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[1998] ZACC 15
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National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)

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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
JUDGMENT
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
Constitution
1
[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
Prinsloo
1
[9]
and in
Harksen
2
[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
Constitution
4
[0]
its application
still involves a process, described in
S v Makwanyane and
Another
4
[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 law
4
[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 8
5
[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
Makwanyane
5
[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 Australia
6
[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)
Act
6
[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
Act
6
[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
Zealand
6
[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
Charter
7
[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
guarantees
8
[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
Levin
9
[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
effect
9
[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 Motion
9
[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 invalid
10
[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
Ntsele
10
[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
[1982] USSC 132
;
457 US
537
(1982);
Teague v Lane
[1989] USSC 69
;
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
[1971] USSC 61
;
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 argument
12
[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
scarring
12
[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 analyse this interaction: in technical terms, the gross
interference
with privacy will bear strongly on the unfairness of the
discrimination,
12
[8]
while the
discriminatory manner in which groups are targeted for invasions of privacy will
destroy any possibility of justification
for such
invasions.
12
[9]
[115] The
depreciated value given in argument to invalidation on the grounds of privacy,
treating it as a poor relation of equality,
was a result of adopting an
impoverished version of the concept of privacy itself. In my view, the
underlying assumptions about
privacy were doubly flawed, being far too narrow in
their understanding, on the one hand, and far too wide in their implications,
on
the other. I will deal first with the undue narrowness of
understanding.
[116] There is no good reason why the concept of privacy
should, as was suggested, be restricted simply to sealing off from state
control what happens in the bedroom, with the doleful sub-text that you may
behave as bizarrely or shamefully as you like, on the
understanding that you do
so in private.
13
[0]
It has become
a judicial cliché to say that privacy protects people, not
places.
13
[1]
Blackmun J in
Bowers, Attorney General of Georgia v. Hardwick et
al
13
[2]
made it clear that the
much-quoted “right to be left alone” should be seen not simply as a
negative right to occupy a
private space free from government intrusion, but as
a right to get on with your life, express your personality and make fundamental
decisions about your intimate relationships without
penalisation.
13
[3]
Just as
“liberty must be viewed not merely
‘negatively
or selfishly
as a mere absence of restraint, but
positively
and socially as an
adjustment of restraints to the end of freedom of opportunity’
”,
13
[4]
so must privacy be
regarded as suggesting at least some responsibility on the state to promote
conditions in which personal self-realisation
can take place.
[117] The emerging jurisprudence of this Court is fully consistent with
such an affirmative approach. In
Bernstein and Others v Bester and
Others
NNO
Ackermann J pointed out that the scope of privacy had been
closely related to the concept of identity and that “rights, like
the
right to privacy, are not based on a notion of the unencumbered self, but on the
notion of what is necessary to have one’s
autonomous identity . . . In the
context of privacy this means that it is . . . the inner sanctum of the person
such as his/her family
life, sexual preference and home environment which is
shielded from erosion by conflicting rights of the
community.”
13
[5]
Viewed
this way autonomy must mean far more than the right to occupy an envelope of
space in which a socially detached individual
can act freely from interference
by the state. What is crucial is the nature of the activity, not its site.
While recognising the
unique worth of each
person,
13
[6]
the Constitution does
not presuppose that a holder of rights is as an isolated, lonely and abstract
figure possessing a disembodied
and socially disconnected self. It acknowledges
that people live in their bodies, their communities, their cultures, their
places
and their times. The expression of sexuality requires a partner, real or
imagined. It is not for the state to choose or to arrange
the choice of
partner, but for the partners to choose themselves.
[118] At the same
time, there is no reason why the concept of privacy should be extended to give
blanket libertarian permission for
people to do anything they like provided that
what they do is sexual and done in private. In this respect, the assumptions
about
privacy rights are too broad. There are very few democratic societies, if
any, which do not penalise persons for engaging in inter-generational,
intra-familial, and cross-species sex, whether in public or in private.
Similarly, in democratic societies sex involving violence,
deception, voyeurism,
intrusion or harassment is punishable (if not always punished), or else
actionable, wherever it takes place
(there is controversy about prostitution and
sado-masochistic and dangerous fetishistic
sex).
13
[7]
The privacy interest
is overcome because of the perceived harm.
[119] The choice is
accordingly not an all-or-nothing one between maintaining a spartan normality,
at the one extreme, or entering
what has been called the post-modern supermarket
of satisfactions, at the
other.
13
[8]
Respect for personal
privacy does not require disrespect for social
standards.
13
[9]
The law may
continue to proscribe what is acceptable and what is unacceptable even in
relation to sexual expression and even in
the sanctum of the home, and may,
within justifiable limits, penalise what is harmful and regulate what is
offensive. What is crucial
for present purposes is that whatever limits are
established they do not offend the Constitution.
Equality and
Dignity
[120] It will be noted that the motif which links and unites
equality and privacy, and which, indeed, runs right through the protections
offered by the Bill of Rights, is
dignity.
14
[0]
This Court has on a
number of occasions emphasised the centrality of the concept of dignity and
self-worth to the idea of
equality.
14
[1]
In an interesting
argument,
14
[2]
the Centre for
Applied Legal Studies (the Centre) has mounted a frontal challenge to this
approach, arguing that the equality clause
is intended to advance equality, not
dignity, and that the dignity provisions in the Bill of
Rights
14
[3]
should take care of
protecting dignity. This was part of an invitation to the Court to re-visit its
whole approach to equality jurisprudence,
shifting from what the Centre called
the defensive posture of reliance on unlawful discrimination under section
9(3)
14
[4]
to what it claimed to be
an affirmative position of promoting equality under the broad provisions of
section 9(1). The constitutional
vocation of section
9(1),
14
[5]
it argued, had been
reduced from that of the guarantor of substantive equality to that of a
gatekeeper for claims of violation of
dignity.
[121] Ackermann J has, I
believe, dealt convincingly with the assertion that the Court has failed to
promote substantive as opposed
to formal equality. Indeed, his judgment is
itself a good example of a refusal to follow a formal equality test, which could
have
based invalidity simply on the different treatment accorded by the law to
anal intercourse according to whether the partner was male
or female. Instead,
the judgment has with appropriate sensitivity for the way anti-gay prejudice has
impinged on the dignity of
members of the gay community, focussed on the manner
in which the anti-sodomy laws have reinforced systemic disadvantage both of
a
practical and a spiritual nature. Furthermore, it has done so not by adopting
the viewpoint of the so-called reasonable lawmaker
who accepts as objective all
the prejudices of heterosexual society as incorporated into the laws in
question, but by responding
to the request of the applicants to look at the
matter from the perspective of those whose lives and sense of self-worth are
affected
by the measures.
14
[6]
I
would like to endorse, and I believe, strengthen this argument by referring to
reasons of principle and strategy why, when developing
equality jurisprudence,
the Court should continue to maintain its focus on the defined
anti-discrimination principles of sections
9(3), (4) and (5), which contain
respect for human dignity at their core.
[122] The textual pointers
against the Centre’s argument to the effect that section 9(1) should be
interpreted so as to carry
virtually the whole burden of securing equality, have
been crisply identified in Ackermann J’s
judgment.
