The two cases were heard together because they raised the
same constitutional questions for determination. The cases are about the
constitutionality of the provisions of the Broadcasting Services Act [Chapter
12:06] (“the Act”) on funding for the provision of public broadcasting
services.
In each case, five questions were referred to the Supreme
Court for determination by ...
The two cases were heard together because they raised the
same constitutional questions for determination. The cases are about the
constitutionality of the provisions of the Broadcasting Services Act [Chapter
12:06] (“the Act”) on funding for the provision of public broadcasting
services.
In each case, five questions were referred to the Supreme
Court for determination by a magistrate in terms of section 24(2) of the
former Constitution upon request by the applicant. The learned magistrate was
of the opinion that the request for referral of the constitutional questions
which had arisen in the proceedings before him was not frivolous or vexatious.
The referral took place in proceedings
in which the applicant faced a criminal charge of possessing a television set
without a viewer's licence in contravention of section 38(B)(1) as read with section
38E(1)(h)(i) of the Broadcasting Services Act [Chapter 12:06].
The questions presented in argument for determination at
the hearing in each case were whether sections 38B(1), 38C, 38D(2) and
38E(1)(C)and 38E(i)(h)(i) of the Broadcasting Services Act [Chapter 12:06] each
infringe the applicant's constitutional right to protection from compulsory
deprivation of property (section 16(1)), the right to the protection of the law
(section 18(1)), and the right to freedom of expression (section 20(1)).
The applicant, in each case, seeks a declaration that each
provision of the Broadcasting Services Act [Chapter 12:06] infringes each of
the fundamental human rights enshrined in the relevant provision of the
Constitution and is invalid.
At the hearing, counsel for the applicants indicated that
the determination of the question whether each of the provisions of the
Broadcasting Services Act [Chapter 12:06] referred to infringes the fundamental
right of the applicants enshrined in sections 19(1) (freedom of conscience),
21(1)) (freedom of association) and 23(1) (protection from discrimination) is
no longer sought from the Court.
Those contentions may therefore be put out of view.
For the purposes of the determination of the questions
referred by the court a quo, the “former Constitution” is referred to as “the
Constitution”.
The Court holds, in each case, that each provision of the
Broadcasting Services Act [Chapter 12:06], the constitutionality of which is
challenged, does not contravene the fundamental human right enshrined in the
relevant provision of the Constitution. Each provision of the Broadcasting
Services Act [Chapter 12:06] is a legitimate exercise by the Legislature of the
constitutional power vested in it in respect of the matters legislated upon.
The provisions of the Broadcasting Services Act [Chapter 12:06] in question are
valid.
The detailed reasons for the decision now
follow.
