National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others
Encyclopedia
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa
which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution
and in particular its explicit prohibition of discrimination based on sexual orientation
the court unanimously ruled that the crime of sodomy
, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The case was the first in a series of Constitutional Court rulings advancing LGBT rights in South Africa which culminated in the case Minister of Home Affairs and Another v Fourie and Another, a judgment which led to the legalisation of same-sex marriage in South Africa
by the Civil Union Act, 2006
. In the interim the court extended to same-sex couples immigration-related rights, pension benefits, the ability to adopt, and parental rights over children conceived by artificial insemination.
Argument in the case was heard on 27 August 1998 before President of the Constitutional Court Arthur Chaskalson
, Deputy President Pius Langa
, and Justices Ackermann
, Goldstone
, Kriegler
, Mokgoro
, O'Regan
, Sachs
and Yacoob
. The decision was handed down on 9 October of the same year; the majority judgment was authored by Justice Ackermann, while Justice Sachs wrote a separate concurring judgment.
" from the Roman-Dutch law, which was introduced by the Dutch East India Company
settlers at the Cape
, and still forms the basis of South African law. In the Roman-Dutch law, sodomy originally encompassed a number of sexual acts considered unnatural, including heterosexual anal sex, masturbation and bestiality, as well as homosexual sex. Over time, however, in South African common law it was reduced to refer only to male-male anal sex, the legal definition being "unlawful and intentional sexual intercourse per anum between human males". The common law also prohibited "unnatural sexual offences", defined as "the unlawful and intentional commission of an unnatural sexual act by one person with another person"; the definition of "unnatural" had been held to include fellatio
, mutual masturbation and intercrural sex
, but it only applied to acts between men and not to acts between a man and a woman.
"Sodomy" and "unnatural sexual offences" were common law crimes, derived from the Roman-Dutch law and developed by judges. South African statute law also contained, in section 20A of the Sexual Offences Act
, a provision known as the "men at a party" offence; this criminalized any sexual acts between men at a party, where "a party" was defined as any occasion with more than two people present.
Gay men were frequently prosecuted under these laws until about 1970, after which date prosecutions for private consensual sex became less common. Nonetheless, they remained on the books as prosecutable offences. In particular, sodomy was listed as a Schedule 1 offence in the Criminal Procedure Act, placing it in the same category as murder, rape and fraud. This listing also allowed police officers to arrest people suspected of sodomy without a warrant, and to use deadly force against them if they attempted to flee.
of one year's imprisonment; the act alleged was private and consensual. The conviction was reviewed by Judge Lourens Ackermann
in the Cape Provincial Division of the Supreme Court
. At that time, before the Interim Constitution
and its Bill of Rights had come into force, the conviction was valid in law and the court did not reverse it; however, the sentence was replaced by a nominal caution and discharge. Judge Ackermann referred to the various draft constitutional texts then under negotiation, and pointed out that the drafts proposed by the ANC
, the DP
and the IFP
all explicitly forbade discrimination based on sexual orientation, while the draft proposed by the NP
-controlled government forbade discrimination on the basis of "natural characteristics". He used these facts to justify a ruling that custodial sentences were not appropriate for cases of consensual private sodomy. Significantly, he also wrote:
The Interim Constitution, which came into force on 27 April 1994, did indeed explicitly prohibit discrimination on the basis of sexual orientation. The first challenge to the sodomy laws under this new dispensation came in the case of S v Adendolf; however, this appeal was rejected by the Cape Provincial Division because the alleged sex was nonconsensual, and the court regarded the question of constitutionality as purely theoretical. The court did state that they would have considered the case had the act in question been consensual.
S v Kampher was such a case of consensual sex, although distinguished by the fact that it had occurred between prisoners in a correctional centre. The defendant was sentenced to a year's imprisonment, suspended for three years. The conviction and sentence was reviewed by Judge Ian Farlam in the Cape Provincial Division; he specifically questioned whether the crime of sodomy was compatible with the anti-discrimination and privacy provisions of the Constitution. The magistrate who had convicted Kampher claimed that it was compatible, referring to Ackermann's judgment in S v H, which had suggested that sex between prison inmates might be a "special situation" in which the state had a legitimate interest in proscribing sexual relationships. The Attorney-General of the Cape disputed this, submitting that the crime of sodomy was indeed incompatible with the Bill of Rights. The court agreed with the Attorney-General and set aside the conviction and sentence; it did not, however, strike down the crime of sodomy in general.
