Films and Publications Amendment Bill [B27b-2006]: Ministerial response to Legal Opinion

Meeting report

The Chairperson said that the meeting was called to hear the legal opinions of the Chief State Law Advisor (SLA) and the Department of Home Affairs (DHA) and Film and Publication Board. These opinions were in response to the opinion of Adv I Jamie on the Films and Publications Amendment Bill. She also welcomed the Deputy Minister of Home Affairs, Mr M Gigaba.

Response by the Office of the Chief State Law Advisor
Adv M Kweta (State Law Advisor) said that Office of the Chief State Law Advisor had been asked to respond to the legal opinion of Adv I Jamie on the Films and Publications Amendment Bill. Adv Jamie had expressed his opinion on legal issues and the constitutionality of the Bill. The Constitutional Court would express an opinion on the validity of the Bill. Adv Jamie had divided his opinion into three categories. The first category consisted of those points with which he agreed and had no problems. The second category consisted of those points on which he expressed caution and reservations. The third category consisted of those points which Adv Jamie felt were unconstitutional.

Adv Kweta said that a written response had been provided. His oral presentation would be a summary of that document. The first category of Adv Jamie’s opinions were listed in their response document. They had no problem with the way these had been formulated, and he would pay no further attention to it.

Adv Kweta said that Adv Jamie referred to Clause 19, which would be the new Section 16(1) if the Bill was approved. This clause made provision for newspapers to submit articles for classification, but members of the Newspaper Association of South Africa (NASA) were excluded from this provision. This was an amendment effected by the Portfolio Committee. All newspapers had originally been included in the requirement to submit articles for classification. The Portfolio Committee had considered views on this issue. It was a policy issue, not a constitutional one.

He said that the new Section 16(2) contained the wording “of or amounting to” sexual conduct. Adv Jamie had expressed his concern over the term “sexual conduct”. He did not feel that anything could be “amounting to” sexual conduct. The SLA proposed that sexual conduct should be separated from the other provisions in this paragraph. 

Adv Kweta said that Adv Jamie had reservations about the press being required to submit articles prior to publication. This was a restraint on freedom of expression. He used the example of the United States of America (USA). The SLA begged to differ from his opinion. The First Amendment to the USA constitution did not apply to South Africa. Adv Jamie referred to the principle of freedom of expression. The USA Congress was prevented from making any law which encroached on freedom of expression and the freedom of the press. Although freedom of expression was guaranteed in the South African Constitution, Section 36 applied limits.

He quoted the case of Midi TV vs the Director of Public Prosecutions Western Cape. In this case it was argued that the guidelines of American jurisprudence should be followed, as the First Amendment had no limitations on freedom of expression. However, the ruling was that the right of freedom of expression was not above all other rights, and could indeed be limited. The question was whether the limitation could be justified in terms of Section 36 of the Constitution. It might be abridged to protect the rights of others. In particular, the rights of children must be treated with paramount importance.

Adv Kweta said that the object of the Bill was to protect children from disturbing, harmful or premature exposure. It was an offence to use children in the production of pornographic material or to expose them to such material. The Children’s Act protected children from discrimination, exploitation and physical, emotional or moral hazards. Freedom of expression was not being abolished in the Bill, but was being regulated. The SLA was satisfied that this clause passed muster and was not unconstitutional.

He said that there were some reservations around the term “sexual conduct”. It was broad and might be challenged. It had to be read in the context of the Bill as a whole. The primary concern was the protection of children. The provisions were clear and unambiguous.

Adv Kweta said that Adv Jamie referred to Clause 19 which would become the new Section 16(4)(b)(ii). This dealt with acts of bestiality, incest, rape or which were degrading; or actions which incited, encouraged or promoted harmful behaviour. These should be classified as XX. Adv Jamie felt that the term “degrading” and “harmful behaviour” was too broad. The SLA disagreed with this opinion. There was a legal term “the doctrine of vagueness”. Government had a role to interpret the meaning of this term. There was a delicate balance between the interests of society and the rights of individuals. The objective of the Bill should not be lost. The SLA felt that the terms “degrading of human beings” and “harmful behaviour” were appropriate, and were necessarily vague.

