By Lesedi Molosi Molosiwa

The act of ‘sexting’ or to ‘sext’ is defined as the exchange of pornographic material or sexually explicit messages, pictures or videos via a mobile phone or the internet. The assumption is that not all pornography, and especially sexting, is reported in case law in South Africa, which creates gaps in the reported case law. Therefore most of the information is article based.

The objective of this article is to, first, establish the relation between sexting and pornography, secondly, to determine whether there are reported cases of sexting and, lastly, to determine how South African courts and legislation have dealt with sexting. It discusses the premise that sexting is influenced by an increase in the use of mobile technology making it more available globally for both adults and children.

To put the topic into context, the scenario has been created where X (who is married to Y) is found to be in the possession of explicit material, such as child pornography. X may desire to claim freedom of expression and an infringement of privacy if apprehended. X may also claim that it is for research purposes or that the minor is his or her child. The question would be whether X’s spouse (Y) or the law would consent to such content being in the possession of X or if the above reasons would be legitimate enough for the court to accept as valid and just reasoning for the accused without further evidence being adduced. With this scenario in mind, existing legislation in South Africa will first be considered.

The Constitution

Section 14 (privacy) and s 16 (freedom of expression) of the Constitution, as provided for in the Bill of Rights, enshrines the rights of all people in the Republic of South Africa, including the right to equality (s 9), the right to dignity (s 10) and the right to freedom and security of the person (s 12), which incorporates the right to be free from all forms of violence from either public or private sources. Most importantly, the Constitution provides for the rights of children and other vulnerable persons (including the disabled) to have their interests protected.

Common law offences or crimes

I submit that, despite the absence of reported case law dealing directly with sexting, it is important to identify the legal position in South Africa when dealing with pornography. The following cases will be looked at in order to provide the South African common law position on pornography, as it is a pivot on which sexting hinges.

In De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (3) SA 389 (W) the applicant who had been charged with possession of certain material in contravention of s 27(1) of the Films and Publications Act 65 of 1996 (the FP Act), applied for an order declaring s 27(1) read with s 1 (child pornography) of the FP Act to be inconsistent with the Constitution. In other words, the applicant submitted that the finding of unconstitutionally excluded a defence of legitimate purpose or public good or public interest where such material was possessed for a bona fide documentary, research work, drama or work of art without involving real children.

Furthermore, the applicant submitted that the section violated the rights to privacy, more particularly because the definition of child pornography was vague and open-ended, and thus open to arbitrary and subjective decision-making. In addition, the applicant referred to s 22(1) of the FP Act that provides for the exemption of any person or institution from ss 25, 27 and 28 if there was good reason to believe bona fide purposes would be served by such exemption. The court held that, in terms of the values that the Constitution espoused and the purpose of s 27(1), the limitation of the rights of the applicant were reasonable and justifiable.

In S v Geldenhuys 2009 (1) SACR 1 (SCA) on the other hand, the Supreme Court of Appeal declared ss 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 constitutionally invalid on the basis that the sentences of imprisonment imposed under these sections suspended pending decisions of the Constitutional Court on whether or not to confirm an order of invalidity.

In S v Koralev and Another 2006 (2) SACR 298 (N) the facts briefly stated that the appellants were convicted in a regional magistrate’s court on various counts of indecent assault, contraventions of the FP Act and, in the case of the first appellant, were in contravention of s 14(1)(b) of the Sexual Offences Act. The charges related to the commission of indecent acts involving minors and to the creation or possession of child pornography. The first appellant received an effective eight-year term of imprisonment, while the second appellant was sentenced to four years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (CPA).

Hefer JA stated that before the images in question could be admissible in evidence against the appellants there had to be some proof of their accuracy in the form of corroboration that the events depicted actually occurred. The SCA held that the court a quo had erred in finding that the first appellant was aware of the images showing the second appellant in compromising positions and that, by virtue of his possession of these images, he had acted as her accessory. There was in fact no evidence that the first appellant was aware of the presence of these images on the computer; neither was this the only reasonable inference to be drawn from the fact that they were found there. It was possible that some other person had taken the pictures and stored them on the computer unbeknown to the first appellant. This was a further reason for the first appellant’s conviction of indecent assault to be set aside. The appeal was upheld and convictions and sentences were set aside.

