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Rh discriminated against him at the time, have it declared unconstitutional and obtain a retrospective order which would invalidate the provisions which criminalised his conduct at the time of the commission of the offence. That would not be an unusual order as the Constitution is decisively intolerant of permitting punishments for conduct that was not unlawful when it took place.

Constitutional validity of sections 14(1)(b) and 14(3)(b)

I now turn to consider the crux of this matter: confirming whether the differentiation inherent in sections 14(1)(b) and 14(3)(b) unjustifiably infringes upon the applicant’s right to equality, protected by section 9 of the Constitution. Although the issues in this Court are somewhat different from those that arose in the Supreme Court of Appeal, I am aided in the analysis by the comprehensive judgment of Van Heerden JA. Whereas in the Supreme Court of Appeal the applicant sought to argue for a uniform age of consent to be set at 12 years of age, in this Court he has not persisted with that argument. Here, the applicant seeks to confirm the Supreme Court of Appeal’s order of the constitutional invalidity of sections 14(1)(b) and 14(3)(b) of the Act.

It is now well-settled jurisprudence under the Constitution, that where an impugned provision differentiates between categories of people, it must bear a rational Rh