National Coalition For Gay and Lesbian Equality V Minister of Justice - Confirmation By The Constitutional Court

Confirmation By The Constitutional Court

South African law requires that court orders declaring acts of Parliament to be unconstitutional be confirmed by the Constitutional Court; the High Court therefore referred its order to the Constitutional Court for confirmation. The court heard argument from the applicants on 27 August 1998; the government did not oppose the application and presented no argument.

The Constitutional Court handed down its decision on 9 October 1998; the judges were unanimous in confirming the order of the High Court. The majority judgment was written by Justice Lourens Ackermann, while Justice Albie Sachs authored a separate concurrence. The court, recognising that the criminalisation of sodomy was clearly discrimination, assessed the fairness or otherwise of the discrimination by examining its effects on the groups affected, i.e. gay men and, indirectly, lesbians. Referring frequently to an influential article written by Edwin Cameron, then a professor and now himself a Constitutional Court judge, it observed that the sodomy laws " already existing societal prejudices" and worsen the effects of those prejudices, reducing gay men to "unapprehended felons" and thereby encouraging discrimination against them.

The court referred to the judgments of the European Court of Human Rights in Norris v. Ireland and of the Supreme Court of Canada in Vriend v. Alberta, finding that heterosexist discrimination causes psychological harm to gays and lesbians and affects their dignity and self-esteem. It also observed that the criminalisation of sodomy legitimises blackmail, entrapment and "queer-bashing". Noting that gay men are a permanent minority in society who have been severely affected by discrimination, and that the conduct that is criminalised is consensual and causes no harm to others, the judgment determined that the discrimination is unfair and therefore infringes on the constitutional right to equality.

The judgment then proceeded to examine the sodomy laws against the constitutional rights to human dignity and privacy. Observing that the laws punish an act that society associates with homosexuality and thereby stigmatise gay men, as well as putting them at risk of prosecution for " in sexual conduct which is part of their experience of being human", the court determined that the right to dignity was infringed.

Dealing with privacy, the court referred again to Cameron's article; he had suggested that the argument based on privacy was inadequate because it implied that the protection against discrimination should be limited to tolerance of private acts. The court noted that the article was published at a time when the inclusion of sexual orientation as a ground for anti-discrimination proctection was still being debated, and that Cameron's argument did not apply when the judgment had already found the discrimination to be unconstitutional on the grounds of equality and dignity.

Having found that the sodomy laws breached constitutional rights, the court then proceeded to ask whether the infringement was justifiable "in an open and democratic society based on human dignity, equality and freedom". The court found that, on the one hand, the criminalisation of sodomy had severe effects on the lives of gay men, and, on the other hand, that no valid purpose had been suggested for the infringement. It pointed out that religious views could not influence constitutional jurisprudence in a secular country.

The court also examined the situation in other democratic countries, observing that sodomy had been decriminalised in the United Kingdom, Ireland, Germany, Australia, New Zealand and Canada, and throughout Western Europe. The court did take note that Bowers v. Hardwick was still (at that time) law in the United States, but pointed out its inconsistency with Romer v. Evans. The result of the balancing test was that the infringements of the rights of gay men could in no way be justified in an open and democratic society.

The court noted that male rape could be prosecuted as indecent assault, and that the Sexual Offences Act created a separate statutory offence criminalising same-sex sexual acts with a person under the age of 19. There was therefore no need to retain a limited offence of sodomy to deal with non-consensual or underage sex, and it could be entirely struck out of the common law. Considering the "men at a party" offence, the court described it as "absurdly discriminatory" and declared it to be unconstitutional for the same reasons that the offence of sodomy was.

The final question before the court was the exact nature of the order to be made and, in particular, to what extent it should be retroactive. The court ruled that, in law, the offences in question ceased to exist on 27 April 1994, when the Interim Constitution came into force. The order, however, provided that past convictions should only be invalidated if they were for consensual acts and the case had not been completely finalised; the court pointed out that those whose cases were final could apply for leave to appeal and condonation of their delay in appealing, in light of the judgment. The order also provided that actions taken as a result of the inclusion of sodomy in the schedules to the Criminal Procedure Act and the Security Officers Act should not be invalidated unless a court found that it would be just and equitable to do so.