MOKGORO J [59] As the definition stands it could thus fairly be read to classify a virtually limitless range of expressions, from ubiquitous and mundane manifestations like commercial advertising to the most exalted artistic expressions, as indecent or obscene, simply because they contain oblique, isolated or arcane references to matters sexual, or deal frankly with a variety of social problems. Thus, a television documentary treating safe-sex and the causes of Aids may be construed as a manifestation of licentiousness. Cinematic versions of the work of South Africa’s most acclaimed playwrights and novelists may be labelled exhibitions or portrayals of lust, masochism or sadism. An illustrated public-service brochure dealing with incidents of sexual assault upon women could potentially be outlawed as a depiction of rape.96 A photograph of persons of the same gender in tender embrace could fairly be construed as manifesting homosexuality or lesbianism.97 [60] As if the already sweeping implications of the purported definition are not enough, the 96 There is authority in South African law for the deployment of hypothetical cases against allegedly vague statutes. See Amoils v Johannesburg City Council 1943 TPD 386, 390 (“‘the Court may always test the reasonableness of a by-law by its application in an extreme case.’ For a by-law that would be grossly unreasonable if applied in some cases covered by its language is also grossly unreasonable as a whole and cannot be saved by the fact that it could be reasonably applied to many or even the great majority of cases.”) In Canadian law, hypothetical cases are routinely used to test for overbreadth. See, e.g., R v Canadian Pacific Ltd., [1995] 99 C.C.C. (3d) 97, para 8 (“when conducting [an overbreadth] analysis, it will often prove necessary to consider hypotheticals.”) In R v Heywood, [1995] 120 D.L.R. (4th) 348, the court struck down the challenged statute, which made it an offence for certain categories of sex offenders to be present in public parks. The court pointed out that a convicted sex offender could be found guilty under the statute if he was found in a “remote wilderness park”, Id. 385. And it is no answer to assert that prosecutorial discretion would never be exercised so as to hit forms of expression which, it is common cause, deserve constitutional protection. This court held in S. v Zuma, 1995 (4) BCLR 401 (CC) 417, that even if there existed a judicial discretion to reject a confession because of doubts as to the voluntariness thereof, “that gives rise to no more than a possibility of an acquittal; the possibility of a conviction remains.” See also Attorney General v BBC, [1980] A.C. 303 (HL) 346 (“in so far as the Attorney-General invites the courts to rely on his ipse dixit in the confidence that all holders of that office will always be both wise and just about instituting proceedings . . . acceptance of his invitation would involve a denial of justice to those who are bold enough to challenge that a particular holder has been either wise or just.”) 97 I need express no opinion as to whether the definition’s singling out of homosexuality and Lesbianism constitutes a violation of § 8(2) of the Constitution, which prohibits unfair discrimination against persons on the grounds of, inter alia, sexual orientation. 34