Recycling and Economic Development Initiative of South Africa NPC and Another v Broadcasting Complaints Commission of South Africa (21662/2016) [2016] ZAGPJHC 319 (18 November 2016)

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 21662/2016

Reportable: No

Of interest to other judges: No

Revised.

18/11/2016

In the matter between

THE RECYCLING AND ECONOMIC DEVELOPMENT

INITIATIVE OF SOUTH AFRICA NPC First

Applicant

KUSAGA TAKA CONSULTING (PTY) LIMITED Second

Applicant

and

THE BROADCASTING COMPLAINTS COMMISSION

OF SOUTH AFRICA First

Respondent

THE CHAIRPERSON OF THE BROADCASTING

COMPLAINTS COMMISSION OF SOUTH AFRICA N.O. Second

Respondent

THE ELECTRONIC MEDIA NETWORK LIMITED

trading as CARTE BLANCHE Third

Respondent

JOY SUMMERS Fourth

Respondent

JUDGMENT

EF Dippenaar AJ

[1] In this application certain declaratory relief is sought, pertaining to the validity of sub-rule 3.9 of the first respondent's procedural rules for complaints. In addition, an order is sought to review and set aside a decision of the second respondent, as chairperson of the first respondent, arising out of the application of the invalid rule, together with ancillary relief.

[2] The founding papers seek relief on a constitutional law basis and in the alternative, on an administrative law basis. On request, the applicants' counsel provided detailed heads of argument in support of the relief sought and setting out the grounds on which this court has the necessary jurisdiction to grant such relief.

[3] Although initially opposing the application, the third and fourth respondents withdrew such opposition and the application proceeded on an unopposed basis. No opposing papers were filed. The first and second respondents have not sought to mount any defences in relation to the validity of sub-rule 3.9.

[4] The matter arises from a complaint by the applicants to the first respondent regarding the contents of a broadcast by the third respondent. The applicants' complained that the third respondent hadfailed to observe the ethical and professional standards prescribed by the first respondenfs code of conduct.Before considering the complaint,the second respondent invoked the

provisions of sub-rule 3.9 and required the applicants to waive their rights to institute civil proceedings against the third respondent.

The second respondent refused to allow the complaint to proceed until the aforesaid waiver was provided and provided a judgment in support of its contentions.

[5] The effect of sub-rule 3.9 of the first respondent's procedural rules is that it empowers the second respondent to oblige a complainant to choose between either having his complaint into the ethical and professional conduct of a broadcaster investigated and adjudicated by the first respondent; or to pursue a civil claim for damages against a broadcaster that may e shown to have infringed the complainant's personality rights. The first respondent can thus refuse to discharge its statutory obligation to investigate and adjudicate complaints if a complainant wishes to retain the right to pursue a civil claim against an offending broadcaster in due course.

[6] The applicants contend that allowing the second respondent to require a complainant to waive its rights to institute civil claims against broadcasters before the first respondent will discharge its statutory function of insuring discipline and professional conduct amongst broadcasters is unconstitutional, irrational and subversive of the first respondent's purpose and in contravention of the applicable statutory framework. The complainant's rights to relief in terms of civil claims are separate and distinct from its additional entitlement to seek enforcement of a regulatory code of conduct that has been imposed in the public interest and require that the broadcaster be held to the standards set out in such code.

[7] The applicants seek relief pursuant to ss 172(1)(a) of the Constitution of the Republic of South Africa Act 1OB of 1996 ("the

Constitution"), which obliges a court to declare any law or conduct that is inconsistent with the Constitution to be invalid and affords a court a broad discretion to grant any further relief that is just and equitable. In the alternative, relief is sought in terms of s 8 of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

[8] A court has the power to review and set aside the impugned sub-rule in circumstances where any law or conduct is inconsistent with the Constitution. Under ss 172(1)(a), a court is obliged to declare it invalid to the extent of its inconsistency. In terms of ss 172(1)(b) of the Constitution, following a declaration of invalidity, a court may make any order that is just and equitable. As is held in Affordable Medicines Trust and Others v Minister of Health and Others[1], the appropriate remedy for dealing with regulatory provisions that are ultra vires the empowering statute and accordingly unconstitutional is for a court of law to strike down these provisions. Also see Islamic Unity Convention v Independent Broadcasting Authority and Others[2] and Islamic Unity Convention v Minister of Telecommunications and Others.[3]

