Publications Control Board v William Heinemann, Ltd and Others

• Jurisdiction: South Africa
• Judge: Steyn CJ, Rumpff JA, Holmes JA, Williamson JA and Potgieter JA
• Judgment Date: 26 August 1965
• Citation: 1965 (4) SA 137 (A)
• Hearing Date: 13 May 1965
• Court: Appellate Division

Steyn, C.J.:

This is an appeal against a majority judgment by the Cape B Provincial Division allowing an appeal against a decision of the Publications Control Board established by the Publications and Entertainments Act, 26 of 1963. On 10th July, 1964, the Board, by notice in the Gazette, published its decision that the book 'When the Lion Feeds', by Wilbur A. Smith, is indecent, obscene and objectionable in terms of sec. 21 of the Customs Act, 55 of 1955.

Sec. 21 (1) (f) of the latter Act lists, as goods prohibited from C importation, subject to a qualification not relevant for present purposes,

'goods which are indecent or obscene or on any ground whatsoever objectionable'.

Sec. 21 (3), as amended by Act 26 of 1963, provides:

'(3) (a)

In the event of any question arising as to whether any goods are indecent or obscene or objectionable, the decision of the D Publications Control Board referred to in sec. 2 of the Publications and Entertainments Act, 1963, shall be final, subject to a right of appeal as provided in sec. 14 of that Act as if such decision were a decision referred to in that section.

(e)

For the purpose of any decision as to whether goods are indecent or obscene or objectionable within the meaning of this sub-section, the provisions of sub-sec. (2) of sec. 5 and sec. 10 of the E Publications and Entertainments Act, 1963, shall mutatis mutandis apply.'

Sec 10 of the 1963 Act deals with prohibited films and is not applicable in the present matter. Sec. 5 deals with undesirable publications and objects, and sub-sec. (2) sets out the grounds upon which a publication or object is deemed to be undesirable. Para. (a) of that sub-section provides that

'a publication or object shall be deemed to be undesirable, if it or any F part of it is indecent or obscene or is offensive or harmful to public morals'.

Applying this paragraph mutatis mutandis, i.e. with such changes as are necessarily to be made (Touriel v Minister of Internal Affairs, Southern Rhodesia, 1946 AD 535 at p. 544), to the subject matter indicated in sec. 21 (3) (c) of the Customs Act, it would read:

'Goods shall be deemed to be indecent or obscene or objectionable, if G they or any part of them are indecent or obscene or are offensive or harmful to public morals.'

In itself this provision is hardly illuminating, but it does make it clear that, in the case of a publication, for instance, it is sufficient if any part of it comes within the prohibition. As a definition of what is 'indecent or obscene or on any ground whatsoever objectionable' H within the meaning of sec. 21 (1) (f) of the Customs Act, it is somewhat confusing. In terms it seems inter alia to say that, if goods are offensive or harmful to public morals, they are at the same time to be regarded as indecent, obscene and objectionable; and it is by no means clear to what extent, if any, this definition is intended to limit the effect of the words 'on any ground whatsoever', in relation to goods said to be objectionable. In the 1963 Act the real content of the concepts 'indecent

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or obscene or offensive or harmful to public morals' is to be found in sec. 6, which provides:

'6. (1)

If in any legal proceedings under this Act the question arises whether any matter is indecent or obscene or is offensive or harmful to public morals, that matter shall be deemed to be -

(a)

A indecent or obscene if, in the opinion of the court, it has the tendency to deprave or to corrupt the minds of persons who are likely to be exposed to the effect or influence thereof; or

(b)

offensive to public morals if in the opinion of the court it is likely to be outrageous or disgustful to persons who are likely to read or see it; or

(c)

harmful to public morals if in the opinion of the court it deals in an improper manner with murder, suicide, death, horror, B cruelty, fighting, brawling, ill-treatment, lawlessness, gangsterism, robbery, crime, the technique of crimes and criminals, tippling, drunkenness, trafficking in or addiction to drugs, smuggling, sexual intercourse, prostitution, promiscuity, white-slavery, licentiousness, lust, passionate love scenes, homosexuality, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality, abortion, change of sex, night life, physical C poses, nudity, scant or inadequate dress, divorce, marital infidelity, adultery, illegitimacy, human or social deviation or degeneracy, or any other similar or related phenomenon; or

(d)

indecent or obscene or offensive or harmful to public morals if in the opinion of the court it is in any other manner subversive of morality.

