The Constitutional Court of South Africa recently struck down s2(1) of the Indecent or Obscene Photographic Matter Act, which prohibited the possession of indecent or obscene photographic matter. The Court was unanimous in its agreement that the section was invalid, but there were differing reasons for the finding of unconstitutionality. In a judgement delivered by Justice Didcott, the majority of the court held that the prohibition constituted an infringement of the right to personal privacy guaranteed by s 13 of the Constitution. Justice Mokgoro delivered a minority judgement in which she held that s 2(1) constituted an unjustifiable infringement of the right to freedom of expression as well as the right to privacy. The Freedom of Expression Institute (FXI) and the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand appeared before the Constitutional Court as amicus curiae in the matter, arguing that the Act was invalid because it infringed the constitutional right to freedom of expression guaranteed by s15, an argument which was accepted in the minority judgement of Justice Mokgoro.
The article below is printed with the kind permission of De Rebus (July 1996 p445), the journal of the Association of Law Societies of South Africa.
Facts
The Indecent or Obscene Photographic Matter Act 37 of 1967 ( 'the 1967 Act') prohibits the possession of indecent or obscene photographic matter. A constitutional challenge was launched against the provisions of s 2(1) of the 1967 Act on the grounds that it constituted an unreasonable and unjustifiable violation of the applicants' right to freedom of expression. It was also argued that the definition of indecent or obscene' on which the prohibitions in s 2(1) of the 1967 Act are based, is vague and overbroad. The Constitutional Court handed down judgement on 9 May 1996 in the cases of Case and Another v Minister of Safety and Security and Others (case CCT 20/95); Curtis v Minister of Safety and Security and Others (case CCT 21/95).
The applicants had been charged under the 1967 Act with possession of sexually explicit video tapes and the matter was referred to the Constitutional Court, which engaged in a detailed examination and analysis of the obscenity laws in South Africa and in particular the 1967 Act. The Court decided - with the judges giving differing reasons, however, that s 2(1) constitutued an unjustifiable infringement of the right to freedom of expression as well as the right to privacy. The court was unanimous in its agreement that s 2(1) was invalid and of no force and effect as from the date of judgment.
Section 2(1) of the 1967 Act provides that '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 exceeding one thousand rand or imprisonment for a period not exceeding one year or to both such fine and such imprisonment' (my italics).
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, sodomy, masochism, sadism, sexual bestiality or anything of a like nature.'
Decisions
The court noted the sweeping ambit of the definition of indecent or obscene in the 1967 Act and held that this was the root of the problem', with the result that our courts had been unable in the past to enforce the Act. For instance, in R v Hardy 1905 NLR 165 at 170, the court acknowledged that the offence was incapable of accurate definition.
Two important threshold questions were considered by the court, namely whether sexually explicit material could be defined as a category of speech and expression protected by the Constitution and, if so, if the possession thereof was subject to protection under s 15 of the Constitution (para 18 et seq). In the United States of America, in Chaplinsky v New Hampshire 315 US 568 at 571 - 572 (1942), Mokgoro J noted (para 20) obscenity was - like defamation and fighting words' - categorised as speech unprotected by the First Amendment.
Mokgoro J stated, in response to the first threshold question, that it could not readily be taken for granted that s 15 of the Constitution protected sexually explicit material. It could be argued that, in interpreting the Constitution purposively, it would not be unreasonable to maintain that expressive material graphically depicting various forms of sexual activity fell outside the protected category of expression (para 19).
The court's approach was to define the right generously at first and then to see whether that right could justifiably be limited in terms of s 33 of the Constitution.
There seems to be considerable international consensus that not every form of pornography and obscene matter qualifies for constitutional protection as free expression, and that limitations and prohibitions are not necessarily unreasonable. On the other hand, not all erotica or even pornography should be banned. Not only would doing so violate free expression and perhaps privacy and freedom of conscience, and even free economic activity, but it would ignore the element of artistic creativity as well. This is clearly evident from the line of reasoning taken by the judge. She says that one could not artificially strip entire categories of speech of constitutional protection by virtue of their content as this would [fly] in the face of the common sense understanding of the meaning of the guarantee of freedom of expression' (para 23) and thus the first threshold question was answered in the affirmative.
As to whether s 15 protected the right to possess sexually explicit material, Mokgoro J held (para 25 ff) that freedom of expression was impoverished if the right to possess sexually explicit material was not protected as well.
The ideological - as well as constitutional - underpinnings of freedom of expression, read as part of a web of mutually supporting rights, such as the right to privacy, etc, is explained by Mokgoro J (para 26 ff) as the quest for the truth or the free marketplace of ideas paradigm. In the US, says Mokgoro J, the courts have deemed the right of the recipient to obtain information to be more fundamental than that of the person who transmits it. In the final analysis Mokgoro J says:
'I therefore hold that sexually expressive speech is subject to the protection of section 15 of the Constitution and that such protection must necessarily extend to the right to possess such material' (para 35).
Having determined the scope of the right, the court then considered whether s 2(1) of the 1967 Act satisfied the requirements of s 33 of the Constitution (the limitations clause) (para 35 et seq). The court concluded that 'the means embodied in s 2(1) read with the definition of obscene or indecent material which includes within its overbroad compass a vast array of incontestably constitutionally protected categories of expression, are entirely disproportionate to whatever constitutionally permissible objectives might underlie the statute. Such a law is ipso facto not reasonable within the meaning of section 33(1)(a)(i)' (para 61) (my italics).
Following the dictum in R v Oakes (1986) 26 DLR (4th) 200, namely that the state had to show that the means chosen were reasonable and demonstrably justified, which involved a sort of proportionality test, the judge concluded:
'Those parties who would have this Court uphold the challenged provision of the 1967 Act have manifestly not carried their burden of showing that the limitation on free expression that is imposed by that provision passes muster under section 33' (para 61).
Mokgoro J agreed with Didcott J's conclusion that the 1967 Act unreasonably and unjustifiably infringed the constitutional right to privacy (para 65). However, she disagreed with the conclusion that the state could not regulate the kind of expressive material an individual might consume in the privacy of his or her home. An invasion of privacy might be permissible in terms of the limitation clause where, for instance, the material concerned was so pernicious that a ban on its possession would serve a useful purpose in the campaign against its production.
It must be noted that Mokgoro J delivered the minority judgement, while Didcott J delivered the majority judgement of the court in holding that s 2(1) of the 1967 Act constituted an unjustifiable infringement of the right of freedom of expression as well as the right to privacy.
Saber Jazbhay, Attorney and constitutional lawyer, Ismail Omar & Co