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

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, O'Regan J, Sachs J and Yacoob J
• Judgment Date: 09 October 1998
• Citation: 1998 (2) SACR 556 (CC)
• Hearing Date: 27 August 1998
• Counsel: G J Marcus SC (with him M Chaskalson) for the applicants G C M Masemola for the first respondent No appearance for the second and third respondents D M Davis for the amicus curiae (the Centre for Applied Legal Studies)
• Court: Constitutional Court

Ackermann J:

Introduction

[1] This matter concerns the confirmation of a declaration of constitutional invalidity of -

(a)

B s 20A of the Sexual Offences Act, 1957;

(b)

the inclusion of sodomy as an item in Schedule 1 of the Criminal Procedure Act, 1977 ('Schedule 1 of the CPA'); and

(c)

the inclusion of sodomy as an item in the Schedule to the Security Officers Act, 1987 ('the Security Officers Act Schedule');

C made by Heher J in the Witwatersrand High Court on 8 May 1998. [1] These declarations were made and referred to this Court for confirmation under s 172(2)(a) of the 1996 Constitution. [2]

[2] The full order made by Heher J reads as follows:

'1.

It is declared that the common-law offence of sodomy is inconsistent with the Constitution of the Republic of South Africa Act, 1996.

2.

D It is declared that the common-law offence of commission of an unnatural sexual act is inconsistent with the Constitution of the Republic of South Africa Act, 1996, 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.

3.

E It is declared that s 20A of the Sexual Offences Act, 1957, is inconsistent with the Constitution and invalid.

4.

It is declared that the inclusion of sodomy as an item in Schedule 1 to the Criminal Procedure Act, 1977, is inconsistent with the F Constitution and invalid.

5.

It is declared that the inclusion of sodomy as an item in the Schedule to the Security Officers Act, 1987, is inconsistent with the Constitution and invalid.

6.

The aforementioned orders, insofar as they declare provisions of Acts of Parliament invalid, are referred to the Constitutional Court for G confirmation in terms of s 172(2)(a) of Act 108 of 1996.'

The learned Judge correctly did not refer orders (1) and (2) to this Court for confirmation because s 172(2)(a) [3] of the H 1996 Constitution neither requires confirmation by the Constitutional Court of orders of constitu-

Ackermann J

tional invalidity of common-law offences nor empowers a referral for such purpose. A

[3] Orders (1) and (2) would ordinarily become final when the period for instituting appeal proceedings against these orders to the Supreme Court of Appeal or this Court lapsed and no such appeal proceedings had been commenced by that time. I shall deal later with the problems that can arise because the Constitution makes no provision for an obligatory B referral in such cases.

[4] The first applicant is the National Coalition for Gay and Lesbian Equality, a voluntary association of gay, lesbian, bisexual and transgendered people in South Africa and of 70 organisations and associations representing gay, lesbian, bisexual and transgendered people in South Africa. The second applicant is the South African Human Rights Commission C which functions under s 184 of the 1996 Constitution [4]. The three respondents are the Minister of Justice, the Minister of Safety and Security, and the Attorney - General of the Witwatersrand. Initially the applicants sought the following relief in the High Court: D

'(a)

an order declaring that the common-law offence of sodomy is inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution") and invalid;

(b)

an order invalidating any conviction for the offence of sodomy if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet E expired;

(c)

an order declaring that the common-law offence of commission of an unnatural sexual act between men is inconsistent with the Constitution and invalid; F

(d)

an order invalidating any conviction for the offence of commission of an unnatural sexual act between men if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet expired; G

(e)

an order declaring that s 20A of the Sexual Offences Act 23 of 1957 is inconsistent with the Constitution and invalid;

(f)

an order setting aside any conviction for the offence of contravening s 20A of the Sexual Offences Act 23 of 1957, if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment is pending or the time for noting an appeal from that judgment has not yet expired; H

(g)

an order declaring the inclusion of sodomy as an item in Schedule 1 to the Criminal Procedure Act 51 of 1977 is inconsistent with the Constitution and invalid;

(h)

an order invalidating any act performed after 27 April 1994 under authority of the inclusion of sodomy as an item in Schedule 1 to the I Criminal Procedure Act 51 of 1977;

Ackermann J

(i)

A an order declaring that the inclusion of sodomy as an item in the Schedule to the Security Officers Act 92 of 1987 is inconsistent with the Constitution and invalid;

(j)

an order invalidating any act performed after 27 April 1994 under authority of the inclusion of sodomy as an item in the Schedule to the Security Officers Act 92 of 1987;

(k)

B an order granting the applicants further and/or alternative relief;

(l)

only if its application should be opposed, an order directing the respondent or respondents so opposing to pay the first applicant's costs.'

