SA Magazine Co (Pty) Ltd v Publications Control Board

• Jurisdiction: South Africa

SA Magazine Co (Pty) Ltd v Publications Control Board
1966 (2) SA 148 (T)

1966 (2) SA p148

Citation	1966 (2) SA 148 (T)
Court	Transvaal Provincial Division
Judge	Snyman J
Heard	September 28, 1965; September 29, 1965
Judgment	February 2, 1966

Flynote : Sleutelwoorde

Publications and Entertainments — Act 26 of 1963 — Publication H which depraves or corrupts in contravention of sec. 6 (1) (a) — What constitutes — In cases of publications with a sexual affinity — Publication containing one article which offends against sec. 6 — Whole publication undesirable.

Headnote : Kopnota

As anything which has a sexual affinity will contribute towards the sexual inquisitiveness of young people and in that way might be said to cause an awakening of the sexual urges in them, such reaction in normal young readers must be appreciable and in contra-distinction to the normal awakening or development of sexual urges in them before the publication of a magazine

1966 (2) SA p149

made up of pages of pictures of female figures with a short caption under each, the pictures being of scantily clad females and calculated to draw attention to their breasts and/or private parts and buttocks, can be said to deprave or corrupt a substantial number of the average readers, and more particularly of the average teenage readers, in contravention of section 6 (1) (a) of the Publications and A Entertainments Act, 26 of 1963. An article the effect whereof is to inform would-be hypnotists that hypnotism is easy to practice, and by clear implication that it is easy to get women under one's influence as a result of hypnotism and so to have sexual relations with them, offends against the principles of the Act. And a publication which contains even one article which offends against section 6 of the Act becomes wholly undesirable. B

Case Information

Appeals from decisions of the respondent Board under sec. 14 of Act 26 of 1963. The facts appear from the reasons for judgment.

A. Chaskalson, for the appellant.

H. H. Moll, S.C. (with him M. J. Mentz), for the respondent.

Cur. adv. vult.

Postea (February 2nd). C

Judgment

Snyman, J.:

These two appeals are dealt with together with the consent D of the parties who are the same in each case. They are appeals in terms of sec. 14 of the Publications and Entertainments Act, 26 of 1963.

Case 769/65 is an appeal by the appellant against an order in terms of sec. 8 (1) (a) of the Publications and Entertainments Act published by the respondent in Government Gazette 1103 of 7th May, 1965, under E Government Notice 617 to the effect that the following publications had been declared to be undesirable:

1

'Real Secrets,' Vol. 1, No. 2.

2.

'Thrilling Confessions,' Vol. 1, No. 8.

3.

'True Confessions,' Vol. 2, No. 5.

4.

'Your Romance,' Vol. 1, No. 10.

F Case 770/65 is an appeal against an order published by the respondent on 21st May, 1965, in terms of sec. 8 (1) (a) of the Publications and Entertainments Act by Government Notice 731 in Government Gazette 1115 of 21st May, 1965, to the effect that the following publications had been declared to be undesirable:

1.

'Candid Pinups,' No. 14.

2.

G 'Candid Pinups,' No. 15.

3.

'Candid Pinups,' No. 16.

4.

'Candid Pinups,' No. 17.

5.

'Candid Pinups,' No. 18.

6.

'The Adventurer,' Vol. 1, No. 2.

7.

H 'True Men,' Vol. 1, No. 12.

At the end of his argument for the appellant, Mr. Chaskalson abandoned the appeal in case No. 769/65 in respect of Nos. 1, 2 and 4 and proceeded only with the appeal in respect of No. 3, i.e. 'True Confessions, Vol. 2, No. 5'. In case 770/65 he also abandoned the appeal in respect of No. 6, i.e. 'The Adventurer, Vol. 1, No. 2'.

The nature of appeals of this kind and the manner of dealing with them have been judicially interpreted in the case of Publications Control

1966 (2) SA p150

Snyman J

Board v William Heinemann, Ltd. and Others, 1965 (4) SA 137 (A.D.).

As I see my task I must decide what effect or influence the publications A or any part of any one of them is likely to have on an ordinary reader likely to read any such publication; that is to say, a reader of normal mind and reaction who is neither a prude nor a libertine.

In terms of sec. 6 (1) of the Act:

'If in any legal proceedings under the 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)

B 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 it or see it; or

(c)

harmful to public morals if in the opinion of the court it deals in an improper manner with'

C any of a number of subjects set out in sec. 6 (1) (c) of the Act, including death, horror, sexual intercourse, prostitution, promiscuity, licentiousness, lust, passionate love scenes, physical poses, nudity, scant or inadequate dress, divorce, adultery, human or social deviation,

'or any other similar or related phenomenon; or

(d)

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

In deciding upon these matters I must have no regard to the purpose of the person by whom the matter was printed or published.

The Heinemann case, supra, makes it clear also that a court deciding the issue must have no regard to the opinion of other persons in regard to E the matter; not even the opinion of the Publications Control Board set up under the Act to deal with harmful publications; and that in spite of the fact that the Board consists of not less than nine members, of whom at least six are appointed by reason of their special knowledge of art, language and literature, or the administration of justice.

F As was pointed out by RUMPFF, J.A., in the Heinemann case, supra at p. 156, an appeal to the Supreme Court against a declaration by the Publications Control Board is not an appeal in the legal sense or a review on the ground of an illegality or irregularity. The Supreme Court is enjoined to function purely as an administrative body whose opinion G may be substituted for that of the Publications Control Board: The duty to perform purely administrative functions is, fortunately, seldom, if ever, entrusted to the Supreme Court. The performance of such administrative work is the privilege of the Executive Government, and is intrinsically alien to the character of the Supreme Court.

With respect I agree with the learned Judge of Appeal in the H implications of his remarks that it is undesirable to place an administrative task, such as this, upon a court of law, which may, as here, consist of a single Judge. He uttered the warning that it would be wrong for a court to assume in every case to have sufficient knowledge of the taste and sense of decency of the people who are likely to read a particular publication. That is the position here. I know that I have not sufficient knowledge of these matters. Yet my opinion must prevail over that of the...