The petitioner sought to register an NGO with a core objective of protecting the human rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. The 1st respondent, the Non-Governmental Organizations’ Co-ordination Board, declined the application on grounds that the Penal Code criminalizes gay and lesbian liaisons since they go against the order of nature.
This matter came to the Constitutional Court for confirmation of an order of the High Court that declared section 126B of the Defence Act 44 of 1957 (the Act) as unconstitutional; for prohibiting members of the South African National Defence Force (SANDF) from participating in public protests and joining trade unions. The Constitutional Court thus determined whether section 126B of the Act was a justifiable limitation of the applicant’s, SANDF, freedoms of expression, association and assembly.
This case interpreted the right to freedom of association in two contexts. First, with regards to section 32(c) of the Constitution that guarantees the right to establish educational institutions based on common culture, language and religion. Second, whether section 32(c) imposes a positive obligation on the state to establish minority schools.
