Case and Curtis v The Minister of Safety and Security and Others

The applicants Patrick Case, Inga Case, and Stephen Roy Curtis were charged in the Randburg Magistrates' Court with contravention of section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967. The charges arose from the possession of video cassettes containing sexually explicit material. The Case applicants possessed approximately 150 such cassettes, which were seized during a police raid on their Sandton residence on 1 February 1993, along with video playback and recording equipment. Curtis possessed five similar cassettes, which were taken from him during a police operation at a shopping centre parking lot in Northgate, Johannesburg. The applicants challenged the constitutionality of section 2(1) of the 1967 Act and the matter was referred to the Constitutional Court. The proceedings in the Magistrates' Court were suspended pending the constitutional challenge.

• Whether section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 is inconsistent with section 15 of the Constitution (freedom of expression)
• Whether sexually explicit expression falls within the protection of section 15 of the Constitution
• Whether the right to possess sexually explicit material for private use is protected under section 15 (freedom of expression)
• Whether section 2(1) read with the definition in section 1 of the Act constitutes an unconstitutional infringement of section 13 of the Constitution (right to privacy)
• Whether the definition of 'indecent or obscene photographic matter' in section 1 is unconstitutionally overbroad and vague
• Whether the impugned provisions can be saved by severance or restrictive interpretation under section 35(2) of the Constitution
• Whether the limitation imposed by section 2(1) is reasonable and justifiable under section 33(1) of the 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 effect from the date of judgment (9 May 1996). No order as to costs was made.

A statutory prohibition on the possession of sexually explicit material that is defined in overbroad terms, capturing a vast range of constitutionally protected expression far beyond any legitimate regulatory objective, constitutes an unreasonable and unjustifiable limitation on the right to freedom of expression under section 15 of the Constitution. Additionally, a blanket criminal prohibition on the possession of erotic material in the privacy of one's home for personal use, without differentiation or appropriate justification, violates the right to privacy under section 13 of the Constitution. Such limitations cannot be saved under section 33(1) as reasonable and justifiable in an open and democratic society. Where a legislative definition is so extensively overbroad that severance or reading down would require the court to substantially rewrite the statute, such remedies are inappropriate as they would constitute impermissible judicial law-making and usurpation of the legislative function.

Mokgoro J made extensive obiter comments on the philosophy underlying freedom of expression, noting that it serves both a 'marketplace of ideas' function and, more importantly, underpins each individual's empowerment to autonomous self-development and is foundational to human dignity. She noted that section 15 should be read not in isolation but as part of a web of mutually supporting rights. She extensively reviewed foreign jurisprudence from the United States, Canada, India, Zimbabwe and Europe on obscenity law and the right to receive information, while cautioning that the application of obscenity laws in these jurisdictions had sometimes resulted in discriminatory enforcement against marginalized groups and culturally subordinated communities. The judgment deliberately left open the question of what form of regulation of sexually explicit material would be constitutionally permissible, particularly in relation to child pornography, material involving violence, exploitation, degradation of women and children. Didcott J emphasized the importance of not pre-empting future cases, given that new legislation was in preparation to replace the existing censorship regime. Langa J and Madala J stressed that the right to privacy, while broad, is not absolute and may be limited in appropriate circumstances, particularly regarding children and exploitative material. Sachs J identified 'strategic overbreadth' as an additional fatal defect - the Act's failure to distinguish between possession in private versus for sale, or between what is offensive versus harmful, and its lack of any attempt to balance competing constitutional values.

This was the Constitutional Court's first major judgment on freedom of expression and pornography/obscenity law in the new constitutional dispensation. It established important principles: (1) that sexually explicit expression falls within the protection of section 15 (freedom of expression); (2) that the right to freedom of expression includes a corollary right to receive, hold and consume expressions transmitted by others; (3) that the right to privacy under section 13 protects what material a person possesses in the privacy of their home for personal use; (4) that overbreadth is a valid ground for striking down legislation under the limitations clause analysis; (5) that courts should define constitutional rights generously and only impose limitations at the second stage of analysis under section 33; (6) that severance and reading down are inappropriate remedies where they would require the court to engage in substantial legislative redrafting; and (7) that while rights to privacy and expression are broad, they may be subject to limitation in appropriate circumstances (the judgment leaves open the question of regulation of child pornography and other harmful materials). The case marked a decisive break from the apartheid-era censorship regime and its moralistic, paternalistic approach to regulation of sexual expression.