National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others

• Jurisdiction: South Africa
• Citation: 1999 (1) SA 6 (CC)

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others
1999 (1) SA 6 (CC)

1999 (1) SA p6

Citation	1999 (1) SA 6 (CC)
Case No	CCT 11/98
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
Heard	August 27, 1998
Judgment	October 9, 1998
Counsel	GJ Marcus (with him M Chaskalson) for the applicants; GCM Masemola for the first respondent; No appearance for the second and third respondents; DM Davis for the amicus curiae (the Centre for Applied Legal Studies)

Flynote : Sleutelwoorde D

Constitutional law — Human rights — Right not to be discriminated against on grounds of sexual orientation in terms E of s 9 in chap 2 of Constitution of the Republic of South Africa Act 108 of 1996 — Offence of sodomy, inclusion of sodomy in Schedules to Criminal Procedure Act 51 of 1977 and Security Officers Act 92 of 1987, and prohibition of acts calculated to stimulate sexual passion or to give sexual gratification committed between men at 'a party' in F terms of s 20A of the Sexual Offences Act 23 of 1957 constituting unfair discrimination and unjustifiably violating s 9.

Constitutional law — Human rights — Right to human dignity in terms of s 10 in chap 2 of the Constitution of the Republic of South Africa Act 108 of 1996 — Offence of sodomy, and inclusion of sodomy in Schedules to Criminal Procedure Act 51 of 1977 and Security Officers Act 92 of 1987 constituting unjustifiable violation of s 10. G

Constitutional law — Human rights — Right to privacy in terms of s 14 in chap 2 of the Constitution of the Republic of South Africa Act 108 of 1996 — Offence of sodomy, and inclusion of sodomy in Schedules to Criminal Procedure Act 51 of 1977 and Security Officers Act 92 of 1987 constituting unjustifiable violation of s 14. H

Criminal law — Sodomy — Criminalisation of sodomy unfair discrimination on grounds of sexual orientation in conflict with s 9 of Constitution of the Republic of South Africa Act 108 of 1996 — Criminalisation further a violation of right to human dignity in conflict with s 10 of the Constitution — Criminalisation further a violation of right to privacy in conflict with s 14 of Constitution — No justification for violation of rights — Offence inconsistent with Constitution and invalid. I

Criminal law — Acts calculated to stimulate sexual passion or to give sexual gratification committed between men at 'a party' in contravention of s 20A of Sexual Offences Act 23 of 1957 — Section constituting unfair discrimination on grounds of sexual orientation in conflict with s 9 of J

1999 (1) SA p7

Constitution of the Republic of South Africa Act 108 of 1996 — No justification for unfair discrimination — Section A inconsistent with Constitution and invalid.

Constitutional practice — Courts — Powers of — Declaration of invalidity — All Courts competent to make such declarations having power in terms of s 172(1)(b)(i) of Constitution of the Republic of South Africa Act 108 of 1996 to B make order limiting retrospective effect of declaration if such order just and equitable — Court of first instance having to grapple with exercise of such power — Might be necessary to receive evidence to determine whether and how power to be exercised — Essential that Court of first instance receive and adjudicate on such evidence and not Court of appeal or Constitutional Court — Interests of good government always important consideration, but only one C of many, in deciding whether such order 'just and equitable' as intended in s 172(1)(b)(i) — Unqualified retrospective declaration of invalidity in respect of offence of sodomy could have undesirable consequences — Least disruptive way of giving relief in respect of past convictions for consensual sodomy was by allowing noting of appeal D where period therefor had not yet expired or bringing of application for condonation of late noting of appeal — Retrospective effect of declaration of invalidity limited to 27 April 1994.

Headnote : Kopnota

The Witwatersrand High Court granted an order declaring unconstitutional and invalid (a) the common-law E offence of sodomy; (b) the common-law offence of commission of an unnatural sexual act to the extent that it criminalises acts committed by a man or between men which, if committed by a woman or between women or between a man and a woman, would not constitute an offence; (c) s 20A of the Sexual Offences Act 23 of 1957; (d) the inclusion of sodomy as an item in Schedule 1 to the Criminal Procedure Act 51 of 1977; (e) the inclusion of sodomy as an item in the Schedule to the Security Officers Act 92 of 1987. The order, insofar as it declared F provisions of Acts of Parliament invalid, was referred to the Constitutional Court for confirmation in terms of s 172(2)(a) of the Constitution of the Republic of South Africa Act 108 of 1996.

