The National Coalition for Gay and Lesbian Equality (“Applicants”) requested a declaratory judgment from the Witwatersrand High Court on the unconstitutionality of sodomy. The High Court declared the common law offense of sodomy and unnatural sexual acts between men unconstitutional. Under Section 172(2)(a) of the Constitution of South Africa, the Minister of Justice brought the case before the Constitutional Court for confirmation of the High Court’s declaration.
At issue in this case is whether the common law offense of sodomy is unconstitutional.
Section 9(3) of the Constitution prohibits unfair discrimination based on sexual orientation, unless the government can demonstrate that the discrimination is fair. Gay men constitute a minority of South African society, and suffer severe disadvantages on the basis of their sexual orientation. The purpose of the common law offense of sodomy is to criminalize conduct that does not conform to the moral and religious values of a particular social group. The offense therefore stigmatizes all gay men as criminals, and subjects them to hostile social reactions. The Court decided that this form of discrimination is not justifiable under Section 9 of the Constitution. The Court held that the common law offense also violates the dignity and privacy of gay men, as protected respectively by Sections 10 and 14 of the Constitution. The Court noted that the heart of the right to privacy is the right to establish intimate human relationships without interference by the state or society. This includes the right to establish sexual relationships between two consenting adult men. The desire to respect the moral views of a particular section of the community is not a legitimate justification for the limitation of a person’s fundamental constitutional rights.
The Court held that the High Court correctly declared that the common law offense of sodomy is unconstitutional.