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Rh The Minister submitted that the order of the Supreme Court of Appeal should be confirmed. She supported the order of invalidity of the Supreme Court of Appeal together with the remedy.

Like the applicant, the Minister submitted that the explicit prohibition of discrimination based on sexual orientation in sections 9(1) and 9(3) of the Constitution precludes sections 14(1)(b) and 14(3)(b) from setting, as they do, an older age of consent to sexual acts between people of the same sex than that provided for between people of the opposite sex. On this basis, she conceded the discriminatory impact of the provisions and provided no justification.

Condonation

First to dispose of is the preliminary issue of condonation. Written argument and an application for condonation for the late filing of it were lodged on behalf of the Minister, the third respondent in this matter, on 26 August 2008, more than three weeks after the due date provided for in the directions of the Chief Justice and only two days before the hearing itself.

In justifying the delay, a representative from the Department of Justice and Constitutional Development explained that it had arisen because, although the Minister’s lawyers were waiting for the directions from this Court, those directions, issued on 15 May 2008, had not reached them. This is strange because the Registrar Rh