This case was initially heard in the Witwatersrand High Court. The applicants were the National Coalition for Gay and Lesbian Equality, a voluntary association of gay, lesbian, bisexual and transgender people in South Africa, and the South African Human Rights Commission which functions under section 184 of the 1996 Constitution. The applicants argued the common law offence of sodomy, Section 20A of the Sexual Offences Act 1957, Schedule 1 of the Criminal Procedure Act 1977 and the inclusion of sodomy as an item in the Schedule to the Security Officers Act 1987 were inconsistent with the Constitution and invalid. The High Court found in favour of the applicants and confirmed the criminalising laws to be unconstitutional.
These declarations were made and referred to the Constitutional Court for confirmation under section 172(2)(a) of the 1996 Constitution, providing that an order of constitutional invalidity is not valid unless the Constitutional Court confirms it. The Constitutional Court heard arguments on 27 August 1998. The court was unanimous in confirming the decision of the High Court.
The court focused on Sections 9 (right to equality) 10 (right to human dignity) and 14 (right to privacy) of the Constitution in its decision.
The court first considered the common law offence of sodomy as an infringement on the right to equality as protected under Section 9 of the 1996 Constitution and whether the differentiation on the ground of sexual orientation constituted unfair discrimination. The court found that fairness for the discrimination had not been established and went on the address the impact the common law offence of sodomy had on members of the groups affected. It stated that the impact ‘is severe, affecting the dignity, personhood and identity of gay men at a deep level’ and ‘gravely affected the rights and interests of gay men and deeply impaired their fundamental dignity’. Consequently, the court considered this a breach of Section 9 of the Constitution.
The court also addressed the common law offence of sodomy as an infringement of the rights to dignity and privacy. The court found that the symbolic effect of the offence of sodomy was to state that all gay men are criminals ‘simply because they seek to engage in sexual conduct which is part of their experience of being human.’ This was a palpable breach of Section 10 of the Constitution. The court found that the rights of equality, dignity and privacy were closely related:
‘The offence which lies at the heart of the discrimination in this case constitutes at the same time and independently a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair.’
Turning to whether the infringement of these rights was justified, the court held that there was nothing to weigh against the extent of the limitation and its harmful impact on gay men.
In dealing with Section 20A of the Sexual Offences Act 1957, Schedule 1 of the Criminal Procedure Act 1977 and the inclusion of sodomy as an item in the Schedule to the Security Officers Act 1987, the court considered them all to be inconsistent with the Constitution and invalid.
The court found the criminalising laws to be invalid and unconstitutional.
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