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SERVICES SELECT COMMITTEE
12 September 2007
FILMS AND PUBLICATIONS AMENDMENT BILL [B27-B-2007]: DEPUTY MINISTER & DEPARTMENT OF HOME AFFAIRS BRIEFING
Chairperson: Ms J Masilo (ANC, North West)
Documents handed out:
Films and Publications Amendment Bill Presentation to NCOP
Films and Publications Amendment Bill [B27B-2006]
Audio recording of meeting
The Department of Home Affairs and the Deputy Minister of Home Affairs briefed the Committee on the Films and Publications Amendment Bill. The Bill aimed to clarify corporate governance issues and tighten up measures to protect children against pornography and any form of sexual exploitation. The Department was aware that technology was moving at an alarming rate but was trying to find ways to regulate the changes and the entire process. The Department described each clause in the Bill, and said what it aimed to do.
Members were concerned that there were so many changes and asked why a completely new Act had not been written. Concerns were expressed over whether appointments by the Minister would not impact upon the independence of the Board and Council, and it was explained that the Minister would not be involved in making policy decisions, and the Council would not be involved in classifications. The procedures for appointment were similar to those in other legislation. The appointment of additional board members, future advancements in technology, the penalties and monitoring, the composition of the Board, and the reasons why this legislation was administered by Home Affairs were discussed. Further questions addressed institutions not affiliated to the Standards Authority, the XX and X18 ratings, the problems of material available over the internet, in aircraft and in hotels were discussed, and international comparisons with other legislation were outlined.
Films and Publications Amendment Bill: Briefing by Department of Home Affairs (DHA)
Hon Malusi Gigaba, Deputy Minister, Home Affairs, introduced his delegation. Mr Deon Erasmus, Acting Chief Director, Legal Services, DHA, would deal with the presentation, but he wished to make some preliminary remarks. The basic purpose of the legislation was to deal with the corporate governance matters. Whilst the bill aimed to clarify the corporate governance issues it would also tighten up measures to protect children against pornography and any form of sexual exploitation. Another issue of concern was the fact that media such as the Daily Voice were constantly printing offensive photographs and recordings. The Department was aware that technology was moving at an alarming rate but its job was to find ways to regulate the whole process.
Ms Shokie Bopape-Dlomo, CEO, Film and Publications Board (FPB), gave a brief summary as to why amendments were being proposed to the Films and Publications Act (FPA). The first reason was to identify and rectify the gaps in the Act. Secondly it was in order to keep up with the sudden convergence of technology. The Bill also aimed to create certainty and clean up the Act, which had been badly written. The Bill also aimed to ensure corporate governance compliance, because FPB felt that this was important; it was time to clarify the roles and responsibilities of the key players and the board. FPB wanted to ensure that the institutions had proper resources in order to effectively carry out their mandate.
Mr Erasmus said that it was not necessary to repeat any of the purpose of the Bill. It would amend the principal Act of 1996. He proceeded to outline the clauses of the Bill, and to explain what each contained (see attached presentation)
The Chairperson remarked that this was a thick amendment Bill, which was a Section 75 Bill.
Mr B Tolo (ANC, Mpumalanga) asked why the Department had not simply drafted a new Act since there were far too many amendments in the current Bill, which made it confusing.
Mr Erasmus replied that one of the principles of legislative drafting was that Acts should be replaced only when they could not be amended properly by any other means. Working with amendments was in fact much easier than a complete new draft. The Act was not being re-written but the Bill was essentially making changes.
Mr Tolo remarked that it would be useful if the presenters had brought the principal Act to enable the Members to recognize and understand where the amendments were coming from. They should not just assume that the members were aware of the principal Act.
Ms F Mazibuko (ANC, Gauteng) agreed with this comment. She added that in most cases Members would be moved between committees, and those who were involved with the original Act were no longer with this Committee..
Mr Erasmus apologised on behalf of the Department for not bringing the principal Act. He said that they were working on the assumption that the Committee Members were aware of and had looked at the Act. He assured the Committee that this oversight would not recur.
