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He used these facts to justify a ruling that custodial sentences were not appropriate for cases of consensual private sodomy.

Significantly, he also wrote:. If this were to happen it is difficult to see how common law or statutory offences which proscribe private 'unnatural acts' between consenting adult men can escape being struck down.

The Interim Constitution, which came into force on 27 April , did indeed explicitly prohibit discrimination on the basis of sexual orientation.

The court did state that they would have considered the case had the act in question been consensual. S v Kampher [9] was such a case of consensual sex, although distinguished by the fact that it had occurred between prisoners in a correctional centre.

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 final Constitution , which came into force on 4 February , contained similar equality protections to those in the Interim Constitution, providing in section 9 3 that: [10].

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.

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 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 , 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.

He did accept, however, that the offence had primarily been used to prosecute gay men, and ruled that it was discriminatory and unjustifiable, and therefore invalid, to the extent that it criminalised acts between men that would not be criminal between women or between a man and a woman.

Continuing to section 20A of the Sexual Offences Act, Judge Heher ruled that, as in the case of sodomy, it was discriminatory in terms of both gender and sexual orientation.

Looking to justification, he proposed that Parliament might have enacted the section for the purpose of suppressing "sexual license", but considered that since the government had not seen fit to criminalise similar heterosexual or lesbian activities, the argument was not persuasive.

The offence of sodomy having been declared to be invalid and unconstitutional, it followed that its inclusion in the Schedules to the CPA and the Security Officers Act must also be invalid.

The common law offence of sodomy is declared to be inconsistent with the Constitution of the Republic of South Africa, and invalid.

South African law requires that court orders declaring acts of Parliament to be unconstitutional be confirmed by the Constitutional Court ; the High Court therefore referred its order to the Constitutional Court for confirmation.

The court heard argument from the applicants on 27 August ; the government did not oppose the application and presented no argument.

The Constitutional Court handed down its decision on 9 October ; the judges were unanimous in confirming the order of the High Court.

The majority judgment was written by Justice Lourens Ackermann , while Justice Albie Sachs authored a separate concurrence. The court, recognising that the criminalisation of sodomy was clearly discrimination, assessed the fairness or otherwise of the discrimination by examining its effects on the groups affected, i.

Ireland and of the Supreme Court of Canada in Vriend v. Alberta , finding that heterosexist discrimination causes psychological harm to gays and lesbians and affects their dignity and self-esteem.

It also observed that the criminalisation of sodomy legitimises blackmail, entrapment and "queer-bashing". Noting that gay men are a permanent minority in society who have been severely affected by discrimination, and that the conduct that is criminalised is consensual and causes no harm to others, the judgment determined that the discrimination is unfair and therefore infringes on the constitutional right to equality.

The judgment then proceeded to examine the sodomy laws against the constitutional rights to human dignity and privacy. Observing that the laws punish an act that society associates with homosexuality and thereby stigmatise gay men, as well as putting them at risk of prosecution for "[engaging] in sexual conduct which is part of their experience of being human", the court determined that the right to dignity was infringed.

Dealing with privacy, the court referred again to Cameron's article; he had suggested that the argument based on privacy was inadequate because it implied that the protection against discrimination should be limited to tolerance of private acts.

The court noted that the article was published at a time when the inclusion of sexual orientation as a ground for anti-discrimination protection was still being debated, and that Cameron's argument did not apply when the judgment had already found the discrimination to be unconstitutional on the grounds of equality and dignity.

Having found that the sodomy laws breached constitutional rights, the court then proceeded to ask whether the infringement was justifiable "in an open and democratic society based on human dignity, equality and freedom".

The court found that, on the one hand, the criminalisation of sodomy had severe effects on the lives of gay men, and, on the other hand, that no valid purpose had been suggested for the infringement.

It pointed out that religious views could not influence constitutional jurisprudence in a secular country. The court also examined the situation in other democratic countries, observing that sodomy had been decriminalised in the United Kingdom, Ireland, Germany, Australia, New Zealand and Canada, and throughout Western Europe.

The court did take note that Bowers v. Hardwick was still at that time law in the United States, but pointed out its inconsistency with Romer v.

The result of the balancing test was that the infringements of the rights of gay men could in no way be justified in an open and democratic society.

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