For the Independent Communications Authority of SA (ICASA) not to grant TopTV authorisation to launch three pornographic channels would be "unlawful".
This is according to On Digital Media's (ODM) legal counsel, advocate Steven Budlender, who yesterday represented the group's struggling pay-TV platform, TopTV, at public hearings around its application for three adult content channels.
Budlender presented data to show that not only are ODM's plans for its channels wholly within the law, but for ICASA not to grant approval would be unconstitutional.
This comes about a year after the broadcaster first applied for three 24-hour channels to host content provided by global brand Playboy Entertainment. The latest application, submitted to ICASA at the end of last year, differs in that TopTV has decided to restrict the broadcast of the channels to the watershed period between 8pm and 5am. The company says this is in reaction to "considerable public input".
Counter cases
Pleading TopTV's case yesterday was a team of legal representatives - Budlender from the Victoria Mxenge group of advocates, and Dario Milo, partner at Webber Wentzel - and clinical sexologist and well-known women's rights activist Marlene Wasserman, better known as Dr Eve.
On the other side of the fence was a group of Christian bodies, vehemently opposing the notion of pornography on SA's airwaves, including the Family Policy Institute (FPI), the African Christian Democratic Party (ACDP), Doctors For Life, Africa Christian Action, South African Society for Sexuality Education, Shofar Christian Church, Free Society Institute, and Active for Jesus Media's radio station, WoomaNet Radio.
TopTV's panel laid out what CEO Eddie Mbalo says was an "overwhelming case" for adult content approval. In a nutshell, the broadcaster made four main points: that TopTV's plans are lawful and a constitutional right; that adult content would be restricted to a watershed period; that sexual content does not lead to violence in men; and that South Africans have the right to choose.
The pay-TV operator also told ICASA that 250 jobs would be on the line if the authority does not grant approval for the standalone adult package to be added to TopTV's bouquet - which is already devoid of one of the key drivers for subscriptions - sport.
Opposing groups spoke out strongly, saying pornography destroys the moral fibres of society.
The FPI slammed TopTV's application, saying the pay-TV provider planned to "release a flood of filth" into the community, while the ACDP said pornography degrades women and is tantamount to hate speech.
Waiting game
Concluding a day of arguments for and against a pornography package for SA, Mbalo said he was confident of TopTV's case and hoped for an affirmative outcome. Now, he says, it is a waiting game while ICASA carries out internal processes before furnishing ODM with its decision. He says there are no clear timeframes at this stage.
"Our team presented well and our message was clear. For us, it was an opportunity to show democracy at work, where everyone had the opportunity to present their views in an organised and calm manner. I think ICASA has a tough job now, in making its decision."
Mbalo says ICASA has a mandate to listen to all sides and make a decision steeped in the law of the country.
Asked whether TopTV would appeal ICASA's decision, Mbalo said he did not want to pre-judge the outcome, and that the company would cross that bridge when it gets there.
"If ICASA happens to rule in our favour, we will take it from there. We have some contractual arrangements with Playboy and will have to attend to those before we proceed."
In November, ODM opted for business rescue and, in terms of the Companies Act, now has until the end of the month to submit a business rescue plan. The company is seeking an equity investor, details of which are set to be announced in the near future.
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