Date: Fri, 15 May 1998 09:19:55 +0200 From: "Mazibuko K. Jara " To: "Ron Buckmire" Mazibuko Kanyiso Jara; Equal Rights Project National Coalition for Gay and Lesbian Equality P.O. Box 27811, Yeoville, 2143, South Africa 1c Rockey Street, Yeoville/Bellevue, 2198 Tel - ++27 - (0) 11 - 4873810/1/2; Fax - ++27 - (0) 11 - 4871670 NCGLE Voicemail - 0881 209 104;Personal Voicemail - 0881 245 633 The National Coalition for Gay and Lesbian Equality is a voluntary association of more than 74 lesbian, gay, bisexual and trans-gendered organisations in South Africa. Formed in December 1994, the Coalition lobbied successfully for the retention of sexual orientation as one of the grounds of non-discrimination in the Constitution. The Coalition is mandated to work for legal and social equality for its members. Its work includes law reform, lobbying, litigation, advocacy, employment equity, leadership training and development. Major policy interventions have been successfully undertaken by the Coalition notably on the issues of employment; the Defence Force policy; and the SA Police. IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION) CASE NO: 97/023677 In the matter between: THE NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY First Applicant THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION Second Applicant and THE MINISTER OF JUSTICE First Respondent THE MINISTER OF SAFETY & SECURITY Second Respondent THE ATTORNEY-GENERAL OF THE WITWATERSRAND Third Respondent ___________________________________________________________________ J U D G M E N T ___________________________________________________________________ HEHER, J: In this application the applicants challenge the constitutional validity of laws which criminalise various forms of sexual activities between males. The applicants initially sought the following relief: "(a) an order declaring that the common law offence of sodomy is inconsistent with the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) ("the Constitution") and invalid; (b) an order invalidating any conviction for the offence of sodomy if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet expired; (c) an order declaring that the common law offence of commission of an unnatural sexual act between men is inconsistent with the Constitution and invalid; (d) an order invalidating any conviction for the offence of commission of an unnatural sexual act between men if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet expired; (e) an order declaring that section 20A of the Sexual Offences Act, 1957 (Act 23 of 1957) is inconsistent with the Constitution and invalid; (f) an order setting aside any conviction for the offence of contravening section 20A of the Sexual Offences Act 1957 (Act 23 of 1957), if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment is pending or the time for noting an appeal from that judgment has not yet expired; (g) an order declaring the inclusion of sodomy as an item in Schedule 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977) is inconsistent with the Constitution and invalid; (h) an order invalidating any act performed after 27 April 1994 under authority of the inclusion of sodomy as an item in Schedule 1 of the Criminal Procedure Act (Act 51 of 1977); (i) an order declaring that the inclusion of sodomy as an item in the Schedule to the Security Officers Act, 1987 (Act 92 of 1987) is inconsistent with the Constitution and invalid; (j) an order invalidating any act performed after 27 April 1994 under authority of the inclusion of sodomy as an item in the Schedule to the Security Officers Act (Act 92 of 1987); (k) an order granting the Applicants further and/or alternative relief; (l) ..." The applicants formally withdrew the claims in paragraphs (h) and (j) to the notice of motion before the hearing commenced. Paragraph (l) was a claim for costs against any of the respondents who opposed the application. In consequence of the applicants' withdrawal of paragraphs (h) and (j), the first respondent no longer opposed the application. The second and third respondents have at no stage done so. They abide the decision of the Court. Accordingly the applicants seek no order for costs against the respondents. Upon further reconsideration of their case the applicants no longer persisted in the claim for the retrospective relief set out in paragraphs (b) and (d) but submitted that the effect of the invalidity of the common law crimes should be considered in individual cases which have not yet been finalised. 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. In the opinion of the applicants' counsel the broad relief sought by their clients in paragraphs (b) and (d) did not facilitate that process and they accordingly abandoned the claim to that relief. The applicants were inclined to persist in their claim for the relief set out in paragraph (f) because, in their counsels' submission, problems of the sort posed by the common law crimes are not presented by the invalidation of convictions in terms of section 20A of the Sexual Offences Act. The applicants submitted however that only the Constitutional Court had jurisdiction to grant relief which would have the generalised effect of the relief sought in paragraph (f) and, if they were correct in this submission, they would in due course approach the Constitutional Court for an appropriate order. The first applicant is the National Coalition for Gay and Lesbian Equality, a duly constituted voluntary association of gay, lesbian, bi-sexual and transgendered persons comprising seventy organisations and associations. The first applicant has the right to sue and be sued in its own name. The principal objectives of the first applicant include the following: "3.1 [To] promote equality before the law for all persons, irrespective of their sexual orientation, (as envisaged?) in the Constitution of the Republic of South Africa. ... 3.4 [To] challenge by means of litigation, ... all forms of discrimination on the basis of sexual orientation;" The second applicant is the South African Human Rights Commission, a statutory body established by section 184 of the Constitution Act, 1996. The second applicant is obliged to "promote the protection, development and attainment of human rights" and has statutory power to litigate for this purpose. (See section 184(1)(b) of the Constitution and section 7(1)(e) of the Human Rights Commission Act 54 of 1994.) The first respondent is the Minister of Justice in the National Government. The second respondent is the Minister of Safety and Security in that Government. The first and second respondents are members of the National Executive, responsible for the administration and enforcement of the Criminal Procedure Act, the Sexual Offences Act and the Security Officers Act. The third respondent is the Attorney-General of the Witwatersrand Local Division of the High Court of South Africa. In the area of jurisdiction of this Court, the third respondent controls prosecutions for the offences of sodomy and commission of unnatural sexual acts and for contraventions of section 20A of the Sexual Offences Act. The applicants ask the Court to declare unconstitutional the statutory and common law offences which criminalise sexual acts engaged in between male persons, and statutes which discriminate on the basis of convictions for those acts. They submit that the laws apply different standards to individuals and groups of persons dependent on their biological sex or sexual orientation. The first applicant has a direct interest in the relief sought in this application arising out of the objectives set out in its constitution. The second applicant has a similar direct interest. In addition both applicants have standing in terms of section 38 of the Constitution consistent with the broad approach recognised in Ferreira v Levin NO and Others 1996 1 SA 984 (CC) at 1082G-H, and since applied in Beukes v Krugersdorp Transitional Local Council and Another 1996 3 SA 467 (W) at 474C-E and Port Elizabeth Municipality v Prut NO and Another 1996 4 SA 318 (E) at 324I-326B. The challenged laws Sodomy The common law crime of sodomy is defined as "unlawful and intentional sexual relations per anum between two human males": Hunt, South African Criminal Law and Procedure 3rd ed (1996) by J R L Milton; Snyman, Criminal Law 3rd ed (1995) at 340; S v Kampher 1997 4 SA 460 (C). Sodomy