interest is directly engaged. People are subject to extensive prejudice because of what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself.”[1]
[38]I find that the differential age of consent provided for by sections 14(1)(b) and 14(3)(b) discriminates unfairly on the grounds of sexual orientation. Justification for the discrimination not having been shown, the provisions are unconstitutional and therefore invalid.
Remedy
[39] Having found that sections 14(1)(b) and 14(3)(b) are inconsistent with the Constitution because of the unjustifiable age differentiation between victims of the offences contemplated in those sections, it is now necessary to determine the appropriate remedy. The Constitution empowers and obliges this Court to make a just and equitable order in the circumstances.[2] It would not be just and equitable to strike down the offending sections and remove them from the statute book altogether. It is true that the provisions in question have been superseded by legislation that cures the defect. There may nonetheless be outstanding cases relating to offences alleged to have been committed before the legislation that repealed and replaced the provisions in question came into force. A lacuna would result in relation to this class of cases if this Court were to strike down the provisions without more.
- ↑ See National Coalition above n 3 at para 109.
- ↑ Section 172(1)(b) of the Constitution.
