WEBVTT 00:00:00.000 --> 00:00:03.020 Imagine for a second that the entire difference 00:00:03.020 --> 00:00:05.980 between a perfectly legal gathering and a criminal 00:00:05.980 --> 00:00:08.900 offense, one that could land you in prison for 00:00:08.900 --> 00:00:11.939 two years, hinged entirely on counting to three. 00:00:12.019 --> 00:00:15.460 Right. Just three. Literally. Just the presence 00:00:15.460 --> 00:00:18.559 of a third person walking into a room. Today's 00:00:18.559 --> 00:00:20.519 deep dive is taking us into a highly specific, 00:00:20.739 --> 00:00:24.059 totally fascinating and frankly baffling piece 00:00:24.059 --> 00:00:26.579 of historical legislation from South Africa. 00:00:26.719 --> 00:00:28.879 It really is baffling. It is. We're going to 00:00:28.879 --> 00:00:31.859 explore Section 20A of the South African Immorality 00:00:31.859 --> 00:00:35.119 Act of 1957. Yeah. So if you have ever heard 00:00:35.119 --> 00:00:37.259 whispers of the notorious men in a party clause. 00:00:38.909 --> 00:00:40.530 This is exactly what we're pulling apart today. 00:00:40.649 --> 00:00:42.750 Our mission here is to look at the hard mechanics 00:00:42.750 --> 00:00:46.390 of this law and understand how societal anxieties 00:00:46.390 --> 00:00:48.329 don't just hover in the cultural atmosphere. 00:00:48.750 --> 00:00:50.850 They can actually be codified into very rigid, 00:00:50.990 --> 00:00:54.130 very bizarre legal statutes. It's a phenomenal 00:00:54.130 --> 00:00:57.109 piece of legal history to dissect. We're going 00:00:57.109 --> 00:00:59.729 to be looking at a deeply paranoid era of South 00:00:59.729 --> 00:01:02.289 African law. We often think of legislation as 00:01:02.289 --> 00:01:05.290 this dry, objective framework. But statutes are 00:01:05.290 --> 00:01:07.709 actually incredibly sensitive barometers. They 00:01:07.709 --> 00:01:09.829 measure the... the exact temperature, the specific 00:01:09.829 --> 00:01:12.430 fears, and the cultural boundaries of the society 00:01:12.430 --> 00:01:16.170 that drafts them. And Section 20A is the perfect 00:01:16.170 --> 00:01:18.390 study of what happens when a government attempts 00:01:18.390 --> 00:01:22.030 to translate a very specific cultural panic into 00:01:22.030 --> 00:01:24.390 the uncompromising mechanical language of the 00:01:24.390 --> 00:01:27.489 justice system. It really forces us to look at 00:01:27.489 --> 00:01:30.129 how a state tries to micromanage human proximity. 00:01:30.810 --> 00:01:32.989 OK, let's unpack this, because to really grasp 00:01:32.989 --> 00:01:35.969 why Section 20A is such a striking piece of legislation, 00:01:36.250 --> 00:01:38.670 we have to establish what the legal baseline 00:01:38.670 --> 00:01:41.450 looked like before this clause was ever drafted. 00:01:41.549 --> 00:01:43.810 Right. The existing foundation. Exactly. The 00:01:43.810 --> 00:01:45.769 legal foundation in South Africa at the time 00:01:45.769 --> 00:01:48.689 was the Roman Dutch common law. And based on 00:01:48.689 --> 00:01:50.909 the Wikipedia article we're sourcing today, that 00:01:50.909 --> 00:01:53.549 common law already had some very strict boundaries 00:01:53.549 --> 00:01:56.209 in place regarding sexual behavior. It already 00:01:56.209 --> 00:01:58.650 criminalized what it termed sodomy and unnatural 00:01:58.650 --> 00:02:01.290 sexual acts. And those terms weren't just vague 00:02:01.290 --> 00:02:04.349 placeholders. The law had very specific definitions 00:02:04.349 --> 00:02:07.250 for what constituted an unnatural sexual act 00:02:07.250 --> 00:02:10.129 between men. It explicitly covered anal sex, 00:02:10.490 --> 00:02:13.810 oral sex, mutual masturbation, and intercruel 00:02:13.810 --> 00:02:17.229 sex, which is essentially thigh sex. net for 00:02:17.229 --> 00:02:19.689 prosecuting these specific physical acts was 00:02:19.689 --> 00:02:22.449 already cast quite wide under the existing common 00:02:22.449 --> 00:02:24.689 law framework. Right. But here is the crucial 00:02:24.689 --> 00:02:26.629 distinction, and this is the gap that sets up 00:02:26.629 --> 00:02:29.969 our entire deep dive today. Those older existing 00:02:29.969 --> 00:02:32.550 common laws did not apply to men who were merely 00:02:32.550 --> 00:02:34.789 touching or kissing each other. Exactly. They 00:02:34.789 --> 00:02:36.969 prosecuted the specific sexual acts you just 00:02:36.969 --> 00:02:40.069 listed, but they left a distinct legal gray area 00:02:40.069 --> 00:02:42.590 when it came to simple physical affection or, 00:02:42.650 --> 00:02:45.370 you know, just proximity. That gap was the boundary 00:02:45.370 --> 00:02:48.000 line. You had a legal framework that punished 00:02:48.000 --> 00:02:50.620 the act but could not legally penalize the affection. 