## Facts

- Section 2(1) of the **Indecent or Obscene Photographic Matter Act 37 of 1967** criminalized the **possession** of “indecent or obscene photographic matter,” defined very broadly to include depictions of sexual intercourse or lust.
- After the **Interim Constitution, 1993** came into force with a justiciable Bill of Rights, prosecutions under the Act continued in the magistrates’ courts.
- **Stephen Roy Curtis** was charged in the **Randburg Magistrates’ Court** for possessing **five sexually explicit video cassettes** seized during a police operation in a shopping-centre parking area in Johannesburg.
- In a related matter heard together with Curtis’s, **Patrick Case and Inga Case** were also charged under section 2(1) after police seized about **150 video cassettes** and video equipment during a raid at their home in Sandton.
- The accused sought postponements so that the constitutionality of section 2(1) could be determined before their criminal trials proceeded.
- The constitutional question was referred to the **Witwatersrand Local Division** and then to the **Constitutional Court** under the Interim Constitution’s referral procedure.
- The Constitutional Court dealt with the matter as an **abstract question of law** concerning the validity of section 2(1), rather than deciding only the applicants’ individual criminal liability.

## Issues

1. Whether **section 2(1)** of the Indecent or Obscene Photographic Matter Act, criminalizing mere possession of broadly defined “indecent or obscene” material, was inconsistent with **section 13** of the Interim Constitution (the **right to privacy**).
2. If section 13 was limited, whether the limitation was **reasonable and justifiable** under **section 33(1)** (the general limitations clause).
3. Whether it was necessary to decide additional alleged infringements (including **freedom of expression** and other rights raised in the referral) once the privacy issue was resolved.
4. If unconstitutional, what the proper **remedy** should be, including whether invalidity should be immediate or **suspended** to allow Parliament time to enact replacement legislation.

## Decision

- The Court held that **section 2(1)** unjustifiably limited the **right to privacy** and was therefore **inconsistent with the Interim Constitution**.
- The limitation could not be saved under **section 33(1)** because the provision’s reach was too broad and its intrusion into private life was disproportionate to the governmental aims advanced.
- Having decided the case on **privacy** grounds, the Court found it unnecessary to determine the other constitutional challenges (including freedom of expression).
- The Court declared section 2(1) **invalid**, but **suspended** the order of invalidity for **six months** from the date of judgment to give Parliament an opportunity to enact constitutionally compliant legislation and to avoid a gap in regulation.

## Legal Principles

- The constitutional right to **privacy** protects a sphere of personal life—especially in the home and other intimate settings—against state intrusion through criminal bans and the search-and-seizure powers that typically accompany them.
- A law that criminalizes **possession as such**, without requiring distribution, public display, exploitation, or other harm, strikes at the core of private autonomy and will require strong justification.
- Where a statutory definition of prohibited material is **overbroad** (for example, capturing any depiction of sexual intercourse or lust), it risks criminalizing conduct that falls within protected private life, making justification under a limitations clause difficult.
- Under **section 33(1)**, the state must show that limiting a right is reasonable and justifiable; a blanket possession offence that authorizes deep intrusions into private spaces will fail where less intrusive means could address legitimate concerns.
- A court may decide constitutional invalidity on one right (here, **privacy**) and decline to decide other alleged infringements where doing so is sufficient to dispose of the matter.
- When striking down legislation, a constitutional court may **suspend** invalidity for a fixed period to allow legislative correction and to prevent immediate regulatory gaps, particularly where narrower regulation may be warranted.

## Conclusion

The Constitutional Court held that section 2(1) of the Indecent or Obscene Photographic Matter Act unconstitutionally infringed the Interim Constitution’s privacy right by criminalizing mere possession of broadly defined sexual material, found the infringement unjustified under the limitations clause, and declared the provision invalid while suspending the order for six months to allow Parliament time to enact a constitutionally acceptable replacement.


Curtis v. Minister of Safety & Sec., 1996 (3) SALR 617 (CC)