SACHS J
of possession which is before us and I write to add my voice to the view that the right to privacy
may be limited in certain circumstances.
[108] SACHS J: Mr Justice Potter Stewart might have known obscenity when he saw it, but with
respect, I do not, nor would I lay claim to any intuitive and immediate recognition of what is
indecent. I am sure that the great majority of South African judicial officers, not to speak of police
and prosecuting authorities, or of the general public, are in the same position. Far from the
definition in the Act helping us, it amplifies the confusion by: introducing such vague concepts as
manifesting licentiousness and lust; discriminating against same-sex activities; and permitting the
penalization of possession of perhaps half the videos on sale in the most respectable of shops, and
possibly three quarters of coffee-table art books, let alone many tastefully illustrated copies of the
Bible or Shakespeare.
[109] Yet, if the only defect in the Act was definitional overbreadth, it might have been possible
to rescue something of it by appropriate definitional straitening. A well-trained judicial laser,
coupled with a benevolent reading-down gaze, might have established a core residue of
legitimately focussed state intervention in relation to the two protected interests well delineated
by Mokgoro J and Didcott J in their respective judgments, namely, expression and privacy.
[110] In my view, however, even more serious and less remediable than the definitional
overbreadth, is what I would regard as the strategic overbreadth. All obscene material is in effect
treated in the same blunt and undifferentiated way: its possession in any circumstances, and within
any context, is made a criminal offence. The limited exemptions provided for are based on
bureaucratic rather than constitutional controls. There is no attempt to distinguish, as has been
60
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières