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THE EFFECT OF THE NEW SEXUAL OFFENCES LEGISLATION ON EXISTING CHILD PORNOGRAPHY
LEGISLATION

1. Introduction
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On the 16 December 2007, the Criminal Law (Sexual Offences and Related Matters) Amendment Act (herein
after referred to as the Act) came into operation. The Act comprehensively consolidates inter alia the common
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and statutory laws relating to the substantive nature of sexual offence crimes , certain laws of evidence relating
thereto and the development of a National Policy Framework that ensures the enhancement and or advancement
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of processes and procedures for the management of victims and survivors of sexual offences.

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It is noteworthy that the Act creates offences relating to child pornography but does not repeal any of the
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provisions of the Films and Publications Act , instead the two statutes coexist. Moreover the Act in certain
instances calls for an interpretation ‗as contemplated in the Films and Publications Act‘ and the Act seems to
somewhat alter and or create offences in relation to child pornography. Thus it appears that in order to prosecute
in terms of the Act regard must be had to the interpretation as afforded to the Films and Publications Act (which
has been interpreted by the Constitutional Court in De Reuck v Director of Public Prosecutions Witwatersrand
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and Others ). Thus I will briefly look at the history, development and interpretation of child pornography
legislation in South Africa. Whilst the Act addresses several forms of sexual abuse this article only evaluates the
effect of provisions that affect child pornography and would thus firstly discuss the development of the definition of
child pornography and secondly the application of the newly created offences and its relation to other statutes.

However, before looking at the development of the child pornography it is imperative to briefly discuss the
constitutional issues relating to the need for child pornography legislation. Thus all issues raised in this note
regarding interpretation of legislation should be read in light hereof.

2. The Constitutional Framework for Child Pornography Legislation

The constitutionality of the Films and Publications Act 65 of 1996 (prior to the 2002 amendments, (hereinafter
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referred to as the old FPA)) was challenged in the matter of De Reuck . The Applicant was charged for inter alia
the possession of child pornography in terms of section 27(1) which at the time provided that

(1) A person shall be guilty of an offence if he or she knowingly–

(i) Creates, produces, imports or is in possession of a publication which contains a visual
presentation of child pornography; or

1
Pulished: Sexual Offences Bulletin, NPA 2009 Vol 8. Pretoria.
2
Act 32 of 2007
3
Chapters 2, 3 and 4 of the Act
4
Chapter 7 Part 2
5
Chapter 7 Part 3
6
Sections 10, 19, 20 and 25
7
Act 65 of 1996
8
2003 (12) BCLR 1333 (CC); 2003 (2) SACR 445 (CC), See also De Reuck v Director of Public Prosecutions Witwatersrand and Others
2003(1) SACR 448 WLD.
9
Supra note 7
1
 (ii) Creates, distributes, produces, imports or is in possession of a film which contains a
scene or scenes of child pornography.

The Applicant contended that Section 27 should be declared unconstitutional as it infringed his rights to Equality
(Section 9); Freedom of Expression (Section 16) and Privacy (Section 14) and furthermore that the legislation was
vague. The court held that the Children‘s rights afforded in Section 28 and the child‘s right to Dignity (Section 10)
far outweighed the infringements of the rights afforded to the accused and accordingly dismissed the application
to have the provisions declared unconstitutional. In dismissing the application the court evaluated the aforesaid
rights.

The Constitutional court held inter alia:

1. Dignity is one of the founding values of our Constitution and children‘s dignities deserve special
protection. The court held that child pornography degrades children, causes serious harm, impairs their
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dignity and ―contributes to a culture, which devalues their worth.‖
2. There is an obvious physical harm suffered by victims of sexual abuse as well as the children that are
sexually abused by paedophiles and pornographers, but this harm is extended to all children when
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society allows the availability of sexualised images of child pornography.
3. There is psychological trauma caused to children who are victims of sexual abuse and the continued
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circulation of the pornographic images exacerbates this trauma.
4. Child pornography may be used to groom children, reinforce cognitive distortions that sex with children is
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acceptable and may fuel the fantasies of the paedophiles.

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The court accordingly held that the need to protect children far outweighed the accused rights.

In Case & Another v The Minister of Safety and Security & Others; Curtis v Minister of Safety and Security
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& Others Madala J held
―While I agree that one‘s right to privacy should be respected … some forms of pornography and
obscene matter should not enjoy constitutional protection. In my view, children should not be
exposed to or participate in the production of pornography, and that therefore, possession by
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them and exposure to pornographic material should be prohibited.‘

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The court a quo in De Reuck held that
―The viewing and dissemination of child pornography promotes the heinous impression that
children are suitable and acceptable sexual partners‘ it is debased, dehumanises and has no
redeeming qualities whatsoever. It presents one of the most, if not the most, serious problems

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Par 62 - 63
11
Par 63
12
Par 64
13
Par 65
14
Par 91
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1996 (3) SA 617 (CC), declaring Sec 2 of the Indecent or Obscene Photographic Matters Act 37 of 1967 unconstitutional as it infringed the
Right to Privacy.
16
Par 106
17
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (1) SACR 448 (W); 2003 (3) SA 389;
2002 (12) BCLR 1285
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 threatening the fabric of South African society. It is inextricably linked to paedophilia which is
rapidly and systematically destroying and scarring children, parents and families. It has no
boundaries. When one has regard to the objectives of the legislation and the spirit of the
Constitution it can never be said that child pornography has any place in an open and democratic
society based on freedom and equality. Section 27(1), which outlaws the possession of child
pornography cannot be said to be disproportionate to the objectives the legislature sought to
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achieve.

It will become apparent from this article that the new Sexual Offences Act leaves much room for constitutional
interpretation. This article deals primarily with the child pornography provisions in the Act and it is within the
framework of these constitutional precepts that the interpretative sections of the article should be interpreted.

3. The Development of the Definition of Child Pornography

3.1 The Films and Publications Act 65 of 1996 (Prior to the Amendments)

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This Act (hereinafter referred to as the old FPA) prior to the amendment of 2 November 2004 defined child
pornography as follows:
―‗child pornography‘ includes 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‖(own emphasis)

The old FPA then goes further to list a variety of different images that could amount to sexual conduct, which is in
turn defined in the schedule 11 to the old Act as
―… ‗sexual conduct‘ means genitals in a state of stimulation or arousal; the lewd display of
genitals; masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling,
or touching with any object, of genitals; the penetration of a vagina or anus with any object; oral
genital contact; or oral anal contact‖.

