BCCSA Procedure
RULES OF PROCEDURE APPLICABLE TO THE FREE-TO-AIR CODE, SUBSCRIPTION CODE AND ONLINE CONTENT SERVICES CODE
DISCLAIMER
Please note that the BCCSA will not consider complaints that relate to:
1. advertisements broadcast by a signatory who is also subject to the Code of Advertising Practice of the Advertising Regulatory Board (“ARB”), as per the definition of “advertisement” in that Code; and
2. political advertising in accordance with the regulations of the Complaints and Compliance Committee of the ICASA in terms of its relationship to the ARB.
It shall be of the essence of the BCCSA’s proceedings:
That complaints be considered and adjudicated upon timeously, that complaints be considered and adjudicated upon in an informal manner in accordance with the rules of natural justice and the Constitution of South Africa; and that whenever possible the adjudicator, BCCSA Tribunal Panel and BCCSA Appeal Tribunal and the parties will strive for a speedy and amicable settlement.
1. Definitions
1.1 “Adjudicator” means a Commissioner of the BCCSA appointed by the Chairperson of the BCCSA to adjudicate a complaint against a Respondent.
1.2 BCCSA Tribunal” means the adjudicative panel of the BCCSA consisting of Commissioners appointed by the Chairperson of the BCCSA to decide a complaint against a Respondent.
1.3 “Chairperson of the BCCSA” as defined in section 1 of the BCCSA Constitution.
1.4 “Code” means the Free-To-Air Code, Subscription Code and Online Content Services Code.
1.5 “Complainant” shall include any person who, or any association, body, corporation, institution, political party, organisation or movement, society or union which lodges a complaint, or any office-bearer duly nominated in writing to represent such association, body, corporation, institution, political party, organization or movement, society or union for the purposes of pursuing the complaint.
1.6 “Constitution of the BCCSA” means the Constitution of the BCCSA, as amended from time-to-time. “Day” or “Days’’ means business days. In this respect, the computation of any prescription of time referred to in these Rules excludes Saturdays, Sundays and public holidays unless the adjudicator, Chairperson of the BCCSA or Chairperson of the Appeal Tribunal, as the case may be, determines otherwise and notifies the parties accordingly. Time is computed by excluding the named day or event and including the last day (i.e. by excluding the first Day and including the last Day).
1.7 “Registrar” means the Registrar of the BCCSA.
1.8 “Respondent” in respect of a complaint, shall be the broadcaster, that may appoint a representative who is duly authorised to act on behalf of the broadcaster concerning any complaints dealt with by an Adjudicator, the BCCSA Tribunal or the Appeal Tribunal.
2. Complaints
2.1 A complaint must be lodged as soon as possible, but not later than thirty (30) Days after the date of the broadcast, or thirty (30) Days after the date the content was made available online by the Respondent as part of its online content services for delivery to end users.
2.2 The complaint shall be made to the Registrar in writing and submitted via email or post.
2.3 The written complaint must comply with the criteria set out in Rules 2.1 to 2.4 above and must be accompanied by:2.3.1 full particulars of the Complainant;
2.3.2 details of the impugned content;
2.3.3 details and the substantive bases for the dispute (if material facts or events are alleged, these should be presented in affidavit form);
2.3.4 copies of correspondence relevant to the complaint, where applicable; and
2.3.5 names and addresses of witnesses, where applicable.2.4 The Registrar shall only accept a complaint which:
2.4.1 is not anonymous,
2.4.2 in their opinion, is not fraudulent, frivolous, malicious or vexatious (including, for instance, any petitions or orchestrated campaigns against a broadcaster that are fraudulent, frivolous, malicious or vexatious);
2.4.3 prima facie falls within the ambit of the Code; and
2.4.4 is directed at a signatory of the Code.2.5 The Registrar may upon reasonable grounds accept late complaints if, in their opinion, there is a good and satisfactory explanation for the delay.
2.6 If the Registrar declines to condone the late submission of a complaint, the Complainant may apply to the Chairperson of the BCCSA for condonation of the late submission.
3. Conciliation and Adjudication Procedure
3.1 Once the Registrar has received a complaint, the Registrar will, within one (1) Day notify the Respondent in writing of the complaint, giving sufficient details to enable the Respondent to investigate the matter and respond.
3.2 Upon acceptance of a complaint, the Registrar will be entitled to request from the Respondent concerned, a copy of the broadcast or online content containing the impugned content and the Respondent shall be obliged to forward such a copy and a written statement to the Registrar within ten (10) Days.
3.3 The Registrar shall provide a copy of the Respondent’s statement and supporting documents to the Complainant, and if the Chairperson of the BCCSA so determines, they may allow the Complainant to respond, in which case the Complainant shall deliver such response to the Registrar within five (5) Days after receiving such notice from the Chairperson of the BCCSA.