C [5] The second and third respondents at no stage opposed the application. The first respondent initially opposed the application on very limited grounds. When, however, the applicants withdrew their prayers (h) and (j) above, before the hearing in the High Court commenced, the first respondent withdrew such opposition and consequently no order for costs D was sought by the applicants. At a later stage of the High Court proceedings, the applicants abandoned the relief sought in prayers (b) and (d). Without abandoning the relief sought in prayer (f), the applicants did not pursue such relief in the High Court because they were of the view that only the Constitutional Court had jurisdiction to grant relief having the E generalised effect of this prayer. These matters are alluded to because of the difficulties arising from the orders sought from this Court, which will be dealt with later in this judgment.

[6] The second and third respondents were not represented at the hearing before this Court, despite being invited to do so F in the directions of the President under Rule 15(5) of the Constitutional Court Rules. [5] On behalf of the first respondent, the State Attorney intimated that the first respondent abided by the orders made in the High Court, that no written argument would be lodged on his behalf as requested in the President's directions and that he would be represented at the hearing 'to assist the Court in the event the Court puts any questions to his representative'. At the hearing the first G respondent was represented by Ms Masemola. The Centre for Applied Legal Studies was admitted as amicus curiae under Rule 9, lodged heads of argument and was allowed to present oral argument before the Court.

[7] The CPA and various other statutes contain provisions linked to certain offences which are not expressly identified in H such provisions, but are merely described as offences listed in Schedule 1 to the CPA. The effect of the inclusion of the offence of sodomy in Schedule 1 is, amongst other things, the following:

(i)

s 37(1)(a)(iv) of the CPA empowers any police official to take fingerprints, palmprints or footprints of any person on whom a summons has been served in respect of the offence of sodomy;

(ii)

I s 40(1)(b) of the CPA allows a peace officer to arrest any person with or without a valid warrant, if the officer reasonably suspects that that person has committed sodomy;

Ackermann J

(iii)

s 42(1)(a) of the CPA allows a private person to arrest any person with or without a valid warrant if the private A person reasonably suspects the individual has committed sodomy;

(iv)

s 49(2) of the CPA allows a person authorised to arrest an individual suspected of having committed sodomy to kill the suspect if, upon attempting to arrest the suspect, such person cannot arrest the suspect, or the suspect B flees, and there is no other way to arrest the suspect or to prevent him from fleeing;

(v)

ss 60(4)(a) , 60(5)(e) and 60(5)(g) of the CPA provides that bail may be refused to an accused who is likely to commit sodomy and, in determining whether that will happen, the Court may take into account that the accused C has a disposition to do so or has previously committed sodomy while released on bail;

(vi)

s 185A(1) of the CPA provides for the protection of witnesses who have given or who are likely to give material evidence with reference to the offence of sodomy;

(vii)

s 3(1)(b) of the Interception and Monitoring Prohibition Act 127 of 1992 (read with the definition of 'serious offence' under s 1 of that Act) allows the State to intercept postal articles and private communications necessary D for investigating sodomy;

(viii)

s 13(8) of the South African Police Service Act 68 of 1995 gives wide powers to members of the South African Police Service to erect roadblocks in the prevention, detection and investigation of the offence of sodomy; E

(ix)

s 1(8) and (9) of the Special Pensions Act 69 of 1996 disqualifies persons convicted of the offence of sodomy from receiving or continuing to receive a pension in terms of s 1 of that Act;

(x)

s 2(1)(c) of the Special Pensions Act precludes a surviving spouse or surviving dependant from...