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CONSTITUTIONAL COURT OF SOUTH AFRICACase CCT 11/98THE NATIONAL COALITION FOR GAY ANDLESBIAN EQUALITY First ApplicantTHE SOUTH AFRICAN HUMAN RIGHTSCOMMISSION Second ApplicantversusTHE MINISTER OF JUSTICE First RespondentTHE MINISTER OF SAFETY AND SECURITY Second RespondentTHE ATTORNEY-GENERAL OF THEWITWATERSRAND Third RespondentHeard on : 27 August 1998Decided on : 9 October 1998JUDGMENTACKERMANN J:
 Introduction
[1]
 
This matter concerns the confirmation of a declaration of constitutional invalidityof -(a) section 20A of the Sexual Offences Act, 1957;(b) the inclusion of sodomy as an item in Schedule 1 of the Criminal
 
ACKERMANN J2Procedure Act, 1977 (“Schedule 1 of the CPA”); and(c) the inclusion of sodomy as an item in the schedule to the SecurityOfficers Act, 1987 (“the Security Officers Act Schedule”);made by Heher J in the Witwatersrand High Court on 8 May 1998.
1
These declarationswere made and referred to this Court for confirmation under section 172(2)(a) of the 1996Constitution.
2
 [2]
 
The full order made by Heher J reads as follows:“
1. It is declared that the common-law offence of sodomy is inconsistent with theConstitution of the Republic of South Africa 1996.
2.
 
It is declared that the common-law offence of commission of anunnatural sexual act is inconsistent with the Constitution of theRepublic of South Africa 1996 to the extent that it criminalises acts
1
Reported as
 National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others
 1998 (6) BCLR 726 (W).
2
The Constitution of the Republic of South Africa 1996. The new Rules of the Constitutional Court wereonly promulgated on 29 May 1998 and the present referral by the High Court took place according to theprocedure sanctioned by this Court in
Parbhoo and Others v Getz NO and Another 
1997 (10) BCLR 1337(CC); 1997 (4) SA 1095 (CC) at paras 1 to 6.
 
ACKERMANN J3committed by a man or between men which, if committed by awoman or between women or between a man and a woman, wouldnot constitute an offence.3.
 
It is declared that section 20A of the Sexual Offences Act, 1957 isinconsistent with the Constitution and invalid.4.
 
It is declared that the inclusion of sodomy as an item in Schedule 1of the Criminal Procedure Act, 1977 is inconsistent with theConstitution and invalid.5.
 
It is declared that the inclusion of sodomy as an item in the Scheduleto the Security Officers Act, 1987 is inconsistent with theConstitution and invalid.6.
 
The aforementioned orders, in so far as they declare provisions of Acts of Parliament invalid, are referred to the Constitutional Courtfor confirmation in terms of section 172(2)(a) of Act 108 of 1996.”The learned judge correctly did not refer orders (1) and (2) to this Court for confirmationbecause section 172(2)(a)
3
of the 1996 Constitution neither requires confirmation by theConstitutional Court of orders of constitutional invalidity of common law offences nor
3
Which provides as follows:“The Supreme Court of Appeal, a High Court or a court of similar status maymake an order concerning the constitutional validity of an Act of Parliament, aprovincial Act or any conduct of the President, but an order of constitutionalinvalidity has no force unless it is confirmed by the Constitutional Court.”
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