00:02:51.060 --> 00:02:53.180 And to understand how that specific boundary 00:02:53.180 --> 00:02:55.419 was completely demolished, we have to look at 00:02:55.419 --> 00:02:58.520 the catalyst. Major legal shifts rarely happen 00:02:58.520 --> 00:03:00.560 in a vacuum. They usually need a spark. Yes, 00:03:00.699 --> 00:03:02.960 a highly visible spark. In this case, that spark 00:03:02.960 --> 00:03:06.099 was a police raid in January of 1966. A raid 00:03:06.099 --> 00:03:08.879 on a party, right? Exactly. The police raided 00:03:08.879 --> 00:03:11.300 a gathering in Forestown, which is a suburb of 00:03:11.300 --> 00:03:15.020 Johannesburg. The target was a gay party. And 00:03:15.020 --> 00:03:17.620 there is one operational detail about this event 00:03:17.620 --> 00:03:20.800 that changes everything. The size. Yes. There 00:03:20.800 --> 00:03:23.500 were roughly 300 men present at this gathering. 00:03:23.639 --> 00:03:27.219 Wait, 300 people? That is not a quiet get -together 00:03:27.219 --> 00:03:29.860 in someone's living room. No. That is a massive, 00:03:29.919 --> 00:03:33.259 highly visible event. But how does a single party, 00:03:33.379 --> 00:03:36.439 even a large one, trigger a national legal overhaul? 00:03:36.759 --> 00:03:38.919 I mean, people throw large parties all the time 00:03:38.919 --> 00:03:40.860 without the government completely rewriting the 00:03:40.860 --> 00:03:43.300 criminal code. What's fascinating here is how 00:03:43.300 --> 00:03:45.780 this single event in Forest Town interacted with 00:03:45.780 --> 00:03:47.919 the specific cultural machinery of the time. 00:03:48.000 --> 00:03:50.800 It triggered an absolute cascade of reactions, 00:03:51.159 --> 00:03:54.340 snowballing into a full blown moral panic. Wow. 00:03:54.539 --> 00:03:56.979 This wasn't just an isolated raid where the police 00:03:56.979 --> 00:03:59.400 made some arrests and went home. The Forest Town 00:03:59.400 --> 00:04:01.780 raid became the domino that set off a nationwide 00:04:01.780 --> 00:04:04.500 crackdown, leading to a whole series of subsequent 00:04:04.500 --> 00:04:07.560 police raids on clubs, private parties and gatherings 00:04:07.560 --> 00:04:10.159 across various other South African cities. But 00:04:10.159 --> 00:04:13.860 why? massive overreaction. What was it about 00:04:13.860 --> 00:04:17.819 this specific moment in 1966 South Africa that 00:04:17.819 --> 00:04:19.980 turned a single party into a national crisis? 00:04:20.360 --> 00:04:22.259 Well, according to the historical context in 00:04:22.259 --> 00:04:24.040 our source, it comes down to the ideological 00:04:24.040 --> 00:04:26.300 foundation of the government in power. At this 00:04:26.300 --> 00:04:28.279 time, South Africa was governed by the apartheid 00:04:28.279 --> 00:04:30.899 regime and the prevailing cultural and political 00:04:30.899 --> 00:04:33.519 atmosphere was deeply rooted in an African or 00:04:33.519 --> 00:04:36.379 Calvinist ethos. Let's break that term down for 00:04:36.379 --> 00:04:38.699 the listener. When we talk about an African or 00:04:38.699 --> 00:04:41.699 Calvinist ethos in the context of the 1960s apartheid 00:04:41.699 --> 00:04:44.480 government, We were talking about a fiercely 00:04:44.480 --> 00:04:47.060 conservative, strictly religious worldview, correct? 00:04:47.259 --> 00:04:49.819 Correct. It was a worldview that rigidly enforced 00:04:49.819 --> 00:04:52.399 social boundaries, racial segregation and strict 00:04:52.399 --> 00:04:55.339 moral conformity. And within that specific cultural 00:04:55.339 --> 00:04:58.139 framework, homosexuality and particularly male 00:04:58.139 --> 00:05:00.899 homosexuality was deemed fundamentally entirely 00:05:00.899 --> 00:05:03.740 unacceptable. It was viewed as a direct threat 00:05:03.740 --> 00:05:06.319 to the moral fabric the state was trying to engineer. 