Issn 1727-3781 2007 volume 10 No 1 stop the press: why censorship has made headline news (again)



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Conclusion

The promulgation of the Films and Publications Act sent a very clear message that censorship would no longer be tolerated in the open and democratic society of a new South Africa. Adult members of this society have the freedom to choose what material they wish to see and read, within the boundaries set by the Constitution, and furthermore have the freedom to choose what their children may see or read, based on the information given by the Film and Publication Board. The language used in the Act also signifies an era where vague and overbroad terms such as 'indecency' and 'obscenity', employed by the previous censorship legislation, can no longer be used to describe matter which may be subject to certain restrictions. Clear definitions of what is regarded as 'sexual conduct' or 'child pornography' are given in line with the standard of transparent and unambiguous legislation set by the Constitution. The regulations promulgated under the Act, which are used to determine what is disturbing, harmful and threatening to children, are revised on a yearly basis. These regulations are, furthermore, open to public scrutiny as members of the public are invited to comment on the amendment thereof or to complain about the age restrictions imposed on films, interactive computer games and publications.
The amendments to the Act (with the exception of the proposed new section 16(2)(d), section 16(4)(a)(ii) and section 18(3)(a)(ii)) also are worded in such a manner that it seems clear that it intends to further the purpose of the Act. These amendments which, in line with the Constitutional Court decision of Case v Minister of Safety and Security; Curtis v Minister of Safety and Security94 seek to “protect children from potentially disturbing, harmful or age-inappropriate materials” are not “part of a new trend in the gradual erosion of the freedom of speech” but rather part of a movement towards the realisation that the protection of children against harm is the obligation of all members of society. There is absolutely no reason as to why newspapers or any other member of the print media should be excluded from this duty. Practically speaking, it also would not lead to the delay of the publication or broadcast of news reports or the censorship thereof as only material containing visual presentations, descriptions or representations of sexual conduct would need to be submitted for classification. Certain restrictions may then be imposed upon these publications as they are inappropriate and harmful to children, but it cannot be banned outright. It is submitted that any committed journalist would realise that the imposition of these possible restrictions, and not censorship, would thus only apply in extraordinary circumstances. Under the current Act, all other publications, including magazines such as FHM, Cosmopolitan or Men’s Health, already have to submit material which contains visual presentations of explicit sexual conduct or genitals.95 As the Constitution already proscribes material containing propaganda for war or incitement to imminent violence, it is submitted that the proposed section 16(2)(b) and (c) will have very little practical effect. However, with regard to advocacy of hatred, this provision of the Bill will have to be amended to ensure it does fall within the categories of expression listed by section 16(2) of the Constitution.96
Government already has indicated that it is willing to meet and consult with all interested parties regarding the policy issues affected by the Bill and consequently has suspended the promulgation of the amendments until such process has taken place. One only can hope that all such organisations and stakeholders will be prepared to consider rationally all the possible permutations of the issues at hand. In the process the media will have to demonstrate a sense of commitment to achieving a balance between the exercise of freedom of expression and the protection of children. If not, the breaking news just may, in future, break us completely.

Bibliography
Boyle 2006 Sunday Times 21
Boyle B “Back to a muzzled media” 2006 Sunday Times 8 October
Chetty "Memorandum"
Chetty I "Memorandum" (Unpublished internal communication sent to members of the Film and Publication Board, December 2006)
Gigaba 2006 Sunday Times 36
Gigaba M “Freedom of expression is not absolute” 2006 Sunday Times 15 Oct
Merrett Culture of Censorship
Merrett CE A Culture of Censorship: Secrecy and Intellectual Repression in South Africa (Phillip Cape Town 1994)
Smuts 2006 Sunday Times 36
Smuts D “Political correctness trumps free speech” 2006 Sunday Times 15 October
Register of legislation

Cape of Good Hope Obscene Publications Act 31 of 1892

Constitution of the Republic of South Africa 1996

Constitution of the Republic of South Africa Act 200 of 1993

Customs Act 10 of 1872

Customs Act 35 of 1944

Customs Consolidation and Shipping Act 13 of 1899

Customs Management Act 9 of 1913

Customs Management Ordinance 23 of 1902

Entertainments (Censorship) Act 28 of 1931

Films and Publications Act 65 of 1996

Films and Publications Amendment Bill B27 2006



Government Gazette no 29169 of 31 August 2006

Indecent or Obscene Photographic Materials Act 37 of 1967

Independent Broadcasting Authority Act 153 of 1993

Publications Act 42 of 1974

Publications and Entertainment Act 26 of 1963
Register of court cases

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)

