Films and Publications Amendment Bill: deliberations

NCOP Health and Social Services

25 March 2008
Chairperson: Ms J Masilo (ANC)
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Meeting Summary

The focus of the meeting was the Parliamentary Law Advisor’s proposals regarding the following clauses of the Bill: Clause 19(1) and(2); Clause 19(4)(b); Clause 19(4)(b)(iv) and Clause 27(3) of the Films and Publications Amendment Bill [B27B- 2006].

Members criticized the fact that there was no consensus between the Parliamentary Law Advisor, the State Law Advisors and the Film and Publication Board on certain issues. Members suggested that they return to conduct further research on certain proposals and then present these to the Committee after reaching consensus on all matters and conducting the necessary research.

Meeting report

The Chair said that the Committee had met to deliberate on the Bill on 18 March and had come up with some proposals. These had been given to the Parliamentary Law Advisor to draft as proposed amendments. The aim of the present meeting was not to finalise the Bill but to present these proposals to the Department, whose function it would be to then incorporate these proposals into the Bill.

Proposals by the Parliamentary Law Advisor
Mr Mukesh Vassen (Parliamentary Law Advisor) said that certain provisions had consistently been raised as being unconstitutional. He therefore suggested amendments to these provisions which would make them constitutional, without detracting from the objects of the Bill. His proposals did not amount to a shift in policy, but addressed the current problem of the Bill which was that the words did not reflect the intention in some respects.

Clause 19
Clause 19, amending Section 16 of the Act, exempted only members of the Newspaper Association of South Africa (NASA) from submitting for classification. This clause had been inserted by the National Assembly and the rationale for its inclusion had been that only NASA was regulated by the Press Ombudsman. It was subsequently established that all print media in SA was regulated by the Press Ombudsman. These included members of NASA, magazine publishers and the Association of Independent Publishers. Excluding only members of NASA would be arbitrary and could be found to be unconstitutional. He therefore proposed that the exemption should be extended to all print media in SA.

Mr B Tolo (ANC, Mpumalanga) wanted clarity as to which regulatory mechanism governed NASA.

Adv M Kweta (Chief State Law Advisor) asked who would then be subject to classification if the exemption were extended to all print media. Extending the exemption to all print media would not be in keeping with the purpose of the Bill. He suggested that the exemption should apply to NASA only.

Mr T Setona (ANC, Free State) complained that the Committee had been asking for clarity on who NASA covered for a long time now. He asked if NASA included all newspapers or only mainstream newspapers. He was not sure if they included community newspapers as well. Based on responses from the Parliamentary Legal Services it now appeared that NASA only covered mainstream newspapers while Print Media of South Africa (PMSA) was the main umbrella body. He asked if this discussion should not be deferred in the light of this uncertainty.

Ms F Mazibuko (ANC, Gauteng) agreed and asked if the Film and Publication Board (FPB) could answer this question.

Ms Shokie Bopape-Dlomo (CEO: FPB) said that she was not certain whom Print Media South Africa regulated.

Mr Ittyar Chetty (Legal Section: Film and Publication Board) said that NASA regulations were not consistent with the purpose of the Act. He had a problem with the fact that magazines like Hustler and Playboy could join PMSA and then be exempt from submitting for classification. At the moment magazines have been submitting for classification and there have been no problems with this. He however had a problem with the fact that any magazine could in future join PMSA and then be exempt from being classified.

Mr Malusi Gigaba (Deputy Minister: Department of Home Affairs) said that he had been under the impression that these discussions were being held in the light of consensus between the State Law Advisors, Parliamentary Law Advisors and the FPB. This did not however appear to be the case. It was not clear whose idea it was that the PMSA should be exempted from submitting for classification. He was very surprised that the FPB had not since the discussions the previous week, even attempted to find out who was covered by the PMSA. One would have assumed that these facts would have been checked and consensus reached between the State Law Advisors, Parliamentary Law Advisors and the FPB.

Adv Vassen explained that the parties had met the previous week. The FPB had suggested that the PMSA should not be exempt from S16(1), but should be exempt from pre-submitting for classification in terms of S16(2). The Ombudsman covered PMSA members and the exemption was therefore rational. Thus only NASA was exempt from S16(1) while all members of PMSA were exempt from S16(2).

Mr Setona complained that the process was making a mockery of the Committee. He suggested that the Committee obtain independent researchers due to the fact that the officials were unable to agree.

