FOUNDING PRINCIPLES OF THE BCCSA:
- Section 34 of the Constitution of South Africa:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum.
- In terms of section 34 the independence of the BCCSA is absolute.
- In order to guarantee its impartiality, the BCCSA is neither accountable (subject to certain limitations) nor answerable to the NAB or any other body or organisation.
- Decisions reached by the BCCSA and its tribunals must be in line with the precepts of administrative justice (see section 33 of the Constitution of SA).
- Only the BCCSA may amend its Constitution.
- Only the BCCSA may dissolve itself.
- By agreement at the founding of the BCCSA, the NAB will fund all reasonable expenses of the BCCSA.
1. Establishment of Broadcasting Complaints Commission of South Africa
In order to promote freedom of speech, the free flow of information and the maintenance of high standards of broadcasting in South Africa, the National Association of Broadcasters of South and Southern Africa (“the NAB”) hereby establishes a Broadcasting Complaints Commission of South Africa (“the BCCSA”), which shall be a body corporate, capable of suing and being sued in its corporate name, and of performing all such acts as are necessary for or incidental to the carrying out of its objects, and for the performance of its functions and duties under this Constitution.
2. Aims and Objectives of the BCCSA
The aims and objectives of the BCCSA are to ensure the adherence to high standards in broadcasting and to achieve a speedy and cost effective settlement of complaints against full members of NAB who have submitted themselves to the jurisdiction of the BCCSA and its Code and, where a settlement cannot be attained, to adjudicate upon a complaint and take appropriate steps in accordance with clause 14 of this Constitution.
3. Acceptance of Code and Procedure
3.1 The NAB hereby adopts a code (“the Code”) and procedure (“the Procedure”) as set out in the appendices to this Constitution and the members who sign the Constitution (“the signatories”), undertake not only to adhere to the Code and Procedure but also to abide by rulings of the Chairperson, the Tribunal, an Appeal Tribunal or an adjudicator.
3.2 The afore-going shall not limit the rights of any other association of broadcasters to approach the BCCSA to act as a mechanism to apply the Code of that association, provided that such a code is to the satisfaction of the Independent Communications Authority of South Africa (ICASA) in terms of section 54(3) of the Electronic Communications Act 36 of 2005; and provided furthermore that the BCCSA shall, after consultation with the NAB, negotiate with any such association the terms concerning the minimum duration of such a contract as well as costs which such a service shall entail.
4. Appointment of Registrar
4.1 The BCCSA shall appoint a Registrar for a term of five years.
4.2 The Registrar shall manage the affairs of the office of the BCCSA under the supervision of the Chairperson of the BCCSA and he or she shall independently deal with and attempt to settle complaints against signatories.
5. Appointment of the Chairperson and Commissioners
5.1 Appointments of Commissioners to the BCCSA shall be made by an Appointment Committee, chaired by a judge of the High Court of South Africa, whether on active service or not, who shall be appointed by the Chairperson of the BCCSA. The members of the Committee shall be the following: the Chairperson of the BCCSA, the Chairperson of the NAB or a person designated by him or her, plus two external persons who do not have a direct or indirect interest in the media, who do not hold political office and who are not employed in the Public Service, both of whom are appointed by the Chairperson of the Appointment Committee. The decisions of this Committee are taken by way of a majority of votes, with the Chairperson of the Committee having a casting vote.
5.2 The BCCSA shall pay an honorarium to the two external persons on the Appointment Committee at a rate determined by the BCCSA Chairperson. The reasonable expenses of all the members of the Appointment Committee will also be paid by the BCCSA.
5.3 Twelve Commissioners are appointed for a term of five years from nominations from the public and broadcasters. Broadcasters under the jurisdiction of the BCCSA shall broadcast the advertisement for the posts at their own cost.
5.4 The Chairperson is appointed for a term of five years at an Annual General Meeting (AGM) or a Special General Meeting (SGM) of the BCCSA, which shall be chaired by the Chairperson of the Appointment Committee. The Chairperson-elect of the BCCSA shall be an attorney or advocate of the High Court of South Africa or a legal academic, all with at least 10 years post qualification experience, or a retired judge. The term of office of the Chairperson does not run concurrently with those of the Commissioners.
