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

[25] The appellant appealed against the conviction and sentence on the ground, inter
alia, that sections 14(1) and (3) were invalid to the extent that they differentiated
between same-sex and heterosexual conduct and, thus, constituted unfair
discrimination contrary to section 9(3) of the Constitution.
[26] It was held unanimously by the Supreme Court of Appeal that section 14
constituted unfair discrimination on the ground of sexual orientation, and was,
therefore, a violation of the appellant’s right to equality under section 9(3) of the
Constitution. The Court severed from section 14 words that drew a distinction
between same-sex and heterosexual conduct, and read into it other words with a
view to setting a uniform complainant age of consent of 16 years for both samesex
and heterosexual activities. The conviction for sexual activities when the
complainant was below 16 years of age was upheld whilst the convictions when
he was over 16 years of age was set aside.
[27] Section 9(3) of the Constitution prohibits discrimination inter alia, on the
grounds of gender, sex and sexual orientation. Drawing a distinction between
the ‘legal age of consent’ for heterosexual activities and same sex activities the
Act constitutes unfair discrimination. There was no justification for setting
different ages of legal consent for same-sex and heterosexual sexual acts. In
reaching its decision, the Court took into account that the broader governmental
purpose behind section 14 was legitimate. It was legitimate to protect children
against exploitative sexual conduct, not least in South Africa where sexual
exploitation of children is a serious and growing problem.
[28] When reaching its conclusion in Geldenhuys, the Court took cognizance of South
Africa’s constitutional and international law obligations in this respect. Article 34
of the Convention on the Rights of the Child 403 and article 17 of the African
Charter on the Rights and Welfare of the Child 404 which were ratified by South
Africa on 16 June 1995, and 7 January 2000 respectively, enjoin States Parties to
protect children from all forms of sexual exploitation and abuse. At the same
time, the Court found that there was no justification for drawing a distinction
between same-sex and heterosexual conduct in proscribing as well as punishing
unlawful sexual conduct. Citing National Coalition for Gay & Lesbian Equality v
Minister of Justice, 405 the Court underlined the importance of treating same-sex
and heterosexual conduct equally and not perpetuating the historical
marginalization and disadvantage of gays and lesbians.
[29] In fixing the age of legal consent to sexual intercourse and other sexual activities,
the Supreme Court of Appeal was primarily guided by a parallel process of legal
403 Adopted and opened for signature on 20 November 1989, entered into force on 2 September 1990.
404 Adopted and opened for signature on 20 November 1989, entered into force on 2 September 1990.
404 Adopted and opened for signature on 11 July 1990, entered into force on 29 November 1999.
405 1999 (1) SA 6.
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