criminalises sexual conduct between men whether committed in public or private and with or without consent. The applicants, despite the unlimited scope of the claims in the notice of motion, sought before me, decriminalisation only to the extent that sodomy takes place in private between consenting parties. Heterosexual intercourse per anum falls outside the definition of sodomy and, if consensual, non-commercial and private, is not an offence: R v N 1961 3 SA 147 (T); R v M 1969 1 SA 328 (R); S v H 1993 (2) SACR 545 (C). Unnatural sexual acts Hunt, South African Criminal Law and Procedure vol 2 (3rd ed) at 223 defines the common law crime of committing an "unnatural sexual act" in the following terms: "An unnatural sexual offence consists in the unlawful and intentional commission of an unnatural sexual act by one person with another person." The limits of the crime are by no means clear. A fortiori, the meaning of an unnatural act is even more ill-defined: S v C 1988 2 SA 398 (Z) at 400D-H; S v Kampher supra at paragraph 20. Hunt (op cit) at 227 observes: "Where the act amounts to sodomy or bestiality it should be charged as such. However sodomy and bestiality are just particular defined forms of unnatural offence and it is submitted that an indictment is not bad if it charges the conduct as an 'unnatural offence' without calling it sodomy or bestiality." Under the rubric of "unnatural sexual offence" a broad category of consensual sexual acts between men have been criminalised. These include the following: Mutual masturbation: R v Curtis 1926 CPD 385; S v V 1967 2 SA 17 (E); Inter-femoral (thigh) sex: R v Gough and Narroway 1926 CPD 159; and Oral sex: R v K and F 1932 EDL 71 (obiter). However, the same consensual sexual acts performed between a man and a woman fall outside the scope of this crime and do not constitute an offence at common law: R v N 1961 3 SA 147 (T); R v K and F supra; R v M supra. Counsel submitted that the vagueness of this offence in itself renders the crime unconstitutional. I shall return to this question. Section 20A of the Sexual Offences Act 1957 This section provides: "20A Acts committed between men at a party and which are calculated to stimulate sexual passion or to give sexual gratification, prohibited (1) a male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence. (2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present. (3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law." Section 20A creates an offence additional to the common law crime of sodomy. Counsel submitted that the section was not designed to prohibit the proscribed acts when performed in private. It is true that that was said in S v C 1987 2 SA 76 at 79G citing S v C 1983 4 SA 361 (T) at 364F, but the reliance was misplaced since what the earlier judgment said was: "The object of the section is clearly not to punish acts performed in private, as long as no more than two persons are present on any such occasion." The section was introduced by Act 57 of 1969 and the definition of 'a party' echoes section 1(2)(a) of the Sexual Offences Act 1967 (United Kingdom). The text of section 1, (which was regarded as a major liberalisation of the law concerning sexual relationships between men) reads Ä "(1) Notwithstanding any statutory or common law provision ... a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years. (2) An act which would otherwise be treated for the purposes of this Act has been done in private shall not be so treated if done Ä (a) when more than two persons take part or are present; or (b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise." This section still embodies the English law. Although the words of section 20A seem to be wide enough to strike at conduct by heterosexual men in the presence of women only or in the presence of other heterosexual men (the sort of stupid romp that sometimes results from excessive indulgence in liquor by sportsmen), the likelihood is that it was aimed at conduct directed by and at homosexuals. Prof B D van Niekerk's comment (87 (1970) SALJ 87 at 89-90) that the apparent object was "to stamp out homosexual gatherings" seems to be inadequate, unless one assumes (which I do not) that homosexual men only associate for sexual purposes. It seems more likely that the legislature had in mind to discourage orgiastic practices to which homosexuality seems often to fall prey (if one may fairly judge from the books on "male bonding" which lie exposed to the inspection of all and sundry, including children, in the reputable bookshops of Johannesburg). These multiple couplings are not part of the picture of a "warm and stable relationship" to which counsel often referred in argument and such behaviour may fairly form the subject of public censure and legislative control whether in a hetero- or homosexual context. The schedule to the Criminal Procedure Act 1977 The Criminal Procedure Act lists sodomy as a Schedule 1 offence. The effect of this inclusion is as follows: (i) Section 37(1)(a)(iv) of the Act empowers any police official to take fingerprints, palm-prints or footprints of any person on whom a summons has been served in respect of the offence of sodomy; (ii) Section 40(1)(b) of the Act allows a peace officer to arrest any person, with or without a valid warrant, if the officer reasonably suspects that that person has committed sodomy; (iii) Section 42(1) of the Act allows a private person to arrest any person with or without a valid warrant if the private person reasonably suspects the individual has committed sodomy; (iv) Section 49(2) of the Act allows a person authorised to arrest an individual suspected of having committed sodomy to kill the suspect if that suspect flees the scene of the crime and there is no other way to stop the suspect from avoiding arrest; (v) Sections 60(4)(a), 60(5)(e) and 60(5)(g) of the Act provide that bail may be refused to an accused who is likely to commit sodomy and, in determining whether that will happen, the Court may take into account that the accused has in the past committed sodomy or has a propensity to do so; (vi) Section 185A(a) of the Act provides for the protection of witnesses who have given or who are likely to give material evidence with reference to the offence of sodomy; (vii) Section 3(1)(b) of the Interception and Monitoring Prohibition Act, 127 of 1992 (read with the definition of "serious offence" under section 1 of that Act), allows the State to intercept postal articles and private communications necessary for investigating sodomy; (viii) Section 13(8) of the South African Police Service Act, 68 of 1995 gives wide powers to members of the South African Police Service to erect roadblocks in the prevention, detection and investigation of the offence of sodomy; (ix) Section 1(8) and (9) of the Special Pensions Act, 69 of 1996 disqualifies persons guilty of sodomy from receiving a pension in terms of section 1 of that Act; (x) Section 2(1)(c) of the Special Pensions Act precludes a surviving spouse or surviving dependant from receiving a surviving dependant's pension if the pensioner is guilty of the crime of sodomy. The Schedule to the Security Officers Act 92 of 1987 The Security Officers Act deals inter alia with the requirements for registration as a security officer. Sodomy is listed in the Schedule to the Act. The provisions of this Act have the following consequences: (i) Any person convicted of sodomy is prohibited from registering as a security officer (section 12(1)(b)); (ii) The registration of a security officer who is found guilty of sodomy may be withdrawn (section 15(1)(a)(i); (iii) A security officer who commits sodomy is guilty of improper conduct (section 21(b)). The law and homosexuality Counsel, following Cameron, "Sexual Orientation and the Constitution: A Test Case for Human Rights" 110 (1993) SALJ 450-472, submitted that, historically, the principal aim of criminalising specific types of sexual conduct was to stigmatise, punish and exclude people who did not conform to the dominant heterosexual norm. I suggest that that is a reactive conclusion which is too narrow and the truth is much broader: the censure arose mainly from moral objections rooted in religious interpretation; it was believed society needed to be protected against invasions of morality which the State regarded as subversive of the State religion and the fabric which bonds society