Department of Public Law

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Browsing Department of Public Law by browse.metadata.advisor "Gouws, A."

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    The constitutionality of pornography
    (Stellenbosch : Stellenbosch University, 2001-12) Van der Poll, Letetia; Du Plessis, L. M.; Gouws, A.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The advent of a constitutional democracy in South Africa after the first non-racial democratic elections in 1994 and the subsequent adoption of a final constitution in 1996 introduced a legal order based on "democratic values, social justice and fundamental rights". The inception of a constitutional democracy in South African encourages an assessment of the possible constitutional ramifications of pornography, specifically within a discourse on women's interests in equality, human dignity and physical integrity. Under the strong influence of United States First Amendment doctrine, pornography is defined (and protected in the "marketplace of ideas") as a particular mode of expression, thus allowing pornography to be viewed as part of the fabric of an open, free and democratic society. Within this doctrinal context, the recognition and entrenchment of freedom of expression have firmly placed pornography on both the South African constitutional and political agendas. The objective of this study is to address specific aspects of the debate on adult heterosexual pornography (that is, pornography produced for and targeted at the male heterosexual market) in order to establish its constitutionality. This dissertation is not, however, intended as a discourse on pornography as a possible threat to the moral fibre of society, but rather about pornography as an invasion ofwomen's particular constitutional interests in equality, human dignity as well as security in and control over their bodies. To this end, Chapter 2 serves to establish a suitable theoretical framework that is capable of facilitating a woman-centred analysis of adult heterosexual pornography within the ambit of the Bill of Rights in the South African Constitution. Consequently, the merit ofliberal feminism and radical feminist thought is critically assessed against the particular (constitutional and doctrinal) demands presented by a study of this nature. Chapter three - the first in a trilogy which seeks to evaluate the different conceptualisations of pornography in the United States, Canada and South Africa - critically reflects on the obscenity jurisprudence of the Supreme Court of the United States of America as well as radical feminist campaigns in Minneapolis and Indianapolis to re-conceptualise pornography and its harm. Chapter 4 entails a critical reflection on the capacity of Canadian constitutional jurisprudence to address adult heterosexual pornography either as a patriarchal structure which impacts on women's interests in equality, dignity and physical integrity or as a mode of expression which incites gender hatred. Chapter 5 traces the history of South African censorship law as prelude to a critical discussion of the current Films and Publications Act as well as the first decision of the South African Constitutional Court on the possible human rights implications of sexually explicit material. The chapter concludes with proposals for a suitable conception of the (constitutional) harm as well as a legal definition of adult heterosexual pornography for South African law. The constitutional implications of the proposed conceptions of pornography and harm are evaluated in Chapter 6 with specific reference to sections 9, 10 and 12 as well as subsection 16(2)( c) of the South African Constitution. Chapter 7 concludes the present study with some thoughts on the suitability of censorship as legal and political strategy.