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[2003] ZACC 19
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De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC); 2003 (2) SACR 445 (CC) (15 October 2003)

Links to summary

1
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 5/03
TASCO LUC DE REUCK
Applicant
versus
DIRECTOR OF PUBLIC
PROSECUTIONS
(WITWATERSRAND LOCAL
DIVISION)
First Respondent
MINISTER OF HOME
AFFAIRS
Second Respondent
MINISTER OF SAFETY
AND SECURITY
Third Respondent
GOVERNMENT OF THE RSA
Fourth Respondent
FILM AND PUBLICATION
BOARD
Fifth Respondent
Heard on
: 14 May 2003
Decided
on : 15 October 2003
JUDGMENT
LANGA
DCJ:
Introduction
The applicant, a film producer, appeared in the Randburg Regional
Court where he was charged under section 27(1) of the Films
and
Publications Act 65 of 1996 (the Act), a provision which relates to
child pornography. Early in the proceedings, the applicant
raised
objections regarding the constitutional validity of certain of the
provisions of the Act on which the charges were based.
The trial
was adjourned to enable the applicant to approach the Witwatersrand
High Court (the High Court) for a ruling on the
challenged
provisions. The High Court however dismissed the applicant’s
challenge.
1
He now seeks leave from this Court to appeal directly to it against
the decision of the High Court. The application is opposed
by the
respondents, who also oppose the appeal on the merits.
Standing
In the High Court the respondents argued that
the applicant lacked standing to challenge the impugned provisions
of the Act at
that stage of the proceedings. The High Court however
upheld the applicant’s right to challenge the constitutionality
of section
27(1), read with the definition of “child pornography”
in section 1, in his own interest on the ground that he was facing

charges under those provisions.
2
In fact, the charges against the applicant
related only to possession and importation of child pornography.
The offences created
by section 27(1) include, in addition,
separate offences of creation, production and distribution of the
material in question.
The respondents have not sought to pursue
their original objection in this Court. Since the wider challenge
does not raise materially
different issues, I consider that nothing
further need be said about it.
Leave to Appeal
The respondents opposed the application for
leave to appeal directly to this Court on two main grounds. They
contended firstly
that the application did not have reasonable
prospects of success and secondly that the nature of the case made
it desirable
that a decision of the Supreme Court of Appeal should
first be obtained before this Court is called upon to decide on the
issues.
These objections are not well founded. The issues raised,
particularly in relation to the rights to privacy and freedom of
expression,
are complex and the prospects of success either way
cannot fairly be said to be self-evident. In any event, an enquiry
into prospects
of success, although important, is not the only
enquiry to be undertaken in deciding whether or not to grant leave
to appeal.
3
The test is whether it is in the interests of
justice for the appeal to be brought to this Court.
4
Of relevance to this determination, as was
stated in
Islamic Unity Convention v
Independent Broadcasting Authority and Others
,
5
is the question whether the grounds of appeal
raise a constitutional issue of importance on which a decision by
this Court is
desirable.
6
In my view, the determination of the
constitutionality of the child pornography provisions in section
27(1) is such a matter.
Where leave is sought to appeal to this Court
from any court other than the Supreme Court of Appeal, it becomes
necessary to consider
the need for a prior decision of the Supreme
Court of Appeal.
7
In this regard it is relevant to note that the
legal questions involved are all constitutional issues
8
and there is a public interest in their early
resolution.
9
The circumstances of this case are not
dissimilar from those in
Islamic Unity
Convention
where the Court had to
consider the appropriateness of granting leave to appeal, and the
following was said:
“
The
present case involves a comparison of a piece of legislation with a
provision of the Constitution and an evaluation of their
compatibility. It is not concerned with the development of the
common law but with the direct application of the Constitution.
This
is therefore a case where the benefit of first obtaining the views
of the SCA may readily be outweighed by other considerations.”
10
I conclude that it is in the interests of justice that leave to
appeal directly to this Court be granted.
The issues
The applicant’s
case
in both the High Court and this Court was that the provisions of
section 27(1) read with the definition of child pornography
in
section 1 of the Act, constituted a limitation of the
constitutional rights to privacy,
11
freedom of expression
12
and equality.
13
He contended that the limitation was not
justifiable, in particular because the provisions in question were
not only overbroad,
but were also vague. The respondents denied
that any of the rights mentioned above were limited by the impugned
provisions. In
the alternative, they contended that if the
provisions were found to be a limitation of the rights concerned,
such limitation
was justified and therefore constitutionally valid.
Before dealing in detail with the submissions made on behalf of the
parties, it will be convenient to give a brief summary of
the
legislative scheme in order to provide context to the issues to be
decided. It should be noted at the outset that the impugned
provisions are concerned specifically with child pornography and
not pornography in general.
The legislative scheme
The Act repealed the Indecent or Obscene Photographic Matter Act 37
of 1967 and the Publications Act 42 of 1974 and created a
new
comprehensive regulatory framework for films and publications.
14
It provides for the establishment of a Film and Publication Board
(the Board),
15
that is responsible for the classification of both films
16
and publications.
17
No film may be distributed or exhibited in public unless it has
been classified by the Board.
18
The classification of publications is, however, not mandatory, but
if a complaint is received concerning a particular, hitherto
unclassified publication, the Board is required to make a decision
whether or not it should be classified.
19
Criteria for the classification of films and publications are
contained in the schedules to the Act. A publication must be

classified XX, X18, R18, or F18 if it satisfies the criteria of the
schedules respectively governing those classifications.
20
Similarly, a film must be classified XX, X18 or R18 if it falls
within the appropriate schedules.
21
If a publication does not fall within any of the relevant
schedules, the Board must refuse to classify it, and if a film
falls
outside all the relevant schedules the Board must issue a
classification to that effect.
22
For purposes of this case, only the XX classification for
publications and films is relevant.
23
A film or publication will be classified XX if it satisfies either
the criteria relating to sexually explicit or extremely violent
materials, or those relating to promotion of religious hatred.
24
We are not concerned with the latter in this case. The criteria for
an XX classification in respect of a sexually explicit or
extremely
violent publication are as follows:
“
Schedule
1
XX CLASSIFICATION FOR
PUBLICATIONS
A publication shall be
classified as XX if, judged within context–
(1) it contains a visual
presentation, simulated or real of–
(a) child pornography;
(b) explicit violent sexual
conduct;
(c) bestiality;
(d) explicit sexual conduct
which degrades a person and which constitutes incitement to cause
harm; or
(e) the explicit infliction of
or explicit effect of extreme violence which constitutes incitement
to cause harm;
(2) it or any independent part
thereof, describes predominantly and explicitly the acts defined in
clause (1)(a).
. . .
Schedule 5
ART AND SCIENCE EXEMPTION FOR
PUBLICATIONS
The XX or X18 classification
shall not be applied in respect of a
bona fide
scientific,
documentary, literary or, except in the case of Schedule 1(1)(a), an
artistic publication, or any part of a publication
which, judged
within context, is of such a nature.”
What these provisions indicate is that bona fide scientific,
documentary or literary publications are exempt from being
classified
XX. Artistic publications are also exempt unless they
contain a visual presentation of child pornography. Substantially
the same
regime applies to the XX classification of films. Bona
fide scientific, documentary or dramatic films are exempt; artistic
films
are also exempt unless they contain a scene or scenes of
child pornography.
25
Section 25(a) makes it an offence to distribute a publication that
has been classified XX; section 26 likewise prohibits the
exhibition and the broadcasting of a film that has been so
classified.
