Films and Publications Amendment Bill: NCOP Amendments; IEC Policy on Donations; IEC Memorandum of Understanding with Department of Foreign Affairs

Meeting report

Films and Publications Amendment Bill (B27B-2006)
The Chairperson recalled that the he had adjourned the previous meeting so that Members could digest the input made by the State Law Advisor and the proposed amendments submitted by the National Council of Provinces (NCOP).
           
Adv Mukesh Vassen, Parliamentary Legal Advisor, noted that the proposed NCOP amendment to section 1 (2) created a gap, which would exclude a certain category of sexually explicit material from needing classification. As a result, he suggested that the word “explicit” be removed to cover that oversight.

Mr S Swart (ACDP) enquired whether the word “explicit” would then also have to be omitted from clause 19(4)(b).

Mr Vassen clarified that section 19(2) dealt with the obligatory pre-classification of certain materials. This implied that magazines such as Hustler be submitted for classification. Also, he reasoned that the publication of certain legitimate material would be thus excluded as a result of the current definition of explicit sexual conduct in the Bill.

Mr Iyavar Chetty Acting CEO: Film and Publication Board (FPB), clarified that section 19(2) referred to publications which have to be submitted for classification, whereas section 19(4) addressed what happened to such publications once they had been submitted. Lastly, he stated that the word “explicit” should be excluded in the former clause whilst retained in the latter one.

Mr Swart rejected the NCOP’s proposal that the words “sexual or domestic” be replaced by the word “extreme” in clause 19(4)(b)(iv). He argued that that this amendment failed to take into account sexual violence of a non-extreme nature.

Mr Chetty also disagreed with the amendment proposed by the NCOP. He advised that these words be retained in the Bill because the FPB’s guidelines also contained reference to them. In addition, he could not foresee any problems with defining the term “domestic violence” for purposes of the Bill.

Mr K Morwamoche (ANC) enquired whether the existing definition of domestic violence, contained in the Domestic Violence Act (DVA), could be used in the Bill.

Mr Vassen replied that the existing definition was not suitable for purposes of classification because it was too wide and included things like damage to property.

The Chairperson believed that the definition in the DVA should not be applied to the Bill.

Ms Yolande van Aswegen, Senior Legal Administration Officer, Department of Home Affairs, explained that during the NCOP deliberations, the Department had attempted to define the term “domestic violence”. However, the Department could not decide whether to provide a definition in the Bill or to use the existing definition in the DVA. Both presented problems - the former was considered too specific and the later too wide. Consequently, the Department decided to replace the words “sexual and domestic” with “extreme” because it would include both forms of violence.

The Chairperson asked the Department to provide an example of what constituted extreme violence.

Ms van Aswegen explained that any form of violence that would be harmful to children could be classified as extreme violence. Also, she mentioned that if the Committee resolved to retain the current provision, two separate definitions would have to be established in the Bill.
 
Mr Swart maintained that there might be incidents of sexual violence that were not extreme, which would not be covered for in the Bill. He stated that the word “extreme” had a certain legal connotation and did not see why it was necessary to limit sexual violence. For that reason, he suggested that the Committee reject the NCOP’s amendment and retain the current formulation.

The Chairperson respected the process undertaken by the NCOP. However he felt that the Committee should revert to its standpoint. He instructed the Department to work on a proposed definition and present it to the Committee at its next meeting.

In addition, he cautioned the Committee not to rush the process and to ensure that that the eventual legislation could withstand constitutional scrutiny.

Mr Swart observed that section 19(2)(a) was further amended by the insertion of qualifications for sexual conduct. He viewed this as an unwarranted limitation and sought an explanation for this.

Mr Vassen explained that the amendment was necessary because the application of the current clause would result in the pre-classification of every newspaper article on rape and academic journal and magazine article on sexual health.

The Chairperson queried why such publications could not be pre-classified.

Mr Vassen responded that this would infringe section 16 of the Constitution. In any event, he felt that the FPB did not have the necessary capacity to consider all these publications.

Mr Chetty mentioned that the Bill provided an exemption for bona fide documentary, scientific and literary publications. Furthermore, he asserted that newspapers were excluded from pre-classification in section 19(4)(b) and that only magazine publications in clause 19(2) were subjected to this process. Also, he stressed that classification was not a violation of section 16 of the Constitution because it only imposed and age restriction on a publication and was not a ban on it. Finally, he confirmed that the FPB did not have a problem with capacity because it had more than sixty examiners.

Mr Vassen was adamant that the clause would have a “chilling effect” on the freedom of speech. He contended that it was not the fact that classification was authorised, but that material would have to be submitted before publication, which was an infringement of section 16.

The Chairperson asked whether section 16 was limited in any way.

Mr Vassen replied in the affirmative, but added that any limitation would have to be reasonable and justifiable.

The Chairperson was of the opinion that this was the case.

Mr Morwamoche remarked that freedom of speech did not imply that pornography could be distributed everywhere.

Mr Vassen reminded Members that in terms of section 44 of the Constitution, Parliament was required to act in accordance with, and within the limits of the Constitution.

The Chairperson stated the Committee was simply trying to understand all the issues relating to limitations, without undermining the Constitution.

In addition, the Chairperson believed that images of sexual conduct were located in the very media that were being exempted from pre-classification.

Mr Chetty stated that children generally did not read newspapers but magazines. In addition, he also identified television as major distributor of pornographic material.

The Chairperson commented that the amendments from NCOP exposed the different approaches taken by the two committees. Accordingly, he proposed a joint workshop of the two committees and the legal experts. The debate at the workshop needed to focus on the role of the Independent Communication Authority of South Africa (ICASA) and broadcasters. It was also expected that there would be discussion on how to regulate the distribution and policing of pornography on cell phones and on the internet. Lastly, he encouraged Members to study the NCOP amendments further and investigate the issues more thoroughly.

All members endorsed the proposal and it was decided that the workshop would be convened over two days in the final week of July. Precise details would be sent to Members at a later stage.

IEC Policy on Donations; IEC Memorandum of Understanding with Department of Foreign Affairs
The Chairperson recalled that the Committee had discouraged the IEC from receiving donations from government departments. The reasons for this were twofold.Firstly, departments did not indicate such allocations in their budgets and secondly, all allocations were intended for service delivery. Members should review the document together with the draft memorandum of understanding between the IEC and the Department of Foreign Affairs concerning the international work that the former would be called upon to do. He gave Members the assurance that this issue would be pursued further.

Moreover, the Chairperson noted that the refugee seminar, which took place in Parliament on 20 June was well attended and a great success. He thanked Members for assisting with the preparations, and stated that a report on this would be tabled shortly before the Committee.

Erratum to the Film and Publication Board Annual Report 2006/07
Members accepted the correction, and adopted the FPB’s 2006/07 Annual Report with the amendment.

In conclusion, he wished Members well for the upcoming recess, and warned that the Committee would be confronted with new challenges in the next term.