14
[7]
There are, I
believe, additional considerations supporting a structured focus on
non-discrimination as the heart of implementable
equality
guarantees:
14
[8]
institutional
aptness,
14
[9]
functional
effectiveness,
15
[0]
technical
discipline,
15
[1]
historical
congruency,
15
[2]
compatibility
with international practice
15
[3]
and conceptual sensitivity.
[123] By developing its equality
jurisprudence around the concept of unfair discrimination this Court engages in
a structured discourse
centred on respect for human rights and
non-discrimination.
15
[4]
It
reduces the danger of over-intrusive judicial intervention in matters of broad
social policy, while emphasising the Court’s
special responsibility for
protecting fundamental rights in an affirmative manner. It also diminishes the
possibility of the Court
being inundated by unmeritorious claims, and best
enables the Court to focus on its special vocation, to use the techniques for
which
it has a special aptitude, and to defend the interests for which it has a
particular responsibility. Finally, it places the Court’s
jurisprudence
in the context of evolving human rights concepts throughout the world, and of
our country’s own special history.
[124] Contrary to the
Centre’s argument, the violation of dignity and self-worth under the
equality provisions can be distinguished
from a violation of dignity under
section 10 of the Bill of
Rights.
15
[5]
The former is based
on the impact that the measure has on a person because of membership of an
historically vulnerable group that
is identified and subjected to disadvantage
by virtue of certain closely held personal
characteristics
15
[6]
of its
members; it is the inequality of treatment that leads to and is proved by the
indignity. The violation of dignity under
section 10, on the other hand,
contemplates a much wider range of situations. It offers protection to persons
in their multiple
identities and capacities. This could be to individuals being
disrespectfully treated, such as somebody being stopped at a roadblock.
It also
could be to members of groups subject to systemic disadvantage, such as farm
workers in certain areas, or prisoners in certain
prisons, such groups not being
identified because of closely held characteristics, but because of the situation
they find themselves
in. These would be cases of indignity of treatment leading
to inequality, rather than of inequality relating to closely held group
characteristics producing indignity.
[125] Once again, it is my view
that the equality principle and the dignity principle should not be seen as
competitive but rather
as complementary. Inequality is established not simply
through group-based differential treatment, but through differentiation which
perpetuates disadvantage and leads to the scarring of the sense of dignity and
self-worth associated with membership of the group.
Conversely, an invasion of
dignity is more easily established when there is an inequality of power and
status between the violator
and the victim.
[126] One of the great
gains achieved by following a situation-sensitive human rights approach is that
analysis focuses not on abstract
categories, but on the lives as lived and the
injuries as experienced by different groups in our society. The manner in which
discrimination
is experienced on grounds of race or sex or religion or
disability varies considerably - there is difference in difference. The
commonality that unites them all is the injury to dignity imposed upon people as
a consequence of their belonging to certain groups.
Dignity in the context of
equality has to be understood in this light. The focus on dignity results in
emphasis being placed simultaneously
on context, impact and the point of view of
the affected persons. Such focus is in fact the guarantor of substantive as
opposed
to formal equality.
[127] As Marshall J reminds us, “. . .
the lessons of history and experience are surely the best guide as to when, and
with
respect to what interests, society is likely to stigmatise individuals as
members of an inferior caste or view them as not belonging
to the community.
Because prejudice spawns prejudice, and stereotypes produce limitations that
confirm the stereotype on which they
are based, a history of unequal treatment
requires sensitivity to the prospect that its vestiges endure . . . as in many
important
legal distinctions, ‘a page of history is worth a volume of
logic’ ”.
15
[7]
In the
case of gays, history and experience teach us that the scarring comes not from
poverty or powerlessness, but from invisibility.
It is the tainting of desire,
it is the attribution of perversity and shame to spontaneous bodily affection,
it is the prohibition
of the expression of love, it is the denial of full moral
citizenship in society because you are what you are, that impinges on the
dignity and self-worth of a group.
[128] This special vulnerability of
gays and lesbians as a minority group whose behaviour deviates from the official
norm is well
brought out by Cameron in the germinal article to which my learned
colleague refers.
15
[8]
Gays
constitute a distinct though invisible section of the community that has been
treated not only with disrespect or condescension
but with disapproval and
revulsion; they are not generally obvious as a group, pressurised by society and
the law to remain invisible;
15
[9]
their identifying characteristic combines all the anxieties produced by
sexuality with all the alienating effects resulting from
difference; and they
are seen as especially contagious or prone to corrupting others. None of these
factors applies to other groups
traditionally subject to discrimination, such as
people of colour or women, each of whom, of course, have had to suffer their own
specific forms of oppression. In my view, the learned author is quite correct
when he concludes that precisely because neither power
nor specific resource
allocation are at issue, sexual orientation becomes a moral focus in our
constitutional order. For this same
reason, the question of dignity is in this
context central to the question of equality.
[129] At the heart of
equality jurisprudence is the rescuing of people from a caste-like status and
putting an end to their being
treated as lesser human beings because they belong
to a particular group. The indignity and subordinate status may flow from
institutionally
imposed exclusion from the mainstream of society or else from
powerlessness within the mainstream; they may also be derived from
the location
of difference as a problematic form of deviance in the disadvantaged group
itself, as happens in the case of the
disabled.
16
[0]
In the case of
gays it comes from compulsion to deny a closely held personal characteristic.
To penalise people for being what
they are is profoundly disrespectful of the
human personality and violatory of equality. This aspect would not be well
captured,
if at all, by the Centre’s approach, which falls to be
rejected.
The Treatment of Difference in an Open
Society
[130] Although the Constitution itself cannot destroy
homophobic prejudice it can require the elimination of public institutions
which
are based on and perpetuate such prejudice. From today a section of the
community can feel the equal concern and regard of
the Constitution and enjoy
lives less threatened, less lonely and more dignified. The law catches up with
an evolving social reality.
A love that for a number of years has dared openly
to speak its name in bookshops, theatres, film festivals and public parades,
and
that has succeeded in becoming a rich and acknowledged part of South African
cultural life, need no longer fear prosecution for
intimate expression. A law
which has facilitated homophobic assaults and induced self-oppression, ceases to
be. The courts, the
police and the prison system are enabled to devote the time
and resources formerly spent on obnoxious and futile prosecutions, to
catching
and prosecuting criminals who prey on gays and straights alike. Homosexuals are
no longer treated as failed heterosexuals
but as persons in their own right.
[131] Yet, in my view the implications of this judgment extend well
beyond the gay and lesbian community. It is no exaggeration
to say that the
success of the whole constitutional endeavour in South Africa will depend in
large measure on how successfully sameness
and difference are reconciled, an
issue central to the present matter.
[132] The present case shows well
that equality should not be confused with uniformity; in fact, uniformity can be
the enemy of equality.
Equality means equal concern and respect across
difference. It does not pre-suppose the elimination or suppression of
difference.
Respect for human rights requires the affirmation of self, not the
denial of self. Equality therefore does not imply a levelling
or homogenisation
of behaviour but an acknowledgment and acceptance of
difference.