00:05:06.910 --> 00:05:09.470 So when you take a government deeply invested 00:05:09.470 --> 00:05:12.470 in that strict Calvinist morality and you confront 00:05:12.470 --> 00:05:15.930 them with a highly visible 300 -person gay gathering 00:05:15.930 --> 00:05:18.790 in a major suburb, the reaction is going to be 00:05:18.790 --> 00:05:21.870 severe. It was seen as a brazen defiance of the 00:05:21.870 --> 00:05:24.670 state's moral order. And that moral panic goes 00:05:24.670 --> 00:05:26.850 straight to the top. The reaction didn't just 00:05:26.850 --> 00:05:28.949 stay with local police departments' rating clubs. 00:05:29.230 --> 00:05:31.910 This cultural anxiety prompted the South African 00:05:31.910 --> 00:05:35.839 parliament to step in formally. In 1968, two 00:05:35.839 --> 00:05:38.740 years after the Forestown raid, Parliament convened 00:05:38.740 --> 00:05:40.839 a select committee. Yes, they did. Their express 00:05:40.839 --> 00:05:43.360 purpose was to draft new amendments to the existing 00:05:43.360 --> 00:05:46.339 Immorality Act. They wanted to officially close 00:05:46.339 --> 00:05:49.319 that legal gap we talked about earlier, the loophole 00:05:49.319 --> 00:05:51.800 that allowed men to touch or kiss without facing 00:05:51.800 --> 00:05:54.740 prosecution. The machinery of the state was mobilized 00:05:54.740 --> 00:05:57.079 purely to address the anxiety generated by that 00:05:57.079 --> 00:06:00.360 one party. They spent months in the select committee 00:06:00.360 --> 00:06:02.399 trying to figure out how to draft a law that 00:06:02.399 --> 00:06:04.980 could criminalize affection without inadvertently 00:06:04.980 --> 00:06:07.379 criminalizing everyday non -sexual interactions. 00:06:07.699 --> 00:06:11.399 It is a very difficult needle to thread legally. 00:06:11.639 --> 00:06:14.040 Here's where it gets really interesting. Because 00:06:14.040 --> 00:06:17.360 the result of that 1968 select committee is the 00:06:17.360 --> 00:06:20.540 exact legislation we are dissecting today. In 00:06:20.540 --> 00:06:23.720 1969, Parliament enacted the Immorality Amendment 00:06:23.720 --> 00:06:26.639 Act, which officially introduced Section 20A. 00:06:26.779 --> 00:06:29.660 And the wording is so important here. It is wild. 00:06:29.920 --> 00:06:31.980 We need to look at the exact wording they landed 00:06:31.980 --> 00:06:34.939 on. The overarching prohibition reads, quote, 00:06:35.120 --> 00:06:38.259 Acts committed between men at a party and which 00:06:38.259 --> 00:06:41.199 are calculated to stimulate sexual passion or 00:06:41.199 --> 00:06:44.550 to give sexual gratification. It is incredibly 00:06:44.550 --> 00:06:46.910 sweeping language. It is. And then subsection 00:06:46.910 --> 00:06:49.389 one gets even more specific. It says a male person 00:06:49.389 --> 00:06:51.290 who commits with another male person at a party, 00:06:51.370 --> 00:06:53.910 an act which is calculated to stimulate sexual 00:06:53.910 --> 00:06:56.589 passion or to give sexual gratification, shall 00:06:56.589 --> 00:06:58.670 be guilty of an offense. Notice the phrasing 00:06:58.670 --> 00:07:00.930 they chose there, calculated to stimulate sexual 00:07:00.930 --> 00:07:03.329 passion. They aren't just outlawing specific 00:07:03.329 --> 00:07:05.509 physical acts anymore like the old Roman Dutch 00:07:05.509 --> 00:07:08.189 law did. They are attempting to outlaw the intent 00:07:08.189 --> 00:07:10.870 behind the act as long as it happens at what 00:07:10.870 --> 00:07:13.939 they define as a party. But the true mechanical 00:07:13.939 --> 00:07:16.579 heart of this law, the part that earns it, the 00:07:16.579 --> 00:07:18.959 historical nickname, the men at a party clause, 00:07:19.220 --> 00:07:22.100 is found right below that in subsection two. 00:07:22.379 --> 00:07:25.220 This is the part that completely breaks my brain, 00:07:25.319 --> 00:07:27.319 because if you were going to make it a criminal 00:07:27.319 --> 