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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 11/98
THE NATIONAL COALITION FOR
GAY AND
LESBIAN EQUALITY First Applicant
THE SOUTH AFRICAN HUMAN
RIGHTS
COMMISSION Second Applicant
versus
THE
MINISTER OF JUSTICE First Respondent
THE MINISTER OF SAFETY AND
SECURITY Second Respondent
THE ATTORNEY-GENERAL OF THE
WITWATERSRAND
Third Respondent
Heard on : 27 August 1998
Decided on : 9 October 1998
ACKERMANN
J:
Introduction
[1] This matter concerns the
confirmation of a declaration of constitutional invalidity of -
(a) section 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”);
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 section 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 1996.
2. 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 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. It is declared that section 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 of the Criminal Procedure Act, 1977 is inconsistent with the 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, in so far as they declare provisions of Acts of Parliament invalid, are referred to the Constitutional Court for confirmation in terms of section 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 section
172(2)(a)[3] of the 1996 Constitution
neither requires confirmation by the Constitutional Court of orders of
constitutional invalidity of common
law offences nor empowers a referral for
such purpose.
[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 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 which
functions under section 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:
“(a) an order declaring that the common-law offence of sodomy is inconsistent with the Constitution of the Republic of South Africa, 1996 (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 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;
(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;
(e) an order declaring that section 20A of the Sexual Offences Act, 1957 (Act 23 of 1957) is inconsistent with the Constitution and invalid;
(f) an order setting aside any conviction for the offence of contravening section 20A of the Sexual Offences Act 1957 (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;
(g) an order declaring the inclusion of sodomy as an item in Schedule 1 of the Criminal Procedure Act, 1977 (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 of the Criminal Procedure Act (Act 51 of 1977);
(i) an order declaring that the inclusion of sodomy as an item in the Schedule to the Security Officers Act, 1987 (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 (Act 92 of 1987);
(k) an order granting the Applicants further and/or alternative relief;
(l) only if this application should be opposed, an order directing the Respondent or Respondents so opposing to pay the First Applicant’s costs.”
[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 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 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 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
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 such
provisions, but are merely described as
offences listed in Schedule 1 of the CPA. The effect of the inclusion of the
offence of
sodomy in Schedule 1 is, amongst other things, the following:
(i) Section 37(1)(a)(iv) of the CPA empowers any police official to take fingerprints, palm-prints or footprints of any person on whom a summons has been served in respect of the offence of sodomy;
(ii) Section 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;
(iii) Section 42(1)(a) of the CPA allows a private person to arrest any person with or without a valid warrant if the private person reasonably suspects the individual has committed sodomy;
(iv) Section 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 flees, and there is no other way to arrest the suspect or to prevent him from fleeing;
(v) Sections 60(4)(a), 60(5)(e) and 60(5)(g) of the CPA provide 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 has a disposition to do so or has previously committed sodomy while released on bail;
(vi) Section 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) Section 3(1)(b) of the Interception and Monitoring Prohibition Act, 127 of 1992 (read with the definition of “serious offence” under section 1 of that Act), allows the state to intercept postal articles and private communications necessary for investigating sodomy;
(viii) Section 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;
(ix) Section 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 section 1 of that Act;
(x) Section 2(1)(c) of the Special Pensions Act precludes a surviving spouse or surviving dependent from receiving a surviving dependant’s pension if the pensioner has been convicted of the offence of sodomy.
[8] In terms of the Security Officers
Act certain negative consequences follow if a person is found guilty of certain
offences or
commits certain acts listed in the Schedule to such Act. The
offence of sodomy is listed in such schedule. The effect of the inclusion
of
the offence of sodomy in the Security Officers Act Schedule is the
following:
(i) Under section 12(1)(b) of the Security Officers Act any person convicted of sodomy is prohibited from registering as a security officer.
(ii) Under section 15(1)(a)(i) the registration of a security officer who is found guilty of sodomy may be withdrawn.
(iii) Under section 20(1)(b) a security officer who commits sodomy may be found guilty of improper conduct.
[9] Although the
constitutionality of the common law offence of sodomy is not directly before us,
a finding of constitutional invalidity
is an indispensable and unavoidable step
in concluding that the provisions referred to in paragraphs (4) and (5) of the
order are
constitutionally invalid. In this indirect sense the correctness or
otherwise of the High Court’s finding regarding the offence
of sodomy is
before this Court and has to be decided.
[10] Before dealing with the
judgment in the High Court it is convenient to quote the provisions of the two
Constitutions dealing
with the guarantee of equality. Both are relevant for
issues to be dealt with later. Section 8 of the interim
Constitution,[6] to the extent
presently relevant, provided:
“(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.
(b) . . . .
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.”
Section 9 of the 1996
Constitution stipulates:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The High Court Judgment
[11] [ Heher J, in the High Court, based his judgment declaring the common law crime of sodomy to be inconsistent with the 1996 Constitution exclusively on the breach of the right to equality. So too did Farlam J (Ngcobo J concurring) in S v K,[7] a case heavily relied on by Heher J in coming to the conclusion that the common law crime of sodomy ceased to exist after the coming into effect of the interim Constitution[8]. Before the new constitutional order came into operation in our country, the common law offence of sodomy differentiated between gays and heterosexuals and between gays and lesbians. It criminally proscribed sodomy between men and men, even in private between consenting adults, but not between men and women; nor did it proscribe intimate sexual acts in private between consenting adult women. As far as there being any rational connection between such differentiation and a legitimate government purpose,[9] Heher J simply held that:
“. . . respondents have not suggested a reasoned basis for the differentiation which may further the aims of government and I am unable to think of any.”1[0]
Heher
J pointed out that if the differentiation was on one of the grounds listed in
section 9(3) of the 1996 Constitution (in the
present case on the ground of
“sexual orientation”) it was presumed to be unfair (under section
9(5)). He immediately
proceeded to consider whether the offence of sodomy was
justified under section 36 of the 1996 Constitution, without expressly
considering
the question whether, notwithstanding the presumption under section
9(3), it had been established that the discrimination was fair.
He found (by
necessary implication) that no such justification existed and held that the
crime in question could not withstand constitutional
scrutiny in as much as
“no rational basis for [its] retention . . . can be
offered.”1[1]
[12] Heher J’s approach to the common law offence of committing
an unnatural sexual act was different. Having found, under
section 9(1) of the
1996 Constitution, that there was no connection between the differentiation
involved in this offence and any
legitimate governmental purpose, he immediately
turned to the question of justification. He concluded that there was no
justification
for maintaining the common law crime of committing an unnatural
sexual act by a man or between men, if such act would not constitute
an offence
if committed by a woman, between women or between a man and a woman; and made a
declaration of constitutional inconsistency
accordingly.
[13] Section
20A of the Sexual Offences Act provides as follows:
“(1) A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence.
(2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present.
(3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law.”
The High Court found that these
provisions manifested a twofold differentiation. First, differentiation on the
grounds of “sex
(gender)” because the provisions criminalised only
certain conduct by men; no acts of an equivalent nature performed by women
or
by men and women together are criminalised under the Act. Second, on grounds of
sexual orientation, because “the target
of the section is plainly men with
homosexual tendencies albeit that the wording is wide enough to embrace
heterosexuals.”1[2] Neither
basis for differentiation, the judgment proceeds, bears a rational connection to
any legitimate governmental purpose. As
both are listed in section 9(3)
unfairness is presumed, and without considering whether fairness had been
established, Heher J immediately
proceeded to consider whether the violation of
section 9 could be justified under section
36.1[3] He found that it could
not.1[4] Having found the offence
of sodomy to be constitutionally invalid Heher J concluded, as an inescapable
consequence (and correctly
so on that premise), that the inclusion of sodomy in
Schedule 1 of the CPA and in the Security Officers Act was likewise
constitutionally
invalid.
The Constitutional Validity of the Common
Law Offence of Sodomy
[14] I shall for the moment deal only with
sodomy which takes place in private between consenting males. The long history
relating
to the ways in which the South African criminal common law
differentiated in its treatment of gays as opposed to its treatment of
heterosexuals and lesbians, prior to the passing of the interim Constitution,
has already been dealt with in at least three judgments
of the High
Court.1[5] The conclusions can be
briefly stated. The offence of sodomy, prior to the coming into force of the
interim Constitution, was defined
as “unlawful and intentional sexual
intercourse per anum between human males”, consent not depriving the act
of unlawfulness,
“and thus both parties commit the
crime”.1[6] Neither anal nor
oral sex in private between a consenting adult male and a consenting adult
female was punishable by the criminal
law. Nor was any sexual act, in private,
between consenting adult females so punishable.
The Infringement of the
Equality Guarantee
The Equality Analysis.
[15] In what
follows I will proceed on the assumption that the equality jurisprudence and
analysis developed by this Court in relation
to section 8 of the interim
Constitution1[7] is applicable
equally to section 9 of the 1996 Constitution, notwithstanding certain
differences in the wording of these provisions.
It is relevant to mention at
this point that Mr Davis, who appeared for the amicus curiae, submitted that a
more substantive interpretation
should be given to the provisions of section
9(1) of the 1996 Constitution than this Court has given to the provisions of
section
8(1) of the interim Constitution. Mr Davis did not suggest that the
outcome of this referral should be other than supported by Mr
Marcus. His
argument went to the reasoning used to arrive at that result. I shall deal with
these submissions later in this judgment.