5.5 Persons to be appointed as Commissioners must be persons who –
5.5.1 are committed to fairness, freedom of expression, openness and accountability;
5.5.2 at all material times must declare any possible conflict of interest;
5.5.3 possess suitable qualifications, expertise and experience in at least one of the following fields: broadcasting, communication, law, social science or any other related expertise.
5.6 A Commissioner appointed in terms of this Constitution, must, before he or she begins to perform his or her functions, affirm before the Chairperson of the Appointment Committee or, in case of his or her non-availability, before the Chairperson of the BCCSA, that he or she –
5.6.1 is committed to fairness, freedom of expression, openness and accountability, and
5.6.2 will uphold and protect the Constitution and the laws of the Republic, as well as the BCCSA Constitution, Procedure of the Commission and the Free-to-Air and Subscription Broadcasting Codes without favour, fear or prejudice.
5.7 A person who is not a South African citizen, who is not competent to serve as the director of a company in terms of section 69(8) of the Companies Act 71 of 2008, or any amendment thereof, an employee of the Public Service or Municipal Service, any person who holds political office or any person who has a direct or indirect financial interest in the media, or an employee of the electronic or printed media may not serve as a Commissioner or as the Chairperson of the BCCSA.
5.8 The terms of the Chairperson and of the Commissioners are limited to two terms as from the date on which this amendment to the Constitution applies. Terms served prior to the amendment are not to be counted.
5.9 Excepting the Chairperson’s term of office, all appointment terms, including that of the Registrar, are to commence on 1 January and run to 31 December of the year in which the term ends.
5.10 The Chairperson shall establish subcommittees for any purpose, one of which shall be a finance committee.
6. Filling of vacancies
6.1 If the position of a Commissioner becomes vacant during a term, a committee consisting of the Chairperson of the BCCSA, the Chairperson of the Appointment Committee and the Chair of the NAB or his or her delegate may appoint someone to fill the vacancy for the balance of the term of that Commissioner. The committee may appoint any competent person, provided the person complies with the appointment criteria mentioned in paragraph 5.5 and is not disqualified in terms of paragraph 5.7. The period during which a person is appointed to fill a vacancy, will not be regarded as a first term for such person for purposes of paragraph 5.8.
6.2 The BCCSA shall elect one or more persons as deputy chairperson(s) to act as chairperson(s) when the Chairperson is not available. One of the deputy chairpersons shall be elected to the Chair of the Finance Committee of the BCCSA. Any reference in this Constitution and the Procedure to the Chairperson shall, unless the context indicates the contrary, include a reference to the deputy chairperson. Where more than one deputy chairperson is elected and the Chairperson has not designated otherwise, the deputy chairpersons shall act as Chairperson by way of rotation according to the alphabetical order of their surnames for such period as agreed between them. In the case of the Chairperson of an Appeal Tribunal, the position of deputy chairs is adjusted in accordance with the procedure prescribed for such an appeal in the Procedural Rules. The terms of office of the deputy chairpersons shall run concurrently with their terms of office as Commissioners.
6.3 The Appeal Tribunal shall be chaired as follows: the Chairperson of the BCCSA, unless he or she is not available or has sat as Chairperson of the first Tribunal, in which case a deputy Chairperson shall chair the Appeal Tribunal on the basis as set out in paragraph 6.2, provided that where he or she is not available or has sat on the first Tribunal, the Tribunal will be chaired by a Commissioner as designated by the AGM or a SGM.
6.4 Where the Chairperson is not available to chair a session of a Tribunal and not one of the deputy chairpersons is available to chair a session of a Tribunal, the Chairperson of the BCCSA shall appoint one of the Commissioners to chair such a session.
7. Termination of term of office as Chairperson or Commissioner of the BCCSA
The term of office of Chairperson or of a Commissioner of the BCCSA shall be termi-nated if
7.1 he or she resigns;
7.2 he or she becomes incapable for whatever reason of fulfilling his or her duties on the BCCSA;
7.3 he or she is declared insolvent by a court or is found guilty of an offence listed in Schedule I or II of the Criminal Procedure Act 1977; or
7.4 he or she becomes disqualified on any of the grounds mentioned in paragraph 5.7.
