Page:NCGLE v Minister of Justice.djvu/32



Rh privacy only, is understandable. I would emphasise that in this judgment I find the offence of sodomy to be unconstitutional because it breaches the rights of equality, dignity and privacy. The present case illustrates how, in particular circumstances, the rights of equality and dignity are closely related, as are the rights of dignity and privacy.

It does not seem to me that we should conclude from these remarks that where our law places a blanket criminal ban on certain forms of sexual conduct, it does not result in a breach of privacy. That cannot, in my view, be the correct interpretation of those remarks. This court has considered the right to privacy entrenched in our Constitution on several occasions. In Bernstein v Bester, it was said that rights should not be construed absolutely or individualistically in ways which denied that all individuals are members of a broader community and are defined in significant ways by that membership: “In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. … Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks

Rh