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It is a joy to see the Constitutional Court give the censors a dose of their own medicine in Print Media SA and Sanef versus the Minister of Home Affairs and Film and Publications Board. Judge Skweyiya, seizing the scalpel on behalf of a unanimous court, surgically performed “the complete excision” of the system of compulsory administrative prior restraint of protected speech. It was the Film and Publications Board itself that proposed the system of pre-publication censorship under which committees of uncles and aunties appointed by the Board, which is itself appointed by the Minister of Home Affairs, decide – just as in the bad old days - what may be published and what citizens may or may not see. They therefore become the bearers of the right to free expression, instead of the publishers, editors, writers and other creative persons, as the Court said.

In performing this surgery, the Court went beyond the confirmation of the South Gauteng High Court’s orders of constitutional invalidity, which extended to magazines the exclusion which newspapers negotiated for themselves when the Amendment Act was legislated in 2006, and even beyond the applicants’ plea for clarification of criteria before the system of prior restraint kicks in.

We only wish that the Constitutional Court could have thrown out pre-publication censorship also of the remaining categories. They are based on the Constitution’s section 16 (2), those categories of speech which do not enjoy the protection of the right to free speech. But they are not verbatim: hate speech in the Constitution pertains only to race, ethnicity, gender and religion, not “any identifiable group characteristic”. (A similar dilution of the immunisation occurred in the Equality Act of 2000). These sections were not however before the Court; and it would no doubt hesitate to intrude on legislative terrain when Parliament can legislate as it likes on instances of immunised speech under s 16 (2).

It remains the position of the DA that Film and Publications law should reside with the Justice Ministry. Its inclusion in the Home Affairs portfolio is a relic of the apartheid era, when censorship was not constrained by rights. It was only because the first democratic Home Affairs Minister was Prince Buthelezi that the original 1996 Film and Publications Act was progressive and rights-compliant. Amendment after amendment since then has turned the Act into a censor’s blunt instrument.