16
[1]
At the very
least, it affirms that difference should not be the basis for exclusion,
marginalisation, stigma and punishment. At
best, it celebrates the vitality
that difference brings to any society.
[133] Section 9 of the
Constitution is unambiguous: discrimination on the grounds of being gay or
lesbian, is presumptively unfair
and a violation of fundamental rights. This
judgment holds that in determining the normative limits of permissible sexual
conduct,
homosexual erotic activity must be treated on an equal basis with
heterosexual, in other words, that the same-sex quality of the
conduct must not
be a consideration in determining where and how the law should intervene.
Commentators have suggested that respect
for the equality principle goes further
in two respects. The first is that the gay and lesbian community must have full
access to
decision-making on the questions at issue, so that their experiences,
sense of right and wrong and proposals for effective law-making
are given equal
consideration when the outcome is
determined
16
[2]
. Secondly, the
selection of issues for investigation must not be selected and treated on the
basis of stereotypes and prejudice.
It is not necessary to pronounce on these
complex issues in this case.
[134] The acknowledgment and acceptance of
difference is particularly important in our country where group membership has
been the
basis of express advantage and disadvantage. The development of an
active rather than a purely formal sense of enjoying a common
citizenship
depends on recognising and accepting people as they are. The concept of sexual
deviance needs to be reviewed. A heterosexual
norm was established, gays were
labelled deviant from the norm and difference was located in
them.
16
[3]
What the Constitution
requires is that the law and public institutions acknowledge the variability of
human beings and affirm the
equal respect and concern that should be shown to
all as they are. At the very least, what is statistically normal ceases to be
the basis for establishing what is legally normative. More broadly speaking,
the scope of what is constitutionally normal is expanded
to include the widest
range of perspectives and to acknowledge, accommodate and accept the largest
spread of difference. What becomes
normal in an open society, then, is not an
imposed and standardised form of behaviour that refuses to acknowledge
difference, but
the acceptance of the principle of difference itself, which
accepts the variability of human behaviour.
[135] The invalidation of
anti-sodomy laws will mark an important moment in the maturing of an open
democracy based on dignity, freedom
and equality. As I have said, our future as
a nation depends in large measure on how we manage difference. In the past
difference
has been experienced as a curse, today it can be seen as a source of
interactive vitality. The Constitution acknowledges the variability
of human
beings (genetic and socio-cultural), affirms the right to be different, and
celebrates the diversity of the
nation.
16
[4]
[136] A
state that recognises difference does not mean a state without morality or one
without a point of view. It does not banish
concepts of right and wrong, nor
envisage a world without good and evil. It is impartial in its dealings with
people and groups,
but is not neutral in its value system. The Constitution
certainly does not debar the state from enforcing morality. Indeed, the
Bill of
Rights is nothing if not a document founded on deep political
morality.
16
[5]
What is central to
the character and functioning of the state, however, is that the dictates of the
morality which it enforces,
and the limits to which it may go, are to be found
in the text and spirit of the Constitution
itself.
16
[6]
[137] The
fact that the state may not impose orthodoxies of belief systems on the whole of
society has two consequences.
16
[7]
The first is that gays and lesbians cannot be forced to conform to heterosexual
norms; they can now break out of their invisibility
and live as full and free
citizens of South Africa. The second is that those persons who for reasons of
religious or other belief
disagree with or condemn homosexual conduct are free
to hold and articulate such beliefs. Yet, while the Constitution protects the
right of people to continue with such beliefs, it does not allow the state to
turn these beliefs - even in moderate or gentle versions
- into dogma imposed on
the whole of society.
[138] In my view, the decision of this Court
should be seen as part of a growing acceptance of difference in an increasingly
open
and pluralistic South Africa. It leads me to hope that the emancipatory
effects of the elimination of institutionalised prejudice
against gays and
lesbians will encourage amongst the heterosexual population a greater
sensitivity to the variability of the human
kind. Having made these
observations, I express my full concurrence in Ackermann J’s judgment and
order.
For the Applicants: Mr GJ Marcus SC and Mr M Chaskalson
instructed
By Nichollas, Cambanis and Associates
For the 1
st
Respondents: Ms GCM Masemola instructed by the State
Attorney,
Johannesburg.
For the Amicus Curiae: Mr D davis instructed by Wits Law Clinic.
[1]
Reported as
National
Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others
1998 (6) BCLR 726
(W).
[2]
The Constitution of the
Republic of South Africa 1996. The new Rules of the Constitutional Court were
only promulgated on 29 May
1998 and the present referral by the High Court took
place according to the procedure sanctioned by this Court in
Parbhoo and
Others v Getz NO and Another
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1095
(CC) at paras 1 to 6.
[3]
Which
provides as follows:
“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.”
[4]
The
Human Rights Commission was established under section 115 of the interim
Constitution (the Constitution of the Republic of South
Africa, 1993) and
continues to function as such by virtue of item 20 of Schedule 6 to the 1996
Constitution.
[5]
Above n 2.
[6]
The Constitution of the
Republic of South Africa, 1993.
[7]
1997 (9) BCLR 1283
(C);
1997
(4) SA 469
(C).
[8]
Above n 1 at 750G.
[9]
As to which see
Harksen v
Lane NO and Others
[1997] ZACC 12
;
1997 (11) BCLR 1489
(CC);
1998 (1) SA 300
(CC) para 53
(a) (quoted in paragraph 17 below) dealing with the equality analysis under the
interim Constitution. As is pointed
out in para 18 below it is not in all cases
obligatory to embark on the rational connection analysis.
1
[0]
Above n 1 at 746G.
[1]
1
Id at 750E.
1
[2]
Id at 751G-H.
1
[3]
Id at 751I-752B. In this
passage reference is made to section 8 of the Constitution, which might be
thought to be a reference to
the interim Constitution. This is clearly a slip
of the pen, for in the immediately succeeding paragraphs the learned judge
proceeds
to consider the justification question under section 36 of the 1996
Constitution.
1
[4]
Id at 752B-753C.
1
[5]
Namely, in
S v H
1995
(1) SA 120
(C);
S v K
above n 7, in which a very helpful historical
analysis is conducted, and in the High Court judgment in the present case.
1
[6]
Burchell and Milton
Principles of Criminal Law
1ed
(Juta Cape Town 1991) at 571 and
572. Snyman
Criminal Law
2ed (Butterworths, Durban 1989) at 378-9 is to
the same effect. The qualification “prior to the coming into force of the
interim
Constitution” is added because of the fact that certain academic
writers have argued that, notwithstanding the fact that sodomy
in private
between consenting adult males did not survive as an offence in the face of the
interim Constitution, there are instances
of sodomy, for example the cases of
“male” anal rape which occurs without the consent of the victim or
where the victim
is incapable of giving consent, which survive as sodomy. See,
for example, Milton
South African Law of Criminal Law and Procedure
vol
II 3ed (Juta, Cape Town 1996) at 250 and Snyman
Criminal Law
3ed
(Butterworths, Durban 1995) at 341.
