Ackermann J
“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) 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. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The High Court Judgment
[11]Heher J, in the High Court, based his judgment declaring the common law crime of sodomy to be inconsistent with the 1996 Constitution exclusively on the breach of the right to equality. So too did Farlam J (Ngcobo J concurring) in S v K,[1] a case heavily relied on by Heher J in coming to the conclusion that the common law crime of sodomy
- ↑ 1997 (9) BCLR 1283 (C); 1997 (4) SA 469 (C).
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