Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012)

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Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 113/11
[2012] ZACC 22
In the matter between:
PRINT MEDIA SOUTH AFRICA
..............................................................
First
Applicant
SOUTH AFRICAN NATIONAL EDITORS’ FORUM
.........................
Second
Applicant
and
MINISTER OF HOME AFFAIRS
...........................................................
First
Respondent
FILM AND PUBLICATION BOARD
................................................
Second
Respondent
and
JUSTICE ALLIANCE OF SOUTH AFRICA
....................................
First
Amicus Curiae
SECTION 16
...................................................................................
Second
Amicus Curiae
Heard on : 13 March 2012
Decided on : 28 September 2012
JUDGMENT
SKWEYIYA J (Mogoeng CJ, Cameron J, Jafta J,
Khampepe J, Nkabinde J, Maya AJ and Zondo AJ
concurring):
Before
us are proceedings for confirmation of an order of the South Gauteng
High Court, Johannesburg (High Court), per Mathopo
J.
1
The High Court held that certain provisions of the Films and
Publications Act,
2
as amended by the Films and Publications Amendment Act,
3
(Act) were unconstitutional and invalid. It is only those sections
that concern us.
The
parties
The
first applicant, Print Media South Africa, is an incorporated
association not for gain. Its members are the Newspaper Association

of South Africa, the Magazine Publishers Association of South Africa
and the Association of Independent Publishers. It represents
a wide
range of participants in the print media industry.
The
second applicant, the South African National Editors’ Forum,
is a non-profit organisation, comprising various editors,
senior
journalists and journalism trainers from all sectors of South
African media. It states that one of its objects is to campaign
for
the elimination of legislative restrictions on media freedom.
The
applicants had previously made submissions to Parliament on the
intended amendments to the Act and the direct effect that
those
would have on their members and the industry at large. Their efforts
to avert the enactment of the challenged statutory
provisions were
unsuccessful, and for that reason they have brought these
proceedings.
The
first respondent is the Minister of Home Affairs, the Cabinet member
responsible for the administration of the Act. The second
respondent
is the Film and Publication Board
4
(Board), whose functions are implicated in these proceedings. The
order of the High Court was made against both the respondents.
The
Justice Alliance of South Africa (JASA) was admitted as the first
amicus curiae. JASA is a non-profit association, whose key
objective
is to uphold and develop Judeo-Christian and constitutional values
by means of litigation and involvement in legislative
processes. It
has previously made submissions to the Ministry of Home Affairs and
the Board on draft legislation, relating to
banning access to
pornography on the internet and mobile telephones.
Another
non-profit association, known as Section 16, was admitted as the
second amicus curiae. To avoid confusion with the relevant

constitutional and statutory provisions in the discussion to follow,
I refer to Section 16 simply as the second amicus. The second
amicus
describes its main objects to be the expression of opinions on the
development of the law, to ensure individual liberty
and to advocate
for law reform in respect of freedom of expression and access to
information. It based its application for admission
as an amicus
curiae on its previous litigation history in relation to its
objects, as well as on its interest in the issues raised
here.
Condonation
Some
of the parties to these proceedings failed to lodge papers within
the time periods prescribed by the Rules of this Court
and our
directions, and have applied for condonation for their failure. It
is convenient to consider these applications at this
stage.
The
first application for condonation was made by the respondents for
the late filing of their notice of appeal, which, according
to Rule
16(2), was to be filed within 15 court days from the date of the
High Court’s order.
5
Their condonation application and accompanying notice of appeal, in
fact, arrived more than three months after this date.
In
his supporting affidavit the instructing attorney for the
respondents states that, following the delivery of the High Court’s

order, he had been instructed by his clients to note an appeal, but
that he had inadvertently failed to do so. He goes on to
explain
that he mistook this Court’s directions of 21 November 2011 to
indicate that his clients were required to deliver
only heads of
argument and not, in fact, to note an appeal, as Rule 16(2)
requires. He concludes that his misapprehensions
were rectified by
counsel as late as 1 February 2012, the day before his clients’
application for condonation was delivered
and for his error he is
contrite.
Condonation
is entirely discretionary and turns on a consideration of various
factors.
6
A three-month delay is not trivial in the least and has
inconvenienced this Court and the applicants. The condonation
application,
however, is unopposed, and any prejudice caused is
outweighed by the broad social impact of the issues and the need for
finality
in this matter. I am, therefore, minded to grant
condonation.
The
next application for condonation was made by the second amicus. Its
application for admission as an amicus curiae was due
to be
delivered by 16 February 2012. It was, however, delivered
on 27 February 2012. The instructing attorneys apparently
became
aware of this Court’s directions, which established the
timeframe, only after the due date of their client’s

application. Although this application arrived very close to the
date of the hearing, the significance of the matter and the

contribution sought to be made by the second amicus warrant
condonation.
Before
turning to consider the constitutional complaints, I set out the
terms of the challenged provisions and a brief discussion
on the
pertinent mechanics of the statutory scheme.
The
impugned provisions
The
challenged provisions of the Act are sections 16(1), 16(2), 16(2)(a)
and 24A(2)(a). By extension of some of the submissions
made in this
Court, other sections of the Act may also be implicated. I, however,
focus squarely on the impugned provisions,
which are reproduced
below:
“
16
Classification of publications
(1) Any person may request, in
the prescribed manner, that a publication, other than a
bona fide
newspaper that is published by a member of a body, recognised by the
Press Ombudsman, which subscribes, and adheres, to a code
of conduct
that must be enforced by that body, which is to be or is being
distributed in the Republic, be classified in terms of
this section.
(2) Any person, except the
publisher of a newspaper contemplated in subsection (1), who, for
distribution or exhibition in the Republic
creates, produces,
publishes or advertises any publication that—
(a) contains sexual conduct
which—
(i) violates or shows disrespect
for the right to human dignity of any person;
(ii) degrades a person; or
(iii) constitutes incitement to
cause harm;
(b) advocates propaganda for
war;
(c) incites violence; or
(d) advocates hatred based on
any identifiable group characteristic and that constitutes incitement
to cause harm,
shall submit, in the prescribed
manner, such publication for examination and classification to the
Board before such publication
is distributed, exhibited, offered or
advertised for distribution or exhibition.
. . .
24A Prohibitions, offences
and penalties on distribution and exhibition of films, games and
publications
. . .
(2) Any person who knowingly
broadcasts, distributes, exhibits in public, offers for sale or hire
or advertises for exhibition,
sale or hire any film, game or a
publication referred to in section 16(1) of this Act which has—
(a) except with respect to
broadcasters that are subject to regulation by the Independent
Communications Authority of South Africa
and a newspaper contemplated
in section 16(1), not been classified by the Board;
. . .
shall be guilty of an offence
and liable, upon conviction, to a fine or to imprisonment for a
period not exceeding five years or
to both a fine and such
imprisonment.”
7
The
relevant workings of the Act
What follows is a précis
of the interplay of the relevant provisions under the scheme:
(a) Section 16(1) permits any person to request that a publication be
classified. The request may be made either before or after

distribution.
(b) Section 16(2) requires a publisher to submit certain publications
for classification before public dissemination. Significantly,
the
breach of the obligation to submit for prior classification,
irrespective of the publication’s ultimate fate after having

been classified, will attract criminal penalties of a fine or up to
five years’ imprisonment or both.
8
(c) Once a publication has been submitted in terms of section 16(1)
or 16(2), it falls to be classified under section 16(4).
9
In terms of section 16(4), read together with the Guidelines for
classification,
10
a publication may be: (i) banned; (ii) distributed subject to
restrictions; or (iii) freely distributed.
(d) If a publication is classified as refused classification
11
(RC) or XX,
12
then it is banned.
13
If a publication is classified as X18,
14
then it may be distributed, but only through the business of
adult-only premises and with a license for that purpose.
15
Contravening any of these provisions is an offence and will attract
the penalty of a fine or imprisonment of up to five years or
both.
16
Publications that have been allocated an age restriction
17
must display that age restriction prominently to be distributable.
This requirement is also enforced through the imposition of
criminal
penalties for failure to comply.
18
(e) The Act does, however, cater for exceptional categories. If a
publication would ordinarily be subject to restricted distribution
as
X18-rated material,
19
but is a
bona fide
documentary, a publication of scientific,
literary or artistic merit or on a matter of public interest, then it
must be classified
in terms of the Guidelines.
20
The Guidelines also categorise publications that are merely
age-inappropriate,
21
and, importantly, the Guidelines contain a category of “No
classification necessary”, which permits the free distribution

of a publication.
22
(f) Lastly, there are provisions that make certain conduct involving
children offences, in addition to, and independently of, the
sections
that criminalise the same conduct through the classification scheme.
They pertain to child pornography
23
and the exposure of children to representations of explicit sexual
conduct.
24
For the purposes of the discussion to follow, it is of some moment
that these prohibitive rules are self-standing obligations that
run
parallel to the classification system and are not founded on the
latter.
The
classification scheme initiated by section 16(2) of the Act
25
is one of
administrative
prior classification. Under this
model of prior classification, control is exercised before
publication by an administrative
body under the control of the
executive branch of government.
26
In essence, the person seeking to publish is required to submit the
material to the administrative body, which decides whether
to grant
or deny permission to publish. If the administrative body concludes
that the material is prohibited, the prospective
publisher is
prevented from publishing it. This amounts to a form of prior
restraint, which is an inhibition on expression before
it is
disseminated.
27
Proceedings in the High Court
The
applicants’ constitutional complaints in the High Court were
threefold:
The Act creates a system of
prior classification in a manner that entails the submission of a
large number of publications for
classification prior to
distribution, in terms of criteria that are vague and overbroad, and
in circumstances where failing to
comply attracts severe criminal
sanctions. This unduly trammels upon the right to freedom of
expression.
There is no rational basis for
the exemption from prior classification of newspapers, but not
magazines, where there may be no
substantial difference between
their respective contents.
Patent
drafting errors in certain provisions produce absurd results.
On
the basis of these constitutional complaints, the High Court was
tasked with determining whether the rights to freedom of expression

and equality had been unjustifiably limited and whether the
principle of legality had been breached. The High Court held that

all three had been violated and that those were not infringements
that the Constitution countenanced.
The High Court declared sections
16(1), 16(2), 16(2)(a) and 24A(2)(a) constitutionally invalid.
28
The remedies ordered are, in effect, as follows:
In section 16(2)(a) the word
“contains” is replaced with “advocates or
promotes”;
In sections 16(1), 16(2) and
24A(2)(a), magazines are included in the exemption afforded to
bona
fide
newspapers, by inserting the words “or magazine”
after every reference to “newspaper”; and
Section
24A(2) has been reformulated to read in relevant part as follows:
“
Any
person who knowingly broadcasts, distributes, exhibits in public,
offers for sale or hire or advertises for exhibition, sale
or hire
any film, game or a publication, which has—
(a) except with respect to
broadcasters that are subject to regulation by the Independent
Communications Authority of South Africa
and a newspaper contemplated
in section 16(1), not been classified by the Board
provided that
this sub-section shall only apply to those publications referred to
in section 16(2) of this Act;
. . .
shall be guilty of an offence
and liable, upon conviction, to a fine or to imprisonment for a
period not exceeding five years or
to both a fine and such
imprisonment.” (Emphasis added.)
Applicants’ submissions
The
applicants’ primary concern arises from section 16(2)(a) of
the Act, which creates a requirement to submit certain publications

depicting certain kinds of sexual conduct, for administrative prior
classification. Their complaint goes to the breadth of section