1
[7]
Namely in
Brink v
Kitshoff NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC);
1996 (4) SA 197
(CC);
Prinsloo v
Van der Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC);
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (6)
BCLR 708
(CC);
1997 (4) SA 1
(CC);
Harksen v Lane NO and Others
[1997] ZACC 12
;
1997
(11) BCLR 1489
(CC);
1998 (1) SA 300
(CC);
Larbi-Odam and Others v MEC for
Education (North West Province) and Another
[1997] ZACC 16
;
1997 (12) BCLR 1655
(CC);
1998
(1) SA 745
(CC); and
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (3) BCLR 257
(CC);
1998 (2) SA 363
(CC).
1
[8]
Above n 17 at para 42.
1
[9]
Above n 17 at paras
22-41.
2
[0]
Above n 17.
2
[1]
Id at para 53.
[2]
2
Id at paras 50 and 51.
2
[3]
Edwin Cameron “Sexual
Orientation and the Constitution: A Test Case for Human Rights”
(1993)
110
SALJ
450.
The article is a revised version of an inaugural lecture
delivered by the author on 27 October 1992 on the acceptance by him of
an
ad
hominem
professorship in law at the University of the Witwatersrand.
Despite the fact that it was conceived some 18 months prior to the adoption
of
the interim Constitution, its depth and lucidity of analysis is just as
instructive in the present era when sexual orientation
has indeed achieved
constitutional protection. I have followed Cameron’s use of the
expressions “gay”, “lesbian”
and
“homosexual”.
2
[4]
Id at 452.
2
[5]
A similar wider meaning is
supported by Kentridge in Chaskalson and Others
Constitutional Law of South
Africa,
Revision Service 2 (1998)
at 14-26 where the learned author
states:
“Culture, sexual orientation, gender and even sex are not necessarily
immutable. Rather than extending protection only to
immutable human features,
it should be recognized that certain choices are so important to self-definition
that these too should
be protected.”
Compare also,
Sexual Orientation and the Law
by the Editors of the
Harvard Law Review, 1990 Harvard University Press at fn 1 at
1.
2
[6]
Michael
Walzer
Spheres of Justice: A Defence of Pluralism and Equality
(Basil
Blackwell, Oxford 1983) at xiii.
2
[7]
Per Cory J, delivering part
of the joint judgment of the Canadian Supreme Court in
Vriend v Alberta
(an as yet unreported judgment of the Supreme Court of Canada, File No: 25285,
delivered on 2 April 1998) at para 69.
2
[8]
Cameron above n 23 at
455.
2
[9]
Norris v Republic of
Ireland
[1988] ECHR 22
;
(1991) 13 EHRR 186
at 192 para 21 quoting with approval the finding
of an Irish judge.
3
[0]
Above n 27 per Cory J at
para 102.
3
[1]
Cameron above n 23 at 456
(footnote omitted).
3
[2]
Cameron
above n 23 at 458 says the following in this context:
“Traditionally disadvantaged groups such as women and blacks both
constitute a majority of the South African population. Gays
and lesbians, by
contrast, are by definition a minority. Paradoxically, their perpetuation as a
social category is dependent on
the survival of the procreative heterosexual
majority. Their seclusion from political power is in a sense thus ordained, and
they
will never on their own be able to use political power to secure
legislation in their
favour.”
[3]
3
See
Hugo
’s case, above n 17 at para 112 where, in a separate concurring
judgment, O’Regan J said the following:
“The more vulnerable the group adversely affected by the discrimination,
the more likely the discrimination will be held to
be unfair. Similarly, the
more invasive the nature of the discrimination upon the interests of the
individuals affected by the discrimination,
the more likely it will be held to
be
unfair.”
3
[4]
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) at
paras 328-330;
Hugo
above n 17 at para 41;
Prinsloo
above n 17
at paras 31-33;
Ferreira v Levin NO and Others
1996 (1) BCLR 1
(CC);
1996 (1) SA 984
(CC).
3
[5]
See the judgment of
L’Heureux-Dube J in
Egan v Canada
(1995) 29 CRR (2d) 79 at 106.
3
[6]
Cameron above n 23 at 464,
cited in
S v K
above n 7 at para 25.
3
[7]
[1996] ZACC 2
;
1996 (4) BCLR 449
(CC);
1996 (2) SA 751
(CC) at para 67.
3
[8]
Id. See also
Mistry v
Interim National Medical and Dental Council of South Africa and others
[1998] ZACC 10
;
1998
(7) BCLR 880
(CC) at para 16.
3
[9]
Which provides thus:
“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, taking into account
all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.”
4
[0]
More
particularly in that the prohibition against the negation of “the
essential content of the right in question” in
section 33(1)(b) and the
“necessary” requirement in the proviso to section 33(1) have been
omitted from section 36(1)
of the 1996 Constitution.
4
[1]
Above n 34 at para 104.
4
[2]
Id.
4
[3]
See
De Lange v Smuts NO
and Others
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC);
1998 (3) SA 785
(CC) at para 86.
[4]
4
Id at para 88.
4
[5]
Above n 15 at 125A-B.
4
[6]
Under section 16 of the 1996
Constitution.
4
[7]
Under section 15
thereof.
4
[8]
See, for example, Professor
John M Finnis “Law, Morality and Sexual Orientation” in
69
Notre
Dame Law Review
1049
(1994).
4
[9]
By the 1967 Sexual Offences
Act and see
S v K
above n 7 at paras 33 and 41.
5
[0]
By the Criminal Justice
(Scotland) Act 1980.
5
[1]
(1982) 4 EHHR 149 at para
61.
5
[2]
Article 8 provides:
“(1) Everyone has the right to respect for his private and family life,
his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with law
and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country,
for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and
freedoms
of
others.”
5
[3]
Homosexual
Offence (Northern Ireland) Order 1982, N.I. Statutes, SI 1982/1536 (N.I.19).
5
[4]
Above n 29.
[5]
5
Criminal Law (Sexual
Offences) Act, 1993, No.20, sections 2-4 (in force on 7 July 1993).
5
[6]
Above n 34 at para 109.
5
[7]
See
S v K
above n 7
at para 41.
5
[8]
Above n 52 at 167 para 60.
Dudgeon
and
Norris
were affirmed again in 1993 in
Modinos v
Cyprus
16 EHRR
485.
5
[9]
Article 3 reads
thus:
“(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights. The state shall promote the actual
implementation of equal rights for women and men and
take steps to eliminate
disadvantages that now exist.
(3) No person shall be favoured or disfavoured because of sex, parentage, race,
language, homeland and origin, faith, or religious
or political opinions. No
person shall be disfavoured because of
disability.”
6
[0]
For
example, where it was procured by violence or under threat of harm to life or
limb section 175a(1)1 prescribed a maximum sentence
of ten years.
6
[1]
See also Troendle
Strafgesetzbuch
48e Auflage, section 182, Rn 1.
