Authored By: Thapelo Mabela
University of Fort Hare
Abstract
South African laws aim to protect human rights; however, the emergence of podcasts has exposed regulatory gaps, leaving podcasting practices insufficiently governed. This article examines the legal and regulatory frameworks that apply to podcasting in South Africa, with reference to the Constitution of the Republic of South Africa, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), and related legislation.1 It examines the podcasting space and the shortcomings of the existing legal framework. The article further considers the infringement of individuals’ rights with reference to incidents on Podcast and Chill and Open Chats Podcast, and proposes possible regulatory improvements to protect individuals’ rights.
1. Introduction
Podcasts have become increasingly prominent in South Africa, leading to many celebrities, musicians, former radio presenters, and content creators joining the podcast space. Podcasts are flexible and they foster a sense of community among listeners, encouraging them to interact and discuss shared interests. People listen to podcasts for many different reasons — whether for education, news updates, or entertainment.
However, there has been a growing concern among listeners regarding rights violations by podcasters. In 2025, a South African podcaster, MacG (Macgyver Mukwevho), the host of Podcast and Chill with MacG — one of the top podcasts in South Africa — made offensive remarks about Minnie Dlamini, an actress, presenter, and TV producer.2 Later in 2025, another podcast, Open Chats Podcast, made racial remarks about coloured people.3 Such events demonstrate that the freedom given to podcasters is sometimes used carelessly, in ways that violate other individuals’ rights. The lack of direct podcasting laws has allowed the podcasting space to become a platform where harmful things can be said about others with limited accountability.
2. Legal Framework
2.1 What is a Podcast?
In South Africa, no statute defines a podcast, but according to its dictionary meaning, a podcast is an audio recording that may be downloaded or streamed on a computer or mobile device, generally available as a series to which people can subscribe. A podcast is a multimedia file typically found on social media platforms such as YouTube, TikTok, and Spotify, accessible via a feed that can be played back on mobile devices and laptops.4 South African law does not define a “podcaster,” but a working definition may be derived from other statutes. For example, the Broadcasting Act defines a broadcaster as a person who creates television or radio programme services for the public or subscribers to receive.5 It is therefore reasonable to describe a podcaster as a person who creates and distributes audio or audiovisual content on social media platforms for reception by the public or his or her subscribers.
However, the absence of a clear legal definition for podcasts does not mean that podcasters are free from legal obligations. This does not suggest that podcasters are free to make remarks that have a negative impact on other people’s image or well-being. Specific laws such as the Constitution and PEPUDA assist in enforcing compliance with legislation in relation to podcasts.
2.2 Provisions that Protect Persons Against Unregulated Podcasters that Violate Human Rights
The Constitution establishes the rules for governance, the protection of individual rights, and the rule of law in a democratic state. Its founding values include the protection of human dignity, the achievement of equality, the advancement of individual rights, and the eradication of racism and sexism.6 The Constitution further prohibits persons from unfairly discriminating, directly or indirectly, against anyone on grounds including race, gender, and sex.7 These provisions apply to everyone in South Africa, including podcasters, who can be held accountable for acts that violate these rights.
PEPUDA was enacted to ensure that South Africa fulfils its international obligations.8 There is no universal definition of hate speech, meaning that countries regulate it differently — some recognising it as a crime, while South Africa has historically treated it as a civil matter under PEPUDA. It should be noted, however, that the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 has since introduced criminal liability for hate speech that meets a defined threshold, strengthening the available remedies. Under PEPUDA, it remains an offence for a person to publish, advocate, or communicate words based on, amongst other things, race, gender, or sex, directed at any person, that could reasonably be understood to show an intention to be harmful, to incite harm, or to promote or propagate hatred.9
2.3 Difference Between Broadcasts and Podcasts
Broadcasts are programmes with specific format and timing details that indicate when they will go on air. Podcasts, by contrast, are audio recordings that can be saved for later playback on a desktop computer, iPod, or other portable media player.10 Broadcasts are transmitted through television and radio stations, while podcasts are pre-recorded audio or video files that can be accessed on demand over the internet.
