Court name
Supreme Court of Appeal of South Africa
Case number
733 of 2015

Du Toit v The Magistrate and Others (733 of 2015) [2016] ZASCA 15 (11 March 2016);

Law report citations
[2016] 2 All SA 328 (SCA)
2016 (2) SACR 112 (SCA)
Media neutral citation
[2016] ZASCA 15
Coram
Ponnan JA
Cachalia JA
Peste AJA
Mbha JA
Victor AJA

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA


JUDGMENT


Reportable


Case
No:  733/2015


In
the matter between:


RUDOLPH
JOHAN DU TOIT                 
                                                         

    APPELLANT


and


MAGISTRATE
JOHANNA NTSHINGHILA                                        

    FIRST RESPONDENT


REGIONAL
COURT MAGISTRATE: P NEL                

                   
SECOND RESPONDENT


DIRECTOR
OF PUBLIC PROSECUTIONS, NORTH


GAUTENG                                                                                          

   THIRD RESPONDENT


KAREL
PETRUS JAKOBUS GELDENHUYS             
                    

FOURTH RESPONDENT


THE
MINISTER OF THE SOUTH AFRICAN POLICE


SERVICE                                                     

                                      

    FIFTH RESPONDENT


THE
MINISTER FOR ARTS AND CULTURE                                    

    SIXTH RESPONDENT


                                   


Neutral
citation:    
Du Toit v Ntshinghila
(733/2015) [2016] ZASCA 15 (11 March 2016)



Coram:                    
Ponnan, Cachalia, Petse, Mbha JJA and Victor
AJA



Heard:           
          15 February
2016



Delivered:    
            11
March 2016


Summary:          
    
Criminal Law and Procedure –
disclosure – accused charged with possession
of child pornography – whether prosecution obliged to furnish
accused with copies of images said to
constitute child pornography as
part of pre-trial disclosure.


ORDER



On appeal from:
Gauteng Division of the High Court, Pretoria
(Maumela J and Monaledi AJ sitting
as court of first instance):


(a)
      The appeal is upheld.


(b)      
The order of the high court is set aside and replaced by:


           
The
application is dismissed.’    


JUDGMENT


Ponnan
JA (
Cachalia, Petse, Mbha JJA and Victor
AJA concurring):


[1]
[T]he
use of children as . . . subjects of pornographic materials is very
harmful to both the children and the society as a whole’
(
New
York v Ferber

458 US 747 (1982)).
Ferber
observed
that child pornography generates a set of harms distinct from those
generated by pornographic depictions of adults –
harms related
to the sexual abuse of children. T
he
Films and Publications Act 65 of 1996 (the Act),
[1]
enacted
to inter alia address the problem of child pornography,

has, amongst
its objects, the

protection
of children from exposure to disturbing and harmful materials and
from premature exposure to adult experiences (s 2
(b))
and to make the use of children in – and their exposure to –
pornography punishable (s 2
(c)).
As it was put in
De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) & others

[2003] ZACC
19
; 2004 (1) SA 406 (CC) para 61:
[2]


The
purpose of the legislation is to curb child pornography which is seen
as an evil in all democratic societies. Child pornography
is
universally condemned for good reason. It strikes at the dignity of
children, it is harmful to children who are used in its
production,
and it is potentially harmful because of the attitude to child sex
that it fosters and the use to which it can be put
in grooming
children to engage in sexual conduct’.


[2]
Pornography is notoriously difficult to define. In
Jacobellis
v Ohio (No 11)
[1964] USSC 164; 378
US 184
, Justice Stewart intuitively opined: ‘I shall not today
attempt further to define the kinds of material I understand to be

embraced within that shorthand description [hard-core pornography],
and perhaps I could never succeed in intelligibly doing so.’

