Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others

The applicants, Patrick and Inga Case, and Stephen Roy Curtis, were charged in the Randburg Magistrates’ Court with contravening section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 for possession of sexually explicit video cassettes. Approximately 150 cassettes were seized from the Cases’ private residence during a police raid, together with video equipment, while five cassettes were seized from Curtis during a police operation in a shopping centre parking lot. The applicants challenged the constitutionality of section 2(1) of the Act, arguing that it infringed several fundamental rights in Chapter 3 of the Interim Constitution, including freedom of expression, privacy, equality, and freedom of conscience. The proceedings in the magistrates’ court were stayed and the constitutional question was referred to the Constitutional Court as an abstract question of law.

Section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 was declared unconstitutional and invalid to the extent that it criminalised the private possession of indecent or obscene photographic material.

This was one of the Constitutional Court’s earliest and most important freedom of expression cases. It established that sexually explicit material is protected by the constitutional right to freedom of expression and that moral disapproval alone cannot justify criminal prohibition. The case marked a decisive break from apartheid-era censorship and affirmed the primacy of individual autonomy, privacy, and expressive freedom in South African constitutional jurisprudence.