MOKGORO J
conscience and religion (section 14(1)), and their right to procedurally fair administrative action
(section 24(b)).101 Those other rights are essential components of the hermeneutic environment
within which we go about applying section 15. But I do not propose to address the challenge
mounted in terms of the other enumerated rights per se, simply because I believe that this matter
can be quite satisfactorily disposed of under the head of section 15.
[65]
I have had the privilege of reading the admirably concise opinion of Didcott, J, in which
he arrives at conclusions similar to mine, but on the independent basis of Applicants’ right to
privacy, which is protected by section 13 of the Constitution. I must agree with his conclusion
that the 1967 Act unreasonably and unjustifiably infringes the constitutional right to privacy. I
would, however, respectfully part company from Justice Didcott to the extent that any part of his
opinion might be read to suggest that it is not in any circumstances the business of the state to
regulate the kinds of expressive material an individual may consume in the privacy of her or his
own home. It may be so that, as in England, a “South African’s home is his (or her) castle.” But
I would hesitate to endorse the view that its walls are impregnable to the reach of governmental
regulation affecting expressive materials. I therefore associate myself with the caveat expressed
by Justices Langa and Madala regarding Justice Didcott’s opinion.
[66]
Moreover, regardless of the conclusion we draw regarding the privacy issue, I believe that
it is important to mark clearly that the challenged provision of the 1967 Act cannot be reconciled
with the right to freedom of speech and expression embodied in section 15 of the Constitution.
With due consideration for the virtues of judicial economy and restraint, I do not believe it would
101
See the court a quo’s referral order, para 4, supra.
37
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