Brief Summary

Constitutional Law — Freedom of expression — Films and Publications Act — Applicants challenged constitutionality of sections 16(1), 16(2), and 24A(2)(a) of the Films and Publications Act 65 of 1996, as amended, arguing that pre-publication classification infringes on the right to freedom of expression and unfairly excludes magazines from protections afforded to newspapers. The applicants contended that the provisions impose undue burdens on publications of public interest and are inconsistent with the Constitution. The court held that the challenged provisions are unconstitutional and invalid, and ordered amendments to ensure equal protection for magazines and newspapers under the Act.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a constitutional challenge brought on notice of motion in the South Gauteng High Court, Johannesburg. The applicants sought declaratory and remedial relief directed at certain provisions of the Films and Publications Act 65 of 1996, as amended by the Films and Publications Amendment Act 3 of 2009, which introduced (as the applicants characterised it) a system of pre-publication classification for certain publications.

The parties were Print Media South Africa (first applicant) and the South African National Editors Forum (second applicant) on the one hand, and the Minister of Home Affairs (first respondent) and the Film and Publications Board (second respondent) on the other. The applicants represented interests in the print media sector and challenged the statutory scheme as applied to publications, including magazines and other non-newspaper publications.

The procedural history reflected that the application was triggered by the commencement of the 2009 amendments on 14 March 2010, with the matter being heard on 5 May 2011 and judgment delivered on 26 October 2011. The applicants sought declarations of constitutional invalidity, together with reading-in remedies and consequential relief, and the court ultimately referred its orders to the Constitutional Court for confirmation under section 172(2)(a) of the Constitution.

The general subject-matter of the dispute concerned the constitutional permissibility of requiring certain publications to be submitted to the Film and Publications Board for examination and classification before distribution, the scope of the statutory trigger for that duty (particularly the meaning and effect of the word “contains” in section 16(2)(a)), and the constitutionality of distinguishing between newspapers (which received an exemption if they met specified self-regulatory criteria) and magazines (which did not).

Material Facts

The application arose from amendments that, according to the applicants, introduced pre-publication classification for various forms of publications. Under the amended scheme, if a publication fell within the scope of section 16(2), the publisher (and certain other actors) was obliged to submit it to the Board for classification before the publication could lawfully be distributed in South Africa.

It was common cause that, on the wording of section 16(2)(a) as it stood, if a publication contained sexual conduct of the kind described and linked to certain harmful qualities (such as violating dignity, degrading a person, or inciting harm), then classification was required, and the publication did not need to advocate or promote the harmful conduct in order for the duty to submit to arise. The court recorded that this was not disputed between the parties.

The statutory definition of “sexual conduct” was broad and encompassed sexual intercourse (real or simulated) including anal intercourse, and sexual contact involving direct or indirect touching of intimate parts, among other activities. The breadth of this definition formed part of the factual context against which the reach of section 16(2)(a) had to be assessed.

The court also took into account the regulatory mechanism applicable to classification committees under regulations made pursuant to the Act, including the requirement that a committee examine a publication page by page, scrutinising both visual presentation and text to identify “classifiable elements,” and then allocate a rating and compile a report. The court treated this regulatory framework as relevant to understanding the practical operation and impact of the statutory scheme.

A further material feature was the statutory differentiation between bona fide newspapers meeting specified self-regulatory criteria (recognised by the Press Ombudsman and adhering to an enforceable code of conduct), which were exempted in terms of section 16(1), and magazines and other publications, which did not receive the same exemption notwithstanding the applicants’ contention that an identical self-regulatory system existed for such publications.

The applicants placed examples before the court (including references to mainstream magazines, books, and foreign magazines) to demonstrate, in their submission, the reach and practical consequences of the impugned provisions. The court’s reasoning treated the potential breadth of the provisions and their consequences as material, without resolving the matter on the basis of evidentiary disputes about the content of particular articles.

Finally, at the hearing the respondents conceded that there was a patent error in section 24A(2)(a), namely that its reference to section 16(1) should have been to section 16(2). The court accepted that, if left uncorrected, this would render the penal provision incoherent.

Legal Issues

The central legal questions the court was required to determine concerned whether section 16(2)(a) (and related provisions) were inconsistent with the Constitution and invalid, principally because of their impact on freedom of expression, and whether the statutory scheme unjustifiably differentiated between newspapers and magazines.

A key issue involved the interpretation and constitutional effect of the legislative trigger in section 16(2)(a), specifically the use of the word “contains” in relation to sexual conduct linked to violation of dignity, degradation, or incitement to harm. The court had to decide whether, properly understood, the provision required pre-publication submission merely because a publication contained such material (including reporting that condemned it), or whether a narrower reading was warranted.

