Case, Patrick and Case, Inga v The Minister of Safety and Security and Others; Curtis, Stephen Roy v The Minister of Safety and Security and Others

Patrick and Inga Case possessed approximately 150 video cassettes containing sexually explicit material, which were seized during a police raid at their Sandton residence on 1 February 1993. Stephen Roy Curtis possessed five similar cassettes, which were taken from him in a police operation in Johannesburg. All three applicants were charged with contravening section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967, which criminalized possession of "indecent or obscene photographic matter". The Act defined such matter inclusively to include material depicting, inter alia, sexual intercourse, licentiousness, lust, homosexuality, lesbianism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality "or anything of a like nature". The applicants challenged the constitutional validity of section 2(1), arguing it violated their rights to freedom of expression (section 15), privacy (section 13), freedom of conscience (section 14), and administrative justice (section 24). The matter was referred to the Constitutional Court by the Witwatersrand Local Division pursuant to section 103(4) of the interim Constitution.

Section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 was declared inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 (as amended), and declared invalid and of no force and effect with immediate effect from the date of judgment. No order as to costs was made. The Court declined to suspend the order of invalidity.

This landmark case established key principles regarding freedom of expression and the right to privacy in the new constitutional dispensation. It was one of the first major Constitutional Court decisions interpreting the scope of freedom of expression, holding that such protection extends to non-political speech, including sexually explicit material, and encompasses both the right to transmit and receive information. The Court adopted a generous approach to defining rights, with limitations to be assessed under section 33. The judgment developed the doctrine of overbreadth as applied under the limitations clause, holding that legislation whose impact is not proportionate to legitimate objectives may be struck down even if the particular conduct before the court falls within the zone of constitutionally unprotected activity, due to the chilling effect on protected expression. The case established that the right to privacy protects what individuals choose to possess in their homes for personal use, subject to reasonable and justifiable limitations. It represented a clear break from the apartheid-era censorship regime based on imposing Calvinist morality and suppressing political and cultural expression. The Court's refusal to draw detailed lines between categories of protected and unprotected sexually explicit material, leaving this to the legislature, demonstrated appropriate judicial restraint. The decision's emphasis on protecting privacy against state intrusion was particularly significant given South Africa's history of rights violations under apartheid.