28
[65]
It was for this reason that we invited both parties and the Minister to address
us on the constitutional question and to indicate whether evidence may assist this
court in arriving at a conclusion. So too, notice of the proceedings was given to
Doctors for Life International, its legal representative in his personal capacity, the
Marriage Alliance of South Africa and the Lesbian and Gay Equality Project.
[66]
None of the non-governmental organisations who were notified of this appeal
applied to intervene as amicus curiae. Moreover, counsel for the appellant, for the
respondent and for the Minister all agreed that this distinction does constitute
discrimination on the grounds of sexual orientation and/or age in terms of s 9(3) of the
Constitution, which discrimination is in terms of s 9(5) deemed to be unfair unless the
contrary is established. Counsel for the respondent expressed one qualification, to the
effect that any unconstitutionality flowing from the distinction between same-sex and
heterosexual acts in s 14 of the Act should be ‘cured’ by raising the age of consent to
heterosexual acts from 16 years to 19 years and thus eliminating the distinction, or by
setting the legal age of consent for both same-sex and heterosexual acts at the age of
18 years (the new age of majority as from 1 July 2007 in terms of s 7 of the Children’s
Act 38 of 2005). This would, however, create a criminal offence which did not
hitherto exist, in a situation where a Parliamentary choice of a uniform age of 16 years
has already been made in the 2007 Act. In the alternative, counsel contended that s
14(1)(b) of the 1957 Act should remain unchanged so as not to diminish the
protection of children in respect of the period prior to the promulgation of the 2007
Act.
[67]
It is clear that the broader governmental purpose underlying s 14 of the 1957
Act was the legitimate one of protecting children against potentially exploitative
sexual conduct, a purpose in line with s 28 of the Constitution. However, in the 14
years since the advent of a constitutional democracy in this country in 1994, South
African courts, including the Constitutional Court, have repeatedly recognised that
gays and lesbians are in ‘certain respects in a uniquely vulnerable position as far as
legal protection and the exercise of political power are concerned’ (see Edwin
Cameron ‘Sexual Orientation and the Constitution: A Test Case for Human Rights’
(1993) 110 SALJ 450 at 456). To be faithful to the guarantees contained in the Bill of
rights, however ‘[s]exual orientation is – or should be – a matter of indifference
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