SUBJECT: National Assembly preparing to debate legislation on ‘legal pornography’

The Films and Publications Amendment Bill (the Bill) has been tabled for debate at its Second Reading in the National Assembly (NA) on Tuesday, 27 February 2018.

Essentially, the Bill will widen the scope of ‘legal pornography’, whilst making the online distribution of pornography lawful in South Africa.

The NA Portfolio Committee on Communications (PCC) last November signed off on certain amendments proposed by the Department of Communications (DoC), who brought the Bill to Parliament. The proposed amendments including, amongst others:

  • the watering down of the definition of prohibited “obscene material”, called the “XX” classification in the Films and Publications Act, 1996; and
  • legalising/decriminalising hard-core online pornography in South Africa, subject to provisions requiring the protection of children from exposure to online pornography.

DoC’s proposals 

Cause for Justice welcomes and fully supports the DoC’s proposal to start putting in place measures and mechanisms to protect children from exposure to online pornography. Whether the proposals will be effective in achieving its stated aim, time will tell.

However, three of the DoC’s other proposals are particularly concerning and perplexing. These relate to the proposed deletion of provisions that prohibit the distribution of depictions that:

  • violate/disrespect the human dignity of any person;
  • are degrading of human beings; and
  • describe or give instructions on how to cause harm to human beings.

The DoC proposed replacing these prohibitions with a single prohibition, namely “explicit sexual conduct [that is] accompanied by explicit violence”. This will however leave holes in the law for abuse by producers of vile pornography and exploiters of vulnerable and trafficked women.

The Bill adopted by the NA PCC

The text of the Bill adopted by the PCC will make more vile types of pornography legally accessible by adult audiences in South Africa. The PCC, in adopting the text that will now be debated and voted on in the NA Plenary of 27 February, rejected calls from the public to prohibit the distribution of non-violent degrading material in South Africa.

If the Bill passes without any amendments through the National Assembly and thereafter, the National Council of Provinces, South Africa will follow suit in allowing the distribution of some of the vilest pornography to adults in South Africa (e.g. material including non-violent degrading acts such as defecating and urinating on “sexual partners” in the course of sexual conduct).

Questionable Policy: Consent trumps all

Such an outcome cannot be supported and a policy that consent trumps human dignity should be strongly resisted.

The policy underlying the proposed legislative amendments seems to be that no matter how degrading a depiction of a human being, as long as the person filmed consented to the degrading act being perpetrated on him/her, the act may legally be filmed and distributed to other adults.

Notable exclusions to this underlying policy is depictions of bestiality and incest (which may not be distributed, although the persons consented to the act) and depictions of sexual acts with unconscious, drugged or mentally disabled persons and human corpses (which may be distributed, even though the persons were unable to consent to the act).

In addition, the policy that consent trumps all, completely disregards the weight of scientific / research evidence on the harms of pornography. Certain social costs, health impacts and public safety risks require society to take action – not merely by providing treatment to victims, but by addressing root causes through the means to its disposal, including law.

Some positive developments

Cause for Justice supports the proposals aimed at protecting children from exposure to pornography.

Another welcome amendment coming out of the NA PCC process is the prohibition that no-one may “create, produce or distribute …films or photographs depicting sexual violence and violence against children”. Cause for Justice is pleased that the creation of this new criminal offence will afford protection to especially women and children, who are most vulnerable in society to sexual exploitation and abuse.

Remaining gaps in Bill

Even now, significant gaps remain in the text of the Bill. As far as materials that may be viewed by adult viewers are concerned, these gaps include:

  • Material violating the human dignity of a person;
  • Non-violent degrading material;
  • Material depicting sexual acts with a human corpse;
  • The possession of materials containing sexual violence (i.e. for personal use);
  • The creation, production and possession of material containing bestiality or incest (for personal use only, as the law does not allow these materials to be distributed);
  • Material containing descriptions or instructions on how to cause harm to human beings;


  • The distribution of materials containing sexually suggestive or lewd acts to children.

Next action on the Bill

The Bill will be debated and voted on in the National Assembly at its Second Reading on Tuesday, 27 February 2018.

If the Bill passes without any amendments through the National Assembly (and thereafter also through the National Council of Provinces), it would deal a devastating blow to the promotion and protection of human dignity in South Africa.

The 27th of February is a crucial opportunity to defend human dignity, a constitutionally enshrined right and value undergirding South Africa’s constitutional order.

Cause for Justice urges all political parties represented in the National Assembly to consider seriously the consequences of legalising pornography and to take an active stance to respect, protect and promote human dignity.


For further queries, contact CFJ at:


Tel: 083 235 1511


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