Defining child pornography is no less difficult.[3]
Child
pornography’,

according to
s 1 of the Act,


includes
any image, however created, or any description of a person, real or
simulated, who is or who is depicted, made to appear,
look like,
represented or described as being under the age of 18 years-


(a)
engaged in
sexual conduct;


(b)
participating
in, or assisting another person to participate in, sexual conduct; or


(c)
showing or
describing the body, or parts of the body, of such a person in a
manner or in circumstances which, within context, amounts
to sexual
exploitation, or in such a manner that it is capable of being used
for the purposes of sexual exploitation.’


In
terms of s 24B(1):
[4]
‘any person who unlawfully possesses . . . any film, game or
publication which contains depictions, descriptions or scenes
of
child pornography or which advocates, advertises, encourages or
promotes child pornography or the sexual exploitation of children,

shall be guilty of an offence’.   


[3]
On 13 May 2010 members of the South African Police Services, armed
with a search warrant, conducted a search of the home of
Mr Rudolph
du Toit. Various items including four mobile phones, compact disks,
memory sticks and a laptop were seized. On 9 November
2010 he was
charged with the possession of child pornography in contravention of
the Act. On 8 July 2011 and before the commencement
of his trial, Mr
du Toit sought an order from the presiding Magistrate in the Pretoria
North Regional Court that the prosecution
be directed to furnish him
with copies of the images said to constitute the offence charged. It
was the position of Mr du Toit
that he was entitled, without more, to
be provided with copies of the images which are alleged to constitute
child pornography.
He accordingly refused to take up the prosecutor’s
offer of disclosure by private viewing:  the prosecutor, who
until
then had objected to reproducing the images and furnishing
copies thereof to the defence, offered to put arrangements in place
for him, his legal representatives and any expert for the defence to
view the images at an office at either the local police station
or
the court.


[4]
The Magistrate ruled that the arrangement proposed by the prosecution
was ‘sufficient/adequate’ and accordingly
dismissed Mr du
Toit’s application. Aggrieved by that ruling, he applied to the
then North Gauteng High Court (high court)
for an order in the
following terms:     


1.      
That the search warrant issued by the [Pretoria North District
Magistrate] on 10 May 2010
be declared unlawful and be set aside.


2.        
That [the Respondents] be ordered to forthwith restore to [Mr du
Toit] all the
assets seized as recorded in Annexure “RJ3”.


3.        
That Section 24(B)(1) of the Films and Publications Act . . . be
declared inconsistent with the Constitution and invalid.


4.        
That the decision by the [presiding Regional Court Magistrate] be
reviewed and
set aside.


5.        
That the Respondents who oppose the application be ordered to pay the
costs of
the application.’


Aside
from the Director of Public Prosecutions, North Gauteng (the DPP),
none of the other respondents participated in the proceedings
before
the high court.


[5]
The high court issued the following order:


1.       
That the application for the search warrant to be set aside is
dismissed.


2.        
That the application for section 24(B)(c) of the Films and

Publications Act . . . to be declared to be unconstitutional and
invalid is dismissed.


3.        
That the application by [Mr du Toit] in the alternative for
paragraphs 3.3 and
4.4 of the answering affidavit to be struck out is
dismissed.


4.        
That the decision by the [presiding Regional Court Magistrate] be
reviewed and
set aside.


5.        
That each party is to pay its own costs.’


[6]
Both Mr du Toit and the DPP sought and obtained leave from the high
court to appeal to this court, the former against paragraphs
1 and 2
of its order and the latter against paragraph 4. No steps were taken
by Mr du Toit to prosecute his appeal, which has accordingly
lapsed.
This appeal by the DPP, which is unopposed, is thus concerned solely
with the correctness of the order of the high court
to review and set
aside the order of the presiding Regional Court Magistrate which was
to the effect that the prosecutor did not
have to furnish Mr du Toit
with copies of the images constituting the charge.


[7]
In arriving at its conclusion, the high court (per Maumela J,
Monaledi AJ concurring) reasoned (paras 29-31 of its judgment):


Section
35(3)(
b)
confers upon the Applicant, as a person who stands accused, the right
to have adequate time and facilities to prepare a defence.
It is to
be expected that Applicant may seek to know exactly what the specific
allegations are that the state aims to level against
him in the
trial. To that end, the material or articles seized from him during
the conduct of the search he complains about become
objects of his
focus.


