Print Media South Africa and Another v Minister of Home Affairs and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ
• Judgment Date: 28 September 2012
• Citation: 2012 (6) SA 443 (CC)
• Docket Number: CCT 113/11 [2012] ZACC 22
• Hearing Date: 13 March 2012
• Counsel: G Marcus SC (with S Budlender) for the first and second applicants. IAM Semenya SC (with N Manaka) for the first and second respondents. DJ Cooke for the first amicus curiae. S Stein (with K Serafino-Dooley) for the second amicus curiae.
• Court: Constitutional Court

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring): A

[1] 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 B Act, [2] as amended by the Films and Publications Amendment Act, [3] (the Act) were unconstitutional and invalid. It is only those sections that concern us.

The parties

C [2] 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.

[3] The second applicant, the South African National Editors' Forum, is D 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.

[4] The applicants had previously made submissions to parliament on E 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.

[5] The first respondent is the Minister of Home Affairs, the cabinet F 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.

[6] The Justice Alliance of South Africa (JASA) was admitted as the first G amicus curiae. JASA is a non-profit association, whose key objective is to

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring)

uphold and develop Judeo-Christian and constitutional values by means A 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.

[7] Another non-profit association, known as Section 16, was admitted B 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 C 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 D

[8] 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. E

[9] 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 F appeal, in fact, arrived more than three months after this date.

[10] 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 G 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 H contrite.

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring)

A [11] 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 B matter. I am, therefore, minded to grant condonation.

[12] 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 C court's directions, which established the time frame, 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.

D [13] 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

E [14] The challenged provisions of the Act are ss 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

F (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 G 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)

H constitutes incitement to cause harm;

(b)

advocates propaganda for war;

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring)

(c)

incites violence; or A

(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. B

. . .

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 C 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;

. . . D

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]

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring)

The relevant workings of the Act A

[15] 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 B 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 C 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 s 16(1) or 16(2), it falls to be classified under s 16(4). [9] In terms of s 16(4), read

Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring)

together with the Guidelines for classification, [10] a publication may A 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 B premises and with a licence 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 C through the imposition...