JOHANNESBURG — The Independent Communications Authority of South Africa (Icasa) has been ordered to review material for three adult content TV channels, the Western Cape High Court has ruled.
Judge Lee Bozalek has set aside and remitted Icasa’s decision to allow On Digital Media (ODM), which broadcasts as TopTV, to introduce the three channels. 
“The decision taken by Icasa, in terms of which it authorised ODM to broadcast three pornographic channels, namely Playboy TV, Desire TV and Private Spice, is reviewed and set aside,” Judge Bozalek ruled yesterday.
“The matter is remitted back to Icasa for reconsideration, and Icasa and ODM are ordered to pay the applicants’ costs.”
Judge Bozalek had previously said in court that Icasa missed a material fact and made an error in law when it authorised material for three adult content TV channels.
“ODM intended to do a criminal act by airing the content and Icasa, in allowing that decision, must have been unlawful as well,” he said.
The ruling comes after the Justice Alliance of South Africa (Jasa), Cause for Justice and Doctors for Life brought a review application with regard to the implications of section 24A(3) of the Films and Publication Act.
At the initial hearing in August, ODM and Icasa argued that Section 24A(3) did not apply to ODM 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 Jasa, told the court the section was applicable and in certain circumstances made it a criminal offence to broadcast porn.
Steven Budlender, for ODM, conceded the section did apply to ODM and that the company had been in breach of the section when it broadcast classified X18 content last year.
In response to the ruling, Jasa chief executive John Smyth said: “The effect of the judgment is that broadcasting of the porn channels must cease forthwith as from today. The respondents have 15 days to lodge an appeal.
“We are very pleased indeed by the way things have turned out. I do believe that this could be a watershed decision. Much credit goes to Judge Bozalek, who took very great care over the matter.”
— IOL