together; thus if licence were granted to commit acts against the course of nature, the building blocks of human association, the propagation of the species, the family relationship and the integrity and dignity of right-thinking subjects of the State would be threatened or undermined. Criminalisation of homosexual conduct reflected the seriousness with which the State viewed deviations from sexual rectitude. The consequence was (and is) persecution, stigmatisation, exclusion of sexual non-conformists and punishment. The long and unhappy history is outlined in S v Kampher supra. The new constitutional dispensation in South Africa was preceded by a softening in attitudes towards deviations from the heterosexual norm which was reflected both in academic writing and in the judgments of the Courts. All South Africa's major political parties supported inclusion of the equality provisions in the Bill of Rights as a protection against discrimination on the grounds of sexual orientation. In his pre-constitutional article referred to above Prof Cameron wrote: "The only plausible argument which adequately recognises sexual orientation as an impermissible ground of discrimination is based on a claim to equal protection of the law. This argument asserts unequivocally that discrimination on the ground of homosexuality is untenable, because sexual orientation is Ä or should be Ä a matter of indifference morally and constitutionally. There is thus no basis which can be countenanced before the law for treating homosexual men and women differently." In my view section 9 of the Constitution achieves that result, subject only to the limited exceptions which may arise from the application of section 36 to a given case. Prof Cameron's article continues: "This implies acceptance of three critical premisses. They are (a) that sexual orientation, and consensual conduct expressing it, do not in themselves justifiably evoke social censure (whatever divergent moral views one may hold about it); (b) that homosexual orientation is not in itself evidence of illness or depravity; and (c) that orientation (homosexual or heterosexual) is or should be an indifferent factor in the distribution of social goods and services and the award of social opportunities." I respectfully agree. Constitutionally we have reached a stage of maturity in which recognition of the dignity and innate worth of every member of society is not a matter of reluctant concession but is one of easy acceptance. Nor is that perception inimical to views held by a large percentage of the population, as witness the liberalisation of attitudes in the media, the open acceptance of persons of divergent sexual orientation into positions of responsibility in society and the public recognition of what has always been the de facto reality that, by reason of their particular emotional and intellectual make-up, many homosexuals contribute vastly to the greater well-being of mankind. This is not to suggest that there has ever been reason to behave otherwise save for the usual impediments to all kinds of human progress such as religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history. The Constitution enjoins equal treatment before the law of persons entitled to its protection. That excludes individual or class discrimination. To penalise a homosexual person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences to which I have alluded. The Constitution On 4 February 1997 the Constitution of the Republic of South Africa (Act 108 of 1996) came into force. It is this nation's highest law. The centrality of the Bill of Rights and its foundational values to the newly created democracy are expressed in section 7 which provides: "(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The State must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill." Section 7(2) is couched in imperative terms. It imposes a positive obligation upon the State. Section 237 of the Constitution requires that all constitutional obligations be performed diligently and without delay. By reason of the provisions of section 39(2) of the Constitution Courts are under a duty to promote i.e. to further or advance, the spirit, purport and objects and of the Bill of Rights. Section 1 of the Constitution identifies the foundational values upon which the State is founded namely "(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the Consitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness." The wide reach of the Constitution is manifested in section 8 which provides: "(1) The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of State. (2) A provision of the Bill of Rights binds natural and juristic persons if, and to the extent, that it is applicable, taking into account the nature of the right and of any duty imposed by the right. (3) In applying the provisions of the Bill of Rights to natural and juristic persons in terms of subsection (2), a Court Ä (a) in order to give effect to a right in the Bill, must apply, or where necessary, develop the common law to the extent that legislation does not give effect to that right; and (b) may develop the rules of the common law to limit the right provided that the limitation is in accordance with section 36(1). (4) Juristic persons are entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and of the juristic persons." The Constitution creates an ethos of accountability. The State and its officials, where appropriate, must be called to answer for their actions and must be subject to critical scrutiny: S v Makwanyane 1995 3 SA 391 (CC) at 431. More recently the Constitutional Court has expressed the vision of the Constitution in the following terms: "What is perfectly clear from these provisions of the Constitution and the tenor and spirit of the Constitution viewed historically and teleologically, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is justifiable in an open and democratic society based on freedom and equality. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment." Ä Shabalala and Others v The Attorney-General of the Transvaal and Another 1996 1 SA 725 (CC) at para 26. The Constitutional Court has recognised that the State has a particularly important role in educating the citizenry. In S v Williams and Others 1995 3 SA 632 (CC) the Court quoted (at para 47) with approval the observations of Brandeis J in Olmstead v United States: "Our Government is the potent, the omni-present teacher. For good or ill, it teaches the whole people by its example." Of course, if one accepts what Langa J there described as "the State, as role model par excellence", inherent in that is the power and duty of the State to educate its citizens upon a wide front which may, in appropriate circumstances, extend to morals. That is not a view which finds universal acceptance. Nevertheless, the Constitution was intended to be a "ringing and decisive break with a past which perpetuated inequality and irrational discrimination and arbitrary governmental and executive action": S v Mhlungu and Others supra at 873-4. The Bill of Rights The Constitutional Court has adopted certain principles of constitutional interpretation for its guidance. It has endorsed the approach of Lord Wilberforce in Minister of Home Affairs (Bermuda) and Another v Collins McDonald Fisher and Another 1980 AC 319 at 328E-328H: "Here, however we are concerned with a Constitution, brought into force certainly by Act of Parliament, the Bermudan Constitution Act 1967 of the United Kingdom, but established by a self-contained document ... It can be seen that this instrument has certain special characteristics. (1) It is, particularly in Chapter 1, drafted in broad and ample style which lays down principles of width and generality. (2) Chapter 1 is headed 'Protection of Fundamental Rights and Freedoms of the Individual'. It is known that this chapter, as similarly portions of other constitutional instruments drafted in the post-colonial period, ... was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953). ... It was in turn influenced by the United Nation's Universal Declaration of Human Rights of 1948. These antecedents, and the form of Chapter 1 itself, call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." The Constitutional Court has also followed the approach of the Canadian Supreme Court in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321: "The meaning of a right or freedom guaranteed by the Charter is to be ascertained by analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect ... This analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of other specific rights and freedoms with which it is associated within the context of the Charter. The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the Charter's protection." See S v Zuma and Others 1995 2 SA 642 (CC) at 650H-651I; S v Makwanyane, supra 403 at paras 9-10; and S v Williams and Others supra at 648-649. In R v Big M Drug Mart Ltd Dickson CJ articulated another important principle of interpretation (at 350): "In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realised through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity. Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures that they are consonant with the guarantees with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature's power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant's need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper without enquiring into the legislation's actual impact." Kentridge AJ in S v Zuma supra at 651 referred to his own observations in Attorney-General v Moagi 1982 (2) Botswana LR 124 at 184: "Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law." The Constitution itself lays down certain principles of interpretation. These are embodied in section 39 which provides: "(1) When interpreting the Bill of Rights, a court, tribunal or forum Ä (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill." The limitation of rights The test for limitation under the Constitution is essentially a codification of the observations made in S v Makwanyane and Another supra at 436 concerning the Interim Constitution. Section 36 of the final Constitution provides: "(1) 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, taking into account all relevant factors Ä including (a) the nature of the rights; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights." Constitutional analysis proceeds in two stages: the first stage involves an enquiry as to whether there has been a contravention of a guaranteed right; if so, the second stage of the enquiry requires an investigation of whether the contravention is justified under the limitations clause: Coetzee v Government of the Republic of South Africa 1995 4 SA 631 (CC) at para 9. The onus of proving that the limit on the fundamental right is permissible in terms of the limitations clause rests upon the party seeking to uphold the limitation: S v Zuma and Others supra at paras 35-38; S v Makwanyane and Another supra at para 102. In the present case, since the respondents abide the decision of the Court, they have made no attempt whatsoever to justify the violation of the various constitutional rights relied upon by the applicants. That silence should, however, not be decisive of the matter. A Court faced with the matter of great public interest and importance in which many potentially interested groups (such as the Churches) have received no notice of the application, should do its best to place itself in the position of the legislature and the law-enforcing arms of the State in order to determine, as best it can, what there is to be said in favour of the legislation. That this is an invidious task where the parties on whom the onus rests have presented no evidence is obvious; the alternative is to allow laws to fall by default. The rule of law Section 1(c) of the Constitution proclaims the supremacy of the rule of law as a foundational value. Dicey, An Introduction to the Study of the Law of the Constitution (10th ed) (1959) at 202-3 sets out the classic definition of the "rule of law" formulated by the author more than 100 years ago as follows: "That 'rule of law' then, which forms a fundamental principle of the Constitution, has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals ... The 'rule of law', lastly, may be used as a formula for expressing the fact that with us the law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and parliament so extended as to determine the position of the Crown and of its servants; thus the Constitution is the result of the ordinary law of the land." It would seem that the rule of law is one of the values which is to be promoted under the duty established by section 39(1) of the Constitution. Vagueness Counsel have contended that when dealing with the permissible limitation upon constitutionally-protected rights, a vague law such as the commission of an unnatural sexual act can never be a "law of general application" and hence does not pass the first threshold of limitation contained in section 36(1) of the Constitution. They submit that vagueness must be considered in the context of the rule of law and that it is a fundamental principle of that rule that persons should be able to regularise their affairs secure in the knowledge that they will be at liberty to perform any action that has not expressly been criminalised by a law of general application: if human conduct is to be subjected to the governance of the law, then the rule of law requires that the control must occur by operation of rules rather than by virtue of a series of ad hoc determinations. They have referred me to American jurisprudence in which a vague law constitutes a denial of due process. The leading cases are collected in Reference Re Criminal Code, sections 193 and 195.1(1)(c) (Manitoba) 48 CRR 1 at 24-26. In Connally v General Construction Co 269 US 385 the Court stated that: "... a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." In Cline v Frink Dairy Co 274 US 445 the Court identified the first essential of due process of law as that: "... it will not do to hold an average man to the peril of an indictment for the unwise exercise of his ... knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result." In Papachristou v City of Jacksonville 405 US 156 Douglas J speaking for the Court said at 162: "This Ordinance is void for vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the Statute' ... and because it encourages arbitrary and erratic arrests and convictions ... Living under a rule of law entails various suppositions, one of which is that 'all persons are entitled to be informed as to what the State commands or forbids' Lanzetta v New Jersey 306 US 451, 453." The Canadian Supreme Court has sought to keep the concepts of vagueness and overbreadth distinct, holding that the latter "is not an autonomous notion in Canadian law". In R v Nova Scotia Pharmaceutical Society 10 CRR (2d) 34 at 47-48 the Court summarised its approach to the vagueness doctrine as follows: "1. Vagueness can be raised under section 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under section 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on charter rights be 'prescribed by law'. Furthermore, vagueness is also relevant to the 'minimal impairment' stage of the Oakes test. ... 2. The 'doctrine of vagueness' is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion ... 3. Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate; and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps co-exist ... 4. Vagueness, when raised under section 7 or under section 1 in limine, involves similar considerations ... On the other hand, vagueness as it relates to the 'minimal impairment' branch of section 1 merges with the related concept of overbreadth ... 