He said that Adv Jamie’s next point was regarding Clause 29 of the Bill, which would become the new Section 24A(2)(c). This dealt with distribution and exhibition of material. An individual was expected to anticipate the decision of a publications committee. This issue was problematic. The wording was carried over from the Principal Act.

Adv Kweta said that the last category of Adv Jamie’s opinion dealt with matters which he thought were unconstitutional. The clauses involved here were Clauses 21, 27 and 29. Clause 27 would be the new Section 23(3). Broadcasters were subject to the Independent Communications Authority of South Africa (ICASA), and would be exempt from having to submit for classification films or games. When this was read with the new Section 24(A)(2), Adv Jamie thought there was a danger of unconstitutionality. This became a partial exemption. Broadcasters subject to ICASA were taken out of the ambit of submission.

He said that the Constitution stated that an authority had to be established to ensure fairness and diversity of views. The Electronic Communications Act provided for ICASA. The SLA thought there should be protection against the functions of the Films and Publications Board encroaching on ICASA. The Bill should be rephrased, and moved to Clause 21. It would be more appropriate there. The words “subject to” should be deleted, which would prevent partial exemption. This would make the clause constitutional.

Mr M Titus (Senior State Law Advisor) said that Adv Kweta’s presentation had covered all the points.

Adv Enver Daniels (Chief State Law Advisor) said that the matter had been discussed extensively, and he had nothing to add.

Discussion
The Chairperson invited Members to engage with the State Law Advisors.

Mr T Setona (ANC, Free State) welcomed the members of the fourth estate. He told the press that this was a Select Committee, and that the Members took their work “very seriously”. They had all taken an oath of office. There had been a series of meetings on the Bill, and opinions had been widely solicited. An independent opinion had been requested. However, the issues were couched in legal terms. There was no sinister intention. The engagement was in this context. The Department of Justice had said that the Bill had been redrafted. The Office of the Chief State Law Advisor was responsible for the certification of the Bill. He asked if this meant that the National Assembly had changed it. He asked what the term ‘redrafting’ meant.

Adv Mukesh Vassen, Parliamentary Legal Advisor, said he had five issues to raise. The first was the exemption from submission granted to members of NASA. All publications were regulated by the Press Ombudsman, and were all members of Print Media South Africa (PMSA). This included magazines and the Association of Independent Publishers. He asked if there was any rational reason why the exemption should apply only to members of NASA. He asked if this was because they were self-regulated.

He said his second point was the question of prior restraint. He agreed that in the phrase “of or amounting to” the words “or amounting to” should be deleted. The print media had proposed that tighter measures be taken to prevent harmful material from being published. As it stood, the wording of the Bill was ambiguous. With an issue like the advocacy of propaganda for war, it might apply to the mere reporting of such a speech as well as newspapers expressing their opinion in this way. He suggested that it be made clear that the restriction applied only to the publication itself advocating harmful practices.

Adv Vassen said there should be a distinction between USA and South African law. Adv Jamie had used South African law to pronounce on the constitutionality of the concept of prior restraint. The Department of Home Affairs said that the purpose of the law was to protect children from exposure to sexual conduct. A number of submissions had been received which described this term as being too broad. In the broadest definition, any instruction for AIDS awareness and prevention could fall into this category, such as instructions on how one should apply a condom. The provisions of classifications needed to be clear. If domestic violence was not defined in this Bill, then the definition in the Domestic Violence Act would have to be used.

Adv Vassen said he would make his other points later.

Mr B Tolo (ANC, Mpumalanga) said he had wanted to talk about the distinction between members and non-members of NASA but his questions had already been covered.

The Chairperson invited the Deputy Minister to address the meeting.

Deputy Minister Malusi Gigaba said he would make more detailed comments later on but he would provide some broad comments at this point. It was important to support the broad views of Mr Setona. Members of Parliament took their work seriously, and yet disparaging views about them were published in the media. This was especially so with the processes surrounding this Bill. This commentary was not assisting the discourse. It was even alleged that Members of both Houses were idiots.

He said that Section 28(2) of the Constitution addressed the interests of children. It did not seem that legal opinion had taken this section of the Constitution into consideration. This was an issue of paramount importance. The views of the South African National Editors’ Forum (SANEF) had not been considered by Adv Jamie.

