## Facts

- A community radio station operated by the Islamic Unity Convention broadcast a program titled “Zionism and Israel: An in-depth analysis,” featuring an interview that questioned Zionism and Israel and included Holocaust-denial assertions.
- The South African Jewish Board of Deputies filed a complaint with the broadcasting regulator, alleging the program breached a Code provision barring material “likely to prejudice relations between sections of the population.”
- The regulator’s complaints unit referred the matter to its Broadcasting Monitoring and Complaints Committee for a formal hearing.
- Before the hearing occurred, the broadcaster challenged (i) the decision to convene an inquiry and (ii) the constitutional validity of the Code provision, alleging infringement of the constitutional right to freedom of expression.
- The High Court declined to decide the constitutional validity question, characterizing the matter as discretionary declaratory relief and treating the constitutional issue as “academic.”
- The broadcaster sought direct leave to appeal to the Constitutional Court.

## Issues

1. Whether the High Court erred by declining to determine the constitutional validity of the challenged broadcast Code provision.
2. Whether the provision prohibiting broadcasts “likely to prejudice relations between sections of the population” limited constitutionally protected expression.
3. If so, whether the limitation was reasonable and justifiable under the general limitations clause.

## Decision

- Leave to appeal was granted and the appeal was upheld.
- The Constitutional Court held the High Court erred in refusing to determine the constitutional validity of the provision, because the challenge was not academic and was necessary to resolve the parties’ dispute.
- The Court held the provision limited protected expression because it extended beyond constitutionally unprotected categories of expression.
- The Court declared the impugned portion unconstitutional and invalid for overbreadth and insufficient precision, which risked self-censorship.
- The Court clarified that no constitutional protection exists for expression falling within the Constitution’s excluded categories (propaganda for war, incitement of imminent violence, or advocacy of hatred that constitutes incitement to cause harm).

## Legal Principles

- Courts should decide a direct constitutional challenge to the validity of a legal rule regulating expression when it is necessary to resolve a concrete dispute; such questions are not properly avoided as “academic” by reframing them as discretionary declaratory relief.
- Freedom of expression protects a wide range of political, social, and religious speech; regulation that is not confined to constitutionally excluded categories burdens protected expression.
- Speech restrictions must be formulated with adequate precision and narrow tailoring; vague and overbroad standards can create an impermissible chilling effect by inducing self-censorship.
- Even where the objective is legitimate (such as protecting equality, dignity, and social harmony), a broad restriction that suppresses substantial protected speech and is not the least restrictive means fails justification under a general limitations analysis.
- Invalidating an overbroad regulatory standard does not confer protection on expression that the Constitution itself excludes from protection.

## Conclusion

The Constitutional Court invalidated a broadcast Code rule banning material “likely to prejudice relations between sections of the population,” holding that its vague and sweeping wording unjustifiably limited protected expression and chilled lawful speech, while reaffirming that constitutionally excluded forms of hate speech and related expression remain unprotected.


Islamic Unity Convention v. Indep. Broad. Auth., 2002 (4) S. Afr. L.R. 294 (CC) (S. Afr. 2002)