Geldenhuys v National Director of Public Prosecutions and Others

The applicant, Izak Andreas Geldenhuys, was convicted under sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 for committing acts of indecency with minors of the same sex. These provisions set the age of consent for ‘immoral or indecent acts’ at 19 years for same-sex conduct, while equivalent opposite-sex conduct carried an age of consent of 16 years. After his conviction and imprisonment, Geldenhuys appealed through the High Court and Supreme Court of Appeal (SCA). The SCA declared the impugned provisions unconstitutional for unfairly discriminating on the basis of sexual orientation and referred the declaration of invalidity to the Constitutional Court for confirmation. The applicant sought confirmation of that order.

The Constitutional Court confirmed the Supreme Court of Appeal’s order declaring sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 unconstitutional and invalid to the extent that they set a higher age of consent for same-sex conduct. The remedial reading-in substituting ‘19 years’ with ‘16 years’ was confirmed, subject to the limitations on retrospectivity imposed by the SCA.

This case is significant for reinforcing constitutional protection against discrimination based on sexual orientation, particularly in the criminal law context. It extended the principles established in National Coalition for Gay and Lesbian Equality by invalidating statutory provisions that stigmatise same-sex conduct through unequal age-of-consent rules. The judgment affirms equality, dignity, and substantive non-discrimination for gay and lesbian persons in South African law.