, which came into force on 4 February 1997, contained similar equality protections to those in the Interim Constitution, providing in section 9(3)
that:
In 1997 the National Coalition for Gay and Lesbian Equality, an association representing a broad spectrum of South African LGBT organisations, launched a constitutional challenge in the Witwatersrand Local Division of the High Court
. The Coalition was joined as applicant by the South African Human Rights Commission
, an independent chapter nine institution created by the Constitution and tasked with the promotion and protection of human rights. Named as respondents were the Minister of Justice, the national minister responsible for criminal law; the Minister of Safety and Security, the national minister responsible for policing; and the Attorney General of the Witwatersrand, the official responsible for prosecutions in the Witwatersrand Division. (The position of Attorney General has since been replaced by that of Director of Public Prosecutions within the National Prosecuting Authority
.)
The applicants asked the High Court to:
The Minister of Justice only opposed the last of these requests, and after the applicants withdrew it the government did not offer any opposition to the case. The applicants also withdrew the second requestthe blanket invalidation of past convictionsas they realised that some convictions related to non-consensual acts and should instead be converted into convictions for indecent assault
.
The applicants argued that because the offences applied only to men and only to sex between men, they infringed the equality clause of the Constitution because they unfairly discriminated in terms of gender and sexual orientation. They also argued that "commission of an unnatural sexual offence" was so vaguely defined that it was not compatible with the rule of law
, as a person could not be certain what acts it criminalised.
The High Court's judgment, authored by Judge Jonathan Heher and handed down on 8 May 1998, considered each of the attacked offences in terms of the equality guarantee in the Constitution. The offence of sodomy, he ruled, amounted to unfair discrimination both in terms of gender, because it criminalised an act between men that would not be a crime between a man and a woman, and in terms of sexual orientation, because anal intercourse is the gay male analogue to vaginal intercourse for heterosexuals. He then examined whether the discrimination could be justified, and observed that the only arguments for justification were based on prejudice or religious beliefs, which are irrelevant in a constitutional secular state; protection of public morals, which could be achieved by non-discriminatory sex offence laws; or the prevailing public opinion. Addressing the last point, the judgment referred to S v Makwanyane, in which the Constitutional Court had abolished the death penalty despite acknowledging that the weight of public opinion was opposed to abolition. The court therefore ruled that the offence of sodomy was inconsistent with the Constitution and invalid.
Considering the offence of "commission of an unnatural sexual act", Judge Heher dismissed the vagueness argument, and stated that there were some acts potentially covered by the offencebestiality being an examplethat should remain criminalised. He did accept, however, that the offence had primarily been used to prosecute gay men, and ruled that it was discriminatory and unjustifiable, and therefore invalid, to the extent that it criminalised acts between men that would not be criminal between women or between a man and a woman. Continuing to section 20A of the Sexual Offences Act, Judge Heher ruled that, as in the case of sodomy, it was discriminatory in terms of both gender and sexual orientation. Looking to justification, he proposed that Parliament might have enacted the section for the purpose of suppressing "sexual license", but considered that since the government had not seen fit to criminalise similar heterosexual or lesbian activities, the argument was not persuasive.
The offence of sodomy having been declared to be invalid and unconstitutional, it followed that its inclusion in the Schedules to the CPA and the Security Officers Act must also be invalid.
; the High Court therefore referred its order to the Constitutional Court for confirmation. The court heard argument from the applicants on 27 August 1998; the government did not oppose the application and presented no argument.
The Constitutional Court handed down its decision on 9 October 1998; the judges were unanimous in confirming the order of the High Court. The majority judgment was written by Justice Lourens Ackermann
, while Justice Albie Sachs
authored a separate concurrence. The court, recognising that the criminalisation of sodomy was clearly discrimination, assessed the fairness or otherwise of the discrimination by examining its effects on the groups affected, i.e. gay men and, indirectly, lesbians. Referring frequently to an influential article written by Edwin Cameron
, then a professor and now himself a Constitutional Court judge, it observed that the sodomy laws "[reinforce] already existing societal prejudices" and worsen the effects of those prejudices, reducing gay men to "unapprehended felons" and thereby encouraging discrimination against them.
