Kids' dignity protected
2003-10-15 21:52
Johannesburg - "This ruling is a victory for every child in South Africa. It confirms that the protection of children's rights in the Constitution is not just empty words on paper."
This was the reaction of Zaais van Zyl of the public prosecutor's office in Johannesburg to the unanimous ruling by nine Constitutional Court judges on Wednesday in which they rejected the argument that people who are in possession of child pornography for research purposes should be exempted from criminal prosecution.
Tasco Luc de Reuck was arrested in the house of well-known film critic and author, Leon van Nierop, in Randburg in 2001. Police confiscated "between 1 000 and 2 000" images of child pornography.
He was charged in the Randburg regional court, but the prosecution was temporarily suspended while he asked the Rand High Court to declare section 27(1) of the Films and Publications Act unconstitutional. This section stipulates that the possession of child pornography is a crime.
He argued that he, as a filmmaker, had the material for research purposes and that section 27(1) should make provision for this. He claimed his right to freedom of speech and expression and his right to privacy were violated by this part of the act. The High Court rejected his argument and he turned to the Constitutional Court.
This court also rejected his arguments on Wednesday and in the process, made one of the most significant rulings in favour of the protection of the rights of children in South African history. Van Zyl represented the State in both cases.
Deputy Chief Justice Pius Langa said in the ruling: "I find that the state proved three legal grounds why De Reuck's argument, that his constitutional rights were violated, should be rejected.
"Firstly, there is the protection of the dignity of children.
"Secondly, the market for photos of children being abused should be destroyed.
"Thirdly, the risk that children could be harmed by such pornographic material should be prevented."
He added that De Reuck could have legally applied to have the material in his possession, but had failed to do so.
As far as the right to privacy is concerned, Langa said "the ease with which possessors of child pornography could become distributors via the internet and through the click of a button" increased the "risk of damage (to children)".
Barrie Sim, De Reuck's lawyer, said they would apply for legal possession of the material as soon as possible.
"I am obviously disappointed in the ruling, but Mr De Reuck and I accept it."
Van Zyl said De Reuck's case in the Randburg regional court will continue in January.