The Deputy Minister said that the comments made thus far were narrow. The Committee would thus draw conclusions without the benefit of understanding the broad policy objectives. Such comments would have the unintended effect of infringing on existing legislation. He had difficulty relating to the legal opinion. He wanted to listen to all advice. This forum was not the Constitutional Court. The most appropriate outcome must be found, and this was the best interests of the child.

The Chairperson said that the Committee was governed by the rules of Parliament. They could decide on closed or open sessions. The Committee would apply its mind on this matter. They did not want to hide anything. They had been through several sessions already.

Adv Daniels said that Mr Setona was correct. There had been extensive public participation on this Bill. After the Bill had been submitted in its original form, the Portfolio Committee had drawn up its own Bill. They had requested some guidance from the Office of the SLA.

Mr Setona said that the Executive was the source of 99% of legislation. To say that the Portfolio Committee had drafted its own Bill meant something else. He asked if it had been so extensively amended that it should be seen as a new Bill.

Adv Daniels said that Parliament operated according to its own rules. Once the Bill was in front of Parliament, it could deal with the Bill as it saw fit. He mentioned some other examples, some of which were in the public domain. He was not saying that the Bill in its current form was not what the Executive wanted. The State Law Advisors had been asked to assist in drafting the amended Bill and certify it. There was nothing unusual, irregular or underhand about this. The Select Committee was now looking at the legal opinions on this amended Bill.

He said that the exemption of NASA members from the submission process was a policy decision by the Portfolio Committee. He had no comment on this, and did not find it to be a constitutional problem. If the matter were taken to the Constitutional Court then government would have to defend it. The Midi TV case was not related to pornography, and reference to USA law was not appropriate. South African jurisprudence guarded against accepting USA law. Lawyers often looked at jurisprudence, even if it was clear that they still held their own view.

Adv Daniels said that the Deputy Minister was absolutely correct. The Bill must follow policy objectives. These had to be captured accurately and fully. The legislation did take the best interests of the child into consideration. This reflected the intent of the Executive. The Bill was a careful attempt to protect the best interests of children. The State Law Advisors had had little time to respond, approximately two weeks. Adv Jamie had had much more time to consider the matter. He felt that the Bill had been drafted adequately.

Adv Kweta spoke about the broadness of the term “sexual conduct”. There was a closed list of activities considered to be sexual conduct. The definition was sufficient. The provision of vagueness applied to degrading and immoral behaviour. This was not doing away with the objectives of the Bill. Nothing was lost by the introduction of this language.

Mr Titus said that there was one concession on the matter of domestic violence. The failure to define what was meant by this, did leave a gap. The Domestic Violence Act was too broad, including practices such as economic abuse. A definition was needed for this Bill. Considering the phrase “or amounting to”, an activity was either sexual conduct or it was not. The phrase was applicable to the other activities listed in the Bill.

Mr Tolo asked about the other legal opinions. The Committee had not been privy to them. He asked who had commissioned them. It would help their deliberations if these opinions were available.

Mr Setona said it was unfortunate that Adv Daniels had left the meeting temporarily. He wished to put on record the fact that the National Assembly had not made fundamental amendments to the Bill. This was misleading.

Mr M Sulliman (ANC, Northern Cape) agreed that the Bill had not been redrafted. There were conflicting signals about this.

Adv Kweta said it was a question of language. He regretted the misunderstanding.

Mr Tolo said it must be very clear that the Bill had only been amended.

The Chairperson observed that it was agreed that the statement that the Bill had been redrafted should be withdrawn.
 
Response by Department of Home Affairs (DHA) & Film and Publication Board
Ms Shokie Bopape (CEO, Film and Publication Board) said that it was important to clarify issues. One of those was the matter of self-regulation as opposed to regulation by the Press Ombudsman. When the clause had been re-crafted to exempt only NASA members from the burden of submission, this was done because NASA could guarantee the actions of their members only. The Ombudsman only reacted to complaints after the fact. Once children were exposed to harmful images, the damage was already done. This is what happened with pornography on the internet. The DHA agreed with the SLA. It was always important to consider the context. The aroused penis was appropriate if it was to be used in a demonstration of the correct use of a condom. Some films were very sexual but no sexual acts were depicted. There should be relaxation in the case of bona fide documentaries.

