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: 2003 (2) SACR 445 (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 P Mtshaulana) for the second to fifth respondents.
• Court: Constitutional Court

Langa DCJ: H

Introduction

[1] The applicant, a film producer, appeared in the Randburg regional court where he was charged under s 27(1) of the Films and Publications Act 65 of 1996 (the Act), a provision which relates to child I pornography. Early in the proceedings, the applicant raised objections regarding the constitutional validity of certain of the provisions of the Act on which the charges were based. The trial was adjourned to enable the applicant to approach the Witwatersrand High Court (the High Court) for a ruling on the challenged provisions. The High Court, however, dismissed the J

Langa DCJ

applicant's challenge. [1] A He now seeks leave from this Court to appeal directly to it against the decision of the High Court. The application is opposed by the respondents, who also oppose the appeal on the merits.

Standing

[2] In the High Court the respondents argued that the applicant B lacked standing to challenge the impugned provisions of the Act at that stage of the proceedings. The High Court, however, upheld the applicant's right to challenge the constitutionality of s 27(1), read with the definition of 'child pornography' in s 1, in his own interest on the ground that he was facing charges under those provisions. [2] In fact, the charges against the applicant related only to possession and importation of child C pornography. The offences created by s 27(1) include, in addition, separate offences of creation, production and distribution of the material in question. The respondents have not sought to pursue their original objection in this Court. Since the wider challenge does not raise materially different issues, I consider that nothing further need be said about it. D

Leave to appeal

[3] The respondents opposed the application for leave to appeal directly to this Court on two main grounds. They contended firstly that the application did not have reasonable prospects of success and, secondly, that the nature of the case made it desirable that a decision E of the Supreme Court of Appeal should first be obtained before this Court is called upon to decide on the issues. These objections are not well founded. The issues raised, particularly in relation to the rights to privacy and freedom of expression, are complex and the prospects of F success either way cannot fairly be said to be self-evident. In any event, an enquiry into prospects of success, although important, is not the only enquiry to be undertaken in deciding whether or not to grant leave to appeal. [3] The test is whether it is in the interests of justice for the appeal to be brought to this Court. [4] Of relevance to this determination, as was stated in Islamic Unity Convention v Independent Broadcasting Authority G

Langa DCJ

and Others, [5] is the question A whether the grounds of appeal raise a constitutional issue of importance on which a decision by this Court is desirable. [6] In my view, the determination of the constitutionality of the child pornography provisions in s 27(1) is such a matter.

[4] Where leave is sought to appeal to this Court from any court B other than the Supreme Court of Appeal, it becomes necessary to consider the need for a prior decision of the Supreme Court of Appeal. [7] In this regard it is relevant to note that the legal questions involved are all constitutional issues [8] and there is a public interest in their early resolution. [9] The circumstances of this case are not dissimilar from those in Islamic Unity Convention, where the Court had to consider the appropriateness of granting leave C to appeal, and the following was said:

'The present case involves a comparison of a piece of legislation with a provision of the Constitution and an evaluation of their compatibility. It is not concerned with the development of the common law but with the direct application of the Constitution. This is therefore a case where the benefit of first obtaining the views of the D SCA may readily be outweighed by other considerations.' [10]

I conclude that it is in the interests of justice that leave to appeal directly to this Court be granted.

The issues E

[5] The applicant's case in both the High Court and this Court was that the provisions of s 27(1) read with the definition of child pornography in s 1 of the Act, constituted a limitation of the constitutional rights to privacy, [11] freedom of expression [12] and equality. [13] He contended that the limitation was not justifiable, in particular because the provisions in question were F not only overbroad, but were also vague. The respondents denied that any of the rights mentioned above were limited by the impugned provisions. In the alternative, they contended that if the

Langa DCJ

provisions were found to be a limitation of the rights concerned, such A limitation was justified and therefore constitutionally valid.