The court referred to the judgments of the European Court of Human Rights
in Norris v. Ireland
and of the Supreme Court of Canada
in Vriend v. Alberta
, finding that heterosexist discrimination causes psychological harm to gays and lesbians and affects their dignity and self-esteem. It also observed that the criminalisation of sodomy legitimises blackmail, entrapment and "queer-bashing". Noting that gay men are a permanent minority in society who have been severely affected by discrimination, and that the conduct that is criminalised is consensual and causes no harm to others, the judgment determined that the discrimination is unfair and therefore infringes on the constitutional right to equality.
The judgment then proceeded to examine the sodomy laws against the constitutional rights to human dignity and privacy. Observing that the laws punish an act that society associates with homosexuality and thereby stigmatise gay men, as well as putting them at risk of prosecution for "[engaging] in sexual conduct which is part of their experience of being human", the court determined that the right to dignity was infringed.
Dealing with privacy, the court referred again to Cameron's article; he had suggested that the argument based on privacy was inadequate because it implied that the protection against discrimination should be limited to tolerance of private acts. The court noted that the article was published at a time when the inclusion of sexual orientation as a ground for anti-discrimination proctection was still being debated, and that Cameron's argument did not apply when the judgment had already found the discrimination to be unconstitutional on the grounds of equality and dignity.
Having found that the sodomy laws breached constitutional rights, the court then proceeded to ask whether the infringement was justifiable "in an open and democratic society based on human dignity, equality and freedom". The court found that, on the one hand, the criminalisation of sodomy had severe effects on the lives of gay men, and, on the other hand, that no valid purpose had been suggested for the infringement. It pointed out that religious views could not influence constitutional jurisprudence in a secular country.
The court also examined the situation in other democratic countries, observing that sodomy had been decriminalised in the United Kingdom, Ireland, Germany, Australia, New Zealand and Canada, and throughout Western Europe. The court did take note that Bowers v. Hardwick
was still (at that time) law in the United States, but pointed out its inconsistency with Romer v. Evans
. The result of the balancing test was that the infringements of the rights of gay men could in no way be justified in an open and democratic society.
The court noted that male rape could be prosecuted as indecent assault
, and that the Sexual Offences Act created a separate statutory offence criminalising same-sex sexual acts with a person under the age of 19. There was therefore no need to retain a limited offence of sodomy to deal with non-consensual or underage sex, and it could be entirely struck out of the common law. Considering the "men at a party" offence, the court described it as "absurdly discriminatory" and declared it to be unconstitutional for the same reasons that the offence of sodomy was.
The final question before the court was the exact nature of the order to be made and, in particular, to what extent it should be retroactive. The court ruled that, in law, the offences in question ceased to exist on 27 April 1994, when the Interim Constitution came into force. The order, however, provided that past convictions should only be invalidated if they were for consensual acts and the case had not been completely finalised; the court pointed out that those whose cases were final could apply for leave to appeal and condonation of their delay in appealing, in light of the judgment. The order also provided that actions taken as a result of the inclusion of sodomy in the schedules to the Criminal Procedure Act and the Security Officers Act should not be invalidated unless a court found that it would be just and equitable to do so.
.
The court's ruling on the sodomy laws did not address the inequality in the Sexual Offences Act
, which set the age of consent
at 16 for heterosexual sex but 19 for homosexual sex. This discrepancy was addressed in 2007 by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, which reformed and codified the law relating to sexual offences to place it on a gender- and orientation-neutral basis, setting a uniform age of consent at 16. The erstwhile discrepancy was declared to be unconstitutional in 2008, in the case of Geldenhuys v National Director of Public Prosecutions
.
