CASE NUMBER: 33/2006 DATE OF HEARING: 27 JULY 2006

A ENGELBRECHT, NED. GEREF. GEMEENTE – BRAKPAN WEST BOTHA, DE VILLIERS, KOTZEE JANSE VAN VUUREN 1st COMPLAINANTS vs

RSG 1st RESPONDENT

L NGCOBO 2nd COMPLAINANT vs

UKHOZI FM 2nd RESPONDENT

TRIBUNAL: Prof Kobus van Rooyen SC (Chairperson) Dr Linda Venter Ms Refiloe Mokoena –Msiza

Complainant: The Complainants did not attend.

Respondent: Mr Fakir Hassen, Manager: Broadcast and Compliance, Policy and Regulatory Affairs of the SABC accompanied Ms Veronica Barnard, Foeta Krige – Executive Producer Current Affairs and Hendrik Martin – Editor Current Affairs of RSG.

Crude language – use of word “fokol” accommodated by freedom of expression – no contravention of Broadcasting Code. Engelbrecht Ned. Geref. Gemeente – Brakpan West & 4 Others vs RSG and L Ngcobo vs Ukhozi FM , Case No: 33 /2006. ______2

SUMMARY

The two sets of complaints deal with the same subject: the use of the word “fokol” which is derived from “fuck”, with its counterpart “fok” in , in two songs broadcast by the SABC on two of its radio stations. When judging the word “fokol” within the context of the Koos Kombuis song, it strikes one that the word is not used to invade dignity or to be derogatory of someone, but is primarily meant to illustrate despondency with what he regards as poor services. To attain the necessary atmosphere he uses a word that strikes the reasonable listener as both shocking and humorous. There is, of course, also a political slant to the song and this justifies more freedom than he would otherwise have had. The Tribunal does not believe that the song would be harmful to children. Younger children are not likely to have been in the audience and most older children would have heard the word elsewhere, whether it be at the cinema, the playgrounds of a school or next to a sport field. The song does not promote this kind of language. ______

JUDGMENT

Prof Kobus van Rooyen (Chairperson) [1] The two sets of complaints deal with the same subject: the use of the word “fokol” which is derived from “fuck”, with its counterpart “fok” in Afrikaans, in two songs. So as to illustrate the vehemence of the complaints, I will quote all the complaints and then also the answer of the SABC.

[2] The first complaints read as follows: Engelbrecht: “Naweek Aktueel, Presenter Anita Visser – Hendrik Maartin’s recorded interview with Koos Kombuis and the subsequent song of Koos Kombuis. The f-word was repeated as if it were going out of Fashion. Then Sh*t was used in the subsequent interview. To broadcast a recorded interview with such content is unacceptable. Please note that Koos Kombuis is not the issue (it could have been anyone) – it is all about RSG’s judgment to Broadcast recorded crude language (versus live interviews over which there is no control).”

Ned.Geref. Gemeente Brakpan-Wes: “KLAGTE: UITSENDING RSG OP SATERDAG, 27 MEI OM 12:40 – Dit is met uiterste teleurstelling en verontwaardiging dat ons, names die kerkraad- en lidmate van die N.G. Gemeente, Brakpan-Wes, ‘n klagte 3 by u aanhangig moet maak vir ondersoek en gepaste optrede teenoor die program- opsteller, aanbieder en wie anders ook betrokke mag wees. Op Saterdag, 27 Mei 2006 om 12:40 is ‘n liedjie (in Afrikaans) op RSG uitgesaai wat in wese banaal van aard, ‘n belediging vir die Afrikaanse taal en gestroop van alle beskaafde en Christelike norme was, is en sal bly. Die vulgêre, platvloerse en skaamtelose beryming van die liedjie en die gesprek wat daarna gevoer is, is verwerplik van aard en behoort nie tuis in die geselskap van welopgevoede, ordentlike luisteraars nie. Die ergste is dat dit ‘n oop uitsending was wat luisteraars van die jongste tot die oudste in ons land en oor die wêreld heen bereik het. Die uitsending van hierdie liedjies (as dit so genoem kan word) getuig van die verontagsaming van die Christelike standaarde en algemene ordentlike norme van ‘n groot persentasie van RSG luisteraars. Dit verg dringende optrede ten einde die betrokke persone tot verantwoording te roep en om te verseker dat soortgeluke uitsendings nie gedoen word nie. Allermins nie oor RSG nie! Daar word vertrou dat u hierde klagte op ‘n verantwoordelike en besliste wyse sal hanteer en ons op hoogte sal hou in hierdie verband. Benewens die platvloerse word “k*k” is die een woord waarna in die liedjie verwys is en wat by herhaling bebruik is die woord F*kol”

