S v M (17/2003) [2003] ZAFSHC 19; 2004 (1) BCLR 97 (O); 2004 (3) SA 680 (O); 2004 (1) SACR 228 (O) (5 September 2003)

S v M (17/2003) [2003] ZAFSHC 19; 2004 (1) BCLR 97 (O); 2004 (3) SA 680 (O); 2004 (1) SACR 228 (O) (5 September 2003)

The court held that the common law crime of bestiality is not unconstitutional. The criminalisation of bestiality does not amount to unfair discrimination based on sexual orientation, as the offence is not directed at a group or individuals but at prohibiting sexual intercourse between humans and animals. The court found that animals cannot consent, and such conduct is considered unnatural and contra boni mores by prevailing community standards. Any limitation of rights to equality, liberty, or privacy is reasonable and justifiable under section 36 of the Constitution, given the nature of the act and the interests of society. The court distinguished bestiality from consensual adult sexual...

Citation
[2003] ZAFSHC 19
Parties
Applicant: The State; Respondent: M
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 September 2003
Case Number
17/2003
Procedural Posture
Review Application / Special Review Under Section 304 a of the Criminal Procedure Act
Outcome
Conviction confirmed; matter referred back for sentencing.
Judges
G.F. Wright, C.H.G. Van der Merwe
Legal Topics
Bestiality, Bill of Rights Limitation, Discrimination, Right to Privacy, Arbitrary Deprivation of Liberty
Criminal Law Constitutional Law Bestiality Bill of Rights Limitation Discrimination Right to Privacy Arbitrary Deprivation of Liberty

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

M

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 a of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the common law crime of bestiality is unconstitutional under the Bill of Rights.
  2. 2 Whether the criminalisation of bestiality constitutes unfair discrimination based on sexual orientation.
  3. 3 Whether the offence infringes the right to privacy or arbitrarily deprives liberty contrary to the Constitution.

Ratio Decidendi

The court held that the common law crime of bestiality is not unconstitutional. The criminalisation of bestiality does not amount to unfair discrimination based on sexual orientation, as the offence is not directed at a group or individuals but at prohibiting sexual intercourse between humans and animals. The court found that animals cannot consent, and such conduct is considered unnatural and contra boni mores by prevailing community standards. Any limitation of rights to equality, liberty, or privacy is reasonable and justifiable under section 36 of the Constitution, given the nature of the act and the interests of society. The court distinguished bestiality from consensual adult sexual...

Court Disposition

Conviction confirmed; matter referred back for sentencing.

Orders

  • The conviction is confirmed.
  • The matter is referred back to the magistrate for the imposition of an appropriate sentence, taking into account the content of this judgment.