Moxii Africa brought a case against the regulator, the Independent Communications Authority of South Africa (ICASA), over its amended Municipal Elections Party Elections Broadcasts and Political Advertisements Regulations, published on 2 April 2026 ahead of the local government elections on 4 November 2026. Generally, the regulations seek to ensure fair and equitable practice by broadcasters ahead of elections and they set out how broadcasters should deal with political advertisements and also party election broadcasts. The current version however raises two critical principle issues that if they remain in their current form could undermine political free expression as well as the rights to open justice, and in so doing, undermine our upcoming local government elections.

Moxii Africa (formerly Media Monitoring Africa), joined by the Democratic Alliance (DA), brought the urgent challenge because in Moxii Africa’s view ICASA’s regulatory framework grants TV and radio broadcasters’ broad powers to reject political adverts before they air, while simultaneously barring civil society and the public from lodging complaints against broadcasters who fail to broadcast a political advert. Moxii Afrcia was excellently represented on a pro bono basis by Advocate Nick Ferreira and Pranisha Maharaj-Pillay with Attorneys from Webbers Wentzel Dario Milo, Odwa Abraham and Mufaro Sambaza.  

What are the Core Legal Issues?

1. Prior Censorship by Broadcasters:

As they stand, Broadcasters could use the regulations to justify editorial control over and act as content referees, rejecting political advertisements based on subjective content preference or perceived controversy.  This was the case in 2024 when ahead of the General election the SABC opted to ban an advert by the Democratic Alliance. The advert was indeed tasteless, controversial and offensive as it involved burning a South African flag. But being offensive did not mean the SABC had the right to ban the advert.  The case went before the Complaints and Compliance Commission (CCC) and the SABC lost and was fined the maximum amount of R500 000.  

Rather than heeding the lesson of the case, ICASA opted to try and suggest that it was legal for broadcasters to refuse content on broad grounds (which effectively gives broadcasters a veto over content). Many of us might strongly oppose political parties ideas and promises. Parties might for example promise to remove foreigners and legitimise xenophobia, or they might suggest that being gay is abhorrent and evil, or others might suggest we need to change the constitution to bring back the death penalty. As it stands, we would say all of these positionings undermine our rights. The point of democracy and free speech however is that it allows everyone the right to vote for ideas or a party they agree with, even if we might personally disagree or they go against our rights.

If ICASA’s regulations are allowed to stand, anyone with ideas which the broadcaster feels undermine social cohesion, may have their adverts banned. Not only would that limit political speech, it is also a dangerous slippery slope: saying only those political parties whose ideas broadcasters agree with, can broadcast on their channels.  n an election period broadcaster’s have a responsibility to ensure voters can make an informed choice, not a choice a broadcaster wants.

We say the law and political freedom of speech mean that in an election period, broadcasters are legally restricted to screening content strictly for objective, technical, and quality standards. Submitting political parties bear sole legal responsibility for content compliance and indemnify broadcasters against third-party claims. Parties know they must, abide by the Electoral Code, if they do not, the consequences can be severe.

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2. Denying Public Interest Standing:

ICASA ruled that members of the public and civil society groups have no legal standing to lodge complaints before an election when a political advertisement is suppressed by a broadcaster. In the same case in 2024, Moxii Africa and SOS Support Public Broadcasting Coalition argued before the CCC that we had a right to be heard on a patent public interest issue. ICASA now seeks to argue that a decision to broadcast a political advert is a private matter between the broadcaster and the party concerned. We say this is illogical and fatally flawed. In a period where broadcasters are expected to ensure even greater levels of transparency and accountability, saying the public and civil society cannot bring a complaint on a public interest issue undermines transparency and our right for access to justice.  

3. The Law:

Under Sections 17B and 17C of the ICASA Act, any aggrieved person has a statutory right to complain. Denying standing creates an irrational loophole where citizens can complain after an ad airs but cannot challenge the unlawful suppression of political speech before election day.  

Ultimately the case matters because as the regulations stand they have the potential to cause Irreparable harm to democratic rights. Election political speech is uniquely time-sensitive ("perishable"). A poorly or ill-conceived decision to ban a political advert means that it might have to go to the CCC. Currently this process, even in expedited form, takes weeks. Those weeks may cost the party votes. Imagine the XYZ party develops a political  advert that they decide their target market will be best addressed by a broadcaster. If that advert is banned, they cannot simply create another one very easily and the opportunity to persuade voters may be lost. Meanwhile the ABC party who issues an advert the broadcaster likes will then have a double advantage of having their advert broadcast, and their competitor advert silenced.  

We say the law is with us. Keeping political messages from voters during crucial pre-election weeks deprives South Africans of their Section 19 constitutional right to receive complete, unfiltered political information. A court victory months after the election cannot restore speech suppressed before the ballots were cast.  

What are we asking the court to do? The fix is easy and could have been made by ICASA months ago. Instead ICASA has opted to ignore our pleas.  

Our primary Request: Issue a declaratory order confirming that broadcasters possess no content-based veto power and that the public has full standing to lodge pre-broadcast complaints.  

Alternative Request: Strike down the impugned provisions of ICASA's regulations as unconstitutional and invalid.  

As we head toward elections, our focus should be on ensuring diverse political speech. Our democracy may be challenging and imperfect but our elections matter. South Africans are exremely diverse. If we are to ensure that our elections results reflect that, it is essential that our broadcasters allow more speech, even if they perceive it as offensive.

This case is one element of Moxii Africa’s strategy around the upcoming local government elections. More can be found here.

For more contact:

Willam Bird

Director

+27 82 887 1370