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Media Monitoring Africa and Another v BCCSA and Others

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Case: Media Monitoring Africa and Another v Broadcasting Complaints Commission of South Africa and Others (58810/21)

Court: High Court of South Africa Gauteng Division, Johannesburg

Status: Ongoing

Last update: June 2022

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Case overview:

In December 2021, Media Monitoring Africa (MMA) and the Support Public Broadcasting Coalition (SOS), represented by Power & Associates, instituted an application to review and set aside two decisions taken by the Appeal Tribunal of the Broadcasting Complaints Commission of South Africa (BCCSA).

The two impugned decisions of the Appeal Tribunal are: eNCA & e.tv v Media Monitoring Africa, Case No: 010/2021 (e.tv decision); and Support Public Broadcasting Coalition & Media Monitoring Africa v SABC Channel 404, Case No: 012/2021, (SABC decision).

The e.tv decision followed a July 2020 eNCA broadcast of an interview with David Icke, described as a conspiracy theorist, on a programme called “So what now?”. In the interview, Mr Icke denied the existence of COVID-19, describing it as a “scam” and a “hoax”, and claimed that “there is no virus”. In its engagement with the BCCSA, MMA argued that the interview constituted disinformation and was harmful to the public health efforts in the context of the pandemic. It was argued that the broadcasts were in breach of the Subscription Broadcasting Code and the Free-To-Air Code. In upholding the complaint, the BCCSA ordered the broadcasters to pay a fine of R10 000, and to broadcast an apology in line with the wording proposed by MMA. On appeal, the BCCSA Appeal Tribunal found that the comments of Mr Icke, were his honest opinion based on facts truly stated. The Appeal Tribunal rejected MMA’s arguments that the “comment” as referred to in terms of Clauses 28(2)(2) and 12(2) should be reasonable and justifiable.

The SABC decision, followed a November 2020 interview with the (then) Secretary-General of the African National Congress, Mr Ace Magashule. Much of the interview focused on the retrenchment process that was then underway at the SABC at the time. MMA and SOS argue that the two SABC interviewers made false and unsubstantiated remarks about the retrenchment process, and actively goaded Mr Magashule – and through him, the Minister of Communications, and the President – to intervene in the affairs of the SABC board. The interviewers made no attempt to hide their own views or present a balanced view. MMA and SOS lodged a complaint with the BCCSA. The complaint was upheld in part, with the BCCSA finding that the SABC had committed multiple breaches of the BCCSA Codes. While MMA and SOS welcomed the ruling, they applied for leave to appeal to the BCCSA Appeal Tribunal in relation to two issues, namely sanction, and that the journalists contravene the Free-to-Air Code when they sanctioned, promoted and/or glamorised unlawful conduct. The Appeal Tribunal found that the Free-to-Air Code did not apply.

MMA and SOS contend that both these decisions undermine the BCCSA’s core purposes, and threaten its public legitimacy, because they reflect an approach that fails to enforce the BCCSA Codes, and fails to protect the public against the risk of misinformation and disinformation. MMA and SOS are therefore seeking to have the decisions declared unlawful and invalid in various respects, and seek to have them reviewed and set aside in terms of the Promotion of Administrative Justice Act 3 of 2000 and/or under the principle of legality and/or under the common law.

The BCCSA have filed notices to abide the decision of the court, as has SABC in relation to the review of the SABC decision. e.tv and e.sat (e.tv’s news channel – eNCA) are opposing the application in relation to the e.tv decision.

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Court papers:

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