Section 20A of the
Immorality Act, 1957, commonly known as the "men at a party" clause, was a South African law that criminalised all sexual acts between men that occurred in the presence of a third person. The section was enacted by the
Immorality Amendment Act, 1969 and remained in force until it was found to be unconstitutional in 1998 by the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...
in the case of ''
National Coalition for Gay and Lesbian Equality v Minister of Justice''.
The text of the clause was the following:
The prescribed penalty was a fine of up to
R4000 or imprisonment for up to two years or both.
"
Sodomy
Sodomy (), also called buggery in British English, principally refers to either anal sex (but occasionally also oral sex) between people, or any Human sexual activity, sexual activity between a human and another animal (Zoophilia, bestiality). I ...
" and "
unnatural sexual acts" were offences in the
Roman-Dutch common law of South Africa. These offences criminalised, ''inter alia'',
anal sex
Anal sex or anal intercourse principally means the insertion and pelvic thrusting, thrusting of the Erection, erect human penis, penis into a person's Human anus, anus, or anus and rectum, for sexual pleasure.Sepages 270–271for anal sex inform ...
,
oral sex
Oral sex, sometimes referred to as oral intercourse, is sexual activity involving the stimulation of the genitalia of a person by another person using the mouth (including the lips, tongue, or teeth). Cunnilingus is oral sex performed on the vu ...
,
intercrural sex and
mutual masturbation
Non-penetrative sex or outercourse is sexual activity that usually does not include sexual penetration, but some forms, particularly when termed ''outercourse'', include penetrative aspects, that may result from forms of fingering or oral sex ...
between men, but did not apply to, for example, men merely touching or kissing each other. In January 1966 the police raided a gay party, at which about 300 men were present, in the
Forest Town suburb of
Johannesburg
Johannesburg ( , , ; Zulu language, Zulu and Xhosa language, Xhosa: eGoli ) (colloquially known as Jozi, Joburg, Jo'burg or "The City of Gold") is the most populous city in South Africa. With 5,538,596 people in the City of Johannesburg alon ...
. This, and a number of subsequent raids on parties and clubs in various cities, led to a
moral panic
A moral panic is a widespread feeling of fear that some evil person or thing threatens the values, interests, or well-being of a community or society. It is "the process of arousing social concern over an issue", usually perpetuated by moral e ...
.
Homosexuality (particularly male homosexuality) was unacceptable in the
Afrikaner Calvinist ethos of the
apartheid regime, and
Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
reacted by convening a Select Committee which, in 1968, proposed a number of amendments to the Immorality Act. One of these was the "men at a party" clause, which was consequently enacted in 1969.
In one notable case in 1987, a conviction under the section was reversed on appeal by the
Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
because the court ruled that "a party" was not created when a police officer entered a room in a
gay bathhouse
A gay bathhouse, also known as a gay sauna or a gay steambath, is a public bath targeted towards Gay men, gay and Bisexuality, bisexual men. In gay slang, a bathhouse may be called just "the baths", "the sauna", or "the tubs". Historically, they ...
because the two men in the room jumped apart when he switched on the light.
The
Interim Constitution adopted in 1994 after the end of the apartheid regime, and the final
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these pri ...
which replaced it in 1997, both prohibited discrimination on the basis of sex, gender or sexual orientation. In 1997 the
National Coalition for Gay and Lesbian Equality launched
a constitutional challenge in the
Witwatersrand Local Division of the
High Court, asserting that the laws against "sodomy" and "unnatural sexual acts" as well as the "men at a party" clause infringed the
equality clause of the Constitution. The government did not oppose the application, and in May 1998 Judge Heher handed down a judgment and order striking down the impugned laws.
As required by South African law, the Constitutional Court issued a unanimous decision in October 1998 upholding Judge Heher's ruling to declare an act of Parliament illegal. Writing for the court, Justice
Lourens Ackermann described the clause as having an "absurdly discriminatory purpose and impact," and stated that, "There is nothing before us to show that the provision was motivated by anything other than rank prejudice."
Although it was already unenforceable because of the Constitutional Court's order, section 20A was formally removed from the statute-book by the
.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
s. 68(2) and Schedule.
Notes and references
External links
*
{{Criminalization of homosexuality
LGBTQ law in South Africa
Sex laws in South Africa
Repealed South African legislation
Criminalization of male homosexuality
Gay history
1969 in South African law