It is therefore evident that the South African common law position considers the interests of the accused, the community and of justice by applying the principle of ‘innocent until proven guilty’ by engaging the Constitution, thus addressing access to the courts on appeal and review.

I submit, based on sched 1 of the CPA providing for rape, indecent assault and sodomy, complemented by sched 2 that provides for rape only, that the CPA does provide for common law offences related to sexting. Therefore sexting is a criminal offence in relation to the elements of the crime.

The Films and Publications Amendment Act 3 of 2009

The Films and Publications Board (FPB) is a statutory body established by the FP Act. The FPB’s task is mainly to classify films, videos, DVDs, computer games and certain publications for their suitable age viewership. It classifies all film material distributed in South Africa, except that shown on TV.

Section 1(e) of the FP Act (as amended by the Films and Publications Amendment Act 3 of 2009), states that child pornography ‘includes any image, however created, or any description of a person, real or simulated, or who is depicted, made to appear, look like, represented or described as being under the age of 18 years’. The FP Act states that ‘child pornography’ is when a person (including a minor child) is –

‘(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’.

I submit that sexting is addressed by s 1, which defines ‘explicit sexual conduct’ as graphic and detailed visual presentations or descriptions of any conduct contemplated in the definition of ‘sexual conduct’ in the FP Act. Section 1 moreover defines ‘sexual violence’ as ‘conduct or acts contemplated in the definitions of “sexual conduct” and “explicit sexual conduct” that are accompanied either by force or coercion, actual or threatened, or that induces fear or psychological trauma in a victim’.

In addition to various child protection initiatives the Films and Publications Amendment Act has been amended to make the investigation and prosecution of child pornography offenders more effective. This is, for example, provided in s 29, which also refers to s 24 of the FP Act identifying prohibition, offences and penalties on distribution and exhibition of films, games and publication. It states that, in terms of s 24A(1) ‘any person who knowingly distributes or exhibits in public a film or game without first having been registered with the [FPB] as a distributor or exhibitor of films or games, shall be guilty of an offence and thus liable, on conviction, to a fine or to imprisonment for a period not exceeding six months, or to both a fine and imprisonment’. The FP Act moreover, in terms of s 24A(2), classifies the above-mentioned acts as ‘refused classification’ or classified as ‘XX’.

In addition, it is also an offence to possess, create, produce, distribute, import, access, advertise or promote child pornography images. Section 24B(1) – which refers to prohibitions, offences and penalties on possession of films, games and publications – states in s 24B(1)(a) – (d) that:

‘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 … obtaining or accessing of; or

(d) knowingly makes available, exports, broadcasts or in any way distributes or causes to be made available, exported … 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’.

Failure to report knowledge of child pornography images to the police is also an offence. This is provided for in terms of s 24B(2)(a) and (b) of the FP Act. Such a person who has knowledge of commission of an offence provided for in s 24B(1)(a) to (d) must inform a police official of the South African Police Service. It is also an offence to expose children to pornography. This is provided for in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, in terms of ss 18 and 19 respectively. Section 18, read with s 19, provides that the sexual grooming of children and exposure or display of or causing exposure or display of child pornography or pornography to children is prohibited.

Section 18(1)(d) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act states that if one commits any of these acts related to child pornography outside South Africa, he or she may still be prosecuted on return to the country. I submit that this is an indication that South African laws related to pornography generally co-exist, resulting in the breach thereof being addressed thereby avoiding conflict of laws. This is evident by the Films and Publications Amendment Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act working hand in glove as seen above.

Lesedi Molosi Molosiwa BT IND (TUT) LLB (NWU) is a candidate attorney and paralegal volunteer at the Mafikeng Justice Centre.

This article was first published in De Rebus in 2014 (April) DR 34.