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[1996] ZACC 7
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Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT 20/95
Case,
Patrick
Case,
Inga
and
The
Minister of Safety and
Security
The
Minister of
Justice
The
Attorney-General
CASE NO CCT 21/95
Curtis,
Stephen
Roy
and
The
Minister of Safety and
Security
The
Minister of
Justice
The
Attorney-General
Heard on:

5 September 1995
Delivered
on:
9 May 1996
JUDGMENT
[1]
MOKGORO J
:
This case concerns the simultaneous adjudication of the matters of
Patrick and Inga
Case
(Case No. CCT
20/95),  and
Stephen
Roy Curtis
(Case
No. CCT 21/95) (hereinafter, when referred to collectively,  the
“Applicants”. )  All three were charged
with the
contravention of section 2 of the Indecent or Obscene Photographic
Matter Act, 37 of 1967, as amended (hereinafter,
the “Act”
or the “1967 Act”), in the Randburg Magistrates’
Court.
[2]
The charges were based on the possession by two of the Applicants
(Patrick and Inga Case),
(the “Case Applicants”), of some
150 video cassettes containing sexually explicit matter, and by
another of the Applicants
(Stephen Roy Curtis), of five similar
cassettes.  The cassettes in the possession of the Case
Applicants were seized, along
with various items of video-playback
and recording equipment, by the South African police in the course of
a raid on the Cases’
Sandton residence on February 1, 1993.
The cassettes in the possession of Applicant Curtis were taken from
Mr. Curtis
in a police operation conducted in a shopping centre
parking lot in Northgate, Johannesburg.
[3]
The Case Applicants made their first appearance in the Randburg
Magistrates’ Court
on February 24, 1995.   After a
number of further appearances they applied in terms of section 103(3)
of  the Constitution
of the Republic of South Africa, Act 200 of
1993 (hereinafter, the “Constitution”),  for the
proceedings to be postponed
pending an application to the Supreme
Court regarding the constitutional status of section 2(1) of the
Act.   The application
was granted without hearing any
evidence; proceedings in the Magistrates’ Court were suspended
in terms of section 103(4)(b)
of the Constitution, and referred to
the Witwatersrand Local Division of the Supreme Court.
Appearing before Schabort, J.,
the Applicants applied to have
the matter referred to this Court in terms of section 103(4) of the
Constitution, alleging that section
2(1) of the Act was inconsistent
with several sections of the Constitution.   Applicants’
motion was granted, and
the matter duly referred.
Proceedings against Applicant Curtis followed a parallel route to
this Court, and the two cases
were heard together on September 5,
1995.
The Question Referred
[4]
The learned judge made an order referring the following question to
this Court for consideration:
[W]hether the provisions of section 2(1) of the Indecent or Obscene
Photographic Matter Act, Act 37 of 1967, are inconsistent with
the
provisions of Chapter 3 of the Constitution, in particular the
provisions of section 8 (equality), 13 (the right to privacy),
14(1)
(the right to freedom of conscience), 15 (freedom of speech,
expression and artistic creativity), 24 (administrative justice)
and
33(1) (the permissible limitations of the fundamental rights
entrenched).
[5]
The President of this Court directed that the referred question be
dealt with as an abstract
question of law.   The Minister
of Home Affairs and the Government of the Republic of South Africa
(respectively, the first
and second intervening parties in this
matter), and the Applicant submitted briefs, as also did several
amici curiae
.
[1]
The first and second intervening parties contended that it was
necessary to lead evidence in order to determine the referred
question.  Such evidence, they argued, would facilitate this
Court’s consideration of the reasonableness or otherwise
of any
limitations placed upon any fundamental rights.   For the
reasons that appear below, I believe that this matter
can be disposed
of as an abstract question of law.  I therefore do not believe
that such evidence is necessary.
The 1967 Act and Obscenity Law in South Africa
[6]
A brief historical survey of obscenity law in South Africa furnishes
a useful background
to a consideration of the Act and its purpose.
Pre-Union cases established that the common law crime of public
indecency,
defined as “conduct in public [which] of its very
nature must tend to the depravement of the morals of others”,
[2]
may consist in the publication of an “indecent”
sketch.
[3]
In 1905, a Natal court convicted an editor responsible for an
“obscene” newspaper report of public indecency.
[4]
Statutory provisions in each of the colonies prohibited the
importation of indecent or obscene publications.
[5]
Measures were also enacted to penalise the transmission of such
matter through the mails.
[6]
[7]
After Union, the various colonial statutes relating to the
importation and posting of indecent
or obscene matter were replaced
by the Customs Management Act, 9 of 1913.   The
consolidating and amending Customs Act
of 1944 prohibited the
importation of any goods “indecent or obscene or on any other
ground whatsoever objectionable”;
such goods were subject to
forfeiture, and any person who knowingly possessed such goods was
guilty of an offense.
[7]
Domestically produced “indecent” materials remained
subject to various pre-Union statutes, including the
Cape Obscene
Publications Act,
[8]
provisions of the Transvaal Criminal Law Amendment Act,
[9]
and the Orange Free State Police Offences Ordinance,
[10]
which were in force until repealed and replaced in 1963, when
Parliament enacted the Publications and Entertainment Act (the “1963
Act”).
[11]
[8]
The 1963 Act was the first of three pieces of legislation that form
the legal foundation
for the modern regulation of  materials
considered indecent, obscene or immoral.  The second was the
Publications Act,
42 of 1974 (the “1974 Act”),
which repealed and replaced the 1963 Act.
[12]
The third was the 1967 Act, a section of which is the subject of the
present referral.  All three Acts trace their lineage
to the
Report of the
Commission of Enquiry in Regard to Undesirable Publications,
published on October 3, 1956, (the “Cronje Commission Report”),
a lengthy and detailed investigation of “indecent,
offensive or
harmful literature.”
[13]
[9]
Section 2(1) of the 1967 Act provides as follows:
Any person who has in his possession any indecent or obscene
photographic matter shall be guilty of an offence and liable on
conviction
to a fine not exceeding one thousand rand or imprisonment
for a period not exceeding one year or to both such fine and such
imprisonment.
Section 1 defines
indecent or obscene
matter as
follows:
[It] includes photographic matter or any part
thereof depicting, displaying, exhibiting, manifesting, portraying or
representing sexual
intercourse, licentiousness, lust, homosexuality,
Lesbianism, masturbation, sexual assault, rape, sodomy, masochism,
sadism, sexual
bestiality or anything of a like nature
.
[14]
[10]      This
1967 Act definition derived from that in the 1963 Act, which defined
matter “harmful to public
morals” as material dealing
improperly with,
inter
alia:
“
[S]exual intercourse, prostitution,
promiscuity, white-slavery, licentiousness, lust, passionate love
scenes, homosexuality, sexual
assault, rape, sodomy, masochism,
sadism, sexual bestiality, abortion, change of sex, night life,
physical poses, nudity, scant or
inadequate dress, divorce, marital
infidelity, adultery, illegitimacy, human or social deviation or
degeneracy, or any other similar
related phenomenon.”
[15]
That definition in turn was based
upon the recommendation of the Cronje Commission Report.
[16]
[11]      Aside
from its overt moralism, a legacy of the common law,  the
statutory regulation of obscenity
in South Africa has acquired a
distinctive political dimension.  As one authority puts it:
[South Africans] have been subjected to a system
of censorship which was intended to impose the Calvinist morality of
a small ruling
establishment on the entire population.
[17]
[12]      During
the second reading of the Indecent or Obscene Photographic Matter
Bill, the Minister of Justice
made clear that the mischief at which
the Bill was aimed was specifically the apprehended moral subversion
of “a Christian,
civilised country such as the one in which we
are living.”
[18]
The Minister also noted that:
[I]t is not at all uncommon to find in the
possession of one individual several hundreds of these photographs
and up to half a dozen
more of these films.  There would hardly
be any doubt that those people who have such photographs and films in
their possession,
do not only keep them for their own perverse
amusement, but also to defile the morals of others, and that
flourishing trade in those
articles is probably one of the motives
behind it.
[19]
Interpretations of the 1967 Act:  The Ambit of
the Definition of
Indecent and Obscene
[13]      The
sweeping ambit of the definition of
indecent
or obscene
material
in the Act was acknowledged by courts at an early stage.  In
S
v R
,  it was
noted that,
[T]he legislature could not have overlooked the
fact that any person can with comparative ease purchase in most
bookshops, cafes or
at bookstalls illustrated magazines, books,
reproductions or reprints of pictures of art, or pin-ups, which
portray or depict licentiousness
or lust.  Even the pictorial
covers, wrappers or containers of some commercial articles, which
portray or depict licentiousness
or lust  are easily obtainable
in the open trade.
[20]
[14]      The
Court thus recognised that the legislature had intentionally given a
wide ambit to the purported
definition, casting the proscriptive net
as wide as possible.   In an attempt to narrow the scope of
application of the
concept, the Court in
S
v H
imposed a test
under which the question in each case was what the “probable
effect” of the material would be upon the
likely consumer
thereof:
[W]hat the Court has to decide is whether, as a
matter of objective judgment, these photographs do or do not have a
tendency to deprave
or corrupt
[21]
.
That test was, however, rejected in favour of an
“objective”one in
S v  Nunes.
It
was concluded in that case that:
Dit is duidelik . . . dat die toets is vir ‘n
hof om te besluit of uit te maak, in elke geval wat voor hom kom, of
die betrokke
onbetaamlike of onwelvoeglike fotografiese materiaal is
in terme van Art. 1, en dit is ‘n objektiewe
toets.
[22]
[15]      That
the crucial definition in the 1967 Act should have proven problematic
in application is hardly
surprising: the task of pinning down the
scope of prohibitions of this kind has long vexed South African
courts, in a variety of
contexts.  In the case of
R
v Hardy
, in which a
newspaper was charged with common law public indecency for publishing
a report tending to the “depravation of the
morals of the
people of Durban”, the court acknowledged that the offence was
“not capable of very accurate definition.”
[23]
Courts experienced similar difficulties interpreting the words
indecent
or
obscene
in the 1974 Act, section 47(2)(a) of which provides that a
publication “shall be deemed to be undesirable if it or any
part
of it . . . is indecent or obscene”.   In
Mame
Enterprises v Publications Control Board
,
the court remarked upon the difficulty in drawing the line between
“that which is merely erotically stimulating” and
that
which is “subversive of morality”, holding that “[a]ll
that one can try to do is to decide on which side of
the line a
particular case falls”.
[24]
Williamson, J.A., dissenting in
Publications
Control Board v William Heinemann, Ltd
,
noted that the kind of determinations the Publications Act called
upon a judge to make might often be contingent upon “the
background, the character, the surroundings,  the experiences
and the beliefs of the individual Judge or Judges dealing with
the
matter.”
[25]
Also dissenting,, Rumpff, J.A., candidly noted that, in the process
of vetting publications under the criteria of the
1974 Act, “the
subconscious inclination to equate one’s own sense of decency
with that of the average modern reader is
almost irresistible”.
[26]
[16]      With
respect to the 1967 Act in particular, the root of the problem would
appear to be that section
1 of the Act does not provide a true
definition of
indecent
or obscene
.
Instead, following the recommendation of the Cronje Commission,
[27]
it offers a broad, inclusive and open-ended list of categories of
photographic matter.  Courts have thus been forced to resort
to
ad hoc
enforcement of the Act.
Sexually Explicit Expression and Section 15 of the
Constitution
[17]      Under
our new constitutional order,  however,  the legislature
may enact and the executive
may enforce law only subject to the norms
set by the Constitution, section 15 of which protects the right of
all persons to free
expression.   It is not for this Court
to propose a definition that could live with that right.  That
would usurp
the role of the legislature.  Rather, it is our task
here to consider, mindful of the Constitution’s directive that,
if
it is possible to save legislation by restrictive interpretation
we should do so,
[28]
whether the existing law comports with the right of free expression
embodied in the Constitution.
[18]      As
already noted, Applicants submitted that the Act constitutes an
unreasonable and unjustifiable violation
of their freedom of
expression.   In addition, Applicants argued that the
definition of “indecent or obscene”
in section 1, on
which the prohibitions in section 2(1) of the Act are based, is vague
and overbroad, and as such constitutes an
unreasonable and
unjustifiable limitation upon their rights of freedom of
expression.   Before proceeding any further,
it is
necessary that we consider two important threshold questions.
Firstly, is sexually explicit material as a category of
speech and
expression protected by the Constitution?   If so,
secondly, is the possession thereof subject to the
protection
of the free expression clause of the Constitution?
Does Section 15 Protect Sexually Explicit Expression?
[19]
Applicants’ argument takes for granted that section 15 of the
Constitution protects sexually explicit
materials.  But that is
not self-evidently so.  It might well be argued that,
interpreting the Constitution purposively,
the free expression clause
should be read to protect speech conveying ideas bearing directly or
indirectly upon matters of political
importance.   It would
not be unreasonable to maintain that the particular expressive
material with which we are here concerned
-- graphic depictions of
various forms of sexual activity -- falls outside of that protected
category of expression.
[20]     That,
indeed, is an argument that has been well received in United States
courts.   In
Chaplinsky
v New Hampshire
,
the Court held that:
There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which
have never been thought
to raise any constitutional  problem.
These include the lewd and obscene, the profane, the libellous, and
insulting or
‘fighting’ words -- those which by their
very utterance inflict injury or tend to incite an immediate breach
of the peace.
It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such
slight social value
as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality.
[29]
Although
Chaplinsky
has been significantly limited in other areas,
[30]
it remains settled law that, once material has been defined as
obscene, it forfeits the protection of the First Amendment.
[31]
[21]      The
United States approach is, at least in part, a reflection of the fact
that the American bill of
rights does not contain a limitations
clause.  Where, as in the case of our Constitution, the listing
of rights is accompanied
by a clause that provided for the
limitation, on a principled and considered basis, of all enumerated
rights, the better approach
would seem to be to define the right
generously, and to interpose any constitutionally justifiable
limitations only at the second
stage of the analysis.
That, in fact, is the approach that this Court has adopted.
[32]
[22]      There
is significant textual support in section 33 of the Constitution for
the adoption of such an interpretive
methodology in relation to the
question of “non-political” expression in particular.
Section 33(1)(a) provides
that Chapter Three rights may be limited by
laws of general application, provided that such limitation is both
“reasonable”
and “justifiable in an open and
democratic society based on freedom and equality.”
Part (bb) of the same
subsection further provides that any limitation
to,
inter alia
,
section 15 rights, must, in addition, be “necessary” “
in
so far as such right relates to free and fair political activity
.”
The clear inference is that section 15 must be read broadly enough to
protect “non-political” expression.
The fact that
particular speech is not “political” in nature is
factored only at the limitations stage of the analysis.
[23]      That
method would seem to be particularly appropriate in the course of
interpreting and applying the
guarantee of free speech and
expression.   There is an inherent artificiality in
categorising expression in principle as
“political” or
not.  Few forms of what we conventionally class as “artistic”
expression can be said
to be devoid of “political”
implications.   Conversely, history records many a
rhetorically distinguished “political”
speech that could
fairly be characterised as a form of dramatic “art”.
[33]
Moreover, to strip entire categories of speech of constitutional
protection by virtue of their
content
not only flies in the face of the common sense understanding of the
meaning of the guarantee of freedom of expression, but would
seem
also to be antithetical to the fundamental purpose of that
guarantee.
[34]
Does Section 15 Protect the Right to
Possess
Sexually Explicit Material?
[24]      It
might be argued that the free expression guarantee may not be invoked
by Applicants, simply because
the conduct for which they are sought
to be held criminally liable -- possession of indecent or obscene
material -- is not
expressive
activity.   That argument is not without force.
Section 15 does not appear by its terms to protect the right to
receive,
hold and consume expressive materials generated by others.
[25]      But my
freedom of expression is impoverished indeed if it does not embrace
also my right to receive,
hold and consume expressions transmitted by
others.   Firstly, my right to express myself  is
severely impaired if
others’ rights to hear my speech are not
protected.  And secondly, my own right to freedom of expression
includes as a
necessary corollary the right to be exposed to inputs
from others that will inform, condition and ultimately shape my own
expression.
Thus,  a law which deprives willing persons of
the right to be exposed to the expression of others gravely offends
constitutionally
protected freedoms both of the speaker and of the
would-be recipients.
[35]
[26]      It is
useful to relate that reasoning to the foundational purposes for the
existence of the right to
freedom of expression.  The most
commonly cited  rationale is that the search for truth is best
facilitated in a free “marketplace
of ideas.”  That
obviously presupposes that both the supply and the demand side of
the  market will be unfettered.
[36]
But of more relevance here than this “marketplace”
conception of the role of free speech
[37]
is the consideration that freedom of speech is a
sine
qua non
for every
person’s right to realise her or his full potential as a human
being, free of  the imposition of heteronomous
power.
Viewed in that light, the right to receive others’ expressions
has more than merely instrumental utility,
as a predicate for the
addressee’s  meaningful exercise of her or his own rights
of free expression.  It is also
foundational to each
individual’s empowerment to autonomous self-development.
[38]
[27]      We must
understand the right embodied in section 15 not in isolation, but as
part of a web of mutually
supporting rights enumerated in the
Constitution,
[39]
including the right  to “freedom of conscience, religion,
thought, belief and opinion”, the right to privacy, and
the
right to dignity.
[40]
Ultimately, all of these rights together may be conceived as
underpinning an entitlement to participate in an ongoing process of
communicative interaction that is of both instrumental and intrinsic
value.
[28]      Section
15 of the Interim Constitution provides that “the right to
freedom of speech and expression”
“shall include freedom
of the press and other media, and the freedom of artistic creativity
and scientific research.”
One may well ask what
effective utility
freedom
of the press and other media
would have if that freedom did not include as a corollary the right
of persons to actually obtain and read newspapers, and to be
exposed
to other media.   By the same token, the
freedom
of artistic creativity
would be seriously undermined if it did not encompass the right of
individuals to unhampered access to sources of  artistic
and
intellectual inspiration, including (or, one might say,
especially
),
those expressions which convey sentiments that are threatened with
suppression by the state or with marginalisation in civil society,
because they are deemed dangerous, offensive, subversive, or
irrelevant.
[29]      Section
35 of the Constitution provides that this Court “shall, where
applicable,  have regard
to public international law applicable
to the protection of [Chapter 3 rights]”.   It is
significant that at least
four international human rights instruments
provide specifically for the right to receive information under the
general head of the
right to free expression.
[41]
[30]      Section
35 of the Interim Constitution further permits this Court to “have
regard to comparable
foreign case law” in interpreting Chapter
3 of the Constitution.  Various foreign courts have found the
right to receive
information to be embraced within the concept of
freedom of expression.  Thus, for example, in
Re
Ontario Film &
Video Appreciation Society and Ontario Board of Censors
,
the Ontario High Court of Justice wrote that the freedom of
expression guaranteed under the Charter
[A]lso extends to the listener and to the viewer,
whose freedom to receive communication is included in the guaranteed
right.
[42]
In
R
v Butler
,  the
Supreme Court characterised the right at stake as trammelled by a
statute that “restrict[ed] the
communication
of certain types of materials based on their content.”
[43]
Clearly, the concept of “communication” embraces both the
transmission and the reception of information.
[31]      The
European Court of Justice has held that the right to receive
information contained in the above-referenced
Article 10 of the
European Convention “prohibits a government from restricting a
person from receiving information that others
wish or may be willing
to impart to him.”
[44]
The Zimbabwe Supreme Court has held that what is truly at stake in
freedom of expression jurisprudence is “the
people’s
right to know.”
[45]
And the Indian Supreme Court has observed that:
The constitutional guarantee of the freedom of
speech is not so much for the benefit of the press as it is for the
benefit of the
public.
[46]
[32]
Although the United States Constitution makes no explicit reference
to a right to receive information,
that right is well established as
one of the bedrock principles of First Amendment
jurisprudence.
[47]
Indeed,  in some circumstances,  the United States Court
has, like the Indian Supreme Court in
Bennett
Coleman
[48]
,
deemed the right of the recipient to obtain information to be more
fundamental than that of the speaker to transmit it.
In
Red Lion
Broadcasting Co. v FCC
,
a case involving the regulation of television and radio broadcast
licenses,  the Court held that “it is the right
of the
viewers and listeners, not the right of the broadcasters, which is
paramount.”
[49]
[33]      Perhaps
the most striking illustration of this principle is to be found in
the various cases decided
by the United States Supreme Court in which
it struck down government regulation of speech in instances where the
speaker
,
for various reasons, could assert no first amendment rights at all,
and the only first amendment right to be protected was that
of the
would-be
recipient
.
[50]
[34]      That
principle has been applied to protect the rights of recipients to
have access to sexually explicit
messages as well.  In
Board
of Education v Pico
,
the Court upheld the right of students to resist removal of books
alleged by the board of education to be indecent and obscene from
a
school library, on the basis,
inter
alia
, of students’
right to be exposed to information contained in proscribed
books.
[51]
And in
Stanley v
Georgia
, the Court
upheld  individuals’ right to consume obscene materials in
their own homes.  The Court noted that the
“right to
receive information and ideas,  regardless of their social worth
[is] fundamental to our free society.”
[52]
[35]      I
therefore hold that sexually expressive speech is subject to the
protection of section 15 of the Constitution,
and that such
protection must necessarily extend to the right to possess such