The Constitutional Court held that the inclusion of the word ‗any image‘ excludes written descriptions and that the
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prohibited acts (i.e. ―the various forms of conduct that may not be depicted‖) are a closed list . As to what the
images must depict Langa DCJ (as he then was) stated that
―A threshold question is the perspective from which it is to be determined what an image depicts.
Legal certainty and the practicalities of proof favour an objective test based on the perspective of
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a ‗reasonable viewer‘ over the subjective state of mind of the author or the accused.‖

18
Par 86
19
Supra
20
De Reuck par 21
21
De Reuck par 23, the court relies on the Canadian decision of R v Sharpe (2001) 194 DLR (4th) 1 par 43
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Furthermore the inclusion of ―real or simulated‖ means that our law prohibits both real and pseudo-pornographic
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(morphed) images of children . These images must either show a child(ren) engaged in sexual conduct or the
display of genitals that amounts to sexual exploitation or the child(ren) must be depicted as participating in, or
assisting another person to engage in sexual conduct and such image must amount to the sexual exploitation or
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to the degradation of the child(ren).

On the predominant purpose of child pornography the court stated

―How does one determine whether the predominant purpose of an image is to stimulate erotic
rather than aesthetic feelings in the target audience? Evidence of the intention of the author is
irrelevant to this determination. The purpose must be determined from the perspective of the
‗reasonable viewer‘ having its predominant purpose the stimulation of erotic rather than aesthetic
feelings in a target audience. It must be emphasised that the image need not, and in most
instances will not, stimulate erotic feelings in the reasonable viewer… the Act should be
interpreted to allow a consideration of … contextual… evidence when it is relevant since the
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statute does not preclude it.‖

Extending this to the prohibited acts the court held that the images must be depicted for the viewer to see and not
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merely suggested . The role of the presiding officer is to conduct the enquiry from the perspective of the
reasonable viewer, within context if the image shows a child
―(a) engaged in sexual conduct (as explicated in the schedules to the Act);
(b) engaged in a display of genitals;
(c) … participating in sexual conduct; and
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(d) … assisting another person to engage in sexual conduct.‖

3.2 The Films and Publications Act 65 of 1996 (as Amended by Act 18 of 2004) (Hereinafter referred to as the
FPA)

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As a response to the De Reuck judgment the legislature amended the old FPA . The amended sections are inter
alia the definition of child pornography to

22
De Reuck par 23; See also International Association of Prosecutors Combating the Use of the Internet to Exploit Children” Best Practice
Series 1 July 2005, viewed at http://www.iap.org/publications last viewed on 15 July 2006; See also Ashcroft, Attorney General, et al v Free
Speech Coalition et al 535 U.S. 234 (2002) 198 F.3d 1083 the Supreme Court of the United States ruled that provisions that criminalised
―simulated‖ pornography was unconstitutional as real children were not used to produce the pornography and accordingly it could not be
construed as exploitation of children. Evidently this approach is in contrast to the South African Constitutional Courts approach as set out in
De Reuck. US prosecutors now are faced with the ―real child‖ defence. However in US v Guagliardo 278 F.3d 868, (9th Cir. 2002) the
prosecution led evidence that the images dated as far back to the 70‘s and 80‘s, a time when such morphing technology did not exist. In US v
Rearden 349 F.3d 608 (9th Cir 2003) expert digital imaging testimony was led to refute the defence.
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Described in the Schedules to the Act.
24
De Reuck par 27 to 29; See also Gordon B Internet Criminal Law, Cyberlaw@SA, Chapter 15, viewed at http:///www.cyberlaw@sa.co.za
last visited at 18 July 2006
25
De Reuck par 32 and 34. For further reading on the effects of child pornography see Child Pornography and Paedophilia: Report made
by the Permanent Subcommittee on Investigations, US Senate, 99th Cong. 2nd Sess. 34 (1986); Child Exploitation and the Law: A
Report on the International Legal Framework and Current National Legislative Enforcement Responses, 2003, can be viewed at
http://csecworldcongress.org/PDF/en/.../Theme_paper_CSEC_and_the_law.pdf last viewed July 2006; Position Paper 204, Child
Pornography and Internet Related Sexual Abuse of Children, Save The Children Norway viewed at http://www.redbarna.no.docs last
viewed July 2006.
26
De Reuck par 35
27
De Reuck par 38
28
Films and Publications Amendment Act 18 of 2004 which came into operation on 2 November 2004.
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―include[s] any image, however created, or any description of a person, real or simulated, who is, or who
is depicted or described as being, under the age of 18 years-
i. engaged in sexual conduct;
ii. participating in, or assisting another person to participate in, sexual conduct; or
iii. 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‖

According to De Reuck the definition of child pornography was limited to images. The legislature then extended
this to include descriptions. This is a noteworthy inclusion as it extends the courts interpretation that the
reasonable viewer must be in a position to see the image as opposed to a mere suggestion. Thus novels and
other writings now fall within the ambit of child pornography.

Secondly sexual conduct was moved from the schedules of the old FPA to be included in the body of the FPA
(definitions clause) and extended to include any of the following acts.
―i. male genitals in a state of arousal or stimulation;
ii. the undue display of genitals or of the anal region;
iii. masturbation;
iv. bestiality;
v. sexual intercourse, whether real or simulated, including anal sexual intercourse;
vi. sexual contact involving the direct or indirect fondling or touching of the intimate parts of
a body, including the breasts, with or without any object;
vii. the penetration of a vagina or anus with any object;
viii. oral genital contact; or
ix. oral anal contact;‖

The old FPA stated that sexual conduct included the lewd display of genitals. This was amended with the
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inclusion of the undue display of genitals in (ii). In R v Butler the Canadian Supreme Court interpreted ‗undue‘
in relation to sexual exploitation. It held that the determination as to what is undue is closely linked to the
‗community standard of tolerance test‘ in that material could exploit sex in a degrading or dehumanising manner.
The court accordingly held that the test is ―concerned not with what Canadians would not tolerate being
exposed to themselves, but with what they would not tolerate other Canadians being exposed to.‖

The South African equivalent to the community tolerance test can be found in the Constitution. Society‘s boni
mores can be measured in such a manner that conduct should be in accordance with the spirit, purport and
values of the Constitution. The Constitutional values underpinning community tolerance can in turn be said to
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have regard to equality, dignity and the advancement of human freedoms.

29
R. v. Butler, [1992] 1 S.C.R. 452
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Sec 1 of the Constitution
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In light of the fact that pseudo – pornography is also criminalised it is noteworthy that the old FPA was amended
to include ‗sexual intercourse whether real or simulated‘ at (v). The legislature further amended sexual conduct by
extending the touching or fondling of the genitals to the intimate parts of the body ‗including the breasts‘ at (vi).