7.5 The decision to terminate the appointment of the Chairperson or of a Commis-sioner shall be taken at an AGM or a SGM called in terms of paragraph 9.1 or 9.2 of the Constitution and such decision shall be taken by at least 75% of the mem-bers present at such meeting.
7.6 Immediately after taking the decision, the meeting shall decide on the filling of the vacancy. In the case of the filling of the vacancy of a Commissioner, the provisions of paragraph 6.1 apply. In the case of the filling of the vacancy of the Chairperson, the provisions of paragraph 5.4 apply.
8. Financing of the BCCSA
8.1 The NAB shall ensure that the BCCSA is housed in offices which will serve the purpose of the BCCSA and establish and maintain its independence.
8.2 The BCCSA shall determine the remuneration, fees and expenses to be paid to the Chairperson, deputy Chairperson(s), the Commissioners, the coopted members of a Tribunal or Appeal Tribunal and the members of the Appointment Committee.
8.3 The Chairperson of the BCCSA shall appoint such administrative staff as is necessary for the proper fulfilment by the BCCSA of its duties.
8.4 The proceeds of any fines imposed by the BCCSA shall be applied to causes connected with the education and training of trainees in the electronic media, the updating of the expertise of the BCCSA Commissioners or information to the public on the BCCSA. Such monies may be kept in a separate account by the BCCSA.
8.5 Before the end of every calendar year, the Chairperson and a deputy Chairperson designated by the Chairperson and the BCCSA Finance Committee shall approve a budget for the next calendar year and present this budget to the NAB which shall pay to the BCCSA, in a lump sum, the money required by the BCCSA, before fore 28 February of the following year; provided that the budget shall be limited to reasonable expenses concerning the housing and management of the BCCSA, remuneration, benefits, fees and expenses to the Chairperson, Commissioners of the BCCSA, members of a Tribunal or Appeal Tribunal, the Registrar, the administrative staff as well as the auditor’s fees; provided further that if the costs of adjudications and Tribunal hearings are higher than the amount budgeted for it, the NAB shall during the year also pay these additional costs to the BCCSA together with any other unforeseen and unavoidable expenses for which written motivation must be provided to the NAB.
8.6 If a dispute arises between the BCCSA and the NAB regarding the payment of costs or expenses, an arbiter will be appointed by mutual consent to resolve such a dispute or if mutual consent cannot be reached on the arbiter, an arbiter appointed by the Law Society of the Northern Provinces or its successor. The cost of such arbitration shall be borne by the NAB.
8.7 The BCCSA shall appoint an auditor. The BCCSA shall annually present its au-dited financial statements to the NAB for the preceding calendar year.
8.8 The BCCSA shall authorise the Chairperson, the Registrar and two Commissioners to sign all cheques on behalf of the BCCSA, the signatures of any two of them being sufficient.
9. Meetings of the BCCSA
9.1 The Chairperson shall call an Annual General Meeting (AGM) of the BCCSA where matters arising from this Constitution are discussed and decided upon.
9.2 A Special General Meeting (SGM) shall be convened by the Chairperson or otherwise by the Registrar, at the written request of not less than 50% of the members of the BCCSA. A SGM may be called for by Commissioners to consider the termination of the term of office of the Chairperson or of a Commissioner in terms of paragraph 7 or to consider any other matter deemed to be of sufficient importance to the BCCSA as to justify the calling of a SGM.
9.3 Subject to clauses 11 and 12, not less than 14 days notice in writing shall be given of any meeting of the BCCSA unless all the members agree to accept shorter notice, whether given orally or in writing.
9.4 The Registrar of the BCCSA shall act as secretary and shall prepare an agenda and minutes of the proceedings at all meetings held in terms of this clause.
9.5 A quorum for meeting under this clause shall be 50% of the members, failing which the meeting shall be adjourned to the same day in the next week, at the same place and time, and at any such meeting members present shall constitute a quorum.