BC Botha: “Please allow me to lodge a complaint in respect of two words that were used in a programme broadcast on 2006-05-27, on RSG. “F*kol”: This word is obviously derived from the English “F*ck all”, which indicates “nothing”, and which is still commonly (sic!) used and is therefore clearly etymologically connected. According to my Oxford Dictionary (British Establishment), “the ‘f’ word is till considered to be the most offensive word in the English Language…” “K*k”: This word was used in the same programme, immediately after the CF was broadcast. My dictionary refers to it as “vulgar”. The SABC spokesperson did not comment on this word, despite the fact that it was reported in the Brakpan_Wes complaint. Allow me to me ntion three points: 1. Does prior warning absolve a radio station from all blame in respe4ct of the material that is subsequently broadcast? 2. The SABC spokesperson seems to be dodging the issue (Jakkalsdraaie, the Established Cape Afrikaanse call it), also dragging in political and racist jargon, (, Afrikaans establishment).”

IFA de Villiers: “Koos Kombuis: RSG 27-05-2006 - I hereby wish to lodge a complaint about the Afrikaans broadcast on FM today Saturday the 27th, between 12:45 and 12:50pm. My complaint concerns the singing attempt of a certain Koos Kombuis with a number referred to as “Tienmaal F*ck all”. The deplorable lyrics of the simple ‘ditty’ consisted mainly of an endless repetition of the offensive “f*ck all”. (This is a striking example of how a contemporary “artist’ runs out of ‘art’ and then resorts to vulgarity!). My main objection, however, is the deplorable decision by RSG to invade out homes with this kind of trash. We and our children are subjected to the objectionable and uncalled for, without warning! Please take the necessary steps against the SABC staff member(s) responsible and issue a warning that would prevent a repetition.”

R Kotzee: “Uitsending op Saterdag 27/05/06 om ongeveer 12h45 Sanger KOOS KOMBUIS- Graag wens ek my misnoeë uit te spreek teen die uitsending van ‘n lied / onderhoud met Koos Kombuis. Die taal gebruik was uiters skokkend en ek kan net nie glo dat RSG wel so iets kon uitsaai nie! Ons is gereelde luisteraars van RSG en geniet al julle programme, maar indien dit is wat ons in die toekoms gaan hoor, laat dit ‘n mens wonder of ons dan nie maar moet oorskakel na stasies soos Jakaranda od selfs East Coast Radio nie. Ek hoop van harte dat hierde klagte wel u aandag sal geniet en dat daar ‘n sekere mate van terugvoering hieroor sal plaasvind.” 4

R Janse van Vuuren: “Vuiltaal, – Nog net vanmôre op RSG in Aktueel, en met Anita Visser in beheer, praat ‘n, klink na ‘n jongerige stem van ‘n man van “dis nou sommer puur k*k dat…” Dan ook laat sy toe dat Dozi, en sy noem dit, die liedjie van die “Groot F” dis nou Fokol, Fokol Fokhol met mag en mening sing asof hy ‘n goddelike opdrag nakom. En sy laat dit eenvoudig net deur asof dit haar en dan die SAUK se goedkeuring wegdra. Dit gebeur nou al meer en meer dat mense onder die wanindruk kom dat hul braaf is om oor die eter te vloek. U kan mos maklik, aan die begin van elke inskakel program, die wat inskakel waarsku, dat hul woorde op band vasgelê word, en dat hul telefppn nommers gelees word en hul tot verantwoording gebring gaan word oor enige wangedrag…”