The dispute therefore engaged questions of law (constitutional validity and statutory interpretation), and the application of law to the practical operation of the statutory scheme (including whether the scheme functioned as a form of prior restraint). It also involved an evaluative assessment under section 36 of the Constitution concerning whether any limitation of expression was reasonable and justifiable, and an assessment of rationality and equality implications arising from the newspaper/magazine distinction.

In addition, the court had to address the constitutional validity and coherence of section 24A(2)(a) as a penal provision linked to the submission obligation, particularly given the conceded cross-reference error and the applicants’ attack on its scope.

Court’s Reasoning

The court approached the matter on the footing that the impugned provisions, as drafted and as they operated, imposed a requirement that certain publications be submitted to the Board and await classification before lawful distribution. The court characterised this mechanism, in substance, as a form of prior restraint, because it prevented publication and distribution unless and until an administrative body had acted, and because it would predictably cause delay.

On the interpretive dispute raised by the respondents, the court rejected as implausible the contention that section 16(2)(a) was directed only at publications containing visual images of specified sexual conduct, or that “mere reporting” would not fall within the provision. The court stated that this construction was not supported by the language used in the section and considered the more plausible reading to be one that would require that the publication should advocate or promote the sexual conduct, rather than merely “contain” references to conduct of the described kind. In the court’s view, the respondents’ interpretation failed to avoid the overbreadth created by the statutory text and did not align with the section’s wording.

In assessing freedom of expression, the court accepted the applicants’ argument that compelling submission for pre-publication classification would foreseeably produce delay, and that delay undermines the ability of the public to receive information timeously. It aligned itself with the proposition, drawn from the authorities relied on by the applicants, that the value of news and topical publication lies in its timeliness and that delayed publication can deprive information of its value and interest. On the court’s reasoning, requiring pre-publication approval therefore constituted a limitation of section 16 rights, not merely a benign regulatory measure.

The court also accepted that the scheme’s breadth could induce self-censorship, because where a publication contained even a single article falling within the section, the consequence would be submission of the entire publication for classification. The court treated the combination of practical burdens, delays, and the chilling effect of possible criminal sanction as a substantial interference with expression. In this connection, the court rejected the respondents’ attempt to characterise the scheme as mere “regulation” that did not limit rights, emphasising that the effect of requiring advance submission to an official body was constitutionally significant.

When dealing with the respondents’ reliance on the general purposes of the Act (including protecting children and providing consumer advice to adults), the court held that the respondents’ approach was flawed because it did not engage sufficiently with the specific objective and impact of the impugned provisions, as distinct from the statute’s objectives in general. The court endorsed the principle that, for limitation analysis, a general justification does not suffice where a specific provision is challenged; the specific governmental object and the specific effects of the challenged rule must be examined. The court further accepted the principle that a statute may be invalid because either its purpose or its effect is inconsistent with the Constitution.

The court considered the provisions to be overbroad, describing them as casting the net too wide by capturing legitimate publications, including material in the public interest, rather than targeting the types of content the respondents emphasised. It held that less restrictive means were available, and specifically stated that if the provisions targeted publications that advocate or promote the relevant sexual conduct, there would be no objection. This reasoning underpinned the court’s preference for a remedy that altered the statutory trigger from “contains” to “advocates or promotes.”

On the distinction between newspapers and magazines, the court rejected the respondents’ justification that newspapers warranted exemption because of a history of self-regulation and responsible publication, while magazines were randomly published and had a longer shelf life. The court regarded these distinctions as untenable in light of the existence of weekly publications and magazines that were subject to the same self-regulatory framework and dealt with matters of public interest. The court illustrated the irrationality of the differentiation by comparing a weekly newspaper and a weekly magazine, concluding that the distinction lacked a legitimate purpose or rational relationship to the stated objectives and infringed the right to equal protection and benefit of the law, while also aggravating the limitation on expression.

As to section 24A(2)(a), the court noted that its constitutionality was no longer pursued as a contested issue at the hearing because of the respondents’ concession regarding the cross-reference. The court accepted that the concession was correctly made and that leaving the error uncorrected would render the penal provision incoherent. The court also granted relief to confine the penal provision’s application to the publications contemplated in section 16(2), consistent with the structure of the statutory scheme as understood by the court.

Outcome and Relief

The court declared section 16(2)(a) of the Films and Publications Act 65 of 1996 (as amended) inconsistent with the Constitution and invalid. As a remedial measure, it ordered that section 16(2)(a) be read as though the word “contains” had been deleted and replaced with the words “advocates or promotes.”

