National Coalition for Gay and Lesbian Equality v Minister of Justice (1998)
In a constitutional democracy, can sex between two consenting men be criminalised?
South Africa’s Constitution was the first in the world to prohibit unfair discrimination on the grounds of sexual orientation. There were, however, still apartheid-era laws in place which prohibited sodomy between two consenting adult men, and which stated that public displays of affection were ‘indecent’.
In 1997, the National Coalition for Gay and Lesbian Equality, along with the South African Human Rights Commission, launched an application in the Johannesburg High Court challenging the constitutionality of section 20A of the Sexual Offences Act and all laws that made consensual sexual activities between consenting adult men a crime. The matter was challenged all the way to the Constitutional Court.
Path to the Constitutional Court
On 8 May 1998, the High Court agreed with the order sought by the applicants that the Sexual Offences Act was unconstitutional.
Meet Some of the Parties
The National Coalition for Gay and Lesbian Equality – a voluntary association of gay, lesbian, bisexual and transgender people in South Africa and of the 70 organisations and associations representing these groupings.
The South African Human Rights Commission (SAHRC) – this Chapter 9 institution was established under section 184 of the Constitution. The SAHRC’s duties are to promote respect for human rights and a culture of human rights; promote the protection, development, and attainment of human rights; and monitor and assess the observance of human rights in the Republic.
Some of the Arguments
National Coalition for Gay and Lesbian Equality/ South African Human Rights Commission
The applicants argued that the crime of sodomy was inconsistent with the 1996 Constitution as it breaches the right to equality.
Minister of Justice
The government did not oppose the argument made by the National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission. It is not unusual for the government not to oppose amendments to legislation such as this signifying that, in principle, they agree with the applicant.
What did the Constitutional Court decide?
The Court found that the offence of sodomy, and its inclusion as a crime in the Sexual Offences Act, violated the rights of gay men to equality, dignity, and privacy. The so-called offences were thus found to be ‘unconstitutional and invalid’. The Court found that there was no legitimate reason to justify limiting the rights of gay men.
It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.
The nature of the power and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society.
Impact and Significance
The judgment solidified the constitutional rights of the LGBTQ+ community in South Africa and was celebrated by the National Coalition for Gay and Lesbian Equality.
It did make a difference. I was no longer a criminal in terms of Sexual Offences Act. It gave me hope, because I felt like a citizen of South Africa.
I remember discussing this judgment with my father … and ultimately I had to say to him that … it might be against your religious convictions, but the Constitution is the supreme document by which everybody has to live.
The case paved the way for the following judgments that further solidified the rights of the LGBTQ+ community:
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (1999)
The case considered whether it was unconstitutional to allow the immigration of the foreign spouses of permanent South African residents but not to afford the same benefits to South African gays and lesbians in permanent same-sex life partnerships with foreigners. The Court held that section 25(5) of the Aliens Control Act suggested that gays and lesbians were unworthy of having their family lives respected or protected which was an invasion of their dignity. The Court held section 25(5) to be unconstitutional and decided the words “or partner in a permanent same-sex life partnership” needed to be added to the Act.
Satchwell v The President of the Republic of South Africa (2002)
A High Court order had declared sections 8 and 9 of the Judges’ Remuneration and Conditions of Services Act unconstitutional to the extent that it afforded benefits to the spouses of judges but not to their same-sex life partners. The case was brought by Judge Kathy Satchwell of the High Court and her same-sex partner who lived as a married couple but were not legally ‘spouses’. The Constitutional Court found that the provisions of the legislation unfairly and unjustifiably discriminated on the basis of sexual orientation.
Du Toit and another v Minister of Welfare and Others (2002)
Two partners in a longstanding lesbian relationship wanted to jointly adopt two children. They could not because the Child Care Act and Guardianship Act did not make provision for adoption for same-sex partners. The applicants challenged the constitutionality of these Acts. The Constitutional Court found that the legislation discriminated on the grounds of sexual orientation and marital status, and that the dignity of one of the partners had been infringed. The Court held that the legislation also infringed the principle that a child’s best interests are paramount.
J and B v The Director-General of Home Affairs and Others (2003)
J and B had been involved in a permanent same-sex partnership since 1995. In August 2001, B gave birth to twins conceived with sperm from an anonymous donor and J’s egg. Both J and B wanted to be registered as the parents of the twins, but only B, as the “birth-mother”, succeeded. Section 5 of the Children’s Status Act provided that, where a married couple uses the sperm or egg of another person to conceive a child through artificial insemination, then the child will be considered the legitimate child of the married couple, but this would not be the case for J and B as the registration form only made provision for one male and one female parent. The Constitutional Court declared section 5 unconstitutional. The Court ordered that the section be read to provide the same status to children born from artificial insemination to same-sex permanent life partners.
A prominent member and champion of the LGBTQ+ community, Justice Edwin Cameron, was appointed to the Constitutional Court in 2008 and retired in 2019.