2nd Complaint reads as follows: L Ngcobo: I don’t understand why Authur's song was banned when there is a song which is very straight forward vulgarous is played on the community radio station during prime. A hit song by Alaska tittled "Fokol" meaning "Fuck All" is played every Saterday night on Ukhozi's Top 20. The chorus goes "Ujaiva engathi menyiwe,'FOKOFO' "Awumenyangwa" meaning "You dance like you are invited, 'FUCK OFF' you are not invited." I bealive that this song should be stopped from being played immediately as it is vulgarous especially to children. We don’t need our children to sing dirty songs .We will appreciate may compliant is attended to.

[3] The SABC responded as follows: “We agreed that these two cases would be considered together, as they both are about the use of the word fokol in lyrics. In general, the word fokol has lost its earlier offensive meaning in not just Afrikaans, but even in other indigenous South African languages and is commonly understood colloquially today to mean “nothing”. This does not of course imply that we condone its widespread use on our stations”

1. THE RSG SONG Contrary to Mr Van den Berg's statement, a clear warning of the strong language was in fact given in the introduction preceding the item, which was a current affairs-type piece on the singer Koos Kombuis, who is acknowledged as one of the founders of the alternative movement in Afrikaans music in the eighties. This movement contributed tremendously towards giving and other South Africans, who did not agree with apartheid and the Afrikaner establishment, a voice of dissent. As an important poet, he is still very popular among Afrikaans-speaking people, and is often featured in the prime slot at music festivals like Oppikoppi, drawing large crowds. The song in question, as used in the contribution, has definite political and social comment, and as such is relevant and newsworthy.

The story was aired on the programme Naweekaktueel, a news and actuality programme. As with its sister weekday programmes, Monitor and Spektrum, which are aired in the mornings or at lunchtime, it is a programme reflecting current affairs and events. These programmes are explicit by nature, telling the whole story in all its details.

There was no specific airing of the song as would be done with a playlist. The song is in fact not on the playlist of RSG and is therefore unlikely to be featured in that context.

5

In terms of semantics, the word "fokol" is not usually used as an expletive or an insult in Afrikaans. It is an emphatic slang term literally meaning "nothing", and it is considered a crass ("platvloers") or strong expression. It is not sexually explicit, and is not racially or otherwise discriminatory. While the word may be considered crass in the more conservative sectors of Afrikaans society, in others (especially among students and younger people), it is in general usage and not at all considered offensive.

2. THE UKHOZI SONG The same principles as listed above for the interpretation and meaning of the word fokol apply to this song as well.

The main difference here is that this song has been on the Ukhozi FM playlist for some time now and has proved very popular. The context in which the word is used is that a person gate-crashing a function is told that “you dance as if you have been invited yet fokol you have not been invited” (fokol awumenywanga ). In other words , “checking your invite we find nothing”, therefore you are not invited. We submit that there has been no contravention of the Code.”

[4] The lyrics of the song which Koos Kombuis, a well-known cabaret artist in , sang read as follows:

Welkom op die airport, dit is die jaar 2010 Ek neem aan julle is hier om sokkergames te sien Ons het nou eindelik 'n kans om vir die wereld iets te wys Van ons vriendelike democracy so maak jouself maar tuis

Fokol petrol, fokol diesel, fokol tv, fokol krag, fokol water in jou whisky Fokol jokes om voor te lag, fokol pille by die kliniek fokol dokters as jy vra fokol ouens om die vullis op jou pavement weg te dra

Welkom in Suid-Afrika Ja, welkom in Suid-Afrika

Op linkerhand sien jy die ruins van Distrik Ses, Op regterhand 'n skollie met 'n knuppel en 'n mes Sorry oor die airportbus wat alweer 'n bietjie laat is Sorry oor die potholes wat nog altyd in die straat is Ons wil baie graag dit opfieks maar die workers het gestaak En net toe ons daai kak uitgesort het, het ons Eskom power weer opgeraak