Mr Tolo asked if the appointment by the Minister would not infringe the independence of the FPB board. This was because the Minister appointed the CEO, Chair and Vice-Chair and it would have been more appropriate, in his view, if the rest of the structure be created by these already appointed people as opposed to the Minister.
Other Members of the Committee expressed similar concerns.
Dep. Minister Gigaba replied that the mere fact that the Minister appointed the board and the CEO did not infringe on the independence because the policy decisions would be made by the Council and not the minister. The Council then appointed the classification committee, which dealt with all various classifications and the Council itself did not interfere with the classification process. Because the Council was not the classification committee there was unlikely to be any threat to the board’s independence.
Ms Mazibuko asked about the process of appointment.
Dep-Min Gigaba pointed out that Clause 7, dealing with the appointment, was the exact same procedure that was being used everywhere else to appoint boards at present. He also said that the Committee had to keep in mind that headhunting was done by the Council and the job of the Minister was to only approve or disallow, and it was rare for the Minister to disapprove of a person chosen by the Council. This could only occur under extreme cases when the person was not fit and proper person, in the sense of being of good character and morals. The reason for the fit and proper requirement was to ensure that people such as pedophiles did not get appointed to the board and sabotage its work. He did acknowledge that in some cases the pedophiles tended to be in positions of respect, but they should not be on the Board. He added that approval by the Minster was formal recognition that a person had been appointed for the job.
Ms Mazibuko asked for explanation of the process of appointing another member to the board for the sole purposes of making the deciding vote. She wanted to know if the appointed member was permanent or just temporary.
Ms Bopape-Dlomo replied that this was an operational issue. Three people were appointed as classifiers and these classified anything according to gender, racial and other requirements. Each classifier had to file a report and give reasons as to why he or she chose a particular classification. Finally the chief examiner gave the final report. However, in situations where something became controversial, such as the film "The Last Temptation of Christ" and there might be disagreements, then a fourth person would be called in to assist in the final decision.
Mr Iyavar Chetty Head of Legal Services, FPB, added that the Committee should understand that sometimes the split between the votes was not 50/50. One could have the three classifiers having fixed totally different age ratings for the same film. A fourth classifier would then give the decisive vote as to which of the classifications should be accepted.
Mr M Sulliman (ANC, Northern Cape) remarked that technology was moving at an alarming rate and youngsters were able to keep up. He then asked if there was a clause in the Bill that would deal with future advancement as it was obvious that the legislation would always be behind.
Mr Erasmus referred to Clause 2 of the Bill. This was intended to act in the best interests of the children and it could be used to combat any future advancements as they came up.
Ms N Madlala-Magubane (ANC, Gauteng) asked about the penalties that were imposed upon people who violated the Act, as she was of the opinion that some groups just kept on violating the law.
Ms Bopape-Dlomo replied that the Board was able to deal with certain violations, depending on the offences committed. The Act made provision for the monitor to work with the police and confiscate material. In most cases these became criminal issues and the police would then take over.
The Chair asked for the number of board members that used to sit On the previous board, and she also wanted to know if the new Board number of seven included the Chair and the CEO.
Mr Erasmus replied that the clause stated that the number of board members should not exceed seven, and this was over and above the Chair, his Vice and the CEO.
Mr Chetty added that previously there was no council, and this structure was ushered in by the amendments. The previous FPB consisted of board and administrative members as well as 60 examiners. This was actually the first time there was to be a council of seven members.
Ms Mazibuko asked why Home Affairs was dealing with the Film and Publications Board matters as these contained a lot of matters related to communications; she would have thought that the Communications Department was better equipped to handle it.
Ms Bopape-Dlomo replied that she too had asked this question; apparently the United Kingdom system had been followed, and the body that handled child pornography in the UK was the Home Office.
Mr Chetty added that historically there has never been a classification board. There was simply censorship, which, according to the previous government, was not about morality, but about safety and security, as that government did not favour particular groups viewing certain material. Safety and Security at that time fell under Home Affairs, and Films and Publications remained under the body of Home Affairs.