Similar cases:
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
and in particular its explicit prohibition of discrimination based on sexual orientation
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...
the court unanimously ruled that the crime of sodomy
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The case was the first in a series of Constitutional Court rulings advancing LGBT rights in South Africa which culminated in the case Minister of Home Affairs and Another v Fourie and Another, a judgment which led to the legalisation of same-sex marriage in South Africa
Same-sex marriage in South Africa
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
by the Civil Union Act, 2006
Civil Union Act, 2006
The Civil Union Act, 2006 is a South African Act of Parliament which legalised same-sex marriage. It was enacted as Parliament's response to the judgment of the Constitutional Court in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide...
. In the interim the court extended to same-sex couples immigration-related rights, pension benefits, the ability to adopt, and parental rights over children conceived by artificial insemination.
Argument in the case was heard on 27 August 1998 before President of the Constitutional Court Arthur Chaskalson
Arthur Chaskalson
Arthur Chaskalson, is a former President of the Constitutional Court of South Africa and Chief Justice of South Africa...
, Deputy President Pius Langa
Pius Langa
Pius Nkonzo Langa was previously Chief Justice of the Constitutional Court of South Africa. He was appointed to the bench in 1994 by Nelson Mandela, became Deputy Chief Justice in 2001 and was elevated as Chief Justice in 2005 by Thabo Mbeki. He retired in October 2009.-External links:**...
, and Justices Ackermann
Lourens Ackermann
Lourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....
, Goldstone
Richard Goldstone
Richard Joseph Goldstone is a South African former judge. After working for 17 years as a commercial lawyer, he was appointed by the South African government to serve on the Transvaal Supreme Court from 1980 to 1989 and the Appellate Division of the Supreme Court of South Africa from 1990 to 1994...
, Kriegler
Johann Kriegler
Johann Christiaan Kriegler is a former Constitutional Court and Appeal Court judge from South Africa.-Early life:Born in Pretoria, he matriculated at King Edward Vll School in Johannesburg in 1949. He then attended the South African Military Academy for two years. He studied law at the University...
, Mokgoro
Yvonne Mokgoro
Yvonne Mokgoro was born is a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She is a board member of the Centre for Human Rights at the University of Pretoria....
, O'Regan
Kate O'Regan
Kate O'Regan was a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She hold a B.A. and LL.B. from the University of Cape Town, an LL.M. from the University of Sydney and a Ph.D. from the London School of Economics...
, Sachs
Albie Sachs
Albie Sachs was a judge on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994 and retired in October 2009...
and Yacoob
Zak Yacoob
Zakeria "Zak" Yacoob is a judge in the Constitutional Court of South Africa. He was appointed to the bench in 1998 by Nelson Mandela.-References:...
. The decision was handed down on 9 October of the same year; the majority judgment was authored by Justice Ackermann, while Justice Sachs wrote a separate concurring judgment.
Sodomy in South African law
South Africa inherited the crime of "sodomySodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
" from the Roman-Dutch law, which was introduced by the Dutch East India Company
Dutch East India Company
The Dutch East India Company was a chartered company established in 1602, when the States-General of the Netherlands granted it a 21-year monopoly to carry out colonial activities in Asia...
settlers at the Cape
Cape Colony
The Cape Colony, part of modern South Africa, was established by the Dutch East India Company in 1652, with the founding of Cape Town. It was subsequently occupied by the British in 1795 when the Netherlands were occupied by revolutionary France, so that the French revolutionaries could not take...
, and still forms the basis of South African law. In the Roman-Dutch law, sodomy originally encompassed a number of sexual acts considered unnatural, including heterosexual anal sex, masturbation and bestiality, as well as homosexual sex. Over time, however, in South African common law it was reduced to refer only to male-male anal sex, the legal definition being "unlawful and intentional sexual intercourse per anum between human males". The common law also prohibited "unnatural sexual offences", defined as "the unlawful and intentional commission of an unnatural sexual act by one person with another person"; the definition of "unnatural" had been held to include fellatio
Fellatio
Fellatio is an act of oral stimulation of a male's penis by a sexual partner. It involves the stimulation of the penis by the use of the mouth, tongue, or throat. The person who performs fellatio can be referred to as the giving partner, and the other person is the receiving partner...