00:07:29.839 offense to do something at a party, you have 00:07:29.839 --> 00:07:32.339 to legally define what a party is. You can't 00:07:32.339 --> 00:07:34.639 just leave that up to the imagination of a beat 00:07:34.639 --> 00:07:37.079 cop. Exactly. And this is where the legal definition 00:07:37.079 --> 00:07:40.779 completely divorces from reality. In subsection 00:07:40.779 --> 00:07:44.220 2, the government legally defined a party as, 00:07:44.300 --> 00:07:46.779 and this is a quote, any occasion where more 00:07:46.779 --> 00:07:49.420 than two persons are present. I really want you 00:07:49.420 --> 00:07:51.100 to think about the logistics of that for a second. 00:07:51.420 --> 00:07:53.639 Any occasion where more than two persons are 00:07:53.639 --> 00:07:56.720 present. Three people. If you have three men 00:07:56.720 --> 00:07:59.439 standing in a kitchen, under section 20A, you 00:07:59.439 --> 00:08:03.189 are now legally at a party. It completely weaponizes 00:08:03.189 --> 00:08:06.170 everyday life. Think about the sheer paranoia 00:08:06.170 --> 00:08:07.949 this would inject into your daily routine if 00:08:07.949 --> 00:08:09.889 you were living under this jurisdiction. Unbelievable. 00:08:10.170 --> 00:08:13.269 The law took the old baseline, which didn't penalize 00:08:13.269 --> 00:08:15.970 mere touching, and added this bizarre headcount 00:08:15.970 --> 00:08:18.670 threshold. If you and a partner are showing affection 00:08:18.670 --> 00:08:21.290 in your own home and a roommate, a repairman, 00:08:21.350 --> 00:08:23.629 or a third friend simply walks into the room, 00:08:23.730 --> 00:08:25.930 your interaction has just crossed a criminal 00:08:25.930 --> 00:08:28.399 threshold. You're at a party. You are now instantly 00:08:28.399 --> 00:08:31.220 at a legally defined party, provided a police 00:08:31.220 --> 00:08:33.299 officer decides your actions were calculated 00:08:33.299 --> 00:08:36.700 to stimulate sexual passion. And the stakes for 00:08:36.700 --> 00:08:38.759 crossing that threshold were incredibly high. 00:08:39.259 --> 00:08:42.019 This wasn't a minor citation. The prescribed 00:08:42.019 --> 00:08:45.299 penalty for violating Section 20A was a fine 00:08:45.299 --> 00:08:48.220 of up to R4 ,000 or imprisonment for up to two 00:08:48.220 --> 00:08:50.820 years or both. You are looking at two years in 00:08:50.820 --> 00:08:52.899 prison because a third person happened to exist 00:08:52.899 --> 00:08:55.690 in the same airspace as you. It transforms the 00:08:55.690 --> 00:08:58.169 mere presence of a third person into an unwitting 00:08:58.169 --> 00:09:00.909 catalyst for a severe crime. It is a chilling 00:09:00.909 --> 00:09:03.250 example of a state attempting to enforce its 00:09:03.250 --> 00:09:06.450 moral ethos by micromanaging the physical proximity 00:09:06.450 --> 00:09:09.450 and the exact headcount of its citizens. Every 00:09:09.450 --> 00:09:11.970 casual gathering of three or more men was technically 00:09:11.970 --> 00:09:14.509 a massive legal risk if the authorities chose 00:09:14.509 --> 00:09:16.970 to target you. OK, I get the theory of the law. 00:09:17.070 --> 00:09:20.110 I see the text on the page. But how does a justice 00:09:20.110 --> 00:09:23.879 system actually enforce a law? that defines a 00:09:23.879 --> 00:09:27.559 party as three people. It seems like an absolute 00:09:27.559 --> 00:09:29.879 logistical nightmare. Did the police really just 00:09:29.879 --> 00:09:31.860 wander around counting heads in living rooms? 00:09:32.360 --> 00:09:34.659 They absolutely tried. And the historical record 00:09:34.659 --> 00:09:37.419 gives us a highly specific, almost theatrical 00:09:37.419 --> 00:09:41.259 court case from 1987 that perfectly illustrates 00:09:41.259 --> 00:09:44.120 the sheer unworkability of this law in practice. 00:09:44.440 --> 00:09:47.080 Of this case. Yeah. It exposes exactly what happens 00:09:47.080 --> 00:09:49.220 when you force a justice system to operate on 00:09:49.220 --> 00:09:52.759 absurd definitions. The 1987 bathhouse case. 00:09:52.899 --> 00:09:54.259 Yes. I want to set the scene for you because 00:09:54.259 --> 00:09:56.320 it plays out like a bizarre comedy of errors. 