material.  That, of course, does not end the inquiry:
it remains
to be seen whether those parties defending the 1967 Act can carry the
burden of showing that the limitations the statute
places upon free
expression satisfy the requirements of section 33 of the
Constitution.
[53]
Application of the Limitations Clause
[36]
Section 33 of the Constitution provides,
inter
alia
:
The rights entrenched [in Chapter 3] may be limited by law of general
application, provided that such limitation --
(a) shall be permissible only to the extent that it is --
(i) reasonable; and
(ii) justifiable in an open and democratic society based upon freedom
and equality . . .
[37]      The
right to receive, hold and consume expressive material, whether or
not its content is sexually explicit,
is not unqualified.  Like
all rights, it is subject to limitation under section 33 of the
Constitution.    Review
of legislation restricting
sexually explicit material may call upon a court to distinguish
categories of such material that the state
is justified in regulating
from those categories that may not justifiably be regulated.
Courts in the United States and
Canada have developed an extensive
jurisprudence in this area; it is useful to survey some of that law
before turning to the implications
of the limitations clause in our
Constitution.
[54]
Distinguishing Categories of Sexually Explicit
Expression: The North American Experience
[38]      In
Roth
v United States
,
[55]
the United States Supreme Court for the first time confronted the
question of obscenity and the First Amendment.  The Court
turned
away from the common law definition of obscenity,  based upon
effect of passages upon most susceptible persons
[56]
,
holding that such test “might well encompass material
legitimately treating with sex.”   However, the Court
held that obscenity as a category of speech was not deserving of
constitutional protection since it is “utterly without
redeeming
social importance”.
[57]
The test for pornography was set down as “whether to the
average person, applying contemporary community standards,
the
dominant theme of the material taken as a whole appeals to the
prurient interest”.
[58]
However, the Court was careful to note that:
[S]ex and obscenity are not synonymous . . . The
portrayal of sex,
e.g.
,
in art, literature, and scientific works, is not itself sufficient
reason to deny material the constitutional protection of freedom
of
speech and press. . . . [I]t is therefore vital that the standards
for judging obscenity safeguard the protection of freedom of
speech
and press for material which does not treat sex in a manner appealing
to prurient interest.”
[59]
[39]      The
Roth
test proved difficult to apply, and a period of considerable
uncertainty followed, during which the Supreme Court adopted a
practice
of
per
curiam
reversal of
convictions for the sale or distribution of materials that at least
five members of the court, applying various tests,
judged not to be
obscene.
[60]
In
Miller v
California
, the
Court laid down what has become the definitive test, setting three
basic guidelines to determine when sexually explicit material
may be
subjected to state regulation:
(a)           the
average person applying contemporary community standards would
find
that the work taken as a whole appeals to the prurient interest.
(b)           the
work depicts or describes in a patently offensive way, sexual
conduct
specifically defined by the applicable state law, and
(c)
the work, taken as a whole, lacks serious literary, artistic,
political
or scientific value.
[61]
The Court noted that the First
Amendment demanded that statutes “designed to regulate obscene
materials must be carefully limited”:
the permissible scope of
such regulation was restricted “to works which depict or
describe sexual conduct”, which conduct
“must be
specifically designated by the applicable state law.”
[62]
[40]
Attempts to produce and apply a definitive, certain and satisfactory
definition of obscenity have taxed
the ingenuity of American judges.
In
Jacobellis v
Ohio,
Justice
Potter Stewart famously declared: “I shall not today attempt
further to define [obscenity] . . . and perhaps I could
never succeed
in intelligibly doing so.  But I know it when I see it.”
[63]
The Court has attempted to clarify the
Miller
test by defining a “prurient” interest in sex as a
“shameful or morbid” interest, as opposed to a “normal
and healthy” interest.
[64]
In my opinion, that elaboration does not, in itself, furnish a great
deal of guidance.
[41]      The
application of the third prong of the test, relating to “serious”
artistic value, has
proved especially troublesome.  Thus, for
example, the case of
Luke
Records, Inc. v Navarro
,
[65]
cast a federal judge in the unfamiliar role of music critic, when he
had to determine whether music containing sexually explicit
lyrics
performed by the popular “rap” group
2
Live Crew
was
obscene.   Having found that the first two prongs of the
Miller
test were satisfied, the trial judge decided that the group’s
music as a whole lacked artistic value, thus satisfying the third
prong of the test.  He accordingly declared the music
obscene.
[66]
That judgment was overturned by the appeal court on the basis that
there was insufficient evidence on the artistic value question.
[67]
[42]      The
Canadian Supreme Court has adopted a markedly different approach to
pornography from that adopted
in the United States, discarding the
public-morality basis that underpins the American approach in
[68]
favour of a standard based explicitly on the harm believed to be
engendered by certain kinds of sexually explicit material.
In
the celebrated case of
R
v Butler,
[69]
the Canadian Court, reviewing the conviction of the owner of a sex
shop for selling “obscene materials”, an offence under
the Criminal Code, was called upon to consider the following
definition of obscenity in the Code:
For the purpose of this Act, any publication a
dominant characteristic of which is undue exploitation of sex, or sex
and any one or
more of the following subjects, namely crime, horror,
cruelty and violence shall be deemed to be obscene.
[70]
[43]      The
Court reviewed a number of cases which had attempted to give content
to the  phrase “undue
exploitation of sex”, and
distilled those interpretations into three categories:
[1] The portrayal of sex coupled with violence
will almost always constitute the undue exploitation of sex. [2]
Explicit sex which
is degrading or dehumanizing may be undue if the
risk of harm is substantial.  Finally, [3] explicit sex that is
neither degrading
nor dehumanizing is generally tolerated in our
society and will not qualify as the undue exploitation of sex unless
it employs children
in its production.
[71]
[44]
Applying the
Oakes
two-stage test, the Court held that the challenged statute, inasmuch
as it sought to prohibit “certain types of expressive
activity”,  impacted the free expression rights guaranteed
under the Charter.
[72]
However,  that was justifiable under the limitations clause,
because,
inter alia
,
the Code did not prohibit serious work of scientific, artistic or
literary merit,
[73]
nor did it affect the private possession or viewing of explicit
materials.
[74]
[45]      Most
significant in the
Butler
decision was its rejection of the traditional rationale for obscenity
regulation -- what the court termed the imposition of a
[C]ertain standard of public and sexual morality,
solely because it reflects the conventions of a given community
. .
.
The prevention of ‘dirt for dirt sake’ is not a
legitimate objective which would justify the violation of one of the
most fundamental freedoms enshrined in the Charter.
[75]
The Code challenged in
Butler
,
on the other hand, could be upheld, because its “overriding
objective” was not moral disapprobation as such, but the
“avoidance of harm to society” in the form of,
inter
alia
, the
encouragement of violence, and the reinforcement of gender
stereotypes.
[76]
[46]      Indeed,
subsequent applications of
Butler
have emphasized the centrality of the “harm principle” in
Butler
,
and the relatively narrow range of sexually explicit material that is
subject to restriction under that principle.  Thus, for
example,
in
R v Hawkins
,
the Ontario Court of Appeal noted that:
Under the
Butler
test, not all material depicting adults engaged in sexually explicit
acts which are degrading or dehumanizing will be found to be
obscene.  The material must also create a substantial risk of
harm to society.  That risk is now an element of obscenity-based
crimes.  Like any element of a criminal allegation, it must be
proved beyond a reasonable doubt . . . I cannot accept that
Butler
compels the conclusion that once the portrayal of sexually explicit
acts is found to be degrading or dehumanizing, it necessarily
follows
that the films are harmful and, therefore, obscene.
[77]
[47]      The
United States and the Canadian experiences illustrate how difficult
it is for a Court to delimit
the scope of constitutionally protected
sexually explicit materials.  The
Miller
test has been subjected to trenchant criticism both from within the
United States Supreme Court,
[78]
and from academic commentators.
[79]
The Canadian experiment, based upon the “harm principle”
rather than upon morality
per
se
, may offer a
more promising route, although we are not called upon for purposes of
this matter to adopt any particular approach.
I would note that
the
Butler
decision’s willingness to posit the harmful effect of certain
classes of sexually explicit material, notwithstanding that this
effect was not, as the Court conceded “susceptible to exact
proof”, but based instead upon a “substantial body
of
opinion”,
[80]
has been criticised as a cover for
de
facto
deference to
morality-based evaluations.
[81]
Moreover, just as it is often culturally subordinated groups that in
the United States bear the brunt of American obscenity
regulation,
[82]
the manner in which
Butler
has been applied offers a cautionary tale regarding how
well-intentioned legislation may be enforced in practice to suppress
marginalised
discourses that lack a powerful political
constituency.
[83]
Testing for Overbreadth as Part of the Limitations
Analysis
[48]
Applicants’ overbreadth argument may present us with an
opportunity to resolve the matter before
us today without following
United States and Canadian courts into the formidably difficult task
of drawing lines between different
kinds of sexually explicit speech,
which is in any event primarily the task of the legislature.
Applicants argue that the definition
of proscribed material in the
Act sweeps so widely that it unconstitutionally bans a great deal of
incontestably constitutionally
protected expression.
[84]
If that is so, there is no need for this Court to demarcate protected
from unprotected sexually explicit speech,
because whatever may be
the legitimate scope of government regulation of sexually explicit
material, the challenged legislation can
be struck as being
overbroad.
[49]
Overbreadth analysis is properly conducted in the course of
application of the limitations clause.
To determine
whether a law is overbroad, a court must consider the means used,
(that is, the law itself, properly interpreted), in
relation to its
constitutionally legitimate underlying objectives.   If the
impact of the law is not proportionate with
such objectives, that law
may be deemed overbroad.  The Canadian case of
Royal
College of Dental Surgeons of Ontario v. Rocket
,
[85]
offers an example of this analysis in the free expression setting.
The Canadian Supreme Court struck down as overbroad
a ban on
dentists’ advertising, using an analysis conducted under the
Canadian Charter’s limitation clause.  The
Court held that
while there was no doubt a legitimate government interest in
preventing irresponsible and misleading advertising
by dentists, the
blanket ban challenged also struck at legitimate advertising, with
the result that the test of proportionality between
the effect of the
legislative measure and its purpose was not met:
The aims of promoting professionalism and
preventing irresponsible and misleading advertising . . . do not
require the exclusion of
much of the speech which is prohibited by
[the statute].”
[86]
[50]      In
Coetzee v Government
of the Republic of  South Africa
;
Matiso v Commanding
Officer, Port Elizabeth Prison
,
wherein this Court held a statutory provision providing for
imprisonment in certain circumstances of nonpayment of civil debts to
be unconstitutional on the ground,
inter
alia
, that such
provision was overbroad, the Court held that while providing a
mechanism for the enforcement of judgment debts was a reasonable
and
legitimate governmental objective:
[T]he question . . . is whether the means to
achieve the goal are reasonable.  In my view, the answer is
clearly in the negative.
. .  The fundamental reason why the
means are not reasonable is because the provisions are overbroad.
The sanction of
imprisonment is . . . aimed at the debtor who will
not pay.  But it is unreasonable in that it also strikes at
those who cannot
pay and simply fail to prove this at a hearing . .
.
[87]
.
[51]      While
striking down parliamentary statutes as void for overbreadth may be
new in South Africa, because
courts lacked the power to do so under a
system of parliamentary sovereignty, a similar method of analysis was
applied in the course
of testing subordinate legislation for
ultra
vires.
Subordinate legislation was invalidated on the basis that the means
used exceeded the limits implied by the underlying objectives
of the
empowering statute.   For example, in
United
Democratic Front v State President
,
[88]
the court sustained in part a challenge to emergency regulations
promulgated under the Internal Security Act.   The
regulations
defined a “subversive statement” to include
“incitement or encouragement” of members of  the
public
to attend certain gatherings.  The Court agreed with the
applicants’ submission that this part of the definition was so
widely constructed that it exceeded what Parliament could possibly
have intended:
There is no conceivable object related to the
purposes set forth in . . . the  Act which could be served by
prohibiting the incitement
or encouragement of people to attend or
take part in gatherings which they may lawfully attend or in which
they may lawfully take
part . . . In the premises we are satisfied
that [this part] of the definition of “subversive”
statement is
ultra vires
and consequently void.
[89]
[52]      Mindful
of the precedents available in our own law, as well as of the
Canadian experience in testing
for overbreadth under the aegis of the
limitations clause, I now turn to an examination of the statutory
provisions challenged in
the present case.   It is common
cause in this matter that certain categories of pornographic material
may constitutionally
be subjected to state regulation.  Most
commonly singled out as legitimately subject to such regulation was
pornography involving
the exploitation of women and children, in
contexts of violence, degradation and victimisation.
[53]      But it
was also agreed that the challenged provision includes within its
reach material that is constitutionally
protected: Ms. Fedler,
appearing for
amici
curiae
People
Opposing Women Abuse,
et
al
., conceded that
the provision unjustifiably and unreasonably interferes with
protected categories of expression.  Counsel for
the Christian
Lawyers Association readily acknowledged that there is no place for a
provision that outlaws all depictions of homosexuality
and
lesbianism.  And counsel for the Attorney-General conceded that
the Act amounted to a “loaded shot gun” with
which the
government that promoted the Act intended to “hit
everything”.   Indeed,  no one before the
Court
appeared to be willing to defend the statute in its present form.
[54]      The
consensus fostered by these concessions affords this Court the
opportunity to adjudicate this matter
on the basis of overbreadth
analysis, without reaching the issues of  (a) whether the
Legislature may, consistent with the new
Constitution, regulate
sexually explicit material at all; and, (b) if so, what form of
definition of proscribed sexually explicit
material will pass
constitutional muster.   As to the first issue, I propose
to simply assume, for purposes of this matter,
an answer in the
affirmative.  As to the second, for purposes of overbreadth
analysis I need not attempt to formulate a constitutionally
permissible definition.
[55]
Applicants did not dispute, for purposes of the application before
us, that the contents of the various
video cassettes found in their
possession were in fact covered by the definition of “indecent
or obscene” matter.
If that be so, it does nothing
to negate the Act’s overbreadth, since it is not necessary for
a successful overbreadth challenge
that the conduct of the actual
litigant in the case before the Court fall within the zone of
overbreadth.
[90]
If the law itself is overbroad, it has to go, and no conviction may
be founded upon it.   That is so because of the
chilling
effect that overbroad legislation may have, discouraging others from
engaging in constitutionally protected activities because
legislation
which on its face prohibits such activity remains on the statute
books
[91]
.
Under United States law, if a statute not only forbids expressive
conduct that may constitutionally be restricted, but
also forbids
constitutionally protected expression, courts will look beyond the
facts immediately before it to determine whether
a putative class of
future speakers whose speech enjoys constitutional protection might
refrain from speaking, for fear of having
their speech deemed
unlawful under an overbroad statute.
[92]
As Justice Marshall, dissenting in
Arnett
v Kennedy
,
put it,
[An overbroad law] hangs over [people’s]
heads like a sword of Damocles [and] . . . the value of the sword of
Damocles is that
it hangs, not that it drops.
[93]
[56]      As
discussed above, South African courts struggled for decades with the
meaning of the phrase
indecent
or obscene,
both as
used in the 1967 Act and in various other contexts.  The
proscription in the 1967 Act takes the form of an open-ended
nonexclusive listing, without clear outer parameters.  I note
also that, while section 2(2) of the Act provides for certain
exemptions under the 1974 Act, the relevant provisions in that Act
(section 5(4)(b)(iii) and (iv)), which made provision for exempting
publications of a technical, scientific or professional nature or “of
a
bona fide
religious character” were repealed by section 6(a) of the
Publications Amendment Act 79 of 1977.  The result is that as
the two Acts now read, those exemptions are no longer available
(although certain other exemptions, not here relevant, survive).
[57]      Prior
to determining whether the challenged language is overbroad, we must
properly construe its meaning.
In so doing, we must read the
text as a whole, assigning a meaning to every word and phrase, and
not permitting any portion of the
text to be rendered redundant.
[94]
Thus, the various forms of sexual conduct, appetite, and inclination
(
sexual intercourse,
licentiousness, lust, homosexuality
. . . ),  listed in the purported definition in section 1 of the
Act must each be accounted for, and assigned distinct meanings.
That exercise renders a
prima
facie
already very
inclusive list much broader still.   The same procedure
must be attempted in giving meaning to each of the
various transitive
verb forms preceding the list of forms of sexual conduct, appetite
and inclination.   Proscribed material
is defined to
include photographic matter “
depicting,
displaying, exhibiting, manifesting, portraying or representing
sexual intercourse . . .”.   The terms
displaying,
portraying
and
exhibiting
are not immediately problematic, but
manifesting
and
representing
are capable of yielding an almost unlimited set of potential
references.
[58]      Thus,
for example, the verb
manifest
is defined in the
Oxford
English Dictionary
as synonymous with “display”.
[95]
Seeking an alternative meaning that will render both terms
non-redundant in context forces us to assign the broader dictionary
meanings of
display
,
such as
evince
,
be evidence of
and
attest
.
Similarly, the dictionary gives to the verb
represent
a primary meaning of
bring
clearly and distinctively to mind, esp. by description or
imagination
.
But since that denotation appears already to be captured in the verbs
depict
,
display
and
portray
,
we are thrown onto the broader, alternative meanings, such as
symbolise, be an
equivalent of
, and
correspond to
.
Examples could obviously be multiplied.   Consider, to take
just one, the scope of the prohibition if we apply
the transitive
verb form
symbolise
to the noun
lust
.
[59]      As the
definition stands it could thus fairly be read to classify a
virtually limitless range of expressions,
from ubiquitous and mundane
manifestations like commercial advertising to the most exalted
artistic expressions,  as
indecent
or obscene
, simply
because they contain oblique, isolated or arcane references to
matters sexual, or deal frankly with a variety of social problems.
Thus, a television documentary treating safe-sex and the causes of
Aids may be construed as a
manifestation
of
licentiousness
.
Cinematic versions of the work of South Africa’s most acclaimed
playwrights and novelists may be labelled
exhibitions
or
portrayals
of
lust
,
masochism
or
sadism
.
An illustrated public-service brochure dealing with incidents of
sexual assault upon women could potentially be outlawed as
a
depiction
of
rape
.
[96]
A photograph of persons of the same gender in tender embrace could
fairly be construed as
manifesting
homosexuality
or
lesbianism
.
[97]
[60]      As if
the already sweeping implications of the purported definition are not
enough, the phrase
or
anything of the like
appended thereto seems calculated to invest prosecutors and courts
with unlimited discretionary power over photographic and cinematic
expression.
[61]      One
need proceed no further to appreciate that the means embodied in
section 2(1), read with the definition
of
obscene
or indecent
material, which includes within its overbroad compass a vast array of
incontestably constitutionally protected categories of expression,
are entirely disproportionate to whatever constitutionally
permissible objectives might underlie the statute.  Such a law
is
ipso facto
not
reasonable
within the meaning of section 33(1)(a)(i).
[98]
Those parties who would have this Court uphold the challenged
provision in the 1967 Act have manifestly not carried their
burden of
showing that the limitation on free expression that is imposed by
that provision passes muster under section 33.
[62]
Moreover, the hypothetical cases sketched above make it very clear
that no “margin of appreciation”
can rescue the statute
as it stands.  This is emphatically not an instance in which one
could formulate a number of different
means to achieve a legitimate
objective, and persons of good faith might differ as to whether this
or that statutory means is the
optimal manner of attaining such
objective while minimally impairing protected rights.
In such a case, it may well
be appropriate for a court to defer to
the legislature’s policy choices as to how to effectuate its
goals.
[99]
Instead, what we are presented with here, if we assume in favour of
the legislation a defensible core goal, is a statute whose
sweep is
undoubtedly immensely wider than what the reasonable attainment of
any legitimate goal would require, even if we chose to
define such a
goal as broadly as imaginably possible.
[63]      One
need not go so far as to accept the notion of a preference for free
expression over other rights,
[100]
to appreciate the danger of overbroad statutory proscriptions.
It is incumbent upon the legislature to devise precise
guidelines if
it wishes to regulate sexually explicit material.  Especially in
light of the painfully fresh memory of the executive
branch of
government ruthlessly wielding its ill-checked powers to suppress
political, cultural, and, indeed, sexual expression,
there is a need
to jealously guard the values of free expression embodied in the
Constitution of our fledgling democracy.
Other Bases for Applicants’ Constitutional
Challenge
[64]
Applicants’ attack on the 1967 Act as a violation of their
rights under the free expression clause
of the Constitution was only
one of several bases for their attack on that Statute.
Applicants also invoked their constitutional
right to privacy
(section 13), their right to freedom of conscience and religion
(section 14(1)), and their right to procedurally
fair administrative
action (section 24(b)).
[101]
Those other rights are essential components of the hermeneutic
environment within which we go about applying section
15.  But I
do not propose to address the challenge mounted in terms of the other
enumerated rights
per
se
, simply because
I believe that this matter can be quite satisfactorily disposed of
under the head of section 15.
[65]      I have
had the privilege of reading the admirably concise opinion of
Didcott, J, in which he arrives
at conclusions similar to mine, but
on the independent basis of Applicants’ right to privacy, which
