While contributing to the drafting of the above pieces of legislation, the Freedom of Expres sion Institute (FXI) is preparing draft legislation to repeal the main censorship laws in a single act of Parliament. If it is promulgated, the Act - known as a General Amendment or Omnibus Act - will repeal all censorship laws contravening the Interim Constitution. The majority party in Government, the African National Congress (ANC) is presently considering using research conducted over the last three years by the Media Defence Fund of the FXI and the Centre for Applied Legal Studies to argue for the legislation. The research catalogues the main censorship laws still in existence, and suggests which ones should be repealed in their entirety, and which ones contain sections that should be repealed.
The fact that most security related legislation has fallen into disuse should not lull anyone into a false sense of security: should the Government at some stage feel threatened by the disclosure of certain information, they may decide to dust the cobwebs off these old statutes and use them. This was clearly demonstrated by Defence Minister Joe Modise, who used the Protection of Information Act last year to interdict the Mail & Guardian (formerly the Weekly Mail & Guardian) which he erroneously thought was going to publish more information about a branch of the security establishment called the Directorate of Covert Collection. This incident demonstrates that these laws need to be removed out of temptation's way in case similar incidents arise again.
Other than an Act of Parliament, the laws can be repealed by the Constitutional Court declaring them in violation of the Freedom of Expression and Access to Official Information clauses in the Constitution. This is a very time-consuming and costly route: cases have to be found that involve the relevant Acts, and these then have to be heard by the Constitutional Court. The two approaches can be seen as essentially complementary: if Parliament decided to retain some censorship legislation, these laws can then be subjected to Constitutional litigation.
The Government is less shy about using the old Acts controlling the possession and distribution of films and publications; hoary favourites are the Publications Act of 1974 and the Indecent or Obscene Photographic Matter Act. Locally produced adult magazines and imported pornographic material are still being seized under these Acts, in spite of the fact that they have been widely recognised as unconstitutional. New laws presently being drafted will also render many of these laws obsolete: the two most important are the Open Democracy Bill (to establish a Freedom of Information Act) and the Film and Publications Bill. The former extends and codifies the right of access to official information, but may yet take some time to finalise.
The latter is being finalised by a Parliamentary legal team, and should be presented to Parliament in September. The Bill has been amended apparently to take into account public submissions that were requested in March this year. These amendments have left the main substance of the Bill largely intact. The most substantial change is to the provision on the restriction of scenes of extreme violence: the Bill no longer requires the classification committees to demonstrate a 'clear and present danger' when restricting such material for possession and distribution. Indications are that the Department of Home Affairs would like to see the Bill passed as soon as possible to circumvent several Constitutional Court cases involving publishers and distributers of 'adult films and publications'.
Parliament will have to move very fast in order to pre-empt these cases, given that the first two freedom of expression cases will be heard together by the Constitutional Court from 5 September. The defendant is the owner of the 'Pleasure Dome' group of shops, which distribute and sell pornographic videos. The owner's house was raided by the police and some 180 video tapes were confiscated. Most tapes depict consensual, nonviolent sex, and a few could be classified as hard-core, and possibly even as child pornography. The owner has been charged with a violation of the Obscenity Act, which makes it an offence to possess 'any indecent or obscene photographic matter' . In the Act, obscenity is defined as 'photographic matter or any part thereof depicting, displaying, exhibiting, manifesting, portraying or representing sexual intercourse, licentiousness, lust, homosexuality, lesbianism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality or anything of a like nature.'
The Freedom of Expression Institute (FXI) and the Centre for Applied Legal Studies (CALS) have been granted the opportunity to file an amicus curiae brief challenging the constitutionality of the law's definition of obscenity. In the brief, the two organisations acknowledge that pornography is indeed one area where the State can legitimately regulate freedom of expression, but that the Act does not regulate in a constitutional manner, and that its terms of reference are vague. It also defines 'obscene' in a way that does not make any distinction between violent, non-consensual and nonviolent, consensual pornography. The organisations further argue that a harms test should be applied to determine the instances where pornography could be limited, and that these instances should be defined as narrowly as possible.
In spite of the fact that the whole of the Indecent or Obscene Photographic Matter Act will be repealed with the promulgation of the Film and Publications Act, the case will be important for several reasons. If the Court makes a ruling that balances freedom of expression and the freedoms of equality and dignity in an enabling fashion, Parliament will be obliged to review the pornography provisions in the Act to bring them in line with this judgement, hence the political importance of ensuring that the judgement strengthens the constitutional base of freedom of expression. Whether the Constitutional Court or Parliament wins in the race for a new legislative framework for freedom of expression remains to be seen. Until then, the police will continue to confuse the situation even more by prosecuting people who violate outmoded laws.