00:09:56.559 --> 00:09:59.500 It's 1987, 18 years after the law was passed. 00:09:59.820 --> 00:10:02.620 We were in a gay bathhouse. two men alone in 00:10:02.620 --> 00:10:05.500 a room. Just two. Suddenly, a police officer 00:10:05.500 --> 00:10:07.659 enters the room and switches on the light. The 00:10:07.659 --> 00:10:09.600 absolute second the light comes on, the two men 00:10:09.600 --> 00:10:12.320 immediately jump apart. And that right there, 00:10:12.360 --> 00:10:14.840 that exact moment, results in a criminal conviction 00:10:14.840 --> 00:10:17.519 under Section 20A. Because, according to the 00:10:17.519 --> 00:10:20.019 police officer's logic, the moment he entered 00:10:20.019 --> 00:10:22.600 the room, there were now three people present, 00:10:22.779 --> 00:10:26.340 more than two persons. Therefore, the room was 00:10:26.340 --> 00:10:29.379 legally a party, and whatever acts were occurring 00:10:29.379 --> 00:10:31.700 before the men jumped apart were now a criminal 00:10:31.700 --> 00:10:34.679 offense. Wait, so the police officer effectively 00:10:34.679 --> 00:10:37.740 brought the party with him. His own presence 00:10:37.740 --> 00:10:39.840 is what triggered the crime he was arresting 00:10:39.840 --> 00:10:41.879 them for. That was the initial argument that 00:10:41.879 --> 00:10:44.659 led to the conviction, yes. But the legal mechanics 00:10:44.659 --> 00:10:47.399 of the appeal are absolutely fascinating. The 00:10:47.399 --> 00:10:50.080 convicted men appealed the decision, and the 00:10:50.080 --> 00:10:53.080 case made its way up to the Supreme Court. The 00:10:53.080 --> 00:10:55.240 Supreme Court reviewed the facts and actually 00:10:55.240 --> 00:10:58.059 reversed the conviction. They threw it out. Did 00:10:58.059 --> 00:10:59.759 they throw it out because they realized defining 00:10:59.759 --> 00:11:02.440 a party as three people is ridiculous? No, they 00:11:02.440 --> 00:11:04.399 threw it out based on an incredibly microscopic 00:11:04.399 --> 00:11:07.419 interpretation of the timeline. The Supreme Court 00:11:07.419 --> 00:11:10.019 ruled that a party was not legally created by 00:11:10.019 --> 00:11:12.840 the sudden presence of the police officer. And 00:11:12.840 --> 00:11:14.679 the specific reason they give was because the 00:11:14.679 --> 00:11:16.600 two men had jumped apart the moment the light 00:11:16.600 --> 00:11:18.620 was switched on. Let me make sure I'm following 00:11:18.620 --> 00:11:21.879 this. The highest court in the land. ruled that 00:11:21.879 --> 00:11:23.779 because the men stopped whatever they were doing 00:11:23.779 --> 00:11:25.799 the exact millisecond the third person entered 00:11:25.799 --> 00:11:28.919 the room, the legal threshold for a party wasn't 00:11:28.919 --> 00:11:30.940 met. If we connect this to the bigger picture, 00:11:31.120 --> 00:11:34.039 it beautifully illustrates the logistical absurdity 00:11:34.039 --> 00:11:36.919 of this entire legal endeavor. You have a formal 00:11:36.919 --> 00:11:40.500 justice system. Supreme Court judges forced to 00:11:40.500 --> 00:11:43.000 sit in a courtroom and debate the exact timing 00:11:43.000 --> 00:11:45.539 of a light switch being flipped versus the human 00:11:45.539 --> 00:11:47.720 reaction time of two individuals jumping apart. 00:11:48.120 --> 00:11:51.039 That is insane. The entire weight of a criminal 00:11:51.039 --> 00:11:53.559 conviction involving potential prison time and 00:11:53.559 --> 00:11:56.419 massive fines hinged on the microscopic gap in 00:11:56.419 --> 00:11:59.179 time between an officer opening a door and two 00:11:59.179 --> 00:12:01.860 bodies physically separating. It's astounding. 00:12:01.899 --> 00:12:04.399 It feels like a legal logic puzzle that completely 00:12:04.399 --> 00:12:07.080 lost sight of human reality. The justice system 00:12:07.080 --> 00:12:08.960 tied itself in knots over the definition of the 00:12:08.960 --> 00:12:11.059 word party because the definition Parliament 00:12:11.059 --> 00:12:13.639 wrote in 1969 was fundamentally absurd to begin 00:12:13.639 --> 00:12:16.259 with. It is the ultimate example of a legal system 00:12:16.259 --> 00:12:18.899 trapping itself in its own rigid architecture. 