[6] Before dealing in detail with the submissions made on behalf of the parties, it will be convenient to give a brief summary of the legislative scheme in order to provide context to the issues to be decided. It should be noted at the outset that the impugned provisions are concerned specifically with child pornography and not pornography in general. B

The legislative scheme

[7] The Act repealed the Indecent or Obscene Photographic Matter Act 37 of 1967 and the Publications Act 42 of 1974 and created a new comprehensive regulatory framework for films and publications. [14] It provides for the C establishment of a Film and Publication Board (the Board), [15] that is responsible for the classification of both films [16] and publications. [17] No film may be distributed or exhibited in public unless it has been classified by the Board. [18] The classification of publications is, however, not mandatory, but if a complaint is received concerning a D particular, hitherto unclassified publication, the Board is required to make a decision whether or not it should be classified. [19]

[8] Criteria for the classification of films and publications are contained in the Schedules to the Act. A publication must be classified XX, X18, R18, or F18 if it satisfies the criteria of the Schedules respectively governing those E classifications. [20] Similarly, a film must be classified XX, X18 or R18 if it falls within the appropriate Schedules. [21] If a publication does not fall within any of the relevant Schedules, the Board must refuse to classify it, and if a film falls outside all the relevant Schedules the Board must issue a classification to that effect. [22] For purposes of this case, only the XX classification for publications F and films is relevant. [23]

[9] A film or publication will be classified XX if it satisfies either the criteria relating to sexually explicit or extremely violent materials, or those relating to promotion of religious hatred. [24] We are not concerned with the latter in this case. The criteria for an XX classification in respect of a G sexually explicit or extremely violent publication are as follows:

'Schedule 1

XX Classification for publications

A publication shall be classified as XX if, judged within context - H

Langa DCJ

(1) it contains a visual presentation, simulated or real A of -

(a)

child pornography;

(b)

explicit violent sexual conduct;

(c)

bestiality;

(d)

explicit sexual conduct which degrades a person and which constitutes incitement to cause harm; or

(e)

the explicit infliction of or explicit effect of B extreme violence which constitutes incitement to cause harm;

(2) it or any independent part thereof, describes predominantly and explicitly the acts defined in clause (1)(a).

. . .

Schedule 5

Art and science exemption for C publications

The XX or X18 classification shall not be applied in respect of a bona fide scientific, documentary, literary or, except in the case of Schedule 1(1)(a), an artistic publication, or any part of a publication which, judged within context, is of such a nature.'

[10] What these provisions indicate is that bona fide D scientific, documentary or literary publications are exempt from being classified XX. Artistic publications are also exempt unless they contain a visual presentation of child pornography. Substantially the same regime applies to the XX classification of films. Bona fide scientific, documentary or dramatic films are exempt; artistic films are also exempt unless they contain a scene or scenes of child pornography. [25] E

[11] Section 25(a) makes it an offence to distribute a publication that has been classified XX; s 26 likewise prohibits the exhibition and the broadcasting of a film that has been so classified.

[12] Since the classification of publications is not mandatory, s 28(1) creates a parallel offence of 'knowingly' distributing a F publication 'which contains a visual presentation or a description referred to in Schedule 1, read with Schedule 5'. Similarly, s 26(4)(a) makes it an offence to broadcast knowingly 'a film which has not been classified but which falls within Schedule 6 read with Schedule 9'.

[13] Section 27 contains an array of offences concerned only G with child pornography. Subsection 1 was amended in 1999 following the report of a task team that was appointed to recommend measures to counter the spread of child pornography, particularly on the internet. The section provides that:

'(1) A person shall be guilty of an offence if he or she H knowingly -

(a)

creates, produces, imports or is in possession of a publication which contains a visual presentation of child pornography; or

(b)

creates, distributes, produces, imports or is in possession of a film which contains a scene or scenes of child pornography.

(2) A person shall not be convicted of a contravention of ss (1), I unless the State proves...