Broadcasts are regulated by the Broadcasting Act and the Broadcasting Complaints Commission of South Africa (BCCSA). The Broadcasting Act governs the operations of broadcasters, their licences, and how they must be constituted.11 The BCCSA prohibits the broadcasting of material that promotes violence or conduct based on, among other things, race, colour, and gender.12 It further requires that broadcasts be careful and considerate in matters involving the privacy, dignity, and reputation of individuals,13 and holds broadcasters accountable upon complaint by a viewer.
The conduct of podcasts, however, is not regulated by any equivalent framework. Users and viewers may flag a video for removal if they believe it violates individuals’ rights, by clicking the flag icon and selecting the category that describes the violation.14 This procedure is purely a content removal mechanism — it does not cancel the podcast or deter the podcaster from engaging in such conduct again. This regulatory gap, as the case law discussed below demonstrates, has real and measurable consequences for affected individuals.
3. Judicial Interpretation
3.1 South African Case Law on Hate Speech and Racism
In Amaning and Others v Ackerman, the court emphasised that the rationale for hate speech prohibitions is to address the negative consequences of such speech and the harm it causes, whether to the target group or to the general well-being of society. The court further stated that the speech must incite hatred toward the target and have the potential to perpetuate unfair discrimination and unavoidable stereotyping.15 In this case, the defendant had made derogatory remarks — including the use of the “k-word,” which colonisers used to refer to Black people during apartheid — toward the plaintiff on several occasions.
The first incident occurred on or about 31 January 2018, at Mr Ackerman’s business, where he said to Mr Wellman, “the k….s running this country will just keep f…ing it up as they have done in the rest of Africa.” The second incident occurred on or about 3 October 2018, where Mr Ackerman told Mr Wellman that Mr Liebmann was “that f…ing Jew who only wants to enrich himself in every deal.” The third incident took place on 23 August 2019, when Mr Ackerman sent a text to Mr Wellman reading, “Garth, after today, I might be seen as racist, but I will man alone kill every K…r that cross my path.” The fourth incident occurred in October 2021, where Mr Ackerman said to Mr Wellman on a telephone call, “my k…..s know their place.”16
The court reasoned that Mr Ackerman’s conduct exposed Mr Amaning and all Black people to hatred, which was likely to constitute unfair discrimination and negative stereotyping.17
Before the landmark judgment in Qwelane v South African Human Rights Commission, section 10(1) of PEPUDA read as follows:
“Subject to the provision in section 12, no person may publish, promote, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful, (b) be harmful or to incite harm, (c) promote or propagate hatred.”
The provision included the word “hurtful,” which the court in Qwelane declared unconstitutional and invalid because it was vague and unjustifiably limited section 16 of the Constitution. The court held that the provision would be read without the word “hurtful.”18
3.2 Critical Evaluation
In Amaning v Ackerman, the court correctly focused on the real harm caused by hate speech — specifically, how racist remarks reinforce discrimination and harmful stereotypes in society. The repeated use of the “k-word” and other offensive statements clearly went beyond mere insults; they promoted hatred against Black people and Jewish people and had the potential to normalise discrimination. This aligns with the purpose of hate speech laws, which is to protect dignity and equality.
The earlier wording of section 10(1) of PEPUDA was too broad because it included speech that is merely “hurtful.” As confirmed in Qwelane v SAHRC, not all hurtful speech amounts to hate speech, and freedom of expression under section 16 of the Constitution must also be protected. Removing the word “hurtful” creates a better balance between protecting people from serious harm and respecting freedom of speech, while still allowing courts to address speech that incites hatred and discrimination.
4. Critical Analysis
Podcasts do not have a regulatory framework equivalent to the BCCSA — there is no body to which those affected by hate speech or other rights violations on podcasts can readily turn for accessible redress. Only those who can afford legal representation can sue a podcaster for defamation or hate speech. Those without financial means cannot access the courts to enforce the very rights that the Constitution and PEPUDA seek to protect. Moreover, the Broadcasting Act and the Electronic Communications Act are outdated instruments that do not cater to digital media such as podcasts, leaving a structural enforcement gap that recent incidents have made unmistakably visible.