The court further declared sections 16(1), 16(2), and 24A(2)(a) inconsistent with the Constitution and invalid to the extent that they excluded magazines from the protection afforded to newspapers. To remedy this defect, it ordered that those sections be read as though the words “or magazine” appeared after the word “newspaper” in each instance.

In addition, the court declared section 24A(2)(a) inconsistent with the Constitution and invalid to the extent that it applied to publications other than those referred to in section 16(2). It ordered a reading-in remedy to delete the words referring to section 16(1) in section 24A(2), and to insert wording providing that the subsection applies only to those publications referred to in section 16(2).

The court referred its constitutional invalidity orders to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

On costs, the court directed the first and second respondents, jointly and severally, to pay the applicants’ costs, including the costs of two counsel.

Cases Cited

Affordable Medicines Trust & Others v Minister of Health & Others [2005] ZACC 3; 2006 (3) SA 247 (CC).

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56; 2007 (5) SA 540 (SCA).

South African National Defence Union v Minister of Defence & other 1999 SA 469 (CC).

MEC for Health Mpumalanga v MNet & Another 2002 (6) SA 714.

R v Sherwood, ex parte Telegraph Group 2001 WLR (1983).

The Observer and The Guardian v UK [1991] ECHR 49; (1992) 14 EHRR 153.

Khumalo & others v Holomisa 2005 (2) SA 401 (CC).

Chief Lesapo v North West Agricultural Bank [1999] ZACC 16; 2000 (1) SA 409 (CC).

Van der Merwe v Road Accident Fund 2006(4) SA 230 (CC).

Islamic Unity Convention v Independent Broadcasting Authority & Others [2002] ZACC 3; 2002 (4) SA 294 (CC).

Zondi v MEC for Traditional & Local Government Affairs & Others 2005(3) SA 589 (CC).

Government of the Republic of South Africa v Sunday Times Newspaper.

Legislation Cited

Films and Publications Act 65 of 1996.

Films and Publications Amendment Act 3 of 2009.

Constitution of the Republic of South Africa, 1996 (including sections 16, 36, and 172(2)(a)).

Rules of Court Cited

No specific rule of court was cited in the judgment.

Held

The High Court held that the statutory scheme in section 16(2)(a), by requiring submission of publications for classification before distribution where the publication merely “contains” certain forms of sexual conduct linked to dignity violations, degradation, or incitement to harm, operated as an unconstitutional prior restraint and imposed an unjustifiable limitation on freedom of expression, including by causing delay and overbreadth that captured legitimate public-interest publication.

The court further held that the statutory distinction that effectively exempted qualifying newspapers but not magazines from the pre-publication submission requirement lacked a legitimate purpose or rational relationship to the stated objectives and infringed constitutional norms of equality while compounding the limitation on expression. It therefore declared the exclusion of magazines from the newspaper exemption constitutionally invalid.

The court also held that section 24A(2)(a) contained a conceded cross-reference error and required remedial correction, and that the penal provision was constitutionally invalid to the extent that it applied beyond the publications contemplated by section 16(2). The court granted declaratory relief and fashioned reading-in remedies, subject to confirmation by the Constitutional Court.

LEGAL PRINCIPLES

The judgment applied the principle that pre-publication restraints requiring advance approval by an executive or administrative body can constitute a serious limitation of freedom of expression, particularly because delay can deprive news and topical information of value, impede the public’s right to receive information, and encourage self-censorship. The court treated timeliness as integral to effective expression in a constitutional democracy.

The court applied the principle that constitutional justification of a limitation cannot rest only on the general objectives of the statute; the analysis must identify and examine the specific governmental objective of the impugned provision and must consider both the purpose and effect of the challenged provision. A general justification was regarded as insufficient where a particular legislative mechanism is attacked for overbreadth and practical impact.

The court applied the principle that legislation may be unconstitutional where its provisions are overbroad, capturing protected and legitimate expression beyond what is necessary to achieve the stated purpose, particularly where less restrictive means are available. In the court’s remedial approach, narrowing the trigger from material a publication “contains” to material it “advocates or promotes” was treated as a constitutionally appropriate way to address overbreadth in the relevant context.

The court applied the principle that statutory distinctions between categories of publications must have a legitimate purpose and a rational relationship to the governmental objective advanced. A differentiation between newspapers and magazines was held to be constitutionally impermissible where the differentiation was irrational in operation and unjustifiably affected access to the exemption tied to self-regulation.

Print Media South Africa and Another v Minister of Home Affairs and Another (14343/2010) [2011] ZAGPJHC 149 (26 October 2011)