The committee was given a legal opinion by the senior counsel on the constitutionality of the Films and Publications Amendment Bill. The senior counsel highlighted the existing legal framework and the objectives sought to be achieved by the amendment bill. The opinion focused on particular clauses of the Bill that were capable of raising constitutional concerns. The committee agreed that the constitutional concerns raised by the senior counsel were of vital importance. They also agreed to study the opinion and recommendations in order to incorporate them into the Bill.
Advocate Ismail Jamie, Senior Counsel, began his presentation by giving an overview of the current legal framework and highlighting the objectives of the Amendment Bill. He stated that there were three guiding principles/rights, against which the constitutionality of the Bill would be considered:
- The right to freedom of expression as contained in Section 16 of the Constitution.
- The requirement that legislative provisions must be clear, accessible and provide certainty.
- The requirement that legislation must be capable of reasonable implementation.
Adv Jamie stated that the Amendment Bill must be assessed to ensure that its provisions clearly provide for protection and preservation of the right to freedom of expression as enshrined in the Constitution. Also, there must be some degree of clarity and certainty in the Bill, just as he stated that the
The Senior Counsel then commented on particular clauses of the proposed Amendment Bill:
Clause 19 Classification of publications
Adv Jamie advised that the legislature apply its mind to the legitimate reasons for the exclusion referring only to the Newspaper Association of South Africa, as provided in the proposed Section 16(1) of the Bill. Further, the effect of Section 16(2) of the Amendment Bill constituted a prior restraint on freedom of expression. This was so because the ambit of the section impermissibly intrudes upon and restricts constitutionally protected speech; and also fails to provide clear and certain indications as to what speech is permissible and what is not.
Clause 21 Classification of films and games
Adv Jamie stated that in order to ensure compliance with the Constitution, there has to be an exemption from the Films and Publications Board classification process for ICASA. This is because ICASA is the body that is legally responsible for regulating broadcasting content in accordance with Section 192 of the Constitution.
Clause 22 Display of classification decisions
Adv Jamie expressed his reservations as to the workability and implementation of the provisions, because though the Section applies to films or games that have been classified or exempted, the information that must be displayed does not refer to material that has been exempted.
Clause 29 Prohibitions, offences & penalties on distribution & exhibition of films, games & publications
Adv Jamie stated that Sections 24A(4) and 24B(3) were vulnerable to challenge. He added that he had considered the submissions of National Association of Broadcasters (NAB) and the South African National Editors’ Forum (SANEF) and concluded that the various provisions in the Amendment Bill which were vulnerable to constitutional attack should be revised.
Mr B Tolo (ANC) asked the Senior Counsel if he could recommend steps on how to revise the various provisions that he identified as susceptible to constitutional challenge.
Mr T Setona (ANC) asked if it was practicable to subject publications to pre-approval even where such publications are capable of inciting violence, racism or publish sexually explicit material. He noted the prevalence of naked women in the tabloids, and asked for Advocate Jamie’s comments on the practicalities of curbing this trend.
Mr M Sulliman (ANC) stated that there was a need for South Africans to be accountable for their conduct. This was probably part of the purpose of the Amendment Bill.
Mr Setona asked how the issue of self-regulation could be addressed. Did SANEF have the power to discipline other bodies that were not affiliated to it? How could there be a balance between the right of the public to be informed on the one hand, and the power to restrict or regulate publications that are capable of inciting war or violence?
Advocate Jamie replied that it would be difficult to proffer solutions without knowing the thinking of Parliament on the various issues. He added that it was not part of his brief to make recommendations. However the changes to be made would depend on the results that were expected. Changes could be mild or elaborate. He noted that Section 16(2) posed a serious problem and should be addressed.
He stated that it was possible to ban or regulate publications especially if they are capable of inciting war, violence etc. Also there are already in place restrictions on the publication of sexually explicit material to children. He added however that, speech that is condoned by the Constitution cannot be proscribed unless or until the Constitution is amended. On the issue of balancing the conflicts that arise, there are rights that run contrary to some of these provisions such as the right to ply one’s trade, which empowers escort agencies and prostitutes to carry on their activities.
He noted that self-regulation was possible. He was not aware if SANEF had the powers to discipline other bodies not affiliated to it. He concluded that people had the right to be informed in order to be able to make an informed judgment. However, where publications and news reports can lead to violence or are inciting, then such publications should be regulated.
The Chair gave the State Legal Advisor an opportunity.
Advocate Mukesh Vassen (State Legal Advisor) asked Advocate Jamie to clarify Section 192 of the Constitution.
Advocate Jamie said that the Films and Publications Board would regulate content, while the independence of the Independent Communications Authority of South Africa (ICASA) was non-negotiable.
The Chair thanked the senior counsel for his excellent presentation and promised that the Committee would take his ideas into consideration while finalising the Bill.
The meeting was adjourned.
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