National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitutionand in particular its explicit prohibition of discrimination based on sexual orientationthe court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The case was the first in a series of Constitutional Court rulings advancing LGBT rights in South Africa which culminated in the case Minister of Home Affairs and Another v Fourie and Another, a judgment which led to the legalisation of same-sex marriage in South Africa by the Civil Union Act, 2006. In the interim the court extended to same-sex couples immigration-related rights, pension benefits, the ability to adopt, and parental rights over children conceived by artificial insemination.
Argument in the case was heard on 27 August 1998 before President of the Constitutional Court Arthur Chaskalson, Deputy President Pius Langa, and Justices Ackermann, Goldstone, Kriegler, Mokgoro, O'Regan, Sachs and Yacoob. The decision was handed down on 9 October of the same year; the majority judgment was authored by Justice Ackermann, while Justice Sachs wrote a separate concurring judgment.
History Sodomy in South African law South Africa inherited the crime of "sodomy" from the Roman-Dutch law, which was introduced by the Dutch East India Company settlers at the Cape, and still forms the basis of South African law. In the Roman-Dutch law, sodomy originally encompassed a number of sexual acts considered unnatural, including heterosexual anal sex, masturbation and bestiality, as well as homosexual sex. Over time, however, in South African common law it was reduced to refer only to male-male anal sex, the legal definition being "unlawful and intentional sexual intercourse per anum between human males". The common law also prohibited "unnatural sexual offences", defined as "the unlawful and intentional commission of an unnatural sexual act by one person with another person"; the definition of "unnatural" had been held to include fellatio, mutual masturbation and intercrural sex, but it only applied to acts between men and not to acts between a man and a woman.
"Sodomy" and "unnatural sexual offences" were common law crimes, derived from the Roman-Dutch law and developed by judges. South African statute law also contained, in section 20A of the Sexual Offences Act, a provision known as the "men at a party" offence; this criminalized any sexual acts between men at a party, where "a party" was defined as any occasion with more than two people present.
Gay men were frequently prosecuted under these laws until about 1970, after which date prosecutions for private consensual sex became less common. 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.
Prior case law 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 suspended sentence of one year's imprisonment; the act alleged was private and consensual. The conviction was reviewed by Judge Lourens Ackermann in the Cape Provincial Division of the Supreme Court.S v H 1993 (2) SACR 545 (C), 1995 (1) SA 120 (C) (6 September 1993), Cape Provincial Division At that time, before the Interim Constitution and its Bill of Rights had come into force, the conviction was valid in law and the court did not reverse it; however, the sentence was replaced by a nominal caution and discharge. Judge Ackermann referred to the various draft constitutional texts then under negotiation, and pointed out that the drafts proposed by the ANC, the DP and the IFP all explicitly forbade discrimination based on sexual orientation, while the draft proposed by the NP-controlled government forbade discrimination on the basis of "natural characteristics". He used these facts to justify a ruling that custodial sentences were not appropriate for cases of consensual private sodomy. Significantly, he also wrote:
The Interim Constitution, which came into force on 27 April 1994, did indeed explicitly prohibit discrimination on the basis of sexual orientation.Constitution of the Republic of South Africa, Act No. 200 of 1993 , s. 8(2) : "No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language." The first challenge to the sodomy laws under this new dispensation came in the case of S v Adendolf;S v Adendolf 1995 (2) BCLR 153 (C) (16 September 1994), Cape Provincial Division 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.
S v KampherS v Kampher 1997 (9) BCLR 1283 (C), 1997 (4) SA 460 (C) (4 August 1997), Cape Provincial Division was such a case of consensual sex, although distinguished by the fact that it had occurred between prisoners in a correctional centre. 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. 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.
The High Court judgment 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:Constitution of the Republic of South Africa, 1996, s. 9(3).
In 1997 the National Coalition for Gay and Lesbian Equality, an association representing a broad spectrum of South African LGBT organisations, launched a constitutional challenge in the Witwatersrand Local Division of the High Court. The Coalition was joined as applicant by the South African Human Rights Commission, an independent chapter nine institution created by the Constitution and tasked with the promotion and protection of human rights. Named as respondents were the Minister of Justice, the national minister responsible for criminal law; the Minister of Safety and Security, the national minister responsible for policing; and the Attorney General of the Witwatersrand, the official responsible for prosecutions in the Witwatersrand Division.National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others, 1998 (6) BCLR 726 (W) (8 May 1998), Witwatersrand Local Division. (The position of Attorney General has since been replaced by that of Director of Public Prosecutions within the National Prosecuting Authority.)
The applicants asked the High Court to: 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 requestthe blanket invalidation of past convictionsas 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 Jonathan Heher and handed down on 8 May 1998, considered each of the attacked offences in terms of the equality guarantee in the Constitution. The offence of sodomy, he ruled, amounted to unfair discrimination both in terms of gender, because it criminalised an act between men that would not be a crime between a man and a woman, and in terms of sexual orientation, because anal intercourse is the gay male analogue to vaginal intercourse for heterosexuals. He then examined whether the discrimination could be justified, and observed that the only arguments for justification were based on prejudice or religious beliefs, which are irrelevant in a constitutional secular state; protection of public morals, which could be achieved by non-discriminatory sex offence laws; or the prevailing public opinion. Addressing the last point, the judgment referred to S v Makwanyane, in which the Constitutional Court had abolished the death penalty despite acknowledging that the weight of public opinion was opposed to abolition. The court therefore ruled that the offence of sodomy was inconsistent with the Constitution and invalid.