J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Didcott J, Chaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 21 November 1996
• Docket Number: CCT 49/95
• Hearing Date: 14 May 1996
• Counsel: J J Gauntlett (with him G J Marcus) for the applicants and appellants G L Grobler (with him D E Van Logerenberg and N J Louw) for the second and third respondents (the Minister of Home Affairs and the Government of the Republic of South Africa).
• Court: Constitutional Court

Didcott J:

[1] The present matter is the second one concerning the statutory censorship of obscenity and the like with which we have had to deal this year. The first was Case G and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others [1] where we struck down a subsection of the Indecent or Obscene Photographic Matter Act 37 of 1967 that lay at its heart, holding the provision to be incompatible with the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993). Some equally crucial parts of the H Publications Act 42 of 1974 have now been impugned in turn. They too are said in these proceedings to be constitutionally defective.

[2] In neither case did any of the counsel who argued it before us contend or suggest that such censorship was always and in principle repugnant to the Constitution, no I matter how vile, depraved and bereft of redeeming features the material thus suppressed might happen ever to be. They all accepted, on the contrary, that the production of material so egregious, its dissemination and sometimes even its possession could

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justifiably be prohibited or restricted in the public interest whenever those activities A were shown to have a truly pernicious effect. That so much might well be constitutionally tolerable was furthermore acknowledged, with varying degrees of force and emphasis, in three of the separate judgments delivered when we decided the B previous case. [2] I mention all that because the decision given then appears to have been misunderstood in some circles as a green light shone for the peddling of pornography. It therefore seems necessary to stress that the target under attack was on the earlier occasion, and is again on this one, not censorship in general but the C particular scheme of the statute in question, the nature and range of its dictates and the capacity attributed to them for hitting, indiscriminately and unseverably, both obnoxious and innocuous material.

[3] Whether those details of the Publications Act are indeed open to challenge in the present case is by no means common cause, however, but an issue in dispute and the D first one that we have to consider. The background to that question and the circumstances from which it arises must therefore be described straight away.

[4] The first applicant publishes a magazine called Hustler, a name belonging to it on the strength of a trademark that it holds. It also produces other publications and E material recorded on videotape. The second applicant is a member of a close corporation which has procured from the first applicant a franchise allowing it to trade under the name and requiring it to sell the first applicant's products. Both businesses ran into trouble when they were believed to be contravening the Publications Act. F Issues of the magazine were banned. The police raided the premises of the close corporation and seized its stocks of merchandise supplied by the first applicant. The same happened to a second franchisee. That all occurred despite a concession by the Minister of Home Affairs that some parts of the statute were constitutionally flawed and the consequent preparation, on which his department was already at work, of a G bill proposing its repeal and replacement by a fresh scheme. An undertaking that such incidents would not recur while the legislation remained under review was requested from the authorities. But they refused to promise that, insisting on the enforcement in the meantime of the law as it stood.

[5] The sequel was a series of recourses that the applicants had to litigation where they H sought protection for their trading against a repetition of the experiences undergone by them, which were said to have interfered with it drastically. Their earlier efforts to achieve that object all went awry for various reasons, none of which matters now. In the end they applied to the Transvaal Provincial Division of the Supreme Court for an order referring to us, for our ruling on them, the questions whether the Publications Act I and the Indecent or Obscene Photographic Matter Act, [3] or alternatively some individual sections of each, were

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constitutionally valid or invalid. No additional relief was claimed in that forum as either A an interim or a lasting measure. The Minister of Safety and Security, the Minister of Home Affairs and the Government were joined in the proceedings and cited respectively as the first, second and third respondents. The first respondent took no part in the debate that followed, abiding instead by the decision of the Court. The other B two respondents both opposed the application. It came before Daniels J, who dismissed it with costs. His refusal of the referral was appealable to this Court under s 102(7) of the Constitution. So the applicants obtained from him the preliminary certificate required for such purposes by our Rule 18. They then applied to us for leave to appeal against the decision in terms of that Rule, as read with s 102(11) of the C Constitution. In accordance with directions issued here for the disposal of the matter, oral argument on the application for leave to appeal was heard in due course by the whole Court, together with the appeal itself in case the application succeeded.

[6] The referral was sought under s 102(1) of the Constitution, the salient part of which D stipulates that:

'If, in any matter before a Provincial or Local Division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court . . ., the Provincial or Local Division concerned shall, if it considers it to be in the interest of justice to do E so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the Provincial or Local Division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.'

Daniels J took the view that those provisions did not apply to the sort of case at hand, a case raising no issue but the ones on which a ruling was wanted from us. His reasons F for thinking so were furnished in a judgment that he delivered at the time, when he said:

'The validity of the Acts, in the context of their enforceability regard being had to the Constitution, is not in issue. [4] The procedure adopted and sought to be employed by the applicants is simply not catered for by the section. There is G no case before this Court involving the question of the validity of the two Acts. The applicants have merely expressed a desire to have that issue determined by the Constitutional Court, and to that end ask for a referral not of the case or matter or issue before the Court, but of an issue unrelated to the matter under consideration. [5]

This Court also finds itself in a position where it cannot consider whether H evidence is necessary for the purposes of deciding the issue, since it is not required to determine the issue but is asked to refer that very issue to the Constitutional Court, and it is precluded from giving effect to the requirements of the section. However one interprets the section, one is constrained to find that a referral, such as is contemplated, prerequires an issue arising within the context of an existing or pending lis. Since the issues sought to be referred are I not issues

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in the case or matter before me, a determination of those issues cannot be A decisive for any case, least of all the matter before me. In my view, the referral sought is incompetent, and to grant the order prayed would be irregular and beyond the scope of the section.'

[7] The field for the enquiry into the construction thus placed on s 102(1) is best B entered, as I see it, through s 7(4) of the Constitution, a convenient portal to that area of investigation. Paragraph (a) of the subsection, which appears at the beginning of chap 3, decrees that:

'When an infringement of or threat to any right entrenched in this chapter is alleged, any person referred to in para (b) shall be entitled to apply to a C competent court of law for appropriate relief, which may include a declaration of rights.'

The list then provided by para (b) of the people who are qualified to claim such relief mentions in subpara (i) 'a person...