The Constitutional Court on Friday upheld a High Court ruling, which found that a section of the Film and Publications Act unjustifiably limits the right to freedom of expression.
The Act enables the Film and Publications Board [FPB] to ban, restrict or allow the free distribution of various types of media.
Earlier this year the FPB rated artist Brett Murray’s controversial painting, The Spear, N16. The painting depicted President Jacob Zuma in a red and yellow palette, striking a pose reminiscent of Communist icon Vladimir Lenin, with his genitals exposed. At the time the ANC argued that the painting was an affront to Zuma’s right to dignity.
Last year, Print Media South Africa and the South African National Editors' Forum (Sanef) brought an application to the South Gauteng High Court, arguing that amendments to the Act would negatively impact media freedom.
The amendments in question would have required the media to submit entire publications – not just material that might fall foul of the law – for classification, and would impose criminal penalties for non-compliance.
The high court ruled that the amendments were invalid and unconstitutional and sought to remedy this by adjusting the wording of the Act. The matter was referred to the Constitutional Court for confirmation.
But Justice Thembile Skweyiya said that replacing certain words in the Act would not address what he termed "the fundamental unconstitutionality" of the system.
"A complete excision is the only appropriate cure," he said.
The aim of the Act is to provide consumer advice, protect children from exposure to harmful or age-inapproriate material, and to ban child pornography.
"Central to this matter is the right to freedom of expression, to be considered in the light of the government’s objective to regulate, through classification, publications that may constitute, among other things, indecent material," he said.
However, the court found that even without section the contested sections, all three of the Act's purposes would be achieved through other parts of the Act, as other sections of the Act already prohibit the publication and creation of child pornography and the exposure of children to pornography.
Skweyiya said that the respondents – the department of home affairs and the Film and Publication Board – had failed to demonstrate that the administrative prior classification system laid out in the act was constitutionally defensible.
Skweyiya said regulating freedom of expression amounts to limiting it. If the FPB placed an absolute ban on work it would extinguish the right to freedom of expression totally, and a lesser restriction would still infringe on the right, he added.
"As I see it, the free flow of constitutional protected expression is the rule and administrative prior classification should be the exception," he said. Skweyiya said a court interdict would provide a less restrictive alternative to achieving the same ends as prior classification. He added that the task of adjudicating legal rights should fall to a court, and not to an administrative body.
"The case law recognises that an effective ban or restriction on a publication by a court order even before it has 'seen the light of day' is something to be approached with circumspection and should be permitted in narrow circumstances only," he said.
In a concurring judgement, Justice Johann Van Der Westhuizen said he believed that one of the contested sections was constitutionally invalid because it allows the FPB to restrain publications based on "vague and overly broad criteria".
For example, while the right to human dignity is recognised by the Constitution, the criteria that disallows the degrading or disrespecting of a person was open to different interpretations. Van Der Westhuizen said these concepts had a much lower standard than the concept of a violation or infringement of rights.
The state and the FPB were ordered to pay costs.