AIDA Nederland

BORDERS FOR BOOKS:  SOUTH AFRICA AFTER APARTHEID

GILBERT MARCUS *
Amsterdam, 26 April 2008

“Censorship is not an occupation that attracts intelligent, subtle minds”– J M Coetzee

INTRODUCTION
South Africa offers an interesting case study of the transition from a society characterised by widespread oppression to a constitutional state which guarantees freedom, dignity and equality for all.  This transition has been described as one from “a culture of authority” to a culture of justification “in which every exercise of power is expected to be justified;  in which the leadership exercised by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command”. 
This paper examines one facet of this remarkable transition.  It considers the regime of censorship which typified apartheid rule and contrasts it with the legal protections now afforded to freedom of expression under the newly established democratic order.  Finally, it considers the conditions necessary for the ongoing protection of freedom of expression.

CENSORSHIP UNDER APARTHEID

Under apartheid, South Africa was a society devastated by censorship.  I use the word “censorship” to cover not simply the banning books and films, but in a wider sense to mean a process which is used to filter out certain ideas and ideologies as a means of curtailing and suppressing the articulation of opposition to a particular political, social and economic dispensation. 
The banning of books, films, plays and magazines was the most visible form of censorship and it is this aspect upon which I shall focus. 
The first measure to deal systematically with censorship was the Publications and Entertainments Act of 1963.  Under this statute, some 8,768 publications were prohibited.  This law was repealed and replaced by the Publications Act of 1974.  In the seven year period from 1975 to 1982, 8,898 publications were banned under this law. 
The method of control was crude and effective.  The administrative functions of the 1974 Act were performed by a Directorate of Publications.  Decisions on whether or not to prohibit a particular publication were entrusted to one of several committees of publications constituted by the Director of Publications.  Those eligible to sit on a committee had to be persons who were fit to perform the functions entrusted to committees “by reason of their educational qualifications and knowledge”. 
The work of these committees was shrouded in secrecy.  The names of the individuals compromising a particular committee were never revealed and the Act precluded interested parties from a right of audience before these committees.  In their deliberations, committee members were not required to have regard to the rules of natural justice designed to achieve a fair trial.  Publications were assessed according to a standard of “undesirability” which was defined in the following way:
“For the purposes of this Act any publication or object, film, public entertainment or intended public entertainment shall be deemed to be undesirable if it or any part of it –

(a)    is indecent or obscene or is offensive or harmful to public morals;

(b)    is blasphemous or is offensive to the religious convictions or feelings of any section of the inhabitants of the Republic;

(c)    brings any section of the inhabitants of the Republic into ridicule or contempt; 

(d)     is harmful to the relations between any sections of the inhabitants of the Republic; 

(e)     is prejudicial to the safety of the State, the general welfare or the peace and good order.  …”

An appeal from a committee decision lay to the Publications Appeal Board.  The Board was the final arbiter on questions of undesirability.  Once a publication was declared undesirable, its production and distribution constituted a criminal offence.  In cases of publications deemed to be radically undesirable, mere possession of such publications constituted a crime.  In the case of periodical publications, committees had the power to declare every future edition undesirable.  In 1978 the Act was amended to permit the appointment of a committee of experts to advise the Board on the literary or artistic merit of a particular work. 
Many literary works fell foul of the censors.  Under the 1963 Act, bannings included Edmund Wilson’s Memoirs of Hecate County, Mary McCarthy’s The Group, Norman Mailor’s An American Dream, Philip Roth’s Portnoys Complaint, John Updike’s Couples, Erica Jong’s Fear of Flying and André Brink’s Kennis Van Die Aand. 
This trend continued under the 1974 Act.  Many major works of literature were also banned although, in some cases, the banning was overturned on appeal to the Publications Appeal Board.  Among the literary works to receive the attention of the censors were André Brink’s Rumours of Rain, Sipho Sepamla’s A Ride on the Whirlwind, a collection of short stories edited by Mothobi Mutloatse entitled Forced Landing, the black literary magazine, Staffrider, a collection of poetry by Oswald Mtshali entitled Fire Flames, Wessel Eberson’s Divide the Night, Dambudzo Marechera’s Black Sunlight and Nadine Gordimer’s Burger’s Daughter. 
The banning of Burger’s Daughter and its unbanning on appeal, is, in some ways, emblematic of the contemptible system of censorship which then prevailed.  A committee of publications declared the novel to be undesirable on all five grounds listed in the definition of undesirability.  In its reasons for decision (only furnished because the matter went on appeal) the committee described the publication as a “political novel” with a theme of “black consciousness and organising for the coming black revolution”.  The political bias of the committee was manifest.  It stated:
“The authoress exploits the white/black dichotomy in South Africa for political ends.  The negative is stressed:  the positive ignored.  No credit is given for the considerable efforts being made and the successes achieved in narrowing the gap.  Scorn is poured upon such efforts.  (See, for example, the comments on South Africa’s developing sports policy). 

The novel will hold the interest and attention of few other than the ‘dedicated’.  It is the type of work the London-based Anti-Apartheid Committee will welcome.”

