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PDF format. RTF format. The learned judge correctly did not refer orders 1 and 2 to this Court for confirmation because section 2 a [3] of the Constitution neither requires confirmation by the Constitutional Court of orders of constitutional invalidity of common law offences nor empowers a referral for such purpose. I shall deal later with the problems that can arise because the Constitution makes no provision for an obligatory referral in such cases.
The second applicant is the South African Human Rights Commission which functions under section of the Constitution. Initially the applicants sought the following relief in the High Court:. The first respondent initially opposed the application on very limited grounds. When, however, the applicants withdrew their prayers h and j above, before the hearing in the High Court commenced, the first respondent withdrew such opposition and consequently no order for costs was sought by the applicants.
At a later stage of the High Court proceedings, the applicants abandoned the relief sought in prayers b and d. Without abandoning the relief sought in prayer f , the applicants did not pursue such relief in the High Court because they were of the view that only the Constitutional Court had jurisdiction to grant relief having the generalised effect of this prayer.
These matters are alluded to because of the difficulties arising from the orders sought from this Court, which will be dealt with later in this judgment. The Centre for Applied Legal Studies was admitted as amicus curiae under rule 9, lodged heads of argument and was allowed to present oral argument before the Court. The effect of the inclusion of the offence of sodomy in Schedule 1 is, amongst other things, the following:.
The offence of sodomy is listed in such schedule. The effect of the inclusion of the offence of sodomy in the Security Officers Act Schedule is the following:. Both are relevant for issues to be dealt with later. Section 8 of the interim Constitution, [6] to the extent presently relevant, provided:. He immediately proceeded to consider whether the offence of sodomy was justified under section 36 of the Constitution, without expressly considering the question whether, notwithstanding the presumption under section 9 3 , it had been established that the discrimination was fair.
Having found, under section 9 1 of the Constitution, that there was no connection between the differentiation involved in this offence and any legitimate governmental purpose, he immediately turned to the question of justification. He concluded that there was no justification for maintaining the common law crime of committing an unnatural sexual act by a man or between men, if such act would not constitute an offence if committed by a woman, between women or between a man and a woman; and made a declaration of constitutional inconsistency accordingly.
The High Court found that these provisions manifested a twofold differentiation. As both are listed in section 9 3 unfairness is presumed, and without considering whether fairness had been established, Heher J immediately proceeded to consider whether the violation of section 9 could be justified under section The Constitutional Validity of the Common Law Offence of Sodomy [14] I shall for the moment deal only with sodomy which takes place in private between consenting males.
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The long history relating to the ways in which the South African criminal common law differentiated in its treatment of gays as opposed to its treatment of heterosexuals and lesbians, prior to the passing of the interim Constitution, has already been dealt with in at least three judgments of the High Court. Nor was any sexual act, in private, between consenting adult females so punishable. It is relevant to mention at this point that Mr Davis, who appeared for the amicus curiae, submitted that a more substantive interpretation should be given to the provisions of section 9 1 of the Constitution than this Court has given to the provisions of section 8 1 of the interim Constitution.
Mr Davis did not suggest that the outcome of this referral should be other than supported by Mr Marcus. His argument went to the reasoning used to arrive at that result. I shall deal with these submissions later in this judgment. The stage a rational connection inquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable.
I proceed with the enquiry as to whether the differentiation on the ground of sexual orientation constitutes unfair discrimination. In Harksen , after referring to the emphasis placed on the impact of the discrimination in his judgment in Hugo, Goldstone J went on to say:.