Abstract
LL.M. (Human Rights Law)
This research considers whether we can classify certain forms of pornography as unworthy of
protection by the Constitution. I argue that if new legislation censoring pornography is put in
place, it will be possible to do so. In chapter one, I lay out the theoretical groundwork for my
argument by engaging with liberal and radical feminist arguments for and against
pornography. In chapter 2, I briefly engage with the history of the legislation governing the
regulation of pornographic material in South Africa. I then critique, from a radical feminist
perspective, the judgements in the Constitutional Court case of Case v Minister of Safety and
Security and Others; Curtis v Minister of Safety and Security and Others. The judgements
dealt with the regulation of the possession of pornographic material. The Court found that the
legislation regulating pornography entrenched on the right to privacy and freedom of
expression. For a comparative aspect, I consider the Canadian Supreme Court case of R. v.
Butler. This judgement dealt with the regulation of the dissemination of pornographic
material. Here the Court found that the legislation regulating such dissemination violated the
right to freedom of expression but went on to hold that the section could be demonstrably
justified under section 1 of the Canadian Charter of Rights as a reasonable limit prescribed by
law. I then conclude that any new legislation put in place to censor pornography – or certain
forms thereof – needs to be clear about what it seeks to censor and the rationale informing
such censoring.