31
[73]
It must also be borne in mind that, with effect from 16 December 2007, s 14 of
the Sexual Offences Act has been repealed in its entirety by the 2007 Act. Sections
15 and 16 of the new Act now regulate the conduct that was previously regulated by
ss 14(1) and 14(3) of the 1957 Act. These sections set a uniform age of consent of 16
years for both same-sex and heterosexual acts. Counsel for the Minister thus
contended, in my view correctly, that it would make no sense simply to declare
ss 14(1)(b) and 14(3)(b) of the 1957 Act to be constitutionally invalid and to leave it
to the legislature to deal with the consequences of such an order – the legislature has
already done so.
[74]
To my mind, ‘appropriate relief’ in the present case (see s 38 of the
Constitution) lies in a combination of the severance of words and the reading in of
other words into the relevant statutory provisions. As was pointed out by the
Constitutional Court in National Coalition for Gay & Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC) paras 74-75:
‘[74]
The severance of words from a statutory provision and reading words into the provision are
closely related remedial powers of the Court. In deciding whether words should be severed from a
provision or whether words should be read into one, a Court pays careful attention first, to the need to
ensure that the provision which results from severance or reading words into a statute is consistent with
the Constitution and its fundamental values and, secondly, that the result achieved would interfere with
the laws adopted by the Legislature as little as possible. . .
[75] In deciding to read words into a statute, a Court should also bear in mind that it will not be
appropriate to read words in, unless in so doing a Court can define with sufficient precision how the
statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as
when severing) a Court should endeavour to be as faithful as possible to the legislative scheme within
the constraints of the Constitution.’
[75]
The remedial solution in this case lies in a severance of the words ‘under the
age of 19 years’ after the words ‘a boy’ in s 14(1)(b) of the 1957 Act and the readingin of the words ‘under the age of 16 years’ in its stead. So too, in respect of s 14(3)(b)
of the 1957 Act, the words ‘under the age of 19 years’, after the words ‘a girl’ must be
severed from that section, to be replaced by the words ‘under the age of 16 years’.
After the severance and reading-in, ss 14(1)(b) and 14(3)(b) would read as follows:
‘(1)
Any male person who –
...
(b) commits or attempts to commit with such a girl or with boy under the age of 16 years an immoral
or indecent act; or
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