MOKGORO J [16] With respect to the 1967 Act in particular, the root of the problem would appear to be that section 1 of the Act does not provide a true definition of indecent or obscene. Instead, following the recommendation of the Cronje Commission, 27 it offers a broad, inclusive and open-ended list of categories of photographic matter. Courts have thus been forced to resort to ad hoc enforcement of the Act. Sexually Explicit Expression and Section 15 of the Constitution [17] Under our new constitutional order, however, the legislature may enact and the executive may enforce law only subject to the norms set by the Constitution, section 15 of which protects the right of all persons to free expression. It is not for this Court to propose a definition that could live with that right. That would usurp the role of the legislature. Rather, it is our task here to consider, mindful of the Constitution’s directive that, if it is possible to save legislation by restrictive interpretation we should do so,28 whether the existing law comports with the right of free expression embodied in the Constitution. [18] As already noted, Applicants submitted that the Act constitutes an unreasonable and unjustifiable violation of their freedom of expression. In addition, Applicants argued that the definition of “indecent or obscene” in section 1, on which the prohibitions in section 2(1) of the Act are based, is vague and overbroad, and as such constitutes an unreasonable and unjustifiable limitation upon their rights of freedom of expression. Before proceeding any further, it is necessary that we consider two important threshold questions. Firstly, is sexually explicit material as a category of speech and expression protected by the Constitution? If so, secondly, is the 27 Cf. note 16, supra. 28 See § 35(2). 10

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