National Coalition for Gay and Lesbian Equality v Minister of Justice

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the

Gay men were frequently prosecuted under these laws until about 1970, after which date prosecutions for private consensual sex became less common.[1] Nonetheless, they remained on the books as prosecutable offences. In particular, sodomy was listed as a Schedule 1 offence in the Criminal Procedure Act, placing it in the same category as murder, rape and fraud. This listing also allowed police officers to arrest people suspected of sodomy without a warrant, and to use deadly force against them if they attempted to flee.^[1]

In the 1993 case of S v H the defendant plead guilty in the Magistrate's Court to a charge of sodomy, and received a

The Interim Constitution, which came into force on 27 April 1994, did indeed explicitly prohibit discrimination on the basis of sexual orientation.[6] The first challenge to the sodomy laws under this new dispensation came in the case of S v Adendolf;^[7] however, this appeal was rejected by the Cape Provincial Division because the alleged sex was nonconsensual, and the court regarded the question of constitutionality as purely theoretical. The court did state that they would have considered the case had the act in question been consensual.^[8]

S v Kampher^[9] was such a case of consensual sex, although distinguished by the fact that it had occurred between prisoners in a correctional centre.^[1] The defendant was sentenced to a year's imprisonment, suspended for three years. The conviction and sentence was reviewed by Judge Ian Farlam in the Cape Provincial Division; he specifically questioned whether the crime of sodomy was compatible with the anti-discrimination and privacy provisions of the Constitution. The magistrate who had convicted Kampher claimed that it was compatible, referring to Ackermann's judgment in S v H, which had suggested that sex between prison inmates might be a "special situation" in which the state had a legitimate interest in proscribing sexual relationships. The Attorney-General of the Cape disputed this, submitting that the crime of sodomy was indeed incompatible with the Bill of Rights.^[8] The court agreed with the Attorney-General and set aside the conviction and sentence; it did not, however, strike down the crime of sodomy in general.^[1]

The final Constitution, which came into force on 4 February 1997, contained similar equality protections to those in the Interim Constitution, providing in section 9(3) that:^[10]

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

In 1997 the

• invalidate as unconstitutional the common-law offences of sodomy and commission of an unnatural sexual act, and section 20A of the Sexual Offences Act (the "men at a party" offence).
• invalidate any conviction for any of the three offences for acts committed after 27 April 1994 (the date that the
  Interim Constitution
  came into force) if the case was still under appeal or review.
• invalidate the inclusion of sodomy as a Schedule 1 offence in the Criminal Procedure Act, 1977 (which had the effect that people could be arrested without a warrant on reasonable suspicion of having committed sodomy, and deadly force could be used to prevent fleeing from arrest), and its inclusion in the Schedule of the Security Officers Act, 1987 (which had the effect of disqualifying those convicted of sodomy from being registered as security officers).
• invalidate any action taken under the authority of the inclusion of sodomy in Schedule 1 of the CPA or the Schedule of the Security Officers Act.

The Minister of Justice only opposed the last of these requests, and after the applicants withdrew it the government did not offer any opposition to the case. The applicants also withdrew the second request – the blanket invalidation of past convictions – as they realised that some convictions related to non-consensual acts and should instead be converted into convictions for indecent assault.

The applicants argued that because the offences applied only to men and only to sex between men, they infringed the equality clause of the Constitution because they unfairly discriminated in terms of gender and sexual orientation. They also argued that "commission of an unnatural sexual offence" was so vaguely defined that it was not compatible with the rule of law, as a person could not be certain what acts it criminalised.

The High Court's judgment, authored by Judge

Considering the offence of "commission of an unnatural sexual act", Judge Heher dismissed the vagueness argument, and stated that there were some acts potentially covered by the offence – bestiality being an example – that should remain criminalised. He did accept, however, that the offence had primarily been used to prosecute gay men, and ruled that it was discriminatory and unjustifiable, and therefore invalid, to the extent that it criminalised acts between men that would not be criminal between women or between a man and a woman. Continuing to section 20A of the Sexual Offences Act, Judge Heher ruled that, as in the case of sodomy, it was discriminatory in terms of both gender and sexual orientation. Looking to justification, he proposed that Parliament might have enacted the section for the purpose of suppressing "sexual license", but considered that since the government had not seen fit to criminalise similar heterosexual or lesbian activities, the argument was not persuasive.[8]

The offence of sodomy having been declared to be invalid and unconstitutional, it followed that its inclusion in the Schedules to the CPA and the Security Officers Act must also be invalid.

The common law offence of sodomy is declared to be inconsistent with the Constitution of the Republic of South Africa, 1996 and invalid.

— 

Justice Ackermann

, Order of the Court

South African law requires that court orders declaring acts of Parliament to be unconstitutional be confirmed by the Constitutional Court; the High Court therefore referred its order to the Constitutional Court for confirmation. The court heard argument from the applicants on 27 August 1998; the government did not oppose the application and presented no argument.

The Constitutional Court handed down its decision on 9 October 1998; the judges were unanimous in confirming the order of the High Court. The majority judgment was written by Justice

Dealing with privacy, the court referred again to Cameron's article; he had suggested that the argument based on privacy was inadequate because it implied that the protection against discrimination should be limited to tolerance of private acts. The court noted that the article was published at a time when the inclusion of sexual orientation as a ground for anti-discrimination protection was still being debated, and that Cameron's argument did not apply when the judgment had already found the discrimination to be unconstitutional on the grounds of equality and dignity.[8]

Having found that the sodomy laws breached constitutional rights, the court then proceeded to ask whether the infringement was justifiable "in an open and democratic society based on human dignity, equality and freedom". The court found that, on the one hand, the criminalisation of sodomy had severe effects on the lives of gay men, and, on the other hand, that no valid purpose had been suggested for the infringement. It pointed out that religious views could not influence constitutional jurisprudence in a secular country.

The court also examined the situation in other democratic countries, observing that sodomy had been decriminalised in the United Kingdom, Ireland, Germany, Australia, New Zealand and Canada, and throughout Western Europe. The court did take note that Bowers v. Hardwick was still (at that time) law in the United States, but pointed out its inconsistency with Romer v. Evans. The result of the balancing test was that the infringements of the rights of gay men could in no way be justified in an open and democratic society.

The court noted that

• Dudgeon v United Kingdom (1981), Norris v. Ireland (1988) and Modinos v. Cyprus (1993), decided by the European Court of Human Rights.
• Toonen v. Australia (1994), decided by the United Nations Human Rights Committee.
• Constitutional Tribunal of Ecuador
  .
• United States Supreme Court
  .
• Thomas McCosker v The State (2005), decided by the High Court of Fiji.
• Naz Foundation v. Govt. of NCT of Delhi (2009), decided by the Delhi High Court.