Censorship under the new Constitution is to face its first major challenge as Hustler magazine loses patience with the Publications Control Board’s approach to what may or may not be displayed, reports Justin
South Africa’s dinosaur censorship legislation is to face its first challenge in the Constitutional Court when Hustler magazine contests the banning of its May edition. The move by Hustler comes soon after the Publications Appeal Board (PAB) declined to overturn the bans imposed by the Directorate of Publications (DoP) on 13 publications last week.
Hustler’s lawyer Mike Snoyman said the publishers are to contest the ban in the supreme court later this month, and said there was little doubt that the matter would be passed to the Constitutional Court.
The majority of the banned publications are imported, and it is unlikely that their publishers will engage South African lawyers to take the matter further.
The latest wave of censorship has been interpreted as a rearguard action by a body which will not exist in its present form for much longer. New draft legislation on censorship is currently being circulated for public comment and is likely to be passed through parliament by the end of the year. However, cases such as that being brought to the Constitutional Court could see specific sections of the existing legislation thrown out before the new laws are passed. Constitutional Court decisions will also influence the final shape of the new act.
While the DoP maintains that it is still duty-bound to enforce the present laws, a wide body of opinion holds that the present laws will not stand up to the free speech provisions in the constitution.
It is also widely felt that the PAB and the DoP are continuing to operate in order to justify their own existence. While the DoP supposedly only act in response to complaints from the public, Snoyman claims that the censors “procure their own complaints”.
The present Publications Act allows for an element of discretion on the part of the censors.
According to Director of Publications Dr Braam Coetzee, “the censors ask themselves whether a reasonable, unbiased, objective person would be able to tolerate other members of the community reading, seeing or hearing the material.”
Coetzee says it is difficult to pinpoint exactly what is still unacceptable, but mentions “visual depictions of the sexual act, erect sex organs, women engaging in fellatio with men, cunnilingus, or the ejaculation of seed” as some of the images that would still be frowned upon by a reasonable, unbiased and objective person.
Censors are still appointed by the President on the recommendation of the Minister of Home Affairs. The PAB is still dominated by the same interests as in apartheid days: its 17 members include six clergymen and retired clergymen — five of them from Calvinist churches, and the sixth a Methodist. Ten of the 17 are white. The academics on the board are predominantly from Afrikaans institutions.
The new draft legislation provides for public input in the appointment of censors, as was the case with the appointment of SABC board members and Constitutional Court judges. The Freedom of Expression Institute has welcomed this aspect of the draft bill, but expressed concern that the bill is vague about how the public input is to be made.