Islamic Unity Convention v Independent Broadcasting Authority and Others

The applicant, the Islamic Unity Convention, operated a community radio station, Radio 786, under a licence issued by the Independent Broadcasting Authority (IBA). In May 1998 the station broadcast a programme critical of Zionism and the legitimacy of the State of Israel, including statements denying the Holocaust. The South African Jewish Board of Deputies lodged a complaint alleging that the broadcast contravened clause 2(a) of the Code of Conduct for Broadcasting Services, which prohibited broadcasting material likely to prejudice relations between sections of the population. The complaint was referred within the IBA to the Broadcasting Monitoring and Complaints Committee. The applicant challenged both the referral process and the constitutionality of clause 2(a). The Witwatersrand High Court set aside the referral on procedural grounds and declined to decide the constitutional issue. The applicant then sought leave to appeal directly to the Constitutional Court to obtain a ruling on the constitutionality of the impugned provision.

Leave to appeal directly to the Constitutional Court was granted. The Court declared the portion of clause 2(a) of the Code of Conduct for Broadcasting Services that prohibited broadcasting material 'likely to prejudice relations between sections of the population' inconsistent with section 16 of the Constitution and invalid.

This case is a leading authority on freedom of expression in South Africa, particularly in the context of broadcasting regulation. It clarifies that statutory or regulatory limits on expression must be narrowly framed and clearly justified, and that vague or overbroad restrictions will not survive constitutional scrutiny. The judgment also affirms the constitutional duty of courts to decide constitutional issues when they are live and in the public interest, and it delineates the boundary between protected expression and legitimately proscribable hate speech.