[16] Neither section 8 of the
interim Constitution nor section 9 of the 1996 Constitution envisages a passive
or purely negative
concept of equality; quite the contrary. In Brink v
Kitshoff NO, O’Regan J, with the concurrence of all the members of the
Court, stated:
“Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of section 8 and, in particular, subsections (2), (3) and (4).”1[8]
[17] [ In Prinsloo1[9] and in Harksen2[0] a multi-stage enquiry was postulated as being necessary when an attack of constitutional invalidity was based on section 8 of the interim Constitution. In Harksen the approach was summarised as follows:
“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution. They are:
(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).”2[1]
[18] This
does not mean, however, that in all cases the rational connection inquiry of
stage (a) must inevitably precede stage (b).
The stage (a) rational connection
inquiry would be clearly unnecessary in a case in which a court holds that the
discrimination
is unfair and unjustifiable. I proceed with the enquiry as to
whether the differentiation on the ground of sexual orientation constitutes
unfair discrimination. Being a ground listed in section 9(3) it is presumed, in
terms of section 9(5), that the differentiation
constitutes unfair
discrimination “unless it is established that the discrimination is
fair.” Although nobody in this
case contended that the discrimination was
fair, the Court must still be satisfied, on a consideration of all the
circumstances,
that fairness has not been established.
[19] Although, in
the final analysis, it is the impact of the discrimination on the complainant or
the members of the affected group
that is the determining factor regarding the
unfairness of the discrimination, the approach to be adopted, as appears from
the decision
of this Court in Harksen, is comprehensive and nuanced. In
Harksen, after referring to the emphasis placed on the impact of the
discrimination in his judgment in Hugo, Goldstone J went on to
say:
“The nature of the unfairness contemplated by the provisions of section 8 was considered in paragraphs 41 and 43 of the majority judgment in the Hugo case.
. . . .
In paragraph 41 dignity was referred to as an underlying consideration in the determination of unfairness. The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner.
. . . .
In order to determine whether the discriminatory provision has impacted on complainants unfairly, various factors must be considered. These would include:
(a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not;
(b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely, disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair;
(c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature.
These factors, assessed objectively, will assist in giving ‘precision and elaboration’ to the constitutional test of unfairness. They do not constitute a closed list. Others may emerge as our equality jurisprudence continues to develop. In any event it is the cumulative effect of these factors that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.”2[2] (Footnotes omitted).
The Impact of the Discrimination Resulting from
the Criminalisation of Sodomy on the Members of the Group(s)
Affected
[20] In what follows I rely heavily on an influential
article written by Prof Edwin
Cameron.2[3] According to the
Shorter Oxford English Dictionary “orientation” means
“[a] person’s (esp. political or psychological) attitude or
adjustment in relation to
circumstances, ideas, etc; determination of
one’s mental or emotional position.” As to “sexual
orientation”, I adopt the following definition put forward by
Cameron:
“. . . sexual orientation is defined by reference to erotic attraction: in the case of heterosexuals, to members of the opposite sex; in the case of gays and lesbians, to members of the same sex. Potentially a homosexual or gay or lesbian person can therefore be anyone who is erotically attracted to members of his or her own sex.”2[4]
[21] The
concept “sexual orientation” as used in section 9(3) of the 1996
Constitution must be given a generous interpretation
of which it is
linguistically and textually fully capable of bearing. It applies equally to
the orientation of persons who are bi-sexual,
or transsexual and it also
applies to the orientation of persons who might on a single occasion only be
erotically attracted to
a member of their own
sex.2[5]
[22] The desire for
equality is not a hope for the elimination of all differences.
“The experience of subordination - of personal subordination, above all - lies behind the vision of equality.”2[6]
To
understand “the other” one must try, as far as is humanly possible,
to place oneself in the position of “the
other”.
“It is easy to say that everyone who is just like ‘us’ is entitled to equality. Everyone finds it more difficult to say that those who are ‘different’ from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any . . . group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of . . . society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy.”2[7]
[23] The discriminatory prohibitions on sex between men
reinforces already existing societal prejudices and severely increases the
negative effects of such prejudices on their lives.
“Even when these provisions are not enforced, they reduce gay men . . . to what one author has referred to as ‘unapprehended felons’, thus entrenching stigma and encouraging discrimination in employment and insurance and in judicial decisions about custody and other matters bearing on orientation.” (Footnotes omitted).2[8]
The
European Court of Human Rights has correctly, in my view, recognised the often
serious psychological harm for gays which results
from such discriminatory
provisions:
“[o]ne of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow . . .”2[9]
So
has the Supreme Court of Canada in Vriend v
Alberta:3[0]
“Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates [sic] the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.”
These observations were made in the context of
discrimination on grounds of sexual orientation in the employment field and
would apply
with even greater force to the criminalisation of consensual sodomy
in private between adult males.
[24] But such provisions also impinge
peripherally in other harmful ways on gay men which go beyond the immediate
impact on their
dignity and self-esteem. Their consequences -
“legitimate or encourage blackmail, police entrapment, violence (‘queer-bashing’) and peripheral discrimination, such as refusal of facilities, accommodation and opportunities.”3[1]
[25] The
impact of discrimination on gays and lesbians is rendered more serious and their
vulnerability increased by the fact that
they are a political minority not able
on their own to use political power to secure favourable legislation for
themselves.3[2] They are
accordingly almost exclusively reliant on the Bill of Rights for their
protection.
[26] I turn now to consider the impact which the common law
offence of sodomy has on gay men in the light of the approach developed
by this
Court and referred to in paragraph 19 above:
(a) The discrimination is
on a specified ground. Gay men are a permanent minority in society and have
suffered in the past from patterns
of disadvantage. The impact is severe,
affecting the dignity, personhood and identity of gay men at a deep level. It
occurs at
many levels and in many ways and is often difficult to
eradicate.
(b) The nature of the power and its purpose is to criminalise
private conduct of consenting adults which causes no harm to anyone
else. It
has no other purpose than to criminalise conduct which fails to conform with the
moral or religious views of a section
of society.
(c) The discrimination
has, for the reasons already mentioned, gravely affected the rights and
interests of gay men and deeply impaired
their fundamental
dignity.
[27] The above analysis confirms that the discrimination is
unfair.3[3] There is nothing which
can be placed in the other balance of the scale. The inevitable conclusion is
that the discrimination in
question is unfair and therefore in breach of section
9 of the 1996 Constitution.
The Common-law Offence of Sodomy as an
Infringement of the Rights to Dignity and Privacy
[28] Thus far I
have considered only the common-law crime of sodomy on the basis of its
inconsistency with the right to equality.
This was the primary basis on which
the case was argued. In my view, however, the common-law crime of sodomy also
constitutes an
infringement of the right to dignity which is enshrined in
section 10 of our Constitution. As we have emphasised on several
occasions,3[4] the right to dignity
is a cornerstone of our Constitution. Its importance is further emphasised by
the role accorded to it in section
36 of the Constitution which provides
that:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. . .”.
Dignity is a difficult concept to
capture in precise terms.3[5] At
its least, it is clear that the constitutional protection of dignity requires us
to acknowledge the value and worth of all individuals
as members of our society.
The common-law prohibition on sodomy criminalises all sexual intercourse per
anum between men: regardless
of the relationship of the couple who engage
therein, of the age of such couple, of the place where it occurs, or indeed of
any other
circumstances whatsoever. In so doing, it punishes a form of sexual
conduct which is identified by our broader society with homosexuals.
Its
symbolic effect is to state that in the eyes of our legal system all gay men are
criminals. The stigma thus attached to a significant
proportion of our
population is manifest. But the harm imposed by the criminal law is far more
than symbolic. As a result of the
criminal offence, gay men are at risk of
arrest, prosecution and conviction of the offence of sodomy simply because they
seek to
engage in sexual conduct which is part of their experience of being
human. Just as apartheid legislation rendered the lives of couples
of different
racial groups perpetually at risk, the sodomy offence builds insecurity and
vulnerability into the daily lives of gay
men. There can be no doubt that the
existence of a law which punishes a form of sexual expression for gay men
degrades and devalues
gay men in our broader society. As such it is a palpable
invasion of their dignity and a breach of section 10 of the
Constitution.
[29] Counsel for the applicant argued, in the alternative,
that the provisions were in breach of section 14 of the Constitution,
the right
to privacy. In so doing, however, the applicant adopted the reasoning of
Cameron:
“[T]he privacy argument has detrimental effects on the search for a society which is truly non-stigmatizing as far as sexual orientation is concerned. On the one hand, the privacy argument suggests that discrimination against gays and lesbians is confined to prohibiting conduct between adults in the privacy of the bedroom. This is manifestly not so. On the other hand, the privacy argument may subtly reinforce the idea that homosexual intimacy is shameful or improper: that it is tolerable so long as it is confined to the bedroom — but that its implications cannot be countenanced outside. Privacy as a rationale for constitutional protection therefore goes insufficiently far, and has appreciable drawbacks even on its own terms.”3[6]
[30] It
seems to me that these remarks should be understood in the context in which they
were made. They were made during an inaugural
lecture given on 27 October 1992
at the time that negotiations concerning the new Constitution were imminent. At
the time, there
was considerable discussion as to what rights should or should
not be included in a Bill of Rights, and the subject of the lecture
was the
question of how sexual orientation ought to be protected in the new
Constitution. The author was asserting that sexual orientation
should be
treated as a ground for non-discrimination in the new Constitution and that
reliance on privacy alone would be inadequate.
