National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men.
[1] Over time, however, in South African common law it was reduced to refer only to male-male anal sex, the legal definition being "unlawful and intentional sexual intercourse per anum between human males".
[1] In the 1993 case of S v H the defendant plead guilty in the Magistrate's Court to a charge of sodomy, and received a suspended sentence of one year's imprisonment; the act alleged was private and consensual.
[5] At that time, before the Interim Constitution and its Bill of Rights had come into force, the conviction was valid in law and the court did not reverse it; however, the sentence was replaced by a nominal caution and discharge.
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.
[6] The first challenge to the sodomy laws under this new dispensation came in the case of S v Adendolf;[7] however, this appeal was rejected by the Cape Provincial Division because the alleged sex was nonconsensual, and the court regarded the question of constitutionality as purely theoretical.
The 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.
[1] The final Constitution, which came into force on 4 February 1997, contained similar equality protections to those in the Interim Constitution, providing in section 9(3) that:[10] "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 and birth.
"In 1997 the National Coalition for Gay and Lesbian Equality, an association representing a broad spectrum of South African LGBT organisations, launched a constitutional challenge in the Witwatersrand Local Division of the High Court.
The High Court's judgment, authored by Judge Jonathan Heher and handed down on 8 May 1998, considered each of the attacked offences in terms of the equality guarantee in the Constitution.
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.
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.
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.
[8] 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 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.