Cape High Court to decide about pornography on SA television

On Monday (August 11) to Wednesday (August 13) the Cape High Court will be hearing argument on whether ICASA’s decision authorising the broadcasting of three pornographic channels on SA television, should stand or be set aside.

The facts
In November 2012, StarSat (previously TopTv) applied to the Independent Communications Authority of South Africa (ICASA), for the authorisation of three pornographic channels (available on subscription) on South African television, namely Playboy TV, Private Spice and Desire TV.

ICASA received a total of 644 written representations in relation to StarSat’s application, the majority (more than 90%) of which opposed the application.  In spite of the overwhelming opposition to StarSat’s application, ICASA authorised the channels in April 2013 and the channels have been on television since.

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In December 2013, three non-profit organisations filed papers in the Cape High Court for an order reviewing and setting aside ICASA’s decision.  The applications by Justice Alliance of South Africa (JASA), Cause for Justice (CPJ) and Doctors for Life (DFL) will be heard together in one hearing before Judge Lee Bozalek from Monday to Wednesday.

Should the Court decide that ICASA’s decision should be set aside, the Court may either remit the matter to ICASA (to consider StarSat’s application afresh, after having followed the proper procedure) or substitute ICASA’s finding for its own (e.g. itself make the decision to refuse StarSat’s application to broadcast pornography).

The arguments
 JASA, CPJ and DFL (as the Applicants) will argue that ICASA’s decision to allow the broadcasting of pornography was not made according to a fair procedure as prescribed by applicable legislation.  So for example:

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• ICASA’s notice, notifying the public of StarSat’s application and inviting them to make representations, was published only in the Government Gazette and displayed only at ICASA’s library in Johannesburg.  Also, the notice stated that the application was for “three video channels” but failed to explain the pornographic nature of the channels;
• ICASA held one hearing in one city on one day only, invited a few objectors to make oral submissions at the hearing, and denied the Film and Publications Board the opportunity to make oral submissions altogether; 
• As a result of the above, the South African public did not have adequate notice or time to consider and meaningfully respond to StarSat’s application;  and
• ICASA furthermore failed to appoint experts and inspectors in the matter, and also failed to scrutinise the actual material which StarSat intended to broadcast before making the decision. ICASA further failed to properly scrutinise the PIN code system that StarSat proposed and implemented. Research has shown that the PIN system can be bypassed by young children with 4 hours on average. (StarSat has since committed to introducing a more secure system).

The flaws in the procedure, so the Applicants will argue, ultimately led to a wrong decision by ICASA — one which fails to strengthen “the spiritual and moral fibre of society” (as intended by section 2(a) of the Broadcasting Act, 1999), undermines the dignity and value of women and children as human beings, and will cause great harm to society. 

In this regard, the Applicants will refer the Court to the significant body of neuro and human behavioural documentary evidence on the effects of pornography, its addictive nature and connection to sexual violence against women, negative attitudes toward women, breakdown of relationships and family, and harm to children –- none of which have been challenged by ICASA, and all of which show that the broadcasting of pornography on SA television is not in the public interest. 

A Christian response
As Christians, we would agree that God hates pornography. Pornography perverts and distorts God’s gift of sex as a beautiful act of intimacy and oneness to be shared between a husband and wife. It reduces women (and increasingly also, children) to subservient sex objects, and men to heartless predators given over to lustful (and often deviant) desires. This picture is in stark contrast with God’s picture of men and women as image-bearers of Christ (Genesis 1:26-27), crowned with glory and honour (Psalm 8:1-9). Pornography destroys not only individuals, but families and ultimately, societies. It breaks God’s heart, and should break ours too. How then should we as Christians respond to this evil?

First of all, like David, we should make a commitment in our own hearts to “refuse to look at anything vile and vulgar” (Psalm 101:3) and where we fail, be quick to repent and ask God (and also those we have caused hurt) for forgiveness. While God hates sexual (as He does all) sin, He is rich in mercy and abounding in love towards those who turn to Him. 

Being aware of the devastating and far-reaching effects of pornography, we should also be committed to fighting this evil in our society. For some (as for JASA, Cause for Justice and Doctors for Life who instituted the application against ICASA in the High Court), this may mean fighting pornography in the courts. For others, it may mean taking a stance against pornography in parliament, from the pulpit or in public. Or perhaps in their work place, or their home.

But all of us can, and should, pray!

To help direct our prayers, here are a few specific prayer points for the court case next week:

• For the parties involved in the case, and for their legal representatives (on both sides)
• For divine insight and wisdom for the Judge
• For a favourable outcome (i.e. that ICASA’s decision will be set aside and even reversed)

*The court case will be heard on Monday, August 11 to Wednesday, August 13 at the Cape High Court situate in Keerom Street, Cape Town (near the Company gardens).  Court starts at 10:00 daily, and is open to the public.