Cameron’s concern that
discrimination against gay men ought not to be proscribed on the ground of the
right to privacy only,
is understandable. I would emphasise that in this
judgment I find the offence of sodomy to be unconstitutional because it breaches
the rights of equality, dignity and privacy. The present case illustrates how,
in particular circumstances, the rights of equality
and dignity are closely
related, as are the rights of dignity and privacy.
[31] It does not seem to
me that we should conclude from these remarks that where our law places a
blanket criminal ban on certain
forms of sexual conduct, it does not result in a
breach of privacy. That cannot, in my view, be the correct interpretation of
those
remarks. This court has considered the right to privacy entrenched in our
Constitution on several occasions. In Bernstein v
Bester,3[7] it was said that
rights should not be construed absolutely or individualistically in ways which
denied that all individuals are members
of a broader community and are defined
in significant ways by that membership:
“In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community . . . . Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”3[8]
[32] Privacy
recognises that we all have a right to a sphere of private intimacy and autonomy
which allows us to establish and nurture
human relationships without
interference from the outside community. The way in which we give expression to
our sexuality is at
the core of this area of private intimacy. If, in
expressing our sexuality, we act consensually and without harming one another,
invasion of that precinct will be a breach of our privacy. Our society has a
poor record of seeking to regulate the sexual expression
of South Africans. In
some cases, as in this one, the reason for the regulation was discriminatory;
our law, for example, outlawed
sexual relationships among people of different
races. The fact that a law prohibiting forms of sexual conduct is
discriminatory,
does not, however, prevent it at the same time being an improper
invasion of the intimate sphere of human life to which protection
is given by
the Constitution in section 14. We should not deny the importance of a right to
privacy in our new constitutional order,
even while we acknowledge the
importance of equality. In fact, emphasising the breach of both these rights in
the present case highlights
just how egregious the invasion of the
constitutional rights of gay persons has been. 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.
Justification
[33] Although section
36(1)3[9] of the 1996 Constitution
differs in various respects from section 33 of the interim
Constitution4[0] its application
still involves a process, described in S v Makwanyane and
Another4[1] as the “. . .
weighing up of competing values, and ultimately an assessment based on
proportionality . . . which calls for
the balancing of different
interests.”
[34] In Makwanyane the relevant considerations
in the balancing process were stated to include “. . . the nature of the
right that is limited,
and its importance to an open and democratic society
based on freedom and equality; the purpose for which the right is limited and
the importance of that purpose to such a society; the extent of the limitation,
its efficacy and, particularly where the limitation
has to be necessary, whether
the desired ends could reasonably be achieved through other means less damaging
to the right in question.”4[2]
The relevant considerations in the balancing process are now expressly stated in
section 36(1) of the 1996 Constitution to include
those itemised in paragraphs
(a) to (e) thereof. In my view this does not in any material respect alter the
approach expounded in
Makwanyane, save that paragraph (e) requires that
account be taken in each limitation evaluation of “less restrictive means
to achieve
the purpose [of the
limitation].”4[3] Although
section 36(1) does not expressly mention the importance of the right, this is a
factor which must of necessity be taken
into account in any proportionality
evaluation.
[35] The balancing of different interests must still take
place. On the one hand there is the right infringed; its nature; its
importance in an open and democratic society based on human dignity, equality
and freedom; and the nature and extent of the limitation.
On the other hand
there is the importance of the purpose of the limitation. In the balancing
process and in the evaluation of proportionality
one is enjoined to consider the
relation between the limitation and its purpose as well as the existence of less
restrictive means
to achieve this
purpose.4[4]
[36] The
criminalisation of sodomy in private between consenting males is a severe
limitation of a gay man’s right to equality
in relation to sexual
orientation, because it hits at one of the ways in which gays give expression to
their sexual orientation.
It is at the same time a severe limitation of the gay
man’s rights to privacy, dignity and freedom. The harm caused by the
provision can, and often does, affect his ability to achieve self-identification
and self-fulfilment. The harm also radiates out
into society generally and
gives rise to a wide variety of other discriminations, which collectively
unfairly prevent a fair distribution
of social goods and services and the award
of social opportunities for gays.
[37] Against this must be considered
whether the limitation has any purpose and, if so, its importance. No valid
purpose has been
suggested. The enforcement of the private moral views of a
section of the community, which are based to a large extent on nothing
more than
prejudice, cannot qualify as such a legitimate purpose. There is accordingly
nothing, in the proportionality enquiry,
to weigh against the extent of the
limitation and its harmful impact on gays. It would therefore seem that there
is no justification
for the limitation.
[38] As far as religious views
and influences are concerned I would repeat what was stated in S v
H:4[5]
“There is still a substantial body of theological thought which holds that the basic purpose of the sexual relationship is procreation and for that reason also proscribes contraception. There is an equally strong body of theological thought that no longer holds the view. Societal attitudes to contraception and marriages which are deliberately childless are also changing. These changing attitudes must inevitably cause a change in attitudes to homo-sexuality.”
It would not be judicially proper to
go further than that in the absence of properly admitted expert evidence. I
think it necessary
to point out, in the context of the present case, that apart
from freedom of expression,4[6]
freedom of conscience, religion, thought, belief and opinion are also
constitutionally protected values under the 1996
Constitution.4[7] The issues in
this case touch on deep convictions and evoke strong emotions. It must not be
thought that the view which holds that
sexual expression should be limited to
marriage between men and women with procreation as its dominant or sole purpose,
is held by
crude bigots only. On the contrary, it is also sincerely held, for
considered and nuanced religious and other reasons, by persons
who would not
wish to have the physical expression of sexual orientation differing from their
own proscribed by the law4[8]. It
is nevertheless equally important to point out, that such views, however
honestly and sincerely held, cannot influence what
the Constitution dictates in
regard to discrimination on the grounds of sexual
orientation.
[39] There is nothing in the jurisprudence of other open
and democratic societies based on human dignity, equality and freedom which
would lead me to a different conclusion. In fact, on balance, they support such
a conclusion. In many of these countries there
has been a definite trend
towards decriminalisation.
[40] In 1967 in England and
Wales,4[9] and in 1980 in
Scotland,5[0] sodomy between
consenting adult males in private was decriminalised. However, in Northern
Ireland the criminal law relating to sodomy
remained unchanged. In 1981, in
Dudgeon v United Kingdom,5[1]
the European Court of Human Rights held that the sodomy laws of Northern Ireland
was in breach of the article 85[2]
privacy provisions of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (“the European Convention”)
to the extent
that they criminalised sodomy between adult consenting males in private. In
1982 Northern Ireland amended its laws
accordingly.5[3] The same
conclusion was reached in 1988 in Norris v
Ireland.5[4] It took Ireland
nearly five years to comply with Norris but it eventually did so in
1993.5[5]
[41] [ In S v Makwanyane5[6] the President of the Court pointed out that because of the “margin of appreciation” allowed to the national authorities by the European Court of Human Rights, the jurisprudence of the European Court would not necessarily be a safe guide as to what would be appropriate under section 33(1) of the interim Constitution.5[7] This is particularly true in the case where the European Court finds that there is no infringement of a Convention right. It was to this situation in particular that the President was, in my view, addressing himself. But when the European Court finds that there has been a contravention, it reaches this finding after due regard has been had to the particular national authority’s margin of appreciation. This suggests that there must be a very clear breach.
[42] If nothing else, the
judgments in Dudgeon and Norris are indicative of the changes in
judicial and social attitudes in recent years. In Dudgeon, a judgment
delivered nearly seventeen years ago, the following was
stated:5[8]
“As compared with the era when [the] legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member-States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member-States.” (Footnote omitted).
[43] Article 3.3 of the German Grundgesetz
(GG)5[9] does not include sexual
orientation as a ground on which a person may not be “favoured or
disfavoured”. Under section
175 of the German Criminal Law Code
(“CLC”) of 1935 a man who committed a sexual act (“Unzucht
treibt”) on
another man or permitted a sexual act to be committed on
himself was punishable with imprisonment; an exception could be made in
the case
of a man under 21 years of age. Section 175a prescribed minimum and maximum
sentences for particular cases of “Unzucht
treiben”.6[0] This section
was repealed in 1969.
[44] Section 175 of the CLC was finally repealed
in 1994, with the consequence that private consensual sexual relations between
males
are no longer criminalised. All men and women under the age of 16 now
receive the same protection under section 182 of the CLC in
respect of sexual
acts, whether they are heterosexual, gay or
lesbian.6[1]
[45] Laws
prohibiting homosexual activity between consenting adults in private have been
eradicated within 23 member states that
had joined the Council of Europe by 1989
and of the ten European countries that have joined since (as at 10 February
1995) nine had
similarly decriminalised sodomy either before or shortly after
their membership applications were
granted.6[2]
[46] In
Australia, all the states, with the exception of Tasmania, had by 1992
decriminalised sexual acts in private between consenting
adults and some had
also passed anti-discrimination laws which prohibited discrimination on the
ground, amongst others, of sexual
orientation.6[3] However, in
Toonen v Australia6[4] the
United Nations Human Rights Committee found that the Tasmanian laws prohibiting
sexual activity between men violates the privacy
provision of the International
Covenant on Civil and Political Rights
(ICCPR),6[5] which entered into
force for Australia on 25 December 1991.
[47] The Toonen finding
inspired the national Human Rights (Sexual Conduct)
Act6[6] in 1994, promulgated to
implement Australia’s international obligations under article 17 of the
ICCPR. Article 4(1) of this
Act provides that “[s]exual conduct involving
only consenting adults acting in private is not to be subject, by or under any
law of the Commonwealth, a State or a Territory, to any arbitrary interference
with privacy within the meaning of Article 17. . .”.