16(2)(a), caused by the expansive definition of “sexual
conduct”
29
and the legislative choice not to use in its place the term
“explicit sexual conduct”, which is more narrowly
defined.
30
The applicants are also concerned with the wide definition of
“publication”
31
and the criterion that a publication need merely “contain”
the sexual conduct instead of advocate or promote it.
32
The
upshot of the overbroad and vague manner in which section 16(2)(a)
is cast, the applicants contend, is that numerous mainstream

publications fall to be submitted for classification before they may
become publicly available, even if they are manifestly in
the public
interest. This will impose severe financial and practical burdens on
publishers, especially since it is the entire
publication, and not
merely the impugned material, that must be submitted.
33
The
applicants emphasise that freedom of expression is of considerable
constitutional significance and lies at the heart of democracy.
It
is not the sole preserve of those who would express lofty, noble or
merely inoffensive sentiments, but should enable individuals
to
convey and receive views on a wide range of matters.
Coupled
with the fact that failure to submit for administrative prior
classification attracts harsh criminal sanctions, the vagueness
and
overbreadth of section 16(2)(a) and the indeterminate delay,
occasioned by the classification process, may lead to
self-censorship
and exert a “chilling effect” on the
right to freedom of expression. The limitation of the right, the
applicants
argue, cannot be justified in a democratic society based
on human dignity, equality and freedom.
The
appropriate remedial measure, the applicants propose, is to alter
the wording of section 16(2)(a), so that only material that

advocates or promotes the objectionable sexual conduct must be
submitted.
34
As an alternative, two interpretive options are suggested as
remedies to avoid an unconstitutional outcome.
35
The
applicants’ second concern pertains to the exclusion of
magazines from the exemption afforded to newspapers under sections

16(1), 16(2) and 24A(2)(a). They contend that there is no regulatory
difference that justifies the distinction, as numerous mainstream

magazines, like
bona fide
newspapers, are also subject to the
jurisdiction of the Press Council, and that there is little
difference between the substantive
content published in many
magazines and newspapers. Magazines are thus equally worthy of the
protection of freedom of the press.
In the result, the
differentiation is irrational and unconstitutional, in that it
violates sections 1(c) and 9(1) of the Constitution.
36
The
applicants’ final concern is in relation to a matter on which
all parties agree. They aver that section 24A(2)(a) of
the Act, as
it presently stands, has the effect of criminalising the
distribution of unclassified publications. Quite clearly,
the
legislation was designed so that section 24A(2)(a) would mirror
section 16(2), so that the distribution of a publication
that was
required to be submitted for prior classification, but was not,
amounts to an offence. That section 24A(2)(a) refers
to section
16(1) instead, appears to be a drafting oversight.
Respondents’ submissions
The
respondents accept that the requirement that publications depicting
sexual conduct must be submitted for administrative prior

classification is a limitation on the right to freedom of
expression, but argue that it is one that is justifiable within the

meaning of the limitations clause. In support, it was contended that
the three stated purposes of the Act, namely, to inform
consumer
choice, to prevent the exposure of children to age-inappropriate
material and to ban child pornography, were in themselves
sufficient
justification for the limitation. The term “contains”
was accordingly not overbroad, and replacing it
with “advocates
or promotes” would undermine the objects of the Act.
Furthermore, the provisions of section 16(2)(a)
could be construed
to apply only to visual images of sexual conduct, which restricts
the scope of its limitation on the right
to freedom of expression.
37
The
respondents submit that
bona fide
newspapers are exempt from
sections 16(1), 16(2) and 24A(2)(a), since they fall under the
jurisdiction of the Press Ombudsman
and are subject to the Press
Code, whose provisions are substantially similar to those envisaged
in section 16(2) and 16(4) of
the Act. Regulatory mechanisms to
receive and settle complaints are also in place. These measures
function as adequate safeguards
against newspapers publishing
objectionable material, which has been demonstrated to be the case
over time.
Bona
fide
magazines that comply with the Press Code, say the
respondents, occupy no special position compared to magazines that
do not.
Acceptance of the argument that only those magazines, which
do not comply with the Press Code, must be submitted for
classification
prior to distribution, would create an imbalance in
the application of the Act. Accordingly, the express provision of
the words
“or magazine” after each reference to “
bona
fide
newspaper” in these three sections is undesirable.
JASA’s submissions
Like
the respondents, JASA contends that section 16(2)(a) of the Act
limits the right to freedom of expression, but does so justifiably.

JASA argues that since the expression of objectionable sexual
conduct, contemplated in section 16(2)(a), cannot be said to lie
at
the heart of the right to freedom of expression and is not the kind
of information, the value of which depreciates quickly,
the
infringement is neither severe nor particularly intrusive. Any
initial uncertainty, it is averred, in relation to the submission

requirements will be ameliorated as a body of precedent develops
over time.
JASA
further submits that section 16(2), which generates the obligation
to submit for administrative prior classification, exists
in a
“symbiotic” relationship with section 16(4), which
provides for the classification of material, once submitted.

Interfering with section 16(2)(a), as the High Court did, tampers
with the statutory scheme and creates a fissure in it, so
undermining the objects of the Act. Because section 16(4) is not
challenged, and is thus presumptively valid, section 16(2) must
be
read together with it, to the effect that what is ultimately not
classifiable
a fortiori
need not be submitted.
Lastly,
we were urged by JASA to accept that a publisher may yet avoid
criminal liability through the exemption provisions, provided
for in
section 22 of the Act.
38
Moreover, a publisher may submit himself to administrative penalties
to avoid criminal liability in terms of section 30(4)(a)
of the
Act.
39
Should we, however, not be persuaded that the limitation on the
right to freedom of expression is justifiable, JASA suggests
various
remedial options.
40
The
applicants, in response to JASA’s submissions, proffer
attractive contra-positions. Firstly, administrative bodies do
not
operate on a system of precedent. Secondly, section 16(2) and 16(4)
deal with distinct concepts: submission and classification.
This is
clearly evinced by their plain language. Furthermore, suggesting
that a publisher must don the classifier’s hat,
as it were, by
reading the submission criteria subject to the classification
criteria, begs the question. Finally, the exemption
under section 22
and avoiding criminal liability under section 30(4) are no more than
illusory defences, being subject entirely
to the Board’s
discretion to grant or withdraw.
Second
amicus’ submissions
The
second amicus submits that section 16(2)(a) limits the right to
freedom of expression, and the limitation fails the proportionality

assessment in the limitation analysis, as the respondents have
provided no evidence to suggest that the section achieves its

purpose or that there are no less restrictive means available.
The
second amicus, like the applicants, submits that the broad scope of
the definition of “publication”, the legislative
choice
to employ the defined term “sexual conduct” and the
shortcomings of the requirement of mere containment cause

impermissible overbreadth and vagueness. It also argues that the
further criteria that the content of a publication must “degrade”

or “disrespect” contributes unwarranted uncertainty to
these deficiencies.
The
point is trenchantly made by the second amicus that no justification
has been tendered in particular for the Act’s administrative

prior classification system. In elaboration, it was submitted that
the operation of this system amounts to a form of thought-control,

has a “chilling effect” on the right to freedom of
expression and is inimical to the Constitution.
The
second amicus submits that under the Press Code, newspapers are
subject to a regulatory regime that employs a subsequent complaint

and investigation process, absent criminal sanctions. In respect of
the differentiation between newspapers and magazines, therefore,
the
second amicus contends that if that system is adequate for achieving
the Act’s objective as far as newspapers are concerned,
as the
respondents concede it is, then it ought also to be sufficient in
relation to other publications. Furthermore, a separate
regime for
newspapers, to achieve the same objectives through divergent
standards, exposes a fundamental irrationality in the
Act.
Lastly,
the second amicus argues that provisions in the Act requiring the
prior classification of expression on the internet and
distributed
networks are plainly unworkable. It contends that this would cause
serious prejudice to users of these media both
by violating their
right to freedom of expression and because of the financial burdens
that would be imposed on them by having
to comply with the
prescribed manner of submission.
41
Approach to the merits
Central
to this matter is the right to freedom of expression, to be
considered in the light of the government’s objective
to
regulate, through classification, publications that may constitute,
among other things, indecent material.
To
assist the discussion to follow, I find it convenient to state my
ultimate findings at this juncture. In my view, the High
Court’s
declarations of constitutional invalidity of section 16(1), 16(2)
and 16(2)(a) should be confirmed. The High Court’s
declaration
of constitutional invalidity of section 24A(2)(a) only, however,
should not be confirmed, but ought to be extended
and replaced with
an order declaring section 24A(2) constitutionally invalid.
These findings are based on
grounds that go beyond those considered by the High Court and those
relied on by the applicants and
respondents, as the compass of
issues before us has been expanded appreciably by the amici curiae.
For this reason, I propose
to deal with the merits under three
heads, namely the—
constitutionality of section
16(2)(a);
42
constitutionality of the
exclusive exemption of
bona fide
newspapers in sections
16(1), 16(2) and 24A(2)(a);
43
and
constitutionality
of section 24A(2).
44
(i) Constitutionality of section 16(2)(a)
The thrust of the applicants’
complaint relates to the means rather than the ends of
classification under the Act. Put differently,
their protest lies
against the administrative prior classification scheme created by
the Act, and not against the concept of
classification altogether.
They focus on the ambit of the criteria for submission for
administrative prior classification, and
it is stridently advanced
that their overbreadth and vagueness limit the right to freedom of
expression unjustifiably.
The implication of the
applicants’ principal argument is that clarification of the
criteria for submission for administrative
prior classification will
cure the constitutional invalidity caused by their overbreadth and
vagueness. Indeed, that is borne
out by the primary remedy sought.
45
In my view, it is necessary first to ask whether administrative
prior classification of material depicting sexual conduct is

