Geldenhuys v The State

The appellant, Izak Andreas Geldenhuys, was convicted in the Regional Court on multiple counts of contravening s 14(1)(b) of the Sexual Offences Act 23 of 1957 for engaging in same-sex sexual acts with a male complainant, L B. The acts included mutual masturbation and later anal penetration. Some acts occurred when the complainant was under 16 years old, and others when he was between 16 and 18 years old. At the time, s 14 criminalised consensual same-sex sexual acts with males under 19, while consensual heterosexual acts were lawful from age 16. The appellant appealed against his convictions, raising a constitutional challenge to s 14 on the basis that it unfairly discriminated on grounds of sexual orientation and gender by setting different ages of consent for heterosexual and same-sex conduct.

Appeal partially upheld. Convictions based on same-sex sexual acts committed when the complainant was between 16 and 18 years old were set aside, subject to confirmation by the Constitutional Court of the declaration of constitutional invalidity. Convictions relating to acts committed when the complainant was under 16 years old were confirmed. Sentence appeal was abandoned.

The case is significant for affirming substantive equality and the constitutional protection of sexual orientation in South African law. It contributed to the dismantling of discriminatory sexual offences legislation by equalising the age of consent for heterosexual and same-sex conduct. The judgment paved the way for Constitutional Court confirmation and reinforced the principle that moral disapproval cannot justify criminal discrimination against same-sex conduct.