5. The court will be reluctant to find a disposition so vague as not to qualify as 'law' under section 1 in limine, and will rather consider the scope of the disposition under the 'minimal impairment' test ..." In the Sunday Times v The United Kingdom 2 EHRR 245 (1979), the European Court of Human Rights was required to consider what was meant by the expression "prescribed by law" in the European Convention on Human Rights. The majority of the Court held as follows (para 49, at 271): "In the court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able Ä if need be with appropriate advice Ä to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." On the strength of these authorities counsel submit that the same concepts should apply to the South African Constitution and that a vague law cannot be "a law of general application" nor can it constitute a "reasonable" limitation upon a protected right. However, acts "against the order of nature" have been recognised for thousands of years. They still are in many countries. The State has a fundamental interest in ensuring that its subjects do not degenerate to the level of beasts. I know of no instance in which it has been successfully contended that the concept of an "unnatural act" is too vague to be understood. It is true that greater scientific knowledge and a broader humanity may influence the determination of what is now regarded as contrary to nature, just as the limits of public indecency or indecent assault may vary according to the mores of the age. As in every case, the evidence will decide the matter. "... whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice." : The Sunday Times case, loc. cit. See also Hunt op cit at 277-8 on the test of outrage to public decency. Men of common intelligence living in the world will have no more difficulty in recognising an unnatural act than they ever have. The constitutional right to equality The specific protection provided by the Constitution for equality is found in section 9 which states: "1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 3. 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 or birth. 4. No person may unfairly discriminate directly or indirectly against anyone on one or more of the grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." Equality is a core value of the final Constitution just as it was in the Interim Constitution. The preamble to the final Constitution articulates the ideal of a democratic and open society in which every citizen is equally protected by law. The fundamental importance of equality is emphasised in Chapter 1 which sets out the founding provisions including the achievement of equality. In section 7 the first provision of the Bill of Rights affirms the democratic value of equality. Under section 36 limitations of fundamental rights are only allowed when they are justifiable in an open and democratic society based inter alia on equality. When interpreting the Bill of Rights Courts are enjoined to promote values that underlie such a society based inter alia on equality. In President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) at para 41 Goldstone J said: "At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked." In Brink v Kitshoff NO 1996 4 SA 197 (CC) the Court identified the purposes underlying the guarantee of equality and non-discrimination: "40. As in other national constitutions, section 8 is the product of our own particular history. Perhaps more than any of the other provisions in Chapter 3, its interpretation must be based on the specific language of section 8, as well as our own constitutional context. Our history is of particular relevance to the concept of equality. The policy of apartheid in law and in fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as "white", which constituted nearly ninety percent of the land mass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided. The deep stars of this appalling programme are still visible in our society. It is in the light of that history and the enduring legacy that it bequeathed that the equality clause needs to be interpreted. 41. Although our history is one in which the most visible and most vicious pattern of discrimination has been racial, other systematic motifs of discrimination were and are inscribed on our social fabric. In drafting section 8, the drafters recognise that systematic patterns of discrimination on grounds other than race have caused, and may continue to cause, considerable harm. For this reason, section 8(2) lists a wide, and not exhaustive list of prohibited grounds of discrimination. 42. 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 societies. 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 need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of section 8, and, in particular, subsections (2), (3) and (4)." Section 9(1) guarantees equality before the law and equal protection and benefit of the law. Section 9(3) prohibits unfair discrimination by the State. This distinction was also reflected in sections 8(1) and (2) of the Interim Constitution and was considered by the Constitutional Court in Prinsloo v Van der Linde 1997 3 SA 1012 (CC). The Court held that section 8(1) of the Interim Constitution required only that the State should act rationally when making laws which differentiate between different people. "It should not regulate in an arbitrary manner or manifest 'naked preferences' that serve no legitimate government purpose, for that would be inconsistent with the rule of law and the fundamental premise of the constitutional state." Section 9(3), however, grants protection additional to that of section 9(1). It prohibits "unfair discrimination". In Prinsloo v Van der Linde supra at para 31, the Court considered the meaning of "unfair discrimination": "Given the history of this country we are of the view that 'discrimination' has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. We are emerging from a period in our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated as not having inherent worth: as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. In short they were denied recognition of their inherent dignity ... In our law unfair discrimination ... principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity." In the Hugo case, supra, the factors which render discrimination unfair in the sense intended by section 8(2) of the Interim Constitution (now section 9(3) were examined. O'Regan J said (at para 112): "The more vulnerable the group adversely effected by the discrimination, the more likely the discrimination will be held to be unfair. Similarly the more invasive the nature of the discrimination the more likely it will be held to be unfair." In Harksen v Lane NO and Others 1998 1 SA 300 (CC) at para 54 the Court set out the stages of enquiry in a case involving the fundamental right of equality: "At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary when an attack is made on the provision in reliance on s 8 of the interim Constitution. They are: (a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination. (b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis: (i) Firstly, does the differentiation amount to 'discrimination'? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. (ii) If the differentiation amounts to 'discrimination', does it amount to 'unfair discrimination'? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2). (c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution)." See also East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council 1998 2 SA 61 (CC) at 72A-73E. Each of the targeted laws requires to be considered separately in the context of section 9, bearing in mind throughout the values and principles which I have summarised earlier. Sodomy The recognition of the crime necessarily involves differentiation on the grounds of sexual orientation for two obvious reasons: first, anal intercourse is the homosexual man's form of sexual expression, equivalent to heterosexual intercourse per vaginam. The crime forbids the satisfaction of that basic need ("that sensitive key relationship of human existence, central to family life, community welfare and the development of human personality": Paris Adult Theatre v Slayton 413 US 49 at 63), at peril of freedom and reputation, and deprives a person of that sexual orientation of physical, emotional and psychological outlets while his heterosexual compeers face no such obstacle. Second, anal intercourse between men and women is not penalised by law, while between males it is a criminal offence, which in the nature of things strikes only at homosexuals. Although the suppression of sodomy may in times past have been regarded as a necessary prop of morality both public and private, that is today too tenuous a thread upon which to support its continued criminalisation. The respondents have not suggested a reasoned basis for the differentiation which may further the aims of government and I am unable to think of any. Because the differentiation in respect of sodomy falls within the ground specified in section 9(3), unfair discrimination is presumed. Nor am I able to find justification for the continued life of this crime. Although I have no evidence before me, I have read and weighed the arguments of those espousing the opposite view which are to be found, for example, in