The fairness of differing ages of consent for sexual relations will be argued in the Constitutional Court on Thursday.

The case is based on an application for confirmation of an order made by the Supreme Court of Appeal declaring sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 unconstitutional and invalid.

They make the age of consent for same-sex sexual relations 19 years, as opposed to 16 years for heterosexual sexual relations.

The SCA found this to be unfair discrimination under the Constitution and replaced the age of 19 years with 16 years to create a uniform age of consent.

The applicant, Izak Andreas Geldenhuys, was convicted on 10 counts of having a sexual relationship with a boy while the boy was between the ages of 14 and 18.

Statutory rape

As the age of consent was 19 years for homosexual relations, sexual intercourse between the applicant and the boy qualified as statutory rape.

As the SCA had lowered the age of consent to 16 years, they overturned the applicant's convictions on six of the ten counts of statutory rape —all of which had happened after the boy's 16th birthday.

The overturning of the convictions is also dependent on confirmation of the order of invalidity by the Constitutional Court.

In addition to the confirmation matter, the applicant also appealed the remaining four of the ten original convictions.

On 14 May 2008 the Constitutional Court declined to hear the appeals as they lacked prospects of success, but would hear the confirmation matter.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 has repealed the section so the court views it as being about the protection of people who claim to have been unjustly convicted under unconstitutional legislation.

What age do you think South Africans should be allowed to legally have sex? Post a comment below…

Sapa