The Film and Publication Board (FPB) has no legal jurisdiction to classify content published or broadcast by media outlets, Steve Budlender representing City Press newspaper said on Tuesday.
Submitting evidence to a hearing convened by the board in Centurion the advocate said bona fide newspapers were regulated by the Press Ombudsman.
“Where does the Film and Publication Board derive its power to charge City Press?,” asked Budlender.
At that stage the board's legal manager Sipho Risiba intervened and informed Budlender that the board was mandated to regulate online content, which included the City Press online website.
Budlender argued that the website and the newspaper were one item and both did not fall under the authority of the board.
He pointed out that even during “the old days” under apartheid's “repressive laws” newspapers were exempt from the Censor Board.
Budlender urged the board to “stick to the law” and dismiss the complaints brought to it against the paper.
“If this board goes ahead and makes a ruling on the City Press online content, it would be in violation of its own Act,” he said.
The advocate also argued that it was in the public interest for City Press as a media house to publish the portrait, without sensationalising or endorsing it.
“City Press did not create the image. They did not endorse the image but only published it as something which people need to know about,” said Budlender.
“The media is doing what is allowed to do in the Constitution, that is informing the public,” he said.
Budlender contended that in a country where children aged 16 years could have sex, get condoms and have abortions, “why would you want to restrict a portrait of a penis”?
Mmapula Fisha, chief operations officer of the board, said the five classifiers had made “opinions over the portrait” but a decision had not been reached.
The meeting will receive presentations from complainants, and legal representatives of City Press and the Goodman Gallery.
“The classification at this stage is underway but we have not made a decision. We have the views of the classifiers we dispatched to examine and classify the portrait,” she said.
Complainants were allowed to make presentations to the FPB on Tuesday.
An advocate representing the complainants told the board that the portrait should have been classified for people under the age of 18.
“Our submission is that consideration should have been made that particular age groups ought not to have had sight of the picture,” he said.
“The image has the potential to cause harm, physiological harm. It is not in the public interest to have people under the age of 18 viewing that image,” he said.
The names of all the complainants and the classifiers were not to be published in the media, Fisha announced. She said no questions would be taken from the media during the session.
City Press editor Ferial Haffajee walked into the room shortly after the meeting started. She sat behind her newspaper's lawyers, next to Adrian Basson.
Last week, the board sent a team of five classifiers to view artist Brett Murray's painting “The Spear”, which was on display at the Goodman Gallery, after several complaints.
The painting depicts Zuma with his genitals exposed. It was vandalised last Tuesday and has since been removed from the gallery, which has temporarily closed its doors to the public.
The FPB is a government entity under the jurisdiction of the department of Home Affairs. – Sapa