Izak Andreas Geldenhuys v National Director of Public Prosecutions and Others

The applicant, a 53-year-old dentist, was convicted in the Pretoria Regional Court on 9 February 2005 for acts of indecency involving minors under section 14(1)(b) of the Sexual Offences Act 23 of 1957. He was sentenced to 11 years' imprisonment. The Regional Court conviction was confirmed by the Transvaal High Court on 21 November 2006, with a reduced sentence. The applicant appealed to the Supreme Court of Appeal against his conviction (but not his sentence). The impugned provisions, sections 14(1)(b) and 14(3)(b) of the Act, set different ages of consent: 16 years for "immoral or indecent acts" between people of the opposite sex, but 19 years for the same acts between people of the same sex. The offences related to conduct with L, a teenage boy, when L was between 14 and 16 years old, and involved conduct occurring during 1997 onwards while the applicant was working as a bus driver and became close to L's family.

• Whether sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are unconstitutional insofar as they differentiate between the age of consent for sexual acts between persons of the same sex (19 years) and persons of the opposite sex (16 years)
• Whether this differentiation constitutes unfair discrimination on the ground of sexual orientation in violation of section 9 of the Constitution
• Whether any justification exists for the discrimination under section 36 of the Constitution
• What remedy is just and equitable: whether the uniform age of consent should be set at 16 years or 18 years

1. The order of the Supreme Court of Appeal declaring sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 unconstitutional and invalid to the extent of the differentiation in the age of consent (16 years for heterosexual acts vs 19 years for same-sex acts) is confirmed with effect from 27 April 1994. 2. Sections 14(1)(b) and 14(3)(b) are to be read as though "under the age of 19 years" is replaced with "under the age of 16 years" with effect from 27 April 1994. 3. The order shall not invalidate any conviction under these sections unless an appeal or review is pending, the time for appeal has not expired, or condonation for late appeal is granted by a competent court. 4. The applicant's appeal on the first four counts was dismissed by the Supreme Court of Appeal. 5. The appeal on the remaining six counts was upheld by the Supreme Court of Appeal (subject to confirmation by the Constitutional Court). 6. No order as to costs.

1. Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957, insofar as they set different ages of consent for sexual acts between persons of the same sex (19 years) and persons of the opposite sex (16 years), constitute unfair discrimination on the ground of sexual orientation contrary to section 9(3) of the Constitution. 2. Discrimination on the ground of sexual orientation, a listed ground in section 9(3), creates a presumption of unfairness which must be rebutted by those seeking to uphold the discriminatory provision. 3. A differential age of consent based on sexual orientation perpetuates damaging stereotypes that same-sex conduct is disgraceful, deviant, or of less value than opposite-sex conduct, and is therefore demeaning and inconsistent with constitutional values of equality, human dignity and freedom. 4. No justification under section 36 exists for discriminatory age of consent provisions based solely on sexual orientation. 5. The appropriate remedy under section 172(1)(b) is to read down the provisions to set a uniform age of consent at 16 years (consistent with heterosexual provisions and subsequent legislation), rather than striking down the provisions entirely or raising the age to 18 years, as the latter would create further inconsistencies with other legislation. 6. Where legislation is declared unconstitutional, the declaration operates retrospectively from 27 April 1994 (the commencement of the interim Constitution), but is subject to limitations to prevent unjustified disruption of the administration of justice.

1. Mokgoro J emphasized (at para 22) that the case did not concern the appropriate age of consent to sexual intercourse generally, but specifically addressed the different ages of consent for acts termed "immoral or indecent acts" between same-sex and opposite-sex partners. 2. The Court noted (at para 36) that the impugned sections do not purport to protect children between 16 and 18 against all sexual acts, but only against homosexual sexual acts, revealing an inherent prejudice that homosexual acts or people are "odd, deviant and even perverse." 3. The Court observed (at para 36) that for young people just beginning to explore their sexuality and considering "coming out," the negative effect of such discrimination might be particularly harmful. 4. The Court acknowledged (at para 42) that there had been no constitutional challenge to the 16-year age limit itself as being too low, which informed its decision not to raise the age to 18 years. 5. Regarding condonation (paras 18-21), the Court granted condonation for the Minister's late filing despite inadequate explanation, noting the importance of the Minister's participation in confirmation proceedings, but emphasized that non-compliance with Rules and directions must be discouraged as it creates inconvenience and may prejudice other parties. 6. The Court noted (at para 27) that although the impugned provisions had been repealed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, this did not automatically relieve the applicant of his convictions, as offenders are judged according to the law in operation at the time of the offence.

This case is a landmark decision in South African equality jurisprudence and LGBTI+ rights. It affirmed that discrimination based on sexual orientation is presumptively unfair and unjustifiable. The judgment built on the Constitutional Court's earlier decision in National Coalition for Gay and Lesbian Equality v Minister of Justice (1999), reinforcing that laws differentiating between same-sex and opposite-sex conduct perpetuate harmful stereotypes and violate the equality guarantee in section 9 of the Constitution. The case demonstrates the Court's commitment to substantive equality and the protection of sexual minorities, recognizing that differential treatment marks the gay and lesbian community with deviance and perversity. It establishes an important precedent for challenging discriminatory legislation even after its repeal, where convictions under such legislation remain in force. The decision also illustrates the Court's approach to remedial orders under section 172(1)(b) of the Constitution, preferring reading down to striking down where this produces a just and equitable result without creating legislative gaps or further inconsistencies.