constitutionally acceptable in the circumstances of this case.
Are the impugned provisions
consistent with the Constitution?
In
answering this question, regard must, of course, be had to our
current jurisprudence on prior restraint, with a view to achieving

an appropriate balancing of the scales in relation to this matter.
In the context of court interdicts, the Supreme Court of Appeal
has,
correctly in my view, endorsed the following statement of Lord
Scarman:
“
[T]he
prior restraint of publication, though occasionally necessary in
serious cases, is a drastic interference with freedom of
speech and
should only be ordered where there is a substantial risk of grave
injustice”.
46
The case
law recognises that an effective ban or restriction on a publication
by a court order even before it has ‘seen the
light of day’
is something to be approached with circumspection and should be
permitted in narrow circumstances only.
In
foreign jurisdictions, one observes similar stances in relation to
prior restraint. In the United Kingdom the rule against
prior
restraint was applied exclusively through the common law
47
and more recently through statute.
48
Deriving directly from the First Amendment, the rule is, perhaps,
more strongly applied in the United States and permits of fewer

exceptions.
49
The most recent pronouncement decrying prior restraint has come from
the European Court of Human Rights.
50
Canadian jurisprudence considers prior restraint to be an
infringement of the right to freedom of expression, but regards it

as a justifiable limitation in narrow instances.
51
In my
view, the respondents have failed to demonstrate that the Act’s
administrative prior classification system is constitutionally

defensible. Ultimately I hold that section 16(2)(a) unjustifiably
limits the right to freedom of expression in establishing an

administrative prior classification scheme, and, in the result, is
constitutionally invalid, as will be more fully developed
in the
discussion to follow.
Freedom of expression
I
have indicated that freedom of expression is the kernel of this
case.
52
It is necessary to enquire whether the expression of sexual conduct,
which the Act seeks to qualify in section 16(2)(a), is protected

under our Constitution. Section 16 of the Constitution deals with
the right to freedom of expression. It provides:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and
other media;
(b) freedom to receive or impart
information or ideas;
(c) freedom of artistic
creativity; and
(d) academic freedom and freedom
of scientific research.
(2) The right in subsection (1)
does not extend to—
(a) propaganda for war;
(b) incitement of imminent
violence; and
(c) advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.”
Section
16(2) provides an exclusionary list of the varieties of expression
not protected by the right. Section 16(1), on the other
hand, is
merely illustrative of the kinds of protected expression and is
non-exhaustive in character.
53
It necessarily follows that whatever expression does not fall under
section 16(2) must do so under the purview of section 16(1).
54
Put differently, any expression, which is not excluded from
protection under the Constitution, benefits from the preserve of
the
right.
The
question then is whether the expression of sexual conduct falls
under one of the exceptional categories, delineated in section
16(2)
of the Constitution. Textually, it does not. Furthermore, the
non-protected categories under section 16(2) of the Constitution

are, in fact, comprehensively reflected in section 16(2)(b), (c) and
(d) of the Act. Consequently, the expression contemplated
by section
16(2)(a) is protected by the right to freedom of expression.
55
Lastly, while there may in certain instances be overlaps between the
expression of sexual conduct and non-protected expression,
the very
presence of the latter, in what would otherwise be constitutionally
protected expression, would necessitate submission
in terms of
section 16(2)(b), (c) or (d) and not section 16(2)(a) of the Act.
It is
now possible to consider whether administrative prior
classification, initiated through section 16(2)(a) of the Act, is

constitutionally permissible.
The
Act creates a complex system requiring the submission of material
that is sought to be published for evaluation and classification.

Whether a publication is banned, restricted in its scope of
dissemination or permitted to be distributed freely, the Act
regulates
expression and does so in varying degrees. To the
extent that protected expression falls subject to the Act’s
prior classification
scheme, the right to freedom of expression
itself is regulated by the statute.
56
Because freedom of expression, unlike some other rights,
57
does not require regulation to give it effect, regulating the right
amounts to limiting it. The upper limit of regulation may
be set at
an absolute ban, which extinguishes the right totally. Regulation to
a lesser degree constitutes infringement to a
smaller extent, but
infringement nonetheless. In the result, the prior classification
requirement in section 16(1) and section
16(2)(a), read together,
undoubtedly places a limitation on the right.
As I
see it, the free flow of constitutionally protected expression is
the rule and administrative prior classification should
be the
exception. The right to freedom of expression, however, is not
inviolable and is subject to justifiable limitation to
the extent
that section 36 of the Constitution permits.
58
With this said, I now turn to consider whether the limitation is
constitutionally justifiable.
Limitation analysis
Nature of the right to freedom of expression
Embraced by the right is the liberty to express and to receive
information or ideas freely.
59
The right also encompasses the freedom to form one’s own
opinion about expression received,
60
and in this way both promotes and protects the moral agency of
individuals.
61
Whether expression lies at the right’s core or margins, be it
of renown or notoriety, however essential or inconsequential
it may
be to democracy, the right cognises an elemental truth that it is
human to communicate, and to that fact the law’s
support is
owed.
62
In
considering the comprehensive quality of the right, one also cannot
neglect the vital role of a healthy press in the functioning
of a
democratic society.
63
One might even consider the press to be a public sentinel,
64
and to the extent that laws encroach upon press freedom, so too do
they deal a comparable blow to the public’s right to
a
healthy, unimpeded media.
65
The importance of the purpose of the limitation
It is
settled in our law that it is insufficient to rely simply on the
stated purposes of a statute in order to identify and evaluate
the
purposes of a specific, impugned provision within it. The focus must
properly fall on the challenged law itself.
66
Here, the stated purposes of the Act are listed in section 2,
67
namely: (i) to provide consumer advice; (ii) to protect children
from exposure to harmful or age-inappropriate material; and
(iii) to
ban child pornography. The means by which this is achieved is to
disallow, as far as possible, the dissemination without
prior
classification of material that may ultimately be banned or, if not
banned, that may be published subject to constraints.
Indeed,
aiming to curb generally the publication of proscribed materials and
to control the manner in which some publications
are made available
are legitimate objects. As far as the stated purposes are concerned,
little can be said to controvert the
importance of the ban on child
pornography and the protection of children from exposure to
inappropriate materials.
68
Section 28(2) of the Constitution enjoins the state to protect
children, whose rights deserve special and paramount consideration

in all matters affecting them.
69
Though perhaps of somewhat lesser significance, providing an adult
with more complete information on a publication’s content
can
be seen to enhance his ability to make more informed choices about
what he himself consumes or to what he might expose others,

including children, through his own consumption.
The
ostensible purpose of section 16(2)(a) appears to me to align itself
with the adage, ‘prevention is better than cure’.
It is
surely an important purpose, but it is of vital import to determine
whether the conventional approach of prevention through
deterrence
under threat of punishment, on the one hand, as opposed to
prevention through the upfront restriction of free action,
on the
other, strikes the appropriate balance.
Nature
and extent of the limitation
In
this case, administrative prior classification entails a transfer of
control from the right-bearer, seeking to exercise the
right to
freedom of expression, to an administrative body. In other words, an
administrative body has been made the appointed
decision-maker,
insofar as determining whether expression ought to be made public,
and
not
the publisher, in whom the right properly inheres. By
investing an administrative body with the exclusive power to grant
permission
to publish certain material, as well as the power to
punish for denying it the opportunity to do so,
70
what is engendered is a scheme in which expression must be justified
before, and as a necessary condition for, its release into
the
public realm. There is a shift in the locus of control to an
administrative body from the right-bearer, whose liberty to
exercise
freely his right to freedom of expression is curtailed.
According
to academic commentators,
71
under a system of administrative prior restraint, the opportunity
for public scrutiny and comment on a fresh publication is denied.
An
administrative body is more likely to restrict publications when it
can classify upfront than when it must take punitive or
restrictive
action after publication. The greater propensity for prior restraint
when controlled by an administrative body is
explained by the nature
of prior classification itself, where, by restraining upfront, the
state is relieved of the greater burden
on resources, personnel and
time necessitated by policing and possibly prosecuting after
material has been made public. Last
but not least, an administrative
body is mandated and incentivised to classify, which also increases
the likelihood of restraint.
Deepening
the fracture in the right is the fact that throughout the
classification process the fate of the publication remains