6
[2]
Robert Wintemute
Sexual
Orientation and Human Rights
(Clarendon Press, Oxford 1995). Wintemute
also points out at 4-5 that discrimination on the basis of sexual orientation
had already
been prohibited in the state constitutions of Mato Grosso and
Sergipe in Brazil in 1989. In 1992 and 1993 respectively the German
Länder
of Brandenburg and Thüringen introduced provisions in their constitutions
expressly prohibiting discrimination based
on sexual orientation. Other than
the South African Constitution I am not aware that such constitutional
protection has been given
in any national constitution; Wintemute confirms
this.
6
[3]
South Australia became the
first state to decriminalise homosexual conduct between consenting adults in
1972, followed by the Australian
Capital Territory in 1976, Victoria in 1981,
and both the Northern Territory and New South Wales in 1984. (See B Gaze &
M Jones
Law, Liberty and Australian Democracy
(The Law Book Company,
Sydney Ltd 1990) at 363.) Sections 5(1) and 29(3) of the 1984 South Australia
Equal Opportunity Act (South
Australia Act 95 of 1984) prohibits discrimination
on the ground of “sexuality”, which is defined to include
heterosexuality,
homosexuality, bisexuality or transsexuality. South Australia
thus also became the first state to recognise sexual orientation as
a prohibited
ground of discrimination. Western Australia decriminalised private adult gay
sex in the Law Reform (Decriminalisation
of Sodomy) Act No 32 of 1989. In 1991,
the Australian Capital Territory enacted the Discrimination Act, No 81 of 1991.
Section
7 of this Act explicitly includes sexuality as a prohibited ground of
discrimination. Queensland, where homosexual conduct had been
illegal until
1990, enacted its Anti-Discrimination Act in 1991, prohibiting discrimination on
the ground of “lawful sexual
activity”. This was followed in 1992
by the Northern Territory’s Anti Discrimination Act in 1992, No 80 of
1992. Section
19(1)(c) of this Act declared sexuality a prohibited ground of
discrimination.
6
[4]
Communication Number
488/1992 (31 March 1994) UN Human Rights Committee Document No.
CCPR/C/50/D/488/1992.
6
[5]
Article
17 of the ICCPR determines:
“(1) No one shall be subject to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to
unlawful attacks on his
honour and reputation.
(2) Everyone has the right to the protection of the law against such
interference or
attacks.”
[6]
6
Act
179
of 1994.
6
[7]
Act 48 of 1977.
6
[8]
The Homosexual Law Reform
Act 33 of 1986 removed criminal sanctions against consensual homosexual conduct
between males by repealing
offending sections of the Crimes Act of 1961. These
were replaced by provisions criminalising sexual relations with a boy under
the
age of 16; sexual relations with mentally subnormal people; and indecent
assault.
6
[9]
Article 19 New
Zealand Bill of Rights Act 1990 reads:
“19. Freedom from discrimination
-
(1) Everyone has the right to freedom from discrimination on the grounds of
colour, race, ethnic or national origins, sex, marital
status, or religious or
ethical belief.
(2) Measures taken in good faith for the purpose of assisting or advancing
persons or groups of person disadvantaged because of colour,
race, ethnic or
national origins, sex, marital status, or religious or ethical belief do not
constitute
discrimination.”
7
[0]
Other
prohibited grounds of discrimination in section 21 include sex, marital status,
religious belief, ethical belief, colour, race,
ethnic or national origins,
disability, age, political opinion, employment status and family
status.
7
[1]
Section 15 (1)
reads:
“Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law
without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex,
age or physical disability.”
7
[2]
In
Vriend v Alberta
above n 27 per Cory J at para 90.
7
[3]
Criminal Law Amendment Act,
1968-69, SC 1968-69
, c. 38, s. 7. “Buggery” applied to both
same-sex and opposite-sex anal intercourse. ‘[G]ross indecency’
applied to sexual acts between any two persons, and “therefore potentially
to all sexual activity between men or between women,
and to opposite-sex oral
intercourse.” (See
Wintemute above n 62 at
150.)
7
[4]
(1995) 30 CRR (2d) 112 (Ontario Court of Appeal).
7
[5]
Id.
7
[6]
Id at 119-120.
[7]
7
478 US 186
(1986).
7
[8]
See, for example, Tribe
American Constitutional Law
2ed 1428 and T Grey “Bowers v Hardwick
Diminished” (1997) 68
University of Colorado Law Review
373.
7
[9]
134 L Ed 2d 855 (1996).
8
[0]
Sections 14 and 10
respectively.
8
[1]
Bowers
above n 77 at
191-2 per Justice White.
8
[2]
Section 9(5).
8
[3]
Above n 17 at paras 32 and
108.
8
[4]
Above n 17 at para 41.
In a footnote to the above passage the following is stated:
“ It is the logical corollary of the principle that ‘like should be
treated like’, that treating unlike alike may
be as unequal as treating
like unlike. See the discussion in Kentridge ‘Equality’ in
Chaskalson et al
Constitutional Law of South Africa
(Juta & Co Ltd,
Kenwyn 1996) at para 14.2.”
8
[5]
Above
n 17 at para 51(b).
8
[6]
Above n 17 at paras 27 and
30-33.
8
[7]
See Milton
South African
Criminal Law and Procedure vol II, Common-law Crimes
3ed (Juta, Cape Town
1996) at 254-5 and Snyman
Criminal Law
3ed (Butterworths, Durban 1995) at
341.
[8]
8
Above n 51 at 163 to 164,
paras 47-9.
8
[9]
See para 50 above for the
relevant provisions of the statute.
9
[0]
Above n 1 at
750G-H.
9
[1]
Section 172(1)(a)
provides:
“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.
.
.”
9
[2]
Thus
in
Ferreira v Levin
above n 34 at para 157 the following order was made:
“1. The provisions of section 417(2)(b) of the Companies Act 1973 are,
with immediate effect declared invalid,
to the extent only
that the
words:
‘and any answer given to any such question may thereafter be used in
evidence against
him’
in section 417(2)(b) apply to the use of any such answer against the person who
gave such answer, in criminal proceedings against
such person, other than
proceedings where that person stands trial on a charge relating to the
administering or taking of an oath
or the administering or making of an
affirmation or the giving of false evidence or the making of a false statement
in connection
with such questions and answers or a failure to answer lawful
questions fully and
satisfactorily.”
9
[3]
[1995] ZACC 7
;
1995
(10) BCLR 1382
(CC);
1995 (4) SA 631
(CC) at para 16. The footnote reference
in the text quoted has been omitted but the footnote itself reads:
“
Johannesburg City Council v Chesterfield House
1952 (3) SA 809
(A)
at 822 D - E. See also
S v Lasker
1991 (1) SA 558
(CPD) at
566.”
9
[4]
Cameron above n
23 at 455 where the following is stated:
“The results of this enactment have at times been comical. Its
jurisprudence includes a solemn decision by two judges of the
Supreme Court that
‘a party’ did not come about when a police major, visiting a
well-known gay sauna in Johannesburg
for entrapment purposes, barged in on a
cubicle where two men were engaging in sexual acts and turned on the light. The
court held
- in a liberal decision - that the two men’s jumping apart when
the major switched on the light prevented a ‘party’
from being
constituted. [
S v C
1987 (2) SA 76
(W) at 81I-J.] The outcome is a
happy illustration of the absurdities attempts to enforce laws of this kind
necessarily give rise
to.”
