The National Coalition for Gay and Lesbian Equality v The Minister of Justice

The National Coalition for Gay and Lesbian Equality (first applicant) and the South African Human Rights Commission (second applicant) challenged the constitutional validity of the common law offence of sodomy, section 20A of the Sexual Offences Act 1957, and the inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977 and the Schedule to the Security Officers Act 1987. The Witwatersrand High Court (Heher J) declared these provisions inconsistent with the 1996 Constitution and referred the matter to the Constitutional Court for confirmation under section 172(2)(a). The common law offence of sodomy criminalized consensual sexual intercourse per anum between males, including in private between consenting adults. Section 20A criminalized male-on-male sexual acts at a party (defined as any occasion where more than two persons are present). The inclusion of sodomy in various schedules had numerous legal consequences including arrest powers, bail restrictions, employment prohibitions, and pension disqualifications. The respondents (Ministers of Justice and Safety and Security, and the Attorney-General of the Witwatersrand) did not oppose the application or appeared only to assist the Court.

• Whether the common law offence of sodomy is inconsistent with the right to equality (section 9 of the 1996 Constitution) on the ground of sexual orientation
• Whether the common law offence of sodomy violates the rights to dignity (section 10) and privacy (section 14)
• Whether section 20A of the Sexual Offences Act 1957 is constitutionally invalid
• Whether the inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977 and the Schedule to the Security Officers Act 1987 is constitutionally invalid
• Whether any limitation of these rights can be justified under section 36 of the Constitution
• What retrospective effect should be given to declarations of invalidity under section 172(1)(b) of the Constitution
• Whether the common law offence should be declared invalid in its entirety or only to the extent it criminalizes consensual sodomy in private between adult males

The Court confirmed the High Court's declarations of invalidity with detailed orders on retrospectivity: (1) The common law offence of sodomy was declared inconsistent with the Constitution and invalid. The order did not invalidate convictions unless they related to consensual sexual conduct between adult males in private committed after 27 April 1994 and an appeal was pending, time for appeal had not expired, or condonation for late appeal 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 retrospective provisions for convictions after 27 April 1994. (3) The inclusion of sodomy in Schedule 1 of the Criminal Procedure Act 1977 and the Schedule to the Security Officers Act 1987 was declared invalid, with detailed provisions limiting retrospectivity of acts done in reliance on these provisions, leaving it to courts of competent jurisdiction to determine what would be just and equitable in individual cases, with due regard to section 35(5) regarding unconstitutionally obtained evidence.

The common law offence of sodomy and section 20A of the Sexual Offences Act 1957 constitute unfair discrimination on the ground of sexual orientation in violation of section 9 of the Constitution. Discrimination on a listed ground under section 9(3) is presumed unfair under section 9(5) unless fairness is established. In determining unfairness, courts must consider: the position of complainants in society and whether they have suffered patterns of disadvantage; the nature and purpose of the discriminatory provision; and the extent to which the discrimination affects rights and interests and impairs fundamental dignity. Gay men constitute a vulnerable minority who have suffered historical disadvantage. The challenged provisions criminalize conduct on the basis of the sexual orientation of participants rather than any inherent harm, affecting dignity, personhood and identity at the deepest level, reinforcing prejudice and causing psychological harm. No rational connection exists between the differentiation and any legitimate governmental purpose. The provisions also violate the rights to dignity (section 10) and privacy (section 14). Dignity requires acknowledgment of the value and worth of all individuals; criminalizing a form of sexual expression identified with homosexuals stigmatizes gay men as criminals and degrades them in society. Privacy protects the intimate sphere of personal relationships and sexual expression; consensual private sexual conduct that harms no one falls within this protected sphere. These violations cannot be justified under section 36(1). There is no legitimate purpose in enforcing private moral views based on prejudice. The interests of justice require giving retrospective effect to declarations of invalidity for consensual sodomy convictions after 27 April 1994, subject to appeal mechanisms, while limiting retrospectivity for other consequences to avoid injustice and disruption.

