Catholic Bishops Publishing Co v State President and Another

• Jurisdiction: South Africa
• Judge: Corbett CJ, Hoexter JA, Nestadt JA, M T Steyn JA and F H Grosskopf JA
• Judgment Date: 01 December 1989
• Citation: 1990 (1) SA 849 (A)
• Hearing Date: 29 August 1989
• Court: Appellate Division

Corbett CJ:

In terms of the Public Safety Act 3 of 1953 ('the Act') the State President is empowered to declare, by proclamation in the Gazette, J that a state of emergency exists within the Republic as a whole or in any

Corbett CJ

A area within the Republic. He may do so if he is of the opinion that the circumstances set forth in s 2(1) of the Act obtain. The proclamation of a state of emergency cannot remain in force for longer than 12 months (s 2(2) of the Act). The State President is further empowered (by s 3 of the Act) to make such regulations (termed 'emergency regulations')

B '... as appear to him to be necessary or expedient for providing for the safety of the public, or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency'.

These regulations apply with reference to the area in which the state of C emergency has been declared and for as long as the proclamation declaring the state of emergency remains in force (s 3(1)).

In July 1985 and acting in terms of these powers the State President declared a state of emergency in certain areas (magisterial districts) within the Republic and at the same time promulgated a set of emergency D regulations. This proclamation was withdrawn and the state of emergency abolished in March 1986, but in mid-1986 a new state of emergency was declared, this time in respect of the whole of the Republic and simultaneously a new set of emergency regulations was promulgated. The state of emergency was renewed for the whole of South Africa by Proc R95 of 11 June 1987 and in terms of Proc R96 of the same date fresh E emergency regulations were published. At the same time, and in terms of Proc R97, the State President made and promulgated a separate set of regulations aimed generally at the regulation and control of what is published in newspapers, periodicals, books, etc and by way of television or film recordings and the making of films and taking of photographs of unrest or security actions. These have commonly been referred to as the 'media regulations'. I shall speak simply of 'the F regulations'. The regulations were amended by Proc R123 of 28 August 1987. One of the amendments effected by Proc R123 was the insertion of a new reg 7A. The relevant portion of this regulation read as follows:

'7A(1) If the Minister is of the opinion, solely on examination of any series of issues of a periodical -

(a)

G that there is in that periodical a systematic or repeated publishing of matter, or a systematic or repeated publishing of matter in a way, which, in his opinion, has or is calculated to have the effect -

(i)

of promoting or fanning revolution or uprisings in the Republic or other acts aimed at the overthrow of the Government otherwise than by constitutional means;

(ii)

H of promoting, fanning or sparking the perpetration of acts referred to in para (b) or (c) of the definition of "unrest";

(iii)

of promoting or fanning the breaking down of the public order in the Republic or in any area of the Republic or in any community;

(iv)

of stirring up or fomenting feelings of hatred or hostility in members of the public towards a local authority or a I security force, or towards members or employees of a local authority or members of a security force, or towards members of any population group or section of the public;

(v)

of promoting the public image or esteem of any organisation which is an unlawful organisation under the Internal Security Act 74 of 1982;

(vi)

of promoting the establishment or activities of structures referred to in para (a) (viii) or (ix) of the definition of J "subversive statement"; or

Corbett CJ

(vii)

A of promoting, fanning or sparking boycott actions, acts of civil disobedience, stay-aways or strikes referred to in para (a) (iii), (iv) or (v) of the definition of "subversive statement"; and

(b)

that the said effect which such systematic or repeated publishing in his opinion has or is calculated to have is causing a threat to the safety of the public or to the maintenance of public order or B is causing a delay in the termination of the state of emergency, he may, subject to subreg (4), by notice in the Gazette issue a warning to persons concerned in the production, importation, compilation or publication of issues of that periodical that the matter published in that periodical or the way in which matter is published in that periodical, in his opinion, is causing a threat to the safety of the public or to the maintenance of public order C or is causing a delay in the termination of the state or emergency.

