Johannesburg — A law requiring the submission of publications containing sexual conduct for prior classification was unconstitutional, the Constitutional Court ruled on Friday.
It found that prior classification of content dealing with sexual content before publication limited the right to freedom of expression which was vital to a democracy.
The judgment was delivered by Judge Thembile Skweyiya.
The submission requirement formed part of amendments made to the Films and Publications Act in 2010.
The court ruled that the limitation was not justifiable. The system of administrative prior-classification, as created by the Act, did not achieve its purposes in a proportional manner.
There were also less restrictive alternatives for achieving the Act's purpose of controlling publications of this kind.
Prior restraint through the courts could achieve the purpose by placing less severe restrictions on the right to freedom of expression.
Permitting a publisher to approach the board for an advisory opinion on a publication, without being penalised for failure to do so, was also a less restrictive alternative.
The amendments, introduced in 2010, require that publications --excluding newspapers -- are approved before publication if they contain sexual conduct.
Print Media SA and the SA National Editors' Forum argued that pre-publication classification should not be necessary for publications aimed at educating the public or condemning the act of sexual conduct.
The High Court in Johannesburg previously found the provisions inconsistent with the Constitution.
Skweyiya found it unnecessary, in the circumstances, to consider the argument that the criteria for prior administrative classification was vague.
The court also ruled that the unequal treatment of magazines compared to newspapers "offended the right to equality and the legality principle without justification".
A drafting error, which criminalised the failure to submit for classification on the request of any person, even if after public dissemination, was corrected to operate only in relation to the failure to submit for prior classification.