Ukhozi FM broadcast a song, Amandiya, as a result of which the Human Rights Commission filed a radiocomplaint with this Commission on the basis that it amounted to hate speech against Indians. The broadcast was during a current affairs programme which addressed the issue. 

The BCCSA, which has jurisdiction over TV and more than 40 radio stations insofar as the Broadcasting Code is concerned, as a result of their consent to such jurisdiction, inquired into whether the broadcast of the song amounted to the advocacy of hatred cased on race or ethnicity that constitutes incitement to harm, as is prohibited in terms of the Constitution and the Broadcasting Code. 

The judgment of the BCCSA only has a bearing on the broadcast of the song and not on the distribution of the CD of the song or the public performance thereof, which falls within the jurisdiction of the Courts.  

The BCCSA held : 

[1]that it accepted the bona fide intention of the songwriter, but that the song had to be judged objectively according to the norms applicable to broadcasters, as supported by the Constitution and the Constitutional Court’s interpretation thereof. 

[2]that the song as broadcast demeaned the Indian section of the population by accusing the Indians in sweeping generalizations of the oppression of Zulus, of dispossession of Zulus, their squatting in shacks as chattels of Indians, their being played the fool with by Indians, the children of a certain clan being made clowns of by Indians and that it was better with (Apartheid) whites than with Indians (the last accusation being a particularly demeaning and insulting one, given the view that Apartheid constituted a crime against humanity); 

[3]that this language went further than the Broadcasting Code and the Constitution allowed for in section 16(1) since it : 

(i)promoted hate in sweeping, emotive language against Indians as a race;  

(ii)constituted  incitement to  fear for their safety, as protected by the Constitution, amongst at least a substantial number of Indians including children and that this constituted harm in terms of the Constitution and the Broadcasting Code; 

(iii)unjustifiably violated the constitutionally protected right to dignity of Indians  and constituted incitement to harm in terms of the Broadcasting Code in this manner as well; 

[4]that since the broadcast of the song  by Ukhozi FM was part of a bona fide current affairs programme and informed the debate, that the broadcast of the song, in this instance, did not contravene the Broadcasting Code; 

[5]that bona fides was strictly judged and that the Ukhozi FM current affairs programme did not amount to a veiled attempt to broadcast hate speech under the guise of a current affairs programme. 

[2002] JOL 10185 (BCTSA)

CLICK TO VIEW FULL JUDGMENT  Case-No-31-2002