Print Media South Africa and South African National Editors’ Forum (the Applicants); v. Minister of Home Affairs and the Film and Publication Board (the Respondents); and Justice Alliance of South Africa and Section 16 (Amicus Curiae)
Constitutional Court of South Africa
Case CCT 113/11,  ZACC 22
28 September 2012
Constitution of the Republic of South Africa, Section 16 (Freedom of Expression) and Section 28 (Children)
Films and Publications Act 1996, Sections 16, 24A and B
The applicants are non profit organisations representing a range of participants in the print media industry that campaign for media freedom. They argued that the classification scheme created under the contested provisions of the Films and Publications Act 1996 amounts to a form of prior censorship, which is a restriction on expression.
Under the scheme, persons seeking to publish certain types of material, including a publication that contains sexual conduct, were required to submit it to an administrative body for prior approval. If such approval was not granted, the person would be prevented from publishing the material, which the applicants argued is a form of prior censorship.
Issue and resolution:
Freedom of expression and censorship. The Constitutional Court ruled that the scheme under the Act is unconstitutional, but that does not affect the independent provisions of the Act which ban “child pornography” and protects children from exposure to inappropriate materials.
The Court said that prior restraint of a publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there was substantial risk of grave injustice. The free flow of constitutionally protected expression was the rule and administrative prior classification should be the exception.
At the outset the Court determined that the expression of sexual conduct is protected by the constitutional right to freedom of expression and that the prior classification requirement in the Act undoubtedly places a limitation on the right to freedom of expression. The right to freedom of expression, however, can be subject to justifiable limitation in certain cases.
However, in this case the Court held that the limitation was not justified and, therefore, was unconstitutional because of the administrative and compulsory nature of the Act’s prior classification scheme and the fact that there were less restrictive alternatives for achieving important legislative purposes. As far as the stated purposes of the act are concerned, little can be said to controvert the importance of the ban on child pornography and the protection of children from exposure to inappropriate materials. Section 28(2) of the Constitution enjoins the state to protect children, whose rights deserve special and paramount consideration in all matters affecting them. Sexual offences were perpetrated with alarming frequency and cruelty and the need for redress was immediate and crucial. Nonetheless, according to the Court it was difficult to conceive of how the contested scheme might contribute to solving that problem.
On analysis of the statutory scheme, there is little doubt that the scheme is not the exclusive means through which the Act’s purposes and its own purposes may be achieved. In fact, prohibiting the publication and creation of child pornography and the exposure of children to pornography are already governed by two other sections in the Act, which are altogether independent of the classification system.
For more information on children’s right to freedom of expression and access to information, including a selection of case law, please see CRIN’s campaign ‘Protect children, end censorship’.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.