Bowers v Hardwick 478 US 186; Dudgeon v United Kingdom (1981) 4 EHRR 149 at 171-187; People v Onofre (1980) 415 NE 2d 936 at 944-950 (New York); Romer v Evans (1996) 134 L Ed 2d 855 at 874. What passes (or attempts to pass) for justification are, I find, historical antipathy, personal revulsion, religious conviction, the prevailing opinion in society, and the protection of the morals of the people. The first three must give way before the tenents of our Constitution which create new fundamental rights and recognise and protect old ones, and the last, while no doubt being a factor properly to be considered in a given case, does not carry great weight where the law adequately protects the vulnerable as it does in the case of possible homosexual (and heterosexual) exploitation, by, for example, prosecutions for indecent assault or public indecency or contraventions of section 14 or 15 of the Sexual Offences Act. Attitudes emanating from religious belief (a personal and not a State concern in South Africa) and popular opinion cannot constitute a justification for the continued operation of the crime of sodomy in a face of the explicit constitutional guarantees. The Constitutional Court has rejected any suggestion that it should be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. In S v Makwanyane and Another supra, Chaskalson P was prepared to assume that "the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder". He went on to say: "88. Public opinion may have some relevance to the enquiry, but, in itself, is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public and is answerable to the public for the way its mandate is exercised. But this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the consitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected. 89. This court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. Justice Powell's comment in his dissent in Furman v Georgia bears repetition: '... [T]he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesman for abolition. But however one may assess the amorphous ebb and flow of public opinion generally on this volatile issue, this type of enquiry lies at the periphery Ä not the core Ä of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.' So too does the comment of Justice Jackson in West Virginia State Board of Education v Barnette: 'The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'" In Vriend v Alberta, a judgment of the Supreme Court of Canada delivered on 2 April 1998 dealing with discrimination on the grounds of sexual orientation, Iacobucci J considered the relationship between the Canadian state legislatures and the Courts under the Canadian Charter of Rights (in paras 129-141). Having described how the dialogue between and the accountability of each of the branches of governance has the effect of enhancing the democratic process, not denying it, he continued: "140. There is also another aspect of judicial review that promotes democratic values. Although a court's invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as that may be. In this respect, we would do well to heed the words of Dickson CJ in Oakes, supra at page 136: 'The court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.' 141. So, for example when a court interprets legislation alleged to be a reasonable limitation in a free and democratic society as stated in section 1 of the Charter, the court must inevitably delineate some of the attributes of a democratic society. Although it is not necessary to articulate the complete list of democratic attributes in these remarks, Dickson CJ's comments remain instructive ..." Nor does the existence of prejudice, albeit pervasive, have any role to play in constitutional adjudication. Thus, in Palmore v Sidoti (1984) 466 US 429 the United States Supreme Court had occasioned to consider a custody dispute. A divorced white father sought to remove his three year old daughter from the custody of his former wife when she married a black man. The Supreme Court, while acknowledging the persistence of racial prejudice and acknowledging the risk of an adverse impact on the child, unanimously rejected such considerations as constituting grounds for the custody decision: "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." (at 431) I agree with counsel that what is required in the present case is an analysis of any possible grounds for justifying the self-evident violation of the guarantee of equality by the challenged law. The structure of the limitations clause contained in section 36 of the Constitution requires, as a threshold criterion, that any limitation must be "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". Counsel submitted that the celebrated "Hart-Devlin" debate on the legal enforcement of morality is helpful, bearing in mind, that the debate took place in the context of a system of parliamentary sovereignty. (See Patrick Devlin The Enforcement of Morals (1959) reprinted in Devlin, The Enforcement of Morals (1965) and H L A Hart Law, Liberty and Morality (1963). Counsel also referred me to Prof Dworkin's work "Taking Rights Seriously" (1978) and in particular to his chapter on "Liberty and Moralism" at 240-258. There the author postulates a hypothetical debate in which a person proposes to vote against a man running for a public office of trust because he knows him to be a homosexual and because he believes that homosexuality is profoundly immoral. In the debate which ensues on this issue, certain ground rules of moral reasoning are postulated. If the decision to exercise one's vote against a person because he is a homosexual is to have a rational foundation, certain types of reasoning are excluded. Dworkin poses the question, "What must I do to convince you of that my position is a moral position?" He addresses the problem thus: "(a) I must produce some reasons for it ... My reason need not be a principle or theory at all. It must only point out some aspect or feature of homosexuality which moves me to regard it as immoral: the fact that the Bible forbids it for example or that one who practises homosexuality becomes unfit for marriage and parenthood ... Not every reason I might give will do, however. Some will be excluded by general criteria stipulating sorts of reasons which do not count. We might take note of four of the most important of such criteria: (i) If I tell you that homosexuals are morally inferior because they do not have heterosexual desires, and so are not 'real men', you would reject that reason as showing one type of prejudice. Prejudices, in general, are postures of judgment that take into account considerations our conventions exclude. In a structured context, like a trial or a contest, the ground rules exclude all but certain considerations, and a prejudice is a basis of judgment which violates these rules. Our conventions stipulate some ground rules of moral judgment which obtain even apart from such special context, the most important of which is that a man must not be held morally inferior on the basis of some physical, racial or other characteristic he cannot help having. Thus a man whose moral judgments about Jews, or Negroes, or Southerners, or women or effeminate men are based on his belief that any member of these classes automatically deserves less respect, without regard to anything he himself has done, is said to be prejudiced against that group. (ii) If I base my view about homosexuals on a personal emotional reaction ('they make me sick') you would reject that reason as well. We distinguish moral positions from emotional reactions, not because moral positions are supposed to be unemotional or dispassionate Ä quite the reverse is true Ä but because the moral position is supposed to justify the emotional reaction, and not vice versa. If a man is unable to produce such reasons, we do not deny the fact of his emotional involvement, which may have important, social or political consequences, but we do not take this involvement as demonstrating his moral conviction. Indeed, it is just this sort of position Ä a severe emotional reaction to a practice or a situation for which one cannot account Ä that we tend to describe, in lay terms, as a phobia or an obsession. (iii) If I base my position on a proposition of fact Ä 'homosexual acts are physically debilitating' Ä which is not only false, but is so implausible that it challenges the minimal