Satellite Sex in Africa

South Africa's Supreme Court of Appeal has dismissed a petition by On Digital Media (ODM) for leave to appeal a Western Cape High Court judgment that Icasa re-consider its decision to licence ODM's porn channels.

The court dismissed the petition on March 17, as there was no reasonable prospect of success.

On December 10 last year, the Western Cape High Court upheld an order to remit a decision on the licensing of the three porn pay channels back to the Independent Communications Authority of SA (Icasa).

Independent Communications Authority of South Africa (Icasa) will have to reconsider a decision to grant Top TV licences to broadcast three pornography channels.

The Western Cape High Court dismissed On Digital Media's application for leave to appeal a ruling that the communications authority must revisit its decision.

A previous court case had decided that the TV regulator had not considered a restriction on porn distribution found in laws pertaining to DVD distribution and the country's film censors.

Judge Lee Bozalek said he was correct in remitting a decision to license On Digital Media's porn channels back to Icasa rather than apply the discretion himself. He said it's not up to the court to sever the good from the bad with regard to a decision to license three porn channels.

On Digital Media, operating as Top TV, was granted three licences in April last year to broadcast adult content pay channels. In its appeal application, On Digital Media said remitting the decision back to Icasa would lead to unnecessary delay, prejudice and cost.

A morality and religious campaign group calls itself the Justice Alliance of South Africa (JASA).

In 2013 JASA started a legal case opposing the licensing of a satellite package of 3 porn channels by the South African licensing authority ICASA. That case will now be heard in court on 10th August 2014. Jasa claims that:

It is a step too far to introduce pornography to the family TV, which is usually in the only living room in the home. Inevitably children will be aware of it, even if parents attempt to prevent them watching. The 8pm watershed period is absurd because teenage children settle down to watch TV at that time after doing their homework.

As advised by counsel, Jasa alleged that Icasa erred in law in failing to find that the constitutional rights of children were laws of general application, which should have trumped the rights to freedom of expression, Jasa said.

Furthermore, Jasa alleges that Icasa ignored their obligation. .. to consider the moral and spiritual implications of TV channels... .

An organisation calling itself Cause for Justice has filed papers at the high court in Pretoria asking for a review of a decision by the Independent Communications Authority of South Africa (Icasa) to allow StarSat to offer three pornographic channels.

The organisation claims that in spite of overwhelming public opposition to the On Digital Media's application to broadcast the channels, the authority gave went ahead and gave it the nod anyway.

Cause for Justice says it has served the application on Icasa, On Digital Media, Icasa chairman Stephen Mncube , On Digital Media business rescue practitioner Peter van den Steen and communications minister Yunus Carrim. It claims Icasa's decision should be set aside because the authority took irrelevant considerations into account while ignoring relevant ones. It also argues that Icasa committed reviewable errors of law and did not follow a fair administrative process. In addition, the conclusions that Icasa reached were not rationally connected to the reasons given or to the information before it.