IN THE INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
Urgent referral regarding the rejection of a political advertisement, in terms of Regulation 6(6) of the Regulations on Party Election Broadcasts, Political Advertisements, the Equitable Treatment of Political Parties by Broadcasting Licensees and Related Matters
WRITTEN SUBMISSIONS ON BEHALF OF THE DEMOCRATIC ALLIANCE
1 The South African Broadcasting Corporation ("SABC") has rejected a series of political advertisements by the Democratic Alliance ("DA") in terms of Regulation 6(4) of the Regulations on Party Election Broadcasts ("Political Advertising Regulations").1 The political advertisements are for television and radio.
2 These submissions are provided in support of the DA's referral of the SABC's rejection to the Independent Communications Authority of South Africa ("the Authority") for determination in terms of Regulation 6(6) of the Political Advertising Regulations.
3 On behalf of the DA, we submit that the SABC's rejection of its political advertisements is unlawful, constitutional and invalid.
4 On 3 April 2014, the Democratic Alliance ("DA") submitted a political advertisement to the South African Broadcasting Corporation ("SABC") for broadcast. The advertisement can be viewed on-line at https://www.youtube.com/watch?v=g6jU2bZxGKI. The following is the text of the advertisement, which is read by the DA's Gauteng Premier Candidate, Mmusi Maimane:
"So they say they took South Africa forward. Life today is better than it was 20 years ago. There have been some great leaders, leaders that have taken this country forward. You voted for them.
But since 2008, we have seen President Zuma's ANC. An ANC that is corrupt. An ANC for the connected few. It's an ANC that's taking us backwards. R200 million is spent on upgrading the President's private house. We've seen a police force killing our own people. An ANC where 1.4 million more South Africans lost their jobs. Where are the jobs President Zuma?
iANC, Ayasifani [it's not the same/it has changed].
Together we can bring hope. Together we can allow an environment that creates jobs. Together, we can bring change for all South Africans."
5 The DA also submitted a series of radio advertisements to the SABC, which it has rejected. The contents of the various radio advertisements are as follows:
"Voiceover: Yazi, I was thinking of voting EFF this election. The ANC has just become so corrupt under Zuma. But then I got thinking: Isn't there the same problem in the EFF? Julius got rich overnight in the ANC Youth League, owes sixteen million rand in unpaid taxes and is now on trial for corruption. They just want to get their hands on public money. That's why I'm looking forward to voting for a party that will cut corruption and create jobs.
Announcer: We can't cut corruption by voting for more corruption. Vote DA. Together for change. Together for jobs."
"Voiceover: I voted for the Minority Front in the 2009 elections, but it got me nowhere. I see now that small parties can't beat Zuma's ANC at provincial level, like the DA has done. In fact they often give our votes away by siding with the ANC when the elections are over. I'm not letting that happen. I'm not wasting my vote in this election. I'm looking forward to voting DA.
Announcer: Vote DA. Together For Change. Together For Jobs."
"Voiceover: It's clear that our country needs jobs. More jobs means less crime and a better life for everyone. The DA will carry out a plan that the South African Reserve Bank says will create 6 million real, permanent jobs. It starts by cutting corruption and improving education. Then it boosts support for small businesses and creates a million internships to expand work experience. I'm looking forward to voting for a party that will restart progress to a better life.
Announcer: Vote DA. Together For Change. Together For Jobs."
"You know, I tried voting for a smaller party in the last election, but it got me nowhere. Small parties can't beat Zuma's ANC at provincial level like the DA has done. And they often give our votes away by forming a coalition with the ANC. I'm definitely not wasting my vote this time. That's why I'm looking forward to voting DA.
Announcer: A vote for a small party simply splits the vote, and gives Zuma's ANC more power. Vote DA. Together For Change. Together For Jobs."
"Voiceover: The DA can retain the Western Cape this election and continue the progress it has made. But it needs every vote, including mine and yours. A vote for a small party is a wasted vote. Because small parties often give your vote away, by going into coalition with the ANC. I'm not wasting my vote on May 7th. I'm looking forward to voting DA.
Announcer: The DA has a record of delivery and commitment to more. Vote DA. Together For Change. Together For Jobs."
