De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J and Yacoob J
• Judgment Date: 15 October 2003
• Citation: 2004 (1) SA 406 (CC)
• Docket Number: CCT 5/03
• Hearing Date: 14 May 2003
• Counsel: J C W van Rooyen SC for the applicant. Z J Van Zyl SC for the first respondent. V Maleka SC (with him P Mtshaulana) for the second to fifth respondents.
• Court: Constitutional Court

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others
2004 (1) SA 406 (CC)

2004 (1) SA p406

Citation	2004 (1) SA 406 (CC)
Case No	CCT 5/03
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J and Yacoob J
Heard	May 14, 2003
Judgment	October 15, 2003
Counsel	J C W van Rooyen SC for the applicant.; Z J Van Zyl SC for the first respondent.; V Maleka SC (with him P Mtshaulana) for the second to fifth respondents.

Flynote : Sleutelwoorde G

Statute — Interpretation of — Meaning of 'includes' in definition section — Correct sense of 'includes' in statute to be ascertained from context in which H used — If primary meaning of term well known and not in need of definition and items in list introduced by 'includes' going beyond primary meaning, purpose of list usually taken to be to add to primary meaning so that 'includes' is non-exhaustive — If primary meaning already encompassing all items in list, purpose of list to make definition more precise — In such case 'includes' used exhaustively — Between two situations there is third, I where drafters grouped together several things in definition of one term, whose primary meaning — If it is word in ordinary, non-legal usage — Fits some of them better than others — Such list can also be intended as exhaustive, if only to avoid quagmire of uncertainty in application of term. J

2004 (1) SA p407

Criminal law — Obscene photographic material — Child pornography — What A constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Dictionary definition of pornography, namely that it is 'explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc, in manner intended to stimulate erotic rather than aesthetic feelings; literature etc containing this', is fair description of primary B meaning of pornography — Erotic and aesthetic feelings not mutually exclusive in that some forms of pornography can contain aesthetic element and where aesthetic element predominant image will not constitute pornography — 'Child pornography' bearing corresponding primary meaning where sexual activity described or exhibited involves children — Definition in s 1 of Act narrower and more precise than primary meaning of child pornography, in C that it refers to 'any image', thereby excluding written descriptions; and it lists various forms of conduct that cannot be depicted — It follows that prohibited acts are closed list of what constitutes child pornography for purposes of Act.

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Stimulation of erotic rather D than aesthetic feelings an essential element of definition of child pornography — Any image predominantly stimulating aesthetic feelings not caught by definition — It does require that image viewed objectively and as whole has as its predominant purpose stimulation of erotic feelings in certain human beings — Evidence of intention of author irrelevant to E this determination — Purpose to be determined from perspective of reasonable viewer, who would regard it as having as its predominant purpose stimulation of erotic rather than aesthetic feelings in target audience.

Criminal law — Obscene photographic material — Child pornography — What F constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Definition of 'sexual conduct' in Schedule 11 to Act can be used within definition of 'child pornography' in s 1 of Act.

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Child pornography defined as images 'depicting' prohibited acts — Legal certainty and G the practicalities of proof favour objective test based on perspective of 'reasonable viewer' over tests that consider subjective state of mind of author or accused — Image purporting or alleged to 'depict' prohibited act has to do so explicitly — Image 'depicted' if it is presented for viewer to see, and not merely suggested. H

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Meaning 'person' in definition — Image, which has to be 'real or simulated, however created', has to depict a 'person' — This includes imaginary as well as real persons. I

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Meaning and effect of 'sexual exploitation' and 'degradation' in definition — Child pornography restricted to image and s 27 therefore aimed at conduct in relation to that image that falls within ambit of definition in s 1 — Definition in s 1 contemplating two categories of J

2004 (1) SA p408

images — Certain characteristics applying to all images contemplated in section while A others characteristics applying to one or other category of them and assisting in defining that category — Two characteristics common to all images: they could be real or simulated regardless of how they are created and have to be that of person who is or is shown as being under age of 18 years — First category of child images contemplated by definition requiring that image depicts child engaged in sexual conduct or display of genitals; and image has to be B one amounting to sexual exploitation — Second category of images contemplated in definition those where child depicted as participating in, or assisting another person to engage in sexual conduct; and image having to amount to sexual exploitation or to degradation of children — Conduct required by category of image different — Second category of image embracing C broader category because it is caught in definition even if it does not amount to sexual exploitation but to degradation of child.

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Meaning and effect of D 'sexual exploitation' and 'degradation' in definition — 'Exploitation' has negative characteristic and implies either negative purpose or result or negative cause by which sexual urges of human beings manipulated.

Criminal law — Obscene photographic material — Child pornography — What constitutes — Meaning of in definition in Films and Publications Act 65 of 1996 — Use of context in E determining whether image falls within definition — Court not prevented from referring to context when determining whether publication contains visual presentation of child pornography — Not possible to determine whether image as whole amounts to child pornography without regard to context — Act to be interpreted to allow consideration of F such contextual evidence when it is relevant since statute doesn't preclude it.

Criminal law — Obscene photographic material — Child pornography — Films and Publications Act 65 of 1996 — Constitutionality of — Different treatment of possessors and distributors of publications — Section 28(1) of Act wider than material targeted by s 27 and should be characterised as measure which bans for G distribution range of publications that is broader, in most respects, than those banned for possession by s 27(1)(a) — Differentiation connected with legitimate government objective of combating harm caused by pornographic and violent materials by targeting those who distribute such materials — Differentiation scarcely manifesting arbitrariness or naked preference for H distributors — Publication which contains child pornography unlikely to be of bona fide scientific, documentary or literary nature so as to qualify for exemption under Schedule 5 — In most cases someone who knowingly distributes publication also knowingly possesses it, and she or he can therefore be charged under s 27(1)(a) instead of s 28(1) — Act not infringing right to equality. I

Constitutional law — Human rights — Competing rights — Conflict between rights of children in s 28 of Constitution of the Republic of South Africa Act 108 of 1996 and rights to freedom of expression and equality — Constitutional rights mutually interrelated and interdependent and form single constitutional value system — Section 28(2) of Constitution, like J

2004 (1) SA p409

other rights enshrined in Bill of Rights, subject to limitations that are reasonable and justifiable in compliance with A s 36.

Constitutional law — Human rights — Right to freedom of expression — Child pornography — Films and Publications Act 65 of 1996 — Criminalisation of creation, production, importation, distribution and possession of the material that falls within definition of child pornography limits right to freedom of expression — Limitation of right caused by s 27(1) of Act not implicating core values of right — Expression B restricted is, for most part, expression of little value which is found on periphery of right and form of expression that is not protected as part of freedom of expression in many democratic societies — State establishing three legitimate objectives which limitation aims to serve: protecting dignity of children, stamping out market for photographs made by abusing children and C preventing reasonable risk that images will be used to harm children — Relatively narrow infringement of expression outweighed by important legislative purposes performed by s 27 together with legislative safeguards provided — Section 27(1) constituting reasonable and justifiable limitation on right to freedom of expression. D

Constitutional law — Human rights — Right to freedom of expression — Child pornography —...