The BCCSA received many complaints after the broadcasting of the film “The Last Temptation of Christ” by the Respondent. The gist of the complaints was that the broadcast is offensive to the 
religious convictions of Christians. The BCCSA Tribunal was called upon to decide whether the broadcast contravened the Broadcasting Code.
Held by Commissioner Viljoen (with whom Commissioners Lötter and Olivier concurred) that offensiveness is no longer a ground for a finding of a contravention of the Broadcasting Code, since the term has been removed from the Code. The only ground for a finding of a contravention of the Code, in this instance, is the advocacy of hatred based on religion and incitement to cause harm. The task of the Tribunal is to find a balance between freedom of expression and freedom of religion. Freedom of religion assumes protection against one’s religion being ridiculed or attacked. The Tribunal found that the manner in which Jesus is portrayed as a sinful man in the film “The Last Temptation of Christ” – despite it being merely by way of his imagination – is so contrary to the basic tenets of the Christian faith, and so contemptuous of the faith, that it amounts to hate speech. The Tribunal also found that the broadcast of the film constituted incitement to cause harm. Harm, in this instance, includes emotional or psychological harm. It was found that the treatment of the sensitive material was such that Christians would not tolerate other Christians viewing such undermining of the foundation of their faith. It was found that the broadcast amounted to a contravention of clause 16.3(c) of the Code. The next test was the one of bona fide drama, an exception to the advocacy of hatred, contained in clause 17(i) of the Broadcasting Code. A finding of hate speech could not be avoided because the mortifying way in which the film dealt with the crucial aspects of the Christian faith took it beyond the requirement of bona fides in the sense of honesty and sincerity. It was found that the film maker was also not bona fide in that he knew or must have known that in making a film in which Christ is portrayed as a sinful man, was such a flagrant attack on the basic tenets of the Christian faith that the film and its maker could not pass the test of bona fides.
The broadcasting of the film was thus not saved by the exception contained in clause 17(i), and the finding of the contravention must stand.
The complaints were, accordingly, upheld by the majority of Commissioners, and the broadcaster was reprimanded for the contravention.
Held by Chairperson Van Rooyen, voting in the minority, that in applying clauses 16.3 and 17 of the Broadcasting Code to the film, it could not be concluded that the film advocates hatred. Rather, it explores a religious theme and comes to a positive conclusion: Jesus also resists the last (fictional) temptation. The mere fact of the addition in the film of a further, final temptation (marriage, a sexual relationship, the raising of children) is likely, of course, to be offensive to the vast majority of Christians. In that sense, it would constitute harm to such believers. However, the film does not transgress the limits, since hatred is not advocated and there is no incitement to harm by the film. The mere fact that the film digresses from the Gospels does not amount to the advocacy of hatred. The emphasis is on the immense suffering of Jesus, and his sacrifice as the Redeemer. The scenes of an alternative life where He is not the Messiah and does not die on the cross are sketched objectively. The devil, when leading Him away from the cross, specifically states that He was wrong to believe that He is the Messiah, and what He then visualizes is a life where he is not the Messiah. There is no longing as Messiah for that life. The temptation is merely speculative, and is not acted upon. Ultimately, it is put to Jesus by Satan in the same manner as the other temptations are put and, once again, He rejects this temptation. The film is no cheap, vulgar fictive exercise. It deals, in a profound and dramatic manner, with the spiritual struggle in the life of Jesus and, ultimately, with his victory in rejecting the temptation offered by Satan. On the whole, it has an overwhelming aesthetic impact on the reasonable viewer. As foreshadowed in De Reuck’s case, the aesthetic dimension is paramount, ensuring that the film remains within the bounds of the fundamental right of freedom of expression. In conclusion, it is not permissible in law to hold that the broadcast of the film contravened the Broadcasting Code. Mere offence is insufficient. Threats of violence by fundamentalists are irrelevant in law. The film itself does not promote violence or advocate hatred. The film was rightly shown after 23h15, with sufficient classification and a high age restriction. The broadcast is compatible with the fundamental right of an adult viewer to be informed and to choose for him- or herself to see this film, which contains no hate speech and has exceptional dramatic value. It is constitutionally impermissible to withhold that right from an adult viewer in an open and free democracy merely because other viewers find the film offensive.
The chairperson would, accordingly, not have upheld the complaints.