Johannesburg - Amendments to the Films and Publications Act were declared unconstitutional by the Pretoria High Court on Tuesday.
The court ruled in favour of Print Media South Africa (PMSA) and the South African National Editors Forum (Sanef), which brought the review application, arguing that the act would lead to self-censorship, lengthy delays in publication, and an unjustifiable incursion on basic rights of freedom of expression.
According to Sanef, the amended act placed onerous pre-publication vetting requirements on any publication that intended to depict sexual conduct that violates or shows disrespect to the human dignity of any person, degrades a person or constitutes incitement to harm, violence or advocacy of hatred.
Mainstream newspapers were exempted.
Counsel for PMSA and Sanef argued that the act defined sexual conduct very broadly.
This would require pre-screening by the films and publications board, of a wide range of mainstream magazines and other publications that might describe such sexual conduct without condoning it.
Judge Mathopo agreed with the two media bodies that delays in publication caused by pre-screening would erode the currency of news, and amount to an unjustifiable limitation on a basic constitutional right.
“It is probably no exaggeration to say that in all probability democracy cannot survive in the absence of freedom of expression,” said Mathopo.
“I have no doubt that timeous communication is essential in a democratic system, for absent the right to receive, impart and give expression to information and ideas, there can be no meaningful talk or debates of liberal democracy.”
Mothapo ruled that a system of prior restraint, based on executive approval, would be a deterrent to freedom of expression and would cause damage to fundamental democratic rights.
“I have no doubt that there are less restrictive means of protecting children other than the invasion of free speech,” he said.
Mothapo concluded there was no basis in law for treating magazines and mainstream newspapers differently.
Welcoming the judgment, Sanef said it was “an important contribution to the growing body of law that recognises and protects the centrality of freedom of expression in general, and freedom of the press in particular to our democracy”. - Sapa