MOKGORO J
[16]
With respect to the 1967 Act in particular, the root of the problem would appear to be that
section 1 of the Act does not provide a true definition of indecent or obscene. Instead, following
the recommendation of the Cronje Commission, 27 it offers a broad, inclusive and open-ended list
of categories of photographic matter. Courts have thus been forced to resort to ad hoc enforcement
of the Act.
Sexually Explicit Expression and Section 15 of the Constitution
[17]
Under our new constitutional order, however, the legislature may enact and the executive
may enforce law only subject to the norms set by the Constitution, section 15 of which protects the
right of all persons to free expression. It is not for this Court to propose a definition that could
live with that right. That would usurp the role of the legislature. Rather, it is our task here to
consider, mindful of the Constitution’s directive that, if it is possible to save legislation by
restrictive interpretation we should do so,28 whether the existing law comports with the right of
free expression embodied in the Constitution.
[18]
As already noted, Applicants submitted that the Act constitutes an unreasonable and
unjustifiable violation of their freedom of expression. In addition, Applicants argued that the
definition of “indecent or obscene” in section 1, on which the prohibitions in section 2(1) of the
Act are based, is vague and overbroad, and as such constitutes an unreasonable and unjustifiable
limitation upon their rights of freedom of expression.
Before proceeding any further, it is
necessary that we consider two important threshold questions. Firstly, is sexually explicit material
as a category of speech and expression protected by the Constitution? If so, secondly, is the
27
Cf. note 16, supra.
28
See § 35(2).
10
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