Print Media South Africa and Another v Minister of Home Affairs and Another

Print Media South Africa (representing various print media associations) and the South African National Editors' Forum challenged provisions of the Films and Publications Act 65 of 1996, as amended by the Films and Publications Amendment Act 3 of 2009. The impugned provisions were sections 16(1), 16(2), 16(2)(a) and 24A(2)(a), which established a system of administrative prior classification requiring publishers to submit certain publications depicting sexual conduct for classification before public distribution. Failure to submit attracted criminal penalties of up to five years' imprisonment. Bona fide newspapers adhering to the Press Ombudsman's code were exempt, but magazines were not. The High Court declared the provisions unconstitutional and referred the matter to the Constitutional Court for confirmation. The applicants had previously made unsuccessful submissions to Parliament opposing the amendments.

• Whether the administrative prior classification scheme in section 16(2)(a) unjustifiably limits the right to freedom of expression under section 16 of the Constitution
• Whether the criteria for submission ('contains sexual conduct which violates or shows disrespect for human dignity, degrades a person, or constitutes incitement to cause harm') are unconstitutionally vague and overbroad
• Whether the exclusion of magazines from the exemption afforded to bona fide newspapers violates the right to equality and the principle of legality
• Whether section 24A(2)(a) is constitutionally defective for referring to section 16(1) instead of section 16(2)
• Whether less restrictive means exist to achieve the legislative purposes of consumer advice, protecting children from harmful material, and banning child pornography

The Constitutional Court granted condonation to the respondents and second amicus curiae for late filing. The Court confirmed the High Court's declarations of constitutional invalidity with modifications: 1. Section 16(2)(a) was declared constitutionally invalid and severed (not merely amended by reading-in as the High Court ordered). 2. Sections 16(1), 16(2) and 24A(2)(a) were declared constitutionally invalid to the extent they excluded magazines, with the words "or magazine" read in after "newspaper". 3. Section 24A(2) (not only 24A(2)(a)) was declared constitutionally invalid to the extent it applied to section 16(1), with remedial reading-in and severance to make it apply to section 16(2) instead. 4. The respondents were ordered to pay the applicants' costs, including costs of two counsel.

1. Administrative prior classification of publications constitutes a limitation on the right to freedom of expression under section 16 of the Constitution by transferring control from the right-bearer to an administrative body and restricting expression before it enters the public domain. 2. The expression of sexual conduct falls within the protection of section 16(1) of the Constitution, as it does not fall within the excluded categories in section 16(2) (propaganda for war, incitement of imminent violence, or advocacy of hatred constituting incitement to cause harm). 3. While prior restraint may occasionally be necessary in serious cases where there is substantial risk of grave injustice, the administrative prior classification scheme in section 16(2)(a) is not a justifiable limitation under section 36 of the Constitution, as less restrictive means exist to achieve the Act's purposes. 4. Less restrictive alternatives include: (a) court interdicts following established legal requirements; (b) voluntary submission for classification under section 16(1); and (c) existing independent criminal prohibitions on child pornography and exposure of children to explicit sexual conduct. 5. Differential treatment between bona fide newspapers and magazines that both adhere to the Press Code and fall under the Press Ombudsman's jurisdiction is irrational and violates the principle of legality and the right to equality before the law. 6. Section 16(2)(a) is severable from the Act without undermining the Act's purposes, as child protection and prohibition of child pornography are achieved through independent provisions (sections 24B and 24A(4)(b)). 7. (From the concurring judgment) The vagueness and overbreadth of criteria in section 16(2)(a) are not peripheral but integral to its unconstitutionality; prior restraint based on vague criteria would be unconstitutional whether implemented through administrative or judicial mechanisms.

1. The Court observed that freedom of expression lies at the heart of democracy and is closely linked to human dignity, enabling individuals to challenge discrimination, poverty and oppression. It is the lifeblood of an open and democratic society. 2. The Court noted that under administrative prior restraint systems, administrative bodies are more likely to restrict publications when classifying upfront than when taking post-publication action, due to reduced burden on resources and the body's mandate and incentive to classify. 3. The judgment acknowledged that freedom of expression must be balanced against other rights and values such as human dignity, equality, privacy and the best interests of children, and that it is not absolute. 4. The Court commented on South Africa's history of censorship during apartheid, noting that vague criteria like "indecent," "obscene," "offensive" and "harmful to public morals" were central to apartheid-era censorship and served as tools to sustain political, cultural and religious dominance. 5. The judgment observed that classification provides a means of consumer advice and informed choice, which, while perhaps of lesser significance than child protection, has some value in a democratic society. 6. The Court noted that no timeframe is stipulated in the Act for the classification process, which compounds the limitation on freedom of expression. 7. Van der Westhuizen J's concurring judgment expressed the view that language and visual images can be used not only to communicate but also to injure, intimidate and severely harm vulnerable groups and individuals, acknowledging the tension between freedom of expression and equality concerns. 8. The concurring judgment observed that expressions of sexual conduct are "remarkably similar" to criteria used in apartheid-era censorship legislation. 9. The Court expressed the principle that the mainstay of law is to encourage lawful conduct rather than to guarantee lawfulness by restricting conduct altogether, and that publishers who choose not to seek certainty about lawfulness must bear the risks attendant upon the decision to publish.

This case is a landmark decision on freedom of expression in South Africa, establishing important principles regarding prior restraint of publications. It confirms that administrative prior classification systems constitute severe limitations on freedom of expression and are only justifiable in narrow circumstances. The judgment emphasizes that freedom of expression is not limited to lofty or inoffensive sentiments and extends to a wide range of matters, including depictions of sexual conduct (except those excluded by section 16(2) of the Constitution). The Court rejected the notion that the state's legitimate purposes (consumer advice, child protection, banning child pornography) automatically justify administrative prior restraint. The case demonstrates the high threshold for justifying prior restraint in South African constitutional law and the availability of less restrictive alternatives. The separate concurrence importantly addresses the relationship between vague criteria and prior restraint, clarifying that vague criteria cannot be remedied simply by shifting from administrative to judicial prior restraint. The judgment also reinforces the principle that differential treatment in legislation must have a rational basis. This case significantly curtails state censorship powers while preserving mechanisms to protect children and prevent publication of child pornography through alternative legal means.