MOKGORO J
declaration of invalidity is whether undesirable social consequences will flow from the immediate
striking of a statute, because a lacuna is created in the law.121 That, indeed, was the contention
of the parties who urged the Court to suspend invalidity. They argued forcefully that the immediate
disappearance of the challenged provision would lead to an uncontrollable proliferation of harmful
pornography.
[84]
We are unpersuaded by that contention. As set forth in paragraph 8 of this opinion, the
1967 Act is only one part (the less important part at that), of the system of regulation of sexually
explicit material in South Africa. The 1974 Act -- the practical enforceability of which is not in
any manner affected by our decision today -- is considerably broader in application than the 1967
Act. The 1974 Act, which provides for the prohibition of the production, importation and
distribution122 of material deemed “indecent or obscene or harmful to public morals”,123 has been
the mainstay of the system of regulation of sexually explicit material since its enactment. The Act
allows the prohibition of the possession of “undesirable” publications or objects,124 and also for
121
Although the Canadian Constitution does not contain a provision equivalent to the section 98(5) proviso, the
Canadian Supreme Court fashioned such a remedy in Reference re: Language Rights under the Manitoba Act,
[1985] 19 D.L.R. (4th) 1, 36, to deal with such a lacuna. The Canadian Supreme Court cited Lord Pierce’s dissent
in Madzimbamuto v Lardner-Burke, [1969] 1 A.C. (P.C.), in which Lord Pierce applied the doctrine of “state
necessity” in his analysis of the legal regime in the aftermath of the unlawful Unilateral Declaration of
Independence in Rhodesia, opining that to disregard all of the illegal provisions in the territory would create a
“vacuum and chaos.” 19 D.L.R. (4th) at 31. In Schachter v Canada, [1992] 10 C.R.R. (2d) 1, the Canadian
Supreme Court identified three circumstances under which it would suspend invalidity: “(A) striking down the
legislation without enacting something in its place would pose a danger to the public”; “(B) striking down the
legislation without enacting something in its place would threaten the rule of law” ; or, “(C) the legislation was
deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the
legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the
individual whose rights have been violated.” Id. 27.
122
§8(1)(a), (b) & (e).
123
§47(2).
124
§8(d) provides that “[n]o person shall -- . . . possess any publication or object, if the possession of that
publication or object has been prohibited under section 9(3) and that prohibition has been made known by notice
47
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