MOKGORO J
[2]
The charges were based on the possession by two of the Applicants (Patrick and Inga
Case), (the “Case Applicants”), of some 150 video cassettes containing sexually explicit matter,
and by another of the Applicants (Stephen Roy Curtis), of five similar cassettes. The cassettes in
the possession of the Case Applicants were seized, along with various items of video-playback
and recording equipment, by the South African police in the course of a raid on the Cases’ Sandton
residence on February 1, 1993. The cassettes in the possession of Applicant Curtis were taken
from Mr. Curtis in a police operation conducted in a shopping centre parking lot in Northgate,
Johannesburg.
[3]
The Case Applicants made their first appearance in the Randburg Magistrates’ Court on
February 24, 1995. After a number of further appearances they applied in terms of section 103(3)
of the Constitution of the Republic of South Africa, Act 200 of 1993 (hereinafter, the
“Constitution”), for the proceedings to be postponed pending an application to the Supreme Court
regarding the constitutional status of section 2(1) of the Act. The application was granted without
hearing any evidence; proceedings in the Magistrates’ Court were suspended in terms of section
103(4)(b) of the Constitution, and referred to the Witwatersrand Local Division of the Supreme
Court. Appearing before Schabort, J., the Applicants applied to have the matter referred to this
Court in terms of section 103(4) of the Constitution, alleging that section 2(1) of the Act was
inconsistent with several sections of the Constitution. Applicants’ motion was granted, and the
matter duly referred. Proceedings against Applicant Curtis followed a parallel route to this Court,
and the two cases were heard together on September 5, 1995.
2