Adv Yolandi van Aswegen (Deputy Director, DHA) said that the Committee had been provided with two documents. One was a thorough response to the opinion of Adv Jamie. The other was a summarised version in table format. She agreed with most of the State Law Advisor proposals even though she had only seen them that day. She pointed out that Adv Jamie had referred to the Films and Publications Act before it had been amended in 1999 and again in 2006.

She then went through the opinion of Adv Jamie. In paragraph 4 of his opinion, he made the point that the classification of publications was not mandatory, but was only dealt with in the case of complaints. In fact, there were two categories of publications. One indeed was only investigated in the case of complaints, but the other category had to submit material prior to publication. She added that Adv Jamie’s reference to an R18 category was incorrect as this was not in the new schedule of age restrictions.

Adv van Aswegen proceeded to paragraph 9 of Adv Jamie’s opinion. This referred to the amending of objectives. The Bill broadened the objects of the Act. She said that the Bill was in effect a redraft of the principal Act. In fact, the objects would be limited to the specific purpose of classification.

She said that Adv Jamie’s paragraph 10 referred to Appeal Tribunal, which was a new entity. This was incorrect. The term was simply a new name for the former Film and Publication Review Board.

Adv van Aswegen said that Adv Jamie’s paragraph 12 referred to three key rights and constitutional principles. She said that the basis of the Amendment Bill was not just based on Section 16 of the Constitution. Other documents had also been considered, including the Children’s Bill of Rights, and other sections of the Constitution.

She said that Adv Jamie’s paragraphs 14 to 19 expressed his concern over freedom of expression. This was not an absolute right. There was a precedent in Canada, where it was ruled that freedom of expression could not be absolute, but had to be seen within a broader spectrum of rights. It was hard to prove that there was a link between pornography and child abuse, but there was a causal relationship between the use of pornography and attitude change. Therefore there was a need to protect the rights of children.

Adv van Aswegen said that in paragraphs 20 to 23, Adv Jamie said there was a requirement for clear and accessible legislation. She said that classification must be flexible. Society’s norms changed and new technology was introduced for distribution of material. It was acceptable to have a degree of vagueness. Precision should be used in the guidelines, not the legislation itself.

She said that Adv Jamie referred to implementation in paragraphs 24 and 25. There was a panel of investigators in place already. Nothing would change in this regard.

Adv van Aswegen said that Adv Jamie referred to a two-fold mechanism in paragraph 29. The amendment in Clause 19 combined Sections 16 and 17 of the existing Act. The two-fold system was already in place.

She said that Adv Jamie’s paragraph 30 dealt with the exclusion of NASA members from the process of submitting material for classification. She said this was not an arbitrary decision. It was not centred on the Press Ombudsman, but was a result of the guarantees offered by NASA, which was a self-regulating body.

Adv van Aswegen said that Adv Jamie referred to intrusions on the freedom of speech in his paragraph 34.1. He said that the proposed Clause 16(2) had only one category of freedom of speech which was not listed in the categories of unprotected speech defined in the Constitution. She felt that this could be qualified by the insertion of the word “explicit”. In his paragraph 34.2 Adv Jamie said that the wording of the Bill failed to provide clear and certain indications on what was permissible speech or not. She said subsections (b) and (c) of the clause were exactly the same wording as the Constitution. Once again the word “explicit” could be used to qualify the term “sexual conduct”. Subsection (c) referred to the advocacy of hatred, and the details of this should be defined in the guidelines.

She said that Adv Jamie referred to the phrase “of or amounting to” in paragraphs 35 to 39 of his opinion. She supported the deletion of the words “or amounting to”.

Adv van Aswegen again referred to “sexual conduct” in paragraph 40.5 of his opinion. This concept was not excluded from the terrain of freedom of expression. In order to align the Bill more closely to the Constitution, she suggested that the word “explicit” be inserted to qualify the term “sexual conduct”. Alternatively reference could be made to the wording of the current
Act which elaborated on those aspects of sexual conduct which impinged on human dignity or could be seen as harmful behaviour.

She said that paragraph 40.6 of Adv Jamie’s opinion dealt with the composition of the Board.
She did not understand what was meant by this. The classification system had been in operation for many years, and the Bill did not propose any changes.

