MOKGORO J Interpretations of the 1967 Act: The Ambit of the Definition of Indecent and Obscene [13] The sweeping ambit of the definition of indecent or obscene material in the Act was acknowledged by courts at an early stage. In S v R, it was noted that, [T]he legislature could not have overlooked the fact that any person can with comparative ease purchase in most bookshops, cafes or at bookstalls illustrated magazines, books, reproductions or reprints of pictures of art, or pin-ups, which portray or depict licentiousness or lust. Even the pictorial covers, wrappers or containers of some commercial articles, which portray or depict licentiousness or lust are easily obtainable in the open trade.20 [14] The Court thus recognised that the legislature had intentionally given a wide ambit to the purported definition, casting the proscriptive net as wide as possible. In an attempt to narrow the scope of application of the concept, the Court in S v H imposed a test under which the question in each case was what the “probable effect” of the material would be upon the likely consumer thereof: [W]hat the Court has to decide is whether, as a matter of objective judgment, these photographs do or do not have a tendency to deprave or corrupt 21. That test was, however, rejected in favour of an “objective”one in S v Nunes. It was concluded in that case that: Dit is duidelik . . . dat die toets is vir ‘n hof om te besluit of uit te maak, in elke geval wat voor hom kom, of die betrokke onbetaamlike of onwelvoeglike fotografiese materiaal is in terme van Art. 1, en dit is ‘n objektiewe toets.22 [15] That the crucial definition in the 1967 Act should have proven problematic in application is hardly surprising: the task of pinning down the scope of prohibitions of this kind has long vexed 20 1971 (2) SA 470 (T) 475 (per Joubert A.J.) 21 1974 (3) SA 405 (T) 408. 22 1975 (4) SA 929 (T) 931. See also S v Film Fun Holdings (Pty) Ltd. 1977 (2) SA 377 (E) 378-79 (rejecting the probable effect test in favour of the “objective” test). 8