CCT113/11

[2012] ZACC 22

2012 (6) SA 443 (CC)

2012 (12) BCLR 1346 (CC)

Skweyiya J Majority judgment

Van Der Westhuizen J separate judgment

28 September 2012

http://hdl.handle.net/20.500.12144/3662

Application for confirmation of an order of the Johannesburg High Court: Print Media South Africa and Another v Minister of Home Affairs and Another (14343/2010) [2011] ZAGPJHC 149 (26 October 2011).

Application for confirmation of an order of invalidity striking down sections 16(1), 16(2), 16(2)(a) and 24A(2)(a) of the Films and Publications Act 65 of 1996 (Act). The sections required publishers, with the exception of registered newspapers, to submit intended publications containing sexual conduct that violates or shows disrespect for the right to human dignity, degrades a person or constitutes incitement to cause harm, to the Film and Publications Board, an administrative body, for prior approval. The exclusion of magazines from the exception afforded to registered newspapers was also challenged. Finally, a provision in the Act that criminalised failure to submit material for prior classification on the request of any person was challenged. The Court held that the prior classification system limited the right to freedom of expression in section 16 of the Constitution and was not justifiable because it did not achieve its purposes in a proportional manner and because there were less restrictive alternatives available. The Court also held that the unequal treatment of magazines compared to newspapers without justification offended the right to equality and the legality principle. Lastly, the Court held that the provision that resulted in criminalisation of the failure to submit for classification upon request of any person was a drafting error and declared it unconstitutional. The order of invalidity was thus confirmed, but for wider reasons than those of the High Court. The separate concurring judgment regarded it as necessary, in order to reach a finding of constitutional invalidity, to consider the purported vagueness and overbreadth of the impugned criteria for submission. This was necessary, the concurring judgment held, because the criteria for submission are inextricably linked to the Act’s scheme of administrative prior restraint and because judicial prior restraint would not be a constitutionally acceptable less restrictive alternative to administrative prior restraint where the criteria for submission were vague. Judgment: Skweyiya J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Maya AJ and Zondo AJ concurring). Separate concurrence: Van der Westhuizen J (Froneman J and Yacoob J concurring).