A victory for parties, broadcasters, the public, our elections and our justice system - Daily Maverick

Last week’s victory against Icasa provides clarity to parties and broadcasters and commits the regulator to deal with issues on an urgent basis.

William Bird is the director of Media Monitoring Africa, Ashoka and a Linc Fellow.

Last week we (Moxii Africa) won an application for leave to appeal against the Independent Communications Authority of South Africa (Icasa). There are three significant aspects to the victory. One of them will have a near immediate positive impact for political party election broadcasts, just before the upcoming local government elections.  

A bit of background. Each election period, the regulator Icasa promulgates elections regulations that seek to deal with party election broadcasts, and political advertisements. The regulations for the most part set out the framework for those broadcasters who choose to carry political advertisements. 

The reason for the regulations is to ensure parties have equitable access to the public and that a broadcaster doesn’t simply favour only one party. Slots for party election broadcasts and political advertisements are scheduled, and Icasa is then meant to monitor compliance with the regulations. Crucially, the regulations also set out a complaints process. It is this complaints process that gave rise to our case to begin with. 

From around November 2024, we alerted Icasa to two critical flaws in the regulations. Through a meeting, written and oral submissions, we stressed the challenges, and offered solutions. Icasa chose not to listen.

In a nutshell the issues were: Firstly, if a broadcaster refused to broadcast a political advert, we said they could only reject it on technical conditions. For example, if the broadcaster says they need an advert in a particular format, and it wasn’t  given to them in the necessary format, they can reject it.  

Icasa disagreed and said that broadcasters can exercise editorial control over the content of the party election broadcast or political advertisement. In the ordinary course of events, broadcasters are responsible for the content they carry, but there are two issues relevant to an election period. 

Firstly, in an election period we need to ensure robust speech, to be exposed to issues and ideas we may well disagree with, or even find offensive. It is precisely in an election period that we need political adverts that expose us to perspectives across the spectrum. Allowing editorial control would allow broadcasters to ban or refuse to broadcast political adverts that didn’t promote social cohesion, or political advertisements that supported ideas the Constitutional Court has found to be unconstitutional – like the death penalty.  

We argued that in an election period, where the Electoral Commission of SA (IEC) is charged with running free, fair and credible elections, it is up to parties to adhere to the code or face being taken to the electoral court. A major concern for us was that if broadcasters had editorial control not only may certain political adverts be refused because broadcasters disagreed with the content or found them offensive, but it also meant that it would leave the decision on whether a party election broadcast or political advert ought to be broadcast to in the hands of Icasa’s Complaints and Compliance Committee. 

While this is good in theory, the Complaints and Compliance Committee had no prescribed time frames in place and in some cases took several weeks to issue decisions – which in some cases meant parties were then denied their right to share their political adverts during the election period.

In court the judge (Judge Petrus van Niekerk of the Gauteng Division of the High Court in Pretoria) agreed with us, mostly. The judge recognised that the regulations were dealing with a limitation of freedom of expression, and so interpretation of the regulations should be narrowly done.  

In a really insightful, pragmatic and practical manner the court held that broadcasters exercise editorial control in limited circumstances, for example where they believe the advert may contain hate speech, incitement to violence or propaganda for war (in other words unprotected speech in the Constitution), but that in such cases the broadcaster, the parties and Pretoria would have to adhere to strict timelines within a complaints process for Pretoria to receive, hear and make a decision on a complaint so that a party’s right to political speech would only be limited in so far as absolutely necessary. 

From a period of uncertainty and in real terms taking weeks, the Court suggested a period of days for the entire complaints process, from complaint to decision. Icasa was not happy, and its reasons are as disheartening as they are astonishing.

The second unconstitutional issue Moxii Africa raised with the regulations was the fact that Icasa said that if a broadcaster refused to broadcast a political advertisement or party election broadcast, only a political party could complain to the Complaints and Compliance Committee, and not a member of the public. 