(2)

In determining whether any matter is indecent or obscene or is offensive or harmful to public morals within the meaning of D sub-sec. (1), no regard shall be had to the purpose of the person by whom that matter was printed, published, manufactured, made, produced, distributed, displayed, exhibited, sold or offered or kept for sale.'

Unlike sec. 5 (2) of the Act, this section is not expressly applied by E sec. 21 (3) (c) of the Customs Act for the purpose of any decision mentioned in the latter section. According to sec. 21 (3) (a), however, there is a right of appeal against a decision by the Board that goods are indecent, obscene or objectionable in terms of the Customs Act. It is a right of appeal as provided in sec. 14 of the 1963 Act, 'as if such decision were a decision referred to in that section.' Sec. 14 confers a F right of appeal to a Provincial or Local Division of the Supreme Court, amongst others, upon the importer of goods referred to in sec. 21 (3) of the Customs Act, who is aggrieved by a decision of the Board in respect of such goods, subject to a further appeal to this Court. An appeal against a decision given by the Board under the Customs Act may, therefore, for the purposes of sec. 6 of the 1963 Act, properly be G regarded as a 'legal proceeding under this Act'. In the result, albeit in a somewhat indirect manner, sec. 6 of the 1963 Act becomes applicable, in so far as legal proceedings are concerned, also in respect of a decision of the Board referred to in sec. 21 (3) (c) of the Customs Act. Again unlike sec. 5 (2), sec. 6 is confined to legal proceedings. Although the proceedings by which the Board arrives at a H decision would not be legal proceedings, it would naturally have to pay attention to the provisions by which a Court would be bound on appeal. In that even more indirect manner, it may be said that the Board is enjoined to observe the precepts contained in this section, and in doing so to substitute 'its opinion' for 'the opinion of the Court'. The question to be decided by the Board and, by the Court on appeal, would then be, not simply whether the goods in question are indecent, obscene or objectionable as described in sec. 21 (1) (f) of the Customs Act, but, leaving aside

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the possible effect of the words 'on any grounds whatsoever' in that section, whether the goods or any part of them are indecent or obscene, offensive to public morals or harmful to public morals within the meaning of sec. 6 (1) (a), (b), (c) or (d) of the 1963 Act. That was A clearly the approach of the Court below, and also the basis on which the Board had proceeded. In reply to an enquiry by the respondents, the Deputy State Attorney, on behalf of the Board, furnished the following reasons for its decision that this book is indecent, obscene or objectionable:

'(i)

The book has the tendency to deprave or corrupt the minds of B persons who are likely to be exposed to the effect or influence thereof.

(ii)

It is offensive or harmful to public morals.

(iii)

It is likely to be outrageous or disgusting to persons who are likely to read it.

(iv)

It deals in an improper manner with promiscuity, passionate love scenes, lust, sexual intercourse, obscene language, sadism and cruelty.'

The respondents were at the same time referred to nineteen different C passages by which, amongst others, considered 'in the context of the book read as a whole', the Board's decision had been motivated. In terms the Board's decision was not confined to particular parts of the book. Its decision was that the book was indecent, obscene or objectionable. But even if, in fact, only particular parts of the book come within that D description, as amplified by sec. 5 (2) (a), as applied mutatis mutandis, and sec. 6 of the 1963 Act, the book as such would, as explicitly provided in sec. 5 (2) (a), as so applied, be deemed to be indecent, obscene or objectionable.

Although the matter came before the Court below by way of an appeal, it E was not an appeal in the ordinary sense. There is no provision for any proceedings in the nature of a hearing before the Board. According to sec. 14 (1) and (2) of the 1963 Act, such an appeal is pursued by way of application on notice of motion, and the Court

'shall enquire into and consider the matter and may confirm, vary or set aside the decision of the Board or give such other decision as in its opinion the Board ought to have given'.

F The duty to enquire into the matter clearly implies that the Court may on appeal receive evidence placed before it, or call for evidence to be produced. The permissible scope of such evidence is not equally clear. In each of the paragraphs of sec. 6 (1), the opinion of the Court is made the determining factor. It is the opinion of the Court which is decisive as to whether this book or any part of it has the tendency to G deprave or corrupt the minds of persons who are likely to be exposed to the effect of influence thereof, or whether it is likely to be outrageous or disgustful to persons who are likely to read it, or whether it deals in an improper manner with any of the matters specified in para. (c), or whether it is in any other manner subversive of morality. In...