CASE NUMBER: 41/2006 – GILDAY, SCHREIBER & WALLS VS SABC RADIO – 5FM – CRUDE LANGUAGE

The registrar received several complaints about the use of the word “fuck” in a song which was broadcast on 5FM. I referred the matter to a Tribunal. The Tribunal is of the view that the songs were unacceptable in terms of the Broadcasting Code if applied without any regard to the circumstances. We were told that it was also in conflict with the internal broadcasting policy of the SABC.  However – and for purposes hereof we will accept, without deciding, that Mr. Schreiber’s response as to time is correct –   the Tribunal is of the view that it would be unreasonable to come to a finding  against the SABC where the circumstances were such that one could not, in all fairness, hold the SABC responsible for what had happened. Of course, the SABC should generally take responsibility for any person who acts as a presenter, even a guest presenter. Guest presenters and disk jockeys must be warned beforehand about the Code and, of course, the internal policy. Although the Tribunal believes that it would be unwarranted in law to hold that intention to contravene or negligence should always be found to have been present before a finding is made against a broadcaster, there are circumstances which are akin to force majeure for which a broadcaster should not be held responsible. The SABC has informed the Tribunal what had happened and the steps they took justify the inference that the broadcast was seriously in conflict with their internal policy. The Tribunal is of the view if this kind of mistake is repeated by the station, there will be no excuse and the imposition of a fine will be considered. In the circumstances, however, the Tribunal is of the view that the error amounted to an oversight for which the SABC should not be held responsible. Lest this judgment creates the impression that post-broadcast apologies and disciplinary steps would lead to a finding that the Code had not been contravened, it should be stated categorically that such an impression is unfounded. It could, at the most, be a mitigating factor when sanction is considered. However, as stated above, the present circumstances are akin to a situation caused by force majeure. In law force majeure is an excuse. The Broadcasting Code is per definition a disciplinary code and impossibility should always be a defense if, in the view of the Tribunal, it was present.  The present circumstances justify such an inference: an outsider presents a programme and causes serious embarrassment for the SABC. In spite of the general rule that such an act would be for the account of the SABC, there must be exceptions to this rule. The present prima facie contravention falls within this category. Unforeseen conduct by an outsider takes place and strikes like a thunderbolt. Even if it is accepted that the song was left to play until it was finished, the exonerating circumstances do not justify a finding that the Code was contravened.   The complaints were dismissed.