Mr Tolo said that one would not expect the State Law Advisors to be asking questions at that stage still. There was still no consensus among the State Law Advisors, Parliamentary Law Advisors and the FPB.

Deputy Minister Gigaba asked for further clarity on S16(1) and(2). He referred to S16(1) and asked if this meant that any person (other than a newspaper published by NASA) had to be classified. He asked if S16(2) meant that PMSA members were exempt from submitting for classification in terms of this section.

Adv Vassen said that in their discussions, the FPB had indicated that some publications needed to be classified. If these were included in S16(1) they could not be classified. Thus if these publications were included in S16(2) they would need to be pre-classified if, for example, they contained visual presentations of sexual conduct etcetera.

Mr Tolo asked for further clarity on this issue. He asked if it meant that when a person complained, only NASA members were exempt from classification in terms of S16(1). However in terms of S16(2), did the exemption from pre-classification apply to both NASA and non-NASA members.

Adv Vassen said one should distinguish between classification and pre-classification.

Ms Bopape-Dlomo explained that in terms of S16(1) any member of the public had a right to complain about the content of a magazine. This did not apply to newspapers because these were self-regulated. In terms of S16(2), PMSA members were not required to submit for pre-classification.

Deputy Minister Gigaba asked if this meant that Penthouse and Hustler were also exempt from pre-classification.

Ms Bopape-Dlomo replied that these magazines were not exempt, since they met the criteria in this provision which necessitated pre-classification, for example these magazines contained visual presentations of sexual conduct.

Adv Vassen assured the Committee that neither Penthouse nor Hustler were part of PMSA. However GQ Magazine and FHM fell under PMSA.

Deputy Minister Gigaba expressed concern about what would happen if Hustler or Penthouse joined PMSA once this Bill was passed. He asked if they would then too be exempt from pre-classification.

Ms Mazibuko suggested that the Committee should obtain information as to who regulates the relevant bodies by 28 March.

Deputy Minister Gigaba pointed out that the issue under contention was newspapers and not magazines. This was because one could not exempt magazines from classification or pre-classification. He suggested the separation of S16(1) from S16(2), but emphasized that magazines should not under any circumstances be exempt from pre-classification. One had to bear in mind that magazines remained on the shelves for a whole month. There was a need for a clause which dealt with newspapers only. A blanket exemption would create a problem.

Mr Tolo proposed that a clause should be drafted to exclude magazines from the exemptions.

Mr Setona said that there needed to be certainty about the roles of the parties involved. He did not think that the Committee would need to read all the regulations governing the different bodies and felt that the researchers should provide the Committee with a summary of these. In addition the State Law Advisors, Parliamentary Law Advisors and the FPB needed to work together to discuss these issues. One would also need to look at what would happen if Parliament passed the Bill and another magazine then joined PMSA.

Clause 19 amending Section 16(2)
Adv Vassen explained that the current wording of the clause actually prevented the reporting on matters listed in (a) to (d). He proposed that the wording be changed to “publication that:
-advocates propaganda for war
-incites imminent violence; or
-advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm”

Mr Tolo asked where the reference to “sexual conduct” would be included.

Adv Vassen replied that the term “sexual conduct” was broad and open-ended. The wording at the moment included legitimate publications like those dealing with AIDS awareness, for example. Thus the Department and the FPB had agreed to amend the term “sexual conduct” to state “explicit sexual conduct which violates or shows disrespect to human dignity or the right of any person, degrades a person or constitutes incitement to cause harm”. This captured the intention of the legislation. At present the wording included reporting on rape, sexual education or scholarly articles on sexual dysfunction.

Mr Maboda Titus (Senior State Law Advisor: Office of the Chief State Law Advisor) stated that they were happy to restrict the scope of the term “sexual conduct”. They however felt that the use of some words were inappropriate, for example, one could not say that a publication would amount to sexual conduct. The words ‘amount to’ would be inappropriate. The State Law Advisors had therefore recommended that the term “amount to” should only apply from Section 16(2)(b) to (d). They therefore proposed the following wording: “ …or representations
(a) of explicit sexual conduct or
(b) amounting to
(i) propaganda for war;
(ii) incitement of imminent violence or
(iii) the advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm

Adv Vassen said that the Department had suggested a different version. The definition of ‘sexual conduct’ suggested by the State Law Advisor was still not precise enough to identify the harm.

Mr Tolo asked if there were any fundamental differences between the definitions of the Parliamentary Law Advisor on the one hand, and the State Law Advisor on the other. If not, he suggested that they should come to an agreement with regard to the drafting, as the Committee should not be bogged down with these details.

