[67]The question which arises is whether, in declaring the common-law offence of sodomy to be constitutionally invalid, this Court should do so only to the extent that the offence is inconsistent with the Constitution or whether this Court has the power to declare the offence invalid in its entirety. The latter was the course adopted by Heher J, notwithstanding the fact that the applicants had in argument limited their claim to relief in relation to consensual acts committed in private.[1] Section 172(1)(a)[2] of the 1996 Constitution only permits a court having the competence to do so to declare a law that is inconsistent with the Constitution invalid “to the extent of its inconsistency”. Beyond that the Court is not empowered to go. It is notionally possible to declare the offence of sodomy invalid to the extent that it relates to sexual relations per anum in private between consenting males who are over the age of consent and capable of giving such consent. That is, however, not necessarily the end of the inquiry.
- ↑ Above n 1 at 750G–H.
- ↑ Section 172(1)(a) provides:
“When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency…”