1994 also saw New
South Wales amending its Anti-Discrimination
Act6[7] to include a provision
banning discrimination on the ground of homosexuality. Tasmania repealed the
offending sections in its Criminal
Code (the subject of the Toonen
finding) in 1997. This marked the final decriminalisation of consensual
homosexual sex in Australia.
[48] Consensual sexual relations between
adult males have been decriminalised in New
Zealand6[8]. Although the New
Zealand Bill of Rights (1990) does not refer to discrimination on the ground of
sexual orientation,6[9] the Human
Rights Act, 82 of 1993 includes sexual orientation (“which means a
heterosexual, homosexual, lesbian, or bisexual
orientation”) as a
prohibited ground of discrimination under section
21(1)(m)7[0].
[49] Despite
the fact that section 15(1) of the Canadian
Charter7[1] does not expressly
include sexual orientation as a prohibited ground of discrimination, the
Canadian Supreme Court has held that
sexual orientation is a ground analogous to
those listed in section 15(1):
“In Egan, it was held, on the basis of ‘historical social, political and economic disadvantage suffered by homosexuals’ and the emerging consensus among legislatures (at para 176), as well as previous judicial decisions (at para 177), that sexual orientation is a ground analogous to those listed in s. 15(1).”7[2]
[50] In
Canada, consensual adult sodomy (“buggery”) and so-called
“gross indecency” were decriminalised by
statute in 1969 in respect
of such acts committed in private between persons 21 years and
older.7[3] Currently section 159(1)
and (2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46 provides the
following:
“(1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(2) Subsection (1) does not apply to any act engaged in, in private, between
(a) husband and wife, or
(b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.”
According to Canadian
law -
“[a]nyone who is 14 or older, whether married or not, can consent to most forms of non-exploitative sexual conduct, including vaginal intercourse, without criminal consequences.”7[4]
[51] [ In R v M (C)7[5] the Ontario Court of Appeal held that section 159 infringes section 15(1) of the Charter. Abella JA based her finding on the ground of sexual orientation and Goodman and Catzman JJA on grounds of age. The learned Justices all agreed that the infringement was not justifiable under section 1 of the Charter. Abella JA, in her judgment dealing with the infringement of section 15(1) concluded that the distinction in age found in section 159 imposes a burden based on sexual orientation and arbitrarily disadvantages gay men by:
“denying to them until they are 18 a choice available at the age of 14 to those who are not gay, namely, their choice of sexual expression with a consenting partner to whom they are not married.”
She
held that it has an adverse impact on them and arbitrarily and stereotypically
perpetuates rather than narrows the gap for a historically
disadvantaged
group.7[6]
[52] The above
survey shows that in 1967 a process of change commenced in Western democracies
in legal attitudes towards sexual orientation.
This process has culminated, in
many jurisdictions, in the decriminalisation of sodomy in private between
consenting adults. By
1996 sodomy in private between consenting adults had been
decriminalised in the United Kingdom and Ireland, throughout most of Western
Europe, Australia (with the exception of Tasmania), New Zealand and
Canada.
[53] [ An exception to this trend is the United States of America, as illustrated by the judgment of the Supreme Court in Bowers v Hardwick.7[7] In this case, a sharply divided Court, by a majority of five to four, declared itself unpersuaded that the sodomy laws of some 25 states should be invalidated.
[54] Bowers v Hardwick has been the
subject of sustained criticism.7[8]
It is interesting to note that in the recent case of Romer v
Evans,7[9] the United States
Supreme Court has, without referring to its decision in Bowers v
Hardwick, struck down an amendment to the Colorado State Constitution which
prohibited public measures designed to protect persons based on
their sexual
orientation.
[55] For purposes of the present case I consider it
unnecessary to consider such criticism nor what the present standing of
Bowers is in the United States. Our 1996 Constitution differs so
substantially, as far as the present issue is concerned, from that of
the United
States of America that the majority judgment in Bowers can really
offer us no assistance in the construction and application of our own
Constitution. The 1996 Constitution contains express privacy
and dignity
guarantees8[0] as well as an express
prohibition of unfair discrimination on the ground of sexual orientation, which
the United States Constitution
does not. Nor does our Constitution or
jurisprudence require us, in the way that the United States Constitution
requires of its
Supreme Court, in the case of “. . . rights not readily
identifiable in the Constitution’s text,” to “. .
. identify
the nature of the rights qualifying for heightened judicial
protection”.8[1]
[56] There are other democratic countries beside the United States
which have not yet decriminalised sodomy in private between consenting
adult
males. Unlike the constitutions of these countries, however, our 1996
Constitution specifically mentions “sexual orientation”
as a listed
ground in section 9(3) on which the state may not unfairly discriminate, it
being presumed (until the contrary is established)
that discrimination on such
ground constitutes unfair discrimination and thus a breach of section
9.8[2]
[57] A number of open
and democratic societies have turned their backs on the criminalisation of
sodomy in private between adult
consenting males, despite the fact that sexual
orientation is not expressly protected in the equality provisions of their
constitutions.
Their reasons for doing so, which are referred to above, fortify
the conclusion which I have reached that the limitation in question
in our law
regarding such criminalisation cannot be justified under section 36(1) of the
1996 Constitution. I would have reached
this conclusion if the right to
equality alone had been breached. The fact that the constitutional rights of
gay men to dignity
and privacy have also been infringed places justification
even further beyond the bounds of possibility.
Submission on Behalf of
the Amicus Curiae
[58] It is convenient at this stage to deal with
the submissions advanced on behalf of the amicus curiae. As already mentioned
above
it is not suggested that these submissions would or should lead to a
result any different from that contended for by Mr Marcus on
behalf of the
applicant. The thrust of Mr Davis’s submissions was that this
Court’s interpretation of section 8(1) of
the interim Constitution is
inadequate in that it does not give sufficient weight or emphasis to what he
called substantive equality.
He contended that section 9(1) differed
substantially from its predecessor chiefly because the words “and
benefit” had
been added to the words “equal
protection”.
[59] There is no substance in this last submission.
Whatever the proper construction of section 9 as a whole may be, the addition
of
the words “and benefit” in section 9(1) has not resulted in any
change of substance in its objectives. Section 9(1)
makes clear what was
already manifestly implicit in section 8(1) of the interim Constitution, namely,
that both in conferring benefits
on persons and by imposing restraints on state
and other action, the state had to do so in a way which results in the equal
treatment
of all persons. It was indeed so decided in Hugo’s case,
where a benefit granted to the mothers of children below the age of twelve
years, but not to the fathers of such children,
was held to constitute
discrimination for purposes of section 8(2) of the interim Constitution and
presumed to be unfair, because
the discrimination was based on a combination of
grounds listed in section
8(2).8[3]
[60] Before
dealing with Mr Davis’s remaining submissions, it is necessary to comment
on the nature of substantive equality,
a contested expression which is not found
in either of our Constitutions. Particularly in a country such as South Africa,
persons
belonging to certain categories have suffered considerable unfair
discrimination in the past. It is insufficient for the Constitution
merely to
ensure, through its Bill of Rights, that statutory provisions which have caused
such unfair discrimination in the past
are eliminated. Past unfair
discrimination frequently has ongoing negative consequences, the continuation of
which is not halted
immediately when the initial causes thereof are eliminated,
and unless remedied, may continue for a substantial time and even indefinitely.
Like justice, equality delayed is equality denied.
[61] The need for
such remedial or restitutionary measures has therefore been recognised in
sections 8(2) and 9(3) of the interim
and 1996 Constitutions respectively. One
could refer to such equality as remedial or restitutionary equality. In
addition, as was
recognised in Hugo, treating people identically can
sometimes result in inequality:
“We need, therefore, to develop a concept of unfair discrimination which recognises that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.”8[4]
It
is in this latter way that we have encapsulated the notion of substantive as
opposed to formal equality.
[62] Section 9 of the 1996 Constitution,
like its predecessor, clearly contemplates both substantive and remedial
equality. Substantive
equality is envisaged when section 9(2) unequivocally
asserts that equality includes “the full and equal enjoyment of all rights
and freedoms.” The State is further obliged “to promote the
achievement of such equality” by “legislative
and other measures
designed to protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination,”
which envisages remedial equality. This is not
to suggest that principles underlying remedial equality do not operate
elsewhere.
This was clearly recognised in Harksen when, in dealing with
the purpose of the provision or power as a factor to be considered in deciding
whether the discriminatory provision has impacted unfairly on
complainants, Goldstone J held:
“If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely, disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair ...”8[5] (Footnote omitted).
[63] It is clear, moreover, that under section
8(1) of the interim Constitution the inquiry would encompass both direct and
indirect
differentiation. This must necessarily follow from the reference in
section 8(2) to “direct and indirect discrimination”.
That was
implicitly held in Harksen (where the Court did not have to deal with
indirect discrimination) and explicitly in Walker; the latter being a
case where indirect discrimination was present and where Langa DP, on behalf of
the Court, held that the section
8(1) test was
satisfied.8[6]
[64] In my
opinion Mr Davis’s remaining contentions cannot be sustained for the
following reasons:
(a) This Court has given effect to substantive
equality in its interpretation of section 8 of the interim
Constitution;
(b) That analysis is no less applicable to section 9 of the
1996 Constitution and the additional words “and benefit” in
section
9(1) take the matter no further;
(c) There is accordingly no need to fashion
a new interpretation of section 9(1) of the 1996 Constitution. Indeed, in this
judgment
I have engaged in a substantive analysis in support of the conclusion
for which both Mr Marcus and Mr Davis contend.