Fokol treine, fokol taxis, fokol geld en fokol jobs Fokol robots wat nog werk En fokol traffic cops Jy kan maar kla en kla Maar dit help niks, dit help niks So fokken baie fokol in Suid-Afrika Ja, daar is so fokken baie fokol in Suid -Afrika

Maar anyway, welkom in Suid-Afrika Ja ja, welkom in Suid-Afrika 6

Ons het 'n moerse stadion hier langs die see gebou Want ons is finished met apartheid en oranje -blanje -blou Net jammer daars niks geld nie Elke dorp het nou 'n nuwe naam en moenie worry oor die squatterkamp net langs die sokkerveld Ons is ten minste nie meer skaam nie

Nou gaan almal saamsing, die laaste versie: Fokol fokol fokol fokol fokol fokol.....

[5] The song was sang during a midday interview with Koos Kombuis by RSG, the Afrikaans radio station of the SABC. It is undisputed that the word “fokol” is a crude word and that it is not a word that mothers would wish their children to use; in fact, it is the kind of word which would probably mostly be used freely in bars and amongst modern-thinking people at a party. The word, of course, has its origin in the word “fuck” which was already used in the 18th century Novel Fanny Hill. However, “fokol” has come to mean “nothing” and has no connection to the primary meaning of “fuck”, which is a crude verb used for coitus.

[6] Freedom of expression includes, according to section 16 of the Constitution of the Republic of South Africa, freedom of artistic creativity. The Constitutional Court has held that freedom of expression includes the right to be offensive. However, when it is reasonable to do so in terms of section 36 of the Constitution, the offensive uttering may be prohibited. 1

[7] The starting point is, however, whether freedom of speech accommodates this kind of language. Once it does accommodate it, even with a large number of children in the audience, it is not necessary to turn to section 36 of the Constitution, which justifies limitation of rights when it is reasonable to do so within a free and open democracy. That the starting point is freedom of expression, emerges clearly from the significant judgment of Moseneke J ( as he then was) in Laugh It Off Promotions CC v SAB International (Finance) BV t/a

1 See De Reuck v Director of Public Prosecutions WLD and Others 2004(1) SA 406(CC). 7

SABMARK International (Freedom of Expression Institute as Amicus Curiae).2 In this judgment Moseneke J (as he then was) says the following:

[4 3] It is trite that under our constitutional democracy, the requirements of the section ought to be understood through the prism of the Constitution and specifically that of the free expression guarantee. The SCA too correctly recognised that a construction of the section is subject to the dictates of the Constitution and that its application must not unduly restrict a party's freedom of expression. However, in deciding the merits of the infringement claim it opted for a two -stage approach. In the first enquiry the Court held that the message on the T-shirts amounts to an infringement because it is unfair and materially harmful to the repute of the trademarks. Only thereafter did the Court enquire into and found that freedom of expression does not afford justification for the infringement. This approach appears to be premised on the reasoning that one must first find an infringement under the section and only thereafter determine whether the infringement is excused by an assertion of freedom of expression. This approach is flawed.

[44] A finding of unfair use or likelihood of detriment to the repute of the marks hinges on whether the offending expression is protected under s 16(1) of the Constitution or not. If the expression is constitutionally protected, what is unfair or detrimental, or not, in the context of s 34(1)(c) must then be mediated against the competing claim for free expression. By determining the unfairness and detriment anteriorly, the SCA in effect precluded itself from properly taking in to account the free expression guarantee claimed by the alleged infringer. The two-stage approach advocated by the SCA in effect prevents an understanding of the internal requirements of the section through the lens of the Constitution. The injunction to construe statutes consistent with the Constitution means that, where reasonably possible, the Court is obliged to promote the rights entrenched by it. In this case the SCA was obliged to balance out the interests of the owner of the marks against the claim of free expression for the very purpose of determining what is unfair and materially harmful to the marks. It is to that task that I now turn. (footnotes omitted; emphasis added)

[8] The South African Constitutional Court has, in several judgments, accentuated the role of freedom of speech. In S v Mamabolo 3 Kriegler J stated in regard to the value of freedom of expression in our present society, in contrast to the Apartheid history of censorship and thought control:

“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression – the free and open exchange of ideas – is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought-control, however respectably dressed.”

