[57]A number of open and democratic societies have turned their backs on the criminalisation of sodomy in private between adult consenting males, despite the fact that sexual orientation is not expressly protected in the equality provisions of their constitutions. Their reasons for doing so, which are referred to above, fortify the conclusion which I have reached that the limitation in question in our law regarding such criminalisation cannot be justified under section 36(1) of the 1996 Constitution. I would have reached this conclusion if the right to equality alone had been breached. The fact that the constitutional rights of gay men to dignity and privacy have also been infringed places justification even further beyond the bounds of possibility.
Submission on Behalf of the Amicus Curiae
[58]It is convenient at this stage to deal with the submissions advanced on behalf of the amicus curiae. As already mentioned above it is not suggested that these submissions would or should lead to a result any different from that contended for by Mr Marcus on behalf of the applicant. The thrust of Mr Davis’s submissions was that this Court’s interpretation of section 8(1) of the interim Constitution is inadequate in that it does not give sufficient weight or emphasis to what he called substantive equality. He contended that section 9(1) differed substantially from its predecessor chiefly because the words “and benefit” had been added to the words “equal protection”.
