Child pornography in South Africa

• Jurisdiction: South Africa
• Author: S S Terblanche
• Date: 06 September 2019
• Pages: 283-308
• Published date: 06 September 2019

Child pornography in South Africa

ss terBlaNcHe* & N MOlleMa**

aBstract

This article examines child pornography as it is currently prohibited in South

Africa. It considers the def‌inition of child pornography and its development

through a number of legislati ve changes. The statutory proh ibition of child

pornography is complicated by the fact that it is def‌ined and criminalised

in b oth the Fi lms and Publications Act 65 of 1996 and t he Cr iminal Law

(Sexual Offences and Related Matters) Amendment Act 32 of 2007. From

closer sc rutiny it i s evident that the def‌initions and crimes differ in each

Act. Fur ther complications i nclude clearly incorrect legislation. Some

international examples are used to illustrate how these complications could

be avoided.

1. Introduction

Child pornography has recently become a globally pervasive crime,

massively agg ravated by i mproved in formation and communications

technology. Child pornography

‘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’.1

For these rea sons it is considered ‘an evil in a ll democratic societies’

and one which is ‘universally condemned’.2

Recent legislative changes, following an earlier investigation by

the South African Law Commi ssion,3 have completely overhauled the

landscape of sexual offences in this country. Sexual offences now

include all kinds of child sexual abuse, of which child pornography is

but one. In this contribution we examine child pornography in the form

currently criminalised in South Africa. In the process it is important to

* BJuris (PU for CHE), LLD (UNISA), Professor, Department of Criminal and Procedural

Law, University of South Africa.

** DLitt et Phil (UNISA), LLM (UNISA), Senior lecturer, Department of Criminal and

Procedural Law, University of South Africa.

1 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA

406 (CC) at para [61].

2 Ibid at para [61].

3 South African Law Commission (SALC) (Project 107) ‘Sexual Offences: Process

and Procedure’ (Executive Summary) (2002). Since 2002, following an amendment

(Judicial Matters Amendment Act 55 of 2002) the Law Commission has been known

as the South African Law Reform Commission (SALRC).

283

(2011) 24 SACJ 283

© Juta and Company (Pty) Ltd

examine the def‌inition of child pornography and to establish whether

this def‌inition conforms to international standards. It is also necessary

to consider how criminal law has been utilised historically to prohibit

child pornography and whether current criminalisation in South Africa

of this heinous practice is in accordance with international standards.

It is i mportant, too, to provide an estimation of the success of the

current legislative provisions, as many African and other less-developed

countries are under pressure to increase ef forts to combat this ‘evil’.4

2. The international position

Children’s rights receive attent ion in a range of inter national hum an

rights in struments.5 These instr uments confer certain responsibilities

on signatories based on what is internationally expected of count ries

with respect to the protection of ch ildren in general and protection

against child pornogr aphy in particular.

Basic guidelines on the protection of human rights are found in the

Universal Declaration of Human Rights6 which incorporates a wide

spectrum of rights for everyone, including children. The United Nations’

Convention on the R ights of the Child (CRC) adopted in 19897 deals

4 De Reuck v Dir ector of Public Prosecutions Witwatersrand Local Division supra (n1)

as quoted in the text at (n2) above.

5 For an overview of these international documents see P Mahery ‘The United Nations

Conventions on the Rights of the Child: Maintaining its value in International and

South African child law’ 309-330; F Viljoen ‘The African Charter on the Rights and

Welfare of the Child’ 331-350 and C du Toit ‘The Hague Convention on the Civil

Aspects of International Child Abduction’ 351-372 in T Boezaart (ed) Child law in

South Africa (2009); S Dillon Inter national Children’s Rights (2010); P Alderson

Young Children’s Rights – Exploring Beliefs, Principles and Practice (2 ed) (2008);

J Fortin Children’s Rights and the Developing Law (2 ed) (2009); M Freeman ‘Why it

remains important to take children’s rights seriously’ (2007) 15 International Journal

of Children’s Rights 5–23.

6 United Nations Universal Declaration of Human Rights, adopted 10/12/1948,

available at , accessed 4 October 2011.

7 General Assembly resolution 44/25 of 20 November 1989, available at http://www2.

ohchr.org/english /law/crc.htm, accessed on 4 October 2011. South Africa ratif‌ied

the CRC on 16 June 1995 (cf United Nations Treaty Collec tion Databases (2010),

available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

11/&chapter=4&lang=en#6, accessed on 4 October 2011). It is the most ratif‌ied

international human rights treaty, with only two states that have not yet ratif‌ied it:

the United States of America (USA) and Somalia – P Mahery op cit (n5) at 309; A

Skelton ‘The development of a f‌ledgling child rights jurisprudence in Eastern and

Southern Africa based on international and regional instruments’ (2009) 9 African

Human Rights Law Journal 483. See also T Kaime ‘The foundations of rights in the

African Charter on the rights and welfare of the child: A historical and philosophical

account’ (2009) 3 African Journal of Legal Studies 123-124. The CRC is reinforced

by the United Nations’ Commission on Human Rights’ Programme of Action for the

Prevention of the Sale of Children, Child Prostitution and Child Pornography.

284 SACJ . (2011) 3

© Juta and Company (Pty) Ltd