Adv van Aswegen said that Adv Jamie spoke about conduct or acts which were degrading to human beings in paragraph 41.2 (b) of his opinion. She said that his opinion answered his own question. It was about acts that violated the privacy of the victim. She quoted two cases where the courts had recognised that some acts were degrading to human dignity. The definitions were not too wide. In paragraph 41.2 (f) he referred to the definition of public interest in regards to a bona fide documentary or publication of scientific, literary or artistic merit. The DHA supported Adv Jamie’s opinion.

She said that Adv Jamie referred to the definition of film in paragraph 46.2 of his opinion. She said that his proposed definition would delete a definition that was already contained in the Bill.

Adv van Aswegen said that paragraph 53 of Adv Jamie’s opinion spoke to the display of classification decisions. She said that exemption was a classification decision.
The only difference was that items could have an age restriction or consumer advice imposed on them by the Board and not by a classification committee. Products might be exempted from the classification process but not from the classification process.

She said that Adv Jamie referred to the phrase “would have been so classified” in paragraph 56 of his opinion. She said that the Bill referred to materials which might not be distributed or displayed publicly, but could legally be owned by a person for private use. The public should know what fell into this category.

Adv van Aswegen said that paragraph 57 of Adv Jamie’s submission referred to the X18 category. She said that the offence should be consistent with the X18 category, and once again the word “explicit” should be used to qualify the term “sexual”.

Finally, she said that Adv Jamie referred to the anti-grooming provision in the proposed Section 24B(3). She said that this was an anti-grooming provision and it should be broader than the XX or X18 categories. Any depiction of sexual conduct might be used to groom children into accepting intergenerational sex as normal and acceptable. The proposed Section 24B(3) might be too broad, but she felt that nothing could be too broad in anti-grooming provisions.

Discussion
Mr Ittyar Chetty (Legal representative, Film and Publication Board) said that it must be understood that sexual depictions could be discreet or explicit. The Act did not cover the full spectrum of sexual conduct. For example, there was a genre of pornography called gonzo, which had not appeared until very recently. Therefore the Act had to be flexible. The Act was drafted in the context of guidelines, which were updated on an annual basis. These became part of the Act. He said that newspapers and magazines could not be treated in the same breath. Newspapers were exempted by default. They fell within the guidelines and principles of procedure. Newspapers could not fall within the same definitions as magazines because of their immediacy. Section 17 of the current Act made submission mandatory for magazines. There were no appeals. Legislators must not ignore the fact that there would be guidelines to interpret the Act. These must be contemporary. They were determined annually based on research, public hearings and consultations with other classification authorities.

Mr Tolo wanted to understand the guidelines more. He asked if newspapers were fully excluded from the provisions of the Act.

Mr Chetty replied that the exemption only applied to members of NASA. Newspapers which were not NASA members must know what they could safely publish, while member newspapers would be aware of the limitations. If the non-member newspapers broke the law with their content, it would not be the Film and Publication Board which would react but the police. Newspapers were not regulated by the Film and Publication Board.

Mr Tolo asked if such non-member newspapers were regulated by any other body.

Ms Bopape was not aware of any such body.

Mr Setona said there no certainty over the content of non-member newspapers. He asked if this was creating a dual regulation framework. The NASA Board could control all its members. He asked if there would be a loophole created for non-members. He would propose that a precise certainty should be created. He gave the task of researching this to the DHA. Duality could create problems.

The Chairperson told the researchers present to take note.

Mr Setona said that Adv Jamie had admitted that he had not done enough detailed research; therefore his findings could not be seen as sacrosanct. He did not understand the Department’s stance on anti-grooming provisions. They were overbroad, and clarity was needed. This was about values, and the issue had been persistently raised. There were many legal opinions on the matter.

Adv Vassen shared Mr Setona’s concerns. The wording must be precise. There was some jurisprudence on the limitations on freedom of expression. The Midi TV case had been about the prejudice which publications might cause, and it was held that the prejudice must be demonstrable and predictable. A number of clauses in the Bill were broad. The definition in the proposed new Clause 16(2) could be tightened. Legislation must be certain.

The Chairperson asked about Adv Jamie’s opinion of the composition of the board expressed in paragraph 40.6.

Ms van Aswegen said it was hard to comment.

Ms Bopape said that there was a dual system. The DHA had seen the gap and had tried to close it. They were satisfied with the content of the regulations.