6 At 17:44 on 10 April 2014, the acting Group Chief Executive Officer of the SABC wrote to the DA's advertising agency. A copy of the covering email is attached to the DA's accompanying affidavit as Annexure A.
7 The SABC's email included a letter which informed the DA that "we are not able to continue to broadcasting" the DA's political advertisements. The letter is attached to the DA's accompanying affidavit as Annexure B. The SABC's reasons for refusing to broadcast the DA's political advertisements are stated to be the following:
7.1 First ground: the reference to "police killing our people" in the DA's advertisements constitutes an incitement to violence. This is said to be in breach of the Regulations and the Electoral Code.
7.2 Second ground: the Electoral Code of Conduct prohibits the publication of false information about other parties or candidates. This "can also be extended to information that has not yet been tested and confirmed in a court of law such as the allegations in your advertisement regarding the Nkandla matter."
7.3 Third ground: the Code of the Advertising Standards Authority ("ASA") does not permit attacking another product to promote your own. Though the SABC is forced to concede that this Code does not apply to political advertising, it seeks to avoid this difficulty by contending (without any basis in law) that this Authority is likely to apply the same principle to political advertising.
7.4 Fourth ground: the SABC states that it will not permit personal attacks on any individual, as the DA's advertisement has done in respect of President Zuma. The SABC also states that it will not accept advertisements that pin issues on any specific person, but will only allow parties to make generic statements about issues such as corruption or service delivery.
8 We deal with each of these purported reasons in turn. We demonstrate that none of them provides a proper basis for the decision of the SABC.
9 Before we do so, however, we pause to emphasise that the decision of the SABC has profound implications for important constitutional rights.
THE EFFECT OF THE SABC'S DECISION
10 The SABC is no ordinary private broadcaster. The SABC is an organ of state. It is accordingly obliged to "respect, protect, promote and fulfil the rights in the Bill of Rights."2 It is directly bound by the rights in the Bill of Rights.3
11 The SABC is the sole public broadcaster in the country. It is "owned and controlled by South Africans."4 It provides a public service in its broadcasting.5
12 The SABC is required to be independent, fair, and unbiased. Section 10(1)(d) of the Broadcasting Act provides:
"The public service provided by the Corporation must-
...
(d) provide significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests".
13 The Constitutional Court has recognised that the SABC "has a special function to perform."6
14 Section 6(4) of the Broadcasting Act provides:
"The Corporation must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that-
(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;
(b) displays South African talent in education and entertainment programmes;
(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;
(d) advances the national and public interest."
15 We submit that the special role of the SABC in respecting, protecting, promoting and fulfilling the rights to freedom of expression and political activity is particularly important in an election year. This is a time when contesting political parties in the country join issue in public debate, as they inform and persuade voters in order to allow them to exercise an informed choice when they cast their ballot.
16 Television and radio advertisements are an important mechanism to reach and persuade voters. As the accompanying DA affidavit explains, the SABC's television and radio stations are a critical medium for any political party wishing to communicate with the electorate. This is because, for example, the SABC television channels command more than half of all television viewers in the country, even when both pay-television and free-to-air television are included.7
17 Thus, because the DA is being prevented from running its advertisements on the SABC, it is being prevented from getting access to more than half the members of the electorate meant to be targeted by the advertisements and entitled to properly exercise their political rights.
18 The public broadcaster has now decided that a number of political advertisements of the DA may not be carried on its airways. It has therefore taken a decision which has the effect of silencing a voice of political persuasion and criticism, by the official opposition party, in an election year.
19 This is a profound and serious infringement of the following rights in the Bill of Rights:
19.1 The right to free expression enshrined in s 16 of the Constitution; and
19.2 The right to campaign for a political party enshrined in s 19(1)(b) of the Constitution.
20 The advertisements that the SABC has banned lie at the core of the right protected by s 16(1). The advertisements are political speech, containing legitimate and fact based criticism of the ANC, in an election year. This kind of expression lies at the very heart of the protection afforded to expression by our Constitution.
21 We submit that the rejection cannot be justified. The reasons provided by the SABC for the rejection are utterly inadequate.