00:12:19.220 --> 00:12:21.679 When you cast a net that wide defining a party 00:12:21.679 --> 00:12:24.220 as three people just so you can persecute a specific 00:12:24.220 --> 00:12:27.860 group. You force your highest courts to engage 00:12:27.860 --> 00:12:30.179 in these ridiculous hair -splitting arguments 00:12:30.179 --> 00:12:32.799 about who is standing where when a light bulb 00:12:32.799 --> 00:12:36.419 illuminated. It's an enforcement nightmare. So 00:12:36.419 --> 00:12:38.600 what does this all mean? How do we get from a 00:12:38.600 --> 00:12:40.879 Supreme Court seriously debating light switches 00:12:40.879 --> 00:12:44.240 in 1987 to where things stand today? Because 00:12:44.240 --> 00:12:47.139 thankfully, Section 20A is no longer enforceable 00:12:47.139 --> 00:12:49.679 law. The downfall of this clause ties directly 00:12:49.679 --> 00:12:52.100 into the massive political and social upheavals 00:12:52.100 --> 00:12:54.659 happening in South Africa at the end of the apartheid 00:12:54.659 --> 00:12:57.529 regime. The shifting legal landscape of the 1990s 00:12:57.529 --> 00:12:59.549 completely rewrote the foundation that Section 00:12:59.549 --> 00:13:02.210 28 was built upon. The entire system of apartheid 00:13:02.210 --> 00:13:04.450 was dismantled and the new legal framework fundamentally 00:13:04.450 --> 00:13:07.870 rejected the old Afrikaner Calvinist ethos that 00:13:07.870 --> 00:13:10.129 created these moral panics. There were two major 00:13:10.129 --> 00:13:12.620 milestones here. First, the interim constitution 00:13:12.620 --> 00:13:15.759 was adopted in 1994. Then the final constitution 00:13:15.759 --> 00:13:18.659 replaced it in 1997. And both of those documents 00:13:18.659 --> 00:13:21.200 did something revolutionary compared to the previous 00:13:21.200 --> 00:13:24.259 era of South African law. They included equality 00:13:24.259 --> 00:13:27.159 clauses that explicitly prohibited discrimination 00:13:27.159 --> 00:13:30.940 on the basis of sex, gender, or sexual orientation. 00:13:31.559 --> 00:13:34.179 Which immediately puts a massive glaring target 00:13:34.179 --> 00:13:37.100 on the back of the men at a party clause. You 00:13:37.100 --> 00:13:39.740 cannot have a supreme constitution that protects 00:13:39.740 --> 00:13:42.820 sexual orientation alongside a criminal statute 00:13:42.820 --> 00:13:45.139 that throws men in prison for being in a room 00:13:45.139 --> 00:13:47.600 with a third person. The conflict was undeniable. 00:13:47.860 --> 00:13:49.799 And it didn't take long for that conflict to 00:13:49.799 --> 00:13:52.940 be formally challenged. In 1997, an organization 00:13:52.940 --> 00:13:55.480 called the National Coalition for Gay and Lesbian 00:13:55.480 --> 00:13:58.100 Equality launched a constitutional challenge 00:13:58.100 --> 00:14:00.519 in the Witwatersrand local division of the high 00:14:00.519 --> 00:14:03.330 court. Their argument was incredibly straightforward. 00:14:03.669 --> 00:14:06.190 The old common law offenses against sodomy and 00:14:06.190 --> 00:14:08.450 unnatural sexual acts, along with the Section 00:14:08.450 --> 00:14:11.570 28 men at a party clause, directly infringed 00:14:11.570 --> 00:14:13.690 on the new equality protections of the Constitution. 00:14:14.110 --> 00:14:16.750 But the most revealing part of that 1997 challenge 00:14:16.750 --> 00:14:19.509 isn't just the argument. It's the response from 00:14:19.509 --> 00:14:21.940 the state. When the National Coalition brought 00:14:21.940 --> 00:14:24.200 this challenge forward, the South African government 00:14:24.200 --> 00:14:26.519 didn't even bother to oppose the application. 00:14:26.879 --> 00:14:29.039 That silence from the government is so telling. 