Mr Chetty said that the anti-grooming provisions in the Bill had sparked much debate. The provision had been copied into legislation in other countries. He cited the Canadian provinces of Manitoba and Alberta as examples. There was a tricky situation regarding online predators. This problem could not be quantified as technology kept changing. The law must be as wide as possible to combat persons from preying on children. A slight amendment was needed to make the Bill Constitutionally acceptable. One must understand how newspapers worked. Journalists and editors could manipulate language to make what was in fact their subjective opinion, to come across as objective reporting on the statements of other people. The people who were responsible for classification understood the media. They would not put government in a bad light. Measures were in line with the Constitution.

Adv Vassen said that the measures came from a history of government control. Section 193 of the Constitution had to be taken into account. The wording of the Bill was badly drafted in places. An article on sexual health might have to be submitted for classification as the Bill stood. Magazines needed to submit articles for classification. All the members of PMSA were regulated by the Press Ombudsman. This included all members of NASA, magazine publishers and the independent newspapers. Words must be precise. He asked if the purpose was being achieved.

Mr Setona said that the advocate was confusing him. He asked what words should be precise.

The Chairperson said that Adv Vassen had a duty to assist the Committee.

Adv Vassen said that one suggestion would be to substitute PMSA for NASA in the proposed new Clause 16(2). The words could be tightened.

Mr Setona said that there could be dire consequences from the Bill’s introduction. Newspapers reported news rather than created it. There might be unintended consequences. The truth must not be hidden. The social environment had to be considered.

Ms Thulisile Ganyaza-Twalo (Parliamentary Researcher) said there should be a detachment from the person who wrote a report from its consequences. Newspapers could hide behind the Constitution.

Adv Vassen said there was difference between reporting on an issue to advocating the issue. The current wording did not make a distinction. There was an element of pre-censorship.

Mr Setona agreed that it was not an easy thing, but they were getting closer to a solution. Reporters should have impeccable sources, and had to guard against misquoting.

Mr Tolo said he was sensitised towards both sides. A middle road would have to be found.

The Chairperson asked about the composition of the Boards. If the DHA was unable to answer that question immediately, then it should do so in writing.

Ms Bopape said that she was not sure where the problem lay with the composition. She agreed that there had been some changes. On the regulation of magazines, the Film and Publication Board applied content classification and age appropriateness guidelines. Gaps must be closed.

The Chairperson said that the Committee would not finalise its response to the Bill on that day. The deliberations scheduled for the afternoon would be held over for another meeting. She invited the Deputy Minister to make some closing remarks.

Deputy Minister Giqaba thanked all the "legal eagles" present. He would not say much. The emphasis was on the intention of this legislature to protect the child. All else was subject to that. This was within the framework of the Constitution. South Africans should enjoy freedom of expression, but certain categories of people had to be protected. The child was one of these categories. The Film and Publication Board fell under the DHA, therefore this Bill had arisen. It was a difficult situation in that it was the third or fourth time that the Bill had been presented. This was not because the principal Act was wrong, but the area was dynamic. He could not promise when the National Council of Provinces would endorse it, and there might be further amendments in the future. If the issue was not addressed an opportunity would be missed. The Bill was a legal document, and the legal fraternity would argue the points.

He said that the bigger thing was the protection of children. Another issue was the ethics of the nation. He asked on what basis child abuse could be accepted. A strong defence was needed against this. Moral values had to be upheld. Other things could be handled, and the parties would find one another. It was not just SANEF but other bodies as well that were calling for the banishment of sex.

Once all had finished laughing, he corrected himself to say it was pornography that these bodies were trying to banish. He would not be in favour of the banning of sex. He said that he was well past his 21^st birthday, but there were still things he should not be allowed to see. All views must be accommodated. The views of one group could not be elevated over those of others because they were seen as being predominant.

Deputy Minister Gigaba said that it had been a fruitful engagement. It should be possible for the parties to find one another. Some things still needed to be investigated. If members of PMSA were exempted there would still be others outside their jurisdiction. Replacements had been suggested where clauses were considered overbroad. He acknowledged the concern over grooming. They had to find a clause to address all the concerns. South Africans enjoyed freedom of expression, but the Constitution was not as liberal as that of the USA on this right. It was up to government to create legislation with which all citizens could be relatively comfortable.

The meeting was adjourned.