22 It appears that the SABC rejected the advertisements, not in order to protect the public from incitement to violence or to prevent the spreading of falsehoods in the guise of electioneering, but to protect the African National Congress ("ANC") and its leader, President Jacob Zuma, from valid and legitimate political criticism on matters of clear public interest. It would be an extraordinary and, we submit, unlawful infringement of the DA's rights of free expression and political freedom if ICASA were to uphold the SABC's refusal to broadcast the DA's political advertisements. We submit that there are no grounds upon which it may lawfully do so.
23 We accept, of course, that Regulation 6(9) of the Regulations on Political Advertisements, 2014 provides:
"A party that submits a PA to a broadcasting service licensee for broadcast must ensure that the advertisement does not:
(a) Contravene the provisions of the Electoral Code, the Electoral Act and the Broadcasting Act; or
(b) Contain any material that is calculated, or in the ordinary course is likely, to provoke or incite any unlawful, illegal or criminal act, or that may be perceived as condoning or lending support to any such act."
24 We submit that there is no basis for concluding the DA's advertisement breaches any of these provisions.
25 This is so even on the plain language of the Regulations.
26 It is even more clear when it is borne in mind that the Regulations must be construed narrowly. Because the rejection of a political advertisement limits constitutional rights, the Regulations must be construed to limit expression as little as possible. The Constitutional Court has held that a legal provision that limits expression "must bear a meaning which is the least destructive of other entrenched rights and in this case free expression rights. The reach of the statutory prohibition must be curtailed to the least intrusive means necessary to achieve the purpose of the section."8
27 The Authority is therefore constitutionally required to interpret the provisions of the Electoral Code and the Political Advertisement Regulations narrowly, in a manner that causes least harm to the right of freedom of expression.
FIRST GROUND OF REJECTION: INCITEMENT TO VIOLENCE
28 We accept that incitements to violence are not permissible in political advertisements. If the advertisement constituted an incitement to imminent violence, it would fall within Regulation 6(9)(b) and be prohibited.
29 However, the advertisements do not constitute an incitement to violence. The only portion of the advertisements said by the SABC to constitute an incitement to violence is a photograph of a police officer firing a shotgun at two cowering citizens, while the voiceover says: "We've seen a police force killing our own people."
30 In the leading case on the meaning of "incitement", the Appellate Division held as follows:
"[I]t seems to me proper to hold that, in criminal law, an inciter is one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading, or the arousal of cupidity. The list is not exhaustive. The means employed are of secondary importance; the decisive question in each case is whether the accused reached and sought to influence the mind of the other
person towards the commission of a crime."9
31 The statements in the advertisements in no way "seek to influence the mind of
another to" commit violence. On the contrary, they condemn violence.
32 The only reasonable interpretation of this part of the advertisements is that it is a criticism of unlawful police violence against unarmed citizens. This is a criticism that may validly be made in a democracy in which the police force has a record of using disproportionate violence against protesting citizens. It cannot reasonably be interpreted as an incitement to action against the police.
33 Moreover, the criticism is based on objective facts. South Africa has seen a significant increase in the use of lethal violence by the South African Police Service in dealing with legitimate political protest:
33.1 In August 2012, 34 miners were killed and 78 injured after police fired on protesting miners in Marikana.10
33.2 In April 2011, Andries Tatane died after being shot by rubber bullets and brutally beaten by six officers during a service delivery protest in Ficksburg. The incident was captured on camera and the footage was broadcast nationally. 11
33.3 In Kubjana and Relela, police shot and killed a 15 year old boy and two other protesters during a series of protests by the community. The protests were sparked by the murders of a local woman and a child in January 2014. 12
33.4 In the same month, two people were killed and two injured after being shot by police during a service delivery protest in Mothuthung in the North West Province. 13
34 There can therefore be no serious suggestion that the DA's advertisement constitutes an incitement to violence, or is in any way misleading. It is a valid criticism of a police force that has repeatedly killed unarmed protestors.
35 If this statement constitutes incitement to violence, then every time the media reports on incidents of police brutality, it would be inciting violence. That is plainly not the case.
SECOND GROUND OF REJECTION: PUBLICATION OF FALSE INFORMATION ABOUT OTHER CANDIDATES OR PARTIES
36 The SABC alleges that the reference in the advertisements to the Nkandla scandal constitutes the publication of false information about other candidates or parties. This is said to be a breach of the Electoral Code.
