Issues to be heard include: The Application is, in the first instance, a Review of the decision of ICASA, with a request to court to set aside the license, on the grounds that incorrect procedure was followed, amongst others:
- That the procedure followed by ICASA to deal with the TopTV application was procedurally flawed and unfair;
- That the advert which ICASA published in the Government Gazette (which it was obliged to do), inviting the public to make submissions, did not mention in the advert that the TV channels which ODM applied for were to broadcast pornographic material; further, the advert, which required the public to make its submissions within 30 days, was published in December, which required the public to respond during the period when most people take their holidays, that is in December and January.It is interesting to note that despite the inconvenient time the public was expected to respond in, there were close to 600 written submissions by the public, the vast majority of which were against the granting of the license applied for; one wonders how much greater the response would have been if the Notice was published a different time of the year.
- That during the hearing ICASA determined that those, who had requested to make oral representation before the Council set up by ICASA for this purpose, may only have 10 minutes each to put their case, whereas ODM was given 90 minutes to put its case as well as more time for their so-called expert witness Ms Wasserman, a sex-therapist, to make her input as well. DFL’s experts were not allowed sufficient time and/or invited to put forward their scientific and medical evidence on the harmful effects of pornography on the human brain, before the Council;
- That most members of the 7 member Council Committee set up by ICASA to hear the oral submissions were not suitably qualified to be on the Committee. This was apparent from the type and amount of questions such members posed to ODM, which were hopelessly insufficient to enable ICASA to come to a proper decision;
- That one of the institutions that had made application to make oral representation before ICASA’s Council, was the Film and Publications Board. The Council, however, at the request of ODM, did not allow the Film and Publications Board to make oral representations, even when ICASA was in terms of the legislation it functions by, obliged to consider the input of the Film and Publications Board.(Whose submission, by the way, was in opposition to the granting of the license.)
- That other existing legislation that prohibits the broadcasting of pornography by television channels was not properly or fully taken into consideration;
- That the bias which ICASA showed at the hearing was so blatant that it can be concluded that ICASA had failed to carry out its mandate and also shows that it acted in bad faith.
- that there is a real danger that children will have access to the 3 channels, as security measures put onto place to control access to the channels are ineffective;
- that pornography broadcasted in any format, leads to increased violence against women and children and also affects their constitutional rights.