renounced in favour of an ample commitment to equality under law. The national project of liberation would not be mean-spirited and narrow but would encompass all bases of unjust denigration. Non-discrimination on the ground of sexual orientation was to be a part—perhaps a relatively small part, but an integral part—of the greater project of racial reconciliation and gender and social justice through law to which the Constitution committed us.
[11]The fact that homosexuality was in 1994 and still is a controversial issue in Africa, as elsewhere in the world, did not deflect from this commitment. The equality clause went further than elsewhere in Africa: but this was because the legal subordination imposed by colonialism and apartheid went further than anywhere else in Africa. It lasted longer, was more calculated, more intrusive, more pervasive and more injurious. In response the negotiating founders offered the humane vision of nationhood on the basis of expansive legal protections.
[12]This setting explains the ‘strides’[1] that our equality jurisprudence has taken in respect of gays and lesbians in the last ten years. Consensual sexual conduct between adults in private has been freed from criminal restriction, not only
- ↑ Daniels v Campbell NO 2004 (5) SA 331 (CC) para 103, per Moseneke J.