37 The only reference in the advertisements to Nkandla is the following:
"Two hundred million rand [was] spent on upgrading the President's private house."
38 It cannot be seriously suggested that this statement is false:
38.1 Nkandla is the site of President Zuma's personal home.
38.2 It is a matter of public record that the Department of Public Works has spent more than R210m on improvements at the President's Nkandla Estate since May 2009. This was confirmed by the Department of Public Works in a sworn affidavit in litigation in the North Gauteng High Court. 14
38.3 In her official report on the Nkandla project, Secure in Comfort, the Public Protector concluded that the total expenditure incurred by the Department of Public Works in respect of the Nkandla upgrades was R215 444 415,68. The report describes the R215 million as "the cost of security installations at President Zuma's private residence". 15
39 Far from constituting the publication of false information, the advertisement's reference to the amount of money spent on Nkandla is a statement of objective fact, which has been confirmed in numerous public forums, including by government officials. It accordingly does not constitute a lawful ground for the SABC's refusal to screen the advertisement.
40 The SABC also suggests in its letter that any allegation "that has not yet been tested and confirmed in a court of law" constitutes a false statement for the purposes of the Electoral Code. This is plainly untenable for two reasons.
40.1 First, as just demonstrated, the facts concerned were placed before the North Gauteng High Court in an affidavit by an official from the Department of Public Works. They were not contested.
40. Second, and in any event, this is not a permissible impermissible interpretation of the term "false statement" in the Electoral Code. On an ordinary interpretation, statements are objectively either true or false. They are certainly not presumed false until they are confirmed to be true by a court. Moreover, particularly in the political arena, truth of a statement does not need to be confirmed by a court of law in order to allow it to be made in a political campaign. Such an interpretation would preclude the publication of the vast majority of claims made in political advertisements, and would be unduly restrictive of the rights of freedom of expression and political rights. Such an interpretation would render the Regulations unconstitutional and therefore cannot be permissibly adopted.
THIRD GROUND OF REJECTION: ASA CODE PROHIBITS ATTACKING ANOTHER'S PRODUCT TO PROMOTE YOUR OWN
41 The SABC accepts that the ASA's Advertising Code does not apply to political advertising. But it then asserts that the Authority will apply the rule that one "may not attack another product to promote one's own" in the context of political advertising.
42 The SABC gives no statutory or other authority for this claim. This is hardly surprising, since:
42.1 The ASA Code expressly excludes political advertising;
42.2 The Regulations enacted by the Authority do not incorporate or refer to the ASA Code and certainly do not replicate the part of the Code now relied on; and
42.3 If the Authority were to apply this rule to political advertising, it would be an obviously unconstitutional infringement of the expression and political rights of political parties.
43 The ASA rule does not apply to political advertising for a reason: it would be a patently unconstitutional limitation of the right to freedom of expression if political parties were precluded from criticising one another freely and robustly in their political advertisements. The freedom to criticise the "product" of other political parties (i.e., their policies and their record of governance) in order to promote your own is a necessary precondition of democratic elections. In a democracy, opposition parties are permitted to attack the policies and record of the governing party in order to persuade voters that they ought not to vote for the governing party.
44 Any limitation of this kind of expression cannot be justified on the ground of the ASA's Code:
44.1 The ASA Code's purpose is to protect confidence in the advertising industry by ensuring that advertising is informative, factual, honest, decent, and legal.16 Membership of the ASA is voluntary. The members of the ASA are advertising agencies, marketers and media.
44.2 The members of the ASA agree to adhere to the Code and to abide by the ASA's rulings. The Code is a contract entered into between the members of the industry for the purposes of self-regulation.17
44.3 The Code prohibits disparagement:18
"Disparagement
6.1 Advertisements should not attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly.
6.2 Comparisons highlighting a weakness in an industry or product will not necessarily be regarded as disparaging when the information is factual and in the public interest.
6.3 In considering complaints under this Clause, the ASA shall take cognisance of what it considers to be the intention of the advertiser."
44.4 It would be manifestly inappropriate to apply this prohibition to political advertising. Such application would be unduly restrictive of the rights of political parties to engage in robust criticism of one another's policies and records of governance.
