The applicant, Islamic Unity Convention, held a community radio broadcasting licence (Radio 786). Following a broadcast in May 1998, the South African Jewish Board of Deputies lodged a complaint alleging contravention of the broadcasting Code of Conduct. The complaint was handled under statutory schemes in the Independent Broadcasting Authority Act 153 of 1993 (IBA Act) and later the Independent Communications Authority of South Africa Act 13 of 2000 (ICASA Act). These schemes empowered the Broadcasting Monitoring and Complaints Committee (BMCC), and later the Complaints and Compliance Committee (CCC), to receive complaints, investigate them, conduct hearings, make findings, and recommend sanctions, which ICASA could then impose. After protracted litigation and hearings, the applicant challenged the constitutionality of provisions in both Acts, the Complaints Procedures, and certain regulations, arguing that they impermissibly combined investigative, prosecutorial and adjudicative functions in a single body, infringing the rights to just administrative action and access to courts. The Johannesburg High Court declared the provisions unconstitutional and suspended the declaration. The matter came before the Constitutional Court for confirmation and related appeals.
The Constitutional Court confirmed the High Court’s declaration that the impugned provisions of the IBA Act, ICASA Act, related Complaints Procedures, and regulations were unconstitutional and invalid. The declaration of invalidity was suspended for 12 months to allow Parliament to amend the ICASA Act, subject to conditions requiring a separation between investigative/prosecutorial functions and adjudicative functions within ICASA’s complaints framework.
This case is significant for reinforcing constitutional requirements of institutional impartiality and procedural fairness in administrative adjudication. It clarified that regulatory bodies in South Africa, particularly in broadcasting and communications, may not combine investigative, prosecutorial and adjudicative roles in a manner that undermines sections 33 and 34 of the Constitution. The judgment has broader implications for the design of administrative tribunals and complaint-handling mechanisms across the regulatory state.