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (12) BCLR 1333)

Freedom Front v South African Human Rights Commission 2003 (1) BCLR 1283 (SAHRC)

Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) (2002 (5) BCLR 433)

Khumalo v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771)

R v Bungaroo (1904) 25 NLR 28

R v Hardy (1905) 26 NLR 165

R v Hicklin (1868) LR 3 QB 360

R v Marais (1886) 6 SC 367

R v W 1953 (3) SA 52 (SWA)

Republican Publications (Edms) Bpk v Raad van Beheer oor Publikasies 1973 (4) SA 549 (D)

S v R 1964 (1) SA 394 (T)

South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) (1999 (6) BCLR 615)
Register of Internet resources

Booth 2006 http://www.ispa.co.za 9 Nov


Booth I 2006 ISPA welcomes film bill extension [Found on internet] http://www.ispa.org.za/news/press081106.shtml [Date of use 9 November]

Chetty and Basson 2006 http://www.fpb.gov.za/ 20 Apr


Chetty I and Basson A 2006 FPB Report on Internet Usage and the Exposure of Pornography to Learners in South African Schools [Found on internet] http://www.fpb.gov.za/research/docs/report.pdf [Date of use 20 April 2007]

Duncan 2006 Business Day http://www.businessday.co.za/ 16 Aug


Duncan J “Dragging us back to the nanny state” 2006 Business Day 15 Aug [Found on internet] http://www.businessday.co.za/PrintFriendly.aspx?ID=BD4A250220 [Date of use 16 August 2006]

Harber 2006 The Harbinger http://www.big.co.za/ 9 Nov


Harber A “Please tell us this is a mistake” in The Harbinger 10 Aug 2006 [Found on internet] http://www.big.co.za/wordpress/2006/08/10/please-tell-us-this-is-a-mistake [Date of use 9 November 2006]

IPI 2006 http://www.freemedia.at/ 11 Sep


International Press Institute 2006 IPI Urges South African Government to Amend Films and Publications Amendment Bill, 2006 [Found on internet] http://www.freemedia.at/cms/ipi/statements_detail.html?ctxid+CH0055&docid+CMS [Date of use 11 September 2006]

Leon 2006 SA Today http://www.da.org.za/ 29 Aug


Leon T “Warning bells on free speech” SA Today 25 Aug 2006 [Found on internet] http://www.da.org.za/da/Site/Eng/satoday/SAToday.asp?SATodayID=197 [Date of use 29 August 2006]

Moerdyk 2006 http://www.bizcommunity.com/ 20 Apr


Moerdyk C 2006 Real censorship threat to media [Found on internet] http://www.bizcommunity.com/Article/196/15/11265.html [Date of use 20 April 2007]

Quintal 2006 Pretoria News http://www.iol.co.za/ 3 Nov


Quintal A “Government says it will not censor media” Pretoria News 2 25 Aug 2006 [Found on internet] http://www.iol.co.za/general/news/newsprint.php?art_id=vn20060825010510657C183018 [Date of use 3 November 2006]

Quotations 2007 http://www.quotationspage.com/ 20 Apr


Quotations 2007 Soren Kierkegaard: 1813-1855 [Found on Internet] http://www.quotationspage.com/quotes/Soren_Kierkegaard/ [Date of use 20 April 2007]

SANEF 2006 http://www.sanef.org.za/ 12 Nov


SANEF 2006 Statement by SANEF / FXI / MISA-SA on Media Censorship planned by Government [Found on internet] http://www.sanef.org.za/press_statements/919812.htm [Date of use 12 November 2006]

Schroeder 2003 http://www.iol.co.za/ 5 Dec


Schroeder F “Paedophile Santa goes to jail for 5 years” [Found on internet] http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20030625043909300C647802 [Date of use 5 December 2006]

List of URLs

ASA http://www.asasa.org.za

BCCSA http://www.bccsa.co.za

Press Ombudsman http://www.ombudsman.org.za



List of abbreviations

ASA Advertising Standards Authority of South Africa

BCCSA Broadcasting Complaints Commission of South Africa

ch chapter(s)

cl clause(s)

FPB Film and Publication Board

FXI Freedom of Expression Institute

ISP Internet Service Provider(s)

ISPA Internet Service Provider Association of South Africa

IPI International Press Institute

MISA Media Institute of Southern Africa

par paragraph(s)

s section(s)

SANEF South African National Editors’ Forum

sch schedule(s)

SAHRC South African Human Rights Commission



URL Uniform Resource Locator

* BA (Law) LLB LLM. Senior Lecturer, University of Stellenbosch. Chief Examiner: Film and Publication Board.

