[41]In S v Makwanyane[1] the President of the Court pointed out that because of the “margin of appreciation” allowed to the national authorities by the European Court of Human Rights, the jurisprudence of the European Court would not necessarily be a safe guide as to what would be appropriate under section 33(1) of the interim Constitution.[2] This is particularly true in the case where the European Court finds that there is no infringement of a Convention right. It was to this situation in particular that the President was, in my view, addressing himself. But when the European Court finds that there has been a contravention, it reaches this finding after due regard has been had to the particular national authority’s margin of appreciation. This suggests that there must be a very clear breach.
[42]If nothing else, the judgments in Dudgeon and Norris are indicative of the changes in judicial and social attitudes in recent years. In Dudgeon, a judgment delivered nearly seventeen years ago, the following was stated:[3]
“As compared with the era when [the] legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member-States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the
- ↑ Above n 34 at para 109.
- ↑ See S v K above n 7 at para 41.
- ↑ Above n 52 at 167 para 60. Dudgeon and Norris were affirmed again in 1993 in Modinos v Cyprus 16 EHRR 485.