9.6 Decisions shall be taken by way of a simple majority of votes unless it relates to the amendment of the Constitution or the dissolution of the BCCSA, in which case the majority required by clauses 11 and 12 shall be adhered to. The Chairperson shall, in addition to his or her deliberative vote, have a casting vote where there is a stay of votes. An amendment to the Constitution as well as any other resolution may also be made by way of a written notice to all Commissioners, proposed by a Commissioner and seconded by another Commissioner and agreed to by the required majority of the Commissioners, either electronically, per fax or by way of a letter.
10. Quorum of Tribunal and voting
10.1 Complaints that a signatory has contravened the Code shall be adjudicated upon by a Commissioner appointed for that purpose by the Chairperson unless he or she decides to place a complaint directly before a Tribunal in terms of Procedural Rule 5.4. The quorum for the Tribunal shall be a minimum of three and consist of the Chairperson or, if he or she cannot attend, a deputy Chairperson and two or more Commissioners. .
10.2 Where the Chairperson is for any reason unable to constitute a Tribunal from the members of the BCCSA, he or she shall coopt competent persons to constitute a quorum.
10.3 Where, in the opinion of the Chairperson, it is necessary to ensure greater representivity on a Tribunal, he or she may add one competent non-member to an already constituted Tribunal or constitute a quorum by adding one competent non-member.
10.4 Decisions of the Tribunal shall be taken by way of a majority of votes and where there is a stay of votes, the Chairperson shall have a casting vote.
11. Amendment of the Constitution and its Appendices
Amendments of this Constitution, the Procedure and the Code shall require the approval of a two-thirds majority of all the Commissioners of the BCCSA voting either in person or by proxy. No amendment shall be effective unless at least 21 days written notice of a proposed amendment shall have been given to the Commissioners. Proxies shall be in writing, signed by the relevant Commissioner(s) and be recorded for or against the proposed amendments and no further amendments of the proposal may be made at such meeting unless a two thirds majority of the BCCSA is present at the meeting and votes in favour thereof.
12.1 The Commissioners of the BCCSA may at any time terminate its existence if it appears to them that the BCCSA’s independence is threatened or that as a result of circumstances beyond its control its objects cannot be achieved. A resolution to dissolve the BCCSA must be passed at a special general meeting, called for such purpose, by a two-thirds majority of all the Commissioners of the BCCSA.
Not less than 21 days written notice shall given of any such meeting and such notice shall give particulars of the purpose for which the meeting is called.
12.2 All the assets of the BCCSA shall, on dissolution, be transferred to the NAB who, where applicable, shall negotiate this matter with other associations in terms of the proviso to sub-clause 3.
12.3 A signatory may at any time, after having been subjected to this Constitution for three years, give written notice to the Chairperson of the BCCSA that it will no longer regard itself bound by this Constitution, and the BCCSA shall strike that signatory’s name from the list of signatories to this Constitution: provided that such signatory shall remain bound to contribute its financial share to the costs of the running of the BCCSA for twelve months after the said notice is given, and provided further that a signatory shall remain subject to the Code in so far as any breach during the said twelve month term had taken place.
13.1 Notices in writing (which includes fax and electronic messages) of annual or special meetings of the BCCSA shall be sent to Commissioners thereof at the email addresses provided by them in writing to the Registrar.
13.2 Accidental omission to notify a member or non-receipt by any member of such notice shall not invalidate the proceedings of the meeting to which the notice relates.
14. Powers of an Adjudicator or a Tribunal
Following any investigation of an alleged infringement of the Code by a signatory, a Commissioners acting as Adjudicator or, as the case may be, a Tribunal may
14.1 dismiss the complaint;
14.2 reprimand any respondent adjudged to have been guilty of an infringement of the Code;
14.3 direct that a correction and/or a summary of the findings of an Adjudicator or Tribunal be broadcast by the respondent in such manner as may be determined by the Adjudicator or Tribunal;
14.4 direct that a respondent grant reasonable access in its broadcasts on an equal opportunity basis to a political party, organisation or movement or candidate in a case where the Code was not complied with and the BCCSA has jurisdiction to hear the matter in terms of its recognition in terms of section 54(3) of the Electronic Communications Act 2005 or where any applicable legislation does not provide for jurisdiction of the CCC of the ICASA. The same rule shall apply with the necessary changes in the case where the sanction of the Tribunal or an Adjudicator is that a broadcaster must afford a complainant a right to reply.