In South African National Defence Union v Minister of Defence and Another4 O’Regan J stated that “Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society

2 2006(1) SA 144(CC) 3 2001 (3) SA 409 (CC) para [37]. 4 1999(4) SA 469 (CC) para [7]. 8

generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters . . .” [footnotes omitted.]

In Islamic Unity Convention v IBA and Others5 at paragraph [27] Langa DCJ (as he then was) convincingly contrasted the present state of freedom of expression and the past state of freedom of expression, as follows: “Notwithstanding the fact that the right to freedom of expression and speech has always been recognized in the South African common law, we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa’s present commitment to a society based on a ‘constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours’. As pointed out by Kriegler J in Mamabolo – ‘. . . freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections 15 to 19 of the Bill of Rights.’ South Africa is not alone in its recognition of the right to freedom of exp ression and its importance to a democratic society. The right has been described as one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of every one of its members . . . As such it is protected in almost every international human rights instrument. In Handyside v The United Kingdom the European Court of Human Rights pointed out that this approach to the right to freedom of expression is – ‘applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself. Section 1 of the Constitution declares that South Africa is founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms.” Thus, open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to such values and to the constitutional order itself. Many societies also accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory or unduly abusive kind may be restricted so as to guarantee free and fair elections in a tranquil atmosphere.” (Emphasis in italics added and footnotes omitted)

[9] That artistic freedom is an important fundamental right emerges clearly from the Constitutional Court’s judgment in De Reuck v Director of Public Prosecutions and Others6 where it was held that material which might otherwise qualify as child pornography does not amount to child pornography where, judged as a whole, the material predominantly stimulates aesthetic feelings. The question in the present matter is whether the use of the word “fokol” is possibly saved by the dramatic and political purpose of the song.

5 2002(4) SA 294(CC). 9

[10] In Germany it has been held that where there is a serious invasion of dignity the protection which is afforded to literature and art is overridden by the serious invasion of dignity. Compare the so-called 1994 Auschwitz-Lüge judgment of the German Constitutional Court, where it was held that a work which stated that the persecution of the Jews during the Third Reich was a lie or doubtful, was not protected by the freedom of speech guarantee in paragraph 5 of the Grundgesetz. Compare BVerfGE 90, 241 (1994). The Court regards such a statement as a serious invasion of the rights of personality (“schwere Persönlichkeitsrechtsverletzung”) at 252. Contrast the Kriegsschuld-Buch judgment, where the responsibility of the Germans for the Second World War is denied in a book and the Bundesverfassungsgericht held that, in spite of the untruth thereof, it was part of the general debate and not a book to be limited to adult distribution. Compare BVerfGE 90,1 (1994). In the previously mentioned judgment, this judgment is distinguished at 253 on the facts: the rights of personality of third persons (in casu Jews) were, in spite of the historically questionable opinion advanced in the book, not involved, as was the case in that matter.

[11] When judging the word “fokol” within the context of the Koos Kombuis song, it strikes one that the word is not used to invade dignity or to be derogatory of someone, but is primarily meant to illustrate despondency with what he regards as poor services. To attain the necessary atmosphere he uses a word that strikes the reasonable listener as both shocking and humorous. There is, of course, also a political slant to the song and this justifies more freedom than he would otherwise have had. The Tribunal does not believe that the song would be harmful to children. Younger children are not likely to have been in the audience and most older children would have heard the word elsewhere, whether it be at the cinema, the playgrounds of a school or next to a sport field. The song does not promote this kind of language and it would be wrong to underestimate children: they would know that the word is crude, but probably laugh it off as just another

6 2004(1) SA 406 (CC) 10

gimmick of the singer. It is unlikely that they would regard the word as a word which is acceptable in any company or even that the word is generally acceptable.

[12] In so far as the second song is concerned, the word is used only once or twice and can hardly be heard clearly.

[13] The complaints are not upheld.

PROF KOBUS VAN ROOYEN SC CHAIRPERSON

Ad hoc Commissioners Venter and Mokoena-Msiza concurred with the judgment of the Chair