Since the classification of publications is not mandatory, section
28(1) creates a parallel offence of “knowingly” distributing
a
publication “which contains a visual presentation or a
description referred to in Schedule 1, read with Schedule 5”.

Similarly, section 26(4)(a) makes it an offence to broadcast
knowingly “a film which has not been classified but which falls
within Schedule 6 read with Schedule 9”.
Section 27 contains an array of offences concerned only with child
pornography. Subsection 1 was amended in 1999 following the
report
of a task team that was appointed to recommend measures to counter
the spread of child pornography, particularly on the
Internet. The
section provides that
:
“
(1) A person shall be guilty
of an offence if he or she knowingly–
(a) creates, produces, imports
or is in possession of a publication which contains a visual
presentation of child pornography; or
(b) creates, distributes,
produces, imports or is in possession of a film which contains a
scene or scenes of child pornography.
(2) A person shall not be
convicted of a contravention of subsection (1), unless the State
proves that the Board has not given a
decision which is to the
effect that the publication or film referred to in that subsection
does not contain a representation or
a scene or scenes referred to
in subsection (1).
(3) No prosecution shall be
instituted in respect of a contravention of subsection (1), and no
search warrant shall be issued in
terms of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977), in respect of a publication or film
which may be involved in such
a contravention, without the written
authority of the attorney-general concerned.”
Child pornography is defined in section 1 as follows:
“‘
child
pornography’
includes any image, real or simulated, however created, depicting a
person who is or who is shown as being under
the age of 18 years,
engaged in sexual conduct or a display of genitals which amounts to
sexual exploitation, or participating
in, or assisting another
person to engage in sexual conduct which amounts to sexual
exploitation or degradation of children”.
It appears that none of the scheduled grounds that exempt a
publication from the XX classification
26
is available as a defence if a person is charged under section
27(1)(a) in respect of a publication which contains a visual

presentation of child pornography. The same position obtains where
a person is charged under section 27(1)(b) in respect of a
film
which contains a scene or scenes of child pornography.
Lastly,
the Act provides for exemptions
which may be granted by the executive committee of the Board in
respect of certain offences. Of
relevance for present purposes is
section 22(1), which provides that:
“
The executive committee may
on receipt of an application in the prescribed form, subject to such
conditions as it may deem fit,
exempt in writing any person or
institution from sections 25, 27 and 28 if it has good reason to
believe that
bona
fide
purposes will
be served by such an exemption.”
Sections 25, 27 and 28 include all the offences relating to
publications, save for section 29, which contains provisions
concerning
hate speech amongst other things. Sections 23 and 24
provide for other types of exemption that may be granted in respect
of specific
films, film distributors and adult premises. Those
provisions are not in issue in this case.
What is child pornography?
The central issue is the interpretation of child pornography as
defined in section 1 and employed in relation to publications
and
films in section 27(1)(a) and (b), respectively. The definition
states that child pornography “includes any image . . .
” and
goes on to list a variety of different images. In order to arrive
at a proper meaning, a range of different issues must
be
determined, namely:
the effect of “includes”;
the primary meaning of child pornography;
the meaning of “person”;
the meaning and effect of the terms “sexual exploitation” and
“degradation”; and
the relevance of context.
The effect of “includes”
The question is whether the word “includes”
in this context has the effect that the list of images in the
definition is exhaustive
of what constitutes child pornography for
purposes of the Act. The most common sense of “includes” is
non-exhaustive, signifying
that the list extends the meaning of the
term being defined.
27
In
R v Debele
,
28
the Court recognised that the word may also
signify that the list provides an exhaustive explanation of the
term being defined.
The correct sense of “includes” in a statute
must be ascertained from the context in which it is used.
29
Debele
30
provides useful guidelines for this
determination. If the primary meaning of the term is well known and
not in need of definition
and the items in the list introduced by
“includes” go beyond that primary meaning, the purpose of that
list is then usually
taken to be to add to the primary meaning so
that “includes” is non-exhaustive. If, as in this case, the
primary meaning
already encompasses all the items in the list, then
the purpose of the list is to make the definition more precise. In
such a
case “includes” is used exhaustively. Between these two
situations there is a third, where the drafters have for
convenience
grouped together several things in the definition of
one term, whose primary meaning - if it is a word in ordinary,
non-legal
usage - fits some of them better than others. Such a list
may also be intended as exhaustive, if only to avoid what was
referred
to in
Debele
as
“’n moeras van onsekerheid” (a quagmire of uncertainty) in
the application of the term.
31
Pornography is notoriously difficult to define
and child pornography no less so. For this reason alone it is
unlikely that the
legislature intended merely to add meanings to
the term on the assumption that its primary meaning was not in need
of definition.
Rather, the purpose of the list would seem to be to
give the word a more precise meaning. That this is in fact the
legislative
intention is suggested by the contrast between the
definition of “child pornography” and some other definitions in
section
1, which provide that a term “includes” certain things
“without derogating from the ordinary meaning of that word”.
32
Although the legislature could have avoided
ambiguity by stating that child pornography “means” only the
images listed, the
use of “includes” in the definition is
consistent with an intention that the list should refine, and thus
be coloured by,
the primary meaning of child pornography.
The primary meaning of “child pornography”
According
to
The
New Shorter Oxford English Dictionary
,
33
“pornography” means:
“
The
explicit description or exhibition of sexual subjects or activity in
literature, painting, films, etc., in a manner intended
to stimulate
erotic rather than aesthetic feelings; literature etc. containing
this.”
This is a useful guide. I would observe, however, that erotic and
aesthetic feelings are not mutually exclusive. Some forms of
pornography may contain an aesthetic element. Where, however, the
aesthetic element is predominant, the image will not constitute
pornography. With this qualification, the dictionary definition
above fairly represents the primary meaning of “pornography”.
“Child pornography” bears a corresponding primary meaning where
the sexual activity described or exhibited involves children.
In my
view, the section 1 definition is narrower than this primary meaning
of child pornography.
The section 1 definition is, in several respects, narrower than the
primary meaning. It is in fact more precise:
it refers to “any image”, thereby excluding written
descriptions; and
it lists various forms of conduct that may not be depicted; I
shall refer to these as “prohibited acts”. This is narrower,
and more precise, than the dictionary’s reference to “explicit
. . . exhibition of sexual subjects or activity”.
It follows that the prohibited acts are a closed list of what
constitutes child pornography for purposes of the Act.
Child pornography is defined as images
“depicting” those prohibited acts. A threshold question is the
perspective from which
it is to be determined what an image
depicts. Legal certainty and the practicalities of proof favour an
objective test based
on the perspective of a “reasonable viewer”
over those tests that consider the subjective state of mind of the
author or
the accused.
34
The meaning of “person”
The
image, which may be “real or simulated,
however created”, must depict a “person”. Counsel were
rightly in agreement that
this includes imaginary as well as real
persons. There was unchallenged evidence on behalf of the state
that virtual child pornography
exists on the Internet which depicts
wholly imaginary children. An effective interpretation of the Act
requires that “person”
includes at least the imaginary persons
that appear in such pseudophotographs. Moreover, the terms “film”,
“publication”
and “visual presentation” which are elements
of the child pornography offences in section 27(1), are defined as
referring
to a wide range of media, including paintings, drawings
and the Internet. Many of these media lend themselves to work from
the
imagination. The term “person” in section 1 is accordingly
intended to include imaginary persons. It is clear that no child
is
physically harmed in the production of an image of an imaginary
“person”. This is a matter I will return to in due course.
The meaning and effect of the terms “sexual exploitation” and
“degradation”
Child pornography comprises images of four prohibited acts.
