test has two parts: first, is it possible to sever the invalid provisions and, second, if so, is what remains giving effect to the purpose of the legislative scheme?”[1]
[69]In the present case we are of course dealing with the constitutional inconsistency and invalidity of a common-law offence, but I can see no valid reason why the constitutional principles underlying the above approach should not, suitably adapted, also apply to the instant case where, on a direct application of the Bill of Rights, we have found the very core of the offence to be constitutionally invalid. There can be no doubt that the existence of the common-law offence was not dictated by the objective of punishing “male rape”. The sole reason for its existence was the perceived need to criminalise a particular form of gay sexual expression; motives and objectives which we have found to be flagrantly inconsistent with the Constitution. The fact that the ambit of the offence was extensive enough to include “male rape” was really coincidental. The core of the offence was to outlaw gay sexual expression of a particular kind.
[70]We are entitled, in my view, to have regard to criminal law policy in the context of the common-law formation and development of the offence in question. If, at the time of
- ↑ 1995 (10) BCLR 1382 (CC); 1995 (4) SA 631 (CC) at para 16. The footnote reference in the text quoted has been omitted but the footnote itself reads: “Johannesburg City Council v Chesterfield House 1952 (3) SA 809 (A) at 822 D–E. See also S v Lasker 1991 (1) SA 558 (CPD) at 566.”
