State Attorney: R Raath

The Director General
Department of Justice


1. Your letter dated 31 July 1998 refers, wherein you invite this office to offer any comments on the bill.

2. I wish to make the following comments regarding the inclusion of the offence "sodomy" in Schedule 2 (sections 1.27 and 28) of the bill. Your attention is drawn to the judgement in the matter of the National Coalition (or Gay and Lesbian Equality (First Applicant), the South African Law Commission (Second Applicant) and the Minister of Justice (First Respondent), the Minister of Safety and Security (Second Respondent) and the Attorney General of the Witwatersrand (Third Respondent). The judgement is reported in the May 1998 (No.6) Butterworth's Constitutional Law Reports at page 726. It is a judgement by Heher J. in the W.L.D.

3. In that matter various orders were made including a declaration that the common-law offence of sodomy is inconsistent with the Constitution. It was also ordered that the other orders made, insofar as they declare provisions of acts of Parliament invalid, are referred to the Constitutional Court for confirmation in terms of Section 172 (2) (a) of Act 108 of 1996.

4. Writer acts as attorney for the Minister of Justice who has appointed adv. Masemola who is attached to the State Law Advisor's office, to represent him at the hearing of the matter before he Constitutional Court on 2 August 1998.

5. It follows that the judgement of the Constitutional Court must be awaited to establish whether the inclusion of sodomy in Schedule 2 can stay or has to be excluded. My instructions throughout the case, and still is, not to oppose the orders sought, subject to certain retrospective relief sought in the High Court which was abandoned by the applicants and which is irrelevant for purposes hereof. The Minister of Safety and Security and the Attorney General did not oppose the orders sought in the High Court and I am unaware of their intentions at the hearing of the matter before the Constitutional Court.

6. I trust that this information will assist the Portfolio Committee in the deliberations on the bill.