uncertain.
72
In some instances, the very delay in bringing important information
to the public’s attention makes inroads into the right
to
freedom of the press and other media.
73
The contents of the publication may even be redundant by then, yet
there would be no remedial action open to the publisher. Equally,
if
a publisher were not to submit material that, on the face of it,
fell to be submitted, but would ultimately have emerged
unrestrained, he could still be prosecuted for breaching the very
duty to submit.
The
likeness between the theoretical descriptions of administrative
prior classification models and the Act’s administrative
prior
classification system is apparent. The Board and the appellate body
under the Act are indeed administrative bodies and
under ministerial
control.
74
Quite remarkably, no timeframe is stipulated on the classification
process. Moreover, an onus is placed on a publisher to justify
the
expression sought to be made.
The
relation between the limitation and the purpose and less restrictive
means
Much
store was placed by the respondents and JASA in the purposes of the
Act as justifying the means employed to realise them.
On
analysis of the statutory scheme, there is little doubt that section
16(2)(a) is not the exclusive means through which the
Act’s
purposes and its own purposes may be achieved. In fact, prohibiting
the publication and creation of child pornography
and the exposure
of children to pornography are already governed by two other
sections in the Act, which are altogether independent
of the
classification system.
75
Consequently, section 16(2)(a) is not necessary to achieve the Act’s
purposes insofar as they pertain to children.
Section 16(2)(a)
of the Act also creates the immediate and long-term effects of
delaying the flow of expression, which in
some instances may
drastically impede the ability of the right-bearer from receiving
information or ideas. The result is a reduction
in, rather than an
enhancement of, choice.
Encumbering
choice creates the danger that the autonomy of the individual to
formulate and inform opinion on received expression,
which might not
otherwise have been restricted but for the administrative prior
classification system, is eroded. In other words,
hampering the
individual’s ability to choose freely those publications, to
which exposure is not unlawful, whittles away
at his capacity as a
free moral agent. This is all the more indefensible when one has
regard to the availability of less restrictive
means, to which I now
turn.
One
less restrictive alternative in our law to administrative prior
restraint is a court interdict. To secure an interdict on
a
publication, our courts generally have called on applicants to meet
a high standard of proof in regard to its requirements.
76
A court seized with an application for an interdict is required to
balance carefully various factors and rights, relating to
both the
right-bearer and the party seeking the restraint. A central
consideration is the impact on the right to freedom of expression.
77
In each case, the particular circumstances are determinative of the
appropriateness of, and the need for, the restraint.
A
prominent, distinguishing characteristic of a court interdict from
its administrative counterpart is the allocation of the burden
of
proof on the party seeking to restrain the expression, rather than
on the party seeking to vindicate the right. The right-bearer
can
exercise his right to freedom of expression, without constraint to
the extent that the law permits, until a court makes a
determination
to the contrary. This is in diametric opposition to the arrangement
under the Act’s administrative prior
restraint model, as I
have already mentioned, where the burden of justifying the
expression rests with the right-bearer.
Notably,
an enquiry into the merits of any prior restraint necessitates an
adjudication of legal rights, a task that properly
falls within the
province of a court and not an administrative body. The provisions
of section 16(2)(a) notwithstanding, a court
interdict as an
alternative remains open to any litigant, who can meet its
requirements. In my view, it is an appropriate less
restrictive
means of enforcing a ban on child pornography and protecting
children from exposure to harmful or age-inappropriate
materials,
78
as well as preventing contravention of the law though an
anticipatory mechanism.
As an
interdict will be effective only where there is some prior knowledge
of the material sought to be published, it is narrower
in its range
of application than its administrative equivalent. Be that as it
may, however, an exclusive preference for court
interdicts still
facilitates anticipatory prevention of breach of the law and
preserves the state’s existing law enforcement
duties to
detect, investigate and prevent or prosecute the publication of
unlawful material, as is the case with most other offences.
Administrative
prior restraint is also not the only way in which the state can
promote lawful conduct on the part of publishers.
Quite apart from
court interdicts, permitting publishers to approach the
classification authorities for an opinion on material
sought to be
published prior to distribution not only provides a means of
obtaining legal certainty, but also restores to publishers
the
discretion to make informed choices about whether or not to publish.
For that reason, it places them in a better position
to regulate
their conduct in accordance with the law. As the Act presently
stands, it remains open to any publisher, who is uncertain
about
whether a publication that he wishes to distribute falls to be
classified, to submit of his own accord that publication
for
classification in terms of section 16(1).
79
In my
view, the mainstay of the law is to encourage lawful conduct rather
than to seek to guarantee lawfulness by restricting
conduct
altogether. As Blackstone suggested,
80
should a publisher choose not to pursue the avenues available to
gain certainty about the lawfulness of intended publication,
then he
must bear the risks, attendant upon the decision to publish. Such is
the cost of free expression.
Conclusion and remedy
In my
view, the central constitutional deficiency lies in the
administrative and compulsory nature of the Act’s prior

classification scheme, in circumstances where there are less
restrictive alternatives for achieving important legislative
purposes.
I agree with the concurring judgment of Van der Westhuizen
J, to the extent that it also posits that attempting to remedy the
submission criteria in this case would not save the section from
constitutional invalidity. However, this to me renders the question

of the criteria’s constitutionality for being vague and
overbroad peripheral to the main issue in this instance and
unnecessary
to decide, as it would not go to the heart of the
matter.
As
the applicants correctly pointed out, the lamentable reality is that
sexual offences, besetting our communities, are perpetrated
with
alarming frequency and cruelty. The need for redress is immediate
and crucial. It is, however, difficult to conceive of
how section
16(2)(a) might contribute to solving this problem.
I
would accordingly confirm the High Court’s order of
constitutional invalidity of section 16(2)(a) on the basis that it

unjustifiably limits the right to freedom of expression.
However,
I would not confirm the High Court’s accompanying order.
81
Replacing “contains” with “advocates or promotes”
in section 16(2)(a) does not address the fundamental

unconstitutionality of the administrative prior classification
system itself. A complete excision is the only appropriate cure.
The
test to determine the suitability of severance was articulated in
Coetzee v Government of the Republic of South Africa; Matiso and
Others v Commanding Officer, Port Elizabeth Prison, and Others
:
82
“
Although
severability in the context of constitutional law may often require
special treatment, in the present case the trite test
can properly be
applied: if the good is not dependent on the bad and can be separated
from it, one gives effect to the good that
remains after the
separation if it still gives effect to the main objective of the
statute. The test has two parts: first, is it
possible to sever the
invalid provisions and, second, if so, is what remains giving effect
to the purpose of the legislative scheme?”
83
(Footnote
omitted.)
Even
without section 16(2)(a), all three of the Act’s stated
purposes are capable of satisfaction. The dissemination of
child
pornography and the exposure of children to pornography remain
offences under sections 24B and 24A(4)(b). Applying age-restrictions

to publications remains possible under the Guidelines. Lastly, any
publisher may request that his own publication be classified
before
distribution.
At
this juncture, I must pause to differ with the opinion of Van der
Westhuizen J. According to my above findings and following
the
proposed striking out of section 16(2)(a), it is not the case that a
court would be faced with having to apply vague or overbroad

criteria in that section. It is, after all, only that provision,
which is challenged in this case for bearing those defects.
(ii) Constitutionality of the exclusive exemption of
bona fide
newspapers
Sections
16(1), 16(2)(b), (c) and (d) and 24A(2)(a) effectively exempt
bona
fide
newspapers, which adhere to a code of conduct enforceable
by the Press Ombudsman. The applicants and respondents are at one in

submitting that Parliament considers this safeguard to be sufficient
for the regulation of
bona fide
newspapers.
The
Act, however, excludes from this exemption magazines, which also
adhere to a code of conduct enforceable by the Press Ombudsman.
No
evidence was submitted that there is any material, substantive
difference between newspapers and magazines. In my view, the

averments that magazines have a longer shelf-life, are less formal,
more often contain offensive material than newspapers do
and are not
subject to short deadlines do not afford a substantive basis for
differentiation.
Not
only is the differentiation unequal, but it is also irrational. It
breaches, without justification, the principle of legality
84
and the right to equality before the law.
85
Consequently, the High Court’s declaration of constitutional
invalidity must be confirmed.
To
remedy the defect, I would also confirm the High Court’s order
of reading-in, which incorporates
bona fide
magazines into
the exclusion, afforded to
bona fide
newspapers.
86
(iii) Constitutionality of section 24A(2)
Section
16(1) permits any person to request that a publication, which is to
be distributed or is already being distributed, be
submitted for
classification. Section 16(2) provides for compulsory submission of
publications which meet any of the criteria
contained in paragraphs
(b), (c) and (d), before being made publicly available.
As
the Act stands, section 24A(2)(a) criminalises the distribution of
publications referred to in section 16(1) of the Act, which
have not
yet been classified by the Board.
The
applicants argue that the section criminalises the publication of
all non-classified material, save for
bona fide
newspapers.
On this reading, reference to section 16(1) means that criminal
sanctions will apply even to material that is not
required to be
submitted for classification before publication, where no request to
this effect has been made in terms of that
section. The applicants
argue that this interpretation is plainly irrational, impermissibly
vague and violates the right of freedom
of expression. With them I
agree.
The
only sensible reading is that section 24A(2)(a) is designed to
penalise failure to submit a publication for prior classification
in
terms of section 16(2). I conclude that the reference to section
16(1) in section 24A(2)(a) of the Act is a drafting error,
as
expressly conceded by the respondents in oral argument in the High
Court.
In
its remedy, however, the High Court also severed words from section
24A(2) without declaring that section unconstitutional
and invalid,
to the extent of its erroneous reference to section 16(1). It is
axiomatic that constitutional remedies may not
be applied to
constitutionally valid laws or conduct. The High Court, therefore,
erred in declaring only section 24A(2)(a) unconstitutional.