9
[5]
Above
paragraph 9.
9
[6]
Sections
98(5), (6) and (7) of the interim Constitution provide as follows:
“(5) In the event of the Constitutional Court finding that any law or any
provision thereof is inconsistent with this Constitution,
it shall declare such
law or provision invalid to the extent of its inconsistency: Provided that the
Constitutional Court may, in
the interests of justice and good government,
require Parliament or any other competent authority, within a period specified
by the
Court, to correct the defect in the law or provision, which shall then
remain in force pending correction or the expiry of the period
so specified.
(6) Unless the Constitutional Court in the interests of justice and good
government orders otherwise, and save to the extent that
it so orders, the
declaration of invalidity of a law or a provision thereof
-
(a) existing at the commencement of
this Constitution, shall not invalidate anything done or permitted in terms
thereof before the
coming into effect of such declaration of invalidity; or
(b) passed after such commencement, shall invalidate everything done or
permitted in terms thereof.
(7) In the event of the Constitutional Court declaring an executive or
administrative act or conduct or threatened executive or administrative
act or
conduct of an organ of state to be unconstitutional, it may order the relevant
organ of state to refrain from such act or
conduct, or, subject to such
conditions and within such time as may be specified by it, to correct such act
or conduct in accordance
with this
Constitution.”
9
[7]
Above
n 34 at paras 26-29, in particular at para 28.
9
[8]
This is of course subject to
the express power granted to a competent court under section 172(1)(b)(ii) to
make “an order
suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the
defect.”
[9]
9
The full
relief initially sought in the Notice of Motion is quoted in paragraph 4 above.
Paragraphs (b) and (d) read as follows:
“(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;
(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”.
1
[0]
0
Above
n 1 at 731H-J.
[1]
01
“(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;”
10
[2]
Above n 1 at 732A.
10
[3]
1997 (11) BCLR 1543
(CC)
at para 12.
10
[4]
Brink v Kitshoff
NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC);
1996 (4) SA 197
(CC) at para 4 - 5;
Parbhoo
and Others v Getz NO and Another
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1095
(CC) para at 5;
Lawrence v the State and Another; Negal v the State and
Another; Solberg v The State and Another
1997 (10) BCLR 1348
(CC);
1997
(4) SA 1176
(CC) at paras 14 - 16;
S v Ntsele
1997 (11) BCLR 1543
(CC)
at para13;
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (3) BCLR 257
(CC);
1998 (2) SA 363
(CC) at para 15;
Mistry v Interim National Medical and
Dental Council and Others
[1998] ZACC 10
;
1998 (7) BCLR 880
(CC) at para 34.
10
[5]
See paras 9 and 73
above.
10
[6]
Above n 103 at paras
12-14.
10
[7]
Above n 43 at paras
104-5.
10
[8]
Above n 103 at para
14.
10
[9]
[1995] ZACC 11
;
1995 (12) BCLR 1579
(CC);
1996 (1) SA 388
(CC) at para
32.
11
[0]
Above n 103 at para 14.
[1]
11
See, for example, the
observations in this regard of Kentridge AJ in
S v Zuma and Others
[1995] ZACC 1
;
1995
(4) BCLR 401
(CC);
1995 (2) SA 642
(CC) at para 43.
11
[2]
Id.
11
[3]
Id.
11
[4]
Namely section 60(4)(a),
60(5)(e) and 60(5)(g) of the
CPA.
11
[5]
Above n 43 at para
105, where the following was stated:
“Moreover, if the order is granted any retrospective effect it could raise
uncertainties as to whether a person unconstitutionally
committed to prison in
the past had a claim for damages in respect of a committal which was
unassailable at common law at the time
and ordered in good constitutional faith.
If it were to transpire that the retrospective operation of the order does not
provide
a cause of action for damages, then persons unconstitutionally detained
in the past suffer no prejudice in relation to damages.
If it has the effect of
giving rise to such a claim, then it seems to be a most undesirable consequence,
having regard to the fact
that the committal took place in good faith.”
11
[6]
See
Wild and Another v Hoffert NO and Others
[1998] ZACC 5
;
1998 (6) BCLR 656
(CC);
1998
(3) SA 695
(CC) at para 1.
11
[7]
Id at para
34.
11
[8]
As Foucault commented
in a celebrated formulation:
“As defined by the ancient civil or canonical codes, sodomy was a
category of forbidden acts, their perpetrator was nothing
more than the
juridical subject of them. The nineteenth-century homosexual became a
personage, a past, a case history, and a childhood,
in addition to being a type
of life, a life form, and a morphology, with an indiscreet anatomy and possibly
a mysterious physiology.
Nothing that went into his total composition was
unaffected by his insidious and indefinitely active principle; written
immodestly
on his face and body because it was a secret that always gave itself
away. It was consubstantial with him, less as a habitual sin
than as a singular
nature. We must not forget that the psychological, psychiatric, medical
category of homosexuality was constituted
from the moment it was characterised -
Westphal’s famous article of 1870 on ‘contrary sexual
relations’ can stand
as its date of birth - less by a type of sexual
relations than by a certain quality of sexual sensibility, a certain way of
inverting
the masculine and the feminine in oneself. Homosexuality appeared as
one of the forms of sexuality when it was transposed from the
practice of sodomy
onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite
had been a temporary aberration,
the homosexual was now a species.”
Foucault
The History of Sexuality Volume One: An Introduction
(1978)
in Pantazis “The Problematic Nature of Gay Identity” (1996) 12
SA Journal of Human Rights
291 at
298.
11
[9]
Section
9 of the Constitution provides:
“(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.”
12
[0]
In
his oral presentation counsel for the applicants indicated that his concern was
not with the privacy argument in itself, but
the way in which the judgment on
privacy might be couched. It is to this concern that I address myself.
[1]
21
See Pantazis above n 1
and Cameron “Sexual Orientation and the Constitution: A Test Case for
Human Rights”
(1993) 110
SA Law Journal
450.
1
[2]
2
It was in this
spirit that L’Heureux-Dubé J in
Egan v. Canada
(1995) 29 CRR
(2d) 79 at 120 remarked:
“In reality, it is no longer the ‘grounds’ that are
dispositive of the question of whether discrimination exists,
but the
social
context
of the distinction that matters. [C]ontext is of primary importance
and that abstract ‘grounds of distinction’ are simply
an indirect
method to achieve a goal which could be achieved more simply and truthfully by
asking the direct question: ‘Does
this distinction discriminate against
this group of people?’
”
12
[3]
This
approach seems to be contemplated by the words “on one or more
grounds” in section 9(3). See n 2 above.
12
[4]
Critical race feminists
are at the forefront of the movement towards a contextual treatment and
understanding of the lives of those
who face multiple discrimination. A major
thrust of the critical race genre is to focus on the multileveled identities and
multiple
consciousness of women of colour, in particular, who are often
discriminated against on the basis of race, gender and economic class.