is protected by section
13 of the Constitution.   I must
agree with his conclusion that the 1967 Act unreasonably and
unjustifiably infringes the
constitutional right to privacy.
I would, however, respectfully part company from Justice Didcott to
the extent that
any part of his opinion might be read to suggest that
it is not in any circumstances the business of the state to regulate
the kinds
of expressive material an individual may consume in the
privacy of her or his own home.  It may be so that, as in
England, a
“South African’s home is his (or her)
castle.”  But I would hesitate to endorse the view that
its walls are
impregnable to the reach of governmental regulation
affecting expressive materials.    I therefore
associate myself
with the caveat expressed by Justices Langa and
Madala regarding Justice Didcott’s opinion.
[66]
Moreover, regardless of the conclusion we draw regarding the privacy
issue, I believe that it is important
to mark clearly that the
challenged provision of the 1967 Act cannot be reconciled with the
right to freedom of speech and expression
embodied in section 15 of
the Constitution.  With due consideration for the virtues of
judicial economy and restraint, I do
not believe it would be
appropriate to dispose of  a matter so prominently implicating
crucial freedom of expression issues
without attending to the
arguments in that regard that were rehearsed at some length, both in
the heads of argument submitted and
in oral argument.
[67]      I am
mindful of the fact that Applicants were charged with
possession
under the 1967 Act.  But it bears noting that Applicants were
charged with possession, not of unlicensed arms and ammunition,
illicit drugs, or contraband, but of sexually explicit video tapes.
Attentive consideration of the privacy issues raised
by this matter,
and more particularly of what limitations upon the right to privacy
may be reasonable and justifiable, leads us inexorably
to closely
intertwined free expression issues.   I am very well aware
that what forms of state control of sexually explicit
expression are
compatible with the values of free expression is a notoriously
difficult and contentious question.  But that
should not deter
us from addressing the issue, where, as here,  the case referred
to us so conspicuously interpellates fundamental
free expression
concerns.
Can the Provision be Saved by Severance or a
Restrictive Reading?
[68]      Having
determined that the challenged provision is unconstitutionally
overbroad, the question arises
whether it can be saved either by
restrictive interpretation or by severance.   Counsel for
the first and second intervening
Parties submitted that “words
like
licentiousness,
lust,
etc. could be
scrapped while possession in section 2 could possibly be
restrictively interpreted.”  I interpret the suggestion
that the words
licentiousness,
lust
etc. be
“scrapped’ as a proposal that they be severed from the
Act.  The submission going to the interpretation
of
possession
amounts to an appeal that we “read down” that word.
[69]      Both
“reading down” and severance are permissible remedies
under the Constitution.
The document provides that
the Court’s declaration of  invalidity shall be limited to
the extent of the inconsistency
between the challenged statute and
the Constitution.
[102]
In addition section 4(1) provides a clear textual basis for
severance, and also, arguably, for “reading down”:
[A]ny law or act inconsistent with [the
Constitution] shall . . . be of no force or effect
to
the extent of the inconsistency.
(emphasis added).
[103]
I will consider first the possibility of severance,
before turning to the reading down option.
Severance
[70]      The
leading test for severance under South African law was set forth in
Johannesburg City
Council v Chesterfield House
(Pty) Ltd
:
[W]here it is possible to separate the good from
the bad in a statute and the good is not dependent upon the bad, then
that part of
the statute which is good must be given effect to,
provided that what remains carries out the main object of the statute
. . . however,
where the task of separation is so complicated as to
be impracticable, the whole statute must be declared
ultra
vires.
[104]
The
Chesterfield
test was cited with approval in
Coetzee
v Government of the Republic of South Africa;
Matiso v Commanding
Officer, Port Elizabeth Prison
,
[105]
and in
Ferreira v
Levin NO
;
Vryenhoek
v Powell
NO
.
[106]
[71]      I do
not think that the severance of one or two isolated words (
lust,
licentiousness
)
within the challenged definition is a viable option.
[107]
That is because the offending overbreadth cannot be laid at the door
of any one word, or group of words, but rather permeates
the entire
text.   Even the noun
sexual
intercourse
, which
is in itself fairly well cabined, when modified by the transitive
verb forms
depicting,
displaying, exhibiting, manifesting, portraying
or
representing,
becomes an
uncontrollably broad concept, yielding a veritable kaleidoscope of
potential referents.
[72]      On the
other hand, if we apply a blue pencil to each and every noun form and
transitive verb that presents
overbreadth problems, we effectively
write a new provision that bears only  accidental resemblance to
that enacted by Parliament.
If, as appears to be
the case, the scheme behind the statute was to impose a comprehensive
scheme of censorship to give effect to
a particular moral, cultural
and political world-view,
[108]
it hardly does justice to the “main object” thereof for
this Court to pare it down to prohibit only that discrete set
of
sexually-oriented expressions that this Court believes may
constitutionally be restricted.
[109]
[73]      For
this Court to attempt that textual surgery would entail it departing
fundamentally from its assigned
role under our Constitution.  It
is trite but true that our role is to review, rather than to
re-draft, legislation.  This
Court has already had occasion to
caution against judicial arrogation of an essentially legislative
function in the guise of severance.
In
Coetzee
v Government of the Republic of South Africa; Matiso v. Commanding
Officer, Port Elizabeth Prison,
Kriegler, J.,  noted that
In order to [excise only offending provisions] . .
. this Court would have to engage in the details of law-making, a
constitutional
activity given to the legislatures.
[110]
[74]
Canadian courts have similarly recognised that, unless carefully
limited, severance will constitute
an intrusion upon what is properly
a legislative function.
[111]
In
Schachter v
Canada
, the Court
analysed severance and “reading in” as twin remedies, and
cautioned that because both are drastic and intrusive
devices, they
should not be lightly indulged in by courts of law, but only in the
“clearest of cases”, when each of the
following criteria
is met:
A.
the legislative objective is obvious . . . and severance or
reading
in would further that objective, or constitute a lesser interference
with that objective than would striking down;
B.
the choice of means used by the Legislature to further that
objective
is not so unequivocal that severance/ reading in would constitute an
unacceptable intrusion into the legislative domain;
and,
C.
severance or reading in would not involve an intrusion into
legislative
budgetary decisions so substantial as to change the
nature of the legislative scheme in question.
[112]
[75]
Doubtless it would be grammatically feasible to sever the entire
definition of
indecent
or obscene
from the
Act: as a self-standing clause within section 1, the definition may
be excised without doing grammatical violence to the
balance of the
statute.   However, I doubt very much that the definition
is
structurally
severable.   The definition establishes the functional
parameters of the prohibition in section 2(1).
[113]
If the crucial definition incorporated by reference in section 2(1)
falls, then so too must section 2(1) itself.
Reading Down
[76]      Turning
to the possibility of saving the provision by “reading down”
pursuant to section
35(2) of the Constitution, the same
considerations that persuade me that the provision cannot be saved by
severance also militate
against saving it by such restrictive
interpretation.  Reading down is a narrower remedy than
severance: it is appropriate only
where the language of the provision
will fairly bear the restricted reading.  Otherwise, it amounts
to naked judicial law-making.
[114]
[77]       The
overbreadth of the definition with which we are here concerned can
scarcely be described as
marginal.  It is not as if we are
confronted merely with a peripheral excess in scope, surrounding an
identifiable proscriptive
core that targets constitutionally
unprotected material.  Rather, the virtually unlimited range of
unconstitutional potential
application of the Act overwhelms whatever
permissible proscription might be identified.
[78]       Any
form of “reading down” will thus require substantial
reconstruction of the section,
including the interposition (“reading
in
”)
of exemptions for undoubtedly constitutionally protected forms of
expressions, such as artistic, scientific and medical works:
the
definition as written proscribes material representing traditional,
classical and popular cultural expressions that form an integral
part
of constitutionally protected South African art and culture.
[115]
Given what is clear about the objectives of the 1967 Act, that would
not be a valid process of statutory interpretation,
but an
impermissible importation of content foreign to the enactment.
The comments of Justice Sachs in
Coetzee
v Government of the Republic of South Africa; Matiso v. Commanding
Officer, Port Elizabeth Prison,
are
directly apposite:
It [is not] the function of the Court to fill in
lacunae in statutes that might not have been visible or regarded as
legally significant
in the era when Parliamentary legislation could
not be challenged, but which would become glaringly obvious in the
age of constitutional
rights; the requirement of reading down would
not be authorisation for reading in.
[116]
[79]      Even
merely “reading down” so as to tailor the scope of the
provision to fall within constitutionally
permissible limits would
present serious problems.    There is a real danger
that, in dealing thus with an overbroad
statute, we will simply
substitute for the vice of overbreadth the equally fatal infirmity of
vagueness.
[117]
The court’s reasoning  in
University
of Cape Town v Minister of Education and Culture
is apposite:
If it is clear that the widest possible meaning
was not intended, but at the same time it is not possible to say
where the intended
narrower meaning begins or ends, then no
ascertainable meaning exists.
[118]
[80]
Finally, the fact that the fundamental right impinged by the statute
is that of free expression weighs
against reading it down; we must be
sensitive to the danger that free expression will be “chilled”
by uncertainty as
to the surviving scope of the law.
[119]
We must be especially solicitous of  the rights of those in our
grievously unequal society who lack the financial resources
to risk
testing the boundaries of their free expression rights through
litigation.
[120]
I decline the invitation to leave undisturbed on our statute book a
provision that is massively overbroad, in the
hope that the
fundamental right to free expression will be adequately protected by
an assurance from this Court that, henceforth,
the statute will be
applied only to those forms of expression that lack constitutional
protection.
Invalidity of the Provision; Argument Regarding
Suspension of Invalidity
[81]     Having
concluded that section 2(1) of the Act, read subject to the
definition of
indecent
or obscene
material
in section 1 of the Act, is overbroad such that it unreasonably and
unjustifiably violates the right to freedom of expression
embodied in
section 15 of the Constitution, and having further concluded that the
impugned section cannot be saved by restrictive
interpretation, I
hold that it is inconsistent with the Constitution.   One
might wonder what is the fate of the Act itself,
once section 2(1) is
struck from it.  The prohibition contained in that section is
plainly the operational heart of the statute,
the balance of which
consists only of various definitions (section 1), exemptions (section
2(2)), procedural and jurisdictional provisions
(sections 3, 4
& 4A), and the short title (sections 5).
Nevertheless, because the question referred seeks
our judgment only
as to the constitutionality of section 2(1), we need express no
opinion regarding the fate of the rump of
the Act.
[82]      In the
course of argument on behalf of the intervening parties, and on
behalf of
amici
People Opposing Women Abuse,
et
al,
and the
Christian Lawyers Association,  this Court was urged to exercise
its power under the proviso to section 98(5) to keep
the Act
temporarily alive, in the event that it should make a finding of
invalidity.   The Court is empowered to declare
a law
invalid to the extent that it is inconsistent with the Constitution,
provided that it may:
[I]n the interests of justice and good government, require Parliament
or any other competent authority, within a period specified
by the
Court, to correct the defect in the law or provision, which shall
then remain in force pending correction or the expiry of
the period
so specified.
[83]      Such a
suspended declaration of invalidity is not lightly to be indulged,
since it preserves fully operational
a statute in the face of this
Court’s considered finding that the law violates the
Constitution.   Probably the predominant
consideration in
determining whether to suspend a declaration of invalidity is whether
undesirable social consequences will flow
from the immediate striking
of a statute, because a
lacuna
is created in the law.
[121]
That, indeed, was the contention of the parties who urged the Court
to suspend invalidity.  They argued forcefully
that the
immediate disappearance of the challenged provision would lead to an
uncontrollable proliferation of harmful pornography.
[84]      We are
unpersuaded by that contention.  As set forth in paragraph 8 of
this opinion, the 1967 Act
is only one part (the less important part
at that), of the system of regulation of sexually explicit material
in South Africa.
The 1974 Act -- the practical enforceability
of which is not in any manner affected by our decision today -- is
considerably broader
in application than the 1967 Act.  The 1974
Act, which provides for the prohibition of the production,
importation and distribution
[122]
of material deemed “indecent or obscene or harmful to public
morals”,
[123]
has been the mainstay of the system of regulation of sexually
explicit material since its enactment.   The Act allows the
prohibition of the possession of “undesirable”
publications or objects,
[124]
and also for prohibition of the possession of films.
[125]
[85]      To the
extent that there are legitimate concerns that pornography will
proliferate uncontrollably in
the wake of our decision today, the
relevant interests are quite adequately satisfied by these provisions
of the 1974 Act.
The apprehended deluge of pornography
can be dealt with by the provisions governing importation and
distribution.  And if it
is deemed necessary to punish
possession, the 1974 Act allows for that too.   I am quite
satisfied that no
lacuna
will open up as a consequence of the immediate nullification of the
operative provision of the 1967 Act.
[126]
[86]      In both
S v Bhulwana; S v
Gwadiso
[127]
and in
Coetzee v
Government of the Republic of South Africa; Matiso v. Commanding
Officer, Port Elizabeth Prison
[128]
,
this Court declined to suspend invalidity on the basis that there
would be no resultant
lacuna
after the impugned legislation had been struck down.
[129]
In both instances, this Court held that the legislation that would
remain undisturbed on the books after the offending provisions
had
been struck would suffice to protect the legitimate objectives of the
law.
[130]
[87]      Of
course,  the 1974 Act may itself be unconstitutional, as urged
by Applicants.  However,
for the reasons stated, I have declined
to anticipate that question here.  If the constitutionality of
the 1974 Act is raised
in proceedings before us,  that will be
the time to consider whether it is destined to meet the same fate as
the provision struck
down today, and if so, whether its immediate
demise would open the floodgates to pornography.  This Court
will decide then whether
or not circumstances warrant making an order
pursuant to the proviso to section 98(5).
Costs
[88]      None of
the Applicants made any submissions regarding costs, nor are any
reasons apparent why an order
for costs should be made.  I will
therefore issue no order in that regard.
Order
[89]      In
the result, the following order is made:
Section 2(1) of the Indecent or Obscene Photographic
Matter Act 37 of 1967 is declared to be inconsistent with the
Constitution of
the Republic of South Africa, Act 200 of 1993 (as
amended), and is, with effect from the date of this judgment,
declared to be invalid,
and of no force and effect.
[90]
DIDCOTT
J:
These
cases concern the possession of material that is hit by the Indecent
or Obscene Photographic Matter Act (No 37 of 1967).
I underline
the word “possession”, then underline it again.
Neither case has anything to do with the production
of such material,
with its importation, publication, exhibition, distribution or
dissemination.  A single question has been
referred to us for
our ruling on it, the question whether section 2(1) of the statute is
constitutionally valid or not.  That
issue and it alone had
arisen down below, where a contravention of section 2(1) was the sole
offence which the applicants for the
referral were alleged to have
committed.  And what section 2(1) forbids, all that section 2(1)
forbids, is the possession of
material which it calls “indecent
or obscene photographic matter”.  Indeed the entire
statute, a singularly short
one consisting of a mere six sections,
deals in its penal provisions with nothing else.  Separate
legislation which is not challenged
now, and cannot be within the
limited terms of the referral, combats the other activities in the
area of pornography, obscenity and
indecency that I mentioned a
moment ago.
[91]      What
erotic material I may choose to keep within the privacy of my home,
and only for my personal use
there, is nobody’s business but
mine. It is certainly not the business of society or the state.
Any ban imposed
on my possession of such material for that solitary
purpose invades the personal privacy which section 13 of the interim
Constitution
(Act 200 of 1993) guarantees that I shall enjoy.
[1]
Here the invasion is aggravated by the preposterous definition of
“indecent or obscene photographic matter” which
section 1
of the statute contains.
[2]
So widely has it been framed that it covers, for instance,
reproductions of not a few famous works of art, ancient and modern,
that are publicly displayed and can readily be viewed in major
galleries of the world. That section 2(1) clashes with section 13
seems to be indisputable.
[92]      Section
2(1) is said in addition to be incompatible with the possessor’s
freedom of expression
which section 15(1) of the Constitution
likewise protects.  That argument depends on the proposition,
which we were urged to
accept, that the protection thus provided is
not confined to the conveyance of information and the expression of
ideas by verbal,
pictorial or other means, but encompasses also their
reception by those to whom they are communicated or presented.
Freedom
of expression, in its literal and ordinary sense, lacks that
extra dimension.  The broader connotation which counsel ascribed
to the concept has nevertheless, I am well aware, found favour
elsewhere in constitutional lore.  We may be persuaded to follow
suit on some future occasion that calls for a decision on the
point.   In the meantime, I believe, the question should
be
left open since, once a violation of section 13 is established, we
have no need to consider any alternative attack on section
2(1).
[93]      The
issue that remains is whether section 33 (1) of the Constitution
saves the prohibition pronounced
by section 2(1) from
nullification.   It does not in my opinion.  For the
intrusion into personal privacy that flows
from the prohibition
fails, I am satisfied,  the first and second tests set for its
tolerability, the tests requiring it to
be reasonable and
justifiable.    The viewing of obscene or indecent
pictures by their possessors was blamed in argument
for contributing,
through its bad influence on some viewers, to the commission of
sexual crimes and other socially repulsive behaviour.
Such a causal connection is a controversial subject on which
psychologists and penologists disagree, however, and the results of
the research that was drawn to our attention neither prove nor
disprove it empirically.    So there we can come to
no
definite conclusion either way on this occasion. Much was also made
of obscene or indecent pictures which exploited women and
children,
degrading the ones portrayed and insulting those who were not
depicted but felt humiliated as a class.  A ban on the
possession of material so pernicious was said to serve a useful
purpose in the campaign against its production. The market for it
diminished once law abiding people departed from that, and the
incentive to prepare it was then reduced.  The production of
pictures like those, and of further types equally depraved, is
certainly an evil and may well deserve to be suppressed. Perhaps,
as
a means to that end, the same even goes for their possession, making
it both reasonable and justifiable for society to mind the
private
business of its members.   Such questions do not arise at
present and are best left unanswered until some future
case confronts
us with them.   But the trouble one now has with section
2(1) is that it hits the possession of other material
too,
material less obnoxious and sometimes quite innocuous which we cannot
remove from its range while it lasts because the
parts of section 1
giving it that effect are not satisfactorily severable from the
rest.   A better target at which to
aim in the battle with
unbearably vile pictures as matters stand for the time being, a
target under fire already from separate legislation
as I mentioned
earlier, is surely their production whenever that occurs here, the
importation of ones produced elsewhere, and the
dissemination of all.
[94]      The
debate which took place when we heard the present matters spread far
and wide over the field of
pornography and obscenity, exploring every
visible pocket of it and stepping in the process on many prickly
points.  We should
tread no such path in turn.  To do so is
not only unnecessary, and to be avoided on that conventional count,
but also unwise.
That I say for these expedient yet cogent
reasons.  The statute that concerns us has apparently entered
its twilight, together
with the other legislation dealing at present
with pornography and obscenity.  Fresh legislation which will
replace the lot
is currently in the course of preparation.
Sooner or later we shall no doubt be required to pass judgment on the
enacted replacement.
But, while we can expect that, we ought
not to anticipate it.   We shall otherwise run the risk of
fettering ourselves
with premature decisions on important and
contentious questions which have implications for future adjudication
that are hard to
foresee now.   The less we say meanwhile,
in short, the better that will be in the long run.
[95]      I
accordingly concur in the judgment which Langa J has prepared in
these two cases.  The construction
placed by him on this one of
mine, I confirm in particular, is indeed that which I intended it to
bear, when read as a whole.
The judgment written by Mokgoro J,
on the other hand, differs markedly from my treatment of the cases in
both its focus and its ambit.
Within its framework it also
contains some features and details which strike me at present as open
to question but do not have to
be considered on the view that I take
of the matters.  I shall therefore not concur in her judgment,
as distinct from the order
which she proposes.   With that
I quite agree. I do so, however, solely and simply for the reasons
which Langa J and I
have given.
Chaskalson P, Mahomed DP, Ackermann J, Kriegler J,
Ngoepe J and O’Regan J concur in the judgment of Didcott J.
[96]
LANGA
J
: Applicants have
been charged with possession of prohibited material.
[1]
Two questions immediately arise.   The first concerns
the constitutionality of the provision creating
the offence and that
is the issue which has been referred to this Court for decision.
The second relates to the nature of
the material prohibited by the
relevant section,  the question being  whether possession
of some or all of it should
be constitutionally protected.
[97]      With
regard to the first question and having regard to the definition
which is couched in very wide
terms,
[2]
I am satisfied that the prohibition as framed is unconstitutional.
I am in respectful agreement with the reasons so succinctly
expressed by Didcott J, more particularly  that a ban on
possession of the material hit by section  2(1) of the Act