3.3. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
The aforesaid definition of child pornography has been further extended in terms of the Act as follows:
―‗child pornography‘ means any image, however created, or any description or presentation of a
person, real or simulated, who is, or who is depicted or described or presented as being, under
the age of 18 years, of an explicit or sexual nature, whether such image or description or
presentation is intended to stimulate erotic or aesthetic feelings or not, including any such image
or description of such person—
a. engaged in an act that constitutes a sexual offence;
b. engaged in an act of sexual penetration;
c. engaged in an act of sexual violation;
d. engaged in an act of self-masturbation;
e. displaying the genital organs of such person in a state of arousal or stimulation;
f. unduly displaying the genital organs or anus of such person;
g. displaying any form of stimulation of a sexual nature of such person‘s breasts;
h. engaged in sexually suggestive or lewd acts;
i. engaged in or as the subject of sadistic or masochistic acts of a sexual nature;
j. engaged in any conduct or activity characteristically associated with sexual intercourse;
k. showing or describing such person—
i. participating in, or assisting or facilitating another person to participate ; or
ii. being in the presence of another person who commits or in any other manner being
involved in, any act contemplated in paragraphs (a) to (j); or
l. showing or describing the body, or parts of the body, of such person in a manner or in
circumstances which, within the context, violate or offend the sexual integrity or dignity of
that person or any category of persons under 18 or is capable of being used for the
purposes of violating or offending the sexual integrity or dignity of that person, any
person or group or categories of persons;‖

It appears the definition has two components, namely the object and the conduct. Firstly it defines the object as
either a real or simulated image or description or a presentation of a person under the age of 18, the latter being
an extension to the type of object. This image, description or presentation should be of an explicit or sexual nature
and the intended effect (to stimulate erotic as opposed to aesthetic feelings) of the object is irrelevant. Secondly it
goes further to explicate the conduct that should be depicted or described in the aforesaid object.

One needs to determine if the word ‗including‘ sequentially means that the list of prohibited acts (conduct) is
exhaustive or restrictive. Furthermore it should be established if the list of types of conduct should be read
disjunctively ((a) – (k) or (l) or conjunctively (all of them as alternatives).

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 CHILD PORNOGRAPHY

CONDUCT
MEANS

OBJECT a. engaged in an act that constitutes a sexual offence;

b. engaged in an act of sexual penetration;
c. engaged in an act of sexual violation;
ANY IMAGE, HOWEVER
CREATED, OR ANY
d. engaged in an act of self-masturbation;
DESCRIPTION OF A e. displaying the genital organs of such person in a state of arousal or
PERSON
stimulation;
REAL OR SIMULATED, WHO f. unduly displaying the genital organs or anus of such person;
IS, DEPICTED, DESCRIBED
OR PRESENTED AS UNDER
g. displaying any form of stimulation of a sexual nature of such
18 person’s breasts;
h. engaged in sexually suggestive or lewd acts;
i. engaged in or as the subject of sadistic or masochistic acts of a
sexual nature;
ANY SUCH IMAGE OR
j. engaged in any conduct or activity characteristically associated with
INCLUDING DESCRIPTION OF SUCH
sexual intercourse;
OR
PERSON
OF AN EXPLICIT OR k. showing or describing such person—
SEXUAL NATURE
i. participating in, or assisting or facilitating another person to
participate ; or
ii. being in the presence of another person who commits or in any
other manner being involved in, any act contemplated in
paragraphs (a) to (j); OR
REGARDLESS OF THE l. showing or describing the body, or parts of the body, of such
INTENDED EFFECT OF THE
IMAGE, DESCRIPTION OR person in a manner or in circumstances which, within the context,
PRESENTATION violate or offend the sexual integrity or dignity of that person or any
category of persons under 18 or is capable of being used for the
purposes of violating or offending the sexual integrity or dignity of
that person, any person or group or categories of persons;”

3.3.1. Explicit or Sexual Nature Regardless of the Intended Effect

De Reuck interpreted the old FPA to mean that the intended effect of the pornography is that the pornography
should stimulate erotic rather than aesthetic feelings. This in essence meant that the viewer/ presiding officer
would have to make this determination based on the surrounding circumstances (i.e. from the perspective of the
reasonable viewer). This interpretation could give rise to a tenuous situation. Whilst the legislature provided a
holistic definition to ‗child pornography‘ the court found it apt to split the term and define it disjunctively. Thus if the
image is that of a naked child and does not give rise to erotic feelings then that image is not one of child
pornography because it falls short of the definition of pornography.

In the new Sexual Offences Act, the legislature has changed this test by the inclusion of whether such image or
description or presentation is intended to stimulate erotic or aesthetic feelings or not. The intended effect of the
image as required by De Reuck is therefore no longer a relevant factor in relation to the Act. The Act requires
that the image must be of an explicit or sexual nature regardless of the intended effect.

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 31
The Collins Concise Dictionary defines explicit as ―precisely and clearly expressed, leaving nothing to
implication; fully stated, leaving little to the imagination; graphically detailed, openly expressed without
reservations; unreserved‖. Whilst sexual is defined as ―relating to the instincts, physiological processes, and
activities connected with physical attraction or intimate physical contact between individuals.‖

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The Oxford Dictionary defines explicit as ―clear and detailed, with no room for confusion or doubt.‖

This could be interpreted to mean that the object must be either ‗explicit‘ or of a ‗sexual nature‘ and the two terms
are not mutually exclusive. This in turn gives rise to the question whether the object, that is not of a sexual nature,
is covered by the ambit of this section. In order to answer this lets take the following scenario. Various images of
children are taken some of them are clearly of a sexual nature whereas in others they could be posing fully
clothed. The latter images in context to other images depicting sexual activities may be pornographic. If one were
to follow the interpretation that it only requires images that are sexual nature then the latter images do not fall
within the ambit of this section. It is therefore suggested that the legislature intended to widen the ambit of child
pornography. The images may therefore be explicit (exclusive of a sexual nature) or of a sexual nature or both.
This is further supported by examining the scope of the crimes created such as grooming and the benefiting from
child pornography as discussed hereunder, together with the Constitutional need for the protection of children.

3.3.2. Means vs Includes

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In R v Ah Tong the Appellate Division held
'The word 'include' is often used in the definition of Acts of Parliament for the purpose of
enlarging the meaning of a word or phrase by bringing it under something which is not
comprehended under the ordinary meaning of that word or phrase. But assuming that the words
comprise and include are exactly synonymous, it is clear that this is not the sense in which the
word is here used, for the shops enumerated are such as would ordinarily fall under the natural
meaning of 'refreshment shop'. In this section the word is used not for the purpose of extending
the meaning of the expression 'refreshment shops', but for the purpose of enumerating the
different kinds of shops which are intended to be comprehended under that denomination. That, I
think, would be the result to be arrived at even if the Legislature had used the word 'including'
instead of 'comprising'.'

