Lourens Ackermann

“ The author was asserting that sexual orientation should be treated as a ground for non-discrimination in the new Constitution and that reliance on privacy alone would be inadequate. Cameron’s concern that discrimination against gay men ought not to be proscribed on the ground of the right to privacy only, is understandable. I would emphasise that in this judgment I find the offence of sodomy to be unconstitutional because it breaches the rights of equality, dignity and privacy. ”

“ Our society has a poor record of seeking to regulate the sexual expression of South Africans. In some cases, as in this one, the reason for the regulation was discriminatory; our law, for example, outlawed sexual relationships among people of different races. The fact that a law prohibiting forms of sexual conduct is discriminatory, does not, however, prevent it at the same time being an improper invasion of the intimate sphere of human life to which protection is given by the Constitution in section 14. ”

“ Its importance is further emphasised by the role accorded to it in section 36 of the Constitution which provides that:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom...”.
Dignity is a difficult concept to capture in precise terms. [35] At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. ”

“ As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human. Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. ”

“ On the one hand, the privacy argument suggests that discrimination against gays and lesbians is confined to prohibiting conduct between adults in the privacy of the bedroom. This is manifestly not so. On the other hand, the privacy argument may subtly reinforce the idea that homosexual intimacy is shameful or improper: that it is tolerable so long as it is confined to the bedroom—but that its implications cannot be countenanced outside. Privacy as a rationale for constitutional protection therefore goes insufficiently far, and has appreciable drawbacks even on its own terms. ”

“ Everyone finds it more difficult to say that those who are ‘different’ from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any ... group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of ... society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy. ”

“ As to “sexual orientation”, I adopt the following definition put forward by Cameron:
“... sexual orientation is defined by reference to erotic attraction: in the case of heterosexuals, to members of the opposite sex; in the case of gays and lesbians, to members of the same sex. Potentially a homosexual or gay or lesbian person can therefore be anyone who is erotically attracted to members of his or her own sex.” ”

“ In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose. [44]
[36] ⁠The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man’s right to equality in relation to sexual orientation, because it hits at one of the ways in which gays give expression to their sexual orientation. It is at the same time a severe limitation of the gay man’s rights to privacy, dignity and freedom. ”

“ In my view, however, the common-law crime of sodomy also constitutes an infringement of the right to dignity which is enshrined in section 10 of our Constitution. As we have emphasised on several occasions, [34] the right to dignity is a cornerstone of our Constitution. ”

“ The least disruptive way of giving relief to persons in respect of past convictions for consensual sodomy is through the established court structures. On the strength of the order of constitutional invalidity such persons could note an appeal against their convictions for consensual sodomy, where the period for noting such appeal has not yet expired or, where it has, could bring an application for condonation of the late noting of an appeal or the late application for leave to appeal to a court of competent jurisdiction. ”

“ All courts competent to make declarations of constitutional invalidity have the power to make an appropriate order under section 172 (1) (b) (i) if such order, in the circumstances of a particular case, is “just or equitable”. This was in fact so held in S v Ntsele. [103] The real issue is whether, in the circumstances of this case, an order limiting the retrospectivity of the declaration of invalidity would indeed be just and equitable, on a proper construction of that concept in the context of the section and the Constitution as a whole. ”

“ Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. ”

“ The High Court found that these provisions manifested a twofold differentiation. First, differentiation on the grounds of “sex (gender) ” because the provisions criminalised only certain conduct by men; no acts of an equivalent nature performed by women or by men and women together are criminalised under the Act. Second, on grounds of sexual orientation, because “the target of the section is plainly men with homosexual tendencies albeit that the wording is wide enough to embrace heterosexuals.” ”

“ The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. ”

“ The concern of the applicants in this regard was that the common-law crimes prohibited some conduct which may remain prohibited despite the Constitution. If, for example, a person has been convicted of sodomy (rather than indecent assault) for an act of ‘male rape’ his sodomy conviction should not be set aside without being replaced by an appropriate new conviction for indecent assault. ”

“ However, in Northern Ireland the criminal law relating to sodomy remained unchanged. In 1981, in Dudgeon v United Kingdom, [51] the European Court of Human Rights held that the sodomy laws of Northern Ireland was in breach of the article 8 [52] privacy provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”) to the extent that they criminalised sodomy between adult consenting males in private. In 1982 Northern Ireland amended its laws accordingly. [53] The same conclusion was reached in 1988 in Norris v Ireland. ”

“ The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose. There is accordingly nothing, in the proportionality enquiry, to weigh against the extent of the limitation and its harmful impact on gays. ”

“ South Australia thus also became the first state to recognise sexual orientation as a prohibited ground of discrimination. Western Australia decriminalised private adult gay sex in the Law Reform (Decriminalisation of Sodomy) Act No 32 of 1989. In 1991, the Australian Capital Territory enacted the Discrimination Act, No 81 of 1991. Section 7 of this Act explicitly includes sexuality as a prohibited ground of discrimination. ”

“ If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. ”

“ Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates [sic] the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. ”

“ Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly. ”

“ The nature of the unfairness contemplated by the provisions of section 8 was considered in paragraphs 41 and 43 of the majority judgment in the Hugo case.
...
In paragraph 41 dignity was referred to as an underlying consideration in the determination of unfairness. The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner. ”

“ The common law definition of sodomy is more extensive, however, and is not limited to private consensual sex per anum between adult males. It also applies to anal sex under circumstances where one male has not consented or when one partner is below the age of consent ”

“ Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. ”

“ They do no more. A lesbian and a heterosexual couple do exactly the same. The gay couple are guilty of an offence. The lesbian and heterosexual couples not. Cameron has rightly commented on the absurdity and tragic-comic consequences of this enactment. [94]
[76] ⁠There being no similar provision in relation to acts by women with women, or acts by men with women or by women with men, the discrimination is based on sexual orientation and therefore presumed to be unfair. ”

“ Traditionally disadvantaged groups such as women and blacks both constitute a majority of the South African population. Gays and lesbians, by contrast, are by definition a minority. Paradoxically, their perpetuation as a social category is dependent on the survival of the procreative heterosexual majority. ”

“ He concluded that there was no justification for maintaining the common law crime of committing an unnatural sexual act by a man or between men, if such act would not constitute an offence if committed by a woman, between women or between a man and a woman ”

“ If it were to transpire that the retrospective operation of the order does not provide a cause of action for damages, then persons unconstitutionally detained in the past suffer no prejudice in relation to damages. ”

“ The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays. ”

“ In addition, the likely result of such an unqualified order would be numerous appeals with the possibility of proceedings having to be brought afresh. [112] In each case the issue would arise as to whether the accused in question would have been convicted, or could be convicted in the absence of reliance on the particular reverse onus provision. ”