Accordingly, I would declare section 24A(2) of the Act
unconstitutional and invalid for the above reasons. I would,
thereafter,
confirm the High Court’s remedies of reading-in to
section 24(2)(a) and severance from section 24A(2).
87
After
the severance and reading-in have been effected, the provisions at
issue will provide in relevant part as follows:
“
16(1)
Any person may request, in the prescribed manner, that a publication,
other than a
bona
fide
newspaper
or magazine that is published by a member of a body, recognized by
the Press Ombudsman, which subscribes, and adheres,
to a code of
conduct that must be enforced by that body, which is to be or is
being distributed in the Republic, be classified
in terms of this
section.
(2) Any person, except the
publisher of a newspaper or magazine contemplated in subsection (1),
who, for distribution or exhibition
in the Republic creates,
produces, publishes or advertises any publication that—
. . .
(b) advocates propaganda for
war;
(c) incites violence; or
(d) advocates hatred based on
any identifiable group characteristic and that constitutes incitement
to cause harm,
shall submit, in the prescribed
manner, such publication for examination and classification to the
Board before such publication
is distributed, exhibited, offered or
advertised for distribution or exhibition.”
“
24A(2)
Any person who knowingly broadcasts, distributes, exhibits in public,
offers for sale or hire or advertises for exhibition,
sale or hire
any film, game or a publication, which has—
(a) except with respect to
broadcasters that are subject to regulation by the Independent
Communications Authority of South Africa
and a newspaper or magazine
contemplated in section 16(1), not been classified by the Board
provided that this sub-section shall
only apply to those publications
referred to in section 16(2) of this Act;
. . .
shall be guilty of an offence
and liable, upon conviction, to a fine or to imprisonment for a
period not exceeding five years or
to both a fine and such
imprisonment.”
Costs
The
applicants have asked for costs, including the costs of two counsel.
As successful litigants in this Court, I am satisfied
that their
prayer for costs should be granted.
88
Order
In
the circumstances, the following order is made:
The
respondents’ application for condonation is granted.
The
second amicus’ application for condonation is granted.
Section 16(2)(a)
of the
Films and Publications Act 65 of 1996
is
declared constitutionally invalid and is severed.
Sections 16(1)
,
16
(2) and
24A
(2)(a) of the
Films and Publications
Act 65 of 1996
are declared constitutionally invalid to the extent
that they do not apply to magazines.
The
words “or magazine” are read in after the word
“newspaper” in
sections 16(1)
,
16
(2) and
24A
(2)(a).
Section
24A(2)
is declared constitutionally invalid to the extent that it
is made applicable to
section 16(1)
of the Act.
Section
24A(2)
of the
Films and Publications Act 65 of 1996
is to be read
as though—
the
words “referred to in
section 16(1)
of this Act” are
severed; and
the
words “provided that this sub-section shall only apply to
those publications referred to in
section 16(2)
of this Act”
are read into
section 24A(2)(a)
between the word “Board”
and the semi-colon.
The
first and second respondents must jointly and severally pay the
costs of the first and second applicants, including the
costs of
two counsel.
VAN DER
WESTHUIZEN J (Yacoob ADCJ and Froneman J concurring):
I
have read the eloquently drafted judgment of my colleague, Skweyiya
J (main judgment), and agree that the impugned provisions
of the
Films and Publications Act
89
(Act
) are constitutionally invalid. However, I
am unable to go along fully with the reasoning around
section
16(2)
, which should be taken further, in my respectful view.
I
do not think that the central constitutional deficiency lies in the
administrative nature of the Act’s prior classification

scheme,
so much so that it is
unnecessary to consider the possible vagueness and overbreadth of
the criteria in
section 16(2)(a).
90
anc" HREF="#sdfootnote90sym">
90
The alleged vagueness of the criteria is not
peripheral to the main issue. It was argued by the applicants and
dealt with in
the High Court’s judgment. The
constitutionality of prior restraint in this case cannot be
properly considered without
reference to the vagueness of the
criteria, which are part and parcel of the scheme of the Act.
Remedying the final details
of the criteria may indeed not save the
administrative prior restraint’s constitutionality; but the
converse is not necessarily
true, namely that vague and overly
broad criteria would pass constitutional muster under a censorship
system of prior restraint
which is not administrative, but rather
judicial in nature. Judicial prior restraint based on unacceptably
vague criteria would
not be an acceptable less restrictive measure
to achieve the purpose of the legislation. The constitutional
difficulty lies
in the prior restraint scheme (whether
administrative or judicial) linked to the vague and overbroad
nature of the criteria
in the Act. In this regard, it appears to me
that there is a gap, or a link missing, in the reasoning of the
main judgment.
The
important right to freedom of expression lies at the heart of
democracy. The search for the truth, the ability to take democratic

decisions and self-fulfillment have been put forward as reasons why
freedom of expression must be protected.
91
It is closely linked to the right to human dignity and helps to
realise several other rights and freedoms.
92
Being able to speak out, to educate, to sing and to protest, be it
through waving posters or dancing, is an important tool
to
challenge discrimination, poverty and oppression. This Court has
emphasised the importance of freedom of expression as the
lifeblood
of an open and democratic society.
93
Our
history illustrates the crucial importance of free expression for
democracy, even when its regulation and limitation deal
with sexual
conduct and related matters. Censorship was central in the legal
system of the apartheid era. Not only were political
activity,
books, articles and even songs banned, but the apartheid state also
imposed the narrow Calvinist and cultural notions
of morality and
good taste of the ruling minority on all. For example, the 1974
Publications Act
94
put in place an elaborate system of committees
and a “Publications Appeal Board” to classify, prohibit
and restrict.
Books, magazines, articles and plays were banned or
subjected to age and other restrictions. Globally celebrated films
were
banned, restricted to small venues, or subjected to the severe
excising of language, nudity, sexual conduct and scenes depicting

relations across the racial divide of that time.
95
Apart from providing for censorship of material
deemed to be “prejudicial to the safety of the State”,
vague criteria
like “indecent”, “obscene”,
“offensive” and “harmful to public morals”
were
central to that Act.
96
The
censorship system was a powerful tool
to sustain political, cultural and religious dominance. And courts
played along, for example,
with the banning of books by well known
authors on the basis that the description of sexual conduct in them
was “indecent,
obscene and objectionable.”
97
However,
free expression continued to play an important role in the struggle
for political and moral liberation. Even in apartheid
South Africa
it was realised – also sometimes by courts – that
freedom of expression was “a hard-won and
precious asset, yet
easily lost”.
98
In
democratic South Africa, section 16 of the Constitution recognises
the right to freedom of expression. It includes freedom
of the
press and other media, freedom to receive or impart information or
ideas, freedom of artistic creativity and academic
freedom and
freedom of scientific research.
However,
especially within the context of transformative constitutionalism,
99
our diverse society realises that free
expression is not an absolute right. The opportunity to make
choices is indeed central
to the human dignity of individuals. But
these choices are not the same as choosing products in a supposedly
free market, as
has often been argued. Power relations play a role.
Language and visual images can be used not only to communicate, but
can
also injure, intimidate and severely harm vulnerable groups and
individuals.
Freedom of expression thus has to be balanced
against other rights and values, like human dignity,
100
equality,
101
privacy
102
and certainly the best interests of children.
103
In section 16 of the Constitution
104
propaganda for war, incitement of imminent violence and advocacy of
hatred based on race, ethnicity, gender or religion that

constitutes incitement to cause harm, are all excluded from
constitutional protection.
105
In
order to balance freedom of expression against, for example, human
dignity, equality of women and children’s rights,
it may have
to be limited. This is what the Act, including section 16(2)(a), in
this case does. The question is whether the
limitation passes
constitutional muster. Is it reasonable and justifiable in an open
and democratic society based on human
dignity, equality and
freedom, taking into account all relevant factors, including those
specifically mentioned in section
36 of the Constitution?
106
The
two problematic aspects of section 16(2) of the Act are the system
of prior restraint embodied in it and the vagueness and
overbreadth
of the criteria in subsection (a). I deal first with prior
restraint.
As
indicated in the main judgment,
107
section 16(2) requires a publisher to submit
certain publications for classification before dissemination. Once
a publication
has been submitted, it must be classified under
section 16(4) and it may be banned, distributed subject to
restrictions, or
freely distributed. Conditions may include age
restrictions and distribution only through the business of
adult-only premises
with a license.
The
severity of the limitation lies in the fact that the publication
has to be submitted for classification before it is made
available
publicly, and before anyone has viewed or read it, or complained,
or raised concerns about it. One possible outcome
of the submission
prior to publication is that it may be banned and thus never see
the light of day. And its very publisher
must submit it. In order
to decide whether or not to submit, the publisher must apply the
criteria in section 16(2).
108
If the publisher is of the opinion that the material does not fall
within those criteria and a criminal court later on decides
that it
does, the publisher may be convicted of a criminal offence and
sentenced to up to five years’ imprisonment.
I
am in full agreement with the main judgment’s stance on the
endorsement by the Supreme Court of Appeal of Lord Scarman’s

statement that prior restraint of a publication, though
occasionally necessary in serious cases,
is a drastic
interference with freedom of speech and should only be ordered
where there is substantial risk of grave injustice.
109
And I go along with much of the reasoning in the main judgment
pointing out the perils of prior restraint.
In
my view the vagueness and overbreadth of the submission criteria
are integral to the requirement to submit the publication
before it
is made publicly available to the criminal sanction that may follow
a failure to submit, under the scheme of the
Act. As pointed out
above, it may indeed be the publisher’s inability to
interpret the criteria in the same way as the
criminal court in
which he or she may later be charged, that results in a conviction
and imprisonment. I thus turn to the alleged
vagueness of the
criteria.
The
definition of “publication” in the Act is wide.
110
It includes newspapers, books, periodicals,
pamphlets, posters, drawings, pictures, illustrations, paintings,
prints, photographs,
engravings, lithographs, magnetic tapes and
soundtracks. The first question a publisher of any of these must
answer in deciding
whether or not to submit is whether it “contains
sexual conduct”. “Sexual conduct” is defined in
the
Act
111
and includes
bestiality and sexual
intercourse, “whether real or simulated”. But
“contains” is not defined. It clearly
means more than a
portrayal or depiction of the conduct and could for example include
a description or discussion of or
reference to
sexual intercourse or bestiality. Books, articles and reports on
topics like rape, teenage pregnancy, sexual counseling
and sex
education would probably “contain sexual conduct”, even
if these explain, discourage or warn against the
particular
conduct.
The
next question would be whether the description, discussion, or
reference in the publication “violates or shows disrespect

for the right to human dignity of any person”, or “degrades
a person”, or “constitutes incitement to
cause harm”.
112
The right to human dignity is of course
recognised in the Constitution, but the “disrespect”
criterion seems to
be a much lower standard than the concept of the
violation
or
infringement
of
rights generally used. It may be open to varied meanings. The
notion of the ‘degradation of a person’ is also
not
defined and is by no means easily understandable.
113
It is unclear whether the provision is aimed at
the degradation of human beings in an objective sense, or could
include a specific
person who may, objectively or in terms of
subjective feelings, be degraded. A newspaper report on a
bestiality case in a criminal
court that identifies the accused may
“contain sexual conduct” which “degrades a
person”. Furthermore,
the kind of “harm” intended
is not defined with any accuracy, nor is it clear whether harm to a
specific person,
a category of people, society, the country, or
humankind is intended.
It
is not possible, wise, or necessary to delve too deeply into the
possible meanings of the terminology used. Some of the criteria

