NGCOBO J
Introduction
[1]
I have had the benefit of reading the joint judgment of O’Regan and Sachs JJ. I agree
with the conclusion that the constitutional challenges based on human dignity, freedom of
person, privacy and economic activity must fail. But the reasons that persuade me to conclude
that the challenge based on the right to economic activity and the right to privacy must fail differ
in both their scope and emphasis from those advanced in the joint judgment. I also agree that the
challenge to sections 2, 3(b) and (c) of the Sexual Offences Act (the Act) must fail. However, I
do not agree with the conclusion that section 20(1)(aA) of the Act discriminates unfairly against
women and that it is thus inconsistent with the interim Constitution, as found by my colleagues.
Which Constitution is applicable?
[2]
The issue of which constitution applies is governed by item 17 of Schedule 6 of the
Constitution which provides that proceedings that were pending when the Constitution came into
force, shall be governed by the interim Constitution unless the interests of justice require
otherwise.1 The Constitution expresses the principle that a dispute must ordinarily be decided in
accordance with the law in force at the time when the alleged infringement of the Constitution
occurred.2 The Constitution will only apply retroactively if the interests of justice so demand.
[3]
In their appeal in the High Court the appellants based their constitutional challenges on
1
Item 17 of Schedule 6 provides that “All proceedings which were pending before a court when the new
Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the
interests of justice require otherwise.”
2
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 110.
2