The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

De Reuck

De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC) CASE SUMMARY Facts Section () of the Films and Publications Act  of  prohibits the creation, production, importation, or possession of child pornography. The appellant, a film producer, was charged in the regional Magistrate’s Court with the offence of possession of child pornography. He challenged, in terms of breadth and vagueness, the constitutionality of section () read with the definition in section  on the grounds the sections infringed his rights to privacy, freedom of expression, and equality. Child pornography is defined in section  as follows: “[C]hild pornography” includes any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of  years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children. Legal History The trial in the Magistrates’ Court was adjourned to enable the appellant to approach the High Court in Johannesburg for a ruling on the constitutionality of the challenged De Reuck provisions. The High Court dismissed his challenge. The appellant then sought leave to appeal directly to the Constitutional Court against the finding of the High Court. Issues Is the prohibition on the possession of child pornography, as defined in the act, inconsistent with the rights to privacy, freedom of expression, and equality? Decision of the Constitutional Court After carefully considering the various components of the definition of child pornography , the court considered whether section () of the act violated the right to equality and held that the differentiation between distributors and possessors of child pornography was rationally connected to a legitimate purpose and did not offend the right to equality. The court then held that both the right to privacy and the right to freedom of expression were infringed by the provision. However, the limitation of these rights was found to be reasonable and justifiable because the prohibition served to protect the dignity of children. The affront to dignity took three forms: the direct harm to the victims of child abuse; the potential harm to all children from “grooming” for the industry and the (ostensible overall societal) “harm to human dignity and perception of all children when a society allows sexualized images of children to be available” (paragraph ). Order The court dismissed the appeal and confirmed the order of the High Court. Comment The court justifies the limitation of the right to privacy in part by relying on the risk of harm to children that is presented by child pornography. Is there a risk that the possibility of “harm” may be used by the courts as a pretext on which to impose the judges’ own moral views on society? Who determines what constitutes “harm” to society generally? How much interference in the inner sanctum of a person’s life does the Constitution tolerate? Is there really harm to the “dignity” of children in animated child pornography that did not involve any actual children? DEPUTY CHIEF JUSTICE LANGA The Primary Meaning of “Child Pornography” [] [. . .] According to The New Shorter Oxford English Dictionary, “pornography” means: The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; literature, etc., containing this.  De Reuck This is a useful guide. I would observe, however, that erotic and aesthetic feelings are not mutually exclusive. Some forms of pornography may contain an aesthetic element. Where, however, the aesthetic element is predominant, the image will not constitute pornography. With this qualification, the dictionary definition above fairly represents the primary meaning of “pornography.” “Child pornography” bears a corresponding primary meaning where the sexual activity described or exhibited involves children. In my view, the section  definition is narrower than this primary meaning of child pornography. [] The section  definition is, in several respects, narrower than the primary meaning. It is in fact more precise: (a) it refers to “any image,” thereby excluding written descriptions; and (b) it lists various forms of conduct that may not be depicted; I shall refer to these as “prohibited acts.” This is narrower, and more precise, than the dictionary’s reference to “explicit . . . exhibition of sexual subjects or activity.” It follows that the prohibited acts are a closed list of...