Dep Min Gigaba added that previously Home Affairs fell under the Ministry of the Interior and this Ministry dealt with a whole range of issues that ranged from Safety and Security, through emergency services and Home Affairs. The Censorship Board, as it was known at one stage, fell under Ministry of Interior,. In 1994 that Ministry was split into Safety and Security, Emergency Services and Home Affairs in 1994. The censorship board was renamed as FPB, and was left under Home Affairs but it dealt less with censorship and more with classification.
Ms Mazibuko asked the Department how it would deal with institutions that were not affiliated to the National Advertising Standards Authority (NASA), and was concerned with the probability that NASA might be flooded with increases for applications for exemption.
Mr Erasmus replied that organisations were being brought to task over the fact that they did not have self regulation. Exemptions would apply if the organisation was affiliated to NASA and this was because NASA had its own regulations. If the institution was not a member, then it was not being regulated in any way, and thus would have to bring its material for classification.
Dep-Min Gigaba added that the influence might have an unintended flipside, as there might be a drop in the affiliations to NASA, and organizations might prefer to move away from the self regulation that was provided by NASA. These were matters therefore that needed to be discussed with the media organs so that even if there were exemptions there must be a guarantee that the exempted organs were being regulated in some other way, in order to level matters out.
Ms Mazibuko asked what XX referred to.
Ms Bopape-Dlomo replied that the meaning of XX was included in the schedules. It was material for private consumption that could not be distributed to anyone else; such material might contain matters such as bestiality. This was also explained in clause 19.
Ms Mazibuko applauded the Department’s efforts incoming up with such legislation but wanted to know how they were going to engage with the problem of the internet. It was common knowledge that one could get nuisance mails over the internet that contained explicit material.
Ms Bopape-Dlomo replied that regulating the internet was trickier and this was where the overlap with Department of Communications occurred. She emphasized that this was an area that need more co-operation and working closely with communications.
Mr Gigaba added that the government had added precautionary policies to combat pornography in the work place. One such measure was the installation of firewalls to ensure that government officials did not watch offensive material at work.
Ms Mazibuko asked how they were going to cover hotels in their Bill.
Ms Bopape-Dlomo replied that the FPB had also identified areas such as hotels and airplanes as areas that needed intervention, but the problem was jurisdiction as they could only regulate on South African territory. This made it impossible to regulate what was being watched in planes coming into and going out of South Africa. These were issues that would be worked on. Hotels were prepared to work cooperatively to minimize the possible exposure of children to inappropriate material. She added that the FPB was very much limited in their resources and could not combat technology effectively. For example there was only one monitor in Gauteng, and the monitor could not possibly go to all the internet cafés, libraries, video and cinema outlets. Hence it was important to finance the board appropriately by taking everything into account.
Mr Chetty replied that distribution of material as X18 fell under clause 24. The problem with this was that anything that fell under this clause required that the establishment put up “Not for under 18” notices, but this was unworkable in hotels. Hotels were exempted on condition that the pay per view material that fell into this category was accessed at the reception desk after the person had identified himself or herself as an adult. There was a problem in that not all hotels were following the procedure.
Ms Mazibuko asked if there had been comparison of this new Bill to other legislation in the international arena to ensure that it was moving in the right direction.
Mr Chetty replied that child pornography was a critical issue that had been hard to regulate. In the drafting of the Bill they had co-operated with international child agencies and countries such as Canada, the United Kingdom and, to a lesser extent, the United States of America. He wanted to point out that South African legislation had also been copied by other countries, and Canada wanted a copy of the Amendments as they wanted to adopt South Africa’s policies on child pornography and networking. The Bill tried to keep pace with the changing definitions of child pornography, which had radically moved to include abuse, torture and brutalisation and exploitation of children. Therefore FPB was interested more in the objective of protection of children than in meting out penalties.
The meeting was adjourned.
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