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

The applicants, Print Media South Africa and the South African National Editors’ Forum, challenged certain provisions of the Films and Publications Act 65 of 1996 as amended by Act 3 of 2009. The impugned provisions required publishers (other than exempt newspapers) to submit publications containing specified forms of sexual conduct or other prohibited content to the Film and Publication Board for classification prior to distribution, failing which criminal sanctions applied. Newspapers were exempt from prior classification, but magazines were not. The South Gauteng High Court declared sections 16(1), 16(2), 16(2)(a) and 24A(2)(a) unconstitutional and invalid, ordered reading-in remedies, and referred the order to the Constitutional Court for confirmation.

The Constitutional Court confirmed the declarations of constitutional invalidity, subject to variation of the High Court’s order. It read in the words 'advocates or promotes' in place of 'contains' in section 16(2)(a), extended the newspaper exemption to magazines in sections 16(1), 16(2) and 24A(2)(a), and limited the scope of section 24A(2)(a) so that criminal liability applied only to publications required to be submitted under section 16(2).

This case is a leading South African authority on prior restraint and freedom of expression. It affirms that administrative systems requiring prior approval of expressive material, especially under threat of criminal sanction, are constitutionally suspect. The judgment strengthened protection for print media, clarified limits on content regulation, and reinforced the principle that statutory distinctions affecting expression must be rational and narrowly tailored.