00:14:29.139 --> 00:14:31.799 It speaks volumes. It shows how completely the 00:14:31.799 --> 00:14:34.620 cultural and legal tide had turned. Just a few 00:14:34.620 --> 00:14:38.519 decades earlier, in 1966, a 300 -person gathering 00:14:38.519 --> 00:14:41.679 in Forest Town sparked a nationwide moral panic, 00:14:41.960 --> 00:14:45.419 police raids across multiple cities, and a specialized 00:14:45.419 --> 00:14:48.419 parliamentary committee. Yeah. The state utilized 00:14:48.419 --> 00:14:51.429 all its power. to crush that community. Now, 00:14:51.450 --> 00:14:54.570 in 1997, when the laws born from that exact panic 00:14:54.570 --> 00:14:56.789 were challenged, the state essentially stepped 00:14:56.789 --> 00:14:59.230 aside and offered zero defense. It's a profound 00:14:59.230 --> 00:15:01.610 shift in power. And because the challenge was 00:15:01.610 --> 00:15:04.190 unopposed, it paved the way for a swift and pivotal 00:15:04.190 --> 00:15:07.610 ruling. In May of 1998, Judge Heyer handed down 00:15:07.610 --> 00:15:09.629 a judgment and an order that struck down all 00:15:09.629 --> 00:15:11.929 of those impugned laws. The sodomy laws were 00:15:11.929 --> 00:15:14.309 gone. The unnatural sexual acts laws were gone. 00:15:14.429 --> 00:15:16.950 And our focus today, the men at a party clause, 00:15:17.230 --> 00:15:20.159 was entirely struck down. But the South African 00:15:20.159 --> 00:15:23.679 legal system has a specific architectural requirement 00:15:23.679 --> 00:15:26.820 for this kind of sweeping change. A high court 00:15:26.820 --> 00:15:29.100 judge like Judge Hager can strike down an act 00:15:29.100 --> 00:15:31.740 of parliament, but that order isn't finalized 00:15:31.740 --> 00:15:34.299 immediately. It must be referred to the Constitutional 00:15:34.299 --> 00:15:36.360 Court for confirmation. Right. I guess your step. 00:15:36.440 --> 00:15:38.320 It's an extra layer of supreme constitutional 00:15:38.320 --> 00:15:41.200 review. So the confirmation case was presented 00:15:41.200 --> 00:15:43.399 to the Constitutional Court later that year in 00:15:43.399 --> 00:15:46.740 August of 1998. And the result of that confirmation 00:15:46.740 --> 00:15:50.950 case is incredibly. powerful. In October of 1998, 00:15:51.370 --> 00:15:53.909 the Constitutional Court issued a unanimous judgment 00:15:53.909 --> 00:15:57.190 confirming Judge Hare's order. Every single justice 00:15:57.190 --> 00:16:00.649 agreed. Unanimity at the highest level of a nation's 00:16:00.649 --> 00:16:03.490 court system is always significant. But the actual 00:16:03.490 --> 00:16:05.730 text of the judgment is even more striking than 00:16:05.730 --> 00:16:08.340 the vote count. Justice Lawrence Ackerman wrote 00:16:08.340 --> 00:16:10.240 the judgment for the court, and he absolutely 00:16:10.240 --> 00:16:12.559 did not mince words when evaluating the history 00:16:12.559 --> 00:16:14.960 of Section 20A. He described the clause as having 00:16:14.960 --> 00:16:17.720 an absurdly discriminatory purpose and impact. 00:16:18.340 --> 00:16:21.100 Absurdly discriminatory. That perfectly captures 00:16:21.100 --> 00:16:23.419 the bizarre three -person party definition we 00:16:23.419 --> 00:16:25.620 were breaking down earlier. It was absurd on 00:16:25.620 --> 00:16:27.740 its face. And he went much further than that. 00:16:28.059 --> 00:16:31.299 Evaluating the 1969 law and the moral panic that 00:16:31.299 --> 00:16:34.179 spawned it, Justice Ackerman wrote, this is a 00:16:34.179 --> 00:16:36.799 direct quote, there is nothing before us to show 00:16:36.799 --> 00:16:38.779 that the provision was motivated by anything 00:16:38.779 --> 00:16:42.340 other than rank prejudice. Rank prejudice. That 00:16:42.340 --> 00:16:45.559 is the highest court in the land officially looking 00:16:45.559 --> 00:16:48.000 back at the history of this law and concluding 00:16:48.000 --> 00:16:49.840 that it had absolutely nothing to do with public 00:16:49.840 --> 00:16:53.080 safety or legitimate legal ordering or justice. 00:16:53.279 --> 00:16:57.250 It was just raw codified bigotry. It is a remarkable, 00:16:57.389 --> 00:17:00.350 devastating condemnation of the past by the legal 00:17:00.350 --> 00:17:02.950 institutions of the present. It stripped away 00:17:02.950 --> 00:17:05.750 all the respectable legal jargon, all the subsections 00:17:05.750 --> 00:17:08.170 and the definitions of a party, and called it 00:17:08.170 --> 00:17:10.930 exactly what it was. Just to add the final piece 00:17:10.930 --> 00:17:14.329 of historical housekeeping here. After that October 00:17:14.329 --> 00:17:17.569 1998 constitutional court order, Section 20A 00:17:17.569 --> 00:17:20.230 was completely dead in the water. It was totally 00:17:20.230 --> 00:17:22.269 unenforceable. No one could be arrested or tried 00:17:22.269 --> 00:17:24.670 under it. But it actually wasn't formally physically 00:17:24.670 --> 00:17:26.869 scraped off the printed pages of the statute 00:17:26.869 --> 00:17:29.690 book until 2007 when it was finally removed by 00:17:29.690 --> 00:17:31.829 the Criminal Law Amendment Act. It was a final 00:17:31.829 --> 00:17:34.549 administrative cleanup of a very dark legal chapter. 