Furthermore,
Section 35(3)(i) of the Constitution confers upon him the
right to adduce and to challenge evidence. Applicant cannot be
expected to second guess
in terms of the particular aspects that from
the basis of the charges against him. He needs the same materials or
articles to prepare
his defence.


This
court does not see a reason why in this instance the rights of the
Applicant stemming out of Section 35 of the Constitution
. . . should
be subjected to limitation. It sees no reason why copies and not
originals, cannot be availed to the Applicant, provided
he shall be
allowed to verify such copies against originals if that need arises.
It is that verification that may be subjected
to suitable
conditions.’


[8]
A useful starting point is the Canadian Supreme Court decision of R
v Stinchcombe [1991] 3 SCR 326; 18 CRR (2d) 210; 68 CCC
(3d) 1
(SCC), in which Sopinka J set out the following principles
with regard to the prosecution’s disclosure obligation:


(a)      
Justice is better served by the elimination of surprise.


(b)       
The fruits of the investigation in possession of the prosecution are
not the property
of the prosecution but of the public to ensure that
justice is done.


(c)       
The defence has no obligation to assist the prosecution and is
entitled to be adversarial.


(d)       
The search for the truth is advanced by disclosure of all relevant
material.


(e)       
The prosecution must retain a degree of discretion in respect of
these matters.


(f)        
The exercise of the prosecution’s discretion should be subject
to review
by the court.


(g)      
There is a general principle that disclosure is not to be withheld if
there is a reasonable
possibility that failure to disclose may impede
or may impair the accused’s right to make full answer and
defence which is
a principle of fundamental justice protected under
the Constitution.


(h)       
And, it is undesirable to lay down fixed rules relating to
disclosure, instead each
case must be determined on its own merits.’


Stinchcombe
set out three situations where the prosecution may
properly exercise its discretion to refuse disclosure, namely if the
information
sought is: (a) beyond its control; (b) clearly
irrelevant or (c) privileged. However, in applying
Stinchcombe,
R v Beauchamp 2008
CanLII 27481; 171 CRR (2d) 358; 58 CR (6th) 177 (ON SC) para 35, did
point out
that those three factors were not
intended to be closed and limited.


[9]
An allegation that prosecutorial disclosure is inadequate is an
assertion that an accused person’s right ‘to make
full
answer and defence’ – a right afforded protection under
our Constitution (s 35(3)) – has been infringed.
In
Shabalala
& others v Attorney-General, Transvaal & another

  [1995] ZACC 12; 1996 (1) SA 725; 1995 (2) SACR 761 (CC), the
Constitutional Court (per Mahomed DP for a unanimous court) held that
the blanket docket privilege formulated in
R
v Steyn

 
1954
(1) SA 324 (A)

could not survive the ‘discipline of the Constitution’.
The court declared that the question was a fair trial question

(rather than an access to information question), particularly one
relating to the right to be informed with sufficient particularity
of
the charge. However, although entitlement to disclosure is a matter
of constitutional right, the Constitutional Court stipulated
(as did
Stinchcombe)
that such right was not an unqualified one. Instead, in each
instance, it was for the court to exercise a proper discretion by

balancing the degree of risk involved in attracting the consequences
sought to be avoided by the prosecution (if access is permitted)

against the degree of the risk that a fair trial might not ensue (if
such access is denied).[5]
What is essentially required is a judicial assessment of the balance
of risk not wholly unanalogous to the function which a judicial

officer performs in weighing the balance of convenience in cases
pertaining to interdicts pendente
lite
.[6]
Accordingly, a rather broad and flexible approach is envisaged
against which to measure the opportunity of the defence in each

particular case to present its case effectively to the court.


