Page:NCGLE v Minister of Justice.djvu/91



Rh An unqualified retrospective order could easily have undesirable consequences. Persons might act directly under the order to have convictions set aside without adequate judicial supervision or institute claims for damages. The least disruptive way of giving relief to persons in respect of past convictions for consensual sodomy is through the established court structures. On the strength of the order of constitutional invalidity such persons could note an appeal against their convictions for consensual sodomy, where the period for noting such appeal has not yet expired or, where it has, could bring an application for condonation of the late noting of an appeal or the late application for leave to appeal to a court of competent jurisdiction. In this way effective judicial control can be exercised. Although this might result in cases having to be reopened, it will in all probability not cause dislocation of the administration of justice of any moment.

We should, however, limit the retrospective effect of the order declaring the offence of sodomy to be constitutionally invalid to cases of consensual sodomy. In respect of all other cases of sodomy, the order should be limited to one which takes effect from the date of this judgment. This is essential, in my view, to prevent persons convicted of sodomy which amount to “male rape” from having their past convictions set aside. To permit this would be neither just nor equitable. In the absence of such a limitation confusion might arise, upon a conviction being set aside in such cases, as to whether a conviction of indecent assault or assault with intent to do grievous bodily harm, Rh