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

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, O'Regan J and Sachs J
• Judgment Date: 09 May 1996
• Citation: 1996 (3) SA 617 (CC)
• Docket Number: CCT 20 and 21/95
• Hearing Date: 05 September 1995
• 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.
• Court: Constitutional Court

H Mokgoro J:

[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 Act 37 of I 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 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. J The cassettes

Mokgoro J

A 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 1 February 1993. The cassettes in the possession of applicant Curtis were taken from Mr Curtis in a police operation conducted B in a shopping centre parking lot in Northgate, Johannesburg.

[3] The Case applicants made their first appearance in the Randburg magistrate's court on 24 February 1995. After a number of further appearances they applied in terms of s 103(3) of the Constitution of the Republic of South Africa Act 200 of 1993 (hereinafter, C the 'Constitution'), for the proceedings to be postponed pending an application to the Supreme Court regarding the constitutional status of s 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 referred to the Witwatersrand Local Division of the Supreme Court. Appearing before Schabort J, the applicants D 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 this Court, and the two E cases were heard together on 5 September 1995.

The question referred

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

F '(W)hether the provisions of s 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967, are inconsistent with the provisions of chap 3 of 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 G 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 H 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 I any fundamental rights. For the

Mokgoro J

A 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

B [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 C 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 D indecent or obscene matter were replaced by the Customs Management Act 9 of 1913. The consolidating and amending Customs Act 35 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' E 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 Entertainments Act (the F '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

Mokgoro J

A 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, B published on 3 October 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 C 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, sodo-my, masochism, sadism, sexual bestiality or anything of a like D 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:

E '(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]

F 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:

G '(South Africans) have been subjected to a system of censorship which was

Mokgoro J

A 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 B 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:

Mokgoro J

A '(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 B those articles is probably one of the motives behind it.' [19]

Interpretations of the 1967 Act: the ambit of the definition of 'indecent or obscene'

[13] The sweeping ambit of the definition of indecent or obscene material in the Act was acknowledged by the courts at an early stage. In S v R, it was noted that

C '(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 D 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 E 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...