Appeals Tribunal

  • Chairperson – Professor Karthy Govender
  • Ms Nomveliso Ntanjana
  • Ms Dianne Terblanche
  • Ms Kasturi Moodaliyar
  • Ms Penny Marek
  • Ms Hazel Devraj
  • Advocate David Bensusan
  • Professor Adelaide Simangele Magwaza
  • Reverend Mike McCoy

The Review Board is an administrative appeal tribunal and like all such tribunals offers a second opportunity for contested issues around classification to be considered. Decisions of examiners on classification matters can be taken on appeal to the Review Board. This means that individuals, dissatisfied with the conclusions of examiners, can appeal to the Review Board, be treated procedurally fairly and obtain a second reasoned decision. Administrative appeal tribunals in order to play this role must thus be independent, have expertise in the matter being adjudicated upon, make decisions expeditiously and be relatively inexpensive to access. If operated well, this system engenders confidence in the administrative process as individuals, even those not entirely satisfied with the outcome, emerge from the process with the perception that they were treated fairly and that the decision is reasonable. In the Review Board we have attempted to attain these objectives.

Given this, the title of the tribunal is incongruous. ‘Review’ in South African law refers to the process of judicial review which allows for the setting aside of administrative decisions on clearly defined and limited grounds. This is distinguished from the process of appeals where the matter is reflected upon by the second decision maker on the merits and not on the limited grounds of review. It would have been an exercise in futility to set up an appeal tribunal and only invest it with the powers of judicial review, which the High Courts possess in any event.

Despite the misnaming of the Board, we have interpreted the enabling act, the Film and Publication Act 1996 as amended, to give applicants the power to appeal on the merits to the Review Board. A recent amendment by Parliament has further clarified the position. Under the original section 20 of the Act, the Review Board was restricted to making decisions on appeal which did not impose a more restrictive classification than that decided upon by the examiners. This meant that the decisions of the examiners could either be reaffirmed or a more lenient classification imposed. This position untenably favoured those whose interests were served by a more lenient classification of the film or publication. Given the restriction on the power of the Review Board, there was no incentive for a person dissatisfied with lenient decisions of the examiners, to appeal to the Review Board.

This curious restriction was removed by an amendment to the Act in 2004 and now the Review Board, in addition to giving any decision that the examiners may give, may impose other conditions in respect of the distribution of the publication or film. This amendment levels the playing fields as it allows applicants in appeals to the Board to argue for a more a lenient or restrictive classification in furtherance of their objectives or interests.

The Review Board places considerable importance on the awards handed down. Most, if not all awards, are handed down within two weeks of the matter being heard. In it, we seek to inform on how, in our view, the Act and guidelines ought to be interpreted in the light of the Constitution and the Bill of Rights. This would provide examiners, staff, practitioners in this field and other interested parties with information about the developing law in this area. We are glad to note that administrative mechanisms have been set in place to ensure that awards are expeditiously relayed onto our website where interested parties can have access to them. It is of fundamental importance in any developing democracy for the law to be accessible. This applies to both a court of law and to regulatory agencies such as the Review Board which perform quazi-judicial functions. The purpose of the awards are to reach conclusions on the contested issues before us, but also to develop a jurisprudence and understanding around the process of classification within a justiciable constitution which protects universally accepted fundamental rights and freedoms. We have repeatedly stressed the principle of proportionality and the need to balance legitimate, but conflicting, rights and interests in a judicious manner. This is of importance if we are to effectively distinguish the role we play from that of the Censorship Board, which existed prior to the democratic dispensation.

The Board comprises lawyers, artists, clergy, media and communications practitioners and educators. We draw on the life experiences and expertise of all members in writing our awards. It is indeed a privilege to work with talented colleagues who are passionately committed to developing a system of classification which is just, appropriate and relevant to South Africa.

Click here to view the Appeals Tribunal Awards

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