14.5 impose a fine not exceeding R80,000 on any respondent adjudged to have infringed the Code, whereupon the fine so imposed shall be a debt due to the BCCSA and recoverable as such. The maximum amount of the fine may be increased by resolution taken at an AGM or SGM.
14.6 in its reasons for its findings, record criticism of the conduct of the complainant in relation to the complaint, where such criticism is in its view warranted;
14.7 make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made in terms of this clause and, more particularly, give directives as to the broadcasting of its findings.
PROCEDURE OF THE COMMISSION
It shall be of the essence of the BCCSA’s proceedings:
That complaints be considered and adjudicated upon within the shortest possible time after the broadcast of the matter giving rise to the complaint; that complaints be considered and adjudicat-ed upon in an informal manner; and that whenever possible the adjudicator, Tribunal and Appeal Tribunal and the parties will strive for a speedy and amicable settlement.
1.1 “Complainant” shall include any person who or any association, body, corporation, insti-tution, political party, organization or movement, society or union, which lodges a com-plaint or any office-bearer duly nominated in writing to represent such association, body, corporation, institution, political party, organization or movement, society or union for the purposes of pursuing the complaint.
1.2 The “respondent” in respect of a complaint shall be the proprietor of the broadcasting sta-tion which may delegate its chief executive or in his or her absence, a deputy chief execu-tive or other suitable managerial representative of the member concerned, to act and ap-pear in its stead in respect of any complaints dealt with either by an adjudicator or the Tribunal.
1.3 Subject to rule 1.6 a complaint shall be made as soon as possible, but not later than thirty days after the date of the broadcast, or the date of any other alleged breach of the Code giving rise to the complaint.
1.4 The complaint shall be made to the Registrar either in person, by telephone or in writing. “Writing” shall include cable, telegram, telex, e-mail and fax messages. Where a complaint is made other than in writing it shall be confirmed forthwith in writing or the registrar shall assist the complainant to do so. Upon the receipt of a complaint by the Registrar, the Registrar shall be entitled to request from the broadcaster concerned, a copy of the material broadcast, giving rise to the complaint, and the broadcaster shall be obliged to forward such a copy to the Registrar forthwith.
1.5 The Registrar shall only accept a complaint:
1.5.1 which is not anonymous, or which, in his or her opinion, is not fraudulent, frivolous, malicious or vexatious and which prima facie falls within the ambit of the Code;
1.5.2 which is directed at a signatory; and
1.5.3 which does not concern an advertisement broadcast by a signatory who is also subject to the Code of Advertising Practice of the Advertising Stand-ards Authority of South Africa (“ASA”): provided that “advertisement” bears the meaning which that Code attributes to it: and provided further that even if that Code were to be amended so as to have a bearing on political advertising, a complaint concerning such advertising or sponsorship is acceptable in terms of these Procedural rules: provided further that any advertisement which, according to the Regulations of the ICASA, falls within the jurisdiction of the BMCC of the ICASA in its relationship to the ASA, such advertisement will also fall under the jurisdiction of the BCCSA in its relationship to the ASA, unless the IBA Act or any under Act has placed such an advertisement under the exclusive jurisdiction of the Broadcasting Monitoring and Complaints Committee of the ICASA.
1.6 The registrar may upon reasonable grounds accept late complaints if in his or her opinion there is good and satisfactory explanation for the delay.
1.7 Where the Registrar has accepted a complaint and the respondent offers to settle the mat-ter complained of by way of broadcast or otherwise, which in the opinion of the Registrar constitutes a reasonable and sufficient offer of settlement of such complaint, the Registrar may withdraw his or her acceptance of the complaint.
1.8 Where the Registrar declines to accept a complaint on any of the grounds specified in rules 1.3 or 1.5 or withdraws his or her acceptance of a complaint under rule 1.7 the com-plainant may, within seven days, request the Chairperson of the BCCSA to review the Registrar’s decision. In the event of the Chairperson overruling the Registrar’s decision, the matter shall proceed in terms of rule 2.
2. Conciliation and Adjudication Procedure by Adjudicator
2.1 Upon acceptance of a complaint by the Registrar, he or she shall immediately no-tify the respondent in writing of the complaint, giving sufficient details to enable the respondent to investigate the matter and respond.
2.2 Unless the Chairperson decides to directly bring the matter before a Tribunal in terms of Procedural Rule 5.4, the adjudicator or a person appointed by the Chair-person shall forthwith endeavour to achieve a settlement in terms of the Constitu-tion.
2.3 The adjudicator shall hold discussions with the parties on an informal basis with the object of achieving a speedy settlement. The parties shall not be entitled to le-gal or any other representation at such proceedings, but may be accompanied by advisers.
2.4 If the complaint is not settled within 7 days of its notification to the respondent, the adjudicator shall, in a written opinion to the parties, give his or her decision as to the resolution of the dispute.
2.5 Within 4 days of receipt of the opinion, any one of the parties may appeal to the Tribunal by filing grounds of appeal against the decision of the Adjudicator with the Chairperson (or the Registrar, if appointed).
3. Adjudication Procedure of the Tribunal
3.1 Where the dispute has been brought before the Tribunal in terms of rule 2.5, the complainant shall within two days of his or her being informed thereof submit a written statement to the Registrar of the BCCSA.
3.2 The written statement by the complainant shall contain or be accompanied by:
3.2.1 full particulars of the complaint and the substantive bases for the dispute (if material facts or events are alleged these should be presented in affida-vit form);
3.2.2 copies of relevant correspondence;
3.2.3 whenever possible, a video or tape recording or transcript of the broadcast giving rise to the complaint;
3.2.4 names and addresses of witnesses, if applicable;
3.2.5 any other evidence, including affidavits, in support of the complaint.
3.3 The Registrar shall submit a copy of the complainant’s statement to the respond-ent. The respondent shall within 5 days of the receipt of such statement submit a written statement to the Registrar which shall set out fully his or her defence to the complaint together with reference to supporting evidence, where necessary, including the names and addresses of witnesses, if applicable. The Registrar shall submit a copy of respondent’s statement and supporting documents to the com-plainant, and if the Chairperson so determines, he or she may allow the complain-ant to respond, in which case the complainant shall deliver such response to the Registrar and the respondent within 2 days after receiving notice that the Chair-person has so determined. The Registrar ensures that the Chairperson and the members of the Tribunal are in possession of all the documents referred to in this paragraph.
3.4 The Registrar shall, within 2 days after an appeal has been lodged, submit to the Chairperson a written report on the dispute, the adjudicator’s decision and the rea-sons for it, which may be in the form of his or her opinion given to the parties in terms of rule 2.4.
3.5 The Chairperson shall determine a date, time and venue for adjudication of the complaint, which shall be within seven days, or as soon as possible thereafter, af-ter receipt by him of the documents referred to in rule 3.3.
3.6 The Registrar shall notify the parties of the date, time and venue at which the dis-pute will be adjudicated upon. It shall not be obligatory for either party to appear personally before the Tribunal, but they are entitled to attend and to address the Tribunal and the Tribunal is, in any case, entitled to question them on the matter: provided that a respondent is not under a duty to disclose the identity of an in-formant.
3.7 The Chairperson may request the parties to appear personally. The Chairperson may advise parties that an adverse inference may be drawn from failure to comply with such request without good cause.
3.8 The parties shall be entitled to legal or other representation when appearing before the Tribunal.
3.9 If one or more parties do appear before the Tribunal, the proceedings shall take the form of a round table discussion and not a trial.
3.10 On completion of the discussions the parties shall leave and the Tribunal shall come to its decision.
3.11 If the Tribunal finds against a respondent who is present, the respondent shall be given an opportunity to address the Tribunal in mitigation of any penalty that may be imposed in terms of clause 14 of the Constitution.