3.4 Once both parties have filed statements, the Registrar may facilitate an opportunity for the parties to try to conciliate the matter through an informal process. This informal process must be completed within ten (10) Days.
3.5 Should the conciliation process fail, the adjudication procedure outlined below shall apply.
3.6 Where the Registrar has accepted a complaint and the Respondent offers to settle the matter complained of by way of broadcast or otherwise, which in the opinion of the Registrar constitutes a reasonable and sufficient offer of settlement of such complaint, the Registrar may withdraw their acceptance of the complaint.
3.7 Unless the Chairperson of the BCCSA decides to directly bring the matter before a BCCSA Tribunal in terms of Rule 4.1, the matter will be referred to a Commissioner of the BCCSA for adjudication as soon as reasonably possible, as per clause 11 of the BCCSA Constitution.
3.8 The Chairperson of the BCCSA shall appoint a Commissioner to act as an Adjudicator in respect of a complaint.
3.9 The Registrar will provide the Adjudicator with the complaint, the broadcaster’s response, the Complainant’s reply and a copy of the impugned content.
3.10 Should the Adjudicator require further information the Registrar will request such from the parties.
3.11 Should an Adjudicator deem it necessary, based on the content and/or complexity of the complaint, the Adjudicator may recommend that the complaint be referred to a BCCSA Tribunal, which shall deal with the complaint.3.12 The Adjudicator will submit a written decision as to the resolution of the dispute to the Registrar within a reasonable time.
3.13 If the Adjudicator upholds a complaint, both parties shall be afforded an opportunity to provide a submission in mitigation of any sanctions in terms of clause 13 of the BCCSA Constitution.
Appeals of Adjudicator decisions
3.14 Within four (4) Days of receipt of the adjudication, any one of the parties to the complaint may appeal the Adjudicator’s findings by filing full grounds of appeal against the finding, with the Registrar.
3.15 After the grounds of appeal have been lodged, the Registrar will request the other party’s response. The other party must file their response (if any), within four (4) Days of receipt of the request.
3.16 The Registrar will, within a reasonable time, submit the grounds of appeal, the other party’s response to the grounds of appeal and the content giving rise to the matter to the Chairperson of the BCCSA to determine if a BCCSA Tribunal is likely to come to a different conclusion than the Adjudicator.
3.18 The application will be decided on the papers.
3.19 Should leave to appeal be granted, a BCCSA Tribunal will be convened, in accordance with the procedures of Rule 4, and the sanction imposed by the Adjudicator will be suspended pending the outcome of the appeal.
4. Procedure of the BCCSA Tribunal
4.1 Where the dispute has been brought before the BCCSA Tribunal in terms of rule 3.7, 3.11 or 3.16, the Chairperson of the BCCSA shall, as soon as reasonably possible, appoint two (2) Commissioners to join the Chairperson of the BCCSA on a BCCSA Tribunal. If the Chairperson of the BCCSA is not available to chair the BCCSA Tribunal for a hearing, a chairperson for the specific BCCSA Tribunal hearing shall be determined in terms of clause 12 of the BCCSA Constitution.
4.2 The Chairperson of the BCCSA will determine a date, time and venue for hearing the dispute, which shall be as soon as possible. The Registrar shall notify the parties of the date, time and venue at which the BCCSA Tribunal will hear the dispute.
4.3 It shall not be obligatory for the Complainant to personally appear before the BCCSA Tribunal, but they are entitled to attend and to address the BCCSA Tribunal, and the BCCSA Tribunal is, in any case, entitled to question the Complainant on the matter provided that the party is not under a duty to disclose the identity of an informant.
4.4 The Registrar will ensure that the chairperson and the members of the BCCSA Tribunal are in possession of all the documents and the broadcast relevant to the dispute before it.
4.5 The chairperson of the BCCSA Tribunal may request the Complainant to appear personally. The chairperson of the BCCSA Tribunal may advise parties that an adverse inference may be drawn from failure to comply with such request, without good cause.
4.6 The parties shall be entitled to legal or other representation when appearing before the BCCSA Tribunal.
4.7 If one or more parties do appear before the BCCSA Tribunal, the proceedings shall take the form of a round table discussion in accordance with the rules of natural justice and the Constitution of South Africa, and not a trial.
4.8 On completion of the discussions, the parties shall leave and the BCCSA Tribunal shall come to its decision and a written judgment will be released to the parties as soon as reasonably possible after the hearing of the dispute.4.9 If the BCCSA Tribunal upholds a complaint, both parties shall be afforded an opportunity to make submissions in mitigation of any sanctions in terms of clause 13 of the BCCSA Constitution.
