[90]In this judgment the conclusion has already been reached that this offence should be declared constitutionally invalid in its entirety. This conclusion has been reached by a direct application of the Bill of Rights to a common-law criminal offence, not by a process of developing the common law.
[91]We reached this conclusion, despite the fact that the constitutional invalidity of the common-law offence of sodomy was not itself directly before us, because it was an indispensable and unavoidable step in concluding that the inclusion of this offence in the various statutory schedules was constitutionally invalid[1]. It was therefore a constitutional matter that the Court was compelled to decide in terms of section 172(1) of the 1996 Constitution. The Court is obliged by section 172(1)(a) in the light of this finding to make an order of invalidity. Section 172(1)(b) then empowers the Court to make any order that is “just and equitable”. It is in any event impossible to make an order under section 172(1)(b) of the Constitution which is just and equitable in relation to the invalidity of the inclusion of the offence in the statutory schedules, without at the same time making such an order in relation to the constitutional invalidity of the offence itself. In order for this Court to discharge its duty properly under section 172(1)(b) in the former case, it is obliged to do so in the latter case as well. There are public interest concerns involved in this regard which go beyond the interests of the parties in the present case.