In De Reuck the Constitutional Court was called upon to decide whether ‗includes‘ in the context was exhaustive
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of what constitutes child pornography. The courts applies the guidance offered in R v Debele and held
―if the primary meaning of the term is well known and not in need of the term is well known and
not in need of definition and the items in the list introduced by ‗includes‘ go beyond that primary
meaning so that ‗includes‘ in non – exhaustive. If as in this case, the primary meaning already
encompasses all the items in the list, then the purpose of the list is to make the definition more
precise. In such a case ‗includes is used exhaustively.‖

31
Collins Concise Dictionary, 5th Ed, Harper Collins Publishers, 2001
32
The Concise Oxford Dictionary, 10th Ed, Oxford University Press, 2002
33
1919 AD 186 at 189 -190
34
1956 (4) SA 570 (A)
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A third situation arises
―[W]here the drafters have for convenience grouped together several things in the definition of
one term, whose primary meaning – if it is a word of ordinary, non – legal usage – fits some of
them better than others. Such a list may also be intended as exhaustive, if only to avoid … a
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quagmire of uncertainty… in the application of the term.‖

Evidently the list provided by the legislature was encompassed by the primary meaning of child pornography and
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accordingly the purpose of the list was to make the definition more precise. It was accordingly held that
―the legislature could have avoided the ambiguity by stating child pornography means only the
images listed, the use of the word includes in the definition is consistent with an intention that the
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list should refine, and thus be coloured by, the primary meaning of child pornography.‖

The primary meaning of child pornography (as per De Reuck) is an image that stimulates erotic rather than
aesthetic feelings. Consequently the court held that the prohibited acts were a closed list of what constitutes child
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pornography.

It can be inferred that the legislature has heeded to the courts‘ call to remove the ambiguity by including the word
―means‖ and thus the interpretation of the section is not exhaustive but rather it can be construed that the
prohibited list is non -exhaustive.

What is interesting is the fact that the word ‗means‘ is used to introduce the object, whilst ‗including‘ is used to
introduce the conduct. One could interpret this to mean that ‗including‘ before the conduct confines the conduct to
an exhaustive list in that it merely spells out the various possibilities of conduct as encompassed by the object
thus returning to the De Reuck scenario. On a holistic reading of the section this seems to be an improbable
interpretation for example by taking a closer look at the conduct subsection (l):
―showing or describing the body, or parts of the body, of such person in a manner or in
circumstances which, within the context, violate or offend the sexual integrity or dignity of that
person or any category of persons under 18 or is capable of being used for the purposes of
violating or offending the sexual integrity or dignity of that person, any person or group or
categories of persons.‖

For example an accused takes 100 pictures of an 8 year old child undressing herself in preparation of a more
explicit sexual act. The first 50 frames of the total images she is clothed whilst the last 50 images some or other
section of her private parts are captured. This would in essence mean that (a) – (k) would not be applicable, save
for the situation where the sexual conduct can be described to characteristically lead to sexual intercourse.
However the pictures could nonetheless, in context, violate her sexual integrity or dignity in terms of (l). Thus (l)
leaves room for much more activities that are possibly not covered by the list and this could in fact be indicative of

35
Par 18
36
Par 19; See also Jones & Co. v Commissioner of Inland Revenue 1926 CPD 1 at 5, Western Bank Ltd. V Registrar of Financial
Institutions 1975 (4) SA 37 (TPD) at 42 G, Estate Brownstein v Commissioner of Inland Revenue 1957 (3) SA 512 (AD)
37
Par 19
38
Par 21
9
the legislatures intention to make the definition non exhaustive as opposed to only the object or the conduct. Thus
(l) leaves scope for more activities that are not specifically outlined in the section and could be indicative of the
legislatures intention to create a non – exhaustive list.

It should however be noted that (a) – (k) or (l) should not be interpreted to be read disjunctively but rather
conjunctively. As a single image may straddle any of the various prohibited act at any one given point in time. To
interpret that they should be read disjunctively would mean that such a reading of the conduct would not be
39
possible and may give rise to absurd interpretations.

3.3.3. Presentation of a person

The definition afforded in the Act is broader than the meaning as in the FPA (image or description) to include a
‗presentation of a person‘. An image is further qualified by ‗however created‘ this would accordingly mean that the
image may take several forms other than a verbal/ descriptive form (which would be covered by description). A
cartoon could accordingly be included as an image and the words a description thereto, likewise an image or
description could be germane to a presentation in the form of a lecture. Accordingly this seems to create the
impression that ‗presentation of a person’ is superfluous. As is evident from De Reuck the courts need to apply a
contextual approach to determine whether an item is child pornography or not. In this regard it could however be
interpreted to include the offer of a child for child pornography purposes in terms of sections 17 or 20 of the Act,
e.g a banner advertising that there are ‗young boys for offer‘. Presentation could be directed at the act of
representing or portraying that an image or description is a child. E.g. a banner stating ‗young boys and there
daddy‘s‘ without any reference to pornography, but one that can nonetheless be inferred from the facts.
.
3.3.4. The Conduct
Various offences have been created by the Act and the conduct portrayed in the prohibited materials as in (a) –
(d) (acts that constitute the new offences in terms of the Act) now fall within the ambit of child pornography. It is
noteworthy that the legislature has extended the prohibited conduct by the inclusion of (h), (i), (j) and (l) and so
widened the ambit of the conduct.

In (h) ―Engaged in sexually suggestive or lewd acts” it appears that the legislature has returned lewd acts as
prohibited conduct, which was previously replaced by ‗undue‘ in relation to display. It is however important to note
that the FPA prohibits an undue exhibition, whereas the new Act states that the prohibited material must portray
an actual engagement (active) with sexually suggestive or lewd acts as opposed to a mere display of genitals or
the anus. The undue display of the genital organs or anus is covered by (f). Lewd has not been defined in the new
40
Act. In National Director of Public Prosecutions v Braun and Another it appears that lewd is synonymous to
the commission of indecent an obscene acts.

39
S v Staggie and Another 2003 (1) SACR 232 (C); S v Domingo 2005 (1) SACR 193 (C)
40
2007 (1) SA 189 (C) see also Sexual Offences Act 23 of 1957 in relation to the definition of a brothel.
10
It has further widened the prohibited conduct by explicitly criminalising sadistic or masochistic acts of a sexual
nature in (i). Neither of the two FPA‘s have had this inclusion. It thus appears that the legislature has expressly
41
stated its revulsion to this kind of behaviour.

