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

The first applicant published the magazine Hustler and other adult material, while the second applicant operated as a franchisee distributing the first applicant’s products. Their publications were banned under the Publications Act 42 of 1974, and police raids resulted in the seizure of their stock. This occurred despite concessions by the Minister of Home Affairs that aspects of the Act were constitutionally flawed and were under review for repeal. The applicants sought protection against further enforcement and applied to the Transvaal Provincial Division for a referral to the Constitutional Court under section 102(1) of the interim Constitution to determine the constitutional validity of the Publications Act and the Indecent or Obscene Photographic Matter Act 37 of 1967. Daniels J refused the referral, holding that section 102(1) did not permit a referral where the constitutional issue was the only issue in the case. The applicants appealed to the Constitutional Court.

Leave to appeal was granted; the appeal was upheld; the refusal of the referral by the Transvaal Provincial Division was set aside and replaced with an order referring the constitutional issues to the Constitutional Court. The Court nevertheless declined to grant a declaratory order on the constitutional validity of the impugned legislation.

The case is a leading authority on constitutional procedure under the interim Constitution, clarifying that provincial and local divisions must refer matters to the Constitutional Court even where the only issue is a constitutional one within its exclusive jurisdiction. It affirms access to constitutional justice and prevents procedural barriers from frustrating litigants’ section 7(4) rights. The judgment also reinforces the principle that constitutional courts should avoid deciding abstract or academic issues.