infringes  the right to personal privacy guaranteed by section
13 of the Constitution. The terms of the provision, read with
the
definition, are unquestionably overbroad and  have the effect
of sanctioning the unwarranted and unjustifiable invasion
of the
right to personal privacy regardless of the nature of the material
possessed.
[98]      This
finding with regard to the first question, makes it unnecessary in
my view to canvass the second
in fine detail.  Nor is it
necessary, in my view, to canvass the underlying free expression
issues and to draw lines between
different classes of sexually
explicit material.   Whether possession of the video
cassettes which constitute the subject
matter of these cases would
be constitutionally protected is a question we need not consider in
this instance.
[99]      In
paragraph  [91] of the judgment,  Didcott J makes the
assertion that  “[w]hat
erotic material I may choose to
keep within the privacy of my home, and only for my personal use
there, is nobody’s business
but mine.  It is certainly
not the business of the state.”  My understanding is that
this statement is subject
to the qualification that the right
referred to, as is the case with other Chapter 3 rights, is not
necessarily exempt from limitation.
That the limitation may
extend to possession even in the privacy of one’s  home
in certain circumstances is a possibility
acknowledged by Didcott J
in paragraph [93].  The precise circumstances are not a matter
we are called upon to delineate here
and I agree that it is wise to
refrain from attempting to do so in this matter.  What is clear
is that an intrusion into such
privacy cannot, as was the case in
the past, be permissible unless it can be adequately justified on
the basis of section 33(1)
of the Constitution.
[100]    The emphasis with
which Didcott J expresses himself with regard to the individual’s
right to privacy
[3]
has to be seen against the backdrop of our history and the fact that
constitutional protection of this right is new in this
country.
It is a right which, in common with others,  was violated often
with impunity by the legislature and
the executive.
[4]
Such emphasis is therefore necessary particularly in this period
when South African society is still grappling with
the process of
purging itself of those laws and practices from our past which do
not fit in with the values which underpin the
Constitution - if only
to remind both authority and citizen that  the rules of the
game have changed.
[101]    For the reasons
stated above, I concur in the judgment of Didcott J and agree with
the reasoning leading to it.
I also agree with the order
as proposed in the judgment of Mokgoro J.
Chaskalson P, Mahomed DP, Ackermann J, Kriegler J and
O’Regan J concur in the above judgment of Langa J.
[102]
MADALA
J
:  The
question referred to us in these two cases is the constitutionality
of Section 2(1) of the Indecent or Obscene Photographic
Matter Act,
37 of 1967.  My colleague, Mokgoro J, has prepared a very
comprehensive judgment in the matter and comes to the
conclusion that
the impugned section is in conflict with Section 15 of Constitution -
the right of freedom of expression.  I
do not believe that it is
necessary nor indeed desirable for us to decide the issue raised in
these cases on the basis of freedom
of expression, even though
counsel addressed argument at length on this score.  However,
I  agree with the order
Mokgoro J proposes.  I adopt the
route of privacy espoused by Didcott J, and supplemented by Langa J,
rather than the
route of freedom of speech in arriving at my
conclusion that the clause under attack is unconstitutional.
The freedom of expression
leg is, in my view, both wider, and, I
would suggest, more contentious than the privacy leg.  That the
impugned section is overbroad
and vague admits of no doubt.  It
is, consequently, unconstitutional and cannot be saved by the
provisions of Section 33 (1).
Nor, in my view, can a neat
surgical  operation save it by severance of the offending
portions.
[103]    Consequently, I
write not to disagree with the approach of Didcott J, which he
articulates so well, briefly, and
with power.  The question of
pornography is as contentious in its scope as it is in its
definition.  There is a loud voice
that clamours for substantial
censorship, if not outright prohibition of “sexually explicit”
material.  There is
an equally loud voice that urges that
pornographic matter should be made freely available.  The
arguments on both sides are
hotly charged, the issues ranging,
inter
alia
, from
production, sale and distribution to possession of pornographic
material and its effects on society.  It is with the issue
of
possession only that the present cases grapple.  I, therefore,
write with a keen sense that these cases, like others that
come
before us from time to time, call upon one to add one’s views
to the debate.  It is for fear that those who are less
discerning, the mischievous,  and those who may have ulterior
motives, may want to believe that the flood-gates are open for
the
possession of any and all forms of pornographic material on the
ticket that the right to privacy is inviolable, that I have decided
to add these remarks on the matter in concurring with Didcott J and
Langa J on the conclusion that Section 2 (1) is unconstitutional.
[104]    In a dissenting
judgment, Brandeis J, defining the right of privacy, stated:
The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness.  They
recognised the significance
of man’s spiritual nature, of his
feelings and of his intellect.  They knew that only a part of
the pain, pleasure and
satisfactions of life are to be found in
material things. They sought to protect Americans in their beliefs,
their thoughts, their
emotions and their sensations.
They
conferred, as against the Government, the right to be let alone - the
most comprehensive of rights and the right most valued
by civilized
men
.
[1]
(My underlining)
The right to privacy is recognised
and guaranteed explicitly in several human rights instruments such as
the Universal Declaration
of Human Rights,
[2]
the International Covenant on Civil and Political Rights
[3]
and the European Convention for the Protection of Human Rights and
Fundamental Freedoms,
[4]
and implicitly guaranteed in others.
[105]    While I agree that
one’s right to privacy should be respected, this, in my view,
does not mean that all pornographic
or similar material warrants
protection under that right or even under the wing of free
expression.  There seems to be considerable
consensus, both here
and abroad, that some forms of pornography and obscene matter should
not enjoy constitutional protection.
In my view, children
should not be exposed to or participate in the production of
pornography, and that, therefore, possession by
them and exposure to
pornographic material should be prohibited.  However, possession
by adults, in the privacy of their homes
for personal viewing of
sexually explicit erotica, portraying nudity, sexual interaction
between consenting adults, without aggression,
force, violence or
abuse, may not be prohibited, for the benefit of those who derive
pleasure in viewing such material.
[106]    The protection
accorded to the right to privacy is broad but it can also be limited
in appropriate circumstances.
The different circumstances of
different cases may require us to take decisions specifically suited
to particular cases.  If
the American experience is anything to
go by, it provides a clear example of the approach postulated above.
Within the United
States First Amendment, different approaches have
been adopted by the Supreme Court in dealing with pornography cases
to meet the
particular circumstances.  In Stanley v Georgia,
[5]
the Supreme Court struck down a Georgia law which outlawed the
private possession of obscene material on the ground that the State’s
justifications for the law - primarily that obscenity would poison
the minds of its viewers - were inadequate.  The court
recognised
that the statute impinged upon the right to receive
information in the privacy of one’s home.   Justice
Marshall,
delivering the opinion of the Court, stated:
If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his own
house, what books
he may read or what films he may watch.  Our
whole constitutional heritage rebels at the thought of giving
government the power
to control men’s minds.
[6]
However, in
New
York v Ferber,
[7]
the Supreme Court upheld a New York statute outlawing the
distribution of child pornography for compelling state interests in
protecting
children.  In Osborne v Ohio,
[8]
the Court upheld an Ohio statute proscribing the possession and
viewing of child pornography on the basis of the state’s
compelling
interests in protecting the physical and psychological
well-being of minors and in destroying the market for the
exploitative use
of children by penalising those who possess and view
the offending materials.  It is this elasticity that allowed the
American
courts to develop different principles in response to
differing circumstances.
[107]    Although the issue
of child pornography may not be directly in issue in the present
cases, and although it may
even be the subject of litigation on
another day, it is relevant to the question of possession which is
before us and I write to
add my voice to the view that the right to
privacy may be limited in certain circumstances.
[108]
SACHS
J
: Mr Justice
Potter Stewart might have known obscenity when he saw it, but with
respect, I do not, nor would I lay claim to any intuitive
and
immediate recognition of what is indecent.  I am sure that the
great majority of South African judicial officers, not to
speak of
police and prosecuting authorities, or of the general public, are in
the same position.  Far from the definition in
the Act helping
us, it amplifies the confusion by: introducing such vague concepts as
manifesting licentiousness and lust; discriminating
against same-sex
activities; and permitting the penalization of possession of perhaps
half the videos on sale in the most respectable
of shops, and
possibly three quarters of coffee-table art books, let alone many
tastefully illustrated copies of the Bible or Shakespeare.
[109]    Yet, if the only
defect in the Act was definitional overbreadth, it might have been
possible to rescue something
of it by appropriate definitional
straitening.  A well-trained judicial laser, coupled with a
benevolent reading-down gaze,
might have established a core residue
of legitimately focussed state intervention in relation to the two
protected interests well
delineated by Mokgoro J and Didcott J in
their respective judgments, namely, expression and privacy.
[110]    In my view,
however, even more serious and less remediable than the definitional
overbreadth, is what I would regard
as the strategic overbreadth.
All obscene material is in effect treated in the same blunt and
undifferentiated way: its possession
in any circumstances, and within
any context, is made a criminal offence.  The limited exemptions
provided for are based on
bureaucratic rather than constitutional
controls.  There is no attempt to distinguish, as has been done
in some countries, between
regulating what is offensive and
prohibiting what is harmful.  Possession in the privacy of the
home is treated in the same
way as possession for purposes of sale.
There is nothing to show any serious legislative attempt to achieve
the difficult balance
between the principles of free expression and
privacy, on the one hand, and respect for equality and the dignity of
all persons,
on the other.  Even if we accept that the slippery
slope argument, according to which any attack on any form of speech
is an
assault on all free speech, is itself a slippery slope, down
which important speech rights could tumble because of their equation
with trivial ones, there is no recognition at all in the legislation
of the specific importance of freedom of expression and of artistic
creation.
[111]    As the historical
and comparative materials assembled in Mokgoro J’s valuable
judgment show, these are all
highly complex and controversial issues,
on which honest and constitutionally-sensitive people may and do
disagree.  We are
not called upon in the present case to say
what our Constitution requires in respect of any of them, or with
regard to their conjunctural
invisibility; it is sufficient for the
purposes of the present case to point out that the Act is
irretrievably defective both by
virtue of lack of legitimate
definitional focus and because of absence of appropriate strategy to
confront the broader problems of
balancing different interests, in
respect of which I have offered possible examples.
[112]    I accordingly
associate myself with the basic reasoning contained in the judgments
of both Mokgoro J and Didcott
J, as far as they go.  Indeed, I
see them as complementing each other.  The invasion of privacy
can be regarded as reducing
any possible justification for the
violation of the right to free expression.  At the same time,
the infringement of privacy
becomes harder to countenance when it
targets communicative matter, which may vary from the artistic
“laughter of genius”
famously referred to by D.H.
Lawrence, to the egregious degradation of the videos seized in the
present case.  Such material
covers a range significantly
different from, say, stolen goods, drugs or arms, the intrinsic
harmfulness of which are universally
recognised.  Indeed, it
seems strange that what one can do in one’s bedroom one cannot
look at in one’s bedroom.
The definitional overbreadth
and operational heavy-handedness are common to invasions both of free
expression and of privacy.
I do not feel it necessary or even
advantageous to confine my decision to the infringement either of
expression or of privacy, since
there is so much overlap between
them.  For these reasons, I concur in the order proposed by
Mokgoro J.
For the Applicants:
H.
Epstein
G.J. Marcus
A. Dworsky
Instructed by
Hurwitz and Pashut
For the Respondents:
J.S.M. Henning, S.C.
P.P. Stander
R.J. Chinner
Instructed by
The State Attorney
For the First and Second Intervening Parties:
E.D. Moseneke, S.C.
N.J. Louw
Instructed by
The State Attorney
For People Opposing Women Abuse,
et al
. (as
amicus curiae
):
J. Fedler
Instructed by the
Wits Law Clinic, University of the
Witwatersrand
For the Center for Applied Legal Studies,
et al.
(as
amicus curiae)
:
D.M. Davis
M. Chaskalson
Instructed by
O’Donovan and Associates
For The Christian Lawyers’ Association (as
amicus
curiae
):
H. Van R Woudstra, S.C.
M. Helberg, S.C.
Instructed by
Peter F. Caldwell
[1]
People
Opposing Women Abuse; NICRO Women
'
s
Support Centre;  Advice Desk for Abused Women; Rape Crisis,
Cape Town; NISAA Institute for Women
'
s
Development; Women Against Women Abuse (all of these organisations
joined in a single set of papers); The Christian Lawyers
Association;
Centre for Applied Legal Studies; and The Freedom of
Expression Institute (the latter two organisations joined in a
single set
of papers.)
[2]
Q
v Marais
1886 SC 367
, 370 (
per
De Villiers, C.J.)
[3]
R
v Bungaroo
1904  NLR 28, 29-30
(
per
Finnemore, A.C.J.) (
dicta
).
[4]
R
v Hardy
1905 NLR 165.
The
newspaper published an article describing