In doing
so, critical race feminism draws attention to the need for conscious
consideration of fundamental rights within the context
of persons whose
identities may involve the intersection of race, gender, class, sexual
orientation, physical disadvantage or other
characteristics which often serve as
the basis for unfair discrimination. See, for example, a recent anthology:
Wing (ed)
Critical Race Feminism, a reader
(New York University Press,
New York and London
1997).
12
[5]
One of the many
complex forms of scarring was famously described by Du Bois thus:
“It is a peculiar sensation, this double-consciousness, this sense of
always looking at one’s self through the eyes of
others, of measuring
one’s soul by the tape of the world that looks on in amused contempt and
pity. One ever feels his twoness
- an American, a Negro.” Du Bois
The
Souls of Black Folk: Essays and Sketches
(Dado, Mead and New York, 1979) at
3 quoted in Minnow
Making all the Difference: Inclusion, Exclusion, and
American Law
(Cornell University Press, Ithaca and London, 1990) at 68.
Williams refers to the same near schizophrenic experience speaking
of:
“. . . the phenomenon of multiple consciousness, multiple voice,
double-voicedness - the shifting consciousness which is the
daily experience of
people of color and of women. When I was younger, I use to associate that
dreamy, many sided feeling of the
world with fears that I was schizophrenic.
Now that I am older (and postmodern) I think that there is much sanity in that
world-
view. If indeed we are mirrors of each other in this society, if I have
a sense of self-concept that is in any way whatsoever dependent
upon the regard
of others, upon the looks that I sometimes get in other people’s eyes as
judgment of me - if these others indeed
supply some part of my sense of myself,
then it makes a certain amount of social sense to be in touch with, rather than
unconscious
of, that doubleness of myself, that me that stares back in the eyes
of others.” in Williams “Response to Mari Matsuda”
(1989)
11
Womens Rights Law Reporter
11
at
11.
12
[6]
See
Simons
African Women: Their Legal Status in South Africa
C Hurst &
Co, London 1968) at 285:
“Women carry a double burden of disabilities. They are discriminated
against on the grounds of both sex and race. The two
kinds of discrimination
interact and reinforce each other.” See generally the chapter on
“Widows in
Distress”.
12
[7]
See
Du Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (5) BCLR 658
(CC);
1996
(3) SA 850
(CC) at para 55, per Kentridge AJ:
“A claim for defamation, for instance, raises a tension between the
right to freedom of expression and the right to
dignity.”
12
[8]
See
section 9(3) above n
2.
12
[9]
Section 36 reads:
“(1) 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, . .
.”
13
[0]
The
judgment of Ackermann J above at paras 29-32 helpfully explains the context in
which Cameron came to make the distinction between
equality and privacy. It
also contains trenchant observations on the importance of protecting private
intimacy with which I fully
associate myself.
[1]
31
The phrase was first
coined by Stewart J in
Katz v United States
[1967] USSC 262
;
389 US 347
, 351 (1967). See
Mistry v Interim National Medical and Dental Council of South Africa and
Others
[1998] ZACC 10
;
1998 (7) BCLR 880
(CC) at para 21. See also n 18 below.
13
[2]
478 U.S. 186
(1985).
1
[3]
3
Id at 205-14:
“We protect the decision whether to have a child because parenthood
alters so dramatically an individual’s self-definition,
not because of
demographic considerations or the Bible’s command to be fruitful and
multiply.
. . . .
The fact that individuals define themselves in a significant way through their
intimate sexual relationships with others suggests,
in a Nation as diverse as
ours, that there may be many ‘right’ ways of conducting those
relationships, and that much
of the richness of a relationship will come from
the freedom an individual has to choose the form and nature of these intensely
personal
bonds.
. . . .
‘The makers of our Constitution undertook to secure conditions favorable
to the pursuit of happiness. They recognized the
significance of man’s
spiritual nature, of his feelings and of his intellect. They knew that only a
part of the pain, pleasure
and satisfactions of life are to be found in material
things. They sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations.’ [Quoting
Stanley v Georgia
[1969] USSC 73
;
394 U.S. 557
(1969) at 564.]
.
. . .
[D]epriving individuals of the right to choose for themselves how to conduct
their intimate relationships poses a far greater threat
to the values most
deeply rooted in our Nation’s history than tolerance of nonconformity
could ever do.”
13
[4]
Brennan
“Reason, Passion, and the Progress of the Law”
The
Forty-Second Annual Benjamin N.
Cardozo Lecture,
(1988) 10:3
Cardozo Law Review
1
at 10, quoting Cardozo
The Paradoxes of Legal Science
(1928)
at 118.
13
[5]
[1996] ZACC 2
;
1996 (4)
BCLR 449
(CC);
1996 (2) SA 751
(CC) at paras 65 and 67 quoting Forst at n 90.
The learned judge went on to observe that:
“[T]his implies that community rights and the rights of fellow members
place a corresponding obligation on a citizen, thereby
shaping the abstract
notion of individualism towards identifying a concrete member of civil society.
Privacy is acknowledged in
the truly personal realm, but as a person moves into
communal relations and activities . . . the scope of personal space shrinks
accordingly.”
It should be noted that personal space is not equated with physical space,
although there can be a relation between the two. See
Mistry
above n 14
at para
21.
13
[6]
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC)
at para 31.
13
[7]
For a
psychoanalyst’s view see Young “Is ‘Perversion’
Obsolete?” (1996)
Psychology in Society
(PINS)
(21) 5 at
12. He argues that the concept of perversion gave way to that of pluralism, but
that there are still limits to what is
acceptable in sexual behaviour.
13
[8]
Id at 13.
13
[9]
See also para 133
below.
14
[0]
O’Regan J
comments in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3)
SA 391
(CC) at para 328:
“The importance of dignity as a founding value of the new Constitution
cannot be overemphasised. Recognising a right to
dignity is an acknowledgement
of the intrinsic worth of human beings: human beings are entitled to be treated
as worthy of respect
and concern. This right therefore is the foundation of
many of the other rights that are specifically entrenched in Chapter
3.”
[1]
41
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC)
;
1997 (4) SA 1
(CC) at para 41;
Prinsloo v van der Linde and
Another
above n 19 at paras 31-3;
Harksen v Lane NO and Others
[1997] ZACC 12
;
1997
(11) BCLR 1489
;
1998 (1) SA 300
(CC) at para 50
.
14
[2]
In
S v Mhlungu and
Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 129, I had
occasion to refer to the importance of “. . . a principled judicial
dialogue, in the first place between
members of this Court, then between our
Court and other courts, the legal profession, law schools, Parliament, and,
indirectly, with
the public at large.” The critique by the Centre is to
be welcomed, even though normally such generalised observations could
be
expected to be made in journal articles rather than through amici
arguments.
14
[3]
Section 10
provides:
“Everyone has inherent dignity and the right to have their dignity
respected and
protected.”
1
[4]
4
Above
n 2.
14
[5]
Id.
14
[6]
Ackermann J above at
paras 20-27 and paras 58-64.
14
[7]
See above at paragraphs
15-19. It should be noted that the question of substantive socio-economic
claims has been directly attended
to by means of the express inclusion of a
number of socio-economic rights in the Bill of Rights coupled with an indication
of the
responsibility of the legislature to ensure their realisation within
resource possibilities. See sections 26 (housing), 27 (health
care, food, water
and social security) and 29 (education) of the 1996 Constitution.
