PRESS RELEASE

PRESS RELEASE BY CAUSE FOR JUSTICE: 9 NOVEMBER 2018

* FOR IMMEDIATE RELEASE *

SUBJECT: NCOP Committee says no the vile and dehumanising porn, but nods the head to sexual violence, whilst trying to steer clear of procedural irregularities

“All things considered, there are THREE big stories here”, said Cause for Justice (CFJ) Executive Director and Legal Counsel, Ryan Smit.

(1) Sanity at last starting to prevail in Parliament

On 24 October 2018, the Select Committee on Communications and Public Enterprises (a working committee of the National Council of Provinces/NCOP), deliberated on the Films and Publications Amendment Bill clause-by-clause. During September, CFJ provided the Committee first with written submissions and later also with oral representations at a public hearing on the Bill – citing research on the harmful impact of pornography on society.

CFJ has been calling on Parliament for the past two and a half years (first in the National Assembly, where our calls were not heeded, and more recently in the NCOP) to not accept the Department of Communications’ proposals to legalise the distribution of vile and dehumanising forms of pornography. At the Select Committee’s recent meeting, sanity at last seems to have started prevailing.

In line with CFJ’s submissions, a number of Committee members expressed grave concerns about clauses proposing to remove the prohibition of pornographic material that violates the right to human dignity and/or depictions of acts that are degrading of human beings.

At the 24 October meeting, the Committee rejected these proposed amendments – deciding that degrading explicit materials will remain illegal in South Africa: a recognition of the fundamental value of the inherent dignity of human beings (section 10 of the Constitution) and that vulnerable individuals’ safety and protection from exploitation takes precedence over the fulfilment of primarily men’s desires for deviant sexual entertainment.

Smit pointed out, “We are dealing here with real people being used by others as ‘human toilets’ (coprophilia and urophilia) as well as other harmful and degrading paraphilia, and these vile acts being recorded and distributed. There is simply no constitutional justification for providing legal protection for the distribution of such materials and the Select Committee was right to retain the criminal prohibition of such distributions.”

(2) Monumental achievement for our democracy: The majority party and opposition able to agree

As significant as the substance of the Committee’s decision is, the fact that the majority party and the main opposition were able to find each other on this is equally news-worthy, if not more so.

The way things played out in the Committee, saw the DA proposing the retention of the legal prohibition and the ANC backing them up and agreeing with their opponents.

“This is a monumental achievement in our current political climate. To see the two major political opponents reaching agreement on something for the sake of the common good (in the interest of justice and in the public interest) is testament to the fact that we are always able to agree on the fundamentals – in this case, that South African law should not tolerate or provide protection for expression that exploits people’s (right to) inherent human dignity, including not to be treated in a cruel, inhuman or degrading way (as required by section 12(1)(e) of the Constitution)”, Smit said.

*** Side note:  There are however several shocking slip-ups too. To name but two:

• Shocker #1: It is extremely disturbing that the Committee has chosen to legalise the distribution of materials containing explicit depictions of the actual infliction of sexual violence. Parliament inserted the defined term “sexual violence” into the legislation during the previous amendments in 2009, presumably with the specific purpose of prohibiting the distribution of materials depicting sexual assault crimes for financial gain (crimes such as contained in sections 5, 6 and 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007).

By removing the prohibition against depictions of “sexual violence”, the Committee is in effect giving a thumbs up for criminals to film their sexual assault victims being assaulted and distribute the filmed material to adult audiences for commercial gain.

• Shocker #2: Another inexplicable oversight is the Committee’s failure to outlaw the distribution of materials depicting sexual acts with a human corpse (the act itself is a criminal offence in terms of section 14 of the 2007 Sexual Offences Act).

(3) Questions about possible irregular proceedings after 24 October

A surprising development since the meeting on 24 October, is that the Committee has put the Bill back on its Agenda – apparently to re-visit certain clauses of the Bill. At first glance, this seems very unusual. The Parliamentary Monitoring Group’s report (including audio recording) on the 24 October Committee meeting, records that the Committee adopted all clauses of the Bill and also adopted its Committee report on the Bill. In the normal course, the Bill would now have to be presented to the NCOP in a plenary session.

It is unclear whether the Committee might now be acting ultra vires (acting outside the scope of its legal authority), which would make its further actions in relation to the Bill irregular/reviewable proceedings. The Committee met on 7 November to discuss the Bill, but as it turned out, was unable to form the required quorum. The Committee is now scheduled to meet on 14 November.

From CFJ’s interactions with the Committee secretary, we were able to confirm that due to certain MP’s walking out at a late stage of the meeting of 24 October, the necessary quorum was present during the “first part” of the meeting (the adoption of clauses 1 to 22 of the Bill), but not thereafter (the “second part” of the meeting during the adoption of clauses 23 to 34 of the Bill). Therefore, the Committee is most likely reconvening to deliberate and adopt clauses 23 to 34 afresh with the requisite quorum of members present to give legal authority to its actions.

The decision to retain the prohibition of vile, dehumanising and degrading pornographic material was taken by Committee during the first part of its meeting (whilst it had the requisite quorum) on 24 October and was therefore a legal and final decision.

[PRESS RELEASE ENDS]

For further queries, contact CFJ at:
mail: info@causeforjustice.org
Tel: 074 355 0775