Icasa must exercise its discretion when reviewing a decision to license three porn pay channels, the Western Cape high court ruled on Wednesday.
Judge Lee Bozalek said he was correct in remitting a decision to license On Digital Media’s (ODM’s) porn channels back to the Independent Communications Authority of South Africa (Icasa), rather than apply the discretion himself.
Dismissing ODM’s application for leave to appeal his ruling, he said it was not up to the court to “sever the good from the bad” in such a decision.
“These are matters which quintessentially lie in the province and expertise of Icasa. For all the reasons cited, they are not appropriately decided by a court,” he said.
Although the court was not required to make a firm finding on the nature of Icasa’s discretion, it indicated that it was something more than a mechanistic determination.
Bozalek said Icasa was free to take these observations into account or not.
“It hardly needs to be said that the courts are generally averse to acting as legal advisors and furnishing legal advice to parties on how to conduct their statutory affairs.”
ODM (operating as Top TV and later StarSat) was granted three licences on 23 April last year to broadcast Playboy TV, Desire TV and Brazzers, subject to conditions.
Last month, Bozalek reviewed Icasa’s licensing decision and set it aside after consolidated applications by the Justice Alliance of South Africa, Doctors for Life and Cause for Justice.
The organisations had argued that Icasa erred in making its decision.
ODM conceded during arguments at the time that it was required by law to register with the Film and Publications Board to broadcast adult content.
In its appeal application, ODM argued that Icasa’s decision was only invalid insofar as it failed to prohibit it from broadcasting films that had been classified as “X18”, in accordance with the Film and Publications Act.
It thus believed that remitting the decision back to Icasa would lead to unnecessary delay, prejudice and costs, and suggested severance with an order of correction or substitution instead.
ODM also advanced an alternative basis to appeal, namely the need for an authoritative ruling from the supreme court of appeal on the precise parameters of Icasa’s discretion.
Bozalek said this presupposed that the supreme court would be minded to express such an opinion.
“It does not follow in my view that the determination of whether this court applied the correct remedy requires the court to determine the scope of Icasa’s discretion.”
The judge did not change his initial ruling that Icasa and ODM pay the applicants’ costs. — Sapa