(2) In any examination under subreg (1) of a series of issues of a periodical, such series may include any issue of that periodical published before the commencement of Proc R123 of 1987 but after 11 June 1987.

(3) If the Minister is of the opinion, solely on examination of any D issue or series of issues of a periodical published after a warning under subregulation (1) has been issued in respect of that periodical, that there is in the said issue or series of issues a continuation of a systematic or repeated publishing of matter, or of a systematic or repeated publishing of matter in a way, which, in his opinion, has or is calculated to have an effect described in para (a) of that subregulation and that the said effect which such systematic or repeated publishing in his opinion has or is calculated to have is causing a threat to the E safety of the public or to the maintenance of public order or is causing a delay in the termination of the state of emergency, he may, subject to subreg (4), by notice in the Gazette issue an order -

(a)

whereby the publication, during such period as may be specified in the order, but not exceeding three months at a time, of any further issue of that periodical is prohibited unless the matter to be published in any such issue and the way in which it is to be F published in such issue has previously been approved for publication by a person specified in the order; or

(b)

whereby the production, importation into the Republic or publication, during such period as may be specified in the order, but not exceeding three months at a time, of any further issue of that periodical is totally prohibited.

(4) No warning under subreg (1) nor any order under subreg (3) shall G be published unless the Minister -

(a)

has given notice in writing to the publisher or importer of the periodical concerned of the fact that action under subreg (1) or (3), as the case may be, is being considered in respect of that periodical, stating the grounds of the proposed action; and

(b)

has given that publisher or importer an opportunity of submitting H to him in writing, within the period of two weeks, representations in connection with the proposed action.'

Regulation 7A thus confers upon the Minister (who is the Minister of Home Affairs and of Communications) the power to issue an order either whereby the publication of a periodical is made subject, as to its content, to the prior approval of a specified person (whom for I convenience I shall call 'the censor') for a period not exceeding three months or whereby the production, importation or publication of a periodical is totally prohibited for a period not exceeding three months (see reg 7A (3)). Any such order must be preceded by a warning given in terms of reg 7A(1); but before he can give such a warning the Minister

(a)

must have examined a 'series of issues' of the periodical J concerned;

Corbett CJ

(b)

A must have formed the opinion, on such examination, that there is in that periodical a systematic or repeated publishing of matter or a systematic or repeated publishing of matter in a way which is calculated to have the effects set forth in paras (a) and (b) of reg 7A(1);

(c)

must have given notice in writing to the publisher or importer B (henceforth, because of non-relevance in this case, I shall omit reference to 'importer') concerned informing him of the fact that a warning is being considered in respect of that periodical and stating the grounds of the proposed action (reg 7A(4)(a)); and

(d)

must have given the publisher an opportunity of submitting to him in writing, within a period of two weeks, representations in C connection with the proposed action (reg 7A(4)(b)).

Thereafter, before making an order in terms of reg 7A(3), the Minister

(1)

must have given a similar written notice in terms of reg 7A(4)(a);

(2)

must have given the publisher a similar opportunity to make D written representations; and

(3)

must have formed the opinion, on an examination of any issue or series of issues of the periodical, that there is a continuation of a systematic or repeated publishing of matter or a systematic or repeated publishing of matter in a way calculated to have the E effects referred to in paras (a) and (b) of reg 7A(1).

Proclamation R123 also inserted the following new definition in the regulations:

"'series of issues", in relation to -

(a)

a periodical which is a daily newspaper, means at least six different issues of that newpaper whether or not issued on F consecutive days;

(b)

a periodical, other than a daily newspaper, which is ordinarily issued at intervals of 10 days or less, means at least three different issues of that periodical whether or not issued during consecutive intervals;

(c)

a periodical which is ordinarily issued at intervals in excess of 10 days, means at least two different issues of that periodical G whether or not issued during consecutive intervals.'

The appellant in this appeal is the Catholic Bishops Publishing Company, a company incorporated according to the company...