[10]
What is sought in this case is disclosure of the fruits of the
investigation, in the hands of the prosecution, upon which reliance

will be placed to establish criminal liability. According to
Shabalala (para 55):


What
the prosecution must therefore be obliged to do (by a proper
disclosure of as much of the evidence and material as it is able)
is
to establish that it has reasonable grounds for its belief that the
disclosure of the information sought carries with it a reasonable

risk that it might lead to the identity of informers or the
intimidation of witnesses or the impediment of the proper ends of
justice. It is an objective test. It is not sufficient to demonstrate
that the belief is held bona
fide.
It must be shown that a reasonable person in the position of the
prosecution would be entitled to hold such a belief.’



It
is the submission of the prosecution that its alternative proposal
for a private viewing at a mutually convenient time at an
office in
the police station or court satisfies the prosecutor’s
disclosure obligations. And, that it does so in a way that
permits Mr
du Toit to make full answer and defence, yet does not further
compromise any of the privacy interests of the persons
portrayed on
the images. This is thus a case where it is necessary to determine
whether there are countervailing interests of significance
that
warrant a departure from the normal method of disclosure by copies.


[11]
In an enquiry such as the present we are enjoined by the Constitution
to promote values that underlie an open and democratic
society based
on human dignity and to consider international law.
[7]
In striking the appropriate balance adequate weight must be accorded
to the interests of the children.
Article
3(1) of the United Nations Convention on the Rights of the Child,
1989 (UNCRC)
[8]
requires that: ‘In all actions concerning children, whether
undertaken by public or private social welfare institutions,
courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.’

Closer to home, this is echoed in art 4(1) of the
African Charter on the Rights and Welfare of the Child, 1990
(ACRWC).
[9]
To those international and regional instruments, must be added the
Optional Protocol to the Convention on the Rights of the Child
on the
sale of children, child prostitution and pornography, 2000 (
OPSC)[10]
which in art 8(3), provides:


State
Parties shall ensure that, in the treatment by the criminal justice
system of children who are victims of the offences described
in the
present Protocol, the best interest of the child shall be a primary
consideration.’


The
Children’s Act 38 of 2005 was drafted pursuant to South
Africa’s obligations under the UNCRC, the ACRWC and the

Constitution. Sections 10, 14 and 15 of the Children’s Act are
a cluster of provisions designed to ensure that children’s

rights are protected and their dignity is upheld in any proceedings
affecting them.[11]



[12] In terms of s
28(2) of the Constitution, in all matters concerning children
(including litigation)
[12]
their best interests are of paramount importance. The Constitutional
Court has stated that s 28(2) must be interpreted so as to
promote
the foundational values of human dignity, equality and freedom.
[13] 
The reach of s 28(2) extends beyond those rights enumerated in s
28(1): it creates a right that is independent of the
other
rights specified in s 28(1).
[14]
Section 28(2), read with s 28(1), establishes a set of rights that
courts are obliged to enforce.
[15]
In
S
v M (Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
; 2008 (3) SA 232;
2007
(2) SACR 539
(CC) para 15, the Constitutional Court observed that:


The
ambit of the provisions is undoubtedly wide. The comprehensive and
emphatic language of s 28 indicates that just as law enforcement must

always be gender-sensitive, so must it always be child-sensitive;
that statutes must be interpreted and the common law developed
in a
manner which favours protecting and advancing the interests of
children; and that courts must function in a manner which at
all
times shows due respect for children's rights. As Sloth-Nielsen
pointed out:  


[T]he
inclusion of a general standard (‘the best interest of a
child’) for the protection of children’s rights
in the
Constitution can become a benchmark for review of all proceedings in
which decisions are taken regarding children. Courts
and
administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on
children’s
lives.”’