It is further evident just how wide the legislature intended to cast the net of prohibited sexual acts with reference
to (j) and (l). The prohibition of any conduct or activity characteristically associated with sexual intercourse in (j)
seems open to criticism. It appears that one would have to ask what type of conduct or activity could fall within the
ambit of this section. If a picture is taken of a child unwrapping a condom wrapper, or standing with a sex toy or
where an accused person grooms a child as per section 17 of the Act and records this activity one could ask
whether the grooming is an activity characteristically associated with sexual intercourse. Whilst grooming does
not exclude an eventual occurrence of sexual intercourse it may be for purposes of sexual abuse exclusive of
intercourse and would accordingly not fall subject to this type of behaviour. Similarly the unwrapping of the
condom or posing with the sex toy whilst closely linked to sexual activity is not automatically indicative to be
inclusive of intercourse.

On the other hand it could be argued that if these images were indeed captured as part of activities that led to
sexual intercourse, then the purpose was indeed for the commission of intercourse and could thus be conduct
associated with intercourse.

4. Child Pornography Offences

Section 10: Exposure or display of or causing exposure or display of child pornography to persons 18
years or older

―A Person (―A‖) who unlawfully and intentionally, whether for the sexual gratification of A or of a
third person (―C‖) or not, exposes or displays or causes the exposure or display of child
pornography to a complainant 18 years or older (―B‖), with or without the consent of B, is guilty of
the offence of exposing or displaying or causing the exposure or display of child pornography to
persons 18 years or older‖
This is accordingly the
 Unlawful and
 Intentional
 Exposure or display or the causing of such exposure or display of child pornography to
 A person older than 18 years old

It is evident that the causing of the exposure or display must be intentional. The reason for causing the exposure
or display is not clear from the Act. It appears though that whether it is for sexual gratification or not is irrelevant. It
could accordingly be inferred that the reason for causing the exposure is irrelevant, the act in itself is abhorrent
and prohibited.

41
This type of behaviour is also prohibited in the US state of Delaware, see Fink v. State, 817 A.2d 781, 789 (Del. 2003)
11
Section 18: Sexual Grooming
1. ―A person (‗‗A‘‘) who—
a. manufactures, produces, possesses, distributes or facilitates the manufacture,
production or distribution of an article, which is exclusively intended to facilitate the
commission of a sexual act with or by a child (‗‗B‘‘);
b. manufactures, produces, possesses, distributes or facilitates the manufacture,
production or distribution of a publication or film that promotes or is intended to
be used in the commission of a sexual act with or by ‗‗B‘‘;
c. supplies, exposes or displays to a third person (‗‗C‘‘)—
i. an article which is intended to be used in the performance of a sexual
act;
ii. child pornography or pornography; or
iii. a publication or film,
with the intention to encourage, enable, instruct or persuade C to perform a
sexual act with B; or
d. arranges or facilitates a meeting or communication between C and B by any means
from, to or in any part of the world, with the intention that C will perform a sexual
act with B,
is guilty of the offence of promoting the sexual grooming of a child.‖

Section 18(1) deals with the promoting the sexual grooming of a child, whereas section 18(2) deals with the actual
act of grooming the child.

It is evident that ‗film‘ and ‗publication‘ is not defined in terms of the Act and unlike section 19 no reference is
made to the Films and Publications Act 65 of 1996. Section 1 of the Films and Publications Act however defines a
films and publication as follows:

―Film means-
1) any sequence of visual images recorded on any substance, whether a film, magnetic tape,
disc or any other material, in such manner that by using such substance such images will
be capable of being seen as a moving picture;
2) the soundtrack associated with and any exhibited illustration relating to a film as defined in
paragraph (a) ;
3) any picture intended for exhibition through the medium of any mechanical, electronic or
other device;

Publication means-
a. any paper, book, periodical, pamphlet, poster or other printed matter;
b. any writing or typescript which has in any manner been duplicated;
c. any drawing, picture, illustration or painting;
d. any print, photograph, engraving or lithograph;
12
 e. any record, magnetic tape, soundtrack, except a soundtrack associated with a film, or any
other object in or on which sound has been recorded for reproduction;
f. computer software which is not a film;
g. the cover or packaging of a film;
h. any figure, carving, statue or model; and
i. any message or communication, including a visual presentation, placed on any distributed
network including, but not confined to, the Internet;

Visual presentation means-

a. a drawing, picture, illustration, painting, photograph or image; or
b. a drawing, picture, illustration, painting, photograph or image or any combination thereof,
produced through or by means of computer software on a screen or a computer printout.‖

A conviction on section 18(1) could follow where an accused commits and act in terms of subsections (a) – (d). It
appears that 18(1) (a) has reference to any article other than a film and or a publication, which is covered by
Section 18(1) (b) and the actus reus required for both subsections is the manufacture, production, possession or
distribution of the items (i.e. any article (Section 18(1) (a)) or a film or publication (Section 18(1) (b)). For purposes
of this article I will only be discussing subsection (1) (b).

Section 18(1)(b)
Section 18(1)(b) prohibits the manufacture, production possession, distribution or facilitation or the manufacture,
production or distribution of a publication or film that promotes or is intended to be used in the commission of a
sexual act with or by ‗‗B‘‘ (child).

 the manufacture, production or possession or

 the facilitation of such manufacture, production or possession of
 film or publication
 that promotes or
 is intended to be used in
 the commission of a sexual act
 with a child
 or by a child

Assuming the film or publication contains a scene or scenes of child pornography and that the accused is found in
possession of such, it is my opinion that and accused cannot be charged for the mere possession of such a film
or publication in terms of section 18(1) (b). The section tends to militate against offences and or actions that
groom the child, which in turn may pave the way for sexual abuse. Subsection 18(1)(b) dictates that the
possession must be for a purpose. This purpose is either to promote the sexual abuse of a child or that is to be
intended for the abuse of a child.

13
In order to determine what is meant by the term ‗promotion‘ one should look at the scope of application of the
section. It is evident that the section could militate against the offensive content of the film or publication
(assuming we are dealing with a film or publication containing child pornography) or it is directed at the purpose
that offensive content serves to hold. In this scenario the prohibition against the offensive content could be
42
prosecuted in terms of Section 27 of the Films and Publications Act , the actual abuse in terms of the same Act
alternatively other provisions of this Act. It is my opinion that the promotion is accordingly directed at the ensuing
result (to lower the child‘s resistance or make it easier to perpetrate the offence) as opposed to the content which
promotes sexual abuse. Likewise the manufacture and or production of the film or publication must be for the
43
same purpose.

On the other hand where the content in the film or publication is for example instructive as how to lower the
resistance of a child it could be regarded as promoting the grooming of a child. Thus once again the promotion
relates to the ensuing result as opposed to the offensive content.

