Declaring the offence to be invalid in its entirety will leave no hiatus in the criminal law.
[72]The Minister has not appealed against the unqualified order of constitutional invalidity made by the High Court nor has there been any suggestion in argument on his behalf that we ought to interfere with its ambit. As indicated above, other democratic countries have dealt with male rape by way of new statutory provisions in this regard. Whether or not our legislature will follow that example is a matter for it to decide. For all the above reasons I am of the view that there is no adequate justification for making a limited declaration of invalidity in regard to the common-law offence of sodomy and that consequently there is no warrant for interfering with the ambit of the order made in the High Court in declaring the offence of sodomy constitutionally invalid in its entirety.
[73]Although, as indicated earlier in this judgment, the correctness of paragraph 1 of the High Court’s order is not formally before this Court, we are obliged to consider its correctness, or the extent of its correctness, in order to consider the terms on which paragraphs 4 and 5 of the order ought to be confirmed. In my view this Court has the power to do so, inasmuch as it is an issue unavoidably connected with a decision on a constitutional matter for purposes of section 167(3)(b) of the 1996 Constitution. As a constitutional matter within its power, the Court is obliged under section 172(1)(a) to declare the offense in question invalid to the extent of its inconsistency with the Constitution. I would accordingly endorse paragraph 1 of the High Court’s order declaring the common law offence of sodomy to be inconsistent with the 1996
