An order to remit a decision on the licensing of three pay porn channels back to the Independent Communications Authority of SA (Icasa) was upheld in the Western Cape High Court on Wednesday.

Judge Lee Bozalek said he was correct in ruling that Icasa re-consider its decision to licence On Digital Media’s (ODM) porn pay channels, rather than apply the discretion himself.

ODM (operating as Top TV and later StarSat) was granted three licences on April 23 last year to broadcast Playboy TV, Desire TV, and Brazzers, subject to conditions.

Last month, Bozalek reviewed Icasa’s licensing decision and set it aside after consolidated applications by the Justice Alliance of SA (Jasa), Doctors for Life, and Cause for Justice.

The organisations had argued that Icasa erred in making its decision.

ODM applied for leave to appeal the ruling, which was dismissed on Wednesday.

Jasa said in a statement the judgment meant the porn channels could no longer air.

“The effect of the judgment is that broadcasting of the porn channels must cease forthwith as from today,” it said in a statement.

“The respondents’ options now are to petition the Supreme Court of Appeal (SCA) or accept the judge’s ruling and go back to Icasa.”

Bozalek said it was not up to the court to “sever the good from the bad” in the licensing decision.

“These are matters which quintessentially lie in the province and expertise of Icasa. For all the reasons cited, they are not appropriately decided by a court,” he said.

Although the court was not required to make a firm finding on the nature of Icasa’s discretion, it indicated it was something more than a mechanistic determination.

Bozalek said Icasa was free to take these observations into account or not.

“It hardly needs to be said that the courts are generally averse to acting as legal advisors and furnishing legal advice to parties on how to conduct their statutory affairs.”

ODM conceded during arguments at the time that it was required by law to register with the Film and Publications board to broadcast adult content.

In its appeal application, ODM argued that Icasa’s decision was only invalid insofar as it failed to prohibit it from broadcasting films that had been classified as “X18”, in accordance with the Film and Publications Act.

It thus believed that remitting the decision back to Icasa would lead to unnecessary delay, prejudice and costs, and suggested severance with an order of correction or substitution instead.

ODM also advanced an alternative basis to appeal, namely the need for an authoritative ruling from the SCA on the precise parameters of Icasa’s discretion.

Bozalek said this presupposed that the SCA would be minded to express such an opinion.

“It does not follow in my view that the determination of whether this court applied the correct remedy requires the court to determine the scope of Icasa’s discretion.”

The judge did not change his initial ruling that Icasa and ODM pay the applicants’ costs. SAPA