Section 18(1) (c)

This addresses the situation where an accused person

―supplies, exposes or displays to a third person (‗‗C‘‘)—

i. an article which is intended to be used in the performance of a sexual act;
ii. child pornography or pornography; or
iii. a publication or film,
with the intention to encourage, enable, instruct or persuade C to perform a sexual act with B‖

 the supply exposure or display of

 child pornography or pornography or
 a film or publication to
 a third person (C)
 with the intention to
 encourage, enable, instruct or persuade C
 to perform a sexual act with the child (B)

In order to rely on Section 18(1) (c) (ii) it is evident that the state would have to prove that the item being used is
child pornography or pornography as defined in Section 1. Once this has been established the next step would be
to show that the actus reus was the supply, exposure or display. Such act should then be committed unlawfully
and with the intention to encourage, enable, instruct or persuade a third person to commit a sexual offence with a
child. Where the third person is a child it could be prosecutable in terms of subsection (2).

Section 18(2): Sexual Grooming of a Child

42
Act 65 of 1996
43
See Sec 27 of Act 65 of 1996
14
Section 18(2) (a) relates to the supply, exposure or display of inter alia child pornography and/or pornography
and/or a film and/or a publication to a child. The purpose for which this should be done is to encourage, enable,
instruct or persuade the child to perform a sexual act.

Section 18(2)(b) relates to the commission of commits any act with or in the presence of B or who describes the
commission of any act to or in the presence of B with the intention to encourage or persuade B or to diminish or
reduce any resistance or unwillingness on the part of B to— (iv) ―be exposed to child pornography or
pornography or (v)be used for pornographic purposes as contemplated in section 20(1);‖

 An accused commits any act

 With or in the presence of a child
 With the intention to
 Encourage or persuade the child or
 diminish or reduce any resistance or unwillingness on the part of the child to
 Perform any of the ensuing results (i-vi) inter alia be exposed to child pornography or be used in the
commission of an act that could be construed in line with the benefiting from child pornography in terms of
section 20(1).

44
Children can be harmed by be being exposed to pornography. Moreover children who are sexually molested
experience a myriad of traumatic symptoms.

45
Other experts indicate that paedophiles use child pornography not only for sexual stimulation but also as a way
46
to justify their sexual preference for children. It appears that this is done when they enter the phase of distorted
47 48
thinking . Moreover, this sharing allows them to believe that they are not alone, strange or different at all
paedophiles are attracted to children although not all paedophiles are child molesters but many child molesters
49 50
are paedophiles. Furthermore the US Senate report and other studies indicate the following uses for child
pornography collectors:

 It causes arousal and gratification


51
It validates and justifies paedophile behaviour
 It is used to lower a child‘s inhibitions
 The pornographic image forever captures the child‘s youthfulness

44
The consumption of pornography by teenagers may also lead them to believe that violent sexual behaviour, which is reckless as displayed
in pornography, is acceptable in society (Flood M, Hamilton C, Youth and Pornography in Australia Evidence on the Extent of Exposure
and Likely Effects; Discussion Paper 52, the Australia Institute, 2003)
45
There is some inconsistency in relation to a definition of a paedophile, and this varies according to various disciplines. The Australian
National Crime Authority defines it as adults who act on their sexual preference for children. [Miller K, Detection and Reporting of
Paedophilia: A Law Enforcement Perspective, Paedophilia: Policy and Prevention,] Miller also indicates that there is no standard
classification of a paedophile but that they are generally divided into the following categories: sadistic ritual; incestuous, females or
adolescents.(250-259), Conradie also includes the cyber paedophile [testimony in Pretoria Regional Court S v K]
46
Magid L; Does Virtual Child Pornography Equal Child Exploitation http://www.pcanswer.com/articles/synd_virtualporn.htm
47
Muller et al (263)
48
New Jersey report (10)
49
Healy MA; Child Pornography, An International Perspective paper prepared for the World Congress Against Sexual Exploitation of
Children August 1996 viewed at http://www.usemb.se/children/csec/child_pornography.html
50
Child Pornography and Paedophilia: report made by the Permanent Subcommittee on Investigations, US Senate, 99th Cong. 2nd Sess. 34
(1986)
51
See also Lanning KV, Cyber Paedophiles, a Behavioural Perspective, The APSAC Advisor 12 (1998)
15
 It is used for blackmail
 Some exploiters exchange the pornography in order to gain access to other markets and other children

52
Although most do not sell their pornography, some do.

53
On the offender‘s side, Krone states the following:

 The collection is important to the offender who will spend a significant amount of time and money on it;
 Collections grow as offenders feel their collection is not sufficient and there is more material to collect;
 Collections are kept in a neat and orderly fashion, particularly using computers;
 Collections are a permanent fixture in an offenders life and will be moved or hidden if the offender believes
they are under investigation;
 Offenders almost never destroy a collection
 Offenders hide their collections in concealed places, which also ensures that they have ready and secure
access to them;
 Offenders often share their collections with like-minded persons.

The internet has become the playground of paedophiles and these paedophiles are very concerned with
concealing their identities and accordingly use the internet to proliferate their exploitive behaviour with an
54
immense amount of anonymity. These paedophile exchange pornographic materials with each other as many of
55
them belong to web rings, which distribute the child pornography.

56
In R v Paintings, Drawings and Photographic Slides of Paintings McCombs J of the Ontario Court stated:

―The evil of child pornography lies not only in the fact that actual children are often used in its
production, but also in the use to which it is put. Although behavioural scientists disagree about
the reliability of scientific studies, there is a general agreement among clinicians that some
paedophiles use child pornography in ways that put children at risk. It is used to "reinforce
cognitive distortions‖ (by rationalising fantasies (for example through masturbation); and to
―groom‖ children, by showing it to them in order to promote discussion of sexual matters and
thereby persuade them that such activity is normal. Because of the way in which child
pornography is used by paedophiles, the risk of harm is present whether or not real children are
used in its creation. The sexually explicit comic strip found in ex. 73, the ―Lolita Chick‖
publication for example, which depicts the seduction and rape of a child, probably did not involve
the use of a child in its production. However, possession of that material by a paedophile would
give rise to the same risks as would child pornography in which real children were involved in its

52
See also Healy M supra
53
Krone T, Does Thinking Make it so? Defining Child Pornography Possession Offences, Trends and Issues in Crime and Criminal
Justice No. 299 April 2005, Australian Institute of Criminology
54
Forde P and Patterson A, Paedophile Internet Activity, Trends and Issues in Crime and Criminal Justice, Nov. 1998, No. 47,
Australian Institute for Criminology. Viewed at http://www.aic.gov.au
55
Lesce T; Paedophiles on the Internet: Law Enforcement Investigates Abuse; Law and Order, Vol. 47 No. 5 May 1999 (74-78), in
contrast hereto see Levy N, Virtual Child Pornography: The Eroticization of Inequality, Ethics and Information Technology 4: 319 -
323,2002
56
30 CRR (2nd) 124
16
 production. In either case, the risk is that the paedophile would use it to reinforce his cognitive
57
distortions, fuel his fantasies, and perhaps show it to children to facilitate their exploitation.‖

The question is whether the use of a webcam would fall within the ambit of ―in the presence of‖. It is my
58
submission that in light of the fact that the section looks at computer technology , the advancements in computer
technologies and the purpose of the Act etc it would fall within the ambit. The section does not specifically restrict
in the presence to be in the physical presence, and any such interpretation could result in an absurd interpretation
of the legislation.

