S v Geldenhuys (470/2007) [2008] ZASCA 47; 2009 (1) SACR 1 (SCA); [2008] 3 All SA 8 (SCA); 2008 (9) BCLR 940 (SCA) (31 March 2008)

S v Geldenhuys (470/2007) [2008] ZASCA 47; 2009 (1) SACR 1 (SCA); [2008] 3 All SA 8 (SCA); 2008 (9) BCLR 940 (SCA) (31 March 2008)

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are unconstitutional to the extent that they differentiate between heterosexual and same-sex sexual activities by setting the legal age of consent at 16 and 19 years, respectively. This distinction constitutes unfair discrimination on the grounds of sexual orientation, which is not justified under section 36(1) of the Constitution. The appropriate remedy is to sever the words 'under the age of 19 years' and read in 'under the age of 16 years' for both boys and girls, thereby setting a uniform age of consent. The declaration of invalidity is subject to confirmation by the Constitutional Court and applies with qualified...

Citation
[2008] ZASCA 47
Parties
Appellant: Izak Andreas Geldenhuys; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2008
Case Number
470/2007
Procedural Posture
Criminal Appeal / Appeal From Pretoria High Court; Confirmation of Constitutional Invalidity Referred to Constitutional Court
Outcome
Appeal against convictions on counts 1-4 dismissed; convictions on counts 6-11 set aside subject to Constitutional Court confirmation; sentences on counts 6-11 suspended pending confirmation.
Judges
Streicher, Cameron, Nugent, Van Heerden, Kgomo
Legal Topics
Sexual Offences Act, Age of Consent, Unfair Discrimination, Constitutional Invalidity, Reading in and Severance, Children S Rights
Criminal Law Constitutional Law Sexual Offences Act Age of Consent Unfair Discrimination Constitutional Invalidity Reading in and Severance Children S Rights

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Parties

Izak Andreas Geldenhuys

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Pretoria High Court; Confirmation of Constitutional Invalidity Referred to Constitutional Court

Legal Issues

  1. 1 Whether sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957, which set different ages of consent for heterosexual and same-sex sexual acts, are unconstitutional.
  2. 2 Whether the convictions for sexual acts with a boy over 16 but under 19 years should stand in light of constitutional invalidity.
  3. 3 Whether the appellant's convictions on counts involving the complainant under 16 years are sustainable.

Ratio Decidendi

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are unconstitutional to the extent that they differentiate between heterosexual and same-sex sexual activities by setting the legal age of consent at 16 and 19 years, respectively. This distinction constitutes unfair discrimination on the grounds of sexual orientation, which is not justified under section 36(1) of the Constitution. The appropriate remedy is to sever the words 'under the age of 19 years' and read in 'under the age of 16 years' for both boys and girls, thereby setting a uniform age of consent. The declaration of invalidity is subject to confirmation by the Constitutional Court and applies with qualified...

Court Disposition

Appeal against convictions on counts 1-4 dismissed; convictions on counts 6-11 set aside subject to Constitutional Court confirmation; sentences on counts 6-11 suspended pending confirmation.

Orders

  • It is declared that, with effect from 27 April 1994, sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are inconsistent with the Constitution and invalid to the extent that they differentiate between heterosexual and same-sex sexual activities by setting the legal age of consent at 16 and 19...
  • Sections 14(1)(b) and 14(3)(b) are to be read as though 'under the age of 19 years' is replaced with 'under the age of 16 years'.