## Facts

- Police searched Tasco Luc De Reuck’s home in July 2000 and seized material alleged to be child pornography.
- De Reuck, a film producer, was charged in a regional criminal court with possessing and importing child pornography under § 27(1) of the Films and Publications Act 65 of 1996.
- The criminal proceedings were postponed to allow De Reuck to mount a constitutional challenge to § 27(1) and the statutory definition of “child pornography.”
- De Reuck argued the law was overbroad because it could criminalize possession for legitimate professional purposes (e.g., research, medicine, filmmaking, legal work).
- He contended the law unjustifiably limited freedom of expression and privacy and also violated equality due to differences between possession offenses and other pornography-related offenses.
- The High Court (Witwatersrand Local Division) rejected the constitutional challenge.
- De Reuck sought leave to appeal; the Constitutional Court heard the matter and decided the constitutional validity of § 27(1).

## Issues

1. Whether the statutory definition of “child pornography” was overbroad such that it captured protected expression or non-exploitative depictions.
2. Whether criminalizing the possession and importation of child pornography unjustifiably limited constitutional rights to freedom of expression and privacy.
3. Whether treating possession differently from distribution/broadcasting offenses violated the constitutional right to equality.
4. Whether an exemption mechanism for bona fide professional possession was a sufficient safeguard, or whether professionals should be categorically excluded from liability.

## Decision

- The Constitutional Court dismissed the appeal and upheld § 27(1) as constitutionally valid.
- The Court narrowly construed “child pornography” to require that the material, viewed objectively and as a whole, be predominantly intended to stimulate erotic (not aesthetic) feeling in its target audience through explicit depictions of children in specified sexualized contexts.
- The Court held that any resulting limits on expression and privacy were reasonable and justifiable as a law of general application, given the state’s objectives in protecting children and suppressing markets tied to child abuse.
- The Court rejected the equality challenge, finding a rational basis for differentiating possession from distribution/broadcasting offenses.
- The Court treated the statutory exemption process as a relevant safeguard for bona fide professional needs.

## Legal Principles

- Courts may adopt a constitutionally consistent, narrower construction of a statutory definition to avoid unconstitutional overbreadth while preserving legislative purpose.
- “Child pornography” may be confined to material that, assessed objectively and in context, is predominantly erotically stimulative and explicitly depicts children in specified sexual conduct or genital display, rather than artistic or educational depictions.
- Criminal prohibitions on possession and importation of child pornography can constitute reasonable and justifiable limits on expression and privacy when directed at protecting children’s dignity, preventing harm, and suppressing exploitative markets.
- Differential legislative treatment among related pornography offenses does not violate equality absent irrationality or unjustifiable discrimination.
- An exemption mechanism for good cause may mitigate the impact on legitimate professional possession when the core prohibition is otherwise constitutionally justified.

## Conclusion

The Court upheld the criminalization of possessing and importing child pornography, construing the definition narrowly to target erotically exploitative material and holding that the resulting limits on expression and privacy were justified by the compelling public interest in protecting children and suppressing child-exploitation markets.


De Reuck v. Dir. of Pub. Prosecutions (Witwatersrand Loc. Div.), 2004 (3) S. Afr. L.R. 345 (S. Afr. Const. Ct. 2004)