, mutual masturbation and intercrural sex
Intercrural sex
Intercrural sex , also known as femoral/interfemoral sex/intercourse, is a type of non-penetrative sex, in which a male places his penis between his partner's thighs , and thrusts to create friction.-Heterosexuality:The sex education and sexual experimentation of adolescents may feature intercrural...
, but it only applied to acts between men and not to acts between a man and a woman.
"Sodomy" and "unnatural sexual offences" were common law crimes, derived from the Roman-Dutch law and developed by judges. South African statute law also contained, in section 20A of the Sexual Offences Act
Section 20A
Section 20A of the Sexual Offences Act, 1957, commonly known as the "men at a party" clause, was a South African law that criminalised all sexual acts between men that occurred in the presence of a third person...
, a provision known as the "men at a party" offence; this criminalized any sexual acts between men at a party, where "a party" was defined as any occasion with more than two people present.
Gay men were frequently prosecuted under these laws until about 1970, after which date prosecutions for private consensual sex became less common. Nonetheless, they remained on the books as prosecutable offences. In particular, sodomy was listed as a Schedule 1 offence in the Criminal Procedure Act, placing it in the same category as murder, rape and fraud. This listing also allowed police officers to arrest people suspected of sodomy without a warrant, and to use deadly force against them if they attempted to flee.
Prior case law
In the 1993 case of S v H the defendant plead guilty in the Magistrate's Court to a charge of sodomy, and received a suspended sentenceSuspended sentence
A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
of one year's imprisonment; the act alleged was private and consensual. The conviction was reviewed by Judge Lourens Ackermann
Lourens Ackermann
Lourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....
in the Cape Provincial Division of the Supreme Court
Supreme Court of South Africa
The Supreme Court of South Africa was a superior court of law in South Africa from 1910 to 1996. It was made up of various provincial and local divisions with jurisdiction over specific geographical areas, and an Appellate Division which was the highest appellate court in the country...
. At that time, before the Interim Constitution
South African Constitution of 1993
The Interim Constitution of 1993 was the fundamental law of South Africa from 1994 to 1996. It was a provisional document, intended to pave the way for the adoption of a permanent constitution...
and its Bill of Rights had come into force, the conviction was valid in law and the court did not reverse it; however, the sentence was replaced by a nominal caution and discharge. Judge Ackermann referred to the various draft constitutional texts then under negotiation, and pointed out that the drafts proposed by the ANC
African National Congress
The African National Congress is South Africa's governing Africanist political party, supported by its tripartite alliance with the Congress of South African Trade Unions and the South African Communist Party , since the establishment of non-racial democracy in April 1994. It defines itself as a...
, the DP
Democratic Party (South Africa)
The Democratic Party was the name of the South African political party now called the Democratic Alliance . Although the Democratic Party name dates from 1989, the party existed under other labels throughout the Apartheid years, when it was the Parliamentary opposition to the ruling National...
and the IFP
Inkatha Freedom Party
The Inkatha Freedom Party is a political party in South Africa. Since its founding, it has been led by Mangosuthu Buthelezi. It is currently the fourth largest party in the National Assembly of South Africa.-History:...
all explicitly forbade discrimination based on sexual orientation, while the draft proposed by the NP
National Party (South Africa)
The National Party is a former political party in South Africa. Founded in 1914, it was the governing party of the country from 4 June 1948 until 9 May 1994. Members of the National Party were sometimes known as Nationalists or Nats. Its policies included apartheid, the establishment of a...
-controlled government forbade discrimination on the basis of "natural characteristics". He used these facts to justify a ruling that custodial sentences were not appropriate for cases of consensual private sodomy. Significantly, he also wrote:
The Interim Constitution, which came into force on 27 April 1994, did indeed explicitly prohibit discrimination on the basis of sexual orientation. The first challenge to the sodomy laws under this new dispensation came in the case of S v Adendolf; however, this appeal was rejected by the Cape Provincial Division because the alleged sex was nonconsensual, and the court regarded the question of constitutionality as purely theoretical. The court did state that they would have considered the case had the act in question been consensual.