Disentangling the description of each from the syntax of the
definition
is a task of some difficulty. The text of the definition
is reproduced once more for convenience:
“‘
child pornography’
includes any image, real or simulated, however created, depicting a
person who is or who is shown as being
under the age of 18 years,
engaged in sexual conduct or a display of genitals which amounts to
sexual exploitation, or participating
in, or assisting another
person to engage in sexual conduct which amounts to sexual
exploitation or degradation of children”.
It is necessary to determine what is qualified by the phrases “which
amounts to sexual exploitation” and “which amounts to
. . .
degradation of children”.
Child pornography is restricted to an image and section 27 is
therefore aimed at conduct in relation to that image that falls
within the ambit of the definition in section 1. In other words,
section 1 sets out to define the characteristics of the image
in
respect of which the prohibition in section 27 applies. The
definition in section 1 contemplates two categories of images.
There are certain characteristics which apply to all the images
contemplated in the section while there are other characteristics
which apply to one or other category of them and which assist in
defining that category. There are two characteristics which
are
common to all images. The image–
may be real or simulated regardless of how it is created; and
must be that of a person who is or is shown as being under the age
of 18 years.
In summary, I would say that the characteristics common to all
images require simply that the image must be that of a child.
I
will reflect these essential characteristics by referring in this
judgment to the child image.
The first category of child images contemplated by the definition
contains the following characteristics:
the image must depict a child engaged in sexual conduct or the
display of genitals; and
the image must be one which amounts to sexual exploitation.
The characteristics of the second category of images contemplated
in the definition are that:
the child must be depicted as participating in, or assisting
another person to engage in sexual conduct; and
the image must amount to sexual exploitation or to degradation of
children.
It will be noted that the conduct required to be depicted in each
category of image is different. The second category of image
embraces a broader category because it is caught in the definition
even if it does not amount to sexual exploitation but to the
degradation of the child.
An image will amount to sexual exploitation if its purpose is to
bring about or encourage sexual exploitation. The phrase “amounts
to” is one of relatively broad import. In the context of the
definition, the words “sexual exploitation” encompass the
exploitation of the sexual urge of a human being and the
exploitation of children for sexual purposes. Here exploitation has
a negative characteristic and implies either a negative purpose or
result or a negative cause by which the sexual urges of human
beings are manipulated.
The dictionary definition of pornography cited earlier in this
judgment is relevant here. It says that pornography is:
“
[t]he
explicit . . . exhibition of sexual subjects or activity . . . in a
manner intended to stimulate erotic rather than aesthetic
feelings .
. .”.
The stimulation of erotic rather than aesthetic feelings is an
essential element of the definition of child pornography. Any
image
that predominantly stimulates aesthetic feelings is not caught by
the definition. It does require, however, that the image
viewed
objectively and as a whole has as its predominant purpose the
stimulation of erotic feelings in certain human beings who
may
conveniently be referred to as the target audience. How does one
determine whether the predominant purpose of an image is
to
stimulate erotic rather than aesthetic feelings in the target
audience? Evidence of the intention of the author is irrelevant
to
this determination. The purpose must be determined from the
perspective of the reasonable viewer. The image must therefore,
be
seen by the reasonable viewer as having as its predominant purpose
the stimulation of erotic rather than aesthetic feelings
in a
target audience. It must be emphasised that the image need not, and
in most instances will not, stimulate erotic feelings
in the
reasonable viewer.
The relevance of context
In developing his submissions, counsel for the applicant submitted
that the Act impliedly prohibited courts from referring to
context
when determining whether a publication contained “a visual
presentation of child pornography” (section 27(1)(a))
or whether
a film contained “a scene or scenes of child pornography”
(section 27(1)(b)). He relied on the fact that the phrase
“judged
within context”, which occurs in the schedules governing the XX
classification, had been omitted from the definition
in section 1.
Such an omission is not, in my view, decisive of legislative
intention.
35
Nor do subsections (1)(a) and (b) of section 27 have the effect
claimed by the applicant. Those paragraphs provide that once
a
publication or a film has respectively been found to contain a
visual presentation or a scene of child pornography, that

publication or film may then be the subject matter of an offence.
They do not imply that any reference to context has been excluded
from the foregoing enquiry into whether the visual presentation or
scene in question is in fact child pornography. Indeed, it
is not
possible to determine whether an image as a whole amounts to child
pornography without regard to context.
It is probable that other parts of the film or publication alleged
to contain child pornography may indicate whether the predominant
purpose of the material, objectively construed, is to stimulate
sexual arousal among its target viewers. The Act should be

interpreted to allow consideration of such contextual evidence when
it is relevant since the statute does not, in my view, preclude
it.
I turn now to deal with the interpretation of
each prohibited act. An image that purports or is alleged to
“depict” a prohibited
act must do so explicitly. An image is
“depicted” if it is presented for the viewer to see, and is not
merely suggested.
Requiring the depiction to be explicit is also
consistent with the Act’s scheme of classification. Child
pornography is classified
XX unless it falls within a scheduled
exemption. Both XX and X18, the next most restrictive
classification, are concerned largely
with explicit sexual
conduct.
36
Several prohibited acts involve “sexual conduct”. Schedule 11
provides the following definition:
“
For the
purpose of these Schedules ‘sexual conduct’ means genitals in a
state of stimulation or arousal; the lewd display of
genitals;
masturbation; sexual intercourse, which includes anal sexual
intercourse; the fondling, or touching with any object,
of genitals;
the penetration of a vagina or anus with any object; oral genital
contact; or oral anal contact.”
Counsel for the applicant argued that this definition could not be
used within the definition of “child pornography”, since
the
latter is in section 1 and not in a schedule to the Act. He
submitted that “sexual conduct” in section 1 bore a broader
and
more vague meaning which might include mildly sexual conduct such as
kissing.
I do not agree with this submission. Schedules to an Act form part
of the enactment and are binding except where there is a clear
conflict with a relevant section in the body of the Act.
37
It follows that when the same words are used in a section and in a
schedule they will bear the same meaning, unless the context
indicates that a different meaning was intended. Both in its
section 1 context and in the schedules, “sexual conduct” is
a
criterion used to evaluate materials for purposes of
classification.
38
The words “[f]or the purpose of these Schedules” date from the
original Act prior to its amendment in 1999. They were not
limiting
words since all references to “sexual conduct”, including those
in the provisions that related to child pornography,
39
were then contained in the schedules. In my view, if the
legislature had intended to change the meaning of “sexual
conduct”
when it defined child pornography in the 1999 amendment,
it would have given a second definition or used a different phrase
entirely.
Furthermore, reading the schedule 11 definition of
“sexual conduct” as applicable to section 1 results in an
interpretation
of child pornography that better conforms to the
right to freedom of expression by specifying that only certain
forms of explicit
sexual conduct may not be depicted.
40
I now summarise my approach to the question whether an image
constitutes child pornography for the purposes of section 27(1).
The overarching enquiry, objectively viewed, is whether the purpose
of the image is to stimulate sexual arousal in the target
audience.
This entails considering the context of the publication or film in
which the image occurs as a visual presentation
or scene. The court
conducts the enquiry from the perspective of the reasonable viewer.
The image will not be child pornography
unless one or more of the
four prohibited acts listed below is explicitly depicted for this
purpose. The person “who is shown
as being under the age of
eighteen years” in the image may be real or imaginary. The
prohibited acts are:
a child engaged in sexual conduct;
a child engaged in a display of genitals;
a child participating in sexual conduct; and
a child assisting another person to engage in sexual conduct.
The equality challenge
It
is convenient to deal first with the
applicant’s submissions based on the right to equality.