44.5 For this reason, the Code deliberately excludes political advertising from its scope of application. Under the heading "Scope", it provides:
"2.3 Political advertising
The provisions of paragraphs 2.1 and 2.2 above shall not be interpreted to bring political advertisements into the sphere of the ASA's functions. As in the case of any advertisement the individual medium shall determine whether any political advertisement presented to it is acceptable."
45 In addition, the Electoral Code provides:
"4 Public commitment
(1) Every registered party and every candidate must-
(a) publicly state that everyone has the right-
(i) to freely express their political beliefs and opinions; (ii) to challenge and debate the political beliefs and opinions of others;"
46 This means that the Electoral Code expressly envisages that parties will
comment on the beliefs (as displayed by words and practice) of other candidates, and that they will do so robustly and in the spirit of open contestation and argument that constitutes political engagement in a democracy.
47 The attempt by the SABC to apply the ASA's prohibition of disparaging advertising to political advertisements is devoid of lawful justification, and patently unconstitutional.
FOURTH GROUND OF REJECTION: THE SABC DOES NOT PERMIT PERSONAL CRITICISM OF ANY INDIVIDUAL
48 The SABC does not refer to any statutory or regulatory authority for this ground of rejection. The SABC appears to have taken its own decision, without legal justification or authority, that it will not permit political parties to focus political criticisms on any particular individual, and will only permit generic statements, for example, about corruption or lack of service delivery.
49 On this basis alone, the SABC's decision is unlawful. It is trite that the principle of legality means that no organ of state may exercise any power or perform any function beyond that conferred upon them by law.19 The SABC was therefore only entitled to reject the advertisements on the grounds specified in the Regulations. By going beyond those grounds, it has acted unlawfully.
50 The SABC's position is apparently that it does not permit criticism of any individual, even if that person is the head of a political party and even if the criticism involves substantial political issues of public import. This is an extraordinary position.
51 It is not for the SABC to determine the content of the kinds of political critique that parties are permitted to use in their advertisements. If the DA believes that criticism may validly be directed at individuals, and wishes to do so rather than to make "generic statements", that is political speech that is protected under s 16(1) of the Constitution. It cannot be limited by the unauthorised and unilateral decision of the SABC.
52 If a particular individual is aggrieved by any personal criticisms that are expressed in a political advertisement, he has other remedies available to him. These include an action for defamation. The Constitutional Court has held that our common law of defamation strikes the appropriate balance between the constitutional rights of freedom of expression and human dignity.20
53 Of course, we submit that the statements about President Zuma contained in the advertisement would not give rise to any valid cause of action or complaint under the law of defamation, because they constitute honest criticism of his conduct in his capacity as President of the country, in the context of political debate in the run-up to national government elections.
54 In the McBride case, the Constitutional Court held that, within the confines of dignity and reputation, it is important that debates about the suitability of an individual for public office be robust:21
"It was also important that public debate about his fitness should, within the constitutional bounds protecting Mr McBride's dignity and reputation, be untrammelled. Public debate in South Africa has always been robust. More than 50 years ago, within the then- constrained perimeter of racially-defined public life, a court noted that in this country's political discussion, ‘(s)trong epithets are used and accusations come readily to the tongue'. The court also found that allowance must be made ‘because the subject is a political one, which had aroused strong emotions and bitterness', of which readers were aware, and that they ‘would not be carried away by the violence of the language alone'.
These words are still apt today. Public discussion of political issues has if anything become more heated and intense since the advent of democracy. A constitutional boundary is the express provision in the Bill of Rights that freedom of expression does not extend to hate speech. Another is the legitimate protection afforded to every person's dignity, including their reputation. But, so bounded, it is good for democracy, good for social life and good for individuals to permit maximally open and vigorous discussion of public affairs." 22
55 All of the statements about President Zuma contained in the advertisement constitute robust, honest criticisms of his performance in office. It is all the more important that such criticism be permitted where the person being criticised is the holder of the highest political office in the country.
56 If the Authority upholds the SABC's determination, it will be allowing the SABC to make its own determinations about what is permitted political speech, in breach of the DA's rights to free expression and political freedoms. Doing so would mean that the Authority too is acting in breach of the Regulations and thus violating the principle of legality. A decision of the Authority to uphold the SABC's determination would thus also be unlawful.