[13]
There exists in this case the reasonable privacy interests of the
children who are depicted in the images. There is also a
significant
public interest in ensuring that no duplication or distribution
occurs in the disclosure process. Those interests ought
not to be
further compromised by the copying, viewing, circulation or
distribution of the images beyond what is reasonably necessary
to
give effect to Mr du Toit’s constitutional right. The US
Supreme Court has consistently upheld restrictions on First Amendment

freedoms to combat the ‘extraordinary problem’ of child
pornography (see Osborne v Ohio [1990] USSC 54; 495
US 103
(1990);
New York v Ferber
(above)). In Ferber,
the US Supreme Court pointed out that: ‘It is evident beyond
the need for elaboration that a State’s interest in
safeguarding the physical and psychological well-being of a minor is
compelling’ and that ‘[a] democratic society rests,
for
its continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens.’ It added that:
‘the
prevention of sexual exploitation and abuse of children constitutes a
government objective of surpassing importance’.
Likewise, in
De
Reuck
(para 66),
the Constitutional Court observed:


The
harm of child abuse is real and ongoing and the State is under a
constitutional obligation to combat it. To hold otherwise would
place

the
State in jeopardy of having

to
close
the

gate,
as it were, after

the
horse

has
bolted

and
might signal a breach by the State of its obligation towards
children.’


And
it pointed out that (para 63):


Children’s
dignity
rights
are
of
special
importance.
The
degradation

of
children
through
child
pornography
is
a
serious
harm
which
impairs
their
dignity
and
contributes to a culture which devalues their worth. Society has
recognised that childhood is a special stage in life

which
is
to
be
both
treasured
and
guarded.
The
State
must
ensure
that
the
lives
of
children
are
not
disrupted

by
adults
who
objectify
and
sexualise
them
through
the
production
and
possession
of
child
pornography. There is obvious physical harm suffered by the victims
of sexual abuse and by those children forced to yield
to the demands
of the paedophile and pornographer, but there is also harm to the
dignity and perception

of
all
children
when
a
society
allows
sexualised
images
of
children
to
be
available.
The
chief
purpose

of
the
statutory
prohibitions
against
child
pornography
is
to
protect
the
dignity,
humanity
and
integrity of children.’


[14]
The advertising and selling of child pornography provide an economic
motive for and are thus an integral part of the production
of such
materials.  A child compromised by a pornographer’s camera
has to go through life knowing that the image is
probably circulating
within the mass distribution network for child pornography. Because
the child’s actions are reduced
to a recorded image, the
pornography may haunt him or her long after the original recording.
Citing a wealth of evidence, the
Ferber
court found that the distribution of child
pornography abused children by creating a permanent record of the
child’s participation.
This record, in turn permitted the harm
to the child to be exacerbated each time the material was circulated
and led to the creation
of distribution networks that fostered
further exploitation. (
US v Mathews
[2000] USCA4 70; 209 F3d 338 (4th Cir 2000).)
De Reuck
(para 64) emphasised that: ‘The
psychological harm to the child who was photographed is exacerbated
if he or she knows that
the photograph continues to circulate among
viewers who use it to derive sexual satisfaction.’
It
follows that the distribution network for child pornography must be
closed if the production of material which requires the sexual

exploitation of children is to be effectively controlled (New
York v Ferber
).


[15]
Maintaining the integrity of the administration of justice is also an
important principle of fundamental justice. According
to
R
v Corbett
(1988) 34 CRR 54 para 164, ‘.
. . the principles of fundamental justice operate to protect the
integrity of the system itself. . .’
In
R
v O’Connor
[1995] 4 SCR 411; (1995) 33 CRR (2d) 1; 103 CCC
(3d) 1
(SCC), a
case concerned with
disclosure of therapeutic records of a sexual assault complainant,
the Supreme Court of Canada held that the
Charter guarantees
individuals a fundamentally fair trial and not the fairest of all
possible trials. As it was put in
R v
Blencowe
[1997] 46 CRR (2d) 175:


In
R
v

Stinchcombe
. . . the Supreme Court of Canada held that the constitutional
entitlement of an accused to full disclosure of the prosecutor’s

case does not
require
production
of documentary
originals.
The constitutional obligation may be answered,
inter
alia,
by permitting
inspection
of originals. In other words, what the Constitution requires is
prosecutorial disclosure. It does
not
insist upon a particular
form
of disclosure as a constitutional prerequisite.’


