Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others

• Jurisdiction: South Africa

Case and Another v Minister of Safety and Security and Others;
Curtis v Minister of Safety and Security and Others
1996 (1) SACR 587 (CC)

1996 (1) SACR p587

Citation	1996 (1) SACR 587 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriwgler J, Langa J, Madala J, Mokgoro J,Ngoepe J, O'Regan and Sachs J
Heard	September 5, 1995
Judgment	May 9, 1996
Counsel	H Epstein, G J Marcus and A Dworsky for the applicants.; J S M Henning SC (with him P P Stander and R J Chinner) for the State.; E D Moseneke SC (with him N J Louw) for the First and Second Intervening Parties.; J Fedler for People Opposing Women Abuse et al.; D M Davis and M Chaskalson for the Centre for Applied Legal Studies.; H van R Woudstra SC and M Helberg SC for the Christian Lawyers Association.

Flynote : Sleutelwoorde

Obscene photographic material — Possession of in contravention of s 2(1) of Indecent or Obscene C Photographic Matter Act 37 of 1967 — Constitutionality of prohibition — Prohibition of possession of such material invades right to personal D privacy guaranteed by s 13 of Constitution Act 200 of 1993 — Such intrusion into personal privacy neither reasonable nor justifiable and accordingly not saved by provisions of s 33(1) of Constitution — Section 2(1) declared inconsistent with the Constitution and invalid.

Fundamental rights — Right to personal privacy — Possession of obscene photographic material in contravention of s 2(1) of Indecent or Obscene E Photographic Matter Act 37 of 1967 — Constitutionality of prohibition — Prohibition of possession of such material invades right to personal privacy guaranteed by s 13 of Constitution Act 200 of 1993 — Such intrusion into personal privacy neither reasonable nor justifiable and accordingly not saved by provisions of s 33(1) of Constitution — Section 2(1) declared inconsistent with the F Constitution and invalid.

Headnote : Kopnota

In two cases which came before magistrates' courts the accused challenged the constitutionality of the statutory offences with which they were charged, viz the prohibition on the possession of indecent or obscene photographic matter in terms of s G 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967. The proceedings in the magistrates' courts were suspended and the matters were referred to a Local Division of the Supreme Court where the applicants applied to have the matter referred to the Constitutional Court in terms of the provisions of s 103(4) of the Constitution Act 200 of 1993. The applicants' motions were granted and the matters H were heard together in the Constitutional Court.

Held, per Didcott J, Chaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J, Madala J, Ngoepe J, O'Regan J and Sachs J concurring, that any ban imposed on the possession of erotic material kept within the privacy of one's home invaded the personal privacy guaranteed by s 13 of the Constitution: the invasion was aggravated by the preposterous definition of 'indecent or obscene photographic matter' contained I in s 1 of Act 37 of 1967.

Held, further, that s 33(1) of the Constitution could not save s 2(1) from nullification: the intrusion into personal privacy failed the tests of reasonableness and justifiability required by s 33(1).

Held, per Mokgoro J, Sachs J concurring, that s 2(1) amounted to a violation of the applicants' rights to freedom of expression guaranteed by s 15 of the Constitution and J was invalid on this basis.

1996 (1) SACR p588

A The Court accordingly declared s 2(1) of Act 37 of 1967 inconsistent with the Constitution.

Case Information

Referral to the Constitutional Court of the validity of s 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967.

H Epstein, G J Marcus and A Dworsky for the applicants.

J S M Henning SC (with him P P Stander and R J Chinner) for the State. B

E D Moseneke SC (with him N J Louw) for the First and Second Intervening Parties.

J Fedler for People Opposing Women Abuse et al.

D M Davis and M Chaskalson for the Centre for Applied Legal Studies.

H van R Woudstra SC and M Helberg SC for the Christian Lawyers Association. C

Cur adv vult.

Postea (9 May 1996).

Judgment

Mokgoro J:

D [1] 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 s 2 of the Indecent or Obscene Photographic Matter E Act 37 of 1967, as amended (hereinafter, the 'Act' or the '1967 Act'), in the Randburg magistrate's court.

[2] The charges were based on the possession by two of the applicants (Patrick and F 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. G 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 magistrate's court on February 24, 1995. After a number of further appearances they applied in terms of H s 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 2(1) of the Act. The application was granted without hearing any evidence; proceedings in the magistrate's court were suspended in terms of s 103(4)(b) of the Constitution, and I 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 s 103(4) of the Constitution, alleging that s 2(1) of the Act was inconsistent with several sections of the Constitution. The applicants' motion was granted, and the matter duly referred. Proceedings against applicant Curtis followed a parallel route to J this Court, and the two cases were heard together on September 5, 1995.

1996 (1) SACR p589

Mokgoro J

The Question Referred A

[4] The learned Judge made an order referring the following question to this Court for consideration:

(W)hether the provisions of s 2(1) of the Indecent or Obscene Photographic Matter Act, Act 37 of 1967, are inconsistent with the provisions of Chapter 3 of B the Constitution, in particular the provisions of s 8 (equality), s 13 (the right to privacy), s 14(1) (the right to freedom of conscience), s 15 (freedom of speech, expression and artistic creativity), s 24 (administrative justice) and s 33(1) (the permissible limitations of the fundamental rights entrenched).

C [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 D 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 E

[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 F 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 pro-visions 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 G 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 H 1913. The consolidating and amending Customs Act

1996 (1) SACR p590

Mokgoro J

A 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 offence. [7] Domestically produced 'indecent' materials remained subject to various pre-Union statutes, including the Cape Obscene Publications Act, [8] provisions of the Transvaal B 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 C 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...