appear remarkably similar to those in the apartheid era statutes
referred to above.
114
The question is whether they are vague and
overbroad, not in the abstract, but within the context in which
it
is used, namely the prior restraint of publications. The answer is
clearly yes. The prior restraint impacts on the relevance
and
seriousness of the vagueness and overbreadth of the criteria.
The
same applies the other way around. As stated by Lord Scarman and
quoted by the Supreme Court of Appeal, prior restraint
is a drastic
interference with free speech, but it is not in itself always
inimical to the recognition of free expression.
It may
“occasionally [be] necessary in serious cases . . . where
there is a substantial risk of grave injustice.”
115
Whether it is necessary, or otherwise acceptable, depends on the
context. The fact that the Act links the prior restraint to
vague
and overbroad criteria shows that it is constitutionally
unwarranted in this case. But it also serves to illustrate the

dangers of prior restraint to freedom of expression generally, in
any situation where it is not implemented only to prevent
grave
injustice and within tightly formulated parameters.
Can
the vagueness and overbreadth of the criteria in section 16(2)(a)
be remedied, for example, by reading-in a more accurate

formulation? The answer is that it cannot; substantial redrafting
is required. The High Court’s order to replace the
words
“contains” with “advocates or promotes”
clearly does not do the trick, because it would completely
change
the meaning and apparent objectives of the provision. This, again,
impacts on the constitutionally suspect nature of
prior restraint.
It is up to the legislature to rethink the classification scheme.
Would
censorship based on vague and overly broad criteria be any more
constitutionally acceptable if it does not appear in the
context of
prior
restraint, or specifically
administrative
prior
restraint? I do not think so.
The
main judgment relies on the advantages of judicial prior restraint
as a less restrictive alternative for administrative
prior
restraint.
116
I fully understand and agree with an argument that the ordinary
legal position regarding interdicts, as practised in our courts
on
a daily basis, would often suffice for the prevention of harm and
would thus render an administrative censorship system
providing for
prior restraint unnecessary. Courts have over time developed
requirements and guidelines for interim and final
interdicts sought
on the basis of urgency or otherwise. But does this mean that
judicial, instead of administrative, prior
restraint would be an
acceptable less restrictive measure than the scheme in the Act,
even if the applicable criteria are as
vague and broad as those in
section 16(2)(a)? I am unable to accept that it would.
Lord
Scarman’s above-quoted observation stresses the drastic
interference that prior restraint constitutes for free speech.
He
made the statement in the context of court interdicts, not
administrative restraint.
117
The main problem with prior restraint is that it is “prior”.
It can amount to the banning of a publication before
it is seen,
heard, or judged by its audience; it is killed before it is born.
Even though courts can be presumed to be as fair
as humanly
possible, prior restraint remains to be limited to serious cases
where there is a substantial risk of grave injustice.
This we see,
for example, when interdicts are sought to keep newspapers off the
street, even before publication.
In
my view, a judicial officer would not necessarily be significantly
better qualified than an administrative body to interpret
criteria
as vague as those before us in this case. Why would a Judge be more
able to determine whether a publication “contains
sexual
conduct” that “degrades a person”, or
“disrespects” dignity, than an administrative body?
If
we find that the criteria in section 16(2)(a) are indeed clear, or
capable of being given a constitutionally compliant meaning,
then
they are not vague, and the problem in this case will indeed be the
prior restraint alone. But we do not. And the provision
would not
be constitutionally acceptable if the administrative prior
restraint model is replaced by the legislature with judicial
prior
restraint, but the criteria remain as vague and wide open as they
are.
Therefore,
in conclusion, section 16(2)(a) of the Act is constitutionally
invalid, because it provides for prior restraint of
publications
based on vague and overly broad criteria.
I
generally agree with the main judgment’s findings on section
24(A)(2) and the distinction between magazines and
bona fide
newspapers. I also agree with the remedy and the order. Paragraph 3
of the order indeed specifically targets the vague criteria
in
section 16(2)(a), which I find to be constitutionally invalid.
For
the First and Second Applicants: Advocate G Marcus SC and Advocate
S Budlender instructed by Cliffe Dekker Hofmeyr Inc.
For the
First and Second Respondents: Advocate IAM Semenya SC and Advocate N
Manaka instructed by the State Attorney.
For the
First Amicus Curiae: Advocate DJ Cooke instructed by A Batchelor &
Associates.
For the
Second Amicus Curiae: Advocate S Stein and Advocate K
Serafino-Dooley instructed by Webber Wentzel
1
Constitutional
Court Rule 16(4) provides:
“
A person or organ of state
entitled to do so and desirous of applying for the confirmation of
an order in terms of section 172(2)(d)
of the Constitution shall,
within 15 days of the making of such order, lodge an application for
such confirmation with the Registrar
and a copy thereof with the
Registrar
of the court
which made the order, whereupon the matter shall be disposed of in
accordance with directions given by the Chief
Justice.”
Section
172(2)(d) of the Constitution
provides
:
“
Any person or organ of state
with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm
or vary an order of constitutional
invalidity by a court in terms of this subsection.”
2
65
of 1996.
3
3
of 2009.
4
Established
under section 3 of the Act.
5
Constitutional
Court Rule 16(2) provides:
“
A person or organ of state
entitled to do so and desirous of appealing against such an order in
terms of section 172(2)(d) of
the Constitution shall, within 15 days
of the making of such order, lodge a notice of appeal with the
Registrar and a copy thereof
with the Registrar of the court which
made the order, whereupon the matter shall be disposed of in
accordance with directions
given by the Chief Justice.”
Section
172(2)(d) is quoted
in
above n 1.
6
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at
paras 18-9;
Bertie van Zyl (Pty) Ltd and Another v Minister of
Safety and Security and Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 14;
Veldman v Director of
Public Prosecutions, Witwatersrand Local Division
[2005] ZACC
22
;
2007 (3) SA 210
(CC);
2007 (8) BCLR 827
(CC) at paras 6-8;
S
v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) at para 39; and
S v Mercer
[2003] ZACC 22
;
2004 (2) SA
598
(CC);
2004 (2) BCLR 109
(CC) at para 4.
7
Section
1 of the Act provides in relevant part:
“‘
publication’
means—
(a) any newspaper, book, periodical, pamphlet, poster
or other printed matter;
(b) any writing or typescript which has in any manner
been duplicated;
(c) any drawing, picture, illustration or painting;
(d) any print, photograph, engraving or lithograph;
(e) any record, magnetic tape, soundtrack or any other
object in or on which sound has been recorded for reproduction;
(f) computer software which is not a film;
(g) the cover or packaging of a film;
(h) any figure, carving, statue or model; and
(i) any message or communication, including a visual
presentation, placed on any distributed network including, but not
confined
to, the Internet;
. . .
‘
sexual conduct’
includes—
male genitals in a state of arousal or stimulation;
the undue display of genitals or of the anal region;
masturbation;
bestiality;
sexual intercourse, whether real or simulated,
including anal sexual intercourse;
sexual contact involving the direct or indirect
fondling or touching of the intimate parts of a body, including the
breasts,
with or without any object;
the penetration of a vagina or anus with any object;
oral genital contact; or
oral anal contact”.
8
Section
24A(2)(a) of the Act. See also [83]-[88] below in relation to the
objective of section 24A(2)(a) being to criminalise
the failure to
submit a publication for prior classification in terms of section
16(2) of the Act.
9
Section
16(4) of the Act provides:
“
The classification committee
shall, in the prescribed manner, examine a publication referred to
it and shall—
classify that publication as a ‘refused
classification’ if the publication contains—
child pornography, propaganda for war or incitement of
imminent violence; or
the advocacy of hatred based on any identifiable group
characteristic and that constitutes incitement to cause harm,
unless,
judged within context, the publication is, except with
respect to child pornography, a
bona fide
documentary or is
a publication of scientific, literary or artistic merit or is on a
matter of public interest;
classify the publication as ‘XX’ if it
contains—
explicit sexual conduct which violates or shows
disrespect for the right to human dignity of any person;
bestiality, incest, rape or conduct or an act which is
degrading of human beings;
conduct or an act which constitutes incitement of,
encourages or promotes harmful behaviour;
(iv) explicit infliction of sexual or domestic
violence; or
explicit visual presentations of extreme violence,
unless, judged within context, the publication is,
except with respect to child pornography, a
bona fide
documentary or is a publication of scientific, literary or artistic
merit or is on a matter of public interest, in which event
the
publication shall be classified ‘X18’ or classified with
reference to the guidelines relating to the protection
of children
from exposure to disturbing, harmful or age-inappropriate materials;
classify the publication as X18 if it contains
explicit sexual conduct, unless, judged within context, the
publication is, except
with respect to child pornography, a
bona
fide
documentary or is a publication of scientific, literary or
artistic merit or is on a matter of public interest, in which event

the publication shall be classified with reference to the
guidelines relating to the protection of children from exposure to