*** Quotations 2007 http://www.quotationspage.com/ 20 Apr.

1 Films and Publications Amendment Bill, B27—2006.

2 Films and Publications Act 65 of 1996, as amended, hereafter the Act.

3 Joint statement on media censorship planned by government, see SANEF 2006 http://www.sanef.org.za/ 12 Nov.

4 Leon 2006 SA Today http://www.da.org.za/ 29 Aug.

5 Harber 2006 The Harbinger http://www.big.co.za/ 9 Nov. One of the comments posted on the site begs the question as to “[w]hy is this amendment introduced now, when the president is somehow implicated in the arms deal? This will prevent the freedom of press! I hope it will be rightfully debated and failed in parliament or else our country is headed for doom!” Another describes the amendments as “an expensive, time wasting joke.”

6 See the Department of Home Affairs Publication of Explanatory Summary of the Films and Publications Amendment Bill 2006, published in GG 29169 of 2006.

7 Gigaba 2006 Sunday Times 36.

8 Quintal 2006 Pretoria News http://www.iol.co.za/ 3 Nov.

9 Khumalo v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771) at par [22].

10 The Constitution of the Republic of South Africa 1996, hereinafter the Constitution.

11 The importance of this right has been emphasised by the Constitutional Court on numerous occasions. See eg South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) (1999 (6) BCLR 615) at par [7] where O’Regan j stated that “[f]reedom of expression is an important right in our Bill of Rights. It lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.”

12 For a more comprehensive study of censorship in South Africa, see Merrettt Culture of Censorship. See also par [6]–[16] of Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609).

13 Read with s 14 of the Customs Act 10 of 1872, s 38 of the Customs Consolidation and Shipping Act 13 of 1899 and s 3 of the Customs Management Ordinance 23 of 1902.

14 S 7.

15 S 3.

16 De Villiers cj in R v Marais (1886) 6 SC 367 at 370.

17 R v Bungaroo (1904) 25 NLR 28 at 29-30. In 1905 in R v Hardy (1905) 26 NLR 165 a Natal Court convicted an editor responsible for an obscene newspaper report of public indecency. The newspaper published an article describing “immoral practices” between “native” men and “European” women. The court acknowledged at 170 that the offence was “not capable of very accurate definition” but applied a test derived from R v Hicklin (1868) LR 3 QB 360 at 371 —also known as the Hicklin-test— of “whether the tendency of the matter … is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall". The court furthermore noted at 171 that “(i)t would be impossible to deny that in the works of many writers of ancient times, as well as in those of standard authors of a later period, passages of an extremely indecent and obscene character are to be found, the publication of which in the newspaper press of the present day would be an offence against good morals amounting to public indecency.”

18 Entertainments (Censorship) Act 28 of 1931.

19 S 2.

20 S 5(1). Such scenes or acts included impersonation of the King and ridicule of the military; death; nudity; passionate love scenes; controversial or international politics; antagonistic relations between capital and labour; pugilistic encounters; and scenes of intermingling between Europeans and non-Europeans. In 1953 the court in R v W 1953 (3) SA 52 (SWA) found a figurine of a naked boy urinating, an alleged reproduction of the famous street fountain in Brussels, to be indecent. The court held that it was very likely that South Africans would regard as indecent what the people of Brussels are said to have tolerated for more than 300 years.

21 S 21(1)(f).

22 The Commission of Enquiry in Regard to Undesirable Publications (also known as the Cronjé Commission).

23 Merrettt Culture of Censorship 35.

24 Merrett Culture of Censorship 35.

25 Merrett Culture of Censorship 36.

26 Merrett Culture of Censorship 60.

27 Merrett Culture of Censorship 60. Under the act, the import of publications costing less than 50c was prohibited, apparently in an attempt to curtail pornographic publications. S 6(1)(c) of this Act described indecency and obscenity as: “[S]exual 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 poses, nudity, scant or inadequate dress, divorce, marital infidelity, adultery, illegitimacy, human or social deviation or degeneracy, or any other similar related phenomenon". In interpreting these concepts, the court in S v R 1964 (1) SA 394 (T) at 395A–B found that the human body, if exposed, could by no means be called indecent. The circumstances and manner in which the body was exposed, had to be taken into consideration. If, however, there was anything suggestive in a posed photograph or if it showed a depiction of sexual intercourse or sexual solicitation, it could be concluded that the intention was to produce an indecent picture. In the matter of Republican Publications (Edms) Bpk v Raad van Beheer oor Publikasies 1973 (4) SA 549 (D) the court set aside the prohibition of the publication of a photographic article about a stripdancer. The woman’s private parts were not visible in the photographs and only a small part of her breasts were shown. As the court found that neither young schoolboys would be sexually aroused, nor would young girls be persuaded to join the world of stripdancing, the article was not per se immoral or undesirable.