[16]
The DPP pointed to its
Prosecution
Policy Directive

(Part 24:
Sexual Offences),
[16]
which provides:


7.       
With regard to dockets that contain visual images of child
pornography, prosecutors
need only allow the defence access thereto
and should not provide copies thereof unless so ordered by the court.
Dockets containing
child pornography must at all times be kept at the
official workplace and stored in a secure locked location.’


That
policy directive, which was invoked by the DPP and not challenged by
Mr du Toit, did not merit even a mention in the judgment
of the high
court. In
Stinchcombe,
Sopinka J reserved for the prosecution a degree of discretion in
respect of matters of this kind. It seems to me that the prosecution

should be allowed to exercise that discretion, if necessary, to
protect the privacy interests of members of the public or
to protect the public interest by preventing the commission of
further criminal acts, which could possibly occur, if it were
ordered
to disclose information without putting adequate safeguards in place.
To deprive the prosecution of that discretion,
could
possibly, to borrow from
Shabalala (para
55) impede the ends of justice. Importantly, the process for
disclosure contemplated by Sopinka J, like the policy directive,
has
a built-in protection for the accused to ensure that the prosecution
exercises its discretion in a fair and just manner by
providing for
review by the court. In my view given the pernicious and lasting
damage caused to children by the distribution of
child pornography,
there is much to recommend the practice directive, which broadly
accords with the approach postulated in
Stinchcombe.


[17]
In
Beauchamp (para
52 and 55) – a case concerned with whether the prosecution was
required to disclose encrypted files (that it had been
unable to
de-encrypt) – the Ontario Superior Court underscored the
importance of the proper exercise of the prosecutorial
discretion in
relation to child victims in these terms:


Consider
the following example. If there was a reasonable possibility that the
encrypted files contained child pornography, it would
not be
consistent with principles of fundamental justice to provide a copy
of the encrypted pornographic material to the accused,
in a form
which could be used thereby committing further criminal acts and
further denigrating the dignity and privacy of the child
victims. To
order disclosure of such encrypted information without adequate
safeguards to prevent further use would bring the administration
of
justice into disrepute. The Crown would have a duty to view the
material and exercise its discretion and ensure that the encrypted

files were not used to commit further criminal acts or affect the
privacy interests and dignity of the victims.


.
. .


I
find it would bring the administration of justice into disrepute in
the eyes of reasonably informed members of the public, if
the court
ordered the Crown to release unknown information, which was seized
under search warrants and which is the property of
the public, when
there is a reasonable possibility that the information released could
be used to commit further criminal acts
and to breach the privacy
interests of the individuals whose credit and debit card information
may be contained in the encrypted
files.’


[18]
In an all too brief a judgment, the high court approached the enquiry
as if the entitlement to disclosure was an absolute one.
It is clear
that it is not. In the ordinary course of events, disclosure should
be by copy. But, it is also fair to say that where
there are other
conflicting rights at stake, the constitutional requirement may be
adequately met by providing an opportunity for
private viewing. Given
the secrecy inherent in the production and distribution of child
pornography, it seems to me that the prosecution
properly exercised
its discretion, consistent with
contemporary
principles and values,
to refuse to make
the images available to the defence. And, that it did so on
demonstrably justifiable grounds. I am thus satisfied
that on the
approach of the DPP the desired result and necessary balance has been
achieved in this case.
It follows that the
appeal by the DPP must succeed.


[19]
In the result:


(a)
      The appeal is upheld.


(b)      
The order of the high court is set aside and replaced by:


The
application is dismissed.’   


_________________


V
M Ponnan


Judge
of Appeal


APPEARANCES:


 


For
the Appellant:                           

No appearance


 


For
the Respondent:          
           
A
Coetzee


                                                           

Instructed by:


                                                           

Director of Public
Prosecutions, Pretoria


                                                           

Director of Public
Prosecutions, Bloemfontein                         

                       









[1]
The Act
repealed the Indecent or Obscene Photographic Matter Act 37 of 1967
and the Publications Act 42 of 1974 and created a
new comprehensive
regulatory framework for films and publications (
De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) & others

[2003] ZACC 19; 2004 (1) SA 406 (CC) (
De
Reuck
)
para 7).