immoral
practices

between

native

men and

European

women.  The court applied a test derived
from
R v Hicklin
[1868] L.R. 3 Q.B. 360
, 371 (

whether
the tendency of the matter . . . is to deprave and corrupt
those whose minds are open to such immoral influences,
and into
whose hands a publication of this sort may fall.

)
.
The court noted that

[i]t
would be impossible to deny that in the works of many writers of
ancient times, as well as in those of standard authors of
a later
period, passages of an extremely  indecent and obscene
character  are to be found, the publication of which in
the
newspaper press of the present day would be an offense against good
morals amounting to public indecency

.
Id.
171.
[5]
E.g.,

14 of the Customs Act 10 of 1872 (C);

38 of the Customs Consolidation and Shipping Act,
13 of 1899 (N);

3  of the
Customs Management Ordinance, 23 of 1902 (T).
[6]
E.g.
,
Obscene Publications Act, 31 of 1892 (C)

7.
[7]
Act
35 of 1944,

21, 124.
[8]
Act
31 of 1892 (C).
[9]
Act
38 of 1909 (T).
[10]
Ordinance
No. 21 of 1902 (O).
[11]
Act
26 of 1963,
[12]
The
1974 Act has been the main vehicle for the prohibition of the
distribution
of publications deemed

indecent
or obscene or harmful or offensive to public morals

.

47(2)(a) of Act 42 of 1974.
See
para
84,
infra
.
[13]
Cronje
Commission Report, para 1:4.
[14]
Photographic
matter
is defined as: including

any
photograph, photogravure and cinematograph film, and any pictorial
representation intended for exhibition through the medium
of a
mechanical device.

[15]
Act
26 of 1963,

6(1)(c).
[16]
The
Report recommended the proscription of material that
Describe[s], depict[s], represent[s] or portray[s] one or more of
the following in an indecent, offensive, or harmful manner: .
. .
sexual intercourse, prostitution, promiscuity, white-slavery,
licentiousness, lust, passionate love scenes, homosexuality,
sexual
assault, rape, sodomy, masochism, sexual bestiality, abortion,
change of sex, night life, physical poses, nudity, scantily
or
inadequately dressed persons, divorce, marital infidelity, adultery,
illegitimacy, human or social deviation or degeneracy,
or any other
similar related phenomenon.  Cronje Commission Report, para
5:93(2)(d).
[17]
Van
Wyk
Rights and Constitutionalism, The
New South African Legal Order
(1994)
282.  Some indication of the Cronje Commission
'
s
animating premises may be gleaned from the following extracts from
its Report:
As a silent and unobtrusive force, women have had a strong saving
influence and significance in all cultures and civilizations.
The question now arises whether the honour of women is still
regarded as sacred and inviolate or whether it is not perhaps being
injured . . . through . . . the various forms of undesirability as
expressed in publications.
Cronje Commission Report
,
para 3:194.
European women are portrayed . .  . alluringly in calendars
which have been distributed on a considerable scale among the
Bantu
in recent years . . . consideration must apparently be given at
least to the possibility that illustrations of European women
are
more attractive to the Bantu than those of Bantu women.
Id.
para 3:298.
In Undesirable illustrations the female figure is presented . . .
pre-eminently in scanty or inadequate attire . . . The position
has,
in fact, become so serious that any right-minded person will ask
what the consequences for Western civilisation and culture
in this
country are likely to be if action to combat [such illustrations] is
not taken without delay.
Id.
para 3:188.
[18]
19
Hansard, House of Assembly Debates
(1967) 2659.  I do not wish to be understood as holding that
parliamentary statements are admissible for the purpose of
interpreting
the 1967 Act.  I refer to such material at this
point purely for the purpose of sketching the background to the
legislation.
The law in South Africa has traditionally been
that legislative history is not admissible in the interpretation of
a statute.
E.g.
,
Mathiba v Moschke
1920 AD 354
, 362.  However,  that rule is no longer as
firmly entrenched as it once was.  In
S
v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC)
678, the Court noted that the exclusionary rule was being relaxed in
other jurisdictions, but held that

whether
our courts should follow these examples and extend the scope of what
is admissible as background material for the purpose
of interpreting
statutes does not arise in the present case.

(
Per
Chaskalson, P.)   In
Westinghouse
Brake & Equip. Pty Ltd. v Bilger Engineering
1986 (2) SA 555
(A) 562-63, the Court held that, where the words of
a statute are not clear and unambiguous, the court may have regard
to the report
of a Commission of Inquiry in order to ascertain the
mischief aimed at and the state of the law as it was then understood
to be.
See also S v Mpetha
1985 (3) SA 702
(A) 713;
Ex
Parte Slater, Walker Securities (SA) Ltd
.
1974 (4) SA 657
(W); Cockram,
Interpretation
of Statutes
(1987) 55 (

The
present trend would appear to permit limited use to be made of the
history of legislation as an aid to its interpretation.

).
The case for relaxing the exclusionary rule in South Africa is
strengthened by the fact that the rule has been considerably relaxed
in England,
see,
e.g., Pepper v Hart
,
[1992] UKHL 3
;
[1993] AC 593
(HL) (where legislation is obscure or ambiguous the
parliamentary statements of a minister or promoter of the bill could
be taken
into account).  According to Professor Hogg,

[l]egislative history has usually
been held inadmissible in Canada under ordinary rules of statutory
interpretation.  But the
interpretation of a particular
provision of a statute is an entirely different process from the
classification of the statute for
purposes of judicial review.
There seems to be no good reason why legislative history should not
be resorted to for the latter
purpose.
'
Constitutional
Law of Canada
(3d ed.) (1992) 1285.
[19]
19
Hansard, House of Assembly Debates
(1967) 2659.  Further, the Minister made clear that the
government was not prepared to allow concerns of personal privacy
to
stand in the way of the effective enforcement of the law;  it
was time, he said,

for the cloak
of non-interference in the personal and private affairs of people to
be cast off, and for the problem we have to contend
with to be
tackled without gloves.
'
Id.
2660.
[20]
1971
(2) SA 470
(T) 475
(per
Joubert A.J.)
[21]
1974
(3) SA 405 (T) 408.
[22]
1975
(4) SA 929
(T) 931.
See also S v
Film Fun Holdings (Pty) Ltd.
1977 (2)
SA 377
(E) 378-79 (rejecting the probable effect test in favour of
the

objective

test).
[23]
1905
26 NLR 165, 170.
[24]
1974
(4) SA 217
(W) 222F.
[25]
1965
(4) SA 137
(A) 163F.
[26]
Id.
161A.  The phrase
indecent
or
obscene
has proven problematic in a variety of contexts.
See,
e.g.
,
R v
Griezel
1917 TPD 16
;
R
v Meinert
1932  SWA 56, 60-61;
R
v Mcunu
1940 NPD 99
, 100;
S
v H
1974 (3) SA 405
(T) 407-08.
In
S v Gordonia Printing &
Publishing Co. (Pty) Ltd and Another
1962 (3) SA 51
(C) 53 , the Court did not attempt to determine the
meaning of the words in section 2 of Act 31 of 1892 (C), which made
the distribution
of any

indecent
or obscene

publication an offence,
but simply accepted the interpretation articulated in
R
v Meinert
, under which the phrase was
interpreted to mean
subversive of
morality
, or
grossly
offensive to common propriety
.

