ONLY publications that fell outside those regulated by the press code would have to submit content for classification ahead of publication, and this did not amount to censorship, legal counsel for the home affairs minister told the Constitutional Court yesterday.

The minister and the Film and Publications Board, supported by the nongovernmental organisation (NGO) Justice Alliance of SA, are seeking to uphold the sections of the Film and Publication Act that the South Gauteng High Court found to be inconsistent with the constitution.

Those opposing the prepublication requirements of the act argue that the sections in question only exempt newspapers, and not magazines, from the need to submit content to the Film and Publications Board before publication.

Under the act, publication without approval is a criminal offence and could lead to imprisonment for up to five years.

Print Media SA and the South African National Editors Forum (Sanef), supported by NGO Section 16, are opposing the government in court.

They said that while they supported the act, they oppose prepublication classification.

They also want magazines to be protected with newspapers.

The act is intended to protect children from exposure to and involvement in inappropriate content, especially sexual content.

The Department of Home Affairs and the board argue that the classification requirement is justified, even if it infringes on freedom of expression, as it is aimed at educating consumers, protecting children and eliminating child pornography.

Counsel for the board and Home Affairs Minister Nkosazana Dlamini-Zuma, Ishmael Semenya SC, said newspapers had proven that by adhering to the press code they abided by the act, while magazines which were not covered by such a code needed to be regulated.

Counsel for Print Media SA and Sanef, Gilbert Marcus, said s ection 24(2) (a) in particular was irrational, vague and unconstitutionally limited freedom of expression. He said that if, for example, the Mail & Guardian and the Financial Mail wanted to publish the same article, the Financial Mail would have to submit the article for classification since it would not be covered by the newspaper exemption.

Justice Alliance of SA's Darryl Cooke SC did not believe the press code was sufficient control for any publication, and argued that it was reactive, while the act was attempting to be proactive.