Ackermann J made several significant observations beyond the ratio: (1) On the relationship between interim and 1996 Constitutions: The equality jurisprudence developed under section 8 of the interim Constitution applies equally to section 9 of the 1996 Constitution; the addition of "and benefit" in section 9(1) does not substantively change its objectives. (2) On substantive vs formal equality: The Constitution envisions substantive equality, not mere formal equality or uniformity. Section 9(2) contemplates both substantive equality (full and equal enjoyment of rights) and remedial equality (measures to advance disadvantaged persons). Treating people identically can sometimes result in inequality. (3) On constitutional interpretation methodology: Rights should be approached in integrated rather than disparate fashion, looking at them contextually from a persons-centred rather than formula-based position. Grounds of discrimination can intersect, requiring nuanced rather than categorical approaches. (4) On international comparative law: The trend in democratic societies toward decriminalization of consensual sodomy supports the conclusion, though the US decision in Bowers v Hardwick (which upheld sodomy laws) offers no assistance given fundamental differences in constitutional text (South Africa expressly protects sexual orientation). (5) On severability: The trite test applies - if the good is not dependent on the bad and can be separated, one gives effect to what remains if it still achieves the statute's main objective. Applied to common law offences, where the core purpose was to criminalize gay sexual expression, the entire offence should be invalidated as remaining conduct (male rape) is adequately covered by other offences. (6) On procedural matters: Courts of first instance must receive evidence and adjudicate on questions of retrospectivity under section 172(1)(b), not courts of appeal or the Constitutional Court on confirmation. The absence of obligatory referral mechanisms for common law invalidity can create difficulties that parties should address through considered appeal decisions. Sachs J's concurring judgment contained extensive obiter observations: (1) On privacy: Privacy should not be understood narrowly as sealing off the bedroom, but affirmatively as protecting the right to get on with your life, express your personality and make fundamental decisions about intimate relationships. It protects people not places, encompassing intimate personal behavior regardless of site. (2) On the interrelationship of rights: Equality and privacy cannot be separated in anti-sodomy cases; they are violated simultaneously and should be analyzed in integrated fashion. Rights must fit the people, not people the rights, requiring contextual rather than abstract analysis. Grounds of discrimination can intersect, and a single situation can give rise to multiple overlapping violations. (3) On dignity in equality jurisprudence: Dignity is the motif linking equality and privacy. Violation of dignity under equality provisions differs from violation under section 10 - the former stems from inequality of treatment based on group membership and closely held characteristics leading to indignity; the latter contemplates wider situations of indignity of treatment leading to inequality. Both are complementary not competitive. (4) On difference in open society: The Constitution does not envisage uniformity but acknowledgment and acceptance of difference. What becomes normal in an open society is acceptance of the principle of difference itself. A state that recognizes difference is not neutral in values - it enforces morality found in the Constitution's text and spirit. The emancipation of gays and lesbians should encourage greater sensitivity to human variability generally. Those who disagree with homosexual conduct on religious grounds remain free to hold and articulate such beliefs, but the state cannot impose these beliefs as dogma on society.

This landmark judgment was the first in the world to declare anti-sodomy laws unconstitutional based on an express constitutional prohibition of discrimination on the ground of sexual orientation. It represents a foundational case in South African and international LGBTQ+ rights jurisprudence. The judgment established key principles: (1) Sexual orientation is a fundamental aspect of human dignity and personhood deserving constitutional protection. (2) Equality jurisprudence must be substantive, not formal, focusing on the impact of discrimination on historically disadvantaged groups. (3) Constitutional rights (equality, dignity, privacy) are interrelated and mutually reinforcing, not hierarchical or compartmentalized. (4) The Constitution protects the right to be different and celebrates diversity; statistical normality cannot determine legal normativity. (5) The state may not impose majoritarian moral views on minorities where this violates constitutional rights. (6) Privacy protects not just places but people, encompassing the right to intimate personal relationships and self-expression. The judgment articulated sophisticated equality analysis requiring consideration of: the position of complainants in society and patterns of historical disadvantage; the nature and purpose of discriminatory provisions; and the extent to which discrimination impairs fundamental dignity. It demonstrated how courts should approach retrospectivity of constitutional invalidity declarations under section 172(1)(b), balancing interests of justice for affected individuals against disruption to the administration of justice. The case has had profound social impact, contributing to legal and social recognition of LGBTQ+ rights in South Africa, and has been cited internationally as a model of progressive constitutional adjudication on sexual orientation equality.