41
His main argument was as follows: mere
possessors of a publication charged under section 27(1)(a) are
treated more harshly than
distributors of an as yet unclassified
publication charged under section 28(1).
42
Except in relation to art, the latter group may
raise the schedule 5 defences
43
even if the publication is found to be child
pornography. These defences are not available under section
27(1)(a) to mere possessors
of the same publication. Similarly,
mere possessors of a film charged under section 27(1)(b) are
treated more harshly than broadcasters
of an as yet unclassified
film charged under section 26(4)(a),
44
because the schedule 9 defences
45
(except art) are available to the latter but not
the former. In each case the applicant claimed irrational
differentiation, alternatively
unfair discrimination, against mere
possessors.
The difficulty with this submission is that it ignores the overall
purpose of section 28(1).
Schedule 1 contains
the list of materials, the distribution of which is targeted by
section 28(1). It contains, in addition to
child pornography,
several other classes of sexually explicit or violent material. Its
scope is wider therefore than the material
targeted by section 27,
although it is narrowed somewhat by the exemptions in schedule 5.
46
Thus section 28(1) should be characterised as a
measure which bans for distribution a range of publications that is
broader, in
most respects, than those banned for possession by
section 27(1)(a). This differentiation is connected with the
legitimate government
objective of combating the harm caused by
pornographic and violent materials by targeting those who
distribute such materials.
Section 9(1) of the Constitution is
satisfied if that connection is rational.
47
The differentiation thus scarcely manifests arbitrariness or a
naked preference for distributors. Moreover, a publication which
contains child pornography must have as its purpose, the
stimulation of sexual arousal among its target viewers through
explicit
visual depiction of any of the four prohibited acts. It is
most unlikely, then, to be of a “bona fide scientific,
documentary
[or] literary” nature so as to qualify for exemption
under schedule 5.
The respondents correctly submitted that in most
cases someone who knowingly distributes a publication also
knowingly possesses
it, and that he or she may therefore be charged
under section 27(1)(a) instead of section 28(1).
48
The impact on mere possessors (an unlisted
ground in section 9(3) of the Constitution), as against
distributors who do not possess,
has not been shown to be unfair.
When mere possessors and broadcasters of films are compared, it
appears that broadcasters always
knowingly possess and hence are
liable under both section 27(1)(b) and section 26(4)(a).
The applicant raised two further equality arguments. The first
concerned equal protection in relation to publications, on the
basis that it is a matter of chance whether there has been a
complaint against a publication leading to a decision by the Board
that may provide a defence under section 27(2). That subsection
reads as follows:
“
A person
shall not be convicted of a contravention of subsection (1), unless
the State proves that the Board has not given a decision
which is to
the effect that the publication or film referred to in that
subsection does not contain a representation or a scene
or scenes
referred to in subsection (1).”
The applicant submitted that, where there has
been such a decision, the schedule 5 defences may benefit the
accused. A proper
interpretation of section 27(2) indicates,
however, that it is concerned only with the Board’s initial
determination of whether
the publication constitutes child
pornography, and not with any subsequent application of schedule
5.
49
Accordingly, section 27(2) is a rational measure
that protects material that the Board has found not to be child
pornography.
50
The challenge based on the right to equality must accordingly fail.
The right to freedom of expression
The applicant argued that section 27(1) of the Act infringed both
the right to freedom of expression and the right to privacy
as
protected by the Constitution.
Section 16(1) of the Constitution provides:
“
Everyone
has the right to freedom of expression, which includes–
freedom of the press and
other media;
freedom to receive or
impart information or ideas;
freedom of artistic
creativity; and
academic freedom and
freedom of scientific research.”
The respondents, quite correctly in my view, did not seek to rely
upon the specific exclusions in section 16(2).
51
In
Islamic Unity Convention
,
52
this Court emphasized the fact that any expression that is not
specifically excluded by section 16(2) enjoys the protection of
the
right.
53
The
respondents dispute that child
pornography, as defined by the Act, is expression. Relying on the
approach of the United States
Supreme Court
54
where certain categories of expression are unprotected forms of
speech, the respondents argued such materials do not serve any
of
the values traditionally considered as underlying freedom of
expression, namely, truth-seeking, free political activity and
self-fulfilment.
55
This argument must fail. In this respect, our Constitution is
different from that of the United States of America. Limitations
of
rights are dealt with under section 36 of the Constitution and not
at the threshold level. Section 16(1) expressly protects
the
freedom of expression in a manner that does not warrant a narrow
reading. Any restriction upon artistic creativity must satisfy
the
rigours of the limitation analysis.
The respondents submitted further that, even if the materials in
question constitute expression, section 16 of the Constitution
does
not protect the right to receive such expression. This question was
left open by this Court in
Case
in relation to the
corresponding right under the interim Constitution.
56
Section 16(1)(b) of the Constitution now specifically provides for
the right “to receive or impart information or ideas”.
57
This Court has endorsed the broad approach of
the
European Court of Human Rights, to this aspect of the
right,
58
namely, that it is applicable:
“
. . . not
only to ‘information’ or ‘ideas’ that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. . .”.
59
T
he criminalisation of the creation, production,
importation, distribution and possession of the material that falls
within the
definition of child pornography, as discussed above,
limits the right to freedom of expression. Whether the limitation
is justifiable
remains to be considered under a limitation
analysis.
60
The right to privacy
The applicant claims the protection of the right to privacy
specifically for the possession and importation of works of art

created from the imagination and artistic films in which the actors
are over 18 years old. Section 14 of the Constitution provides:
“
Everyone
has the right to privacy, which includes the right not to have–
(a) their person or home
searched;
(b) their property searched;
(c) their possessions seized;
or
(d) the privacy of their
communications infringed.”
I
n
Case
,
61
all the members of this Court held that the crime of possessing
“indecent or obscene photographic matter” (a much wider range
of materials than those at issue in the present case) violated the
right to privacy under the interim Constitution. The majority
of
the Court in that matter, however, agreed that a law prohibiting
possession of a narrower category of erotic materials would
limit
the right to privacy, but could be upheld if it satisfied the
requirements of the limitation clause. It flows from this
decision
that the impugned provisions infringe the right to privacy and
their constitutionality will depend on whether the requirements
of
the limitation clause in section 36 of the Constitution are
fulfilled.
An alternative submission by the respondents was
that, even if the rights to freedom of expression and privacy were
implicated,
section 27(1) did not limit them. Instead the section,
read with the exemption procedure in section 22, merely regulated
the
exercise of those rights. Section 22 provides for a procedure
whereby a person who wishes to possess, import, create, produce or
distribute child pornography may apply for an exemption to do so.
62
In my view, this submission has no merit. The
mere possibility that, absent an exemption, a person may be
convicted under section
27(1) amounts to a threat to the rights
involved. The exemption procedure is, in my view, relevant to the
question of limitations
and I shall discuss it further below.
Section 28 of the Constitution
It was argued that section 28(2) of the Constitution, which
provides that a child’s best interests “are of paramount
importance
in every matter concerning the child”, is relevant to
the present enquiry. In the view I take of the matter, it is not
necessary
to decide this in the present case.
In the High Court judgment, the view is expressed that persons who
possess materials that create a reasonable risk of harm to
children
forfeit the protection of the freedom of expression and privacy
rights altogether, and that section 28(2) of the Constitution
“trumps” other provisions of the Bill of Rights. I do not
agree. This would be alien to the approach adopted by this Court
that constitutional rights are mutually interrelated and
interdependent and form a single constitutional value system. This

Court has held that section 28(2), like the other rights enshrined
in the Bill of Rights, is subject to limitations that are

reasonable and justifiable in compliance with section 36.