disturbing, harmful and age-inappropriate materials; or
if the publication contains material which may be
disturbing or harmful to or age-inappropriate for children, classify
that publication,
with reference to the relevant guidelines, by the
imposition of appropriate age-restrictions and such other conditions
as may
be necessary to protect children in the relevant age
categories from exposure to such materials.”
10
Guidelines
to be Used in the Classification of Films, Interactive Computer
Games and Certain Publications, GN 887, in
GG
32542, 1 September 2009 (Guidelines).
11
Section
16(4)(a) of the Act.
12
Section
16(4)(b) of the Act.
13
Section
24A(2)(b) and (c) of the Act.
14
Section
16(4)(b) and (c) of the Act.
15
Section
24 of the Act.
16
Section
24A(2) and (3) of the Act.
17
Section
16(4)(d) of the Act.
18
Section
24A(5) of the Act. Distributing trailers or adverts of games or
films with a higher age restriction on certain publications
with a
lower age restriction without the written consent of the Board is
also an offence, in terms of section 24A(7) of the Act.
19
See
a
bove n 14.
20
Section
16(4)(c) of the Act. The types of sexual conduct, sought to be
regulated, would fall under the XX or X18 categories or
would be
classifiable under the Guidelines, with the exception of child
pornography, which is strictly classifiable as RC.
For
the sake of completeness, section 16(4)(a)(ii) of the Act exempts a
publication from classification if it contains advocacy
of hatred,
based on any identifiable group characteristic and which constitutes
incitement to cause harm, if it is also a
bona fide
documentary or is a publication of scientific, literary or artistic
merit or on a matter of public interest. This exemption does
not
apply to child pornography.
21
Section
16(4)(d) of the Act.
22
Regulation
4.5 of the Guidelines.
23
Section
24B of the Act, quoted in full below n 75.
24
Section
24A(4)(b) of the Act, quoted in full below n 75. Section 1 of the
Act defines “explicit sexual conduct” as—
“
graphic and detailed visual
presentations or descriptions of any conduct contemplated in the
definition of ‘sexual conduct’
in this Act”.
See
above n 7 for the definition of “sexual conduct”.
25
We
are concerned only with section 16(2)(a).
26
See
[15] above regarding the arrangement under the Act.
27
Compare
Barendt
Freedom of Speech
2
ed (Oxford University Press, Oxford 2005) at
122.
28
The
High Court’s order provides:
“
1. It is declared that:
1.1
Section 16(2)(a)
of the
Films and Publications Act
65 of 1996
, as amended, is inconsistent with the Constitution and
invalid.
1.2 In order to remedy the defect,
section 16(2)(a)
of
the
Films and Publications Act 65 of 1996
, as amended, is to be read
as though the word ‘contains’ is deleted and replaced
with the words ‘advocates
or promotes’.
2. It is declared that:
2.1
Section 16(1)
,
section 16(2)
and
section 24A(2)(a)
of the
Films and Publications Act 65 of 1996
, as amended, are
inconsistent with the Constitution and invalid to the extent that
they exclude magazines from the protection
afforded to newspapers.
2.2 In order to remedy the defect,
sections 16(1)
,
16
(2) and
24A
(2)(a) of the
Films and Publications Act 65 of 1996
, as
amended, are to be read as though the words ‘or magazine’
appear after the word ‘newspaper’ in each
case.
3. It is declared that:
3.1
Section 24A(2)(a)
of the
Films and Publications Act
65 of 1996
, as amended, is inconsistent with the Constitution and
invalid to the extent that it applies to publications other than
those
referred to in section 16(2) of the Act.
3.2 In order to remedy the defect,
section 24A(2)
of
the
Films and Publications Act 65 of 1996
is to be read as though:
3.2.1 The words ‘referred to in
section 16(1)
of
this Act’ in
section 24A(2)
have been deleted; and
3.2.2 The phrase ‘provided that this sub-section
shall only apply to those publications referred to in
section 16(2)
of this Act’ appears in
section 24A(2)(a)
between the words
‘Board’ and the semi-colon.
4. The orders in paragraphs 1, 2 and 3 above are hereby
referred to the Constitutional Court for confirmation in terms of
section
172(2)(a) of the Constitution.
5. The first and second respondents are directed to pay
the costs of the applicants jointly and severally, such costs to
include
the costs of two counsel.”
29
See
above n 7.
30
See
above n 24.
31
See
above n 7.
32
That
a publication can be capable of
containing
sexual conduct
appears to be a semantic oversight. It seems rather that what is
intended is for a
depiction
of sexual conduct to be contained
in a publication.
33
In
terms of Regulation 4 of the Films and Publications Regulations, GN
R207, in
GG
33026,
15 March 2010 (Regulations).
34
See
above n 28, which quotes the order of the High Court, sought to be
confirmed by the applicants.
35
First,
to interpret “contains” to mean “advocates or
promotes”, alternatively, to interpret section 16(2)(a)
as
applying only to visual presentation, as contended for by the
respondents. The applicants, however, do highlight the shortcomings

of these interpretive alternatives in their submissions, and one
need not say much more about them.
36
Section
1(c) of the Constitution provides for the “[s]upremacy of the
constitution and the rule of law.”
Section
9(1) of the Constitution provides that “[e]veryone is equal
before the law and has the right to equal protection
and benefit of
the law.”
37
This
is in spite
of the fact, as pointed out by the applicants,
that section 16(2)(a) does not employ the term, “visual
presentation”,
which is defined in section 1 of the Act as—
“
(a) a drawing, picture,
illustration, painting, photograph or image; or
(b) a drawing, picture, illustration, painting,
photograph or image or any combination thereof, produced through or
by means of
computer software on a screen or a computer printout.”
38
Section
22 of the Act provides:
“
(1) The Board may on receipt
of an application in the prescribed form, subject to such conditions
as it may deem fit, exempt in
writing any person or institution from
section 24A, 24B or 24C if it has good reason to believe that
bona
fide
purposes
will be served by such an exemption.
(2) Where the Board after due inquiry has good reason
to believe that the conditions of an exemption are not complied with
or
that the
bona fide
purposes are no longer present, it may
withdraw the exemption.”
See
[15] above for a brief description of the penalties referred to in
section 24A and below n 75 where section 24B is set out.
39
Section
30(4)(a) of the Act provides:
“
If any person who has
contravened or failed to comply with section 24A(1), (2)(a), (5),
(6), (7), 24C(2) or 27A(1)(a) agrees to
abide by a decision of the
Board and deposits with the Board such sum as the Board may
determine but not exceeding the greater
of two thousand rand or two
times the prescribed classification costs, where applicable, on each
such contravention or failure
to comply, the Board may, after
conducting an enquiry, determine the matter summarily and may,
without legal proceedings, order
forfeiture by way of penalty of the
whole or any part of the amount so deposited.”
40
JASA
suggested, as an alternative to its primary argument that the
limitation on the right to freedom of expression caused by
section
16(2)(a) is justifiable, the following remedial options:
in
section 16(2)(a), replace the word “publication” with
“material intended for publication”; and
in
section 16(2)(a), replace the words “contains sexual conduct
which” with “contains a visual presentation
of sexual
conduct which, judged within context”; and
in
section 16(4), read in after “shall” the words “as
soon as practicable, but no later than five days after
a request in
terms of subsection (1) or a submission in terms of subsection
(2)”;
further alternatively
suspend
the order of invalidity for a period of 18 months to allow
Parliament to correct the defect(s) without any interim relief;

else
effect
the alternative proposals as interim relief.
41
These
concerns were:
(i) Given the Act’s definition of “publication”,
which includes any message or communication, including a visual

presentation, placed on any distributed network including, but not
limited to, the internet, it would simply be impossible to
seek to
classify prior to publication expression on these media. The legal
enforceability of section 16(2) in its entirety, therefore,
is
questionable.
(ii) The Regulations also create an absolute ban on the
publication of material classified as X18 on distributed networks
and
the internet. By and large, most mainstream pornography contains
explicit sexual conduct, which is classifiable as X18. Under the

statutory scheme, therefore, mainstream pornography is banned from
publication on distributed networks and the internet.
(iii) Our attention was drawn to the ease with which
information may be uploaded onto distributed networks and the
internet. Each
upload constitutes a publication and undoubtedly
there is no shortage of online content that meets with the section’s
criteria
for submission. That it is practically and financially
unfeasible to classify all offending online data beforehand is
commonsense.
(iv)
A publisher is required to pay a classification fee of R1000 for
each publication submitted for prior classification.
42
See
[42]-[78] below.
43
See
[79]-[82] below.
44
See
[83]-[88] below.
45
See
[24] above.
46
Midi
Television
(Pty) Ltd t/a E-TV v Director of Public
Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA)
(
Midi
Television
) at para 15, quoting with
approval the Court of Appeal of England and Wales in
Attorney-General v British Broadcasting
Corporation
[1981] AC 303
(CA) at 362.
See also the judgments of Lord Reid and Lord Morris of Borth-y-Gest
in
Attorney-General v Times Newspapers
Ltd
[1974] AC 273
(HL), in the context
of judicial prior restraint.
47
Attorney-General
v British Broadcasting Corporation
[1981]
AC 303
(CA) and
Attorney-General v
Times Newspapers Ltd
[1974] AC 273
(HL). Cf
Attorney-General v Guardian
Newspapers Ltd
[1987] UKHL 13
;
[1987] 3 All ER 316
(
Spycatcher
).
48
Section
12(3) of the Human Rights Act 1998. See also
Greene
v Associated Newspapers Ltd
[2005] QB
972
(CA).
49
New
York Times Co. v United States
[1971] USSC 145
;
403 US
713
(1971);
Freedman v Maryland
380 US 51
(1965); and
Near v Minnesota
[1931] USSC 154
;
283 US 697
(1931)
.
50
Mosley
v United Kingdom
(2011) 53 EHRR 30
,
applying Article 10 of the European Convention on Human Rights, 1950
(ECHR), and
The Observer and The
Guardian v United Kingdom
[1991] ECHR 49
;
(1991) 14
EHRR 153
, holding that the injunction confirmed by the House of
Lords in
Spycatcher
above
n 47 infringed Article 10 of the ECHR.
51
Little
Sisters Book and Art Emporium v Canada (Minister of Justice)
[2000]
2 SCR 1120
, in relation to legislative prior restraints. See also
Devenish “Prior judicial restraints and media freedom in South
Africa
– Some cause for concern”
(2011) 74
THRHR
16-7
for a discussion on other Canadian cases,
permitting prior restraints, and on judicial prior restraints
generally.
52
See
[39] above.
53
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) (
Islamic Unity
)
at paras 31-4.
54
Id
at para 33 and
De Reuck v Director of
Public Prosecutions, Witwatersrand Local Division, and Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC);
2003 (12)
BCLR 1333
(CC) at para 47.
55
See
Van den Berg en ’n Ander v Suid-Afrikaanse Spoorweë en
Hawens
1980 (1) SA 546
(T) at 558F and Du Plessis “Statute
Law and Interpretation” 25(1)
LAWSA
2011 at para 353.
56
Islamic
Unity
above n 53 at para 34.
57
See
New National Party
of
South Africa v Government of the Republic of South Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5)
BCLR 489
(CC) on the right to vote.
58
Phillips
and Another v Director of Public Prosecutions, Witwatersrand Local
Division, and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) at para 17.
Section
36 of the Constitution
provides
:
“
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided for in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
59
Section
16(1)(b) of the Constitution. See also
Case and Another v
Minister of Safety and Security and Others; Curtis v Minister of
Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC) (
Case
) at para 28.
60
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at
para 7.
61
Id.
62
Holomisa
v Khumalo and Others
2002 (3) SA 38
(T) at 61.
63
Khumalo
and Others v Holomisa
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 24 and
Government of the Republic of South
Africa v ‘Sunday Times’ Newspaper and Another
1995 (2) SA 221
(T) at 227I-228A.
64
Government
of the Republic of South Africa
id
at 228A.
65
Midi
Television
above n 46 at para 6.
66
Van
der Merwe v Road Accident Fund and Another (Women’s Legal
Centre Trust as
Amicus Curiae
)
[2006] ZACC 4
;
2006 (4) SA
230
(CC);
2006 (6) BCLR 682
(CC) at para 33 and
Chief
Lesapo v North West Agricultural Bank and Another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 23.
67
Section
2 of the Act provides:
“
The objects of this Act shall
be to regulate the creation, production, possession and distribution
of films, games and certain
publications to—
(a) provide consumer advice to enable adults to make
informed viewing, reading and gaming choices, both for themselves
and for
children in their care;
(b) protect children from exposure to disturbing and
harmful materials and from premature exposure to adult experiences;
and
(c) make use of children in and the exposure of
children to pornography punishable.”
68
See
De Reuck
above n 54 at para 63.
69
Id.
70
See
discussion on section 24A(2)(a) of the Act at [83]-[88] below and
Emerson “The Doctrine of Prior Restraint”
(1955)
Faculty Scholarship Series
,
Paper 2804 at 655.
71
For
a robust discussion on the effects of prior classification, see
Barendt above n 27 at
118-29; Emerson above n 70
at 655-60; and Bickel
The Morality of
Consent
(Yale University Press, London
1975) at 61.
72
Barendt
above n 27 at 123 and Emerson above n 70 at 655-60.
73
Section
16(1)(a) of the Constitution and
MEC
for Health, Mpumalanga v M-Net and Another
2002
(6) SA 714
(T) at para 29.
74
The
classification committees are appointed by the Board (section 10(1))
and their decisions are deemed to be that of the Board
(section
10(3)). The Council must make regular, quarterly reports about the
Board’s effectiveness to the Minister (section
4A(1)(f)). The
Council determines the composition of the Board (section 9A(1)).
The
Council’s members are appointed by the Minister (section
6(1)), determine the classification policies and rules, in

