Recent Case: Specific crimes
| Jurisdiction | South Africa |
| Date | 03 September 2019 |
| Published date | 03 September 2019 |
| Pages | 244-249 |
| Citation | (2004) 17 SACJ 244 |
| Author | Ronald Louw |
CASES
Specific crimes
RONALD LOUW
University of KwaZulu
-
Natal, Durban
Films and Publications - Child Pornography
In
De Reuck v Director of Public Prosecutions, WLD
the applicant had been charged with contravening s 27(1) of the Films and
Publications Act 1996 which makes it an offence to (a) create, produce,
import or possess a publication which contains a visual presentation of child
pornography or (b) create, distribute, produce, import or possess a film
which contains a scene or scenes of child pornography. Child pornography is
defined by the Act as follows: '"[C]hild 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.' The applicant challenged the
constitutionality of the provision on various grounds but the challenge
required the court to consider first what constituted child pornography.
The first question the court determined was whether the listing in the
definition was exhaustive or non-exhaustive as determined by the term
'including'. The court noted that the meaning of 'includes' has to be
determined from the statutory context. If the primary meaning of the term is
well known, then a subsequent listing usually goes beyond the original term
or primary meaning and is thus non-exhaustive, but where the primary
meaning encompasses all the terms in the subsequent listing, the listing is
exhaustive. In this instance the court noted that pornography is notoriously
difficult to define and that it was therefore unlikely that the Legislature
merely added meaning to the term 'child pornography' assuming that its
primary meaning was not in need of definition (at para 19).
In determining the primary meaning of child pornography, the court
commenced with a dictionary definition of pornography as '[t]he explicit
description or exhibition of sexual subjects or activity in literature, painting,
244
(2004) 17 SACJ 244
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