28 Once described by Nobel laureate, Nadine Gordimer, as the “octopus of thought surveillance.” Merrett Culture of Censorship 79.

29 At the time the Interim Constitution (Act 200 of 1993), followed by the Constitution of the Republic of South Africa, 1996.

30 Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC).

31 Indecent or Obscene Photographic Materials Act 37 of 1967. The section provided as follows: “Any person who has in his possession any indecent or obscene photographic matter shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand rand or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”

32 The Constitution of the Republic of South Africa Act 200 of 1993. Didcott j inter alia found that the relevant section was an infringement on a person’s right to privacy, stating at par [91] that: “What erotic material I may choose to keep within the privacy of my home, and only for my personal use there, is nobody's business but mine. It is certainly not the business of society or the State. Any ban imposed on my possession of such material for that solitary purpose invades the personal privacy which s 13 of the interim Constitution (Act 200 of 1993) guarantees that I shall enjoy.”

33 Per Langa j (as he then was) at par [99]. Mokgoro j also dissented from Didcott j’s view by expressing her opinion on the matter at par [65] of the judgment: “I must agree with his conclusion that the 1967 Act unreasonably and unjustifiably infringes the constitutional right to privacy. I would, however, respectfully part company from Justice Didcott to the extent that any part of his opinion might be read to suggest that it is not in any circumstances the business of the State to regulate the kinds of expressive material an individual may consume in the privacy of her or his own home. It may be so that, as in England, a ‘South African's home is his (or her) castle’. But I would hesitate to endorse the view that its walls are impregnable to the reach of governmental regulation affecting expressive materials. I therefore associate myself with the caveat expressed by Justices Langa and Madala regarding Justice Didcott's opinion.”

Case n 30 supra at par [105], emphasis added.

34 Sachs j at par [108] came to the conclusion that this obscurity could lead to the prohibition of possibly three-quarters of coffee-table art books and even many tastefully illustrated copies of the Bible or Shakespeare.

35 Hansard 19 March 1999 Col 2887-2888. During the Parliamentary Debate on the amendments to the Act, the Deputy Minister of Home Affairs emphasised that the Act was not one of censorship, but rather one that intends to protect children from harm.

36 Hansard 19 March 1999 Col 2887-2899.

37 See also s 2 of the Act which states that the objects of the Act shall be to “(a) regulate the creation, production, possession and distribution of certain publications and certain films by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had in particular to the protection of children against sexual exploitation or degradation in publications, films and on the Internet; and (b) make the exploitative use of children in pornographic publications, films or on the Internet, punishable.”

38 The constitutionality of certain provisions of the Act has been tested in the matter of De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA 406 (CC) (2003 (12) BCLR 1333). (See also the High Court decisions reported at 2002 (6) SA 370 (W) and 2003 (3) SA 389 (W) (2003 (1) SACR 448; 2002 (12) BCLR 1285).) The applicant in this case, a film producer, had unsuccessfully challenged the constitutionality of certain provisions of the Act in the High Court and consequently appealed directly to the Constitutional Court. He contended that the provisions of s 27(1) of the Act (which prohibits the creation, production, importation or possession of child pornography), read with the definition of child pornography in s 1 of the Act, limited the right to privacy, freedom of expression and equality. He further averred that the limitation was not justifiable as it was overbroad and vague. The court found that the State had established three legitimate objectives which the limitation imposed by s 27 of the Act aimed to serve, namely, protecting the dignity of children, stamping out the market for photographs made by abusing children and preventing a reasonable risk that images will be used to harm children. These important legislative purposes, together with the legislative safeguards provided, as well as the difficulty of legislating in this area at all, outweighed the relatively narrow infringement of expression. With regard to the argument that the limitation imposed by s 27 was overbroad, the court considered the exemption procedure set out in s 22 of the Act. S 22 permits a person who wishes to possess or otherwise deal with child pornography in breach of s 27 to apply to do so to an executive committee of the Board. Such exemption may be granted should the Board have “good reason to believe that
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