Constitutionality of Certain Provisions of the Revised Films and Publications Amendment Bill (National Association of Broadcasters)

Oct 3, 2026

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National Association of Broadcasters (NAB) seeks a legal opinion on whether selected clauses of the Revised Films and Publications Amendment Bill are unconstitutional insofar as they relate to television broadcasting. The opinion focuses first on the practical effects of clauses addressing film classification and the creation of offences connected to broadcasting films containing “sexual conduct”. It explains how the revised exemption operates, including exceptions that still impose FPB-linked classifications through criminal penalties and practical submission requirements.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages36

Reading Time1 h 31 min

AccessFree to download

Introduction

Classification of Films

Current statutory exemption for licensed broadcasters

Revised Bill: new exemption and how it operates

Exceptions and criminal offences tied to FPB classifications

Practical impact on broadcasters' submission obligations

OPINION NATIONAL ASSOCIATION OF BROADCASTERS THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE REVISEDFILMS AND PUBLICATIONS AMENDMENT BILL INSOFAR AS ITRELATES TO BROADCASTING INTRODUCTION 1.Consultant is the National Association of Broadcasters("the NAB"). 2. The NAB requires an opinion from us in relation to the revised Films andPublications Amendment Bill 27B-2006("the revised Bill")currentlybefore the Portfolio Committee on Home Affairs. 3. The NAB seeks an opinion regarding whether certain clauses of therevised Bill are unconstitutional insofar as they deal with televisionbroadcasting.We do not,therefore,consider in this opinion whetheraspects of the revised Bill are unconstitutional insofar as they deal withother forms of the media. 4. In this opinion,we deal with two clauses of the revised Bill that,in ourview,are unconstitutional: 4.1 Clauses 21 and 29 of the revised Bill -dealing with classificationof films;and 4.2 Clause 29 of the revised Bill -dealing with the creation ofoffences in relation to the broadcast of films containing "sexualconduct” 5. In each case we deal first with the effect of the clauses in question andthen their constitutionality. # CLASSIFICATION OF FILMS 6. Section 23(3)of the Films and Publications Act 65 of 1996("the current Act")currently provides as follows: "A person who is or is deemed to be the holder of abroadcasting licence in terms of the IndependentBroadcasting Authority Act,1993 (Act 153 of 1993),and whois subject to section 56(1)or(2)of that Act,shall be exemptfrom the duty to apply for a classification of a film and,subject to section 26(4),shall in relation to the exhibition ofa film not be subject to any classification made by theBoard or any condition imposed in relation to the exhibitionof the film by the Board under section 18(4)(b).” 7. This section of the current Act therefore currently provides that,ingeneral,broadcasters who have a broadcasting license are not requiredto submit films to the Film and Publication Board("the FPB")forclassification and approval. 8. The revised Bill removes the current exemption which is provided tolicensed broadcasters.Unlike earlier versions of the Bill,however,therevised Bill replaces it with a new exemption.This is by virtue of clause27 of the revised Bill which proposes the inclusion of a new section23(3)of the Act: "A broadcaster who is subject to regulation by theIndependent Communications Authority of South Africashall,for the purposes of broadcasting,be exempt fromthe duty to apply for classification of a film or game and,subject to section 24A(2)and (3),shall in relation to a film or game,not be subject to any classification or conditionmade by the Board in relation to that film or game." 9.The phrase "subject to"has a clear and accepted meaning.Its purposeto establish what is dominant and what subordinate or subservient. Sv Marwane 1982(3)SA717(A)at747H-748A 10.In the present context this means that although the proposed section23(3)states that licensed broadcasters are not subject to anyclassification or condition made by the FPB,where the proposedsections 24A(2)and (3)require licensed broadcasters to adhere to theclassifications and conditions of the FPB,this prevails and licensedbroadcasters must indeed adhere to the classifications and conditions ofthe FPB. 11.Thus in our view,the effect of the proposed section 23(3),if enacted,would be as follows: 11.1 Licensed broadcasters willnot,in general,be required to submitfilms for classification to the FPB in advance of screening them. 11.2 However,this is subject to a number of exceptions statedexplicitly in the revised Bill: 11.2.1 The proposed section 24A(2)(b)would still apply tolicensed broadcasters-it would therefore be a criminaloffence for licensed broadcasters to broadcast a film that has been accorded a "refused classification"orwould have been classified as such by the FPB had itbeen submitted for classification. 11.

FAQs

What is the NAB asking for in this opinion?

The NAB requests an opinion on whether certain clauses of the Revised Films and Publications Amendment Bill are unconstitutional as they apply to television broadcasting.

Which parts of the revised Bill are addressed regarding film classification?

The opinion deals with clauses 21 and 29 concerning film classification, and clause 29 also concerns offences relating to broadcasting films containing “sexual conduct”.

Does the Revised Bill remove broadcasters’ obligation to obtain film classifications from the FPB?

It removes the general obligation, but exceptions remain. In practice, broadcasters still face criminal penalties if they broadcast films that are refused classified or classified as “XX” or “X18”, including those that would have been classified that way had they been submitted, which can force submissions in many cases.

Oct 3, 2026

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