Complaints were received from a member of the Jewish community against certain broadcasts by 
Radio Islam, which falls under the jurisdiction of the BCCSA in so far as the Code of Conduct for Broadcasters is concerned. At the core of the complaint was the accusation that the bounds of free speech had been overstepped. References to Jews who would be chastised, was evidence of this contravention. This went further than was permissible and was deeply degrading to Jews and could even amount to propaganda for war.
In awarding freedom of speech a generous interpretation, and accepting that the exercise of free speech may be offensive to many people who do not agree with what is being said in a particular instance, the Tribunal held:
- That the bounds of bona fide religious speech had not been overstepped in this instance. Bona fides relates to the question as to whether the broadcast was indeed, according to objective standards, a genuine expression of bona fide religious belief. Ultimately, to decide otherwise, would amount to a rejection of the inherent and often vehement differences among religions and other similar viewpoints and expressions of opinion as protected by section 15 of the Constitution.
- That the absence of shouting or acclamation in the broadcasts was evidence of the fact that the objective aim was not to incite. Within the bounds of freedom of religion, as guaranteed by section 15 of the Constitution, the content of the broadcasts was very critical of two religions in particular (Jewish and Christian) and the adherents thereof. However, within the bounds of freedom of religion, which finds a further guarantee in clause 17 of the Code, it would indeed be surprising if other religions were not criticised in such a broadcast such as the one under discussion – and even, at times, vehemently so.
- That although the three talks under the Tafseer heading referred to chastisement of the Jews for certain deeds, the word was also used with reference to adherents of Islam who do not obey, inter alia, the laws of honesty. The punishment was also projected into the future, which gave the words an eschatological meaning, thereby removing the sense of immediate chastisement. The mosque sermon, in the main, addressed the debate on the “ownership” of Jerusalem. The sermon gave preference to the interpretation from an Islamic perspective. It would, in fact, be surprising if it did not do so.
- That, at times, the broadcasts sailed close to the wind, regarding what is permitted to be broadcast. The benefit of the doubt, however, had to go in favour of freedom of speech and religion. The facts in the present case were clearly distinguishable from the facts in an earlier judgment in Polakow v Radio Islam, where the Code was held to have been contravened. The Complaints were not upheld.
[2009] JOL 24032 (BCCSA)