[2]
At the time
of
De
Reuck

(above), child pornography was defined in s 1 of the Act as ‘any
image, real or simulated, however created, depicting a
person who is
or who is shown as being under the age of 18 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’. The Court confirmed (para 21) that
on a proper interpretation, this definition
contained an exhaustive
list of what constitutes child pornography. The current definition
of child pornography is wider.




[3]
Per Langa
DCJ,
De
Reuck

(above) para 19.




[4]
Section 24B
headed ‘Prohibition, offences and penalties on possession of
films, games and publications’ provides:


(1)
Any person who-


(a)
unlawfully possesses;


(b)
creates, produces or in any way contributes to,
or assists in the creation or production of;


(c)
imports or in any way takes steps to procure,
obtain or access or in any way knowingly assists in, or facilitates
the importation,
procurement, obtaining or accessing of; or


(d)
knowingly makes available, exports, broadcasts or
in any way distributes or causes to be made available, exported,
broadcast or
distributed or assists in making available, exporting,
broadcasting or distributing, any film, game or publication which
contains
depictions, descriptions or scenes of child pornography or
which advocates, advertises, encourages or promotes child
pornography
or the sexual exploitation of children, shall be guilty
of an offence.’




[5]
Shabalala
(above) paras 36-39. See also Frank Snyckers & Jolandi le Roux
‘Criminal Procedure: Rights of the Arrested, Detained
and
Accused Persons’ in Stuart Woolman & Michael Bishop (eds)
Constitutional
Law of South Africa

2 ed (Revision Service 6, 2014) at 51-101 – 51-186.




[6]
Shabalala
(above) para 55; Snyckers & Le Roux (above) at 51-109; Etienne
du Toit
et
al

Du
Toit: Commentary on the Criminal Procedure Act

(Revision Service 54, 2015) at 21-1 – 21-3 and 23-42J.




[7]
The
relevant sections of the
Constitution
provide:


39
Interpretation of Bill of Rights


(1)
When interpreting the Bill of Rights, a court, tribunal or forum-


(a)
must promote the values that underlie
an open and democratic society based on human dignity, equality and
freedom;


(b)
must consider international law; and


(c)
may consider foreign law.’


And:


233
Application of international law


When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law.’




[8]
Adopted and
opened for signature, ratification and accession by United Nations
General Assembly resolution 44/25 of 20 November
1989, entered into
force 2 September 1990, in accordance with Article 49. Signed by the
Republic of South Africa in 1993 and
ratified on 16 June 1995.




[9]
Adopted by
the Organisation of African Unity in 1990 and entered into force on
29 November 1999. OAU Doc. CAB/LEG/24.9/49 (1990).
Signed by the
Republic of South Africa on 10 October 1997, ratified on 7 January
2000 and deposited on 21 January 2000. Article
4(1) provides: ‘
In
all actions concerning the child undertaken by any person or
authority the best interest of the child shall be the primary

consideration.’




[10]
Adopted and
opened for signature, ratification and accession by UN General
Assembly resolution A/RES/54/263 of 25 May 2000, entered
into force
on 18 January 2002. Acceded to by the Republic of South Africa on 30
June 2003.




[11]
Centre
for Child Law v Governing Body of Hoërskool Fochville &
another

[2015] ZASCA 155; [2015] 4 All SA 571 (SCA) para 23.




[12]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others

2009 (2)
SACR 130
(CC) paras 130 and 132;
S
v M (Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
; 2008 (3) SA 232; 2007 (2) SACR 539 (CC) para 14-26.




[13]
DPP,
Transvaal v Minister of Justice and Constitutional Development
(above)
para 72.




[14]
DPP,
Transvaal v Minister of Justice and Constitutional Development
(above)
para 72.




[15]
S v M
(above)
para 14.




[16]
Tabled in
Parliament on 23 September 2010, made available on the National
Prosecuting Authority website under Resources, Library,
Prosecution
Policy and Policy Directives.