On freedom of expression and the censorship of magazines

When Chief Justice Mogoeng Mogoeng was nominated to that position, it was revealed that he happened to be a pastor in a Church that propagated hatred against certain segments of society and also espoused views that were so bizarre and so blatantly untrue that it would be difficult for a reasonable person of moderate intelligence not to conclude that the Church is run by a bunch of money-grabbing charlatans.

Although some questions were asked about his membership of this Church (whose doctrine might even be more bizarre than, say, the doctrine of the Dutch Reform Church, where a decision was recently taken that believing in the Devil was optional but that dominees had the right to drive out the very Devils their fellow dominees had a right not to believe in), the members of the Judicial Service Commission (JSC) hardly gave him a grilling on issues which really mattered: his judicial philosophy and his knowledge and understanding of the Constitution and the jurisprudence of the Constitutional Court.

No one asked the nominee whether he agreed with the Justice Moseneke or Justice Mokgoro judgments in the Van Heerden case (which dealt with affirmative action in marginally different ways); or whether he agreed with Justice Sachs and O’Reagan or with Justice Skweiya in the Volks v Robinson case (dealing with the rights of unmarried long term heterosexual partners); or whether he agreed with the reasoning of Sachs in the Fourie judgment (on same-sex marriage).

Neither did anyone ask Justice Mogoeng how he would explain the difference in approaches taken by the Constitutional Court in the Mazibuko case (dealing with  an unsuccessful challenge to the installation of pre-paid electricity meters) and the Joseph case (in which the court declared invalid the cutting off of electricity); or whether he believed that freedom of religion should always trump the right not to be discriminated against and if not, on what basis one should decide when the one right trumped the other; or whether he believed that the value of ubuntu (not actually found in the text of the 1996 Constitution) should sometimes trump the right of freedom of expression and if so according to what set of criteria.

(This is not a criticism of the Chief Justice. After all, he had no obvious choice in what members of the JSC would ask him and, for all I know, he might have answered all the proposed questions in an intelligent and enlightening manner. Rather it is a criticism of the members of the JSC, who has seldom asked informed and intelligent questions of candidates appearing before them.)

As a result, although we now know that our new Chief Justice does not take kindly to criticism, we have no clue whether he has the requisite knowledge of the constitutional jurisprudence of South Africa required to be a passable Chief Justice. Nor do we know whether he has the ability to analyse complex constitutional issues in a nuanced, intelligent and principled way.

Well, a test case will reach the Constitutional Court next year that might well reveal something about the values and legal abilities of our new Chief Justice (if – unlike in the Dey case – he decides to write a judgment in this case at all). Last week the South Gauteng High Court, in a judgment written by Judge R Mathopo, declared invalid recent amendments to the Film and Publications Act in the case of Print Media South Africa and Another v The Minister of Home Affairs and Another. The declaration will now have to be confirmed or rejected by the Constitutional Court.

The newly amended section 16(2) of the Film and Publications Act requires any publication – except newspapers who fall under the press ombudsman – to submit themselves to pre-publication censorship with the Film and Publication Board if their publication contains “sexual conduct” which, inter alia, violates or shows disrespect for the rights to human dignity of a person; degrades a person or advocates hatred. Sexual conduct is widely defined in the Act to include all kinds of depictions (and, seemingly, descriptions) of sexual situations. A failure to submit to pre-publication censorship would constitute a criminal offense in terms of section 24A of the Act.

Unfortunately the amendments to the Films and Publications Act were very badly drafted, to say the least, and there was some dispute between the parties about whether section 16(2) would apply to magazines and novels containing descriptions or allusions to sexual conduct or only to publications that contained actual visual depictions of said sexual conduct.

The applicants argued that it did refer to both types of depictions of sexual conduct and provided examples from various novels and magazines like Huisgenoot, Drum and You and foreign magazines like Vanity Fair, Time, and The New Yorker (only one of which I, admittedly, personally subscribe to) to demonstrate that these publications included descriptions of sexual conduct that complied with section 16(2). The High Court agreed with this view, suggesting that the publisher of widely read novels (such as Disgrace, say), and any number of other award winning works of fiction would be required to submit the work to the Film and Publication Board for pre-publication classification or censorship.  

The Minister argued that even if this was so, this did not constitute an infringement on freedom of expression because in most cases the magazines or novels would not be prohibited, but would only be properly classified, which would allow it to be sold in the correct venue under the right conditions. This would be done to protect children and to assist adults to make informed choices about what kind of depictions of sexual conduct they wished to be exposed to when they read smutty magazines like the New Yorker or smutty novels like Disgrace.

Although the judgment is not a model of clarity and coherence, it finds (as far as I can tell) that these sections would indeed impose a severe restriction on the right to freedom of expression of everyone in society. As there was no indication how long it would take before pre-publication classification would be concluded and as practical considerations might well force publishers to censor themselves before they even publish anything, the freedom of expression of everyone would be drastically interfered with by this section. This amounted to prior restraint, which was severely criticised by the Supreme Court of Appeal in the Midi Television judgment.

It is a constitutional imperative that society or public must receive current or fresh news as soon as possible. Any delay because of bureaucratic means amounts to a limitation on freedom of expression….. News is a perishable commodity and to delay even a shorter period may well deprive it of its value and interest.

Democracy cannot survive in the absence of freedom of expression and while the right is not absolute there are other, less restrictive, means that could have been used to achieve the goal of protecting children. For that reason these sections were declared unconstitutional.

The Constitutional Court will now have to decide whether the High Court was correct to give this broad interpretation to section 16(2) of the Act and whether the infringement on freedom of expression sanctioned by this section was justifiable in terms of the limitation clause.

I would imagine that for individuals and judges who strongly believed that God would judge one harshly if one allowed society to degenerate into a cesspit of pornography and gratuitous descriptions of sexual lust, this section would come as a godsend, so to speak.   For those who believed that sex was often a dirty thing, that sexual conduct should only happen between one man and one women who are married in the eyes of God and wanted to make babies for Jesus, and who believed that through prayers a baby could be brought into the world after the mother had been pregnant for five years and seven months, section 16(2) of the Act might appear rather benign. After all, one might argue that the limitation on freedom of expression imposed by this section could be justified in order to protect the broader society from the evil and disgusting depictions of sex in smutty magazines like The New Yorker.

But for individuals and judges – people like judge Mathopo and the long line of judges from the Constitutional Court – who embrace the notion that freedom of expression is at the heart of a vibrant democracy and that pre-censorship would only be justifiable in the most extreme cases, this section would clearly be overbroad and not justifiable.

It will therefore be interesting to see how the various judges of the Constitutional Court deal with this case.

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