standards of evidence and argument I generally accept and impose others, then you would regard my belief, even though sincere, as a form of rationalisation, and disqualify my reason on that ground ... (iv) If I can argue for my own position only by citing the beliefs of others ('everyone knows homosexuality is a sin') you will conclude that I am parroting and not relying on a moral conviction of my own. With the possible (though complex) exception of a deity, there is no moral authority to which I can appeal and so automatically make my position a moral one. I must have my own reasons, though of course I may have been taught these by other persons." Prof Dworkin recognises that even a reason which is not disqualified by virtue of prejudice, mere emotional reaction, rationalisation and parroting may not be sufficient. The reason produced must be one which is consistently held. He concludes thus: "Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenge the community's own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It remains possible that the ordinary man could produce no reasons for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which presupposes a general moral position he could not sincerely or consistently claim to hold. If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief that prejudices, personal aversions and rationalisations do not justify restricting another's freedom, itself occupies a critical and fundamental position in our popular morality." I agree with counsel that this analysis is helpful in approaching the permissible limits upon constitutional rights if only because it demonstrates the intellectual honesty which is demanded when the subject-matter cries out for an emotional response. Whether a limitation is justifiable is to be objectively assessed. Where no rational basis for the retention of the challenged crime can be offered (as here) it cannot stand constitutional scrutiny. In December 1918 Winston Churchill said to David Lloyd George, "One may as well legalize sodomy as recognise the Bolsheviks" (William Manchester, The Last Lion). The Constitution attempts to rise above the fallibility of the opinions of men Ä even lions among them. I have not referred in any detail to the careful judgment of Farlam J in S v Kampher, supra. It is sufficient to say that I agree (with respect) with his reasons and his conclusion. Although, as I have noted, counsel limited their claim to relief in relation to consensual acts committed in private, it does not seem to me that such a restriction is logical. If the crime of sodomy is inconsistent with the constitutional right to equality, then I do not understand how the same act committed in public or without consent can be a crime per se. The criminalisation of such acts must be sought elsewhere, for example in public indecency, indecent assault or in a statute to create a new crime of "male rape" (if such be thought necessary). It follows that the applicants are entitled to an order in terms of paragraph (a) of the notice of motion. Unnatural sexual acts Does the common law offence differentiate between persons with a homosexual orientation and others? That it has had that effect in the past is clear from the predominantly homosexual nature of acts which have been held to fall within the scope of the crime and to which I have referred above. Nor, generally, have those acts been such as would have been criminal if performed by women or heterosexuals. Is there a rational relation between the differentiation and any legitimate government purpose? If one accepts, as I believe I am constitutionally bound to do, that the expression of homosexuality is as normal as that of its heterosexual equivalent and is therefore entitled to equal tolerance and respect, it is impossible to find any governmental purpose which the law recognises which can draw persecution, (for the enforcement of the difference is no less), within its ambit. In the absence of any evidence or submissions on the matter I am obliged to consider the question of justification relying upon such information and knowledge as is available to me. There are undoubtedly some acts which are so repugnant to and in conflict with human dignity as to amount to perversions of the natural order (what Hunt op cit 232 refers to as "the miscellaneous unnatural offences"). Bestiality seems to me to be an obvious example of an independent unnatural offence which justifies this categorisation, but one can imagine acts falling short of the penetration required for that particular species of the crime which would qualify equally as well for censure and yet find no sanction if the crime were declared unconstitutional; cf R v Le Fleur 1927 1 PH H87. It seems to me that the State has (or can justify the existence of) a responsibility to its citizens to prevent any individual or group from descending to the level of the beast (literally or figuratively). Unrestrained licence has always been the mark of a society in decay. Although in a given context opinions may differ according to one's philosophy, adequate counter-measures seem to fall within the field of legitimate government action. For these reasons I conclude that there is a basis for maintaining the crime, suitably pruned in order to satisfy the constitutional demands. I propose therefore to declare the common law crime of commission of an unnatural sexual offence invalid to the extent that it criminalises acts committed by a man or between men which if committed by a woman, between women or between a man and a woman would not constitute an offence. Section 20A of the Sexual Offences Act The prohibition manifests a twofold differentiation: (1) On grounds of sex (gender) Ä the conduct criminalised is limited to the impugned acts performed by men; the same acts performed by women are not an offence under the section. (2) On grounds of sexual orientation Ä the target of the section is plainly men with homosexual tendencies albeit that the wording is wide enough to embrace heterosexuals. The suppression of vice is a legitimate governmental purpose. The conduct proscribed may fairly be regarded as tending to promote sexual licence. Does either basis of differentiation bear a rational connection to that purpose? I cannot discern any. It may be that when the legislation was enacted Parliament regarded the threat posed by homosexual licence to public morality or the pernicious influence of the impugned conduct on other persons who might be present (perhaps innocently), as more real and serious than any like behaviour by women or heterosexuals and that equivalent criminalisation of the same conduct by women or between a man and a woman was unnecessary. The respondents in this case have not placed any evidence before me which suggests that the distinction is still warranted or regarded as justified. Unfair discrimination is presumed, the differentiation being on the grounds specified in section 8(2). The existence of section 20A violates section 8 of the Constitution. Can the violation be justified under the limitations clause? I can speculate that justification could be attempted on the basis that the provision is directed at the suppression of sexual licence committed not within the privacy of a relationship but in the presence of one or more people who are spectators and the target of the conduct of the actors, the conduct serves no purpose but to stimulate sexual passion in the observers, such behaviour is in itself immoral and conducive to fostering immorality in others, potentially repugnant and, perhaps, harmful to persons who may be present (some, perhaps, reluctantly or under the influence of other persons) and intolerable to a large section of society. In Johnson v United Kingdom 9 EHRR 386 the European Human Rights Commission was called on to consider the validity of section 1 of the Sexual Offences Act 1967 (United Kingdom) (quoted above). It ruled as follows: "The applicant further complains that he suffers discrimination in his enjoyment of the right to respect for his private life and home since the legislation only applies to male homosexuals. He complains that adult heterosexuals and female homosexuals may conduct themselves in the privacy of their homes as regards consensual sexual activities without such risk of interference. Art. 14 of the European Convention on Human Rights provides: 'The enjoyment of the rights