"... The joke did not advocate hatred or constitute incitement to cause harm. In the result, the complaint is not upheld," said BCCSA chairman Prof Jacobus van Rooyen.

In a broadcast over the Easter period on the Redi Tlhabi show on Talk Radio 702, Rabinowitz said "a pastor had a potato stuck up his backside and that it was not holy communion".

This prompted two complaints.

One person, identified only as "Maroun", said he thought Rabinowitz had "overstepped the line" with the holy communion comment.

"I am a Catholic and holy communion is one of the most important sacraments in my religion and I was offended and I am sure all members of the church were," he submitted.

He was referring to the ritual of eating a wafer and sipping wine in remembrance of Christ being crucified.

A second person, "Naude", complained that some of Rabinowitz's utterances were considered blasphemous and he did not think they should be publicly broadcast.

"Specific references, such as a queer Jesus for the gay community, were made," Naude said.

In its response, Talk Radio 702 said it failed to see how the complaint applied to clause 4.2(c) of the Broadcasting Code, which deals with hate speech.

The comments did not in any way support or plead for action against Catholics or instil or provoke ill-will or violence against Catholics.

The BCCSA tribunal found that there was "no doubt" that the joke was shocking and offensive, and in the days of the Publications Act of 1974, a finding of offensiveness to religious convictions or feelings would probably have been made.

However, the legal requirements for blasphemy would not have been met because they required that the remarks be calculated to slander God, and for Christians this would include Jesus and the Holy Spirit.

Freedom of religion was guaranteed and protected in the Constitution and the Broadcasting Code, Van Rooyen said.

Advocacy of hatred based on religion, which amounted to incitement to cause harm, was not permitted.

Blasphemy also had to be understood in terms of Section 39 of the Constitution, which provided that when developing the common law, every court, tribunal or forum promote the spirit, purport and objectives of the Bill of Rights.

It was now Constitutionally limited to hate speech, as prohibited by the Constitution and also by the Broadcasting Code.

"Thus, insofar as the second complainant has referred to blasphemy, the complaint must also be dealt with by testing the joke in question against the requirements of hate speech, as defined in Section 16 of the Constitution," Van Rooyen said.

"... I have no doubt that the harm element has been satisfied, in the sense that the complainants were clearly severely shocked as, we believe, Christians in general would be shocked by the joke," he said.

But the joke did not advocate hatred or cause incitement to cause harm, so the complaint was not upheld.

The commissioners working with Van Rooyen were Victoria Bronstein, Nana Makaula and Brian Makaketa.