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MOKGORO J of this Court did send the directions to the State Attorney, Johannesburg by facsimile transmission. Nor does it appear that the lawyers made any enquiries of the Registrar when they did not receive the directions. Moreover, written argument by the other parties was duly served on the Johannesburg State Attorney. At that stage, it should have been realised that directions had been issued by the Court and the matter was proceeding. The representative explained that the State Attorney thought that the written argument dealt only with the merits of the application for leave to appeal against the convictions, a matter in which the Minister had no interest. Of course, this is not the case as the application for leave to appeal against the convictions had been dismissed summarily by this Court on 14 May 2008, as has been described above, and the written argument lodged by the applicant dealt with the declaration of invalidity. According to the representative, the Minister’s lawyers thus only became aware of the proceedings on 12 August 2008 when they were contacted by the representatives of the second respondent. [20] The representative of the Department emphasised that the delay was due to a simple error and not in any way due to wilful default. Although the error, in my view, is less than simple and borders on negligence, if not incompetence, I accept that the delay was not due to wilfulness. [21] The general rule is that non-compliance with the Rules of this Court will be condoned when it is in the interests of justice to do so.15 In the circumstances of this 15 This Court has often pronounced on the importance of parties complying with time limits set out in the Rules. In Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) 9

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IZAK ANDREAS GELDENHUYS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS et al, 2008

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Transvaal

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Aug 28, 2008

Keywords

Child abuse
Right to dignity
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: This case concerns the applicant, Izak Andreas Geldenhuys, who had sexual relations with a boy below the age of 19 years and was convicted on 10 counts of contravening a now repealed provisions of the Sexual Offence Act. The applicant then made an application for confirmation of the order of invalidity of his charges seeking to appeal his convictions.

The Supreme Court of Appeal found the differentiation between the ages of consent for same-sex and heterosexual persons to be unfair discrimination under the Constitution and accordingly replaced the age of 19 years with 16 years, creating a uniform age of consent. Consequently the SCA overturned, pending confirmation of the order of constitutional invalidity by this Court, the applicant’s convictions on six of the ten counts where the sexual acts in question had taken place after the boy’s 16th birthday. Now the only issue before the court was what the appropriate remedy should be

The court held that the differentiation did amount to unfair discrimination but declined to set the level of consent at 18 years. Further, the decision of the Supreme Court of Appeal was accordingly confirmed. Finally the appeal was also later dismissed.

Primary Documents

Geldenhuys v National Director of Public Prosecutions and Others - children and age of consent for same sex intercourse.pdf
English
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IZAK ANDREAS GELDENHUYS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS et al, 2008

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