and freedom set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.' In examining this complaint the Commission recalls the principles established by the European Court of Human Rights in the Belgian Linguistic Case (1 EHRR 252) where it was stated that a difference in treatment should have an objective and reasonable justification and that there should be a relationship of proportionality between the means employed and the end sought to be realised ... The applicant has also complained of discrimination in relation to the legislation which makes it an offence for homosexual acts to be committed in the presence of more than two adult males, no analogous provisions applying to adult female homosexuals or heterosexuals. The Commission refers again to its previous case law (App. Nos. 7215/75 and 5935/72, supra) and would apply the same reasoning, namely, that heterosexuality and lesbianism do not give rise to comparable social problems. Accordingly, the Commission finds that any difference in treatment resulting from this legislation would also have an objective and reasonable justification in the need to protect the individual particularly the young and vulnerable." Moreover, such infringment of dignity as may result from the violation of the constitutional right may fairly be regarded as off-set by the demeaning manner of the conduct which the applicants say should be legitimised. It seems hardly consistent to invoke human rights legislation developed by and for civilised society in order to justify uncivilised, almost subhuman behaviour. But even if this reasoning has merit, it is a gut reaction. Section 36 presupposes that some attempt will be made by those responsible for making and enforcing the law to sustain the justification by evidence and cogent submissions. If the responsible authorities do not see their way open to justify a violation or if they are either disinterested or spineless, what is the Court to do? Certainly not impose its subjective views. It must, in so far as rational good sense and the applicants' evidence permit, undertake the exercise required by section 36(1). In so doing, if I take into account the nature of the infringed rights (which are substantial), the importance of the purpose of the criminalisation of the conduct in question (which may, for all I know, be relatively insignificant in the scope of the suppression of vice as a governmental purpose), the nature and extent of the limitation (which, having regard to the penalties provided is severe, but taking into account the conduct impugned hardly seems to warrant dignification as a violation of rights), and whether less restrictive means may be taken to achieve the purpose (it being difficult to see how anything less than a criminal offence would suppress the evil), and, an additional factor which seems material, that the State has apparently not regarded conduct of the nature criminalised by the Act as sufficiently serious to extend the proscription to conduct by women or to conduct of a heterosexual nature, I am not persuaded that the violations of the rights which are inherent in the enforcement of section 20A are justified. The applicants are accordingly entitled to an order in terms of paragraph (e) of the notice of motion. The inclusion of sodomy in Schedule 1 to the Criminal Procedure Act Each of the provisions which I have identified earlier in this judgment depends for its effect upon the commission of an "offence" mentioned in Schedule 1. Sodomy has, until now, been such an offence. Because of the conclusion I have reached on the decriminalisation of sodomy it necessarily follows that the inclusion of sodomy in the Schedule is inconsistent with the Constitution. The applicants are therefore entitled to the relief claimed in paragraph (g) of the notice of motion. The inclusion of sodomy in the Schedule to the Security Officers Act The sections of the Act which penalise the commission of an act of sodomy also depend upon its identification as an "offence" in the Schedule. For the same reasons that categorisation is constitutionally unsound. The applicants are therefore entitled to the relief claimed in paragraph (i) of the notice of motion. I have not, in relation to any of the challenged laws, entered into the question of whether the right to privacy enshrined in section 14 of the Constitution has been violated or whether such a violation can be justified. The point at which privacy perforce yields to public scrutiny is often difficult to identify. When two persons submit what would normally be regarded as an act of intimacy to the gaze of others with the intention to debauch, I seriously doubt whether the privacy which the Constitution seeks to protect arises at all, even though the doors be barred to unrestricted public access. "The protection of private life means the protection of a person's intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism." per Judge Pettiti in Laskey et al v United Kingdom (European Court of Human Rights 109/1995/615/703-705), a case dealing with sado-masochism. I disagree with counsel that the dictum of Didcott J in Case v Minister of Safety and Security 1996 3 SA 617 (CC) at paragraph 91: "What erotic material I may choose to keep within the privacy of my home, and only for my own personal use there, is nobody's business but mine. It is certainly not the business of society or the State. Any ban imposed on my possession of such material for that solitary purpose invades the personal privacy which section 13 of the Interim Constitution (Act 200 of 1993) guarantees that I shall enjoy" is analogous for the purpose of adjudicating on the validity of section 20A. I am aware that in National Media Ltd and Another v Jooste 1996 3 SA 262 (A) at 271G-272A Harms JA said: "A right to privacy encompasses the competence to determine the destiny of private facts ... The individual concerned is entitled to dictate the ambit of disclosure, for example to a circle of friends, a professional adviser or the public ... He may prescribe the purpose and method of the disclosure ... Similarly, I am of the view that a person is entitled to decide when and under what conditions private facts may be made public. A contrary view will place undue constraints upon the individual's so-called 'absolute rights of personality' ..." Whether conduct which is regarded by the Legislature (or prevailing mores) as deeply immoral, offensive or pernicious can escape the hand of the law by reason of individual circumscription (privacy) it is fortunately unnecessary to decide in view of my conclusion on the violation of section 8. Perhaps a distinction needs to be drawn between a private home and any other place to which restricted entry may be granted; cf Ackermann J in Bernstein and Others v Bester and Others NNO 1996 2 SA 751 (CC) at para 67: "The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow-members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil 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." In the result I make the following orders: 1. It is declared that the common law offence of sodomy is inconsistent with the Constitution of the Republic of South Africa 1996. 2. It is declared that the common law offence of commission of an unnatural sexual act is inconsistent with the Constitution of the Republic of South Africa 1996 to the extent that it criminalises acts committed by a man or between men which, if committed by a woman or between women or between a man and a woman, would not constitute an offence. 3. It is declared that section 20A of the Sexual Offences Act, 1957 is inconsistent with the Constitution and invalid. 4. It is declared that the inclusion of sodomy as an item in Schedule 1 of the Criminal Procedure Act, 1977 is inconsistent with the Constitution and invalid. 5. It is declared that the inclusion of sodomy as an item in the Schedule to the Security Officers Act, 1987 is inconsistent with the Constitution and invalid. 6. The afore-mentioned orders, in so far as they declare provisions of Acts of Parliament invalid, are referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of Act 108 of 1996. _____________________________ J A HEHER JUDGE OF THE HIGH COURT COUNSEL FOR FIRST APPLICANT GILBERT MARCUS SC (WITH HIM M CHASKALSON AND E DU TOIT) INSTRUCTED BY NICHOLLS, CAMBANIS AND ASSOCIATES DATE OF HEARING 24 NOVEMBER 1997 DATE OF JUDGMENT 8 MAY 1998