in its prohibition, the impact is broad and far-reaching. In relation to this provision, there is even less that can be said to counter the presumption of unfairness than in the case of sodomy. The section amounts to unfair discrimination and, for fundamentally the same reasons that were expressed above in relation to sodomy, the section cannot be justified under section 36(1) of the 1996 Constitution. There is nothing before us to show that the provision was motivated by anything other than rank prejudice and had as its purpose the stamping out of these forms of gay erotic self-expression. In my view Heher J correctly held that the provisions of section 20A of the Sexual Offences Act are inconsistent with section 9 of the Constitution and invalid.
The Constitutional Validity of Including the Offence of Sodomy in Schedule 1 of the CPA and in the Schedule to the Security Officers Act
[77]Once it is found that the offence of sodomy is inconsistent with the Constitution, its inclusion in the above schedules must necessarily also be constitutionally inconsistent. I would accordingly confirm paragraphs 4 and 5 of the High Court’s order declaring that the inclusion of sodomy is inconsistent with the Constitution of the Republic of South Africa 1996 and invalid.
[78]I have had the opportunity of reading the concurring judgment prepared by Sachs J. I agree with the sentiments expressed therein.