00:17:35.210 --> 00:17:37.710 It took almost 40 years from its inception in 00:17:37.710 --> 00:17:40.029 the late 60s to be physically erased from the 00:17:40.029 --> 00:17:42.250 books, even though its actual power had been 00:17:42.250 --> 00:17:44.250 broken by the Constitution nine years prior. 00:17:44.839 --> 00:17:47.039 It really is an incredible sweeping journey when 00:17:47.039 --> 00:17:48.720 you step back and look at the whole timeline 00:17:48.720 --> 00:17:51.839 we've explored today. We started in 1966 with 00:17:51.839 --> 00:17:54.460 a moral panic sparked by a single 300 -person 00:17:54.460 --> 00:17:57.900 gathering in a Johannesburg suburb. We watched 00:17:57.900 --> 00:18:00.140 that panic get funneled into Parliament, resulting 00:18:00.140 --> 00:18:04.140 in a 1969 law so broad and paranoid that it turned 00:18:04.140 --> 00:18:06.460 three men standing in a room into a criminalized 00:18:06.460 --> 00:18:09.430 party. We saw the bizarre logistical nightmare 00:18:09.430 --> 00:18:12.269 of the 1980s, where Supreme Court justices were 00:18:12.269 --> 00:18:14.750 forced to count people in bathhouses and time 00:18:14.750 --> 00:18:17.369 the jumping apart of suspects. And finally, we 00:18:17.369 --> 00:18:19.609 saw the entire apparatus dismantled by the new 00:18:19.609 --> 00:18:22.549 constitutions of the 1990s, culminating in a 00:18:22.549 --> 00:18:25.049 unanimous constitutional court rejection of the 00:18:25.049 --> 00:18:26.750 rank prejudice that built the law in the first 00:18:26.750 --> 00:18:29.069 place. This raises an important question for 00:18:29.069 --> 00:18:30.750 you to consider as you process this history. 00:18:30.930 --> 00:18:33.630 It forces us to think deeply about how societies 00:18:33.630 --> 00:18:37.160 operate and how the law can be manipulated. today 00:18:37.160 --> 00:18:40.539 how incredibly complex, legal, jargon -like drafting 00:18:40.539 --> 00:18:42.960 specific subsections to define the word party 00:18:42.960 --> 00:18:45.740 can be meticulously constructed to mask very 00:18:45.740 --> 00:18:48.480 simple, very base discrimination. Exactly. The 00:18:48.480 --> 00:18:50.799 language of the law can be entirely weaponized 00:18:50.799 --> 00:18:52.920 to enforce the moral anxieties of a specific 00:18:52.920 --> 00:18:55.759 era. It dresses up prejudice in the highly respectable 00:18:55.759 --> 00:18:58.400 clothes of statutes, fines, and prison sentences. 00:18:58.819 --> 00:19:00.500 I want to thank you so much for joining us on 00:19:00.500 --> 00:19:03.119 this deep dive. It is always a privilege to explore 00:19:03.119 --> 00:19:05.220 these forgotten mechanical corners of history 00:19:05.220 --> 00:19:07.579 with you. We've talked a lot today about how 00:19:07.579 --> 00:19:10.420 a simple, seemingly objective threshold like 00:19:10.420 --> 00:19:13.079 just counting to three was used by a government 00:19:13.079 --> 00:19:16.359 to enforce a deeply subjective bias. I want to 00:19:16.359 --> 00:19:18.240 leave you with a final provocative thought to 00:19:18.240 --> 00:19:21.559 mull over long after we sign off today. If an 00:19:21.559 --> 00:19:23.960 entire national legal system could spend decades 00:19:23.960 --> 00:19:26.740 enthusiastically enforcing a law that hinged 00:19:26.740 --> 00:19:29.240 entirely on the exact moment a third person walked 00:19:29.240 --> 00:19:31.980 into a room, what other seemingly objective legal 00:19:31.980 --> 00:19:34.220 definitions in our world today are actually just 00:19:34.220 --> 00:19:36.740 relying on the exact same kind of rank prejudice? 00:19:37.160 --> 00:19:38.119 We'll see you next time.