3.12 The hearings of the Tribunal shall be open to the public.
4. Appeal to Appeal Tribunal
4.1 If any of the parties to a matter which has been decided upon by the Tribunal is aggrieved by the decision, that party may, within 5 days, apply to the Chairperson of the Tribunal in writing for leave to appeal to an Appeal Tribunal of the Com-mission.
4.2 A party who files such an application must set out the grounds fully upon which that party believes that an Appeal Tribunal is likely to come to a different deci-sion.
4.3 The Chairperson of the Tribunal may decide the application on the papers and a copy of the broadcast in the matter and without hearing the parties, if the parties agree to such a procedure.
4.3 Where such leave is granted, the said Chairperson may require from the party who applied for such leave to provide security to the Registrar for the costs (R 21 000) of the appeal by the Appeal Tribunal, which costs would include the aforegoing procedural costs and would be based on an appeal, which does not last longer than one day.
4.4 Where leave to appeal is refused, a party who is aggrieved by such a refusal may, within 5 days, apply to the Chairperson of the Commission or an alternate Chair-person of the Commission or another Commissioner designated by the Commis-sion for leave to appeal – such Chairperson, Alternate Chairperson or Commis-sioner not having sat in the first Tribunal. Such application is decided on the pa-pers, unless the Chairperson, Alternate Chairperson or other Commissioner re-quests the parties to address him or her.
4.5 Where leave to appeal is granted, the Chairperson or other Commissioner, which has granted such leave, may suspend the sanction imposed by the Tribunal pend-ing the outcome of the appeal.
4.7 The Appeal Tribunal and its Chairperson shall apply the same procedure which is applied by the first Tribunal of the Commission when it decides upon a matter. In this procedure, the grounds of appeal and response thereto, as lodged within a time frame determined by the Chairperson of the Appeal Tribunal, plus the rea-sons given by the Tribunal, shall be considered. The Chairperson of the Appeal Tribunal may co-opt a maximum of two persons who are not Commissioners for the hearing of an appeal and such persons will have the right to partake in the pro-ceedings and vote. An Appeal Tribunal shall not consist of more than five persons, including the Chairperson. Where the Chairperson or Deputy of the Commission is not available or may not (as a result of having been on the first Tribunal) sit in such a matter, the Appeal Tribunal will be chaired by another Commissioner designated for that purpose by the Commission.
4.8 The Appeal Tribunal may, where it is deemed appropriate, order an appellant to pay the costs which the Commission had in determining the appeal. Such costs would consist of the fees and costs payable to the persons who were involved in the allowing of the appeal, the hearing thereof plus an administrative fee deter-mined by the Chairperson of the Commission from time to time. An Appellant shall be notified by the Registrar of the possible costs involved when the appeal is lodged.
4.9 An Appeal Tribunal shall not set aside or amend a decision of the first Tribunal unless it is clearly wrong.
5. Variation of Procedure
The Chairperson of the BCCSA may, if satisfied that no injustice will result, and upon such conditions as he or she may impose:
5.1 extend any time period contemplated in these rules;
5.2 at any stage require any allegation of the fact in the statements filed in terms of rule 3 to be verified on oath;
5.3 call upon the parties to a dispute to furnish such further information as he or she may consider necessary;
5.4 dispense with the usual forms and procedures and give such directions as he or she deems fit for the adjudication of a complaint without first attempting to have the complaint settled or adjudicated upon by an adjudicator.
6. Findings of the Commission
6.1 The Chairperson shall cause any findings, reasons for a finding and/or requirements of a Tribunal to be sent to the complainant and to the respondent who shall carry out the Tri-bunal’s directives and comply with any decision which the Tribunal may have taken in terms of clause 14 of the constitution.
6.2 The Registrar shall keep on record all findings and reasons for findings by the Tribunal.
6.3 The records referred to in rule 6.2 shall be public documents except insofar as those doc-uments are privileged in terms of the Promotion of Access to Information Act 2000.
7. Computation of time periods
Any reference in these rules to a number of days includes Saturdays, Sundays and public holidays, unless the adjudicator or Chairperson, as the case may be, determines otherwise and notifies the parties accordingly.