sexual health and human rights in the african region - The ICHRP

the application of this Act the constant endeavour of the population of the
Republic of South Africa to uphold a Christian view of life shall be recognized’.
The Indecent or Obscene Photographic Matter Act and the Publications Act have
now been supplanted by the Film and Publications Act of 1996. The Films and
Publications Act proceeds on the premise that prohibiting the possession and
dissemination of pornography are prima facie a violation of the rights to privacy
and expression, respectively, unless it can be justified under the Constitution.
The Act also proceeds on the premise that women and children are vulnerably
to harm and sexual violence and exploitation through distribution of
pornography. In this connection, the Act prohibits possession of visual display of
children under the age of 18 participating in, engaging in or assisting in sexual
conduct or lewd display of nudity. The section also prohibits distribution of the
same, as well as visual displays of explicit violent sexual conduct and explicit
sexual conduct which degrades a person and which constitutes incitement to
cause harm. The prohibitions do not apply, however, to bona fide scientific,
documentary, literary or artistic publications. 845
[15] The Constitutional Court of South Africa applies a proportionality test when
determining challenges to laws and practices that limits the right to freedom of
expression. The proportionality test is mandated by the limitation clause of the
South African Constitution – section 36 - which prescribes to courts specific
criteria to apply when adjudicating the limitation of a fundamental right. Section
36 says:
(1) The rights in the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant
factors, including
a. the nature of the right;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the relation between the limitation and its purpose; and
e. less restrictive means to achieve the purpose.
[16] The implication of section 36 is that right cannot be limited merely because there
is a competing interest such as protecting the welfare of society. Rights can only
be limited if the competing interests are important or compelling enough as to
outweigh the interest in respecting the individual right that is being limited. In
De Reuck v Director of Public Prosecutions, 846 the applicant challenged the
constitutionality of a prohibition under the Films and Publications Act to create,
produce, import or possess child pornography. The Court said that a ban as
unconstitutional unless it could be justified. The Court observed that the ban was
845 Sections 28 and 30 of the Films and Publications Act of 1996.
846 De Reuck v Director of Public Prosecutions 2004 (1) SA 406 (Constitutional Court of South Africa)
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