3 a girl or a boy) is 12 years or older and capable of forming an intention (“wilsvermoënd”), and who participates voluntarily in such sexual acts, the section constitutes unfair discrimination on the grounds of, inter alia, gender and/or sexual orientation in contravention of s 9(3) of the Constitution and is accordingly invalid. In support of this argument, counsel contended that the South African common law recognises that a girl of 12 years or older, with the capacity to form an intention, can legally consent to sexual intercourse and that if she does so, her sexual partner is not guilty of rape. According to counsel, a ‘necessary implication’ of s 9(3) of the Constitution in this context is that boys of 12 years and older must have the same capacity to consent to sexual acts. Moreover, so the argument continued, to categorise voluntary sexual intercourse or any other sexual act by a girl or boy of older than 12 years, who has the capacity to form an intention, as ‘immoral’ or ‘indecent’ (the terms used in s 14(1)(b) of the Act) also constitutes unfair discrimination against such girls and boys in that they are not free to take their own decisions in regard to sexual activity. Further, as s 14(1)(b) criminalises the conduct of any person who engages in voluntary sexual intercourse or any other voluntary sexual act with such a girl or a boy, the section must of necessity constitute indirect discrimination against the former persons and is, for that reason also, constitutionally invalid. [4] Although these constitutional arguments were trenchantly rejected by the Pretoria High Court, the appellant persisted with this ground of appeal before us and substantially (if not exactly) the same arguments were repeated in the heads of argument filed on behalf of the appellant in this Court. In view hereof, more than two months prior to the hearing of this appeal, this Court afforded the Minister of Justice and Constitutional Development, as the minister of state concerned with the administration of the Act, an opportunity to intervene in the appeal. The attention of the Minister was specifically drawn to a further question - arising from the constitutional issues raised by the appellant – as to whether the distinction drawn in s 14 of the Act, relating to the so-called ‘legal age of consent’ for sexual acts between persons of the opposite sex, on the one hand, and such acts between persons of the same sex, on the other, is constitutional. This question was also brought to the attention of both parties. Both the parties, as well as the Minister – if she decided to intervene – were requested to file heads of argument dealing with the constitutional validity of s 14 and indicating whether, in their view, evidence may assist this Court