Section 19: Exposure or display of or causing exposure or display of child pornography or pornography
to children.

―A person (‗‗A‘‘) who unlawfully and intentionally exposes or displays or causes the exposure or
display of—
a. any image, publication, depiction, description or sequence of child pornography or
pornography;
b. any image, publication, depiction, description or sequence containing a visual presentation,
description or representation of a sexual nature of a child, which may be disturbing or harmful
to, or age-inappropriate for children, as contemplated in the Films and Publications Act, 1996
(Act No. 65 of 1996), or in terms of any other legislation; or
c. any image, publication, depiction, description or sequence containing a visual presentation,
description or representation of pornography or an act of an explicit sexual nature of a person
18 years or older, which may be disturbing or harmful to, or age-inappropriate, for children, as
contemplated in the Films and Publications Act, 1996, or in terms of any other law, to a child
(‗‗B‘‘), with or without the consent of B, is guilty of the offence of exposing or displaying or
causing the exposure or display of child pornography or pornography to a child.‖

It appears that this subsections (b) and (c) should be read with the Films and Publications Act, which provides for
the classifications of films and publications and any other statutes that aims to prohibit the abuse of children.
59
Several experts agree that exposing children to pornography can have devastating effects.

It should be noted though that Section 27(3) of the Films and Publications Act 65 of 1996 states that ‗[a]ny
person who has under his or her control any material … (inclusive of pornography) and who fails to take
reasonable steps to prevent access to such materials by a person under the age of 18 shall be guilty of an
offence‘ (Own insertion). Thus whereas section 19 requires mens rea in the form of dolus, negligent behaviour
that leads to a child‘s access to pornography, would be covered by section 27. It is recommended that an

57
At 136
58
Sec 18(2)(d)(ii)(cc)
59
See Reisman JA, The Psychopharmacology of Pictorial Pornography Restructuring Brain, Mind and Memory and Hughs D,
Protecting your Children in Cyberspace, 1998
17
accused be charged with the contravention of section 27(3) as an alternative to section 19, where the facts
permit.

Section 20: Using Children for or benefiting from Child Pornography

Section 20(1)

1) ―A person (‗‗A‘‘) who unlawfully and intentionally uses a child complainant (‗‗B‘‘), with or
without the consent of B, whether for financial or other reward, favour or compensation to B
or to a third person (‗‗C‘‘) or not—
a) for purposes of creating, making or producing;
b) by creating, making or producing; or
c) in any manner assisting to create, make or produce,

any image, publication, depiction, description or sequence in any manner whatsoever of child
pornography, is guilty of the offence of using a child for child pornography.‖

Whilst section 20(1) criminalises the use of a child for child pornography, Section 20(2) is directed at the person
benefiting from child pornography.
 An accused (A) who unlawfully and intentionally
 Uses a child complainant (B)
 With or without the consent of that child
 For a reward or not i.e. regardless of whether or not it is
 For financial or other reward, favour or compensation
 To the child or a third person (C)
 For the following purpose
 for purposes of creating, making or producing;
 by creating, making or producing; or
 in any manner assisting to create, make or produce,
 Any image, publication, depiction, description or sequence in any manner whatsoever of child
pornography,

60
Working Group 1 of the International Association of Prosecutors recommended that countries when enacting
legislation should define child pornography to include pseudo- pornography for the following reasons:

 The inability to distinguish between real and pseudo- pornography could give rise to evidential problems
because of the difficulty to distinguish between real and fictitious.
 Pseudo- pornography could be used in the grooming process to convince other children that these acts
are acceptable.

60
http://www.iap.org/ publications ―Combating the use of the Internet to Exploit Children‖ Best Practice series 1. July 2005
18
 Some images depict the faces of real children, which could lead to further exploitation and or trauma
apart from that which they already experience as a result of the primary abuse.

In De Reuck, the court noted that

― New photographic and computer imaging technologies make it possible to produce by

electronic, mechanical or other means, visual depictions of what appear to be children engaged in
sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from un-
61
retouched photographic images of actual children engaging in sexually explicit conduct.‖

Furthermore it is apparent from the Act that the form of mens rea required is dolus and the consent of the child is
irrelevant. Once it has been shown that the image, publication, depiction, description or sequence is child
pornography, it has to be shown that the child has been used. The question here is whether a real child has to be
used in the creation of child pornography for a contravention of this section. The section is quite specific in that
the use of a child complainant is required. This in turn seems to contradict the definition of child pornography
which includes a morphed image of a child. Complainant is in turn defined in section 1 as an ‗alleged victim of a
sexual offence‘. Hence it can be inferred that an actual victim is required.

On the one hand it can thus be argued that had the legislature intended for morphed images to be included in the
scope of application of Section 20(1) it would have omitted the word complainant. On the other hand it could be
interpreted to mean that regardless of how the image was created a real child should have been used in some
form or another.

Let‘s take the following scenario. A child aged 16 (X) is photographed at a fashion parade. These images are then
later superimposed on the naked body of a different young child; the final product is that of a child in a provocative
sexual position. Whilst X was never photographed for pornographic images the ensuing result was nonetheless
child pornography. In this scenario it is important to note that a real child was used but not for initial pornographic
imaging.

It is evident that for the prosecution of an offence in terms of Section 20(1) the consent of X would be irrelevant
and the Act is clear that the use of a child complainant ‘in any manner‘ to make, produce or create child
62
pornography is prohibited. The harm that child pornography causes is discussed by Epstein J in the WLD
judgement at paragraph 52 of the De Reuck decision.
Whether a child model is used for primary or secondary exploitation, and how this type of action
is indirectly harmful to children; it degrades children and shows them in poses, which will
stimulate the viewer. This stimulation in turn sends out a message that sexual interaction with
children is acceptable. Therefore child pornography is designed to promote shameful or wicked

61
Add footnote reference
62
2003(1) SACR 448 WLD
19
 behaviours and fosters a culture founded on perversion. It is virtueless and cannot co-exist with
63
the rights of the children and the duty to protect them.

