Page:Geldenhuys v NDPP.djvu/15

Rh The age of consent for what are termed indecent acts between persons of the same sex, whether between an adult man and a boy or between an adult woman and a girl, is therefore set at 19 years, whereas when the acts are committed between an adult man and a girl or an adult woman and a boy, the age of consent for the girl or the boy is 16 years. The differentiation is clear. The age of consent to sexual acts for people of the same sex is older than the age of consent required for people of the opposite sex.

There is no claim that the differentiation serves a rational purpose. Rather, it is common cause that the impugned provisions discriminate between sexual acts between people of the same sex and the same acts between people of the opposite sex. It is discrimination based on sexual orientation, a ground enumerated in section 9(3) of the Constitution.

Is the discrimination unfair?

In terms of sections 9(3) and 9(5) of the Constitution, discrimination based on grounds of sexual orientation creates a presumption of unfairness unless the contrary is demonstrated. It is incumbent upon those who intend to uphold or protect the impugned legislation to demonstrate the absence of unfairness. None of the respondents in the Supreme Court of Appeal or before this Court proffered evidence Rh