A full bench upheld the opinion of the Minister of Home Affairs, Stoffel Botha, that three issues of the Catholic Church-owned newspaper had contravened Emergency regulations. This empowers the minister to suspend the publication for three months or to impose a censor on it. Mr Justice BJ Curlewis, assisted by Mr Justice PJ Spoelstra and Mr Justice AM van Niekerk, dismissed the application brought by Jules Browde SC for New Nation, with costs.
The judge also gave the paper leave to appealand said the court would hear argument on whether the minister could act against the paper while the appeal was pending. He ruled that no action could be taken until this argument had been heard. The paper has until Thursday to lodge an appeal. A temporary interdict has been granted to allow an application for leave for appeal. This will ensure that the minister does not act against New Nation until this application is heard. The New Nation has been given until Thursday to file an appeal. The application was made on the grounds that the regulations were invalid, vague and unreasonable, that the minister had an ulterior motive, was acting in bad faith or had not applied his mind to the matter.
However, the judge waved aside Browde's allegations that the regulations were "vague and uncertain". He said the regulations were "abundantly clear". Browde had argued that phrases such as "fanning the revolution" were incapable of a precise definition. "Does it not give impetus to revolution already there, as flames in a fire are fanned? "The editor cannot publish anything which foments 'feelings of hostility' How can you define feelings? They are a result of emotions which are unpredictable," Browde said.
Delivering judgement Judge Curlewis said that the minister did not have to give reasons why the three issues of New Nation offend him. Applicants failed to understand they were dealing with an opinion and not a court judgement he said. "It is not our job to pass opinionon a minister's opinion," he said. He found that the State of Emergency was a political issue, "not a legal issue". He said the state president was empowered to make such regulations as he considered suitable. Browde had argued that one of the offending issues of New Nation was published before thenew Emergency media regulations were promulgated on August 28 last year. This issue could not be punishable, he said.
Justice Curlewis ruled that "it is not unfair – to tell someone what he has done innocently wrong is punishable now". Browde questioned the right of the minister to appoint an unspecified censor, giving him powers deemed fit only for a state president. Justice Curlewis said in his judgement that when the state president tells the minister to issue an order, he can appoint anyone to do "what an editor should be doing" in stopping articles which fanned revolution, promotedunrest caused hostility towards authorities or promoted the public image of "unlawful orgainsations".
"In my opinion" the judge said, "the editor should know what words mean and, if in doubt, don’t publish. There is no way of knowing exactly the opinion of the minister. "The New Nation should not publish what could be offendable. The editor will have to speculate, but speculation does not arise form a vagueness of the regulations," the judge said. Browde had argued on Monday that the presence of a censor is "clearly ultra vires. "We don't know who the man is and have to assume he'II do the job properly. The censor will have to decide what is against public safety and what is not " he said.
On the minister's suggestion that the New Nation had published "negative" statements on the police, Browde said there was no legislation which prohibited people from making derogatory statements about the police. He added that he could not see how publishing ANC president Oliver Tambo's photograph could be considered to be furthering the aims of the ANC – Karen Evans and Mzimkulu Malunga.
This article originally appeared in the Weekly Mail.