5. Recent Developments
The offensive remarks made by the host of Podcast and Chill with MacG reignited public discussions about podcast regulation. The host made the following comment about Minnie Dlamini on the podcast:
“Bro, I’m telling you man. There’s got to be something wrong with her; maybe her coochie smells or something. You know this happens, man, it happens, especially with the hot girls.”
The hosts of Open Chats Podcast also made derogatory remarks, stating that coloured people “chow” (sleep with) each other, and another host said that after watching Kings of Joburg, he is scared of coloured people.19
Both incidents generated significant public reaction. Following the remarks on Podcast and Chill, the Deputy Minister in the Presidency for Women, Youth and Persons with Disabilities took several approaches to hold the host accountable, threatening to escalate the matter to parliament and to the Minister of Communications and Digital Technologies for urgent regulatory evaluation of online content that perpetuates gender stereotypes.20 The South African Human Rights Commission received numerous complaints following the comments made by the hosts of Open Chats Podcast, which had labelled coloured people as “incestuous” and as people who sleep with their siblings.21
6. Suggestions
The incidents discussed above expose a clear and urgent need for targeted regulatory reform. Two proposals are advanced here.
First, the Broadcasting Act must be amended to include regulations for podcasts. Given the scale and reach of the South African podcast industry, it is no longer tenable to treat podcasting as outside the regulatory framework that governs other forms of public broadcasting. An amendment extending the Act’s scope — or a standalone podcasting schedule — would bring podcasters within a clear legal accountability framework comparable to that which applies to traditional broadcasters.
Second, since there is massive demand for podcasts, a Podcast Complaints Commission — or an equivalent accessible complaints mechanism — must be established, so that those who cannot afford legal fees can lodge grievances and have their rights effectively vindicated. Access to justice should not depend on the depth of one’s pocket; a low-cost or free complaints body modelled on the BCCSA would ensure that every listener, regardless of financial means, has a meaningful remedy when a podcast violates their rights.
7. Conclusion
In conclusion, podcasts are growing rapidly in South Africa, but there are no clear laws that directly regulate them. This creates a gap where harmful speech can violate people’s dignity and equality rights without effective accountability. Although the Constitution and PEPUDA offer protection in principle, stronger and clearer podcast regulations — together with an accessible complaints body — are needed to better protect individuals from hate speech and discrimination in the digital media space.
Reference(S):
Primary Sources
Cases
Amaning and Others v Ackerman (EQ3/2023) [2024] ZAEQC 2 (10 May 2024).
Qwelane v South African Human Rights Commission 2020 2 SA 124 (SCA).
Statutes and Statutory Instruments
Broadcasting Act 1999, s 1(1)–(12).
Promotion of Equality and Prevention of Unfair Discrimination Act 2000, s 3 and s 10(1).
Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023.
The Constitution of the Republic of South Africa 1996, s 1(a) and (b) and s 9(4).
BCCSA Free-to-Air Code of Conduct for Broadcasting Service Licensees 2009, s 4(1) and 15(1).
Secondary Sources
Journals
Geldenhuys J and Kelly-Louw M, ‘Demystifying Hate Speech under the PEPUDA’ (2020) 2 Potchefstroom Electronic Journal http://dx.doi.org/10.17159/1727-3781/2020/v23i0a7520 Accessed 12 February 2026.
Rambe P and Madichie N.O, ‘Sustainable Broadcasting in Africa: Insights From Two South African Campus Radio Stations’ [2020] Vol 15 (No.4) African Journal of Business and Economic Research 189 https://doi.org/10.31920/1750-4562/2020/v15n4a9 Accessed 11 February 2026.
Hay H.R, ‘IPodcasting: an ally in curriculum design’ [2008] vol 22 (No.5) South African Journal of Higher Education 981 https://journals.co.za/doi/10.10520/EJC37489 Accessed 11 February 2026.
