J T Publishing (Proprietary) Limited and Another v Minister of Safety and Security and Others

The first applicant published a magazine called Hustler and other publications and videotapes. The second applicant was a member of a close corporation that held a franchise to trade under the name and sell the first applicant's products. Issues of the magazine were banned under the Publications Act (42 of 1974) and police raided premises of franchisees, seizing merchandise. Despite the Minister of Home Affairs conceding that parts of the statute were constitutionally flawed and a bill was being prepared to repeal and replace it, authorities refused to suspend enforcement. The applicants sought protection through litigation and ultimately applied to the Transvaal Provincial Division for a referral to the Constitutional Court to rule on whether the Publications Act and the Indecent or Obscene Photographic Matter Act (37 of 1967), or certain sections, were constitutionally valid. Daniels J dismissed the application, holding that the referral was incompetent under section 102(1) of the Constitution because there was no underlying case or lis before the court other than the referral application itself. The applicants appealed to the Constitutional Court.

• Whether a referral under section 102(1) of the interim Constitution is competent when the only issue before the court is the constitutional issue sought to be referred to the Constitutional Court
• Whether section 102(1) requires an underlying substantive case beyond the referral application itself
• Whether the court should exercise its discretion to grant a declaratory order on the constitutional validity of the Publications Act and the Indecent or Obscene Photographic Matter Act in circumstances where both statutes have been repealed and replaced
• The proper allocation of costs where an application for referral is initially refused but succeeds on appeal

The application for leave to appeal was granted. The appeal was allowed and the order of the Court below dismissing the application for a referral with costs was set aside. The Court granted the referral application and referred the two constitutional issues to the Constitutional Court, but declined to give any ruling on those issues in light of the supervening repeal of both statutes. The second and third respondents were directed to pay: (i) the costs occasioned by their opposition to the referral application in the court below, and (ii) the costs of the appeal and the application for leave to appeal, including the costs of two counsel at each stage.

A referral under section 102(1) of the interim Constitution is competent even where the only issue before the provincial or local division of the Supreme Court is the constitutional issue sought to be referred to the Constitutional Court. Section 102(1) applies to 'any matter' containing an issue within the Constitutional Court's exclusive jurisdiction that may be decisive of the case, whether that issue stands alone or is accompanied by other issues. The constitutional issue is 'decisive of the case' even when it constitutes the entirety of the case. This interpretation is supported by section 102(17), which specifically provides for appeals against refusals to refer 'where the only issue raised is a constitutional issue within the exclusive jurisdiction of the Constitutional Court'. Reading section 102(1) together with section 7(4)(a), which entitles persons to apply to a competent court for a declaration of rights when constitutional rights are infringed or threatened, there is no basis to differentiate between cases where constitutional issues are sole issues and those where other issues accompany them.

The Court observed that in neither this case nor the earlier Case v Minister of Safety and Security had counsel contended that censorship of obscene material was always and in principle repugnant to the Constitution. All accepted that production and dissemination of truly egregious material with pernicious effect could justifiably be prohibited in the public interest, and this was acknowledged in the earlier judgment. The Court emphasized that the target of attack was not censorship in general but the particular statutory scheme and its capacity to hit both obnoxious and innocuous material indiscriminately. The Court also noted that a declaratory order is a discretionary remedy and that courts should adhere to the well-established policy of not deciding points that are merely abstract, academic or hypothetical. The Court suggested that such an order might not even constitute 'appropriate relief' under section 7(4)(a), though it did not need to decide this point. The Court indicated this general rule should be subject to exceptions in special circumstances, particularly those fundamental to proper constitutional adjudication, but found no such circumstances present in this case. The Court also commented on the scope of evidence encompassed by the proviso to section 102(1), noting the question remained undecided whether it envisages testimony pertaining to the issue about to be referred, testimony relating to other issues furnishing the setting, or both.

This case established important principles regarding the referral procedure under section 102(1) of the interim Constitution. It clarified that a referral to the Constitutional Court is competent even where the constitutional issue is the only issue in the matter before the High Court, and that section 102(1) does not require an underlying substantive dispute beyond the constitutional question itself. The judgment confirmed that litigants can approach a High Court solely to obtain a referral on constitutional issues within the Constitutional Court's exclusive jurisdiction. The case also illustrates the Court's adherence to the principle that it will not decide abstract, academic or hypothetical questions even where it has jurisdiction, and demonstrates the application of this discretionary principle where legislation has been repealed and replaced during the pendency of proceedings. The case is important for understanding the relationship between section 7(4) (the right to approach a competent court for constitutional relief) and section 102 (the referral procedure).