O’REGAN J and SACHS J
Yet, what is central to the character and functioning of the state is that the dictates of the
morality which it enforces, and the limits to which it may go, are to be found in the text
and spirit of the Constitution itself.60
[105] The state has accordingly not only the right but the duty to promote the foundational
values of the interim Constitution. One of the most important of these is to “create a new order
in which all South Africans will be entitled to citizenship in a democratic constitutional state in
which there is equality between men and women.”61 The question of commercial sex must
60
See R v Butler (1992) 8 CRR (2d) 1 at 30 where Sopinka J reasoned as follows:
“To impose a certain standard of public and sexual morality, solely because it reflects the
conventions of a given community, is inimical to the exercise and enjoyment of
individual freedoms, which form the basis of our social contract . . . . On the other hand,
I cannot agree with the suggestion of the appellant that Parliament does not have the
right to legislate on the basis of some fundamental conception of morality for the
purposes of safeguarding the values which are integral to a free and democratic society.
As Dyzenhaus . . . writes:
‘Moral disapprobation is recognized as an appropriate response when
it has its basis in Charter values.’
. . . [M]uch of the criminal law is based on moral conceptions of right and wrong and the
mere fact that a law is grounded in morality does not automatically render it illegitimate.
In this regard, criminalizing the proliferation of materials which undermine another
basic Charter right may indeed be a legitimate objective.”
61
As stated in the Preamble of the interim Constitution.
71
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