That case did not address the unequal age of consent, although in his judgment Justice Ackermann took note of it without commenting on its constitutionality.

Geldenhuys was convicted in 2005 in the Pretoria Regional Court on ten charges of "committing an immoral or indecent act with a boy under the age of nineteen years" in contravention of section 14(1)(b).

He attacked the correctness of the verdict on the evidence presented; he also asserted that it was unconstitutional to prohibit consensual sex with a person over the age of twelve because the common law regarded twelve as the age at which a child was capable of consenting; and he attacked the sentence.

The court heard oral argument on 28 August 2008 and handed down its unanimous decision, authored by Justice Mokgoro, on 26 November.

The National Prosecuting Authority (NPA) conceded the unconstitutionality, but argued that the age limits in sections 14(1)(b) and 14(3)(b) should be set at a uniform 18 rather than 16.

Firstly, the effect of the NPA's proposal would be to set the age of consent at 16 for acts termed "carnal intercourse" but 18 for those termed "immoral or indecent acts", and this would in fact cause the unconstitutional discrimination to persist, as "carnal intercourse" was understood to include only heterosexual sex.