[9] When performing its regulatory function in terms of the Electronic Communications Act 36 of 2005, the first respondent exercises public power. Every exercise of public power must conform to the principle of legality and the functionary may only act within the powers lawfully conferred upon it.[4] The authority conferred must be exercised lawfully, rationally and in a manner consistent with the Constitution. The action in question must be rationally related to the power for which the power was given.[5]

[10] The making of subordinate legislation will only pass constitutional muster if: (a) it is rationally related to the achievement of a legitimate government purpose; and (b) it does not infringe any of the rights in the Bill of Rights.[6]

[11] It is not necessary in the present instance to determine whether the first respondent's procedural rules constitute administrative action.

[12] ln its terms, sub-rule 3.9 aforesaid is inconsistent with s 192 of the Constitution, which requires a regulator of broadcasting, including the first respondent, to exercise its functions in the public interest and in accordance with the principles of fairness. Sub-rule 3.9 does not operate in the interests of a complainant or a member of the public, but operates in favour of a broadcaster. Sub-rule 3.9 contravenes the public interest and fairness requirements of s 192 of the Constitution.

[13] Sub-rule 3.9 is an unreasonable and unjustifiable limitation on the constitutional right of access to courts.[7] If a complainant is required by an organ of state to waive hi right to institute an action for damages against a broadcaster without that action being judicially determined, he is deprived of his constitutional right to have his justiciable dispute decided in a fair public hearing before a court[8].

[14] I am satisfied that in the circumstances, it would be a just and equitable remedy to strike down sub-rule 3.9 in its entirety and that the applicants are entitled to the order sought.

[15] An order is granted in terms of the draft marked "X"

____________________________

E F DIPPENAAR

ACTING JUDGE OF THE HIGH COURT,

JOHANNESBURG

DATE OF HEARING :

7 November 2016

DATE OF JUDGMENT :

18 November 2016

FOR APPLICANTS :

Adv R Moultrie

: Cliffe Dekker Hofmeyr Attorneys

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Before the Honourable Justice Dippenaar AJ

Case No. 2166212016

In the matter between -

KUSAGA TAKA CONSULTING (PTY) LIMITED Second

Applicant

OF SOUTH AFRICA First Respondent

COMPLAINTS COMMISSION OF SOUTH

AFRICA N O Second Respondent

trading as CARTE BLANCHE Third Respondent

JOY SUMMERS Fourth

Respondent

ORDER

Having heard counsel for the applicants. it is ordered as follows -

1. Sub-rule 3.9 of the First Respondent's Procedural Rules (being those Rules contained in Appendix 'I' to the Constitution of the First Respondent) is declared invalid.

2. Sub-rule 3.9 of the First Respondent's Procedural Rules is reviewed and set aside.

3. The Second Respondent's decision made on or about 28 January 2016 whereby - in reliance on sub-rule 3.9 of the First Respondent's

Procedural Rules - he required the First Applicant to waive its rights to institute civil proceedings against the Third Respondent as a pre-condition to considering and determining the First Applicant's complaint against the Third Respondent is reviewed and set aside.

4. The First Respondent is directed forthwith to consider and determine the First Applicant's complaint against the Third Respondent.

5. The First Respondent is ordered to pay the costs of this application, including the costs of two counsel where employed.

BY ORDER OF THE COURT

_________________

REGISTRAR

DATE:

[1] [2005] ZACC 3; 2006 (3) SA 247 CC para 123

[2] [2002] ZACC 3; 2002 (4) SA 294 cc para 51

[3] [2007] ZACC 26; 2008 (3) SA 383 CC

[4] Fedsure Life Assurance and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 CC paras 56 and 58

[5] Minister of Defence and Military Veterans and Motau and Others 2014 (5) SA 69 CC para 69

[6] See Affordable Medicines, supra para 77

[7] Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 cc paras 12 and 14

[8] As enshrined in s 34