National Coalition For Gay and Lesbian Equality V Minister of Justice - The High Court Judgment

The High Court Judgment

The final Constitution, which came into force on 4 February 1997, contained similar equality protections to those in the Interim Constitution, providing in section 9(3) that:

"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."

In 1997 the National Coalition for Gay and Lesbian Equality, an association representing a broad spectrum of South African LGBT organisations, launched a constitutional challenge in the Witwatersrand Local Division of the High Court. The Coalition was joined as applicant by the South African Human Rights Commission, an independent chapter nine institution created by the Constitution and tasked with the promotion and protection of human rights. Named as respondents were the Minister of Justice, the national minister responsible for criminal law; the Minister of Safety and Security, the national minister responsible for policing; and the Attorney General of the Witwatersrand, the official responsible for prosecutions in the Witwatersrand Division. (The position of Attorney General has since been replaced by that of Director of Public Prosecutions within the National Prosecuting Authority.)

The applicants asked the High Court to:

• invalidate as unconstitutional the common-law offences of sodomy and commission of an unnatural sexual act, and section 20A of the Sexual Offences Act (the "men at a party" offence).
• invalidate any conviction for any of the three offences for acts committed after 27 April 1994 (the date that the Interim Constitution came into force) if the case was still under appeal or review.
• invalidate the inclusion of sodomy as a Schedule 1 offence in the Criminal Procedure Act, 1977 (which had the effect that people could be arrested without a warrant on reasonable suspicion of having committed sodomy, and deadly force could be used to prevent fleeing from arrest), and its inclusion in the Schedule of the Security Officers Act, 1987 (which had the effect of disqualifying those convicted of sodomy from being registered as security officers).
• invalidate any action taken under the authority of the inclusion of sodomy in Schedule 1 of the CPA or the Schedule of the Security Officers Act.

The Minister of Justice only opposed the last of these requests, and after the applicants withdrew it the government did not offer any opposition to the case. The applicants also withdrew the second request – the blanket invalidation of past convictions – as they realised that some convictions related to non-consensual acts and should instead be converted into convictions for indecent assault.

The applicants argued that because the offences applied only to men and only to sex between men, they infringed the equality clause of the Constitution because they unfairly discriminated in terms of gender and sexual orientation. They also argued that "commission of an unnatural sexual offence" was so vaguely defined that it was not compatible with the rule of law, as a person could not be certain what acts it criminalised.

The High Court's judgment, authored by Judge Jonathan Heher and handed down on 8 May 1998, considered each of the attacked offences in terms of the equality guarantee in the Constitution. The offence of sodomy, he ruled, amounted to unfair discrimination both in terms of gender, because it criminalised an act between men that would not be a crime between a man and a woman, and in terms of sexual orientation, because anal intercourse is the gay male analogue to vaginal intercourse for heterosexuals. He then examined whether the discrimination could be justified, and observed that the only arguments for justification were based on prejudice or religious beliefs, which are irrelevant in a constitutional secular state; protection of public morals, which could be achieved by non-discriminatory sex offence laws; or the prevailing public opinion. Addressing the last point, the judgment referred to S v Makwanyane, in which the Constitutional Court had abolished the death penalty despite acknowledging that the weight of public opinion was opposed to abolition. The court therefore ruled that the offence of sodomy was inconsistent with the Constitution and invalid.

Considering the offence of "commission of an unnatural sexual act", Judge Heher dismissed the vagueness argument, and stated that there were some acts potentially covered by the offence – bestiality being an example – that should remain criminalised. He did accept, however, that the offence had primarily been used to prosecute gay men, and ruled that it was discriminatory and unjustifiable, and therefore invalid, to the extent that it criminalised acts between men that would not be criminal between women or between a man and a woman. Continuing to section 20A of the Sexual Offences Act, Judge Heher ruled that, as in the case of sodomy, it was discriminatory in terms of both gender and sexual orientation. Looking to justification, he proposed that Parliament might have enacted the section for the purpose of suppressing "sexual license", but considered that since the government had not seen fit to criminalise similar heterosexual or lesbian activities, the argument was not persuasive.

The offence of sodomy having been declared to be invalid and unconstitutional, it followed that its inclusion in the Schedules to the CPA and the Security Officers Act must also be invalid.