Consensual and
Non-Consensual Sodomy
[65] Thus far consideration has been given
only to the criminal proscription of sodomy in private between consenting males.
The common
law definition of sodomy is more extensive, however, and is not
limited to private consensual sex per anum between adult males.
It also applies
to anal sex under circumstances where one male has not consented or when one
partner is below the age of consent;
cases of so-called “anal rape”
or “male rape”, whether the victim is an adult male or a male child
or infant.8[7]
[66] I am not
aware of any jurisdiction which, when decriminalising private consensual sex
between adult males, has not retained
or simultaneously created an offence which
continues to criminalise sexual relations per anum even when they occur in
private, where
such occur without consent or where one partner is under the age
of consent. The legislature usually fixes a minimum age for the
parties to
enjoy the benefit of the decriminalisation. The need for retaining some
control, even over consensual acts of sodomy
committed in private, was
recognised in Dudgeon v United
Kingdom.8[8] So too, in Canada,
for example, anal intercourse is criminalised in general terms by statute and
the only acts excluded are those
committed in private between husband and wife,
or between any two persons, each of whom is eighteen years of age or more, both
of
whom consent to the act.8[9] It
must be emphasised, however, that provisions so made have invariably been by way
of statute.
[67] The question which arises is whether, in declaring the
common-law offence of sodomy to be constitutionally invalid, this Court
should
do so only to the extent that the offence is inconsistent with the Constitution
or whether this Court has the power to declare
the offence invalid in its
entirety. The latter was the course adopted by Heher J, notwithstanding the
fact that the applicants
had in argument limited their claim to relief in
relation to consensual acts committed in
private.9[0] Section
172(1)(a)9[1] of the 1996
Constitution only permits a court having the competence to do so to declare a
law that is inconsistent with the Constitution
invalid “to the extent of
its inconsistency”. Beyond that the Court is not empowered to go. It is
notionally possible
to declare the offence of sodomy invalid to the extent that
it relates to sexual relations per anum in private between consenting
males who
are over the age of consent and capable of giving such consent. That is,
however, not necessarily the end of the inquiry.
[68] We have on
occasion declared statutory provisions to be constitutionally invalid, despite
the fact that this has involved a
complicated formulation of the extent to which
a provision was inconsistent with the
Constitution.9[2] Yet notional
partial inconsistency is not on its own sufficient to justify such a limited
order of constitutional invalidity; the
issue of severability has also to be
addressed. In this regard Kriegler J, in Coetzee v Government of the
Republic of South Africa and Others; Matiso and Others v Commanding Officer,
Port Elizabeth Prison and
Others, formulated the following test for the
Court:
“Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and, second, if so, is what remains giving effect to the purpose of the legislative scheme?”9[3]
[69] In the present case we are of course dealing with the
constitutional inconsistency and invalidity of a common-law offence, but
I can
see no valid reason why the constitutional principles underlying the above
approach should not, suitably adapted, also apply
to the instant case where, on
a direct application of the Bill of Rights, we have found the very core of the
offence to be constitutionally
invalid. There can be no doubt that the
existence of the common-law offence was not dictated by the objective of
punishing “male
rape”. The sole reason for its existence was the
perceived need to criminalise a particular form of gay sexual expression;
motives and objectives which we have found to be flagrantly inconsistent with
the Constitution. The fact that the ambit of the offence
was extensive enough
to include “male rape” was really coincidental. The core of the
offence was to outlaw gay sexual
expression of a particular kind.
[70] We
are entitled, in my view, to have regard to criminal law policy in the context
of the common-law formation and development
of the offence in question. If, at
the time of the common-law recognition of the offence in question, legal and
societal norms were
such that gay sexual expression was not considered something
which ought to be criminally proscribed, it is very difficult to conceive
that
this particular offence would have come into existence purely in order to
criminalise male rape. Such an offence would in any
event have been punishable
as a form of assault, as indeed was anal intercourse with a woman without her
consent.
[71] If one applies this approach at the present time, the same
conclusion follows. Subject to the qualifications which will be
expressed later
in this judgment regarding the retrospectivity of the orders of constitutional
invalidity, neither the coherence
of the common law, nor judicial policy,
requires the continued existence of a severely truncated form of the common-law
offence.
Acts of male rape still constitute crimes at common law, whether in
the form of indecent assault or assault with intent to do grievous
bodily harm.
These are the criminal forms by means of which anal intercourse with a woman,
without her consent, is punished. The
competent punishments which can be
imposed for such offences have not been restricted by statute and the severity
of such punishments
can be tailored to the severity of the offences committed.
While refraining from any comment, one way or the other, on the constitutional
validity of the age limits or differential age limits prescribed in section 14
of the Sexual Offences Act, it must be pointed out
that its provisions do
protect persons below a certain age against both heterosexual and homosexual
acts of a prescribed nature being
performed with them. Declaring the offence to
be invalid in its entirety will leave no hiatus in the criminal law.
[72] The Minister has not appealed against the unqualified order of
constitutional invalidity made by the High Court nor has there
been any
suggestion in argument on his behalf that we ought to interfere with its ambit.
As indicated above, other democratic countries
have dealt with male rape by way
of new statutory provisions in this regard. Whether or not our legislature
will follow that example
is a matter for it to decide. For all the above
reasons I am of the view that there is no adequate justification for making a
limited
declaration of invalidity in regard to the common-law offence of sodomy
and that consequently there is no warrant for interfering
with the ambit of the
order made in the High Court in declaring the offence of sodomy constitutionally
invalid in its entirety.
[73] Although, as indicated earlier in this
judgment, the correctness of paragraph 1 of the High Court’s order is not
formally
before this Court, we are obliged to consider its correctness, or the
extent of its correctness, in order to consider the terms on
which paragraphs 4
and 5 of the order ought to be confirmed. In my view this Court has the power
to do so, inasmuch as it is an
issue unavoidably connected with a decision on a
constitutional matter for purposes of section 167(3)(b) of the 1996
Constitution.
As a constitutional matter within its power, the Court is obliged
under section 172(1)(a) to declare the offense in question invalid
to the extent
of its inconsistency with the Constitution. I would accordingly endorse
paragraph 1 of the High Court’s order
declaring the common law offence of
sodomy to be inconsistent with the 1996 Constitution and invalid.
The
Constitutional Validity of Section 20A of the Sexual Offences Act
1957
[74] For the sake of convenience, the provisions of section 20A
of the Sexual Offences Act are again quoted:
“(1) A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence.
(2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present.
(3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law.”
[75] The absurdly discriminatory
purpose and impact of the provision can be demonstrated by numerous examples.
One will suffice.
A gay couple attend a social gathering attended by gay,
lesbian and heterosexual couples. The gay man, in the presence of the other
guests, kisses his gay partner on the mouth in a way “calculated to
stimulate” both his and his partner’s “sexual
passion”
and to give both “sexual gratification”. They do no more. A
lesbian and a heterosexual couple do exactly
the same. The gay couple are
guilty of an offence. The lesbian and heterosexual couples not. Cameron has
rightly commented on
the absurdity and tragic-comic consequences of this
enactment.9[4]
[76] There
being no similar provision in relation to acts by women with women, or acts by
men with women or by women with men, the
discrimination is based on sexual
orientation and therefore presumed to be unfair. The impact intended and caused
by the provision
is flagrant, intense, demeaning and destructive of
self-realisation, sexual expression and sexual orientation. Because of the
infinite
variety of acts it encompasses in its prohibition, the impact is broad
and far-reaching. In relation to this provision, there is
even less that can be
said to counter the presumption of unfairness than in the case of sodomy. The
section amounts to unfair discrimination
and, for fundamentally the same reasons
that were expressed above in relation to sodomy, the section cannot be justified
under section
36(1) of the 1996 Constitution. There is nothing before us to
show that the provision was motivated by anything other than rank
prejudice and
had as its purpose the stamping out of these forms of gay erotic
self-expression. In my view Heher J correctly held
that the provisions of
section 20A of the Sexual Offences Act are inconsistent with section 9 of the
Constitution and invalid.
The Constitutional Validity of Including
the Offence of Sodomy in Schedule 1 of the CPA and in the Schedule to the
Security Officers
Act
[77] Once it is found that the offence of
sodomy is inconsistent with the Constitution, its inclusion in the above
schedules must
necessarily also be constitutionally inconsistent. I would
accordingly confirm paragraphs 4 and 5 of the High Court’s order
declaring
that the inclusion of sodomy is inconsistent with the Constitution of the
Republic of South Africa 1996 and invalid.
[78] I have had the
opportunity of reading the concurring judgment prepared by Sachs J. I agree
with the sentiments expressed therein.
[79] Before dealing with the
appropriate order to be made, it is necessary to return to the matter mentioned
in passing in paragraph
3 of this judgment, namely the difficulties that can
arise because the 1996 Constitution does not provide for an obligatory referral
when a common-law offence is declared to be constitutionally invalid by a High
Court. The present case is an apt illustration.