We experienced this in 2024 when we submitted a complaint, and it was rejected on the grounds that we had no standing. We argued that denying a member of the public the right to submit a complaint about a broadcaster’s refusal to broadcast an advert was unconstitutional. The court agreed with us. Icasa disagreed again.  

It was at this point that some extraordinary things occurred. In the first urgent application the court agreed with us on who can submit a complaint, and agreed that members of the public should be able to participate in the complaints process. The court also opted for narrow grounds for refusal to broadcast and put in place an order that stipulated specific time frames for a complaint to be heard. 

Icasa decided to lodge an application for leave to appeal against the judge’s findings. The appeal was heard on Friday, 25 September. Judgment was handed down on Saturday, 26 September. Yes, one day. Not unheard of but certainly incredible, and not just a few lines of judgment but rather a reasoned, considered judgment of 17 pages.  

The outcome of Icasa’s bid for an appeal was: the legal teams for Moxii Africa and Icasa sat down and agreed to time frames for the complaints process. From now onwards for these elections: from when a broadcaster refuses to broadcast a political advertisement or party election broadcast and a complaint is subsequently submitted to the Complaints and Compliance Committee for consideration, a maximum of five days is allowed for a decision to be made, including the final decision by Icasa. The process is stipulated as an order of the court. 

In addition, any members of the public now have the right to lodge a complaint with the Complaints and Compliance Committee if they learn of a decision by a broadcaster not to broadcast a party election broadcast or political advertisement. So, as Moxii Africa, if we believe there is a public interest in challenging a broadcaster’s decision, we now have the right to do so, even though we are not a political party.  

The first incredible aspect of the case is the victory. It provides much needed clarity for parties and broadcasters and commits the regulator to dealing with them on an urgent basis, and it means the regulations are no longer unconstitutional.  

The second incredible aspect of the case is sadly negative. The court noted on several occasions that Icasa is a Chapter 9 body and had a duty to act in accordance with the Constitution, “whatever it takes”. For its part, Icasa was chastised for failing to assist the court with a remedy supporting its defence. For our part, we found it devastating that Icasa’s own legal submissions referred to itself as lethargic and noted that it would struggle to make decisions speedily.  

In a heated exchange in court between the judge and Icasa’s legal team, the judge queried Icasa’s contention that it couldn’t adhere to such tight time frames, without offering any reason or evidence beyond that it was a burden. 

Finally, the judge noted that the whole case could have been avoided had Icasa simply listened: “It is a pity that when Icasa was in process of amending these regulations they didn’t consider the submissions made, then we would not have been here. Now they complain when it is an order of the court. I find it somewhat disturbing.” 

The third extraordinary aspect of the case was the judicial process. When court started 14 minutes later than scheduled the judge apologised and noted it was because court was in recess. Throughout the arguments, rather than spending time rehashing what was in the papers, the judge went to the heart of each aspect immediately, decisively and clearly.  

As a result, court time was kept to just over an hour in the leave to appeal hearing, and only a few hours in the original hearing for the urgent application. It wasn’t just that the court was efficient and respectful of the parties and the issues at stake, it was also how the court emphasised on numerous occasions the critical role Icasa has to play, how vital political speech is, how important the role of a Chapter 9 body is, how important it is that all roleplayers do their best and act with speed and urgency in order to uphold the Constitution, no matter what. Based on the judge’s input, it is clear he is playing his part. 

Perhaps one day we will learn the reason as to why Icasa chose to ignore legal principles. Why it opted to act against the public interest and why it believed its lethargy was a defence. For the moment, however, our faith in our justice system has been reinvigorated, a practical, pragmatic solution has been found, and our democracy will be stronger and richer for it. 

For its part, Icasa will need to find its turbo boost mode and in the process ensure it is the public interest it acts in accordance with, and not its own perceived interest. 

We are deeply thankful to our legal team for their pro bono support for the exceptional work on the case. Especially Nick Ferreira, Pranisha Maharaj-Pillay, Alexandra Rees, Justine Limpitlaw and the team at Webber Wentzel, specifically, Mufaro Sambaza and Super D Dario Milo. DM

William Bird is the director of Moxii Africa.