The National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission v The Minister of Justice and Others

The matter concerned the confirmation of a declaration by the Witwatersrand High Court (Heher J) that section 20A of the Sexual Offences Act 1957, the inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977, and the inclusion of sodomy in the schedule to the Security Officers Act 1987 were constitutionally invalid. The High Court also declared the common law offence of sodomy and the common law offence of committing an unnatural sexual act (to the extent it criminalised acts committed by men that would not constitute an offence if committed by women) to be inconsistent with the 1996 Constitution. These declarations were referred to the Constitutional Court for confirmation under section 172(2)(a). The applicants were the National Coalition for Gay and Lesbian Equality (a voluntary association representing gay, lesbian, bisexual and transgendered people) and the South African Human Rights Commission. The respondents were the Minister of Justice, the Minister of Safety and Security, and the Attorney-General of the Witwatersrand. The respondents did not oppose the application or offered minimal opposition which was later withdrawn.

• Whether the common law offence of sodomy is inconsistent with section 9 (equality), section 10 (dignity) and section 14 (privacy) of the 1996 Constitution
• Whether section 20A of the Sexual Offences Act 1957 is inconsistent with the Constitution
• Whether the inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977 is constitutionally invalid
• Whether the inclusion of sodomy in the schedule to the Security Officers Act 1987 is constitutionally invalid
• Whether the declaration of invalidity should be limited in its retrospective effect under section 172(1)(b) of the Constitution
• Whether a declaration of invalidity of a common law offence requires confirmation by the Constitutional Court
• The relationship between equality, dignity and privacy rights in the constitutional framework
• The interpretation of section 9 (equality) and whether substantive equality is achieved through section 9(1) or through the anti-discrimination provisions in sections 9(3)-(5)

The Court made the following orders: (1) The common law offence of sodomy was declared inconsistent with the Constitution and invalid. The retrospective effect was limited to convictions for consensual sexual conduct between adult males in private committed after 27 April 1994 where appeals or reviews were pending or time for appeal had not expired or condonation was granted. For non-consensual sodomy, the order took effect from the date of judgment. (2) Section 20A of the Sexual Offences Act 1957 was declared invalid, with similar limitations on retrospective effect to convictions after 27 April 1994. (3) The inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977 was declared invalid, with the Court conferring discretion on courts of competent jurisdiction to determine whether conduct relying on the inclusion should be invalidated, having regard to section 35(5) in relation to evidence. (4) The inclusion of sodomy in the schedule to the Security Officers Act 1987 was declared invalid, with discretion given to courts to determine whether acts done in reliance should be invalidated where just and equitable.

The criminalisation of consensual sodomy between adult males in private constitutes unfair discrimination on the ground of sexual orientation in violation of section 9 of the Constitution. As sexual orientation is a listed ground in section 9(3), discrimination is presumed unfair unless established to be fair. The discrimination severely impacts the dignity, personhood and identity of gay men, reinforces societal prejudices, causes psychological harm, and has no legitimate government purpose other than enforcing the moral or religious views of a section of society. The discrimination cannot be justified under section 36 as there is no rational basis for the limitation and nothing to weigh against its harmful impact. The criminalisation also independently violates the rights to dignity (section 10) and privacy (section 14). These rights are interconnected and mutually reinforcing - the violation of equality is aggravated by the invasion of privacy and assault on dignity, while the discriminatory targeting of a group destroys any justification for the privacy invasion. When a law is declared constitutionally invalid, the court has discretion under section 172(1)(b) to make any order that is just and equitable, including limiting retrospective effect. The test is broader and more flexible than under the interim Constitution, with the interests of good government being one of many factors to consider.

Ackermann J made observations that: privacy should not be undervalued as it protects the intimate sphere of human relationships and sexual expression, which is at the core of private intimacy; the Constitutional Court has power to consider the constitutional validity of common law offences when this is unavoidably connected with deciding matters formally before it; there are difficulties arising from the lack of constitutional provision for obligatory referral of declarations of invalidity of common law offences; equality jurisprudence should continue to develop around the concept of unfair discrimination centred on dignity, not through broad reliance on section 9(1) alone; and comparative jurisprudence shows a definite trend toward decriminalisation of consensual homosexual conduct in democratic societies. Sachs J made extensive obiter observations including: that equality and privacy rights should not be ranked sequentially but understood as interconnected and simultaneously violated; privacy should be understood affirmatively as enabling personal self-realisation, not merely as sealing off the bedroom from state intrusion; grounds of discrimination can intersect to produce compound disadvantage; dignity is the motif linking equality and privacy; the special vulnerability of gays arises from invisibility and the attribution of perversity rather than from material disadvantage; equality does not require uniformity but celebrates difference; the state is not neutral in values but must find moral limits in the Constitution itself; and the emancipatory effects of eliminating institutionalised prejudice may encourage greater acceptance of human variability in society.

This landmark judgment was the first Constitutional Court decision to invalidate laws discriminating against gays and lesbians on the ground of sexual orientation. It established that South Africa's Constitution affords comprehensive protection against discrimination based on sexual orientation, being one of the first constitutions in the world to expressly include sexual orientation as a prohibited ground of discrimination. The judgment affirmed that equality does not require uniformity but recognition and acceptance of difference. It established important principles regarding: the intersection of equality, dignity and privacy rights; the interpretation of substantive equality through the anti-discrimination provisions of section 9(3)-(5); the treatment of sexual orientation as analogous to other forms of systemic disadvantage; the importance of assessing discrimination from the perspective of affected groups; and the application of section 172(1)(b) regarding limitations on retrospective effect of declarations of invalidity. The judgment has been foundational for subsequent LGBTI+ rights jurisprudence in South Africa and internationally influential. It reflected the Constitution's commitment to recognising human variability and transforming a society previously characterised by enforced uniformity and discrimination.