In
R v W
1953
(3) SA 52
(SWA) 55D, the court found to be indecent a figurine
alleged by the defence to be a reproduction of the famous street
fountain
in Brussels, depicting a naked boy in the act of urination;
the court noted that

[i]t is very
likely that our people would regard as indecent what the people of
Brussels are said to have tolerated for more than
three hundred
years.

[27]
Cf
.
note 16,
supra
.
[28]
See

35(2).
[29]
[1942] USSC 51
;
315
U.S. 568
, 571-72 (1942) (footnotes omitted).
[30]
E.g.,
New York Times v Sullivan
,
[1964] USSC 41
;
376 U.S.
254
, 269 (1964) (

Like
insurrection, contempt, advocacy of unlawful acts, breach of the
peace, obscenity, solicitation of legal business, and the
various
other formulae for the repression of expression that have been
challenged in this Court, libel can claim no talismanic
immunity
from constitutional limitations.  It must be measured by
standards that satisfy the first amendment.

)
[31]
Miller
v California
,
[1973] USSC 159
;
413 U.S. 15
, 23 (1973)
;
see also
New
York v Ferber
,
458 U.S. 747
, 763
(1982) (analysing

child
pornography as a category of material outside the protection of the
First Amendment.

)
[32]
S
v Zuma
[1995] ZACC 1
;
1995 (4) BCLR 401
(CC) 414;
S
v Makwanyane
1995 (6) BCLR 665 (CC)
707.
[33]
I
note also that section 15(1) protects

speech
and
expression

, thus obviating any
argument that the Constitution protects only traditional (verbal)
political discourse.  The pitfalls of
categorising speech
according to whether it appeals to the emotive, the cognitive, or
the rational faculties have been acknowledged
in United States
jurisprudence.
See e.g., Cohen v
California
,
403 U.S. 15
, 26 (1971)
(upholding constitutional right of petitioner to wear in public a
jacket bearing vulgar epithet protesting Vietnam war
draft:

much
linguistic expression serves a dual communicative function: it
conveys not only ideas capable of relatively precise, detached
explication, but otherwise inexpressible emotions as well.  In
fact, words are often chosen as much for their emotive as for
their
cognitive force.  We cannot sanction the view that the
Constitution, while solicitous of the cognitive content of
individual
speech, has little or no regard for that emotive function
which, practically speaking, may often be the more important element

of the overall message.

)
[34]
Cf.
R v Keegstra,
[1990] 3 C.R.R. (2d)
193, 286 (

the contents of a
statement cannot deprive it of the protection afforded by [the
guarantee of free expression], no matter how offensive
it may be

);
R v Butler,
[1992] 8 C.R.R. (2d) 1, 27 (

in my
view, there is no doubt that [anti-obscenity legislation] seeks to
prohibit certain types of expressive activity and thereby
infringes
[freedom of expression].

)
Ronald Dworkin identifies what he calls the

egalitarian

role of the guarantee of free expression, and it
is on that basis that he insists that pornography falls under the
umbrella of that
guarantee, notwithstanding that it is not
conventionally understood as

political

in nature.
Women and
Pornography, New York Review of Books
,
Oct. 21, 1993, 36:

The First
Amendment
'
s egalitarian role is not
confined . . . to political speech.  People
'
s
lives are affected not just by their political environment . . . but
even more comprehensively by what we might call their moral
environment. . . . Exactly because the moral environment in which we
all live is in good part created by others . . . the question
of who
shall have the power to help shape that environment is of
fundamental importance . . . Only one answer is consistent with
the
ideals of political equality: that no one may be prevented from
influencing the shared moral environment, through his own private
choices, tastes, opinions, and examples, just because these tastes
and opinions disgust those who have the power to shut him up
or lock
him up. . . . In a genuinely egalitarian society, [such] views
cannot be locked out, in advance, by criminal or civil laws:
they
must instead be discredited by the disgust,  outrage, and
ridicule of other people.
'
Id.
at 41.
See also
note 37,
infra.
[35]
It
is worth noting that a further dimension of the corollary
relationship between the right to transmit and the right to receive
information was recognised by the Technical Committee on Fundamental
Rights During the Transition, which appended as an Explanatory
Note
to its draft of the free expression clause the comment that

the
Committee understands that freedom of speech and expression includes
the right to gather information preparatory to its expression.
'
Fourth Progress Report
,
June 3, 1993, para 2.1.
See
Chaskalson,
et. al
,
Constitutional Law of South Africa
(1996)

20.1(b) (Technical
Committee
'
s note

suggests
that although access to information held by the state is separately
enshrined in s 23, the right to receive information
is also an
integral part of the right of freedom of expression.

)
[36]
This
rationale was eloquently articulated in Justice Holmes
'
famous dissent in
Abrams
v U.S.
,
[1919] USSC 206
;
250 U.S. 616
, 630 (1919):

[W]hen men have realized that time
has upset many fighting faiths, they may come to believe even more
than they believe the very
foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas --
that the best test
of truth is the power of the thought to get
itself accepted in the competition of the market . . . [w]e should
be eternally vigilant
against attempts to check the expression of
opinion that we loathe and believe to be fraught with death . . .

.
[37]
It
is questionable whether the truth-seeking rationale for freedom of
expression has application where the expression at issue is
pornographic:

[M]ost pornography
makes no contribution at all to political or intellectual debate: it
is preposterous to think that we are
more likely to  reach
truth about anything at all because pornographic videos are
available.
'
Ronald Dworkin,
Women
and Pornography, New York Review of Books
,
Oct. 21, 1993.  It is also worth noting that the truth-seeking
rationale for freedom of expression has been sharply criticised
as
tending to project uncritically onto the jurisprudential debate an
idealised conception of free economic market relations.
See
Chaskalson
et al
.,
Constitutional Law of South Africa
(1996)

20.2 (b) n. 8, and sources
cited therein; Van Wyk
et al.
,
Rights and Constitutionalism
(1994), 268-69.
[38]
See
In re: Munhumeso
1995 (2) BCLR 125
(ZS) 130  (noting that freedom of expression served the
purpose,
inter alia
,
of

help[ing] an individual to
achieve self-fulfilment

);
Van Wyk,
supra
note 17, 269 (

Every individual has
the right (and duty) to seek his or her own

truth
'
,
whether it objectively exists or not, in order to develop as a human
being.

); Emerson,
The
System of Freedom of Expression
, 6
(

freedom of expression is
essential as a means of assuring individual self-fulfilment.
The proper end of man is the realisation
of his character and
potentialities as a human being.  For the achievement of this
self-realisation the mind must be free
. . . [t]o cut off [a
person
'
s] search for truth, or his
expression of it, is to elevate society and the State to a despotic
command . . . and to place [her
or him] under the arbitrary control
of others.

)  Emerson
'
s
words resonate with those of Ackermann, J., in
Ferreira
v Levin NO
;
Vryenhoek
v Powell NO
1996 (1) BCLR 1
(CC) 28
(

An individual
'
s
human dignity cannot be fully respected or valued unless the
individual is permitted to develop his or her unique talents
optimally.
Human dignity has little value without freedom; for
without freedom personal development and fulfilment are not
possible.

)
[39]
See
S v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC)
675, para 10 (an individual provision of Chapter 3 must  be
construed

in its context, which
includes . . . other provisions of the Constitution itself and, in
particular, the provision of Chapter 3
of which it is part.

)
(
per
Chaskalson, P.)
Compare
Mandela v Falati
1994 (4) BCLR 1
(W)
8  (

In a free society all
freedoms are important, but they are not all equally important.
Political philosophers are agreed about
the primacy of the freedom
of speech

) (
per
Van Schalkwyk, J.)  With respect to the learned judge, it may
comport better with the both the spirit and the structure of
our
Constitution to understand each of the various enumerated rights
contextually, as interrelated and mutually supporting articulations
of the values that underlie the document, rather than to attempt to
rank individual rights in any particular hierarchy.
[40]
Respectively
articulated in sections 14, 13 and 10 of the Constitution.
[41]
Article
9 of the
African Charter on Human
Rights and Peoples
'
Rights
provides
for an unqualified right to
receive
information, which, significantly, is listed ahead of the right to
transmit same:
9(1)         Every individual
shall have the right to receive information.
9(2)         Every
individual shall have the right to express and disseminate his
opinions
within the law.
The
European Convention on Human Rights
,
Art. 10, provides that the right to receive information

[s]hall include freedom to . . .
receive . . . information without interference.
'
Article 19 of the
Universal
Declaration of Human Rights
(1948),
declares:

[e]very person has the
right to freedom of opinion and expression; this right includes . .
. [the right] to receive . . . information.

Finally,
Article 19 of the
International
Covenant on Civil and Political Rights
(1966), provides that

[e]verybody
shall have the right to freedom of expression; this right shall
include freedom . . . [to] receive and impart information
and ideas
of all kinds.

[42]
[1983]
147 D.L.R. (3d ) 58 (Ont.) 66.
[43]
[1992]
8 C.R.R. (2d) 1, 27 (emphasis supplied).
[44]
Leander
v Sweden
,
[1987] ECHR 4
;
[1987] 9 E.H.R.R. 433
, 456;
see also Sunday Times v United Kingdom
,
[1979] ECHR 1
;
[1979] 2 E.H.R.R. 245
, 280 (noting necessary relationship between
function of media in communicating information and right of public
to receive same.)
[45]
In
re: Munhumeso
1995 (2) BCLR 125
(ZS)
130.
[46]
Bennett
Coleman & Co. v Union of India
1973
(2) S.C.R. 757
, 818;
see also Indian
Express v Union of India
1985 (2)
S.C.R. 287, 318-19.
[47]
Griswold
v Connecticut
,
381 U.S. 479
, 482
(1965) (

the State may not,
consistently with the spirit of the First Amendment, contract the
spectrum of available knowledge.  The
right to freedom of
speech and press includes not only the right to utter or to print,
but the right to distribute, the right to
receive, the right to
read

);
see
also Bell v Wolfish
,
[1979] USSC 82
;
441 U.S.
520
, 572-73 (1979) (

That
individuals have a fundamental First Amendment right to receive
information and ideas is beyond dispute.

)
(Marshall, J., dissenting).
[48]
1973
(2)  S.C.R. 757.
[49]
[1969] USSC 141
;
395
U.S. 367
,  390 (1969).
[50]
See,
e.g., Procunier v Martinez
,
[1974] USSC 82
;
416 U.S.
396
, 408-09 (1974) (sustaining challenge to censorship of prisoners
'
outgoing mail by focusing on first amendment
rights of addressees to receive such mail);
Kleindienst
v Mandel
,
[1972] USSC 172
;
408 U.S. 753
, 762-65 (1972)
(acknowledging in principle the right of an academic audience to
hear presentation by communist alien seeking temporary
visa to enter
United States.);
cf
.
Lamont v Postmaster General
,
381 U.S. 301
, 308 (1965) (striking statute permitting the government
to intercept post coming into the United States from communist
organisations
abroad, because it interfered with
addressees
'
first amendment rights to receive such
mail) (Brennan, J
. concurring).
[51]
[1982] USSC 142
;
457
U.S. 853
, 868 (1982).
[52]
[1969] USSC 73
;
394
U.S. 557
, 564 (1969).  Without necessarily endorsing the
analysis adopted by the United States Supreme Court, it is
interesting to
note the variety of other  circumstances under
which a right to receive information has been upheld.
See,
e.g.
,
Consolidated
Edison Co. v Public Service Commission
,
447 U.S. 530
(1980) (ban on the inclusion of pro nuclear power
materials with power company
'
s monthly
bills held invalid, on basis of the First Amendment's role in
affording the public access to discussion, debate, information,
and
ideas);
Central Hudson Gas &
Electric Corp. v Public Service Commission
,
447 U.S. 557
(1980) (upholding public
'
s
right to access to advertising);
First
National Bank v Bellotti
,
435 U.S. 765
(1978) (spending corporate funds to communicate to the public about
voting on referenda issues);
Linmark
Associates, Inc. v Township of Willingboro
,
431 U.S. 85
(1977) (right to receive information about
property for sale through "For Sale" or "Sold"
signs on residential
property);
Carey v
Population Services International
,
[1977] USSC 99
;
431
U.S. 678
, 701 702 (1977) (right to receive advertising about
contraceptives);
Bates v State Bar of
Arizona
[1977] USSC 167
; ,
433 U.S. 350
, 384 (1977)
(right to receive information about availability and terms of legal
services);
Virginia State Board of
Pharmacy v Virginia Citizens Consumer Council, Inc
.
[1976] USSC 90
; ,
425 U.S. 748
, 757 (1976) (right to receive advertising about
prescription drug prices);
Griswold
v Connecticut
,
381 U.S. 479
, 482
(1965) (right to receive information about contraception);
Marsh
v Alabama
,
[1946] USSC 7
;
326 U.S. 501
(1946) (right
to receive religious literature on streets of a company owned
town);
Thomas v Collins
,
[1945] USSC 32
;
323 U.S. 516
(1945) (rights of workers to hear labour organiser);
Martin v City of Struthers
,
319 U.S. 141
(1943) (right to receive handbills).
[53]
See
S v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC)
708, para 102.
[54]
I
emphasise that my review of foreign authority should not be taken to
mean that I necessarily approve of any of the authorities
cited.
[55]
[1957] USSC 100
;
354
U.S. 476
(1957).
[56]
The
test laid down in
Regina v Hicklin
(1868) L.R. 3 Q.B. 360
, 371 had been widely adopted by American
courts.  The
Hicklin
test was adopted also by the Indian High Court.   In
Ranjit D. Udeshi  v
Maharashtra
,
1 S.C.R. 65
,
(1965)
A.S.C. 881
, the Court applied the
Hicklin
test to uphold the conviction of the accused for possession of a
copy of D.H. Lawrence
'
s
Lady
Chatterley
'
s Lover
for
purpose of sale.  The court held that application of the
Hicklin
test appropriately effectuated the limitation of freedom of speech
contemplated by the words

decency
or morality

in article 19(2) of
the Indian Constitution.  Hidayatullah J. noted that the
protagonist gamekeeper
'
s vocabulary was
not

genteel

:

[h]e knew no Latin which could be
used to appease the censors.
'
Id.
78.   Moreover, the work
'
s
sociological message, he held,

does
not interest the reader for whose protection . . . the [obscenity]
law has been framed.
'
Id.
80.
[57]
Roth
,
354 U.S. at 484.
[58]
Roth
,
354 U.S. at 489.
[59]
Roth
,
354 U.S. at 487-88.
[60]
See,
e.g.
,
Walker
v Ohio
,
[1970] USSC 146
;
398 U.S. 434
(1970).
[61]
Miller
,
413 U.S. at 24.
[62]
Miller
,
413 U.S. at 23-24.
[63]
[1964] USSC 164
;
378
U.S. 184
, 197 (1964) (concurring).
[64]
Brockett
v Spokane Arcades, Inc
.
[1985] USSC 163
; ,
472 U.S. 491
,
504-05 (1985).
[65]
[1992] USCA11 718
;
960
F.2d 134
(11th Cir. 1992).
[66]
[1992] USCA11 718
;
960
F.2d 134
, 136 (11th Cir. 1992).
[67]
[1992] USCA11 718
;
960
F.2d 134
, 138-39 (11th Cir. 1992).   While the conviction
of the rap musicians in this matter was ultimately reversed, the
singling
out for prosecution of Afro-American performers whose work
does not comport with decorous mainstream conceptions of what
constitutes

art

would appear to be the ineluctable result of an
obscenity jurisprudence that calls upon judges to make aesthetic
determinations.
As one commentator has noted,

the
journey from
Ulysses
to
Hustler
involves more than a move from literature to smut, from words to
images.  It involves the transition from the preoccupations
of
an educated minority to the everyday fantasies of the blue-collar
majority. . . . Once upon a time, obscenity was confined to
expensive leather-bound editions available only to gentlemen. . . .
One of the questions asked by the crown prosecutor [in the
trial of
the publisher of
Lady Chatterley
'
s
Lover
] was:

Would
you let your servant read this book?
'
. .
.
Hustler
is the servant
'
s revenge.
'
Neville,
Has the
First Amendment met its Match?, N.Y. Times
,
March 6, 1977, p. 16 (quoted in Tribe,
American
Constitutional Law
(1988) 918-19.)
[68]
See,
e.g.
,
Paris
Adult Theatre v Slaton
,
413 U.S. 49
,
59-69 (1973) (noting

right
of the Nation and of the States to maintain a decent society
'
.