S v Kampher was such a case of consensual sex, although distinguished by the fact that it had occurred between prisoners in a correctional centre. The defendant was sentenced to a year's imprisonment, suspended for three years. The conviction and sentence was reviewed by Judge Ian Farlam in the Cape Provincial Division; he specifically questioned whether the crime of sodomy was compatible with the anti-discrimination and privacy provisions of the Constitution. The magistrate who had convicted Kampher claimed that it was compatible, referring to Ackermann's judgment in S v H, which had suggested that sex between prison inmates might be a "special situation" in which the state had a legitimate interest in proscribing sexual relationships. The Attorney-General of the Cape disputed this, submitting that the crime of sodomy was indeed incompatible with the Bill of Rights. The court agreed with the Attorney-General and set aside the conviction and sentence; it did not, however, strike down the crime of sodomy in general.
The High Court judgment
The final ConstitutionConstitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
, which came into force on 4 February 1997, contained similar equality protections to those in the Interim Constitution, providing in section 9(3)
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...
that:
In 1997 the National Coalition for Gay and Lesbian Equality, an association representing a broad spectrum of South African LGBT organisations, launched a constitutional challenge in the Witwatersrand Local Division of the High Court
High Court of South Africa
The High Courts are superior courts of law in South Africa. The courts were created in 1996 on the adoption of the Constitution of South Africa, and inherited the jurisdiction of the provincial and local divisions of the former Supreme Court of South Africa...
. The Coalition was joined as applicant by the South African Human Rights Commission
South African Human Rights Commission
The South African Human Rights Commission was inaugurated in October 1995 as an independent national institution. It draws its mandate from the South African Constitution by way of the South African Human Rights Commission Act of 1994....
, an independent chapter nine institution created by the Constitution and tasked with the promotion and protection of human rights. Named as respondents were the Minister of Justice, the national minister responsible for criminal law; the Minister of Safety and Security, the national minister responsible for policing; and the Attorney General of the Witwatersrand, the official responsible for prosecutions in the Witwatersrand Division. (The position of Attorney General has since been replaced by that of Director of Public Prosecutions within the National Prosecuting Authority
National Prosecuting Authority
The Constitution of the Republic of South Africa , created a single National Prosecution Authority , which is governed by the National Prosecuting Authority Act...
.)
The applicants asked the High Court to:
- invalidate as unconstitutional the common-law offences of sodomy and commission of an unnatural sexual act, and section 20ASection 20ASection 20A of the Sexual Offences Act, 1957, commonly known as the "men at a party" clause, was a South African law that criminalised all sexual acts between men that occurred in the presence of a third person...
of the Sexual Offences ActSexual Offences Act, 1957The Sexual Offences Act, 1957 is an act of the Parliament of South Africa which, in its current form, prohibits prostitution, brothel-keeping and procuring, and other activities related to prostitution...
(the "men at a party" offence). - invalidate any conviction for any of the three offences for acts committed after 27 April 1994 (the date that the Interim Constitution came into force) if the case was still under appeal or review.
- invalidate the inclusion of sodomy as a Schedule 1 offence in the Criminal Procedure Act, and its inclusion in the Schedule of the Security Officers Act, 1987 (which had the effect of disqualifying those convicted of sodomy from being registered as security officers).
- invalidate any action taken under the authority of the inclusion of sodomy in Schedule 1 of the CPA or the Schedule of the Security Officers Act.
The Minister of Justice only opposed the last of these requests, and after the applicants withdrew it the government did not offer any opposition to the case. The applicants also withdrew the second requestthe blanket invalidation of past convictionsas they realised that some convictions related to non-consensual acts and should instead be converted into convictions for indecent assault
Indecent assault
Indecent assault is an offence of aggravated assault in many jurisdictions. It is characterised as a sex crime.Indecent assault was an offence in England and Wales under sections 14 and 15 the Sexual Offences Act 1956...
.
The applicants argued that because the offences applied only to men and only to sex between men, they infringed the equality clause of the Constitution because they unfairly discriminated in terms of gender and sexual orientation. They also argued that "commission of an unnatural sexual offence" was so vaguely defined that it was not compatible with the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, as a person could not be certain what acts it criminalised.
