WHEN IS INDECENCY “PUBLIC”? Rose v Director of Public Prosecutions [2006] 1 WLR 2626 (QBD)

Abstract

The crime of public indecency is not without controversy in the context of the new constitutional dispensation in South Africa. The criminalisation of behaviour that is assessed as having offended the sensibilities of the public inevitably limits the right to freedom of expression, protected in section 16(1) of the Constitutional of the Republic of South Africa, 1996. Nevertheless, the operation of this right is qualified by the public’s interest in not being confronted with disgusting visual or auditory stimuli (see discussion in Milton
South African Criminal Law and Procedure Vol II: Common-law Crimes 3ed (1996) 272; and Snyman Criminal Law 4ed (2002) 359).
A further difficulty with the crime is the breadth and vagueness of its definition (which is set out below). As Snyman points out, expressions such as “which tends to deprave the morals of others” and “which outrages the public’s sense of decency” are so vague as to possibly violate the principle of legality (Snyman 359). The notion of when the indecent act can be regarded as being of a public nature presents its own expository difficulties, particularly in the light of the adoption in the case law of an interpretation which goes beyond the commonplace meaning of the term “public”. This note sets out to outline the application of the requirement that the indecency must be “public” in order to found liability for the crime of public indecency, in the light of the recent English case of Rose, which dealt with a similar question.