4.10 The hearings of the BCCSA Tribunal shall be open to the public.
5. Procedure of the BCCSA Appeal Tribunal
5.1 If any of the parties to a matter which has been decided upon by the BCCSA Tribunal is aggrieved by the decision, that party may, within five (5) Days of receipt of the decision apply to the Commissioner who chaired the BCCSA Tribunal in writing for leave to appeal to the BCCSA Appeal Tribunal.
5.2 A party who files such an application must set out the grounds fully upon which that party believes that the decision of the BCCSA Tribunal was clearly wrong and is likely to come to a different conclusion.
5.3 The Commissioner who chaired the BCCSA Tribunal may decide the application on the papers and a copy of the content in the matter, and without hearing the parties.
5.4 Where such leave is granted, the Chairperson of the BCCSA may request the successful appellant to pay a non-refundable security fee to the Registrar for the costs of the appeal by the BCCSA Appeal Tribunal, which costs would include procedural costs and would be based on an appeal that does not last longer than one day.
5.5 The appellant shall be notified by the Registrar in writing of the possible costs involved when the appeal is lodged.5.6 Where leave to appeal is refused by the Commissioner who chaired the BCCSA Tribunal, a party who is aggrieved by such a refusal may, within five (5) Days after having received the decision, petition the Chairperson of the Appeal Tribunal for leave to appeal. Such application is decided on the papers, unless the Chairperson of the Appeal Tribunal requests the parties to address him or her.
5.7 Where leave to appeal is granted, the sanction imposed by the Tribunal will be suspended pending the outcome of the appeal.
5.8 The Chairperson of the Appeal Tribunal shall apply the same procedures that are applied by the BCCSA Tribunal when it decides upon a matter. In this procedure, the grounds of appeal and response thereto, as well as the reasons given by the BCCSA Tribunal shall be considered by the Chairperson of the Appeal Tribunal. The grounds of appeal and the response thereto, as well as any other relevant documentation, must be lodged within a time frame determined by the Chairperson of the Appeal Tribunal.
5.9 The Chairperson of Appeals shall appoint at least two Commissioners for each appeal, provided that such persons did not form part of the BCCSA Tribunal that made the decision being appealed. An Appeal Tribunal Panel shall not consist of more than five persons, including the Chairperson of the Appeal Tribunal.
5.10 An Appeal Tribunal shall not set aside or amend a decision of the BCCSA Tribunal unless it is clearly wrong.
5.11 The hearings of the Appeal Tribunal shall be open to the public.
6. Variation of Procedure
6.1 The chairperson of the BCCSA Tribunal or the Chairperson of the Appeal Tribunal, if satisfied that no injustice will result, and upon such conditions as they may impose, may:
6.1.1 extend any time period contemplated in these rules;
6.1.2 at any stage require any allegation of the fact in the statements filed in terms of rule 3 to be verified on oath;
6.1.3 call upon the parties to a dispute to furnish such further information as he or she may consider necessary; and/or
6.1.4 dispense with the usual forms and procedures and give such directions as they deem fit for the adjudication of a complaint without first attempting to have the complaint settled or adjudicated upon by an adjudicator.
7. Findings of the Adjudicator, the BCCSA Tribunal or the BCCSA Appeal Tribunal
7.1 The Chairperson of the BCCSA shall cause any findings, reasons for a finding and/or requirements of the Adjudicator, the BCCSA Tribunal, or the BCCSA Appeal Tribunal to be sent to the Complainant and Respondent. The Complainant and Respondent shall carry out the Adjudicator, the BCCSA Tribunal or the BCCSA Appeal Tribunal’s directives and comply with any decision, within a reasonable time or within the time frame as directed, which the Adjudicator, the BCCSA Tribunal Panel or the BCCSA Appeal Tribunal may have taken in terms of clause 13 of the BCCSA Constitution.
7.2 The Registrar shall keep on record all findings and reasons for findings by the Adjudicator, the BCCSA Tribunal and the BCCSA Appeal Tribunal.
7.3 The records referred to in rule 7.2 shall be public documents except insofar as those documents are privileged in terms of the Promotion of Access to Information Act 2000 (“PAIA”) or if the Protection of Personal Information Act 4 of 2013 (“POPIA”) precludes the publication thereof.
8. Consent, privacy and access to information
8.1 By lodging a complaint with the BCCSA, the Complainant agrees that the BCCSA may process the personal information of the Complainant on the express understanding that:
8.1.1 The Complainant, by lodging the complaint, complies with the “consent’’ requirement in terms of section 11(a) of POPIA.
8.1.2 The BCCSA will have access to the personal information of the Complainant only to the extent that it is necessary to adjudicate the complaint against a broadcaster.
8.1.3 A requester may obtain access under certain conditions to the personal information of the Complainant in terms of section 50 of the PAIA.
8.1.4 The personal data of the Complainant will be used only for the purposes mentioned in 8.1.2 and 8.1.3 of this consent.