The High Court's judgment, authored by Judge Jonathan Heher and handed down on 8 May 1998, considered each of the attacked offences in terms of the equality guarantee in the Constitution. The offence of sodomy, he ruled, amounted to unfair discrimination both in terms of gender, because it criminalised an act between men that would not be a crime between a man and a woman, and in terms of sexual orientation, because anal intercourse is the gay male analogue to vaginal intercourse for heterosexuals. He then examined whether the discrimination could be justified, and observed that the only arguments for justification were based on prejudice or religious beliefs, which are irrelevant in a constitutional secular state; protection of public morals, which could be achieved by non-discriminatory sex offence laws; or the prevailing public opinion. Addressing the last point, the judgment referred to S v Makwanyane, in which the Constitutional Court had abolished the death penalty despite acknowledging that the weight of public opinion was opposed to abolition. The court therefore ruled that the offence of sodomy was inconsistent with the Constitution and invalid.
Considering the offence of "commission of an unnatural sexual act", Judge Heher dismissed the vagueness argument, and stated that there were some acts potentially covered by the offencebestiality being an examplethat should remain criminalised. He did accept, however, that the offence had primarily been used to prosecute gay men, and ruled that it was discriminatory and unjustifiable, and therefore invalid, to the extent that it criminalised acts between men that would not be criminal between women or between a man and a woman. Continuing to section 20A of the Sexual Offences Act, Judge Heher ruled that, as in the case of sodomy, it was discriminatory in terms of both gender and sexual orientation. Looking to justification, he proposed that Parliament might have enacted the section for the purpose of suppressing "sexual license", but considered that since the government had not seen fit to criminalise similar heterosexual or lesbian activities, the argument was not persuasive.
The offence of sodomy having been declared to be invalid and unconstitutional, it followed that its inclusion in the Schedules to the CPA and the Security Officers Act must also be invalid.
Confirmation by the Constitutional Court
South African law requires that court orders declaring acts of Parliament to be unconstitutional be confirmed by the Constitutional CourtConstitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
; the High Court therefore referred its order to the Constitutional Court for confirmation. The court heard argument from the applicants on 27 August 1998; the government did not oppose the application and presented no argument.
The Constitutional Court handed down its decision on 9 October 1998; the judges were unanimous in confirming the order of the High Court. The majority judgment was written by Justice Lourens Ackermann
Lourens Ackermann
Lourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....
, while Justice Albie Sachs
Albie Sachs
Albie Sachs was a judge on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994 and retired in October 2009...
authored a separate concurrence. The court, recognising that the criminalisation of sodomy was clearly discrimination, assessed the fairness or otherwise of the discrimination by examining its effects on the groups affected, i.e. gay men and, indirectly, lesbians. Referring frequently to an influential article written by Edwin Cameron
Edwin Cameron
Edwin Cameron is a South African Rhodes scholar and current Constitutional Court justice. Cameron served as a Supreme Court of Appeal judge from 2000 to 2008. He was the first senior South African official to state publicly that he was living with HIV/AIDS...
, then a professor and now himself a Constitutional Court judge, it observed that the sodomy laws "[reinforce] already existing societal prejudices" and worsen the effects of those prejudices, reducing gay men to "unapprehended felons" and thereby encouraging discrimination against them.
The court referred to the judgments of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in Norris v. Ireland
Norris v. Ireland
Norris v. Ireland was a 1988 case decided by the European Court of Human Rights. The case was brought against the Republic of Ireland by Senator David Norris, and his Senior Counsel was fellow member of the Campaign for Homosexual Law Reform, Mary Robinson, who later became the first female...
and of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Vriend v. Alberta
Vriend v. Alberta
Vriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation...
, finding that heterosexist discrimination causes psychological harm to gays and lesbians and affects their dignity and self-esteem. It also observed that the criminalisation of sodomy legitimises blackmail, entrapment and "queer-bashing". Noting that gay men are a permanent minority in society who have been severely affected by discrimination, and that the conduct that is criminalised is consensual and causes no harm to others, the judgment determined that the discrimination is unfair and therefore infringes on the constitutional right to equality.