63
Limitation analysis
I proceed to the limitation analysis of the two rights limited by
section 27(1), namely, freedom of expression and privacy. Section
36(1) of the Constitution provides:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including–
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of
the limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
It is well established that courts applying section 36(1) are
required to undertake a proportionality enquiry,
64
in the course of which they consider factors including, but not
limited to, those listed in sub-paragraphs (a)-(e).
The first question is whether section 27(1), read with the
definition of child pornography, is a “law of general
application”
as required by section 36(1). This Court has held
that this requirement derives from an important principle of the
rule of law,
namely that “rules be stated in a clear and
accessible manner”.
65
The applicant’s complaint concerned clarity: he submitted that
the definition of “child pornography” in section 1 was too
vague to satisfy this requirement. Having analysed and considered
that definition above, I am satisfied that it is sufficiently
clear
and does constitute a law of general application.
Limitation analysis: freedom of expression
The applicant accepts that the legislature may, consistently with
the Constitution, prohibit the possession, importation, creation
and production of child pornography in certain circumstances. The
question this Court has to answer is whether the limitation
occasioned by section 27(1) is justifiable. To do so, the nature of
the right and the extent of the limitation, on the one hand,
and
the purpose of the limitation on the other need to be considered.
66
The nature and extent of the limitation
Freedom of expression is an important right in our Bill of Rights.
It
“
. . .
lies at the heart of a democracy. It is valuable for many reasons,
including its instrumental function as a guarantor of democracy,
its
implicit recognition and protection of the moral agency of
individuals in our society and its facilitation of the search for
truth by individuals and society generally. The Constitution
recognises that individuals in our society need to be able to hear,
form and express opinions and views freely on a wide range of
matters . . .”.
67
[footnotes
omitted]
Seen from this perspective, the limitation of the
right caused by section 27(1) does not implicate the core values of
the right.
Expression that is restricted is, for the most part,
expression of little value which is found on the periphery of the
right and
is a form of expression that is not protected as part of
the freedom of expression in many democratic societies.
68
The applicant did not suggest that the prevention of the creation
and possession of child pornography was not a legitimate government
purpose. He contended, however, that the statute in the present
case goes further than is necessary for this purpose. I deal
with
this when I consider the relationship between the limitation and
its purpose. But first it is necessary to address the purpose
of
the legislation.
The purpose of the legislation
In determining the importance of section 27(1) of the Act, it is
necessary to examine its objective as a whole.
The
purpose of the legislation is to curb child pornography which is
seen as an evil in all democratic societies. Child pornography
is
universally condemned for good reason. It strikes at the dignity of
children, it is harmful to children who are used in its
production,
and it is potentially harmful because of the attitude to child sex
that it fosters and the use to which it can be
put in grooming
children to engage in sexual conduct. I will deal with each of
these in turn.
Dignity is a founding value of our
Constitution.
69
It informs most if not all of the rights in the
Bill of Rights and for that reason is of central significance in
the limitations
analysis. As this Court held in
Dawood
:
“
The value
of dignity in our Constitutional framework cannot therefore be
doubted. The Constitution asserts dignity to contradict
our past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all, other
rights. This Court has
already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as
the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and
the right to life. Human dignity
is also a constitutional value that
is of central significance in the limitations analysis. Section 10,
however, makes it plain
that dignity is not only a
value
fundamental
to our Constitution, it is a justiciable and enforceable
right
that
must be respected and protected. In many cases, however, where the
value of human dignity is offended, the primary constitutional
breach occasioned may be of a more specific right such as the right
to bodily integrity, the right to equality or the right not
to be
subjected to slavery, servitude or forced labour.”
70
[footnotes
omitted].
Similarly, article 1 of the Universal
Declaration of Human Rights stresses the importance of human
dignity. It states: “All
human beings are born free and equal in
dignity and rights.” Children merit special protection by the
state and must be protected
by legislation which guards and
enforces their rights and liberties. This is recognised in section
28 of our Constitution.
71
Children’s dignity rights are of special
importance. The degradation of children through child pornography
is a serious harm
which impairs their dignity and contributes to a
culture which devalues their worth. Society has recognised that
childhood is
a special stage in life which is to be both treasured
and guarded. The state must ensure that the lives of children are
not disrupted
by adults who objectify and sexualise them through
the production and possession of child pornography. There is
obvious physical
harm suffered by the victims of sexual abuse and
by those children forced to yield to the demands of the paedophile
and pornographer,
but there is also harm to the dignity and
perception of all children when a society allows sexualised images
of children to be
available. The
chief purpose of the
statutory prohibitions against child pornography is to protect the
dignity, humanity and integrity of children.
Little need be said about the second purpose of section 27 which is
to protect children from being used in the production of
child
pornography. The expert evidence in this case confirms that abusing
children in this way is severely harmful to them.
72
The psychological harm to the child who was photographed is
exacerbated if he or she knows that the photograph continues to

circulate among viewers who use it to derive sexual satisfaction.
73
Thirdly, there is a reasonably apprehended risk of harm from child
pornography. The state produced evidence to suggest that images
of
children engaged in sexual conduct may be used in one of the three
ways to harm children, firstly, to “groom” children
for sexual
abuse by showing them acts other children have purportedly
performed; secondly, to reinforce cognitive sexual distortions,
i.e. the belief that sex with children is acceptable; and finally
for paedophiles to fuel their fantasies prior to committing
an act
of sexual abuse. T
he affidavit of Superintendent
Pienaar details a number of cases in which South African
paedophiles used child pornography to
“groom” children whom
they abused. On the other hand, the evidence of cognitive
distortions and fuelling of fantasies is
not supported by empirical
observation. It may well be unethical for medical researchers to
expose paedophiles to such materials
in order to investigate these
phenomena. Nor is this necessary, in my view, as common sense
indicates that these effects will
occur in some cases.
The question of reasonable apprehension of harm was considered in
S
v Jordan
.
74
In that case it was argued, in the context of a limitation of the
right to privacy, that some of the harm was caused not by

prostitution itself but by its criminalisation, and that
legalisation or regulation could lead to a net reduction of such
harm.
75
Although the state did not empirically refute these claims, the
Court nevertheless found that the state was entitled to criminalise
prostitution as a reasonable means of combating the harm. The harm
of child abuse is real and ongoing and the state is under
a
constitutional obligation to combat it. To hold otherwise would
place the state in jeopardy of having to close the gate, as
it
were, after the horse has bolted and might signal a breach by the
state of its obligation towards children.
I conclude that the state has established three legitimate
objectives which the limitation aims to serve, namely, protecting
the dignity of children, stamping out the market for photographs
made by abusing children and preventing a reasonable risk that
images will be used to harm children.
I turn now to the question whether there are less restrictive means
available to the state to achieve these purposes. Statutes
dealing
with child pornography in the United Kingdom
76
and Germany
77
penalise the possession of photographs and “pseudophotographs”
only.
These may amount to less restrictive means. The English and German
statutes would exclude any imaginative image which is not
a
photograph or a pseudophotograph. This requires presiding officers
to ask the question “Is it a photograph or a pseudophotograph?”
rather than “Is it art?” On the other hand, what precisely is a
pseudophotograph may be difficult to determine. Section 27
has
adopted instead a test whereby a judge is required to consider
whether the material would, from the perspective of a reasonable
viewer, have as its predominant purpose the stimulation of erotic
feeling. I am not persuaded that this approach is significantly
more invasive of the right to freedom of expression than the
approach adopted in the United Kingdom and Germany.
