MOKGORO J phrase or anything of the like appended thereto seems calculated to invest prosecutors and courts with unlimited discretionary power over photographic and cinematic expression. [61] One need proceed no further to appreciate that the means embodied in section 2(1), read with the definition of obscene or indecent material, which includes within its overbroad compass a vast array of incontestably constitutionally protected categories of expression, are entirely disproportionate to whatever constitutionally permissible objectives might underlie the statute. Such a law is ipso facto not reasonable within the meaning of section 33(1)(a)(i).98 Those parties who would have this Court uphold the challenged provision in the 1967 Act have manifestly not carried their burden of showing that the limitation on free expression that is imposed by that provision passes muster under section 33. [62] Moreover, the hypothetical cases sketched above make it very clear that no “margin of appreciation” can rescue the statute as it stands. This is emphatically not an instance in which one could formulate a number of different means to achieve a legitimate objective, and persons of good faith might differ as to whether this or that statutory means is the optimal manner of attaining such objective while minimally impairing protected rights. In such a case, it may well be appropriate for a court to defer to the legislature’s policy choices as to how to effectuate its goals.99 Instead, 98 Given the scope for arbitrary enforcement afforded by a statute of such indeterminate reach, the statute arguably is also not, in the words of § 33(1) a law of general application, nor, in the language of § 33(1)(a)(ii), justifiable in an open and democratic society based on freedom and equality. See S. v Makwanyane 1995 (6) BCLR 665 (CC) 726, para 156 (“Arbitrariness, by its very nature, is dissonant with . . . core concepts of our new constitutional order.”) (per Ackermann, J.) However, it is not necessary for purposes of this matter to pursue that line of argument. I assume for purposes of this matter that the speech restricted by the challenged provision does not “relate[ ] to free and fair political activity”, § 33(1)(bb), and that there therefore is no burden upon the state to show that the limitation is necessary. 99 See Edwards Books and Art Ltd. v Q., [1987] 28 C.R.R. 1, 43 (noting need for a margin of appreciation for legislative choice). United States Courts will similarly show deference to legislative policy choices in testing for 35