The judgment then proceeded to examine the sodomy laws against the constitutional rights to human dignity and privacy. Observing that the laws punish an act that society associates with homosexuality and thereby stigmatise gay men, as well as putting them at risk of prosecution for "[engaging] in sexual conduct which is part of their experience of being human", the court determined that the right to dignity was infringed.
Dealing with privacy, the court referred again to Cameron's article; he had suggested that the argument based on privacy was inadequate because it implied that the protection against discrimination should be limited to tolerance of private acts. The court noted that the article was published at a time when the inclusion of sexual orientation as a ground for anti-discrimination proctection was still being debated, and that Cameron's argument did not apply when the judgment had already found the discrimination to be unconstitutional on the grounds of equality and dignity.
Having found that the sodomy laws breached constitutional rights, the court then proceeded to ask whether the infringement was justifiable "in an open and democratic society based on human dignity, equality and freedom". The court found that, on the one hand, the criminalisation of sodomy had severe effects on the lives of gay men, and, on the other hand, that no valid purpose had been suggested for the infringement. It pointed out that religious views could not influence constitutional jurisprudence in a secular country.
The court also examined the situation in other democratic countries, observing that sodomy had been decriminalised in the United Kingdom, Ireland, Germany, Australia, New Zealand and Canada, and throughout Western Europe. The court did take note that Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
was still (at that time) law in the United States, but pointed out its inconsistency with Romer v. Evans
Romer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
. The result of the balancing test was that the infringements of the rights of gay men could in no way be justified in an open and democratic society.
The court noted that male rape could be prosecuted as indecent assault
Indecent assault
Indecent assault is an offence of aggravated assault in many jurisdictions. It is characterised as a sex crime.Indecent assault was an offence in England and Wales under sections 14 and 15 the Sexual Offences Act 1956...
, and that the Sexual Offences Act created a separate statutory offence criminalising same-sex sexual acts with a person under the age of 19. There was therefore no need to retain a limited offence of sodomy to deal with non-consensual or underage sex, and it could be entirely struck out of the common law. Considering the "men at a party" offence, the court described it as "absurdly discriminatory" and declared it to be unconstitutional for the same reasons that the offence of sodomy was.
The final question before the court was the exact nature of the order to be made and, in particular, to what extent it should be retroactive. The court ruled that, in law, the offences in question ceased to exist on 27 April 1994, when the Interim Constitution came into force. The order, however, provided that past convictions should only be invalidated if they were for consensual acts and the case had not been completely finalised; the court pointed out that those whose cases were final could apply for leave to appeal and condonation of their delay in appealing, in light of the judgment. The order also provided that actions taken as a result of the inclusion of sodomy in the schedules to the Criminal Procedure Act and the Security Officers Act should not be invalidated unless a court found that it would be just and equitable to do so.
Subsequently
The judgment was the first by the Constitutional Court to deal with LGBT rights. It was followed by a series of rulings relating to the recognition of same-sex relationships which granted, amongst others, immigration benefits, the ability to adopt, medical and pension benefits, rights related to artificial insemination, and intestate inheritance rights. This trend was completed by the ruling in Minister of Home Affairs v Fourie, which led to the Civil Union Act and the legalisation of same-sex marriageSame-sex marriage in South Africa
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
.
The court's ruling on the sodomy laws did not address the inequality in the Sexual Offences Act
Sexual Offences Act, 1957
The Sexual Offences Act, 1957 is an act of the Parliament of South Africa which, in its current form, prohibits prostitution, brothel-keeping and procuring, and other activities related to prostitution...
, which set the age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
at 16 for heterosexual sex but 19 for homosexual sex. This discrepancy was addressed in 2007 by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, which reformed and codified the law relating to sexual offences to place it on a gender- and orientation-neutral basis, setting a uniform age of consent at 16. The erstwhile discrepancy was declared to be unconstitutional in 2008, in the case of Geldenhuys v National Director of Public Prosecutions
Geldenhuys v National Director of Public Prosecutions
Geldenhuys v National Director of Public Prosecutions and Others is a decision of the Constitutional Court of South Africa which struck down as unconstitutional provisions in the Sexual Offences Act, 1957 which set an age of consent of 19 for homosexual sex but only 16 for heterosexual sex...
.
See also
- LGBT rights in South Africa
Similar cases:
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