THE RIGHT OF FREEDOM OF EXPRESSION
57 Section 16 of the Constitution provides:
"Freedom of expression
(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."
58 The importance of the right to freedom of expression has been repeatedly emphasised by South Africa's highest courts.
59 The special importance placed on freedom of the expression in South Africa must be understood in the light of South Africa's history of thought-control and censorship. In S v Mamabolo, the Constitutional Court accordingly observed that-
"Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression - the free and open exchange of ideas - is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed." 23
60 The right of freedom of expression of political parties is not protected for the sake of the parties themselves. It is in the interests of the public to be able to receive the information that is imparted through political advertising. The right of the public to receive information and be informed lies at the heart of political advertising.
60.1 This is one of the most important purposes of the constitutional protection of freedom of expression:
"The need for public information and awareness flows from the nature of our democracy. Public participation on a continuous basis provides vitality to democracy. This was also recognized by the House of Lords in McCartan Turkington Breen (A Firm) v Times Newspapers Ltd that "[t]he proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring." A vibrant and independent media encourages citizens to be actively involved in public affairs, to identify themselves with public institutions and to derive the benefits that flow from living in a constitutional democracy. Access to information and the facilitation of learning and understanding are essential for meaningful involvement of ordinary citizens in public life." 24
60.2 The Supreme Court of Appeal has likewise made clear that it is the rights of the public that are affected when freedom of expression is limited:
"It is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press. . . . ‘Press exceptionalism - the idea that journalism has a different and superior status in the Constitution - is not only an unconvincing but a dangerous doctrine.' The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself." 25
61 Where speech falling outside section 16(2) of the Constitution is regulated, this inevitably limits section 16(1) of the Constitution:
"Where the State extends the scope of regulation beyond expression envisaged in s 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in s 36(1) of the Constitution." 26
62 In the present case, the advertisements concerned plainly fall within section 16(1) of the Constitution. Moreover, the SABC does not merely seek to regulate the DA's advertisements. Its effect is to prevent their broadcast in their entirety, in advance. This is what is known as a "prior restraint".
63 The Constitutional Court and the SCA have held that a prior restraint is a drastic interference with freedom of expression:
"(T)he prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice." 27
64 We submit that a prior restraint of a political advertisement is even more drastic because it goes to the core of the purpose of the protection of freedom of speech. In the circumstances, the most powerful and cogent justification would be required to render the SABC's decision permissible.
65 Moreover, in attempting to justify a limitation on freedom of expression, the SABC maynot rely on harm which is speculative, hypothetical or based on conjecture. Rather, as the jurisprudence of our courts makes plain, it must discharge its burden by showing that the harm caused by the advertisements is demonstrable and substantial and there is a real risk that it will occur.
66 This is made clear by the decision of the Supreme Court of Appeal in Midi Television t/a eTV v Director of Public Prosecutions 2007 (5) SA 540 (SCA):
66.1 In that case, e.tv had made a television programme about a murder that had attracted a great deal of public attention in Cape Town. The DPP asked to see the television programme so as to satisfy himself that it would not prejudice the murder trial. e.tv refused to do so. The DPP then successfully applied to the Cape High Court for an interdict to prohibit the broadcast.
66.2 The SCA disagreed and upheld e.tv's appeal. In doing so it laid down the test to be applied when a Court is asked to restrict freedom of expression in order to protect the administration of justice or to protect some other right. It summarised the position at paragraph 19:
"In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage." 28
66.3 Significantly, the SCA held that these principles
"would also seem to me to apply, with appropriate adaptation, whenever the exercise of press freedom is sought to be restricted in protection of another right." 29
67 The principle that the Courts will not allow freedom of expression to be restricted on a speculative basis or on the basis of conjecture has also been endorsed by the Constitutional Court.30
68 This is the standard that the SABC's refusal must meet if it is to pass constitutional muster. We submit that the SABC's approach is not permissible considered in the light of these principles:
68.1 The SABC has failed to demonstrate any real risk of substantial harm that might materialise as a result of the broadcast of the advertisement. Its claim that the advertisement constitutes incitement to violence is utterly speculative. It is implausible and cannot be sustained.