If this were to be read with subsection (k) in the definition then it is evident that the image within context could
violate or offend sexual integrity or dignity of the child(ren) as a group. Moreover the intention of the legislature is
64
illustrated as the criminalisation of ‗all forms of sexual abuse or exploitation‘ It would thus be absurd to assume
that the legislature would have excluded pseudo pornography, where a real child is nonetheless sexually
exploited. The creation or production of child pornography can also be addressed in terms of section 27 of the
Films and Publications Act.

The offences in Section 27 as amended reads as follows

―any person shall be guilty of an offence if he or she –
(i) is in possession of;
(ii) creates or produces or in any way contributes to, or assists in, the creation or production
65
of;
(iii) imports or in any way takes steps to procure, obtain or access; or
(iv) knowingly exports, broadcasts or in any way distributes or causes to be exported,
broadcast or distributed,

a film or publication which contains child pornography or which advocates, advertises or

promotes child pornography or the sexual exploitation of children.‖

Section 20(2) states that

―[a]ny person who knowingly and intentionally in any manner whatsoever gains financially from,
or receives any favour, benefit, reward, compensation or any other advantage, as the result of the
commission of any act contemplated in subsection (1), is guilty of the offence of benefiting from
child pornography.‖

 Any person who unlawfully and intentionally

 In any manner whatsoever
 Gains financially from or
 Receives any favour, benefit, reward, compensation or any other advantage
 As the result of a commission of any act in terms of section 20(1)

Whilst the receiving of some form of gain is irrelevant for purposes of Section 20(1) it is an essential element of
the offence for a contravention of section 20(2) of the Act. The varieties of gain identified in the Act may be

63
Par [55], See also Magid L; Does Virtual Child Pornography Equal Child Exploitation viewed at
http://www.pcanswer.com/articles/synd_virtualporn.htm last visited: July 2006
64
Section 2(b): Object of the Act
65
Own emphasis
20
financial reward, or any favour, benefit, reward, compensation or any other advantage. Thus the gains that can be
received are quite wide as per the inclusion of ‗any other advantage’.

Where the accused sells the child pornography as listed in the example of ‗X‘ above, such accused could be
charged in terms of Section 20(2).

If it can be shown that a financial or other reward, favour or compensation was received then such recipient may
also be charged and convicted for contravention of section 17 which speaks to the sexual exploitation of children.
Section 17 prohibits the engagement of the services of a child for such reward, for the purpose of engaging in a
sexual act with the child, regardless of whether the sexual act is committed or not. What is interesting is that the
Act makes a special provision to avoid a duplication of charges in that it states that an accused may be convicted
66
for the sexual exploitation of children in addition to any other offence. The Act does not limit such conviction to
one in terms of the Act but to any offence.

Moreover an accused could always be prosecuted for other provisions of this Act as well as the commercial
sexual exploitation of children in terms of Section 50A of the Child Care Act 74 of 1983. It should be noted though
that Section 50A requires a commercial element of some sort.

50A Commercial sexual exploitation of children

1. Any person who participates or is involved in the commercial sexual exploitation of a child
shall be guilty of an offence.
2. Any person who is an owner, lessor, manager, tenant or occupier of property on which the
commercial sexual exploitation of a child occurs and who, within a reasonable time of
gaining information of such occurrence, fails to report such occurrence at a police station,
shall be guilty of an offence.
3. Any person who is convicted of an offence in terms of this section, shall be liable to a fine,
or to imprisonment for a period not exceeding 10 years, or to both such fine and such
imprisonment.

The definition of commercial sexual exploitation has been amended by the Act to read as follows

‗commercial sexual exploitation means engaging the services of a child to perform a sexual act or
to produce child pornography as contemplated in section 17 or 19 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, respectively for a financial or other
67
reward payable to the child, the parents or guardian of the child, or any other person.‘

66
Section 17(1)
67
At par 56 of De Reuk the court held that
―[t]here is no right to privacy to commit an indecent act with a minor in the sanctum of a person's own home, with the doors and windows
closed and the curtains drawn; similarly there is no right to privacy to view child pornography ...‖
21
Another alternative to Section 20(2) could be the distribution of child pornography in terms of section 27 of the
Films and Publications Act 65 of 1997. The distribution of child pornography is closely linked to the explotation of
68
a child. In R v Cook; Ex Parte A-G (Qld); R v Cook; Ex Parte Commonwealth DPP the Supreme Court of
Queensland, Court of Appeal held

―The production of child pornography exploits and damages young people and is a most serious
matter. The relationship between the maker of child pornography and those who use it is akin to
the relationship between receivers and thieves. People will not be inclined to exploit children to
69
make child pornography is there is no market for it.‖

It is important to note that whilst someone imports / downloads child pornography someone else makes it
available for distribution and ―the importation of child pornography, whether in the form of literature or
photographs, is not a victimless crime. The capacity of child pornography to deprave and corrupt
70
individuals is an accepted result of such importation…‖

71
In R v Kitson in his Honour Judge Groves noted:
―possession and distribution of child pornography is not a victimless crime because…
somewhere small children are being corrupted for the purpose of those who take the photographs
and arrange the poses. Those who deal in child pornography create the market … [for] the
exploitation of children who must inevitably be harmed in the process. Children are abused
violated and degraded in order to create a market of this kind.‖

Conclusion
It is evident that our child pornography legislation has evolved quite progressively. However the construction of
the statute and its infant nature would in all probability be brought under scrutiny in numerous cases to come. It is
hopeful that our courts will interpret the legislation in line with the progressive nature of the provisions and
72
characterise is as serious. In R v Jones , Kennedy J held
―The production of child pornography for dissemination involves the exploitation and corruption
of children who are incapable of protecting themselves. The collection of such material is likely to
encourage those who are actively involved in corrupting the children involved in the sexual
activities being depicted and who recruit and use children for the purpose of recording and
distributing the results. The offence of possessing cannot be characterised as a victimless crime.
73
The children, in the end, are the victims.‖

Adv Brandon Lawrence

Senior State Advocate

68
[2004] QCA 469 (3 December 2004)
69
Par 21
70
Asheton v The Queen [2002] WASCA 209; CCA 48 of 2002, 7 August 2002, Par 18 (Cook)
71
No 25 of 2003, District Court of WA, Albany, 12 May 2003, Par 19 (Cook)
72
(1999) 108 A Crim R 50
73
Par 26 (Cook)
22
 74
SOCA Unit

74
Adv Brandon Lawrence: B Iuris, LLB (University of the Western Cape). Senior State Advocate: National Prosecuting
Authority of South Africa, Sexual Offences and Community Affairs Unit. Programme Manager Sexual Offences Section.
23