MOKGORO J The Question Referred [4] The learned judge made an order referring the following question to this Court for consideration: [W]hether the provisions of section 2(1) of the Indecent or Obscene Photographic Matter Act, Act 37 of 1967, are inconsistent with the provisions of Chapter 3 of the Constitution, in particular the provisions of section 8 (equality), 13 (the right to privacy), 14(1) (the right to freedom of conscience), 15 (freedom of speech, expression and artistic creativity), 24 (administrative justice) and 33(1) (the permissible limitations of the fundamental rights entrenched). [5] The President of this Court directed that the referred question be dealt with as an abstract question of law. The Minister of Home Affairs and the Government of the Republic of South Africa (respectively, the first and second intervening parties in this matter), and the Applicant submitted briefs, as also did several amici curiae.1 The first and second intervening parties contended that it was necessary to lead evidence in order to determine the referred question. Such evidence, they argued, would facilitate this Court’s consideration of the reasonableness or otherwise of any limitations placed upon any fundamental rights. For the reasons that appear below, I believe that this matter can be disposed of as an abstract question of law. I therefore do not believe that such evidence is necessary. The 1967 Act and Obscenity Law in South Africa [6] A brief historical survey of obscenity law in South Africa furnishes a useful background to a consideration of the Act and its purpose. Pre-Union cases established that the common law crime of public indecency, defined as “conduct in public [which] of its very nature must tend to 1 People Opposing Women Abuse; NICRO Women’s Support Centre; Advice Desk for Abused Women; Rape Crisis, Cape Town; NISAA Institute for Women’s Development; Women Against Women Abuse (all of these organisations joined in a single set of papers); The Christian Lawyers Association; Centre for Applied Legal Studies; and The Freedom of Expression Institute (the latter two organisations joined in a single set of papers.) 3