I am however persuaded that the relatively
narrow infringement of expression is outweighed by the important
legislative purposes
performed by section 27, together with the
legislative safeguards provided,
78
as well as the difficulty of legislating in this
area at all.
The applicant, however, pointed to two categories of overbreadth
which he argued went beyond the legitimate purposes of the state
in
limiting the right to freedom of expression. The first relates to
the documentary film-maker who possesses child pornography
for the
purposes of making a documentary film on child pornography; and the
second relates to lawyers and others who are in possession
of child
pornography in order to defend a person charged under section
27(1). These examples of overbreadth, the applicant argued,
rendered section 27(1) an unjustifiable limitation of freedom of
expression. I consider these two examples separately below.
In determining whether section 27(1) is
overbroad, the exemption procedure set out in section 22 of the Act
is relevant. Section
22 permits a person who wishes to possess or
otherwise deal with child pornography in breach of section 27 to
apply to do so
to an executive committee of the Board.
79
This means that section 27 does not impose a
blanket prohibition, but permits exemptions if an applicant can
persuade the Board
that “it has good reason to believe that bona
fide purposes will be served by such an exemption”.
80
I turn now to consider the position of researchers and documentary
film producers who possess child pornography as “raw material”
for their academic or documentary project. The applicant claimed
that such persons should be able to raise a defence of “legitimate
purpose” if charged with possession or importation of the
material concerned.
According to the applicant, film-makers or researchers may wish to
have access to some of the crudest forms of child pornography
if
this is reasonably necessary for the project they are pursuing. The
state’s objectives in prohibiting researchers and film-makers
from possessing or importing such images are the same as its
objectives in relation to the general prohibition and importation
bans which have already been discussed. The objective of protecting
and affirming the dignity of children remains of primary
importance. The objective of stamping out the market in child
pornography remains valid in relation to researchers or film-makers
who obtain child pornography, although it must be acknowledged that
they represent a minuscule proportion of the market. Equally
relevant is the objective of combating the risk of grooming,
cognitive distortion and the fuelling of fantasies.
It follows from the above remarks that a blanket defence for any
film-maker or researcher who reasonably needs to possess or
import
child pornography is not constitutionally required. The question
then arises whether the Constitution requires a qualified
defence
for researchers and film-makers or whether a general prohibition on
the possession or importation of such materials may
be maintained
intact.
The real question is whether the section 22
exemption procedure is a sufficient safeguard for the right, regard
being had to the
legitimate government objective. As I have said,
section 22 confers the discretion upon the executive committee of
the Board
to grant an exemption if “
bona
fide
purposes” will be served
thereby. It is a broad discretion, insofar as the Act does not
provide any express guidelines for its
exercise. The discretion
may, in the situations we are considering, be used to limit the
freedom of expression right of an applicant
for exemption whose
project involves child pornography. It is in my view legitimate to
confer such a discretion upon the executive
committee of the Board
which is an expert in matters relating to films and publications.
Moreover the Board is required to scrutinize
applications against
the legislative standard set - that “
bona
fide
purposes will be served” by
the applicant’s possession of child pornography. Guidelines for
the exercise of the discretion
are therefore established.
81
Regarding the nature and extent of the limitation, it should be
noted that researchers and film-makers will not be convicted
if
they have received an exemption under section 22. Given the nature
of their interest in the material, it is not a disproportionate
burden for researchers and film-makers to apply for exemption under
section 22.
An application for exemption under section 22 offers ample
opportunity to inform the Board why the exemption must be granted.
The applicant may make oral or written submissions, and may be
legally represented.
82
Moreover, there are remedies for those aggrieved by the refusal of
an exemption. While a section 22 decision does not appear
to be
subject to the Act’s provisions for appeal to the Review Board or
the High Court,
83
it could be reviewed by a court.
These observations illustrate that the section 22 procedure does
permit the conducting of research into child pornography provided
good cause is shown. What the provisions are concerned with are the
narrow area of child pornography and the material connected
with a
market in which children are abused and which poses a reasonable
risk of harm in the hands of the average possessor. In
the result,
I am satisfied that the nature and extent of the limitation is not
severe.
Finally, I must consider whether less
restrictive means could not have been used. The applicant proposed
a “legitimate purpose”
defence which could be raised by,
amongst others, documentary film-makers or researchers who
possessed or imported child pornography
that was reasonably
necessary to their projects. Counsel for the applicant indicated
that similar defences existed in a number
of foreign
jurisdictions.
84
The main difficulty with this suggestion is that
it is unlikely to be an
effective
less
restrictive means. The defence may well be abused, notwithstanding
the fact that courts will require evidence from the accused
and
scrutinize its credibility. These difficulties were alluded to by
the English Court of Appeal in
R v
Atkins
85
where the
defence of possessing indecent
photographs of children for a “legitimate reason” was
discussed:
“
The
question of what constitutes ‘a legitimate reason’ . . . is a
pure question of fact (for the magistrate or jury) in each
case. The
central question, where the defence is legitimate research, will be
whether the defendant is essentially a person of
unhealthy interests
in possession of indecent photographs in the pretence of undertaking
research or by contrast a genuine researcher
with no alternative but
to have this sort of unpleasant material in his possession. In other
cases there will be other categories
of ‘legitimate reason’
advanced. They will each have to be considered on their own facts.
Courts are plainly entitled to bring
a measure of scepticism to bear
upon such an enquiry: they should not too readily conclude that the
defence has been made out.”
86
Once a defence of “legitimate purpose” has been raised, the
prosecution will have to disprove it beyond a reasonable doubt.
This
may entail proving that the accused had an “unhealthy interest”
in the images, in the sense explained in the passage from
Atkins
above. It may be very difficult to establish this.
The result of a “legitimate purpose” defence would then be that
people
may exploit the defence as a cover. Such
persons pose a reasonable risk of harm. The assessment of risk does
not attach to the
particular person who is charged, but considers
the average probability that, among all the people who possess
child pornography,
some will use it to harm children. The proposed
“legitimate purpose” defence seeks to undo this form of risk
assessment by
requiring an individualized risk to be proved on the
part of a researcher, a film-maker or someone pursuing a similar
project.
Drawing an analogy with other possession offences may
illustrate how the “legitimate purpose” defence would undermine
the
effectiveness of the general prohibition. Consider, for
example, a “legitimate purpose” defence which allowed amateur
chemists
to possess dangerous drugs.
In my view, the less restrictive means suggested by the applicant
are not sufficiently effective to warrant their adoption. Taking
this into account in the overall assessment of proportionality, I
consider that it is reasonable and justifiable for the rights
of
researchers and film-makers in relation to possession and
importation of child pornography to be limited by section 27(1)
of
the Act, read with section 22.
Overbreadth: lawyers and other legitimate possessors
Finally, the applicant contended that section 27(1) reaches too far
because police officers, lawyers and judicial officers who
possess
the document in the course of the investigation and prosecution of
an accused person would commit an offence. It is true
that there is
no express provision in the legislation to the effect that people
in this category can possess section 27(1) prohibited
images with
impunity. It does not follow however that police officers, lawyers
and judicial officers would necessarily be committing
an offence in
the circumstances envisaged. The determination of whether they do
involves questions concerned with the issues
of lawfulness,
mens
rea
, justification, necessity and the constitutional concept of
a fair trial. In the circumstances, the Court must consider whether
this question needs to be determined in this case.
The applicant is not a police officer, lawyer or judicial officer
who is alleged to be in possession of the material in order
to
participate in the investigation or prosecution of an offence
alleged to be committed by someone else. This Court has, however,
repeatedly made plain that the subjective position of a particular
applicant is irrelevant to the determination of the validity
of a
statutory provision; a statutory provision is objectively either
valid or invalid.