Section 19 amending Section 16(4)(b)
This clause amended Section 16(4)(b). Adv Vassen suggested that there were unclear descriptions in S16(4)(b)(ii) and(iii). The words “an act which is degrading of human beings” in sub-clause (ii) were too ambiguous. Also, the words “encourages or promotes harmful behaviour” in sub-clause (iii) were so broad that it could refer to activities like smoking and drinking as well. He proposed the deletion of these words in these sub-clauses.

Adv Kweta disagreed, saying that these clauses were broad so that they could capture the purpose of the Bill where other provisions may not have done so. If one was too specific, one ran the risk of excluding areas that needed to be included.

Mr Tolo argued that one could not pass legislation which was open to numerous interpretations. Law must be clear and understandable and should not be subjective. These types of laws would leave one open to litigation due to its vagueness.

Mr Setona referred to the issue of whether giving children pornographic material was dealt with in the Child Care Act. This should be checked on or they could end up duplicating the provisions of existing statutes.

Ms Bopape-Dlomo agreed with the State Law Advisors and said that one needed to contextualize the situation referred to in the Bill. One could not define “harmful behaviour” without examining the context in which the term was used. One should not be too specific as it could create the situation where one excludes its application to situations which may arise in reality.

Mr Setona indicated that he would not have a problem with the provision if further detail could be provided in the regulations.

Deputy Minister Gigaba felt that one should not try to interpret the provision outside the context of this Bill. The Bill itself provided the context in which the provisions should be interpreted. There were instances where the courts ruled that a degree of vagueness was not bad and that a law could be framed in general terms if it was phrased appropriately. In this case the provision could be contextualized within the framework of the Bill.

Mr Setona reiterated that he would support the provision if further detail was provided in regulations.

Ms H Lomoela (DA, Western Cape) expressed concern that vague legislation could be challenged in court. She asked if a provision could be found to be unconstitutional due to vagueness.

Mr Setona argued that the issue of vagueness had nothing to do with constitutionality.

Adv Kweta agreed with the Deputy Minister’s explanation on this issue. He added that one had to look at the intention of the legislation in order to interpret its provisions.

Adv Vassen argued that the courts have indeed found provisions to be unconstitutional due to vagueness. There had to be reasonable certainty about what the law was saying.

Clause 19 amending Section 16(4)(b)(iv)
Adv Vassen said that the State Law Advisors and the Department had agreed on the need to define “domestic violence” in the Bill. There needed to be a reference to the Domestic Violence Act and to include its reference to activities like stalking, damage to property and other abusive behaviour.

Mr Titus agreed, saying that the definition needed to be consistent with the purpose of the Act.

Adv Kweta agreed that there was a need for an appropriate definition and said that they would be able to draft this definition and present it to the Committee at a later stage.

Mr Setona also felt that there should be a definition in the Bill, but added that the definition should be drafted taking into account the context of this Bill.

Mr Tolo said that the various parties needed to have reached consensus on the definition prior to presenting it to the Committee.

Clause 19 amending Section 16(4)(b) and (c)
Adv Vassen said that the words “or is a matter of public interest” should be inserted after the word “merit” in lines 33 and 42. The reason was that these words appeared after the word “merit” in line 20 [sub-clause(a)] and were therefore appropriate in sub-clauses(b) and(c) too.

Adv Kweta agreed.

Clause 27 amending Section 23(3)
Adv Vassen’s proposal addressed the State Law Advisors’ concern raised at the 18 March meeting. The clause exempted broadcasters subject to regulation by Independent Communications Authority of South Africa (ICASA) from the provisions in S18(1). Furthermore S23(3) contained the words “subject to S24(a)(2) and(3)” which made the exemption partial. The State Law Advisors had argued that these words should be removed from the clause in order to ensure consistency with the Constitution and to ensure that the Film and Publication Board in no way encroached on ICASA’s mandate to regulate broadcasting. The State Law Advisors had indicated that they would ensure that the clause would not infringe S192 of the Constitution.

Adv Vassen agreed with the State Law Advisors’ opinion that this Bill could not regulate broadcasting. In order to avoid inconsistencies they had proposed that S23(3) should be removed from Clause 27. It should instead be placed under Clause 21. The reason for this was that the subject matter of S23(3) differed to that of Clause 27.

Concluding remarks by the Chair
The Chair said that another meeting would be held to deal with this Bill after the necessary research had been completed. He adjourned the meeting.


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