A Tribunal held that the opinion expressed by a radio presenter, that the Applicant’s sexual assi
stance to his son amounts to “incest”, was not in contravention of the Broadcasting Code. It was an opinion expressed in a debate on the subject initiated by the Applicant. The latter has now applied to the Chairman for leave to appeal.
The Chairman held that an Appeal Tribunal was not likely to find that the first Tribunal had been clearly wrong. Although technically incorrect of the presenter to have described the act as incest, this was a mere opinion and, given the existence of a statutory contravention, which the assistance could (objectively) amount to, it was, in any case, in the public interest for the presenter to have cautioned the Applicant.
Thus, in summary:
Firstly, the Applicant had broached a controversial subject on air and has to live with the bona fide reaction of Dr Eve; secondly, public interest demanded that Dr Eve be critical of the situation, as clearly follows from the third point; and thirdly, what is more, this kind of sexual conduct could (objectively) fall within section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, depending on whether there was legally permitted consent on the part of the son. Dr Eve’s disapproval regarding the sexual act in question was, in other words, also objectively supported by section 5.
Note: Mr Mahamed’s bona fides in his endeavours are not doubted.
The conclusion was, accordingly, that the comment fell within the category of protected comment within the ambit of the Constitution of the Republic of South Africa.
The application for leave to appeal was dismissed.
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