A new Bill before parliament, if passed, will bring South Africa in line with world standards of censorship.
Gaye Davis reports
CLAUSES barring hate speech or acts likely to incite racial hatred have been erased from a new censorship Bill which sweeps away the draconian rules of the past, allowing adults to think for themselves.
If the proposed Film and Publication Bill gazetted for comment last Friday becomes law, racist acts and utterances will be left to the courts to deal with.
Instead, the Bill focuses on sex, violence, child pornography — and material that could offend religious
While ending the old Publication Act’s obsession with ensuring recognition of “the constant endeavour of the population of the Republic of South Africa to uphold a Christian view of life”, new provisions affording all religions equal protection come in.
The Bill was drafted by a 10-member task group appointed by Home Affairs Minister Mangosuthu Buthelezi, which considered submissions ranging from Nice and Naughty magazine to the Women’s Christian Temperance Union.
Guiding the philosophy of the new Bill are the fundamental rights enshrined in the interim constitution — especially people’s right to freedom of expression, religion and opinion.
Its preface says: “South Africa has moved into a new, free democratic order and it would be in conflict with the spirit of this order to unreasonably limit artistic creativity and freedom of choice of adults.”
But task group leader and former Publications Appeal Board chief Professor Kobus van Rooyen this week cautioned that much would depend on communities “sharing a common responsibility with the state”.
“The police are still of the opinion that they won’t act unless they get a complaint. They expect communities to be much more sensitive and vigilant,” he
“A key post would be that of co-ordinator — user- friendly, not a super-censor — who would help inform the public of their rights and co-ordinate investigations and prosecutions.”
The Bill was “not that much more liberal”, he said. “It allows for the sale of hard porn but (the sellers) must be licensed and here communities would play a role in such decisions. Nudity is OK but no erections — unless it’s art.
“Those who want it (porn) will be able to find it. If it’s well-controlled, but not in a draconian fashion, then people won’t feel they’ve been swamped. Availability will be greater but it won’t be pushed into people’s faces.”
Bona fide works of art get protection, although age restrictions, where necessary, are provided for. Where these rights are limited, the basis for doing so lies in the need to protect children or maintain peace, where violence is a risk. But the emphasis falls on regulation, rather than prohibition — by way of age restrictions, warning stickers and specially licensed outlets barring entry to children under 18.
Hate speech is not included.
A legal expert said legislation prohibiting acts likely to foment racial hostility had been on South African statute books since 1927. “But these laws have been used, virtually without exception, against anti- apartheid opponents of the government,” he said.
“Hate speech is a complex issue and in South Africa, which is predicated on racial politics, even more so. Extremely racist views are held in this country — the question is, to what extent does one proscribe the people’s ability to disseminate them?” This will now be up to the courts to decide.
Task group member and director of the Directorate of Publications, Dr Braam Coetzee, said: “Including it (hate speech) opened a minefield of possible subjectivity — we wanted to avoid putting the board in the position of becoming politicised. But it was also argued whether the reconciliation achieved in the government of national unity so far was not too precious to risk by people stirring things up through publications and speeches.”
Van Rooyen said the question of including hate-speech provisions was the subject of lengthy debate.
It was decided that the film and publication board and review board envisaged by the Act should operate in a strictly non-political arena. “We have advised the government how to expand the criminal provisions which do exist should it want to strengthen them. But this law was not the right place to do it. The world over, measures to prevent the fomenting of racial hostility are in the hands of the courts.”
Cabinet members were given copies of the Bill to study in December after the task group spent four months studying systems used elsewhere in the world as well as submissions — including about 1 600 from individuals, about 280 from churches and others from women’s groups concerned about pornography’s degradation of women.
The Bill has been published for comment because of “a lingering fear” public hearings were not extensive enough — only three days were given to them, in Durban, Midrand and Cape Town.
“But we don’t want people to repeat their submissions – – they will be looked at again anyway. People must now look at the Bill to see whether or not it conforms with the rights in the constitution,” Van Rooyen said.
Pre-publication censorship will be a thing of the past if the Bill becomes law. Those being judged will have the right to put their own case.
An old provision forcing a two-year delay before any appeal will fall away and anyone unsatisfied with the review board’s decision can go to the supreme court for a final decision. Reasons for decisions will be given and will be open to public scrutiny. The public will also be involved in who gets appointed to take the
“The Bill represents a radical departure from the present legislation and an immeasurable improvement — but the proof of the pudding will be in the eating,” said a legal expert.