In a very formal sense, the
High Court’s order regarding the constitutional invalidity of the
common-law offence of sodomy
is not before this Court. Yet it is impossible to
consider the confirmation of the orders relating to the inclusion of sodomy in
the relevant schedules to the CPA and the Security Officers Act apart from the
order relating to the offence of sodomy itself. It
would be constitutionally
intolerable if an order by a High Court striking down the offence in its
entirety had to be left standing
while at the same time this Court confirmed the
striking down of the offence, as included in the schedules referred to, but only
to a limited extent. Fortunately, for the reasons already
given,9[5] we are able in the
particular circumstances of this case to consider the constitutional validity of
the common-law offence of sodomy
itself. Analogous problems arise in regard to
the degrees of retrospectivity of the orders.
[80] It is fortuitous that
the same High Court in the same case dealt with the common-law offence and the
statutory provisions incorporating
the common-law offence. It need not have
been so. The common-law offence could have been declared constitutionally
invalid in one
case and the statutory provision in another, but both in the same
High Court. This Court would then have been faced with the additional
problem,
when presented on confirmation with only the statutory provision, that the
common-law offence had been dealt with in another
case.
[81] An
equally undesirable result could follow if there were conflicting decisions in
different High Courts regarding the constitutional
validity of the same
common-law offence, or the extent of its invalidity, there being no express
constitutional mechanism whereby
such conflict could, as a matter of course, be
finally determined for the entire country.
[82] For these reasons, it
seems to me that parties to proceedings in which declarations of
unconstitutionality are made should,
when considering whether an appeal is
appropriate, pay particular attention to the terms of the order made as well as
to questions
of unconstitutionality. There may be circumstances where an appeal
against the terms of the order is appropriate even where there
is no dispute
concerning the conclusion of unconstitutionality itself.
The
Order
[83] For present purposes, the relevant provisions of section
172 of the Constitution read thus:
“(1) When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
(b) . . . .
(c) . . . .
(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”
[84] Subsection
(1)(b) differs in various respects from section 98(5), (6) and (7) of the
interim Constitution.9[6] For
present purposes the significant differences are as follows:
(a) In regard to
a declaration of constitutional invalidity of a law or a provision thereof,
section 98(6) of the interim Constitution
regulated the consequences of such a
declaration differently, depending on whether the law was in existence at the
time the interim
Constitution came into effect or whether it was passed
thereafter. The 1996 Constitution draws no such distinction.
(b) The
effect of a declaration of invalidity (subject to the Constitutional
Court’s power to order otherwise) is dealt with
more extensively under the
interim Constitution in subparagraphs (a) and (b) of section 98(6). Under the
1996 Constitution, and
in the absence of a contrary order by a competent court,
nothing more is provided other than that it has retrospective effect. I
infer
this from the fact that the power of a competent court to make an order in this
regard under section 172(1)(b)(i) is to limit
“the retrospective effect of
the order of constitutional invalidity,” interpreted against the
background of the principle
of the objective theory of constitutional invalidity
adopted in Ferreira v
Levin9[7], namely,
that a pre-existing law which is inconsistent with the Constitution becomes
invalid the moment the relevant provisions of the Constitution
come into
effect9[8].
(c) The
power of a competent court to make an order differing from that provided for by
the Constitution are differently formulated.
Under the interim Constitution the
provisions of section 98(6)(a) and (b) were dominant, the Constitutional Court
being empowered
to order otherwise than as provided in these paragraphs
“in the interests of justice and good government”. Under the
1996
Constitution the dominant provision of section 172(1)(b)(i) is to the effect
that a competent court:
“(b) may make any order that is just and equitable, including -
(i) an order limiting the retrospective effect of
the declaration of invalidity;”
[85] The reasons why the
applicants did not proceed with the relief sought in paragraphs (b) and (d) of
their Notice of Motion9[9] is
explained as follows in the judgment of the High Court:
“[Applicants] submitted that the effect of the invalidity of the common-law crimes should be considered [in] individual cases which have not yet been finalised. The concern of the applicants in this regard was that the common-law crimes prohibited some conduct which may remain prohibited despite the Constitution. If, for example, a person has been convicted of sodomy (rather than indecent assault) for an act of ‘male rape’ his sodomy conviction should not be set aside without being replaced by an appropriate new conviction for indecent assault. In the opinion of the applicants’ counsel the broad relief sought by their clients in paragraphs (b) and (d) did not facilitate that process and they accordingly abandoned the claim to that relief.”10[0]
[86] The reason why the applicants did not in the result
persist with the relief sought in paragraph
(f)10[1] of their Notice of Motion
in the High Court is reflected as follows in the judgment of that Court:
“. . . problems of the sort posed by the common-law crimes are not presented by the invalidation of convictions in terms of section 20A of the Sexual Offences Act. The applicants submitted however that only the Constitutional Court had jurisdiction to grant relief which would have the generalised effect of the relief sought in paragraph (f) and, if they were correct in this submission, they would in due course approach the Constitutional Court for an appropriate order.”10[2]
[87] Although
in argument before this Court, counsel for the applicants did not abandon the
contention that only this Court has the
power to make such an order, they did
not vigorously pursue it. In my view the submission cannot be sustained. All
courts competent
to make declarations of constitutional invalidity have the
power to make an appropriate order under section 172(1)(b)(i) if such
order, in
the circumstances of a particular case, is “just or equitable”.
This was in fact so held in S v
Ntsele.10[3] The real issue
is whether, in the circumstances of this case, an order limiting the
retrospectivity of the declaration of invalidity
would indeed be just and
equitable, on a proper construction of that concept in the context of the
section and the Constitution as
a whole.
[88] To the extent that a
court of first instance has this power, such court must grapple with its
exercise. This is necessary because
in a given case it might be necessary to
receive evidence in order to decide whether, and in what manner, such power
should be exercised.
It is essential that the court of first instance receive
and if necessary adjudicate on such evidence, and not a court of appeal
or this
Court on confirmation. The importance of following such a procedure has been
stressed by this Court in similar contexts
on a number of
occasions.10[4]
[89] The
above observations afford some indication of the complexities of deciding
whether to limit the retrospectivity of the order
and, if deciding to limit it,
what order would be just and equitable. There are other difficulties, some of
which were raised with
counsel in argument. In the result the Court considered
it advisable to invite both the applicants and the Minister to submit written
argument on the most appropriate order required by the circumstances of this
case. Such written arguments were duly delivered by
these parties and we have
considered them. It is necessary to deal with the various paragraphs of the
High Court order separately.
The Order Invalidating the Common-law
Crime of Sodomy
[90] In this judgment the conclusion has already
been reached that this offence should be declared constitutionally invalid in
its
entirety. This conclusion has been reached by a direct application of the
Bill of Rights to a common-law criminal offence, not by
a process of developing
the common law.
[91] We reached this conclusion, despite the fact that
the constitutional invalidity of the common-law offence of sodomy was not
itself
directly before us, because it was an indispensable and unavoidable step in
concluding that the inclusion of this offence
in the various statutory schedules
was constitutionally invalid10[5].
It was therefore a constitutional matter that the Court was compelled to decide
in terms of section 172(1) of the 1996 Constitution.
The Court is obliged by
section 172(1)(a) in the light of this finding to make an order of invalidity.
Section 172(1)(b) then empowers
the Court to make any order that is “just
and equitable”. It is in any event impossible to make an order under
section
172(1)(b) of the Constitution which is just and equitable in relation to
the invalidity of the inclusion of the offence in the statutory
schedules,
without at the same time making such an order in relation to the constitutional
invalidity of the offence itself. In
order for this Court to discharge its duty
properly under section 172(1)(b) in the former case, it is obliged to do so in
the latter
case as well. There are public interest concerns involved in this
regard which go beyond the interests of the parties in the present
case. The
parties can in any event suffer no prejudice. It is clear that, at the time,
they were under a misapprehension as to
what their concessions in relation to
the order meant and also as to the effect of the order made by Heher J. All the
parties requested
the Court, in relation to the constitutional invalidity of the
offence itself, to exercise its powers under section 172(1)(b). In
my view we
are constitutionally obliged to do so in the present case.
[92] [ The criterion for the order which a court is competent to make under section 172(1)(b) of the 1996 Constitution pursuant to a declaration of constitutional invalidity is that it must be “just and equitable”. The criterion under section 98(6) of the interim Constitution was “the interests of justice and good government”. There has as yet been no comprehensive judgment of this Court on the meaning of “just and equitable” in section 172(1)(b) of the 1996 Constitution, although it has been alluded to in S v Ntsele10[6] and De Lange v Smuts NO and Others.10[7] Nor is it necessary to attempt such a comprehensive task in the present case.
[93] In Ntsele’s
case,10[8] Kriegler J, dealing
with the 1996 Constitution, stated that the principal features which have to be
considered when contemplating
the possibility of a retrospective order had been
crisply summarised in the following passage from O’Regan J’s
judgment
in S v Bhulwana; S v
Gwadiso:10[9]
“Central to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief they seek. It is only when the interests of good government outweigh the interests of the individual litigants that the court will not grant relief to successful litigants. In principle too, the litigants before the court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants (see US v Johnson 457 US 537 (1982); Teague v Lane 489 US 288 (1989)). On the other hand, as we stated in S v Zuma (at para 43), we should be circumspect in exercising our powers under section 98(6)(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. As Harlan J stated in Mackey v US 401 US 667 (1971) at 691:
‘No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.’
As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalised prior to the date of the order of invalidity.”
It was not the intention in
Ntsele’s case to suggest that the tests for retrospectivity or
non-retrospectivity were identical under the interim and the 1996 Constitutions.