consultation with the Minister (section 4A(1)(a)), receive
remuneration, allowances and other benefits, as determined by the

Minister and the Minister of Finance (section 12), may be removed by
the Minister, based on a finding of a tribunal appointed
by the
Minister (section 9) and may be reappointed by the Minister (section
8(2)).
In
the same manner, the Appeal Tribunal members are also appointed,
paid, may be removed from office and be reappointed by the
Minister
(sections 6(1), 12, 9 and 8(2), respectively).
Motala
and Ramaphosa
Constitutional Law
Analysis and Cases
(Oxford University
Press, Cape Town 2002) at 366 say that if administrative prior
restraints were in general sanctioned that “the
press and the
exercise of free speech would [become] beholden to the government.”
75
Sections
24B of the Act provides:
“
(1) Any person who—
(a) unlawfully possesses;
(b) creates, produces or in any way contributes to, or
assists in the creation or production of;
(c) imports or in any way takes steps to procure,
obtain or access or in any way knowingly assists in, or facilitates
the importation,
procurement, obtaining or accessing of; or
(d) knowingly makes available, exports, broadcasts or
in any way distributes or causes to be made available, exported,
broadcast
or distributed or assists in making available, exporting,
broadcasting or distributing,
any film, game or publication, which contains
depictions, descriptions or scenes of child pornography or which
advocates, advertises,
encourages or promotes child pornography or
the sexual exploitation of children, shall be guilty of an offence.
(2) Any person who, having knowledge of the commission
of any offence under subsection (1) or having reason to suspect that
such
an offence has been or is being committed and fails to—
(a) report such knowledge or suspicion as soon as
possible to a police official of the South African Police Service;
and
(b) furnish, at the request of the South African Police
Service, all particulars of such knowledge or suspicion,
shall be guilty of an offence.
(3) Any person who processes, facilitates or attempts
to process or facilitate a financial transaction, knowing that such
transaction
will facilitate access to, or the distribution or
possession of, child pornography, shall be guilty of an offence.”
Section
24A(4) of the Act provides in relevant part:
“
Any person who knowingly
distributes or exhibits any film, game or publication—
. . .
(b) which contains depictions, descriptions or scenes
of explicit sexual conduct, unless such film, game or publication is
a
bona fide
documentary or is of scientific, literary or
artistic merit or is on a matter of public interest,
to a person under the age of 18 years, shall be guilty
of an offence and liable, upon conviction, to a fine or imprisonment
for
a period not exceeding five years or to both a fine and such
imprisonment.”
As
the second amicus submitted, correctly in my view, most mainstream
pornography would contain explicit sexual conduct.
76
Midi
Television
above n 46.
77
Mandela
v Falati
1995 (1) SA 251
(W) at 257F-J.
78
These
are t
wo of the Act’s important stated
purposes. See discussion at [56] above.
79
Section
16(1) of the Act, quoted in full at [14] above, notably empowers
“[a]ny person” to request a classification
of a
publication. On its plain meaning, there is nothing to suggest that
the publisher himself is precluded from utilising the
provision for
his own benefit prior to distribution of a particular publication.
80
Blackstone
Commentaries on the Laws of England
Book IV
(1795) at 151-2
:
“
The liberty of the press is
indeed essential to the nature of a free state; but this consists in
laying no
previous
restraints on publications,
and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted
right to lay what sentiments he
pleases before the public: to forbid this, is to destroy the freedom
of the press: but if he
publishes what is improper, mischievous or
illegal, he must take the consequence of his own temerity.”
81
See
above n 28.
82
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC).
83
Id
at para 16.
84
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3)
BCLR 241
(CC) at para 85.
85
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at paras 56 and 59;
Harksen v Lane NO and Others
[1997]
ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at para 54;
and
Prinsloo v Van der Linde and
Another
[1997] ZACC 5
;
1997 (3) SA
1012
(CC);
1997 (6) BCLR 759
(CC) at para 25.
86
See
above n 28.
87
See
above n 28.
88
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 43.
89
65
of 1996, as amended.
90
See
[72] above. In my respectful view [78] above does not accurately
reflect the position taken in this judgment.
91
See
Milo et al “Freedom of Expression” in Woolman et al
(eds)
Constitutional Law of South Africa
(2 ed) at 42—16
and Van der Westhuizen “Freedom of Expression” in Van
Wyk et al (eds)
Rights and Constitutionalism: The New South
African Legal Order
(Juta, Kenwyn 1994) 254 at 267-9.
92
Dikoko
v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC) at para 92. See also Article 19 of the Universal Declaration of
Human Rights; Article 19 of the International Covenant on
Civil and
Political Rights; Article 9 of the African Charter on Human and
Peoples’ Rights; Article 10 of the European Convention
on
Human Rights; and Article 13 of the American Convention on Human
Rights.
93
Dikoko
id. See also
South African National Defence Union v Minister of
Defence
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para 7:
“
[Freedom of expression] is
valuable for many reasons, including its instrumental function 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 generally. The
Constitution recognises 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.)
94
42
of 1974 (Publications Act).
95
See
Van Rooyen “Censorship in a future South Africa: A legal
perspective” (1993) 2
De Jure
283 at 285-6 and 289.
96
See
section 47(2) of the Publications Act.
97
In
Publications Control Board v William Heinemann, Ltd. and Others
1965 (4) SA 137
(A) (
Heinemann
) the then Appellate Division
of the Supreme Court sanctioned the banning of the book
When the
Lion Feeds
by Wilbur Smith in terms of section 21(1)(f) of the
Customs Act 55 of 1955 – read together with section
6(1)(a)-(d) of
the Publications and Entertainment Act 26 of 1963 –
which prohibited the publication of material that was deemed to be

“indecent or obscene or on any ground whatsoever
objectionable”.
98
Rumpff
JA in
Heinemann
id at 160E-F stated:
“
The freedom of speech –
which includes the freedom to print – is a facet of
civilisation which always presents two
well-known inherent traits.
The one consists of the constant desire by some to abuse it. The
other is the inclination of those
who want to protect it to repress
more than is necessary. The latter is also fraught with danger. It
is based on intolerance
and is a symptom of the primitive urge in
mankind to prohibit that with which one does not agree. When a Court
of law is called
upon to decide whether liberty should be repressed
– in this case the freedom to publish a story – it
should be anxious
to steer a course as close to the preservation of
liberty as possible. It should do so because freedom of speech is a
hard-won
and precious asset, yet easily lost.”
99
See
Klare “Legal Culture and Transformative Constitutionalism”
1998 (14)
SAJHR
146
and Langa “Transformative
Constitutionalism” 2006 (3)
STELL LR
351 at 354, where
Langa CJ referred to transformative constitutionalism as a
“permanent ideal”.
100
Section
10 of the Constitution.
101
Section
9 of the Constitution.
102
Section
14 of the Constitution.
103
Section
28(2) of the Constitution.
104
Section
16(2) of the Constitution.
105
On
some of the philosophical and ideological implications of the
possible tension between freedom of expression and equality,
see
Meyerson “‘No platform for racists’: What should
the view of those on the left be?”
(1990) 6
SAJHR
394
;
Suttner “Freedom of Speech”
(1990) 6
SAJHR
372
;
Greenawalt “Free speech in the United States and Canada”
(1992) 55
Law and Contemporary Problems
5; and Mahoney “The
Canadian constitutional approach to freedom of expression in hate
propaganda and pornography”
(1992) 55
Law and Contemporary
Problems
77 at 103. Government intervention may be necessary to
ensure a media environment that is characterised by pluralism,
diversity
and a citizen right to gain information and make his or
her voice heard. See Puddephatt “The importance of self
regulation
of the media in upholding freedom of expression”
UNESCO, CI Debates N.9 – February 2011; available at
http://global-partners.co.uk/wp-content/uploads/Importance-of-slef-reg-English.pdf,

accessed on 26 September 2012.
106
See
above n 58 for the wording of section 36.
107
[15]
above.
108
See
[14] above for the wording of section 16(2)(a) of the Act.
109
See
[44] above and above n 46.
110
See
section 1 of the Act, quoted in above n 7.
111
Id.
112
See
the wording of section 16(2) in [14] above.
113
The
definition of “degrade” was deleted by the
Films and
Publications Amendment Act 18 of 2004
.
114
See
above n 94-8 and [94] and [95] above.
115
See
[44] above.
116
See
[66]-[70] above.
117
[44]
above.