ceased to exist after the coming into effect of the interim Constitution[1]. Before the new constitutional order came into operation in our country, the common law offence of sodomy differentiated between gays and heterosexuals and between gays and lesbians. It criminally proscribed sodomy between men and men, even in private between consenting adults, but not between men and women; nor did it proscribe intimate sexual acts in private between consenting adult women. As far as there being any rational connection between such differentiation and a legitimate government purpose,[2] Heher J simply held that:
“… respondents have not suggested a reasoned basis for the differentiation which may further the aims of government and I am unable to think of any.”[3]
Heher J pointed out that if the differentiation was on one of the grounds listed in section 9(3) of the 1996 Constitution (in the present case on the ground of “sexual orientation”) it was presumed to be unfair (under section 9(5)). He immediately proceeded to consider whether the offence of sodomy was justified under section 36 of the 1996 Constitution, without expressly considering the question whether, notwithstanding the presumption under section 9(3), it had been established that the discrimination was fair. He found (by
- ↑ Above n 1 at 750G.
- ↑ As to which see Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) para 53 (a) (quoted in paragraph 17 below) dealing with the equality analysis under the interim Constitution. As is pointed out in para 18 below it is not in all cases obligatory to embark on the rational connection analysis.
- ↑ Above n 1 at 746G.
