Tim Fletcher, national practice head of the Dispute Resolution practice and Deshni Naidoo, an associate in the practice represented Print Media SA and the South African National Editors Forum in a constitutional challenge to certain provisions of the Films and Publications Act (No 65 of 1996) (“Act”) introduced by the Films and Publications Amendment Act (No 3 of 2009). Advocates Gilbert Marcus SC and Steven Budlender were on brief for the applicants. The matter was opposed by the Minister of Home Affairs, Films and Publications Board and an amicus curiae, the Justice Alliance of South Africa.
The impugned provisions of the Act sought to introduce a system of pre-publication classification for various forms of publications. The system dictated that whenever a publication fell within the requirements of section 16(2) of the Act, that publication had to be submitted to the Films and Publications Board for classification before it could lawfully be distributed in South Africa. The manner in which section 16(2)(a) of the Act had been drafted meant that large numbers of publications dealing with matters of substantial public interest would fall within the ambit of that section. These publications would accordingly have to be submitted to the Films and Publications Board for classification before they could be distributed. The applicants argued that not only was this entirely unwarranted and unjustified, but it would also have severe and highly negative consequences for the publications concerned as well as the public. In addition, various provisions of the amended Act granted an exemption to newspapers that are subject to a self-regulatory mechanism, but failed to grant magazines the same exemption.
The Constitutional Court held in its majority judgment that held that the requirement of pre-publication classification limited the right to freedom of expression which was vital to a democracy. The Court held that the limitation was not justifiable as pre-publication classification did not satisfactorily achieve its purposes in a proportional manner and that there were less restrictive alternatives for achieving the Act's purpose of controlling certain publications. For example prior restraint through the courts (i.e. an interdict) could achieve the purpose by placing less severe restrictions on the right to freedom of expression. The Court also held that the unequal treatment of magazines compared to newspapers offended the right to equality and the legality principle without justification.
The Court accordingly ordered, inter alia, that:-
- section 16(2)(a) of the Film and Publications Act 65 of 1996 was declared constitutionally invalid and is severed;
- section 16(1), 16(2) and 24A(2)(a) of the Films and Publications Act 65 of 1996 were declared constitutionally invalid to the extent that they did not apply to magazines;
- the words "or magazine" were to be read in after the word "newspaper" in section 16(1), 16(2) and 24A(2)(a);
- section 24A(2) was declared constitutionally invalid to the extent that it is made applicable to section 16(1) of the Act; and
- the first and second respondents were to jointly and severally pay the costs of the applicants, including the costs of two counsel.