But both Bhulwana’s case and Ntsele’s case were
concerned with the constitutional invalidity of reverse onus provisions in the
Drug and Drug Trafficking Act 140 of 1992,
and it was in this context that
Kriegler J observed that the above quoted observations in
Bhulwana’s case “ . . . are directly in point here and the
type of order we granted in that case is equally appropriate
here.”11[0]
[94] The
interests of good government will always be an important consideration in
deciding whether a proposed order under the 1996
Constitution is “just and
equitable”, for justice and equity must also be evaluated from the
perspective of the state
and the broad interests of society generally. As in
Ntsele’s case, it might ultimately be decisive as to what is just
and equitable. At the same time the test under the 1996 Constitution is
a
broader and more flexible one, where the concept of the interests of good
government is but one of many possible factors to consider.
[95] The
present is the first case in which this Court has had to consider the
retrospectivity of an order declaring a statutory
or common-law criminal offence
to be constitutionally invalid. The issues involved differ materially from
those in cases where reverse
onus provisions have suffered this fate. In the
latter cases an unqualified retrospective operation of the invalidating
provisions
could cause severe dislocation to the administration of justice and
also be unfair to the prosecution who had relied in good faith
on such
evidentiary provisions.11[1] In
addition, the likely result of such an unqualified order would be numerous
appeals with the possibility of proceedings having
to be brought
afresh.11[2] In each case the
issue would arise as to whether the accused in question would have been
convicted, or could be convicted in the
absence of reliance on the particular
reverse onus provision. In hearings afresh, the necessary evidence to secure a
conviction
in the absence of the evidentiary provision in question might no
longer be
available.11[3]
[96] In
the present case the situation is different. From the perspective of adult gay
men who have been convicted of sodomy where
this occurred consensually and in
private, (to which I shall for convenience refer as “consensual
sodomy”) it seems manifestly
and grossly unjust and inequitable that such
convictions should not be capable of being set aside. People have been
convicted of
an offence which ceased to exist when the 1996 Constitution came
into effect. In fact, because of the principle of objective constitutional
invalidity, the offence ceased to exist when the interim Constitution came into
force on 27 April 1994, because there is no doubt
that this Court, for all the
reasons set forth in this judgment, would have declared the common-law offence
of sodomy to be inconsistent
with at least the provisions of section 8 of the
interim Constitution, had a constitutional challenge been brought under it.
Competent
courts have wide powers under section 172(1)(b) to make orders that
are “just and equitable”. The chance fact that a
constitutional
challenge against the offence of sodomy was not brought under the interim
Constitution should not deter us, in the
particular circumstances of this case,
from giving full retrospective effect, to 27 April 1994, to an order which
justice and equity
clearly require.
[97] An unqualified retrospective
order could easily have undesirable consequences. Persons might act directly
under the order to
have convictions set aside without adequate judicial
supervision or institute claims for damages. The least disruptive way of giving
relief to persons in respect of past convictions for consensual sodomy is
through the established court structures. On the strength
of the order of
constitutional invalidity such persons could note an appeal against their
convictions for consensual sodomy, where
the period for noting such appeal has
not yet expired or, where it has, could bring an application for condonation of
the late noting
of an appeal or the late application for leave to appeal to a
court of competent jurisdiction. In this way effective judicial control
can be
exercised. Although this might result in cases having to be reopened, it will
in all probability not cause dislocation of
the administration of justice of any
moment.
[98] We should, however, limit the retrospective effect of the
order declaring the offence of sodomy to be constitutionally invalid
to cases of
consensual sodomy. In respect of all other cases of sodomy, the order should be
limited to one which takes effect from
the date of this judgment. This is
essential, in my view, to prevent persons convicted of sodomy which amount to
“male rape”
from having their past convictions set aside. To permit
this would be neither just nor equitable. In the absence of such a limitation
confusion might arise, upon a conviction being set aside in such cases, as to
whether a conviction of indecent assault or assault
with intent to do grievous
bodily harm, could validly be substituted.
The Order Declaring Section
20A of the Sexual Offences Act to be Constitutionally
Invalid
[99] In substance this order has as little prospect of
causing disruption as the order in relation to the common-law offence of sodomy
if it is given a similar qualified retrospective effect.
The Order
Declaring the Inclusion of Sodomy as an Item in Schedule 1 of the CPA to be
Constitutionally Invalid
[100] The effect of including the offence
of sodomy in this Schedule has been set forth in paragraph 7 above. The
implication of
an order declaring sodomy to be constitutionally invalid differs
according to the particular section of the CPA or other statute
to which
Schedule 1 of the CPA relates, and different considerations apply in deciding
the question of retrospectivity.
[101] Section 37(1)(a)(iv) of the CPA;
section 3(1)(b) of the Intercepting and Monitoring Prohibition Act, 127 of 1992
(read with
the definition of “serious offence” under section 1 of
that Act); and section 13(8) of the South African Police Service
Act, 68 of
1995 (the effect whereof has been summarised in paragraph 7 (i), (vii) and
(viii) respectively above) all relate to actions
by means of which evidence
could have been obtained and used against an accused who might have been
convicted of sodomy. It must
be emphasised that giving such an order qualified
retrospective effect does not mean that evidence obtained by means of the above
provisions was necessarily inadmissible in any such trials or will necessarily
be inadmissible in future. That is an issue to be
decided by the court seized
of any matter pursuant to the above order and will be decided by such court
having regard, where applicable,
to the provisions of section 35(5) of the
Constitution, which provides:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
[102] The effect of sections 40(1)(b),
42(1)(a), 49(2), 60(4)(a), 60(5)(e), 60(5)(g), and 185A(1) of the CPA has been
summarised
in paragraph 7 (ii), (iii), (iv), (v) and (vi) above. These
provisions of the CPA, with the exception of those applying to
bail,11[4] all relate to actions
which are completed before the accused is brought to trial, or, as in the case
of section 185A, stand quite
outside the trial. These provisions can have no
effect on the fairness of the ensuing trial itself, and to give the order
retrospective
effect in respect of them could conceivably open the door for
civil claims against those who have performed them. Where persons
performing
the acts did so in good faith and on the acceptance of the validity of the
provisions in question, as they related to
the offence of sodomy, it would not
ordinarily be just or equitable to give the order any retrospective operation at
all, for the
reasons stated in De Lange v Smuts NO and
Others.11[5] If the persons
concerned acted in bad faith the fact that the order in this case does not
operate retrospectively would not debar
any action which an accused (or his or
her estate in the case of section 49(2) of the CPA) might have had on the
grounds of acts
performed mala fide. As far as the bail provisions are
concerned similar considerations would apply. They could only very obliquely
affect the accused’s so-called “right to a speedy
trial”11[6] under section
35(3)(d) of the Constitution, where the accused’s appropriate remedy,
namely to be granted bail in order to ameliorate
the harmful consequences of
delays in the trial, would be
unaffected.11[7] In relation to
all these provisions, the argument for giving the declaration of invalidity no
retrospective effect is powerful.
It is not, however, possible to envisage all
the possible consequences flowing from a declaration of invalidity and it is
therefore
considered prudent, in the appropriate order, to confer a discretion
on a court of competent jurisdiction.
[103] The effect of section 1(8)
and (9) and section 2(1)(c) of the Special Pensions Act, 69 of 1996 has been
summarised in paragraph
7 (ix) and (x) above. They relate to monetary claims
against the state arising directly from the operation of the statute in question
and there are no grounds of justice or equity justifying any limitation on the
retrospective operation of the order. No reason has
been suggested why the
state should not discharge its full obligations under the Special Pensions Act
on the basis that the provisions
relating to the offence of sodomy became
constitutionally invalid as from the date on which the interim Constitution came
into operation,
at least in respect of consensual sodomy in private between
adult males. It is not just or equitable, however, if such retrospectivity
were
to give rise to any cause of action against any individual who applied the
provisions relating to sodomy in these sections of
the Act in good faith before
the date of this order. Consequently it would also be prudent to confer a
discretion on a court of
competent jurisdiction.
The Order Declaring
the Inclusion of Sodomy as an Item in the Schedule to the Security Officers Act
to be Constitutionally Invalid
[104] The effect of including the
offence of sodomy in this Schedule has been considered in paragraph 8 above. It
prohibits a person
convicted of sodomy from registering as a security officer,
or exposes him to having such registration withdrawn, and such conviction
may
lead to a finding of improper conduct for purposes of the Act. Justice and
equity would seem to require an order having full
retrospective effect, at least
in respect of consensual sodomy in private between adult males. There is little
or any likelihood
of disruption. Its consequence would merely be to correct the
registration of persons convicted and the setting aside of any findings
of
improper conduct based on the conviction for such offence. At the same time,
however, it would not be just or equitable if such
retrospective operation gave
rise to any cause of action against any individual who applied the provisions
relating to sodomy in
these sections of the Act in good faith before the date of
this order and here, too, it would be prudent to confer a discretion on
a court
of competent jurisdiction.
[105] Although counsel for the applicants
have conducted an audit of statutory provisions in order to identify those
statutes which
incorporate the offence of sodomy or otherwise rely thereon they
could, understandably, give no firm assurance that the statutory
provisions
identified in this case are the only ones falling into this category. The
possibility exists that there are further statutory
provisions of this nature.
It is inadvisable to attempt to make an order in the abstract relating to such
statutes and the extent
to which the constitutional invalidity of the offence of
sodomy, as applied to such statutes, should have retrospective effect.
This is
a matter best left to the High Courts to deal with on a case by case basis
should the need arise.
[106] I accordingly make the following
order:
1.1. The common law offence of sodomy is declared to be
inconsistent with the Constitution of the Republic of South Africa, 1996
and
invalid.
