The complaint in the present matter relates to a broadcast on YFM on 31 October 2008. The complaint pertains to three segments of the DJ Sbu Breakfast Show in which the pradioresenter, a weekly guest DJ and various callers made comments about a newspaper article the first complainant had written about the suicide of DJ Sbu’s fiancée and stated how they thought the journalist and newspaper should be dealt with. The complainants firstly contend that the broadcast violates clause 14 of the Code, as it contains threats of violence and sanctions violence against them. The complainants further contend that the broadcast violates clause 36 of the Code as the broadcaster failed to provide balance. The tribunal finds that threats that violence would be committed were made during the broadcast and that the broadcast sanctioned violence. The broadcast therefore contravened clause 14 of Code. As regards the applicability of clause 36, the tribunal finds that the issue that was dealt with in the broadcast was the punishment/retribution that should be meted out to the complainants for having published the particular article and the punishment/retribution that might be inflicted on them should they publish further articles on DJ Sbu. This issue constitutes a controversial issue of public importance and thus falls within the ambit of clause 36. With regard to the issue of balance the tribunal points out that although it had held in A Allen vs SAFM case 17/2006 (BCCSA) that there is “inherent balance” in phone-in and talk shows, it had subsequently in T Timile v Radio 702 Timile Case 4/2007 (BCCSA) adopted a different approach by holding that balance is often achieved by the airing of opposing views by one or more callers and that giving listeners the opportunity to phone in is part of the process of attaining balance, but when there is no balance at all, the tribunal will step in. Further, in Muslim Judicial Council of South Africa v Radio 702 case 28/2007 (BCCSA) the tribunal had held that balance was obtained by allowing listeners with various opinions representing the whole political spectrum to phone in and air their views on extremism and that the fact that different viewpoints were aired was proof that balance was obtained. The decisions in Timile and Muslim Judicial Council of South Africa did not hold that all phone-in and talk shows invariably achieve balance and that balance can therefore never be in issue if the complaint relates to a phone-in or talk show. In the present case the process of attaining balance had failed. No opposing view was put forward. Nor did the presenter or guest DJ attempt to present the opposing view that the journalist and newspaper were merely exercising their right to freedom of expression and did not deserve to be threatened with violence for doing so. No subsequent programme forming part of the same series of programmes offered opposing views. Nor did the broadcaster give the first complainant the opportunity to reply. The tribunal therefore concludes that the present case is one in which it should step in because there was no balance at all. In the result the complaint is upheld on both grounds and the broadcaster is found to have contravened clauses 14 and 36 of the Code. A fine of R5 000 is imposed on the broadcaster.

[2009] JOL 23393 (BCCSA)

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