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.

• Whether section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 is inconsistent with the freedom of expression guaranteed by section 15 of the interim Constitution
• Whether section 2(1) unreasonably and unjustifiably infringes the right to privacy protected by section 13 of the interim Constitution
• Whether the definition of 'indecent or obscene photographic matter' in section 1 of the Act is unconstitutionally vague and overbroad
• Whether sexually explicit expression falls within the scope of protection afforded by section 15 of the Constitution
• Whether the right to possess sexually explicit material is protected by section 15
• Whether section 2(1) can be saved by severance or restrictive interpretation under section 35(2) of the Constitution
• Whether a declaration of invalidity should be suspended under section 98(5) 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 immediate effect from the date of judgment. No order as to costs was made. The Court declined to suspend the order of invalidity.

Section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967, read with the definition of "indecent or obscene matter" in section 1, is unconstitutionally overbroad and violates both the right to freedom of expression (section 15) and the right to privacy (section 13) of the interim Constitution. The provision cannot satisfy the requirements of section 33(1) because: (1) the definition is so sweeping that it captures vast categories of constitutionally protected expression, including works of art, literature, educational materials, and health information; (2) the means employed are entirely disproportionate to any legitimate governmental objective; (3) a ban on mere possession of such material in the privacy of one's home constitutes an unreasonable and unjustifiable invasion of personal privacy; (4) the overbreadth cannot be remedied by severance or restrictive interpretation without impermissible judicial lawmaking that would involve rewriting the statute; and (5) sexually explicit expression falls within the protection of section 15, which encompasses both the right to transmit and receive information, as freedom of expression includes the right to be exposed to inputs from others and the right to possess materials for personal use.

Mokgoro J made several important observations: (1) Courts should adopt a generous interpretation of rights with limitations imposed only at the second stage of analysis under section 33; (2) There is inherent artificiality in categorizing expression as "political" or not, and few forms of artistic expression are devoid of political implications; (3) The right to privacy is not absolute and may be subject to limitation in certain circumstances (a qualification emphasized by Langa J and Madala J); (4) The Court should not attempt to delineate which categories of sexually explicit material may legitimately be regulated, as this is primarily the task of the legislature; (5) The Publications Act 42 of 1974, which regulates production, importation and distribution of such material, may itself face constitutional challenge in future. Didcott J cautioned against the Court venturing into broad pronouncements on pornography and obscenity law when replacement legislation was being prepared, to avoid fettering future adjudication with premature decisions. Madala J noted that child pornography should not enjoy constitutional protection and possession by or exposure of children to pornographic material should be prohibited, though this was not directly in issue. Sachs J observed that the Act suffered from both definitional overbreadth and "strategic overbreadth" by treating all obscene material in the same undifferentiated way regardless of context, with no attempt to balance free expression and privacy against equality and dignity. Several judges noted the elasticity required in responding to different circumstances, as illustrated by U.S. jurisprudence distinguishing Stanley v Georgia (protecting private possession) from New York v Ferber (permitting prohibition of child pornography).

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.