sexual health and human rights in the african region - The ICHRP

orientation is a protected status in several cases. The leading case in this regard is
National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others. 322
[78] In National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others 323 the Constitutional Court adjudicated on sexual orientation as a
protected ground in the context of determining whether the common law of
sodomy constituted unfair discrimination against men who have sex with men.
The applicant, the National Coalition for Gay and Lesbian Equality, a voluntary
association of gay, lesbian, bisexual and transgendered people in South Africa,
and the South African Human Rights Commission brought an action seeking a
declaration that section 20A of the Sexual Offences Act of 1957 324 which
criminalized a sexual act between men is inconsistent with the Constitution of
South Africa to the extent that it only criminalises sexual acts between men but
not between women.
[79] The Constitutional Court unanimously held that the common law crime of
sodomy was inconsistent with the Constitution and by implication all statutory
offences that were built around the premise of sodomy as a common law crime
were necessarily inconsistent with the Constitution, and, thus, invalid, including
section 20A of the Sexual Offences Act. The Court found that the crime of
sodomy constituted a violation of the rights to equality, human dignity and
privacy.
[80] National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others was primarily decided through the interpretation and application of the
constitutional right to equality. In finding a violation of the right to equality, the
Court applied the test for determining unfair discrimination that it had
developed in Harksen v Lane 325 (the Harksen v Lane test) and other cases. 326 The
focus of the Harksen v Lane test is on determining the impact of the discriminatory
policy, law or practice on the individual and the group to which the individual
belongs.
[81] In determining the impact on the crime of sodomy over gay people, the Court
said that such a crime served to reinforce already existing societal prejudices
322 1999 1 SA 6 (Constitutional Court of South Africa).
323 Ibid.
324 Act No 23.
325 1997 (11) BCLR 1489 (CC).
326 Cases in which the Constitutional Court has developed its test for determining unfair discrimination
include: Brink v Kitshoff NO 1996 (6) BCLR 752 (Constitutional Court of South Africa); Prinsloo v Van der
Linde and Another 1997 (6) BCLR 759 (Constitutional Court of South Africa); President of the Republic of
South Africa and Another v Hugo 1997 (6) BCLR 708 (Constitutional Court of South Africa); Larbi-Odam and
Others v MEC for Education (North-West Province) and Another 1997 (12) BCLR 1655 (Constitutional Court of
South Africa); Pretoria City Council v Walker 1998 (3) BCLR 257 (Constitutional Court of South Africa).
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