Cooke, advocate for the Justice Alliance of South Africa, told the court on Monday: “Our client argues that the section is applicable and in certain circumstances makes it a criminal offence to broadcast porn.
“It appears as if Parliament’s intention was clear – it does not want to make X18 material available to the public other than in very specific circumstances. Icasa made a material error in law in disregarding this piece of legislation in reaching its decision.”
Steven Budlender, for On Digital Media, conceded the section did apply to the company and that the company had been in breach of the section when it broadcast classified X18 content last year.
“On Digital Media’s proposal is that rather than remitting the matter to Icasa to revisit, the court should vary the decision to deal with section 24A(3),” he said.
Cooke, however, argued: “The court may vary the decision only in exceptional circumstances. We are of the view that this situation does not constitute exceptional circumstances.
The appropriate remedy in this case would be to remit the matter to Icasa, for various reasons – one being that Icasa may well reach a different decision, after considering section 24A(3).”
– IOL