One member of the committee considered the novel to be so radically undesirable that he recommended that it be prohibited for possession. 
On appeal, a committee of experts was appointed to assess the novel.  The “experts” supported the unbanning of the novel.  The Board stated that the experts had “succeeded in creating a doubt in the minds of the members of the Appeal Board as to whether the alleged undesirabilities are indeed undesirable”.
Moreover, an expert on “security matters” had advised the Board “that the possibility that this could lead to real prejudice was minimal” and that “this minimal possibility was outweighed by the undoubted literary value of the publication”.  Strong and derogatory language was a “typical feature of the South African political scene” and political criticism “is often one-sided and would probably, in most cases, not fall within the bounds of good taste or be in accordance with the opinion of a substantial number of South Africans”.  Ultimately, said the Board, “the question is whether the normal, balanced, right-thinking and reasonable person, reading this book as a whole would regard the book or a part of it (as read in context) as bringing the white section of the community into contempt within the meaning of sec 47(2)(c);  or prejudicing the relations between black and white;  or being prejudicial to the safety of the State”.  This question was answered in the negative and the Board found that “as a result of its
one-sidedness the affect of the book will be counter-productive rather than subversive”. 
Reasoning of this sort typified many of the decisions regarded by some as “enlightened” because the Board lifted a banning.  In truth, however, the system was deeply distasteful and, for this reason, many refused to be tainted by a system regarded as indefensible. 
THE DAWN OF DEMOCRACY
On 27 April 1994, South Africa held its first democratic elections.  On the same day it adopted an interim constitution with a bill of fundamental rights embodying internationally accepted human rights’ norms under the guardianship of an independent judiciary.  The Interim Constitution was replaced by a Final Constitution which came into effect on 4 February 1997.  Section 16 of the Constitution guarantees freedom of expression in the following terms:
    “16.    Freedom of Expression

(1)    Everyone has the right to freedom of expression, which includes –

            (a)     freedom of the press and other media; 

            (b)    freedom to receive or impart information or ideas;

(c)    freedom of artistic creativity;  and

(d)     academic freedom and freedom of scientific research.

    (2)    The right in sub-section (1) does not extend to –

            (a)    propaganda for war;

            (b)    incitement of imminent violence;  or

(c)     advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The Constitution bolsters this guarantee with the related right of access to information.  None of the rights in the Bill of Rights are absolute.  All are subject to limitation. 
In its first major decision dealing with the constitutional guarantee of freedom of expression, the Constitutional Court stated:
“Freedom of expression lies at the heart of democracy.  It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.  The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.”

The Court went on to state that freedom of expression –
“ … is one of a web of mutually supporting rights in the Constitution.  It is closely related to freedom of religion, belief and opinion (Section 15), the right to dignity (Section 10), as well as the right to freedom of association (Section 18), the right to vote and to stand for public office (Section 19) and the right to assembly (Section 17).  These rights taken together protect the rights of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinion.  The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually to collectively, even where those views are controversial.  The corollary of the freedom of expression and its related rights is tolerance by society of different views.  Tolerance, of course, does not require approbation of a particular view.  In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.”

The context in which these observations were made was unusual.  The case was not concerned with the kind of issue that conventionally arises when freedom of expression is engaged.  It involved a challenge to a prohibition in the Defence Act 44 of 1957 on membership of trade unions by members of the permanent force.  It also entailed an attack upon another provision of the Defence Act which precluded members of the Defence Force from engaging in acts of public protest which was widely defined to preclude members of the Defence Force from forming, airing and hearing opinions on matters of public interest and concern.  In the result, the Constitutional Court declared both provisions to be in conflict with the guarantee of freedom of expression.  Since this decision, the Constitutional Court has not departed from this approach.  If anything, it has been strengthened.  The Constitutional Court has stressed the role of a free press in a democracy.  For example, it has stated:
    “The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society.  Every citizen has the right to freedom of the press and the media and the right to receive information and ideas.  The media are key agents in ensuring that these aspects of the right to freedom of information are respected.  The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate.  … Furthermore, the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.  … In a democratic society, then, the mass media play a role of undeniable importance, they bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.  As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.”
The notorious Publications Act has been repealed and the regime of censorship embodied in that legislation is essentially a matter of historical interest only. 
SAFEGUARDING FREEDOM OF EXPRESSION
Guaranteed rights protected by an independent judiciary are a necessary but not a sufficient safeguard of freedom of expression.  Ultimately, there must be the political will to protect rights.  Although South Africa now has a constitution which safeguards freedom of expression and an independent judiciary which has given force to that right, it would be foolish to be complacent about the state of free expression in South Africa.  I suggest that there are three reasons for so thinking. 
First, there is a disjuncture between the legal protection of free expression and the practice of free expression.  While South Africa enjoys the greatest legal protection of free expression in its history, we are a long way from a society which truly fosters and respects open debate.  There is an unfortunate tendency within our society to denigrate one’s opponent sometimes on grounds of race or attribute to one’s opponents an ulterior purpose instead of engaging with the merits of the debate.  Politicians are adept at this but it occurs frequently in civil society as well. 
Second, it would be naïve to believe that simply because our Constitution protects freedom of expression there are no threats to free expression.  There have been recent suggestions for introducing legislation that may erode freedom of expression.  One such suggestion is for the establishment of a statutory tribunal to regulate the press. 
Third, the parameters of free expression remain highly contested.  This is well illustrated by the divergence of opinion in the courts concerning the intersection between trade mark protection and freedom of expression and how to strike the proper balance between freedom of expression and the right to an unblemished reputation.  There are still many battles to be fought around freedom of expression and it is important that these cases be contested. 
The victory of democracy requires protection and nurturing.  It is critical that hard won victories be protected.  Events to the north of South Africa in Zimbabwe show just how quickly a society with a paper constitution and subservient judiciary can disintegrate.