Held (per Ackermann J, the other members of the Court concurring), as to the common-law offence of sodomy, G that, although the constitutionality of the common-law offence of sodomy was not directly before the Constitutional Court, a finding of constitutional invalidity of the offence was an indispensable and unavoidable step in concluding that the impugned provisions of the Criminal Procedure Act and the Security Officers Act were constitutionally invalid. In this indirect sense the correctness of the High Court's finding regarding the offence of sodomy was therefore before the Constitutional Court and had to be decided. (Paragraph [9] at 19G--H.) H

Held, further, that the criminalisation of sodomy constituted discrimination on a ground listed in s 9(3) of the Constitution and that it had to be presumed, in terms of s 9(5), that the differentiation constituted unfair discrimination unless it was established that the discrimination was fair. This required the Court to be satisfied, on I a consideration of all the circumstances, that fairness had not been established. (Paragraph [18] at 24D--F.)

Held, further, that gay men were a permanent minority in society and had suffered in the past from patterns of disadvantage. The impact was severe, affecting the dignity, personhood and identity of gay men at a deep level. It occurred at many levels and in many ways and was often difficult to eradicate. The nature of the power and its purpose was to criminalise J

1999 (1) SA p8

private conduct of consenting adults which caused no harm to anyone else. It had no other purpose than to A criminalise conduct which failed to conform with the moral or religious views of a section of society. The discrimination had gravely affected the rights and interests of gay men and deeply impaired their fundamental dignity. The discrimination was accordingly unfair. There was nothing which could be placed in the other balance B of the scale. The discrimination was therefore in breach of s 9 of the Constitution. (Paragraphs [26] and [27] at 27F--28A/B.)

Held, further, that the criminalisation of sodomy infringed the right to dignity enshrined in s 10 of the Constitution. At its least the constitutional protection of dignity required an acknowledgement of the value and worth of all individuals as members of society. The common-law prohibition on sodomy criminalised all sexual intercourse per C anum between men: regardless of the relationship of the couple who engaged therein, of the age of such couple, of the place where it occurred, or indeed of any other circumstances whatsoever. In so doing, it punished a form of sexual conduct which was identified by the broader society with homosexuals. Its symbolic effect was to state that in the eyes of the legal system all gay men were criminals. The stigma thus attached to a significant proportion D of the population was manifest. As a result of the criminal offence, gay men were at risk of arrest, prosecution and conviction of the offence of sodomy simply because they sought to engage in sexual conduct which was part of their experience of being human. A law which punished a form of sexual expression for gay men degraded and E devalued gay men in broader society. As such it was a palpable invasion of their dignity and a breach of s 10 of the Constitution. (Paragraph [28] at 28C and 28D/E--29A/B).)

Held, further, that the criminalisation of sodomy infringed the right to privacy in s 14 of the Constitution. Privacy recognised that we all have a right to a sphere of private intimacy and autonomy which allowed us to establish and nurture human relationships without interference from the outside community. The way in which we gave F expression to our sexuality was at the core of this area of private intimacy. If, in expressing our sexuality, we acted consensually and without harming one another, invasion of that precinct would be a breach of privacy. (Paragraph [32] at 30A/B--B/C), read with 30E.)

Held, further, as to whether the limitation of rights could be justified in terms of s 36 of the Constitution, that the G criminalisation of sodomy in private between consenting males was a severe limitation of a gay man's right to equality in relation to sexual orientation, because it hit at one of the ways in which gays gave expression to their sexual orientation. It was at the same time a severe limitation of the gay man's rights to privacy, dignity and freedom. The harm caused by the provision could, and often did, affect his ability to achieve self-identification and H self-fulfilment. The harm also radiated out into society generally and gave rise to a wide variety of other discriminations, which collectively unfairly prevented a fair distribution of social goods and services and the award of social opportunities for gays. (Paragraph [36] at 31E/F--G/H.)

Held, further, that the limitation served no valid purpose. The...