any sexual act, in private, between consenting adult females so punishable.
The Infringement of the Equality Guarantee
The Equality Analysis.
[15]In what follows I will proceed on the assumption that the equality jurisprudence and analysis developed by this Court in relation to section 8 of the interim Constitution[1] is applicable equally to section 9 of the 1996 Constitution, notwithstanding certain differences in the wording of these provisions. It is relevant to mention at this point that Mr Davis, who appeared for the amicus curiae, submitted that a more substantive interpretation should be given to the provisions of section 9(1) of the 1996 Constitution than this Court has given to the provisions of section 8(1) of the interim Constitution. Mr Davis did not suggest that the outcome of this referral should be other than supported by Mr Marcus. His argument went to the reasoning used to arrive at that result. I shall deal with these submissions later in this judgment.
[16]Neither section 8 of the interim Constitution nor section 9 of the 1996 Constitution envisages a passive or purely negative concept of equality; quite the contrary. In Brink v Kitshoff NO, O’Regan J, with the concurrence of all the members of the Court, stated:
- ↑ Namely in Brink v Kitshoff NO 1996 (6) BCLR 752 (CC); 1996 (4) SA 197 (CC); Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC); President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC); 1997 (4) SA 1 (CC); Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC); Larbi-Odam and Others v MEC for Education (North West Province) and Another 1997 (12) BCLR 1655 (CC); 1998 (1) SA 745 (CC); and Pretoria City Council v Walker 1998 (3) BCLR 257 (CC); 1998 (2) SA 363 (CC).
