t the particular time. This also amounts to a defence of absence of negligence on the part of the media defendant. The defence remains in an early stage of development.
A good example that illustrates the application of the reasonableness defence and the difficulty of predicting whether it will succeed, is the decision of the Supreme Court of Appeal in Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
In this case, the Mail & Guardian newspaper succeeded in defending a claim brought by Sankie Mthembi-Mahanyele, the former Minister of Housing, in relation to a claim made by the Mail & Guardian that Mthembi-Mahanyele was corrupt.
Although the Mail & Guardian did not argue that this statement was true, two of the judges in the Supreme Court of Appeal agreed that the newspaper had acted reasonably in making the allegation, as a result of the political nature and context of the speech and the steps taken by journalists to verify the allegation, amongst other factors. But two other judges disagreed with this approach. The newspaper ultimately succeeded because the remaining judge held that the allegation was not defamatory of Mthembi-Mahanyele in the first place.
It should also be noted that defamation is not only a delict in South Africa, but can also be a crime. In the criminal context, the State must prove all the elements of the offence beyond a reasonable doubt, including the fact that the defendant acted unlawfully and with the intention to defame.
The Films and Publications Act
The Publications Act, No. 42 of 1974 (the 1974 Act) gained notoriety as the tool with which the government of the day prevented the general public from viewing and reading any materials that were considered to be "undesirable". The 1974 Act included the power to ban items such as statues, models, films and newspapers on the basis that they were undesirable. The term "undesirable" was the subject of much debate.
The transition to a democracy based on freedom and tolerance brought about a radical rethink of the censorship regulations. The result of this process was the Films and Publications Act, No. 65 of 1996 (the 1996 Act), which came into force on 1 June 1998.
The 1996 Act established two bodies known as the Film and Publication Board and the Film and Publication Review Board. The 1996 Act:
- sets up a structure through which any films that are intended for distribution and exhibition, and any publication in respect of which complaints have been made, are required to pass; and
- provides for the classification of publications and films in accordance with the material that is contained therein. The schedules to the 1996 Act set out the criteria upon which such classifications are based. The criteria are specific and were designed to create greater clarity in the area of censorship.
The two types of publications and films which are subject to the greatest restrictions are the XX and X18 ratings. Schedule 1 sets out the criteria for an XX rating for publications which include:
- a visual presentation, simulated or real, of explicit violent sexual conduct;
- bestiality, incest or rape;
- explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm; or
- the explicit infliction of, or explicit effect of extreme violence, which constitutes incitement to cause harm.
The 1996 Act prohibits the distribution of publications or films that have been classified as XX, as well as the advocacy in a publication or film of hatred based on race, gender or religion and that constitutes incitement to cause harm, except in the case of a publication or a film of a bona fide scientific, dramatic, documentary or artistic nature (this exception does not apply to child pornography).
In addition, a person commits an offence if he or she is in possession of, creates, produces, broadcasts or distributes a publication that contains child pornography. Child pornography is defined broadly as covering any image, whether real or simulated, of a person