14
[8]
“We promote
equality by reducing discrimination, and we reduce discrimination by reducing
the gap between advantage and historic,
arbitrary disadvantage.” See
Abella AJ in
R v M (C)
(1995) 30 CRR (2d) 112 at 119.
14
[9]
See Nowak and Rotunda
Constitutional Law
5 ed (West Publishing Company, St. Paul Minn 1995) at
601.
15
[0]
Hogg comments:
“A study prepared in 1988, only three years after the coming into force of
s 15 . . . found 591 cases (two-thirds of which
were reported in full) in which
a law had been challenged on the basis of s 15. Most of the challenges seemed
unmeritorious, and
most were unsuccessful; but the absence of any clear
standards for the application of s 15 encouraged lawyers to keep trying to use
s. 15 whenever a statutory distinction worked to the disadvantage of a
client.” in Hogg
Constitutional Law of Canada
3 ed (Carswell
Professional Publishing, Canada 1992) at
1162.
[1]
51
Sections
9(3), (4) and (5) of the 1996 Constitution provide the structure for focused and
candid judicial analysis.
15
[2]
The extensive list of
grounds of discrimination specifically enumerated in section 9(3) underlines the
special weight given by the
Bill of Rights to combatting unfair discrimination
in the many guises it has been wont to adopt.
15
[3]
Far from the concept of
non-discrimination being weak and negative, Sieghart refers to it as possibly
the strongest principle of
all to be found in international human rights law.
See Sieghart
The International Law of Human Rights
(Clarendon Press,
Oxford 1983), referred to in
In re: the Education Bill of 1995 (Gauteng)
[1996] ZACC 4
;
1996 (4) BCLR 537
(CC);
1996 (3) SA 165
(CC) at para 71.
15
[4]
See the case of
Andrews v Law Society of British Columbia
(1989) 30 CRR (2d) 193, a
landmark in equality jurisprudence.
1
[5]
5
See above n 26.
15
[6]
An apt phrase used by
Iacobucci J in
Egan v Canada
above n 5 at 157.
15
[7]
City of Cleburn Text.
v Cleburn Living Center
(1985) 473 US 432
at 473, quoting Holmes J in
New
York Trust Co. et
. al.
v Eisner
[1921] USSC 125
;
(1921) 256 U.S. 345
at 349. The
stereotyping in itself need not result in discrimination. The stereotype of the
level-headed, unemotional man as being
the best person to hold positions of
leadership, has served many men well enough. It is when stereotypes are coupled
with disadvantage
that they become constitutionally offensive. Such
disadvantage may take material forms, but need not do so; the Bill of Rights
recognises
that we do not live by bread alone. Indeed, there is no evidence
before us that gays are either wealthier or poorer than the rest
of society.
Nor are they as individuals necessarily less represented than straights in the
corridors of political, economic, social,
cultural, judicial or security force
power. The disadvantage they suffer comes not from a consequence of prejudice,
it comes from
prejudice itself. The complexity of the problems relating to
stereotyping is illustrated by the contrasting positions adopted in
Hugo
above n 24 by Kriegler J at paras 80-86 and O’Regan J at para 111.
15
[8]
See Ackermann J above at
para 20.
15
[9]
Law
“Homosexuality and the Social Meaning of Gender”
(1988)
Wisconsin
Law Review
187
at 212, quoted in Cameron above n 4 at 459. comments:
“The closet metaphor is more powerful for gays, since heterosexism demands
that they deny their identity and central life relationships.
Gender, by
contrast, is visible, like race, and women confront powerlessness, not
invisibility.”
in
16
[0]
See
generally Minow above n 8.
[1]
61
See Littleton in
Reconstructing Sexual Equality
(1987) 75
California Law Review
1279
at 1285 where she introduces an approach to reconstructing equality based
on the premise of acceptance. This model focuses on creating
symmetry in the
lived-out experiences of all members of society by eliminating the unequal
consequences arising from difference.
16
[2]
The theme of equality of
voice is brought out by Dworkin in “Equality, Democracy and
Constitution” (1990) Vol XXVIII,
No.
2
Alberta Law Review
324
at
page 337-41 where he argues that:
“In a genuine democracy, the people govern not statistically but
communally . . . [w]hen we insist that a genuine democracy
must treat everyone
with equal concern, we take a decisive step towards a deeper form of collective
action in which ‘we the
people’ is understood to comprise not a
majority but everyone acting communally . . . but the idea that in an integrated
community
the collective life cannot include moulding the judgments of its
individual members as distinct from what they do, has a distinct
near-definitional importance because it sets minimal conditions for any
community, of any kind, that aspires to integration rather
than to monolith . .
. .If the collective ambition is selective and discriminatory - if it aims only
to eliminate certain beliefs
collectively judged wrong or degrading - then it
destroys integration for those citizens who are the objects of reform . . .
”
Trakman argues similarly in “Section 15: Equality? Where” (1995) 6:4
Constitutional Forum
112 at 121.
“If Section 15 [the equality clause in the Charter of Rights] has
meaning, that meaning resides in the condition of communal
life to which
equality is directed. That condition presupposes that all persons within
society are entitled to participate in that
communal life with comparative
equality. This condition of equality does not require that everyone share
exactly equally in the
social ‘good’. Equality entitles different
segments of society to enjoy different qualities of lives with comparative,
not
symmetrical, equality. Comparative equality also means that no one segment of
society is entitled to define the quality of the
‘good’ life for all
in the image of itself. Whatever its object, the legislature in a democratic
society is disentitled
to identify itself with the interests of select
communities so as to produce comparative inequality for other
communities.”
16
[3]
Minow
above n 8 argues that equality for those deemed different is precluded by five
unstated and unacceptable assumptions namely
that: Difference is intrinsic not a
comparison; the norm need not be stated; the observer can see without a
perspective; other
perspectives are irrelevant; and the status quo is natural,
uncoerced and good. Her focus was principally on disability rights,
but the
critique would seem to apply to the manner in which gay conduct has been
described.
16
[4]
The Preamble
of the Constitution reads:
“. . . believe that South Africa belongs to all who live in it, united in
our diversity.” There are many provisions
that deal with associational,
cultural, religious and language rights as well as rights relating to belief and
expression, all of
which highlight the rich diversity of our country. See for
example sections 6, 18, 29, and 31 of the Constitution. See also
Gauteng
Education
above n 36 at paras 49 and
52.
16
[5]
See
Robertson and Merrils
Human Rights in Europe
3 ed (1993) quoted in
Coetzee v Government of the Republic of South Africa
[1995] ZACC 7
;
1995 (10) BCLR 1382
(CC);
1995 (4) SA 631
(CC) at n
66.
1
[6]
6
See Abella AJ above n
31 at page 639:
“When governments define the ambits of morality, as they do when they
enunciate laws, they are obliged to do so in accordance
with constitutional
guarantees, not with unwarranted assumptions.”
16
[7]
See
S v Lawrence
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1176
(CC) at paras 148
and 179.