)
(
quoting Jacobellis v Ohio
,
[1964] USSC 164
;
378 U.S. 184
, 199 (1964).
[69]
[1992]
8 C.R.R. (2d) 1.
[70]
Canadian
Crim. Code, R.S.C. (1985), c. C-46, 163(8).
[71]
Butler
,
supra, note 69
,
25.
[72]
Butler
,
supra
,
27.
[73]
Butler
,
supra
,
39.
[74]
Butler
,
supra
,
40.
[75]
Butler
,
supra
,
30.
[76]
Butler
,
supra
,
30-33.  The Court
'
s reasoning
reflects the influence of American academic Catharine MacKinnon, who
has developed a powerful critique of obscenity
law as developed by
the United States Supreme Court.   Professor
MacKinnon rejects both the morality-based approach,
and the Millsean
analysis of harm that she argues  characterises First Amendment
jurisprudence.
See Feminism
Unmodified
, Harvard Univ. Press
(1987), 156-57 (

The trouble with
this individuated, atomistic, linear, isolated, tortlike -- in a
word, positivistic -- conception of injury is
that the way
pornography targets and defines women for abuse and discrimination
does not work like this.  It does hurt individuals,
not
as
individuals in a one-at-a-time sense, but as members of the group

women.
'
.
. . [The] causality is essentially collective and totalistic and
contextual.  To reassert atomistic linear causality as a
sine
qua non
of injury -- you cannot be
harmed unless you are harmed through this etiology - is to refuse to
respond to the true nature of this
specific kind of harm.

)
Responding to Professor MacKinnon, Ronald Dworkin agrees that the
availability of pornography may crucially
affect the social climate,
but asserts that her argument that free expression may be limited in
the interests of gender equality
is misplaced, because free
expression itself ultimately serves fundamental egalitarian
interests:

[W]e may and must
protect women  . . . from specific and damaging consequences of
sexism . . . We must protect them against
unfairness and inequality
in employment or education or housing or the criminal process, for
example.  But we must not try
to intervene further upstream, by
forbidding any expression of the attitudes or prejudices that we
think nourish such unfairness
and inequality, because if we
intervene too soon in the process through which collective opinion
is formed, we spoil the only democratic
justification we have for
insisting that everyone obey these laws, even those who hate and
resent them.

Ronald Dworkin,
A
New Map of Censorship, Index on Censorship
,
May/June 1994, 9-15.
See
note 34,
supra
.
[77]
[1993]
6 C.C.C. (3d) 246.
[78]
See,
e.g.
,
Pope
v Illinois
,
[1987] USSC 76
;
481 U.S. 497
, 504-05
(1987) (

[I]t is quite impossible
to come to an objective assessment of (at least) literary or
artistic value, there being many accomplished
people who have found
literature in Dada, and art in the replication of a soup can.
Since ratiocination has little to do
with esthetics, the fabled

reasonable man; . . . would have
to be replaced with, perhaps,

the
man of tolerably good taste
'
-- a
description that betrays the lack of an ascertainable standard . . .
Just as there is no arguing about taste, there is no use
litigating
about it

) (Scalia, J.,
concurring));
Smith v United States
,
[1977] USSC 83
;
431 U.S. 291
, 316 (

[I]n my
judgement, the line between communications which

offend
'
and those which do not is too blurred [t]o
delimit the protections of the first amendment.

)
(Stevens. J., dissenting));
Paris Adult
Theatre v Slaton
,
413 U.S. 49
, 87, 103
(1973) (

even the most painstaking
efforts to determining in advance whether certain sexually oriented
expression is obscene must inevitably
prove unavailing . . . I
am forced to conclude that the concept of

obscenity

cannot be defined with sufficient specificity and
clarity to provide fair notice

)
(Brennan, J., dissenting));
Interstate
Circuit, Inc. v Dallas
,
[1968] USSC 72
;
390 U.S. 676
,
704 n. 1 (1968) (

The subject of
obscenity has produced a variety of views among the members of the
court unmatched in any other course of constitutional
adjudication

);
Ginzburg
v United States
,
[1966] USSC 49
;
383 U.S. 463
, 480-81
(1968) (

no person, not even the
most learned judge much less a layman, is capable of knowing in
advance of an ultimate decision in his particular
case by this court
whether certain material come within the area of

obscenity
'
)
(Black, J., dissenting).
See also
Abraham & Perry
Freedom and the
Court
(1994), at 200, n. 239 (
quoting
Stevens, J., as opining that the Court
'
s

thinking on obscenity is
intolerably vague and makes evenhanded enforcement virtually
impossible

) (landmark decisions

did not settle -- for they really
could not -- the basic problem of just what

obscene

means.

)
[79]
See,
e.g.
,
Using
Racketeering Laws to Control Obscenity
,
36
Boston College L. Rev.
553, 581 (1995) (

The Supreme Court
has encountered difficulty defining obscenity, and even the current
Miller
definition is vague

); Edward de
Grazia,
Girls Lean Back Everywhere
,
11
Cardozo Arts & Ent. L. J.
777, 805 (1993) (

even the narrow
definition of obscenity set forth in
Miller
is unconstitutionally vague and overbroad

);
Jeff Rosen,
Miller Time
,
203
The New Republic
,
Oct. 1, 1990, 14 (

if art can
'
t
be cleanly distinguished from obscenity, as more than 30 years of
failed Supreme Court tests make clear, then private consumption
of
obscenity must be endured so that art can be protected.

)
One influential study found that the
Miller
test had little effect on the regulation of obscene materials; this
was attributed,
inter alia
,
to the fact that the test

requires
law enforcement officials to make

largely
subjective evaluations of sexually explicit materials.
'
Harold Leventhal,
An
Empirical Study into the Effects of Miller v California on the
Control of Obscenity
, 52
N.Y.U.L.
Rev.
810 (1977).   Judge
Didcott (as he then was) , wrote in
Anchor
Publishing Co. v P.A.B.
1987 (4) SA
708
(N), that he doubted various attempts to define indecency and
obscenity

have done much more in
the end but replace some adjectives with others more or less
synonymous but equally imprecise.
'
Id.
713.
[80]
Butler
,
8 C.R.R (2d) at 21.
[81]
E.g.
,
Jodi  Kernick,
Suppressing Violent
and Degrading Pornography
, 19
Brooklyn
Int
'
l  L. J.
627
(1993) (arguing that
Butler
is morality-based, and will tend to perpetuate women
'
s
inequality.)
[82]
See
note 67,
supra
.
[83]
Various
commentators have noted that, post-
Butler
,
Canadian police and Customs officers seized quantities of lesbian,
gay and feminist material.
See
Carlin Meyer,
Sex, Sin, and Women
'
s
Liberation
, 72
Tex.
L. Rev.
1097, 1119 (1994); Margaret
McIntyre, 6
U.C.L.A. Women
'
s
L.J.
189, 237 ff. (1995);
cf
.
John Sopinka,
Should Speech that Causes
Harm be Free?
, in Jane Duncan (ed.)
Between Speech and Silence
(1996), 140.  Ironically, books by Andrea Dworkin, a prominent
anti-pornography activist, have been amongst those seized.
See
Ursula Owen,
Hate Speech and
Pornography
, in Duncan,
op.
cit
., 39; Sarah Lyall,
Canada's
Morals Police: Serious Books at Risk?
,
N.Y. Times
,
Dec. 13, 1993;  Mary Williams Walsh,
Chill
Hits Canada's Porn Law
,
L.A.
Times
, Sept. 6, 1993, at A1; Carl
Wilson, Vol. 257, No. 22,
The Nation
788, Dec. 27, 1993.  The two Andrea Dworkin books
seized,
Pornography: Men
Possessing Women
(1989) and
Women
Hating
(1974), were confiscated
because they "illegally eroticized pain and bondage."
Walsh,
supra
at A17.
See also
Hasnas,
Back to the Future,
45 Duke
L.J.
84
, 120 (1995) (

the
agents charged with the enforcement of [the statute upheld in
Butler
]
apparently have a different interpretation of what is degrading,
dehumanizing, and humiliating than either MacKinnon and Dworkin
or
the Justices of the Supreme Court

);
Joanne Fedler,
A Feminist Critique of
Pornography
, in Duncan,
op.
cit.
, 58 (noting that the Feminist
Anti-Censorship task force opposed a MacKinnon-drafted
anti-pornography ordinance in Indianapolis,
asserting that the
ordinance would erode women
'
s autonomy and
privacy, because the ordinance would place powers

to
censor and therefore to control culture . . . in the hands of the
self-same  gendered state officials.

)
McIntyre quotes Catharine MacKinnon and Dworkin as acknowledging the
overbroad application of post
Butler
obscenity law in Canada, and as asserting that this was the result
of the use of criminal sanctions against pornography rather
than (as
they had advocated) provision for civil damages for victims of
pornography.   6
U.C.L.A.
Women
'
s L.J.
189,
239 & n. 188.
See
MacKinnon,
Pornography Left and Right
,
30
Harv. Civil Rights-Civil Liberties
L. Rev.
143 (1995) (rejecting
obscenity law as method of combatting pornography and calling for
legislation making pornography  civilly
actionable.  In
American Booksellers Ass
'
n
v Hudnut
,
771 F.2d 323
(7th Cir.
1985)
, aff
'
d
without opinion
,
475 U.S. 1001
(1986),
the court struck down the above-mentioned Indianapolis ordinance,
drafted by Professor MacKinnon, creating a civil remedy
against

graphically sexually explicit

portrayals of sexual violence against or sexual
degradation of women.
[84]
Applicants
also make the separate, but connected, argument, that the said
definition is unconstitutionally vague
.
For reasons that will become clear, it is not necessary to consider
that head of Applicants
'
argument.
[85]
[1990]
71 D.L.R. (4th) 68.
[86]
Id.
81.   The Indian Supreme Court has
adopted a broadly similar analysis:

There
must be a direct and proximate nexus or reasonable connection
between the restriction imposed and the object which is sought
to be
achieved.
'
Pathumma v State of Kerala
,
[1978] (2) S.C.R. 537, 549.
[87]
1995
(10) BCLR 1382
(CC) 1391 (
per
Kriegler, J.)
[88]
1987
(3) SA 296 (N).
[89]
Id
.
325-26.  Although the Appellate Division reversed the NPD
'
s
decision in
Staatspresident en Andere v
United Democratic Front en

n
Ander,
1988 (4) SA 830
(A), the
fundamental principle for which the case is here cited was not
contested.
[90]
See,
e.g., R v Canadian Pacific Ltd.
,
[1995] 99 C.C.C. (3d) 97.
[91]
Royal
College of Dental Surgeons of Ontario v Rocket
,
[1990] 71 D.L.R. (4th) 68.
[92]
Maryland
v Joseph Munson
,
467 U.S. 947
, 956-57
(1984).
[93]
[1974] USSC 124
;
416
U.S. 134
, 231 (1973).
See also
para. 80 & note 117,
infra
.
[94]
Attorney
General, Transvaal v Additional Magistrate for Johannesburg
1924 AD 421
, 436 (a statute

should
be construed so that, if it can be prevented, no clause, sentence or
word shall be superfluous, void, or insignificant

)
(
quoting R v Bishop of Oxford
,
[1879] 4 Q.B. 245
at 261);
cf.
Secretary for Inland Revenue v Somers
Vine
1968 (2) SA 138
(AD) 156
(acknowledging non-redundancy as the

cardinal
rule

of interpretation) (
dicta
);
Du Plessis,
The Interpretation of
Statutes
(1986) 129 (

If
two different words are used in order to express apparently similar
ideas or to refer to presumably similar phenomena, it may
as a
starting-point be assumed that the two different words -- each with
is own meaning -- are primarily aimed at expressing different
ideas
or referring to different phenomena.

)
[95]
It
is well established that resort to dictionaries is permissible in
statutory interpretation.
See
Minister of the Interior v Machadodorp
Investments
1957 (2) SA 395
(A) 402
(referring to
Shorter Oxford English
Dictionary
and to
The
Standard Dictionary of the English Language
)
(
per
Steyn, JA);
see also S v Nunes
1975 (4) SA 929 (T) 931.
[96]
There
is authority in South African law for the deployment of hypothetical
cases against allegedly vague statutes.
See
Amoils v Johannesburg City Council
1943 TPD 386
, 390 (

the
Court may always test the reasonableness of a by-law by its
application in an extreme case.
'
For
a by-law that would be grossly unreasonable if applied in some cases
covered by its language is also grossly unreasonable as
a whole and
cannot be saved by the fact that it could be reasonably applied to
many or even the great majority of cases.

)
In Canadian law, hypothetical cases are routinely used to test for
overbreadth.
See, e.g.
,
R v Canadian Pacific Ltd
.,
[1995] 99 C.C.C. (3d) 97, para 8 (

when
conducting [an overbreadth] analysis, it will often prove necessary
to consider hypotheticals.

)
In
R v  Heywood
,
[1995] 120 D.L.R. (4th) 348, the court struck down the challenged
statute, which made it an offence for certain categories of
sex
offenders to be present in public parks.  The court pointed out
that a convicted sex offender could be found guilty under
the
statute if he was found in a

remote
wilderness park

,
Id.
385.   And it is no answer to assert that prosecutorial
discretion would never be exercised so as to hit forms of expression
which, it is common cause, deserve constitutional protection.
This court held in
S. v  Zuma
,
[1995] ZACC 1
;
1995 (4) BCLR 401
(CC) 417, that even if there existed a judicial
discretion to reject a confession because of doubts as to the
voluntariness thereof,

that gives
rise to no more than a possibility of an acquittal; the possibility
of a conviction remains.
'
See
also Attorney General v BBC,
[1980]
A.C. 303
(HL) 346 (

in so far as
the Attorney-General invites the courts to rely on his ipse dixit in
the confidence that all holders of that office
will always be both
wise and just about instituting proceedings . . . acceptance of his
invitation would involve a denial of justice
to those who are bold
enough to challenge that a particular holder has been either wise or
just.

)
[97]
I
need express no opinion as to whether the definition
'
s
singling out of
homosexuality
and
Lesbianism
constitutes a violation of

8(2)
of the Constitution, which prohibits unfair discrimination against
persons on the grounds of,
inter alia
,
sexual orientation.
[98]
Given
the scope for arbitrary enforcement afforded by a statute of such
indeterminate reach, the statute arguably is also not, in
the words
of

33(1) a
law
of general application
, nor, in the
language of

33(1)(a)(ii),
justifiable in an open and democratic
society based on freedom and equality
.
See
S.
v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC)
726, para 156 (

Arbitrariness, by
its very nature, is dissonant with . . . core concepts of our new
constitutional order.

) (
per
Ackermann, J.)   However, it is not necessary for purposes
of this matter to pursue that line of argument.  I assume
for
purposes of this matter that the speech restricted by the challenged
provision does not

relate[ ] to
free and fair political activity

,

33(1)(bb), and that there
therefore is no burden upon the state to show that the limitation is
necessary
.
[99]
See
Edwards Books and Art Ltd. v Q.
,
[1987] 28 C.R.R. 1
, 43  (noting need for a margin of
appreciation for legislative choice).  United States Courts
will similarly show deference
to legislative policy choices in
testing for overbreadth: it is not sufficient that the litigant
merely points to limited areas
of overbreadth;

substantial

overbreadth must be demonstrated.
Thus, for example, in
New York v
Ferber
,
458 U.S. 747
(1982), the court
rejected an overbreadth challenge of a statute forbidding
distribution of explicit sexual materials to persons
under the age
of 16, where it doubted that

arguably
impermissible applications of the statute amount to more than a tiny
fraction of the materials within the statute
'
s
reach.
'
Id.
773.
[100]
See
Mandela v Falati
1994 (4) BCLR 1
(W)
8.
Cf
.
note 38,
supra
.
See also India Express Newspaper
(Bombay) Pvt. Ltd  v Union of India
[1985] 2  S.C.R. 287,  320 (

Indeed,
freedom of expression is the first condition of liberty.  It
occupies a preferred position in the hierarchy of liberties
giving
succour and protection to other liberties.
'
)
(quoting
Second Press Commission
Report
, Vol. I pp 34-35);
Palko
v Connecticut
,
302 U.S. 319
, 327
(freedom of speech is

the matrix,
the indispensable condition of nearly every other form of
freedom.