87
The applicant has been charged in terms of section 27(1) and has
made an application to set aside the whole section. The objective
theory of constitutional invalidity entitles him to an order
setting aside section 27(1) or to some other appropriate relief
should the section be found to be inconsistent with the
Constitution. This would be so even if the basis of the finding of

constitutional invalidity had nothing to do with his subjective
circumstances.
The objective theory requires us to consider all the bases upon
which an applicant contends for constitutional invalidity or
inconsistency. This enquiry can be conducted in the present case on
the hypothesis that the point made by the applicant is good
and
that section 27(1) is inconsistent with the Constitution on this
score. This Court has held that if a statutory provision
is held to
be inconsistent with the Constitution, the appropriate relief is
that which does least damage to the legislative purpose.
88
Accordingly, notional severance is ordinarily to be preferred to
striking down a legislative provision.
Even in the unlikely event of a finding that section 27(1) is
inconsistent with the Constitution because it does not provide
a
defence for police officers, lawyers and judicial officers and
others in these circumstances, it would not result in section
27(1)
being set aside. It would be possible and less intrusive of the
legislative function to address the inconsistency through
notional
severance or reading in. It is not appropriate or necessary
therefore for this Court to consider this attack in any
further
detail.
I conclude, therefore that it has been established that, section
27(1) constitutes a reasonable and justifiable limitation on
the
section 16 right to freedom of expression.
Limitation analysis: right to privacy
The next question is whether the limitation of the right to privacy
is justifiable. Once again the applicant argued that the
limitation
was not justifiable.
Although possession and consumption of child
pornography often takes place in the inner sanctum of the home, the
legislative purposes
identified above remain of great importance.
It should not be overlooked that many of the resultant acts of
abuse against children
take place in private. In other words, where
the reasonable risk of harm to children is likely to materialise in
private, some
intrusion by the law into the private domain is
justified.
89
Moreover, since child pornography is frequently
being imported via the Internet and possessed on computers, the
ease with which
such possessors may become distributors at the
touch of a button, as it were, should be taken into account.
90
This exacerbates the risk of harm and further
justifies the intrusion of the Act into the private sphere.
For these reasons and for those given in my consideration of the
justifiability of the limitation of the right to
freedom
of expression, I find that the limitation of the right to privacy
is also justifiable.
Order
The following order is accordingly made:
The application for leave to appeal is granted.
2. The appeal is dismissed.
Chaskalson CJ, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo
J, O’Regan J, Yacoob J concur in the judgment of Langa DCJ.
For the Applicant: J.C.W. Van Rooyen, SC instructed by Barry
Sim Attorneys, Johannesburg
For the First Respondent: Z.J. Van Zyl, SC
For the Second – Fifth Respondents: V. Maleka, SC and P. Mtshaulana
instructed by the State Attorney, Johannesburg.
1
De Reuck v Director of Public Prosecutions (Witwatersrand Local
Division)
,
and Others
2003 (3) SA 389
(W);
2002 (12) BCLR
1285
(W).
2
The judgment of the High Court on standing is reported as
De
Reuck v Director of Public Prosecutions
,
Witwatersrand Local
Division
,
and Others
2002 (6) SA 370
(W).
3
Fraser v Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR
1357
(CC) para 7;
Brummer v Gorfil Brothers Investments (Pty) Ltd
and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) para 3;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) para
12;
Ingledew v Financial Services Board: In Re Financial Services
Board v Van Der Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8)
BCLR 825
(CC) para 31.
4
Section 167(6)(b) of the Constitution provides:
“
(6) National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court–
(a) . . .
(b) to appeal directly to the Constitutional Court from
any other court.”
5
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) paras 15-16.
6
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8)
BCLR 771
(CC) para 14;
National Education Health and Allied
Workers Union v University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) para 28;
Ingledew
above n 3 para
36.
7
Id
Khumalo
para
13;
Islamic Unity Convention
above
n 5 paras 15-17.
8
Member of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998
(4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) para 32;
Member
of the Executive Council for Local Government and Development
Planning, Western Cape, and Another v Paarl Poultry Enterprises
CC
t/a Rosendal Poultry Farm
[2001] ZACC 7
;
2002 (3) SA
1
(CC);
2002 (2) BCLR 133
(CC) para 7. Cf
South
African Municipal Workers Union v City of Cape Town and Others
[2002] ZACC 32
;
2002
(4) SA 451
(CC);
2002 (10) BCLR 1083
(CC)
para 3; and
Wallach v High Court of South Africa and Others
CCT
2/03 (as yet unreported, delivered on 4 April 2003) para 7.
9
Id
MEC
,
Western Cape
para 7;
Islamic Unity
Convention
above n 5 para 18.
10
Above n 5 para 17.
11
Section 14 of the Constitution.
12
Section 16 of the Constitution.
13
Section 9 of the Constitution.
14
Section 33 read with schedule 12.
15
Section 3 of the Act.
16
Chapter 4.
17
Chapter 3.
18
Section 26(1)(a).
19
Section 17(1).
20
Section 17(1) read with schedules 1-5 and 10.
21
Section 18(4) read with schedules 6-8 and 10.
22
See section 17 (heading) and section 18(4)(b)(i).
23
Materials not satisfying the XX criteria are subject to regulation,
for example through the imposition of age restrictions, rather
than
outright prohibition.
24
Schedule 10.
25
Schedule 9.
26
Above para 9.
27
Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA)
para 20.
28
R v Debele
1956 (4) SA 570
(A) at 575B-575H. See also
Ndlovu
id para 20.
29
Ndlovu
above n 27 para 20. As part of the context, I have
considered the Afrikaans text of section 1 of the Act, which
provides:
“
Tensy uit die samehang ’n ander
betekenis blyk, beteken in hierdie Wet-
. . .
‘
kinderpornografie’ ook ’n
beeld, werklik of nageboots, ongeag hoe dit geskep is, wat ’n
persoon onder 18 jaar, of uitgebeeld
as onder 18 jaar, uitbeeld wat
deelneem aan seksuele gedrag of ’n vertoon van geslagsdele wat
neerkom op seksuele uitbuiting,
of wat deelneem aan seksuele gedrag
wat neerkom op seksuele uitbuiting of vernedering van kinders of
hulp verleen aan ’n ander
persoon om dit te doen.”
The words “beteken . . . ook” may appear
non-exhaustive, if they are considered in isolation. In the context
of bilingual statutes,
however, the pair “includes” / “beteken
. . . ook” has often been construed as exhaustive.
Debele
above n 28 at 575B-D;
R v Tshetaundzi
1960 (4) SA 569
(A) at
572F-G;
De Beers Holdings (Pty) Ltd v Commissioner for Inland
Revenue
1986 (1) SA 8
(A) at 32B-33C; Cf
Santam
Versekeringsmaatskappy Bpk v Kemp
1971 (3) SA 305
(A) at 320F-H.
30
Above n 28 at 575H-576C.
31
Id at 576B.
32
See the definitions of “distribute” and “in public” in
section 1 of the Act. Of course “includes” is used
non-exhaustively
in “‘this Act’ includes the regulations made
in terms of section 31”. This is a standard drafting formulation
and provides
no ground for inferring that the sense of “includes”
in the definition of “child pornography” is the same.
33
Vol 2, Clarendon Press, Oxford 1993.
34
I agree in this regard with the approach adopted by the Supreme
Court of Canada in
R v Sharpe
(2001) 194 DLR (4th) 1 para 43.
