Illegal yesterday, legal today

We present, courtesy of the Rand Supreme Court, the advert we were prevented from printing three weeks ago:

For the benefit of those readers who were mystified by our blank centrespread three weeks ago, we present the censored contents: The advertisement above. Shocking? Hardly. But police were on stand-by on the night of January 8, ready to seize the newspaper if the advertisement appeared.

Today the advertisement is legal, thanks to a ruling in the Rand Supreme Court which threw out a regulation which placed a near blanket ban on reports or advertisements dealing with banned organisations. There is still a glimmer of hope …

* WE REGRET THAT THERE IS NO ACCOUNTING FOR TOMORROW

Press can report on ANC — under old restrictions
Newspapers can once again report the actions and strategies of the African National Congress, following a Rand Supreme Court ruling yesterday which struck out a police order imposing harsh restrictions on banned organisations. But statements which encourage support for an unlawful organisation remain illegal, the court ruled.

Judge H Daniels’s ruling came at the end of an urgent application brought by the largest English newspaper groups, Saan and Argus. The judgement, lawyers said, means newspapers are effectively back where they were before the Commissioner of Police issued an order three weeks ago imposing new restrictions on unlawful organisations: permanent legislation on the statute books still restricts reporting on bodies like the ANC.

The application contested an order and notice issued by Commissioner of Police PJ Coetzee on January 8; one day after at least 11 newspapers carried full-page advertisements calling for the unbanning of the ANC.

Daniels struck out the order — which prohibits newspapers from carrying advertisements or reports promoting banned organisations and forbids articles explaining or justifying the actions, policies or strategies of banned organisations — on the grounds that Coetzee was not empowered to issue orders for the entire country.

The judge said it was not necessary for him to rule on the other arguments advanced by Denis Kuny, SC, for the applicants. But Daniels indicated he was not convinced the Emergency’s security regulations could be utilised to censor the press. He said a new set of press regulations were promulgated last December specifically to deal with censorship.

“It seems inconsistent with the scheme to extend to the Commissioner the power to obtain some form of control of the media, when the State President has promulgated regulations to deal specifically with censorship.” He added that the security regulations might be wide enough to cover this.

Although the order was struck out, Daniels upheld the validity of the notice issued by the Commissioner on the same day. The notice extended the definition of a “subversive statement” to include statements which “support any organisation which is an unlawful organization”.

He said the question of whether banned organisations’ objectives were legitimate or “laudable”, as Kuny had submitted, was of no consequence. There was no evidence that the Commissioner of Police had acted in bad faith when issuing the notice.

The judge stressed he had not been requested to rule on the validity of the Emergency regulations, or the Emergency censorship regulations imposed in December last year which defined “subversive statements”. Although the advert calling for the unbanning of the ANC gave rise to the order and subsequent urgent application, there was no ruling on the advertisement itself.

However, as the judge defined support as being active support, rather than mere tolerance, lawyers believe it is again legal to publish the advert. At the outset of his judgement, Daniels rejected Van der Byl’s contention that the court was prevented from inquiring into the validity of the Commissioner’s Notice and Order by an “ouster clause” in the regulations.

He was the 17th judge to make this finding Daniels ordered the Minister of Law and Order and the Commissioner of Police to pay Saan and Argus‘s costs, including those of two counsel. He ruled that costs for the first day of the trial, in which the matter was post-poned, would be paid by the applicants and respondents themselves.

  • Today’s judgement followed more than a week of speculation that the Commissioner of Police would draft new regulations to close gaps in the January 8 order. Legal experts yesterday said they believed it would be difficult for the Commissioner to re-regulate the order in the light of Daniels’s intimation that the appropriate place for censorship regulations was in the Emergency’s press — and not security — regulations.

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