);
Retail,
Wholesale & Department Store Union, Local 580 v Dolphin Delivery
Limited
, [1987] 33 D.L.R. (4th) 174,
183 (

Representative democracy . .
. is in great part the product of free expression . . .).
[101]
See
the court
a quo
'
s
referral order, para 4,
supra
.
[102]

35(2)
[103]
Cf.
Zimbabwe Township Developers (Pty) Ltd. v Lou
'
s
Shoes (Pty) Ltd.
1984 (2) SA 778
(ZS)
783A-D.  The constitutional principles embodied in sections
35(2) and 232(3) are a codification of an interpretative
rule that
derives from the Roman Law (
In ambigua
voce legis ea potius accipienda est significatio, quae vitio caret
),
and an established part of South African law.
E.g.,
R v Pickering
1911 TPD 1054, 1058.
[104]
1952
(3) SA 809
(A) 822.
See also
Government of the Republic of Namibia v Cultura 2000
1994 (1) (SA) 407 (NmS) 424  (applying
Chesterfield
test.)
[105]
1995
(10) BCLR 1382
(CC) 1392 (per Kriegler, J.)
[106]
1996
(1) BCLR 1
(CC) 78 (
per
Ackermann, J.)  In
MAWU  v
State President of the Republic Of South Africa
1986 (4) SA 358
(D) 366, the Court noted that where a portion of
subordinate legislation is void for uncertainty, it does not
necessarily follow
that everything surrounding it is also void:

The Court must try where it can
and sever the good from the bad.  It can sever the good from
the bad when the bad is self-contained,
stands on its own, can be
cut out notionally as well as grammatically.
'
(Per
Didcott J.)
[107]
The
case of
Brockett v Spokane Arcades,
Inc
.
[1985] USSC 163
; ,
472 U.S. 491
(1985), in which
the Court severed the word

lust

while upholding the remainder of an
anti-obscenity statute, is clearly distinguishable.  Lawrence
Tribe points out that
Brockett
presented the Court with a particularly

persuasive
array of factors in favor of only partial invalidation

:

the law contained a plainly
constitutional definition of obscenity in addition to the contested
phrasing; it included a severability
clause; and the state courts
had not yet had the opportunity to construe the statute.
'
American Constitutional Law
(1988),
1028.
[108]
See
para 11-12
supra
.
Although, as noted
supra
,
invoking the legislative history in interpreting a statute in the
first instance is problematic, the weight of the objections
to use
of such history is significantly diminished when we come to consider
severance, and are called upon to consider whether
the main object
of the statute would be served by proposed textual surgery.
[109]
See
Kauesa v Minister of Home
Affairs
1995 (11) BCLR 1540
(NmS) 1558
(declining to sever and read down overbroad regulation restricting
freedom of speech, in light of fact that regulation
was invalid in
numerous  respects, and that the proposed remedies would
require the Court to

guess the
intention of the lawgiver.

)
(
per
Dumbutshena, J.)
; R.M.D.
Chamarbaugwalla v The Union of India,
[1957] S.C.R. 930
, 951 (

Even when
the provisions which are valid are distinct and separate from those
which are invalid, if they all form part of a single
scheme which is
intended to be operative as a whole . . . the invalidity of a part
will result in the failure of the whole.

)
[110]
1995
(10) BCLR 1382
(CC) 1393, para 17.
See
also
MAWU
v State President of the Republic of South Africa
1986 (4) SA 358
(D) 367  (

If
[a clean] amputation cannot be performed, it is not for the Court to
redraft the legislation in an acceptable form.  If
severance is
not possible, the bad then infects what might otherwise have been
good, and it is all bad

(per
Didcott J.); Schlaich,
Das
Bundesverfassungsgericht
(1994)
(3d) 353 (pointing out the danger that, by striking individual words
within a provision, a Court may invade the province
of the
legislature by enforcing a rewritten statute not within the
contemplation of the lawgiver).
[111]
See
Carol Rogerson,
The
Judicial Search for Appropriate Remedies Under the Charter
,
in Sharpe (ed.),
Charter Litigation
(1987) 288.
[112]
[1992]
10 C.R.R. (2d) 1,  26.   In
Edward
Book & Art  v The Queen
,
[1987] 28 C.R.R. 1
, 51 the court held that it was

not
the role of this court of law to devise legislation that is
constitutionally valid, or to pass on the validity of schemes which
are not directly before it, or to consider what legislation might be
the most desirable.

;
see
also R v Seaboyer,
[1992] 6
C.R.R. (2d) 35, 66.
[113]
See
R. v Le Page,
[1995] 28 C.R.R. (2d) 309 (Ont.)
A
provision in the Criminal Code permitting detention of mentally
disturbed persons who posed a

significant
threat to the safety of the public

was
held to be unconstitutionally overbroad, in that it swept more
broadly than potential violent or criminal conduct, failing to
ensure that only those

who are
shown to be risk to cause harm unacceptable to society

will be detained in a mental hospital.
Id.
369-74.  The court declined to sever the offending language
because it was

central

to the review system.
Id.
375.
[114]
See
Hogg,
Constitutional
Law of Canada
(3d) (1992), 393-34,
para 15.7.
[115]
Without
commenting upon whether or not the formulae applied in various
foreign jurisdiction would pass constitutional muster in
South
Africa, it is instructive that courts in Canada, the United States,
Germany and India have insisted on exemptions for works
of a
bona
fide
artistic nature in pornography
legislation.
See R v
Butler,
[1992] 8 C.R.R. (2d) 1, 23
(

Even material which by itself
offends community standards [will not be proscribed] if it is
required for the serious treatment of
a theme

);
Miller v California
,
[1973] USSC 159
;
413 U.S. 15
,  24 (1973) (

the
work, taken as a whole, [must] lack[ ] serious artistic, literary,
political, or scientific value

);
BVerfGE 83, 130 at 147-48 (holding that the constitutional right to
artistic freedom must be taken into account even in the circumstance
where material in question is unquestionably pornographic);
K.A.
Abbas v Union
(1971) 2 S.C.R. 446
, 471
(

artistic appeal or presentation
of an episode robs it of its vulgarity and harm.

)
It is interesting to note that the
Hicklin
test was  modified in 1954, in
R v
Martin Secker Warburg Ltd
.,
[1954] 1
W.L.R. 1138
, Mr. Justice Stable held that a book representing an
honest and serious attempt to portray the society or group about
which it
was written, rather than merely a vehicle for sexual
episodes, could not be deemed obscene.
But
see
note 67,
supra
,
regarding the danger that judicial evaluations of artistic value
will involve class-based and culturally discriminatory
determinations.
[116]
1995
(10) BCLR 1382
(CC) 1114, para 62.
See
also Kauesa v Minister of Home Affairs
1995 (11) BCLR 1540
(NmS) 1558 (declining to

read
in

limiting provision to overbroad
regulation limiting freedom of expression, noting that this would
entail the court performing

the
constitutional function of the legislature.

)
(
per
Dumbutshena, J.)
[117]
Lawrence
Tribe points out the perilous dialectic between the Scylla of
overbreadth and the Charybdis of vagueness when he cautions
that

[b]y pruning a statute of its
overbroad sections, courts run the risk of leaving the remainder
impermissibly vague.
'
American
Constitutional Law
(1988) 1030.
Tribe adds:

the Constitution does
not, in and of itself, provide a bright enough line to guide primary
conduct . . . a law whose reach into
protected spheres is limited
only
by
the background assurance that unconstitutional application will
eventually be set aside is a law that will deter too much that
is in
fact protected.
'
Id.
1031.
See also
Stone,
et. al.
,
Constitutional Law
(1986) 1045 (

By declaring
overbroad laws unconstitutional on their face, the overbreadth
doctrine avoids the vagueness that ordinarily would
result from
permitting such laws to be enforced up to the limits of their
constitutionality.

)
[118]
1988
(3) SA 203
(C) 213.
See also
MAWU v  State President of the
Republic of South Africa
1986 (4) SA
358
(D) 370 (

I consider that [the
challenged provision] is hopelessly uncertain, that no ascertainable
meaning can be derived from it if it is
meant to have some
limitation
and that if it is meant to
have no limitation, if it is intended to apply literally . . . it
has strayed way beyond the State President
'
s
powers
.

)
(emphasis added).
[119]
See
Osborne v Canada,
[1991] 82 D.L.R.
(4th) 321, 325 (noting danger of

cur[ing]
over-inclusiveness on a case-by-case basis leaving the legislation
in its pristine over-inclusive form outstanding on the
books.

)
(
per
Wilson, J., concurring); Roach,
Constitutional
Remedies in Canada
(1995), para 14.220
(

reading down is not an
appropriate means to advance the purposes of freedom of expression.
The effect of such a remedy is
to preserve on the books vague or
overbroad legislation that could chill expression.

)
[120]
The
deterrent to protected speech posed by an overbroad statute would
not be effectively dealt with if

the
contours of regulation would have to be hammered out case by case --
and tested only by those hardly enough to risk criminal
prosecution
to determine the proper scope of regulation.
'
Dombrowski v Pfister
,
[1965] USSC 74
;
380 U.S. 479
, 487 (1965) (
per
Brennan,
J.)
[121]
Although
the Canadian Constitution does not contain a provision equivalent to
the section 98(5) proviso, the Canadian Supreme Court
fashioned such
a remedy in
Reference re: Language
Rights under the Manitoba Act
, [1985]
19 D.L.R. (4th) 1, 36, to deal with such a
lacuna.
The Canadian Supreme Court cited Lord Pierce
'
s
dissent in
Madzimbamuto v
Lardner-Burke
, [1969] 1 A.C. (P.C.),
in which Lord Pierce applied the doctrine of

state
necessity

in his analysis of the
legal regime in the aftermath of the unlawful Unilateral Declaration
of Independence in Rhodesia, opining
that to disregard all of the
illegal provisions in the territory would create a

vacuum
and chaos.
'
19 D.L.R. (4th) at 31.
In
Schachter v Canada
,
[1992] 10 C.R.R. (2d) 1, the Canadian Supreme Court identified three
circumstances under which it would suspend invalidity:

(A)
striking down the legislation without enacting something in its
place would pose a danger to the public

;

(B) striking down the legislation
without enacting something in its place would threaten the rule of
law

; or,

(C)
the legislation was deemed unconstitutional because of
underinclusiveness rather than overbreadth, and therefore striking
down
the legislation would result in the deprivation of benefits
from deserving persons without thereby benefitting the individual
whose
rights have been violated.

Id.
27.
[122]

8(1)(a),
(b) & (e).
[123]

47(2).
[124]

8(d)
provides that

[n]o person shall --
. . . possess any publication or object, if the possession of that
publication or object has been prohibited
under section 9(3) and
that prohibition has been made known by notice in the
Gazette
.

[125]

21.
[126]
The
two instances in which this Court has temporarily suspended the
invalidity of a statute are clearly distinguishable from the
circumstances of this matter.  In
Executive
Council of the Western Cape Legislature and Others v President of
the Republic of South Africa
1995(10)
BCLR 1289 (CC), Chaskalson P
'
s
decision emphasised the serious consequences for good government if
invalidity of a provision delegating powers to
the President to
amend legislation relating to local government elections were not
suspended:

An order which would in
effect disrupt the functioning of transitional local government
structures and prevent the elections from
being held would not in my
view be in the interests of good government. It could lead to
increased tension in areas where the inhabitants
are anxious to
democratise their local structures and to considerable waste of
expenditure bearing in mind the preparations that
are already under
way and the steps that have been taken to lay the groundwork for
such elections.
'
Id.
para 110. The Court also took into account the limited prejudice
that would be suffered by the applicants:

The
prejudice to the applicants consequent upon such an order being made
is, by comparison, not substantial. . . Weighing this limited
potential prejudice as far as the applicants are concerned against
the much greater prejudice to local government generally, and
the
holding of elections in particular, which will result if the
proclamations are declared invalid with immediate effect, it seems
clear that

justice and good
government
'
requires that Parliament be
given the opportunity if it wishes to do so, to remedy the
situation.
'
Id.
para 112.
In
S v Ntuli
1996(1) BCLR 141 (CC) the Court suspended the declaration of
invalidity of a provision  requiring prisoners convicted in

lower courts to obtain a judge
'
certificate
if they wished to prosecute an appeal without the assistance of a
lawyer.  Writing for the Court, Didcott J. noted
that allowing
prisoners to lodge appeals without certificates would lead to a
significant increase in the number of such appeals.
That would
require new statutory structures:

Legislation
will have to be drafted and circulated.  All that will take
time, lots of time. . . The long perpetuation of an
unconstitutional
scheme is admittedly unfortunate.  But the statute book cannot
be purged suddenly of all its old elements
that are now repugnant to
the Constitution.  And, if fresh problems are to be avoided,
the removal of the objectionable parts
and their replacement by ones
that are sound and realistic has to be both thorough and
thoughtful.  That, I have no doubt,
is

in
the interests of justice and good government
'
.
'
Id.
para 28.
[127]
1995(12)
BCLR 1579 (CC).
[128]
1995(10)
BCLR 1382 (CC).
[129]
See
also Ferreira v Levin NO; Vryenhoek v Powell NO
1996
(1) BCLR 1
(CC) 94 (declining to grant order under proviso to

98(5) where declaration of invalidity would have

insignificant, if any, impact

on relevant sections of Companies Act.
[130]
In
Bhulwana
the Court found that the impugned presumption created by

21(1)(a)(i) of the
Drugs and Drug Trafficking Act
of 1992
was

not necessary for the
conviction of offenders, or for the furthering of the objects of the
legislation.

Id.
para 30 (
per
O
'
Regan, J.)  In
Coetzee
,
striking down provisions allowing for the imprisonment, in certain
circumstances, of civil debtors, the Court held that

it
is by no means so that the system is dependent upon the imprisonment
sanction for its viability.  There are a number of
other aids
to judgment debt collection in the system, e.g., property attachment
and garnishment of wages

.
Id.
para
18 (
per
Kriegler, J.)  In
Bhulwana
,
the Court noted further that

[c]entral
to a consideration of the interests of Justice in a particular case
is that successful litigants should obtain the relief
they seek. .
.  In principal too, the litigants before the court should not
be singled out for the grant of relief, but relief
should be
afforded to all people who are in the same situation as the
litigants.
'
Id.
para 32 (
per
O
'
Regan, J.)  In light of our
conclusion that no significant considerations impel in favour of
suspension of invalidity in the
present case, it is unnecessary
to analyse the interests of the Applicants and those similarly
situated
in casu
.
[1]
Ackermann
J analysed and discussed the concept of personal privacy in
paragraphs [65] to [79] of the judgment written by him in
Bernstein
and Others v Bester NO and Others
,
which was delivered in this Court on 27 March 1996 but has not yet
been reported. In an apt metaphor used in paragraph [67] he
alluded
to

the inner sanctum of a person

that lay within

the
truly personal realm

.
[2]
That
goes thus :
 
indecent or
obscene photographic matter
'
includes
photographic matter or any part thereof depicting, displaying,
exhibiting, manifesting, portraying or representing sexual
intercourse, licentiousness, lust, homosexuality, lesbianism,
masturbation, sexual assault, rape, sodomy, masochism, sadism,
sexual
bestiality or anything of a like nature

.
[1]
In
terms of s 2(1) of the Indecent or Obscene Photographic Matter Act
37 of 1967.   The relevant part of this provision
is
reproduced in paragraph [9] of the judgment of Mokgoro J.
[2]
The definition of

indecent or obscene matter

is set out in s 1 which is quoted by Mokgoro J in
paragraph [9] of the judgment.
[3]
I refer in particular to
the first two sentences in paragraph [91] of the judgment.
[4]
For example, s 16 of the
Sexual Offences Act 23 of 1957 prohibited interracial sexual
intercourse and marriage;  s 71 of the
Internal Security Act 74
of 1982 and s 118 of the Post Office Act 44 of 1958 authorised or
permitted interference with private
communication.
[1]
Olmstead v US
[1928] USSC 133
;
277 US 438
(1928) at 478.
[2]
Article 12.
[3]
Article 17.
[4]
Article 8.
[5]
[1969] USSC 73
;
394 US 557
(1969).
[6]
Stanley v Georgia
(supra) at 565.
[7]
458 US 747
(1982).
[8]
[1990] USSC 54
;
495 US 103
(1990).