MOKGORO J
be appropriate to dispose of a matter so prominently implicating crucial freedom of expression
issues without attending to the arguments in that regard that were rehearsed at some length, both
in the heads of argument submitted and in oral argument.
[67]
I am mindful of the fact that Applicants were charged with possession under the 1967 Act.
But it bears noting that Applicants were charged with possession, not of unlicensed arms and
ammunition, illicit drugs, or contraband, but of sexually explicit video tapes.
Attentive
consideration of the privacy issues raised by this matter, and more particularly of what limitations
upon the right to privacy may be reasonable and justifiable, leads us inexorably to closely
intertwined free expression issues. I am very well aware that what forms of state control of
sexually explicit expression are compatible with the values of free expression is a notoriously
difficult and contentious question. But that should not deter us from addressing the issue, where,
as here, the case referred to us so conspicuously interpellates fundamental free expression
concerns.
Can the Provision be Saved by Severance or a Restrictive Reading?
[68]
Having determined that the challenged provision is unconstitutionally overbroad, the
question arises whether it can be saved either by restrictive interpretation or by severance.
Counsel for the first and second intervening Parties submitted that “words like licentiousness, lust,
etc. could be scrapped while possession in section 2 could possibly be restrictively interpreted.”
I interpret the suggestion that the words licentiousness, lust etc. be “scrapped’ as a proposal that
they be severed from the Act. The submission going to the interpretation of possession amounts
to an appeal that we “read down” that word.
38
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