DIDCOTT J
state. Any ban imposed on my possession of such material for that solitary purpose invades the
personal privacy which section 13 of the interim Constitution (Act 200 of 1993) guarantees that
I shall enjoy. 131 Here the invasion is aggravated by the preposterous definition of “indecent or
obscene photographic matter” which section 1 of the statute contains.132 So widely has it been
framed that it covers, for instance, reproductions of not a few famous works of art, ancient and
modern, that are publicly displayed and can readily be viewed in major galleries of the world.
That section 2(1) clashes with section 13 seems to be indisputable.
[92]
Section 2(1) is said in addition to be incompatible with the possessor’s freedom of
expression which section 15(1) of the Constitution likewise protects. That argument depends on
the proposition, which we were urged to accept, that the protection thus provided is not confined
to the conveyance of information and the expression of ideas by verbal, pictorial or other means,
but encompasses also their reception by those to whom they are communicated or presented.
Freedom of expression, in its literal and ordinary sense, lacks that extra dimension. The broader
connotation which counsel ascribed to the concept has nevertheless, I am well aware, found favour
elsewhere in constitutional lore. We may be persuaded to follow suit on some future occasion that
calls for a decision on the point. In the meantime, I believe, the question should be left open
since, once a violation of section 13 is established, we have no need to consider any alternative
attack on section 2(1).
131
Ackermann J analysed and discussed the concept of personal privacy in paragraphs [65] to [79] of the judgment
written by him in Bernstein and Others v Bester NO and Others, which was delivered in this Court on 27 March
1996 but has not yet been reported. In an apt metaphor used in paragraph [67] he alluded to “the inner sanctum of
a person” that lay within “the truly personal realm”.
132
That goes thus : “ ‘indecent or obscene photographic matter’ includes photographic matter or any part thereof
depicting, displaying, exhibiting, manifesting, portraying or representing sexual intercourse, licentiousness, lust,
homosexuality, lesbianism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality or
anything of a like nature”.
51
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