35
See
National Director of Public Prosecutions and Another
v
Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC)
para 40, where it was emphasised that
inclusio unius est exclusio
alterius
is not a rigid rule.
36
Schedules 1 and 2 in respect of publications and schedules 6 and 7
in respect of films.
37
Executive Council, Western Cape Legislature
and Others v
President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC) para 33;
African and European
Investment Co Ltd v Warren and Others
1924 AD 308
at 360.
38
Schedules 1, 2, 6 and 7.
39
Clause (1)(a) of schedule 1 (publications) and clause (1) of
schedule 6 (films). The term “child pornography” was not used
in
the original Act, and the wording of the section 27 offences in
relation to films and publications referred to the clauses in
the
respective schedules mentioned in this note.
40
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
para 22.
41
Section 9 of the Constitution provides:
“
(1) Everyone is equal before the
law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of
all rights and freedoms. To promote the achievement of equality,
legislative
and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may
be taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of
subsection (3)
National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the
discrimination
is fair.”
42
Section 28(1) of the Act provides:
“
Any person who knowingly
distributes a publication which contains a visual presentation or a
description referred to in Schedule
1, read with Schedule 5, shall
be guilty of an offence.”
43
Above para 10.
44
Section 26(4)(a) provides, in relevant part:
“
Any person . . . who knowingly
broadcasts a film which has not yet been classified but which falls
within Schedule 6 read with Schedule
9, or Schedule 10, shall be
guilty of an offence.”
Schedule 6 provides, in relevant part:
“
A film shall be classified as XX
if, judged within context, it contains a scene or scenes, simulated
or real, of any of the following:
child pornography;
. . .”.
Schedule 9 provides:
“
The XX or X18 classification
shall not be applicable to a
bona
fide
scientific,
documentary, dramatic or, except in the case of Schedule 6(1), an
artistic film or any part of a film which, judged
within context, is
of such a nature.”
Schedule 10 is not presently relevant.
45
Id schedule 9.
46
Above para 9.
47
In
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of
Labour intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC)
para 17 the Court explained that–
“
[t]he only purpose of rationality
review is an inquiry into whether the differentiation is arbitrary
or irrational, or manifests
naked preference and it is irrelevant to
this inquiry whether the scheme chosen by the Legislature could be
improved in one respect
or another.” [footnote omitted].
48
The most effective way of combating child pornography is to target
possession. See
Prince v President, Cape Law Society, and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR 231
(CC) para 116.
49
See schedule 1 and schedule 5, quoted in para 9 above.
50
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997
(6) BCLR 759
(CC) para 26.
51
Section 16(2) of the Constitution provides:
“
The right in subsection (1) does
not extend to–
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to
cause harm.”
52
Above n 5.
53
Id
para 33.
54
See for example,
New York v Ferber
458 U.S. 747
(1982);
Ashcroft v The Free Speech Coalition
122 U.S. 1389
(2002).
55
Islamic Unity Convention
above n 5 para 26.
56
Case and Another v Minister of Safety and Security and Others;
Curtis v Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA
617
(CC);
1996 (5) BCLR 609
para 92.
57
Section 15 of the interim Constitution did not have this provision.
58
Article 10 of the European Convention on Human Rights provides:
“
(1) Everyone has the right to
freedom of expression. This right shall include freedom to hold
opinions and to receive and impart
information and ideas without
interference by public authority and regardless of frontiers. This
article shall not prevent States
from requiring the licensing of
broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such
formalities, conditions,
restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests
of national security,
territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or
morals, for the
protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence,
or for maintaining
the authority and impartiality of the judiciary.”
59
Islamic Unity Convention
above n 5 para 28 quoting
Handyside
v United Kingdom
[1976] ECHR 5
;
(1976) 1 EHRR 737
at 754.
60
Paras 56-83 below.
61
Above n 56.
62
Its provisions are discussed in more detail below. See paras 72,
76-79.
63
Sonderup v Tondelli and Another
[2000] ZACC 26
;
2001 (1) SA 1171
(CC);
2001 (2)
BCLR 152
(CC) paras 27-30.
64
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR
665
(CC) para 104;
S v Manamela and Another (Director-General of
Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC)
paras 32-33.
65
Dawood and Another v Minister of Home Affairs and Others, Shalabi
and Another v Minister of Home Affairs and Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) para 47.
66
Manamela
above n 64 paras 65-66.
67
South African National Defence Union v Minister of Defence and
Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) para 7,
cited in
Islamic Unity Convention
above n 5 para 26.
68
For an example of the position in the United States see
Ferber
above n 54 at 763-764.
69
Human dignity is enshrined as one of the founding values of our
Constitution in section 1. See also
Makwanyane
above n 64
para 328.
70
Dawood
above n 65 para 35.
71
Section 28(1)(d) provides that “Every child has the right to be
protected from maltreatment, neglect, abuse or degradation”.
72
This conclusion has also been reached in the United States, see
Osborne v Ohio
[1990] USSC 54
;
495 US 103
, 109-111; 110 US 1691, 1696-97
(1990).
73
This conclusion too has been reached in the United States, id at
1697; and in Canada, see
Sharpe
above n 34 para 92.
74
S v Jordan and Others (Sex Workers Education and Advocacy Task Force
and Others as Amicus Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11)
BCLR 1117
(CC).
75
Id para 87.
76
In England, section 160 of the Criminal Justice Act 1988 (as
amended) penalizes the possession of an indecent “pseudophotograph”
of a child. The term is defined in section 7 of the Protection of
Children Act 1978 as follows:
“
(7) ‘Pseudo-photograph’ means
an image, whether made by computer-graphics or otherwise howsoever,
which appears to be a photograph.
(8) If the impression conveyed by a
pseudo-photograph is that the person shown is a child, the
pseudo-photograph shall be treated
for all purposes of this Act as
showing a child and so shall a pseudo-photograph where the
predominant impression conveyed is that
the person shown is a child
notwithstanding that some of the physical characteristics shown are
those of an adult.
(9) References to an indecent pseudo-photograph
include—
(a) a copy of an indecent pseudo-photograph; and
(b) data stored on a computer disc or by other
electronic means which is capable of conversion into a
pseudo-photograph.”
77
In Germany, StGB § 184(5) penalizes the possession of child
pornography that depicts “tatsächliches order wirklichkeitsnahes
Geschehen”, i.e. real or near-real events.
78
For example, section 22.
79
Above para 15.
80
Section 22(1) of the Act.
81
Dawood
above n 65 para 54.
82
Section 19.
83
Sections 20 and 21.
84
In Canada, see section 163.(3) (“acts serving the public good”)
of the Canadian Criminal Code, discussed in
Sharpe
above n 34 para 70; in England, section 160(2) (a) of the Criminal
Justice Act 1988 and section 1(4)(a) of the Protection of Children
Act 1978, discussed in
R
v Atkins
[2000] 2
Cr. App. R. 248 at 257.
85
Atkins
above n 84.
86
Id at 257.
87
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC) para 29;
Ferreira v Levin NO and Others
;
Vryenhoek and Others v Powell
NO and Others
1996 (1)
SA 984
(CC);
1996 (4) BCLR 441
(CC) paras 26-28.
88
National Director of Public Prosecutions and Another
v
Mohamed
NO and Others
[2002] ZACC 9
;
2002 (4) SA 843
(CC);
2002 (9) BCLR 970
(CC) para
29.
89
See
S v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC);
2000 (1) BCLR 86
(CC) paras 16-18.
90
Van Bueren, “The constitutional rights of children” (March/April
2003)
Amicus Curiae
Issue 46 at 30.