68.2 The SABC has adopted the most invasive possible interpretation of the phrase "falseinformation" in the Electoral Code. The result is an impermissible limitation of the DA's right of free expression, contrary to the requirement that the Code be given the interpretation that is least destructive of rights.
68.3 The SABC has attempted to impose a restriction that is designed for commercial advertising (the ASA Code) on the DA's political advertising. In doing so, it has again limited the right to expression without any legal basis or justification, and on the basis of purely speculative and unsubstantiated possible harms.
68.4 The SABC has arrogated to itself the power to determine the content of political advertising. The SABC has simply made up a rule that political advertisements may not criticise individuals but must be limited to generic statements. Again, there is no lawful basis for this arrogation of power, and the consequence is an impermissible infringement of constitutional rights.
68.5 The reasons given by the SABC are especially inadequate when applied to the radio advertisements. Most of the reasons simply cannot be applied to the content of the radio advertisements.
69 In all the circumstances, we submit that the SABC's rejection of the DA's advertisements is manifestly unlawful, unconstitutional and invalid. The reasons given by the SABC to justify its rejection of the DA's political advertisement do not meet the threshold imposed by the Authority's Regulations and do not survive constitutional scrutiny.
70 We therefore submit that the Authority is required by the Regulations and the Constitution to make a ruling in the DA's favour within 48 hours, in term of which it:
70.1 Sets aside the SABC's rejection of the advertisements; and
70.2 Directs the SABC to immediately broadcast the advertisements concerned.
STEVEN BUDLENDER
NICK FERREIRA
Counsel for the DA
Chambers, Johannesburg 12 April 2014
Footnotes:
1 Regulations on Party Election Broadcasts, Political Advertisements, the Equitable Treatment of Political Parties by Broadcasting Licensees and Related Matters published on 17 February 2014 under GG 584, No 37350
2 Section 7(1) of the Constitution
3 Section 8(1) of the Constitution
4 Preamble to the Broadcasting Act 4 of 1999
5 Section 10 of the Broadcasting Act 4 of 1999
6 South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others2007 (1) SA 523 (CC) at para 26
7 DA Affidavit, para 27
8 Laugh It Off Promotions CC v SAB International (Finance) Bv T/A Sabmark International (Freedom Of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) at para 48
9 S v Nkosiyana and Another 1966 (4) SA 655 (A) at 658H to 659B (emphasis added)
10 DA Affidavit, para 20.1 and Annexures C and D
11 DA Affidavit, para 20.2 and Annexures E and F 12 DA Affidavit, para 20.3 and Annexures G and H 13 DA Affidavit, para 20.4 and Annexures I and J
14 DA Affidavit, para 21.3 and Annexure L
15 DA Affidavit, para 21.2 and Annexure K
16 Paragraph 11 of the Preface to the Code
17 See, clause 1 of the Preamble to the Code; AIG Life / R Booysen (31 May 2006) (ASA Appeal Committee); Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 12.
18 Clause 6 of the General section of the Code
19 Fedsure Life Assur Ltd v Greater Jhb TMC 1999 (1) SA 374 (CC) at para 58
20 Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) at paras 35-46
21 The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) at para 99
22 The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) at paras 99-100, references omitted
23 S v Mamabolo (e.tv and Others Intervening) 2001 (3) SA 409 (CC), para 37
24 South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others2007
(1) SA 523 (CC) at para 28
25 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) at para 6 (emphasis added)
26 Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) at paras 34 - 35
27 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) (2007 (9) BCLR 958; [2007] 3 All SA 318) in para 15, quoting with approval the Court of Appeal of England and Wales in Attorney-General v British Broadcasting Corporation(1981) AC 303 (CA) at 362.
Confirmed by the Constitutional Court in Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC) at para 44
28 Midi Television at para 19 (emphasis added)
29 Midi Television at para 20 (emphasis added)
30 S v Mamabolo 2001 (3) SA 409 (CC) at para 45; Laugh It Off Promotions CC v SAB Intl (Finance) BV t/a Sabmark Intl 2006 (1) SA 144 (CC) at para 59
Issued by the DA, April 12 2014
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