1.2. In terms of section 172(1)(b) of the 1996 Constitution, it
is ordered that the order in paragraph 1.1 shall not invalidate any
conviction
for the offence of sodomy unless that conviction relates to conduct constituting
consensual sexual conduct between adult
males in private committed after 27
April 1994 and either an appeal from, or a review of, the relevant judgment is
pending, or the
time for noting of an appeal from that judgment has not yet
expired, or condonation for the late noting of an appeal or late filing
of an
application for leave to appeal is granted by a court of competent
jurisdiction.
1.3 In all cases of sodomy which do not relate to conduct
constituting consensual sexual conduct between adult males in private, the
order
in 1.1 will come into effect on the date of this judgment.
2.1. Section
20A of the Sexual Offences Act, 1957 is declared to be inconsistent with the
1996 Constitution and invalid.
2.2. In terms of section 172(1)(b) of the
1996 Constitution, it is ordered that the order in paragraph 2.1 shall not
invalidate any
conviction in terms of section 20A of the Sexual Offences Act,
1957 unless that conviction was related to conduct that took place
after 27
April 1994 and either an appeal from, or a review of, the relevant judgment is
pending, or the time for noting of an appeal
from that judgment has not yet
expired, or condonation for the late noting of an appeal or late filing of an
application for leave
to appeal is granted by a court of competent
jurisdiction.
3.1. The inclusion of the common-law offence of sodomy in
Schedule 1 of the Criminal Procedure Act, 1977 is declared to be inconsistent
with the provisions of the 1996 Constitution and invalid.
3.2 In terms of
section 172(1)(b) of the Constitution, it is declared that the order referred to
in para 3.1 shall not invalidate
anything done in reliance on the inclusion of
“sodomy” in the schedule, as incorporated in the provisions of
section
37(1)(a)(iv) of the Criminal Procedure Act, 51 of 1977; section 3(1)(b)
of the Intercepting and Monitoring Prohibition Act, 127
of 1992 (read with the
definition of “serious offence” under section 1 of that Act); and
section 13(8) of the South African
Police Service Act, 68 of 1995, unless a
court of competent jurisdiction decides that it is just and equitable that
conduct pursuant
to such reliance shall be declared invalid, provided that due
regard must be had to the provisions of section 35(5) of the 1996
Constitution.
3.3 In terms of section 172(1)(b) of the Constitution, it
is declared that the order referred to in para 3.1 shall, in all cases other
than those mentioned in paragraph 3.2 above, not invalidate anything done in
reliance on the inclusion of “sodomy” in
the schedule, unless a
court of competent jurisdiction decides that it is just and equitable that
conduct pursuant to such reliance
shall be declared invalid.
4.1. The
inclusion of the common-law offence of sodomy in schedule 1 of the Security
Officers Act, 92 of 1987 is declared to be inconsistent
with the provisions of
the 1996 Constitution and invalid.
4.2. In terms of section 172(1)(b) of
the Constitution, it is declared that the order referred to in paragraph 4.1
shall not invalidate
anything done in reliance on the inclusion of
“sodomy” in the schedule of the Security Officers Act, 1987, unless
a court
of competent jurisdiction decides that it is just and equitable that
conduct pursuant to such reliance shall be declared invalid.
Chaskalson
P, Langa DP, Goldstone J, Kriegler J, Mokgoro J, O’Regan J and Yacoob J
all concur in the judgment of Ackermann J
SACHS J:
[107] Only in
the most technical sense is this a case about who may penetrate whom where. At
a practical and symbolical level it
is about the status, moral citizenship and
[107] sense of self-worth of a significant section of the community. At a more general and conceptual level, it concerns the nature of the open, democratic and pluralistic society contemplated by the Constitution. In expressing my concurrence with the comprehensive and forceful judgment of Ackermann J, I feel it necessary to add some complementary observations on the broader matters. I will present my remarks - in a preliminary manner as befits their sweep and complexity - in the context of responding to three issues which emerged in the course of argument. The first concerns the relationship between equality and privacy, the second the connection between equality and dignity, and the third the question of the meaning of the right to be different in the open and democratic society contemplated by the Constitution.
Equality
and Privacy
[108] It is important to start the analysis by asking
what is really being punished by the anti-sodomy laws. Is it an act, or is
it a
person? Outside of regulatory control, conduct that deviates from some publicly
established norm is usually only punishable
when it is violent, dishonest,
treacherous or in some other way disturbing of the public peace or provocative
of injury. In the
case of male homosexuality however, the perceived deviance is
punished simply because it is deviant. It is repressed for its perceived
symbolism rather than because of its proven harm. If proof were necessary, it
is established by the fact that consensual anal penetration
of a female is not
criminalised. Thus, it is not the act of sodomy that is denounced by the law,
but the so-called sodomite
[108] who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony.11[8]
[109] The effect is that all homosexual desire is tainted, and the whole gay and lesbian community is marked with deviance and perversity. When everything associated with homosexuality is treated as bent, queer, repugnant or comical, the equality interest is directly engaged. People are subject to extensive prejudice because of what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself. I have no doubt that when the drafters of the Bill of Rights decided expressly to include sexual orientation in their list of grounds of discrimination that were presumptively unfair,11[9] they had precisely these considerations
[109] in mind. There could be few stronger cases than the present for invoking the protective concern and regard offered by the Constitution.
[110] Against this background it
is understandable that the applicants should urge this Court to base its
invalidation of the anti-sodomy
laws on the ground that they violated the
equality provisions in the Bill of Rights. Less acceptable however, is the
manner in which
applicants treated the right to privacy, presenting it in their
written argument12[0] as a poor
second prize to be offered and received only in the event of the Court declining
to invalidate the laws because of a breach
of equality. Their argument may be
summarised as follows: privacy analysis is inadequate because it suggests that
homosexuality
is shameful and therefore should only be protected if it is
limited to the private bedroom; it tends to limit the promotion of gay
rights to
the decriminalisation of consensual adult sex, instead of contemplating a more
comprehensive normative framework that addresses
discrimination generally
against gays; and it assumes a dual structure - public and private - that does
not capture the complexity
of lived life, in which public and private lives
determine each other, with the mobile lines between them being constantly
amenable
to repressive
definition.12[1]
[111] These
concerns are undoubtedly valid. Yet, I consider that they arise from a set of
assumptions that are flawed as to how
equality and privacy rights interrelate
and about the manner in which privacy rights should truly be understood; in the
first place,
the approach adopted by the applicants subjects equality and
privacy rights to inappropriate sequential ordering, while secondly,
it
undervalues the scope and significance of privacy rights. The cumulative result
is both to weaken rather than strengthen applicants’
quest for human
rights, and to put the general development of human rights jurisprudence on a
false track.
[112] I will deal first with the question of inappropriate
separation of rights and sequential ordering, that is, with the assumption
that
in a case like the present, rights have to be compartmentalised and then ranked
in descending order of value. The fact is that
both from the point of view of
the persons affected, as well as from that of society as a whole, equality and
privacy cannot be separated,
because they are both violated simultaneously by
anti-sodomy laws. In the present matter, such laws deny equal respect for
difference,
which lies at the heart of equality, and become the basis for the
invasion of privacy. At the same time, the negation by the state
of different
forms of intimate personal behaviour becomes the foundation for the repudiation
of equality. Human rights are better
approached and defended in an integrated
rather than a disparate fashion. The rights must fit the people, not the people
the rights.
This requires looking at rights and their violations from a
persons-centred rather than a formula-based position, and analysing
them
contextually rather than
abstractly.12[2]
[113] One
consequence of an approach based on context and impact would be the
acknowledgement that grounds of unfair discrimination
can intersect, so that the
evaluation of discriminatory impact is done not according to one ground of
discrimination or another,
but on a combination of
both,12[3] that is, globally and
contextually, not separately and
abstractly.12[4] The objective is
to determine in a qualitative rather than a quantitative way if the group
concerned is subjected to
scarring12[5] of a sufficiently
serious nature as to merit constitutional intervention. Thus, black foreigners
in South Africa might be subject
to discrimination in a way that foreigners
generally, and blacks as a rule, are not; it could in certain circumstances be a
fatal
combination. The same might possibly apply to unmarried mothers, or
homosexual parents, where nuanced rather than categorical approaches
would be
appropriate. Alternatively, a context rather than category-based approach might
suggest that overlapping vulnerability
is capable of producing overlapping
discrimination. A notorious example would be African widows, who historically
have suffered
discrimination as blacks, as Africans, as women, as African women,
as widows and usually, as older people, intensified by the fact
that they are
frequently amongst the lowest paid
workers.12[6]
[114] Conversely,
a single situation can give rise to multiple, overlapping and mutually
reinforcing violations of constitutional
rights. The case before us is in
point. The group in question is discriminated against because of the one
characteristic of sexual
orientation. The measures that assail their personhood
are clustered around this particular personal trait. Yet the impact of these
laws on the group is of such a nature that a number of different protected
rights are simultaneously infringed. In these circumstances
it would be as
artificial in law as it would be in life to treat the categories as alternative
rather than interactive. In some
contexts, rights collide and an appropriate
balancing is required.12[7] In
others, such as the present, they inter-relate and give extra dimension to the
extent and impact of the infringement. Thus,
the violation of equality by the
anti-sodomy laws is all the more egregious because it touches the deep,
invisible and intimate side
of people’s lives. The Bill of Rights tells
us how we should anal