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

• Jurisdiction: South Africa
• Citation: 2012 (6) SA 443 (CC)

Print Media South Africa and Another v Minister of Home Affairs and Another
2012 (6) SA 443 (CC)

2012 (6) SA p443

Citation	2012 (6) SA 443 (CC)
Case No	CCT 113/11; [2012] ZACC 22
Court	Constitutional Court
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
Heard	March 13, 2012
Judgment	September 28, 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.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to freedom of expression — Prior restraints on publication — Such constituting serious interference with right, C and only permissible in narrow circumstances — Here Act requiring publications containing sexual content to be submitted to board for classification before distribution — Prior classification scheme unjustifiably limiting right — Constitution, s 16; Films and Publications Act 65 of 1996, s 16(2).

Headnote : Kopnota

In this matter a high court had declared ss 16(1), 16(2)(a) and 24A(2)(a) of the D Films and Publications Act 65 of 1996 unconstitutional and the applicants now applied to the Constitutional Court for it to confirm the high court's order. Those sections provide:

'16 Classification of publications

(1) Any person may request, in the prescribed manner, that a E 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 F 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; G

(ii)

degrades a person; or

(iii)

constitutes incitement to cause harm; . . . .

. . .

24A Prohibitions, offences and penalties on distribution and exhibition of films, games and publications H

. . .

(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 I 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.' J

2012 (6) SA p444

A The constitutionality of s 16(2)(a) of the Act

The Constitutional Court noted that s 16(2)'s scheme was one of administrative prior classification: a person seeking to publish material had to submit it before publication to an administrative body, which considered it and then granted or refused permission to publish it. This was a form of prior restraint on expression. (Paragraph [16] at 454D – E.)

B The Supreme Court of Appeal, in the context of an interdict, had endorsed the view of the Court of Appeal of England and Wales that prior restraint of publication, though occasionally necessary in serious cases, was a drastic interference with freedom of speech and ought only to be ordered where there was a substantial risk of grave injustice. The Constitutional Court approved this endorsement. (Paragraph [44] at 462G – 463A.)

C Other foreign jurisdictions had similar attitudes to prior restraint. (Paragraph [45] at 463B – C.)

Did the right to freedom of expression protect expression of 'sexual conduct'?

The court noted of s 16(1) that the types of protected expression it named were non-exhaustive and merely illustrative. Expression not falling under s 16(2) D (unprotected expression) fell under s 16(1). And expression of 'sexual conduct' did not fall under s 16(2) and was thus protected. (Paragraphs [47] – [49] at 463F – 464F.)

Whether s 16(2)(a) of the Act's administrative prior classification limited the right to freedom of expression

E The court held that if protected expression were subject to the prior-classification scheme, the expression was regulated by the Act. And to regulate the right was to limit it. Accordingly the prior-classification requirement of ss 16(1) and 16(2)(a) of the Act limited the right. (Paragraphs [50] – [51] at 464G – 465B.)

Was the limit (prior classification) justifiable?

F The nature of the right to freedom of expression

The court observed that the right protected an individual's freedom to express and receive information and ideas and also to form an opinion on the expression received. And it also protected the press, whose vitality was crucial to a democracy. (Paragraphs [53] – [54] at 465E – 466C.)

G The importance of the limit's purpose

Section 16(2)(a)'s important purposes were to prevent children being exposed to harmful or age-inappropriate material and to ban child pornography. (Paragraphs [57], [63] and [68] at 467D – E, 469A – B and 470H.)

H The limit's nature and extent

The administrative prior classification transferred control of the exercise of the right to freedom of expression from the right-bearer to an administrative body. No time frame was set for the classification process, and the publisher bore the onus of justifying the expression. (Paragraphs [58] and [61] at 467F – G and 468E.)

I The relation of the limit and the purpose, and less restrictive means

Considerations here were that:

Section 16(2)(a) was not the only means by which its and the Act's purposes might be achieved: other sections prohibited child pornography and exposure of children to pornography (para [63] at 469A – B).

The section delayed the flow of expression and this could impede right-bearers J receiving information (para [64] at 470A – B).

2012 (6) SA p445

There existed the less restrictive alternative of a court interdict, in respect A of which the party that wanted to restrain the expression bore the onus; and where a court enquired into the merits of the prior restraint, which was appropriate in that the enquiry involved adjudicating rights (paras [66] – [68] at 470D – H).

Furthermore a publisher could approach the classification authorities for an B opinion on material prior to distributing it, with s 16(1) allowing a publisher, who was uncertain as to whether material was classifiable, to submit it for classification. (Paragraph [70] at 471C – D.)

Conclusion and remedy in respect of s 16(2)(a)

The court held that the central constitutional deficiency was the administrative and compulsory nature of the prior classification system, where there were C less restrictive alternatives. (Paragraph [72] at 471G – 472A.)

It confirmed the high court's declaration of the invalidity of s 16(2)(a), but not the high court's remedy of substitute wording, putting in its place complete excision. (Paragraph [75] at 472C – D.)

The constitutionality of exempting newspapers, but not magazines D

The court noted that ss 16(1) and (2) and 24A(2)(a) exempted newspapers which adhered to a code of conduct enforced by the Press Ombudsman. Magazines adhering to a code enforced by the Press Ombudsman were, however, excluded. (Paragraphs [79] – [80] at 472I – 473B.)

It held that the differentiation breached the principle of legality and the right to equality and it confirmed the high court's declaration of invalidity. It also confirmed the high court's reading-in of magazines into the exclusion that E applied to newspapers. (Paragraph [82] at 473D.)

The constitutionality of ss 24A(2) and 24A(2)(a)

The court held that s 24A(2)(a) read with s 16(1) made it an offence to distribute any publication that was not classified and that was not a newspaper. Thus a F publisher distributing material which was not classified committed an offence, even if no one had requested its classification (s 16(1)), and even where the publisher was not required to submit it for prior classification (s 16(2)). This was irrational. The section was in fact meant to penalise a publisher for not complying with s 16(2). The section was thus invalid and unconstitutional. (Paragraphs [85] – [87] at 473F – 474C.)

As to s 24A(2), its drafters had in error included in it the words 'referred to in G section 16(1) of this Act'. It was unconstitutional and invalid. (Paragraphs [86] – [87] at 473H – 474C.)

The court ordered as remedies the severing of 'referred to in section 16(1) of this Act'; and the reading into s 24A(2)(a), after 'Board', of 'provided that this sub-section shall only apply to those publications referred to in section 16(2) of this Act'. (Paragraph [90] at 475E.) H

Cases Considered

Annotations:

Case law

Southern Africa

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dictum I in paras [18] – [19] applied

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [43] applied J

2012 (6) SA p446

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609...