Websites and Blogs
Tembo T, ‘Podcast regulations in South Africa: A threat to free Speech?’ (IOL, 14 May 2025) https://iol.co.za/news/south-africa/2025-05-14-podcast-regulations-in-south-africa-a-threat-to-free-speech/ Accessed 12 February 2026.
LegalClarity Team, ‘How to get a YouTube Video Taken Down’ (Intellectual Property Law, 31 January 2026) https://legalclarity.org/how-to-get-a-youtube-video-taken-down/ Accessed 11 February 2026.
Myeza Z, ‘Podcasters not exempt from legal limitations’ (The Witness, 16 August 2025) https://witness.co.za/news/2025/08/16/podcasters-not-exempt-from-legal-limitations/ Accessed 09 February 2026.
Kunene N, ‘SAHRC probes offensive podcast remarks targeting coloured community’ (The Witness, 07 August 2025) https://witness.co.za/news/kzn/2025/08/07/sahrc-probes-offensive-podcast-remarks-targeting-coloured-community/ Accessed 12 February 2026.
Footnotes
1 Constitution of the Republic of South Africa 1996; Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA).
2 Theolin Tembo, ‘Podcast regulations in South Africa: A threat to free Speech?’ (IOL, 14 May 2025) https://iol.co.za/news/south-africa/2025-05-14-podcast-regulations-in-south-africa-a-threat-to-free-speech/ accessed 09 February 2026.
3 Zama Myeza, ‘Podcasters not exempt from legal limitations’ (The Witness, 16 August 2025) https://witness.co.za/news/2025/08/16/podcasters-not-exempt-from-legal-limitations/ accessed 09 February 2026.
4 H.R. Hay, ‘IPodcasting: an ally in curriculum design’ [2008] vol 22 (No.5) South African Journal of Higher Education 981 https://journals.co.za/doi/10.10520/EJC37489 accessed 11 February 2026.
5 Broadcasting Act 1999, s 1(1).
6 Constitution of RSA 1996, s 1(a) and (b).
7 Constitution of RSA 1996, s 9(4).
8 Promotion of Equality and Prevention of Unfair Discrimination Act 2000, s 3.
9 Judith Geldenhuys and Michelle Kelly-Louw, ‘Demystifying Hate Speech under the PEPUDA’ (2020) 5–6 Potchefstroom Electronic Journal http://dx.doi.org/10.17159/1727-3781/2020/v23i0a7520 Accessed 12 February 2026; PEPUDA 2000, s 10(1).
10 Patient Rambe and Nnamdi O. Madichie, ‘Sustainable Broadcasting in Africa: Insights From Two South African Campus Radio Stations’ [2020] Vol 15 (No.4) African Journal of Business and Economic Research 189 https://doi.org/10.31920/1750-4562/2020/v15n4a9 Accessed 11 February 2026.
11 Broadcasting Act 1999, ss 1–12.
12 BCCSA Free-to-Air Code of Conduct for Broadcasting Service Licensees 2009, s 4(1).
13 Ibid, s 15(1).
14 LegalClarity Team, ‘How to get a YouTube Video Taken Down’ (Intellectual Property Law, 31 January 2026) https://legalclarity.org/how-to-get-a-youtube-video-taken-down/ Accessed 11 February 2026.
15 Amaning and Others v Ackerman (EQ3/2023) [2024] ZAEQC 2 (10 May 2024) [106].
16 Ibid [19]–[22].
17 Ibid [117].
18 Qwelane v South African Human Rights Commission 2020 2 SA 124 (SCA) [198].
19 Nompilo Kunene, ‘SAHRC probes offensive podcast remarks targeting coloured community’ (The Witness, 07 August 2025) https://witness.co.za/news/kzn/2025/08/07/sahrc-probes-offensive-podcast-remarks-targeting-coloured-community/ Accessed 12 February 2026.
20 Theolin Tembo, ‘Podcast regulations in South Africa: A threat to free Speech?’ (IOL, 14 May 2025) https://iol.co.za/news/south-africa/2025-05-14-podcast-regulations-in-south-africa-a-threat-to-free-speech/ accessed 09 February 2026.
21 Nompilo Kunene (n 19).
