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Ackermann J


to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

Section 10 provides:

Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.”

[31]Davis J found that section 25(5) constituted a clear limitation of the section 9 guarantee against unfair discrimination because it differentiated on the grounds of sexual orientation; under section 9(5) such differentiation, being a ground specified in section 9(3), is presumed to be unfair unless the contrary is established; and that the contrary had not been established.[1] The High Court considered it unnecessary to deal with the other grounds on which section 25(5) had been attacked. In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others[2] (the “Sodomy case”) this Court pointed out that in particular circumstances the rights of equality and dignity are closely related and found the criminal offence of sodomy to be unconstitutional because it breached both rights.[3] In the present case the rights of equality and dignity are also closely related and it would be convenient to deal with them in a related manner.


  1. Above n 1 at 291 G – 292 F.
  2. 1998 (12) BCLR 1517 (CC); 1999 (1) SA 6 (CC).
  3. Id at para 30. The Court also held that the right to privacy had been breached, which is not relevant to the present case.

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