NGCOBO J
the interim Constitution. That is the Constitution that was in force when the events that gave rise
to these proceedings occurred. In this Court all the parties accepted that the interim Constitution
governs these proceedings. The High Court, however, approached the matter on the footing that
the Constitution applies. It is not clear from the judgment of the High Court whether any
argument was addressed to it on this question. The parties did not suggest that it was in the
interests of justice to apply the Constitution.
[4]
The High Court should have applied the interim Constitution as that constitution was in
force when the acts that gave rise to these proceedings were committed. Ordinarily we would
have to decline to confirm the order of invalidity on this basis alone. There are, however,
considerations that militate against such a course being followed. There is no material difference
between the provisions of section 8 of the interim Constitution and section 9 of the Constitution,
both of which deal with discrimination. It therefore matters not which Constitution was applied
by the High Court in reaching its conclusion that section 20(1)(aA) was discriminatory and
therefore inconsistent with the Constitution. We can therefore apply the interim Constitution.
The parties did not contend otherwise.
The Proceedings in the High Court
[5]
The constitutional challenge to section 20(1)(aA) included challenges based on the
violation of “the rights of . . . gender equality” and “to equality before the law . . .”. The High
Court found that the distinction made by the provision between the merchant and the customer
was “obviously unjustified discrimination between not only sexes but also persons.”3 It also
3
S v Jordan and Others 2002 (1) SA 797 (T) at 800E; 2001 (10) BCLR 1055 (T) at 1058A; 2002 (1) SACR
3