South African Jewish leaders have welcomed the decision by
the Johannesburg High Court that a Muslim radio station must
answer for its antisemitic broadcasting. The court upheld an
application by the South African Jewish Board of Deputies
(SAJBD) to set aside a previous decision by the Independent
Communications Authority of South Africa (ICASA) letting the
radio station off the hook.
In its November 2002 ruling ICASA, which had already been
censured for administrative incompetence by the courts during
the six year-old controversy, decided it was not necessary to
hold a formal hearing into the SAJBD's complaint against
Radio 786, a Muslim community radio station in the Western
Cape province.
The Court directed ICASA to convene a formal hearing about
the Board's complaint and ordered the Islamic Unity
Convention to pay the Board's costs including the costs of
two attorneys.
The case has its origins in a May 8, 1998 broadcast by Radio
786 which featured extensive Holocaust denials and several
anti-Jewish conspiracy theories. The Board of deputies lodged
a complaint with the relevant broadcasting authority at the
time, since which the matter has twice reached the
Johannesburg High Court and the Constitutional Court. The
case has already had a significant impact on existing South
African law relating to freedom of speech and the prohibition
against racist hate speech.
In the course of his 30-page judgment, Mr. Justice Malan
concurred that ICASA chairman Advocate Roland Sutherland had
made an error of law in ruling against a hearing into the
Board's complaint, one that had "led to an injustice and
disregard of the applicant's rights." He disagreed with
Sutherland's premise that a reading of the transcript of the
offending Radio 786 broadcast did "not disclose a cogent
basis for alleging a contravention of the [Broadcasting]
Code," noting that the issue of Holocaust denial and
revisionism raised complex legal questions and making
reference to some of the high profile court cases it had
spawned across the world.
"The first respondent [ICASA], by denying the applicant a
formal hearing, denied it access to a forum to challenge and
debate a matter of considerable gravity . . . In these
circumstances, the refusal to convene a formal hearing
violated Applicant's rights to procedurally fair
administrative action," he ruled.
Mervyn Smith, past president of the SAJBD and chairman of the
legal subcommittee dealing with the case, said he was highly
satisfied with the outcome.
"For nearly six years now, Radio 786 has resisted every
attempt at a formal hearing to explain why it broadcast an
offensive, harmful and vicious Holocaust denial program. We
have now been vindicated in our pursuit of a hearing, and we
will show that broadcasts like this should not be allowed in
South Africa," he said.
Judge Malan was highly critical of Advocate Sutherland,
writing that in making his ruling against the Board he had
"asked himself the wrong question, applied the wrong test,
failed to apply his mind to the relevant issue and based his
decision on matters not germane to the issue in deciding
whether to convene a formal hearing." The Board was further
incensed by Sutherland's referring to the Holocaust as "a
Second World War program" in the course of his ruling.
