Imagine for a second that the entire difference
between a perfectly legal gathering and a criminal
offense, one that could land you in prison for
two years, hinged entirely on counting to three.
Right. Just three. Literally. Just the presence
of a third person walking into a room. Today's
deep dive is taking us into a highly specific,
totally fascinating and frankly baffling piece
of historical legislation from South Africa.
It really is baffling. It is. We're going to
explore Section 20A of the South African Immorality
Act of 1957. Yeah. So if you have ever heard
whispers of the notorious men in a party clause.
This is exactly what we're pulling apart today.
Our mission here is to look at the hard mechanics
of this law and understand how societal anxieties
don't just hover in the cultural atmosphere.
They can actually be codified into very rigid,
very bizarre legal statutes. It's a phenomenal
piece of legal history to dissect. We're going
to be looking at a deeply paranoid era of South
African law. We often think of legislation as
this dry, objective framework. But statutes are
actually incredibly sensitive barometers. They
measure the... the exact temperature, the specific
fears, and the cultural boundaries of the society
that drafts them. And Section 20A is the perfect
study of what happens when a government attempts
to translate a very specific cultural panic into
the uncompromising mechanical language of the
justice system. It really forces us to look at
how a state tries to micromanage human proximity.
OK, let's unpack this, because to really grasp
why Section 20A is such a striking piece of legislation,
we have to establish what the legal baseline
looked like before this clause was ever drafted.
Right. The existing foundation. Exactly. The
legal foundation in South Africa at the time
was the Roman Dutch common law. And based on
the Wikipedia article we're sourcing today, that
common law already had some very strict boundaries
in place regarding sexual behavior. It already
criminalized what it termed sodomy and unnatural
sexual acts. And those terms weren't just vague
placeholders. The law had very specific definitions
for what constituted an unnatural sexual act
between men. It explicitly covered anal sex,
oral sex, mutual masturbation, and intercruel
sex, which is essentially thigh sex. net for
prosecuting these specific physical acts was
already cast quite wide under the existing common
law framework. Right. But here is the crucial
distinction, and this is the gap that sets up
our entire deep dive today. Those older existing
common laws did not apply to men who were merely
touching or kissing each other. Exactly. They
prosecuted the specific sexual acts you just
listed, but they left a distinct legal gray area
when it came to simple physical affection or,
you know, just proximity. That gap was the boundary
line. You had a legal framework that punished
the act but could not legally penalize the affection.
And to understand how that specific boundary
was completely demolished, we have to look at
the catalyst. Major legal shifts rarely happen
in a vacuum. They usually need a spark. Yes,
a highly visible spark. In this case, that spark
was a police raid in January of 1966. A raid
on a party, right? Exactly. The police raided
a gathering in Forestown, which is a suburb of
Johannesburg. The target was a gay party. And
there is one operational detail about this event
that changes everything. The size. Yes. There
were roughly 300 men present at this gathering.
Wait, 300 people? That is not a quiet get -together
in someone's living room. No. That is a massive,
highly visible event. But how does a single party,
even a large one, trigger a national legal overhaul?
I mean, people throw large parties all the time
without the government completely rewriting the
criminal code. What's fascinating here is how
this single event in Forest Town interacted with
the specific cultural machinery of the time.
It triggered an absolute cascade of reactions,
snowballing into a full blown moral panic. Wow.
This wasn't just an isolated raid where the police
made some arrests and went home. The Forest Town
raid became the domino that set off a nationwide
crackdown, leading to a whole series of subsequent
police raids on clubs, private parties and gatherings
across various other South African cities. But
why? massive overreaction. What was it about
this specific moment in 1966 South Africa that
turned a single party into a national crisis?
Well, according to the historical context in
our source, it comes down to the ideological
foundation of the government in power. At this
time, South Africa was governed by the apartheid
regime and the prevailing cultural and political
atmosphere was deeply rooted in an African or
Calvinist ethos. Let's break that term down for
the listener. When we talk about an African or
Calvinist ethos in the context of the 1960s apartheid
government, We were talking about a fiercely
conservative, strictly religious worldview, correct?
Correct. It was a worldview that rigidly enforced
social boundaries, racial segregation and strict
moral conformity. And within that specific cultural
framework, homosexuality and particularly male
homosexuality was deemed fundamentally entirely
unacceptable. It was viewed as a direct threat
to the moral fabric the state was trying to engineer.
So when you take a government deeply invested
in that strict Calvinist morality and you confront
them with a highly visible 300 -person gay gathering
in a major suburb, the reaction is going to be
severe. It was seen as a brazen defiance of the
state's moral order. And that moral panic goes
straight to the top. The reaction didn't just
stay with local police departments' rating clubs.
This cultural anxiety prompted the South African
parliament to step in formally. In 1968, two
years after the Forestown raid, Parliament convened
a select committee. Yes, they did. Their express
purpose was to draft new amendments to the existing
Immorality Act. They wanted to officially close
that legal gap we talked about earlier, the loophole
that allowed men to touch or kiss without facing
prosecution. The machinery of the state was mobilized
purely to address the anxiety generated by that
one party. They spent months in the select committee
trying to figure out how to draft a law that
could criminalize affection without inadvertently
criminalizing everyday non -sexual interactions.
It is a very difficult needle to thread legally.
Here's where it gets really interesting. Because
the result of that 1968 select committee is the
exact legislation we are dissecting today. In
1969, Parliament enacted the Immorality Amendment
Act, which officially introduced Section 20A.
And the wording is so important here. It is wild.
We need to look at the exact wording they landed
on. The overarching prohibition reads, quote,
Acts committed between men at a party and which
are calculated to stimulate sexual passion or
to give sexual gratification. It is incredibly
sweeping language. It is. And then subsection
one gets even more specific. It says a male person
who commits with another male person at a party,
an act which is calculated to stimulate sexual
passion or to give sexual gratification, shall
be guilty of an offense. Notice the phrasing
they chose there, calculated to stimulate sexual
passion. They aren't just outlawing specific
physical acts anymore like the old Roman Dutch
law did. They are attempting to outlaw the intent
behind the act as long as it happens at what
they define as a party. But the true mechanical
heart of this law, the part that earns it, the
historical nickname, the men at a party clause,
is found right below that in subsection two.
This is the part that completely breaks my brain,
because if you were going to make it a criminal
offense to do something at a party, you have
to legally define what a party is. You can't
just leave that up to the imagination of a beat
cop. Exactly. And this is where the legal definition
completely divorces from reality. In subsection
2, the government legally defined a party as,
and this is a quote, any occasion where more
than two persons are present. I really want you
to think about the logistics of that for a second.
Any occasion where more than two persons are
present. Three people. If you have three men
standing in a kitchen, under section 20A, you
are now legally at a party. It completely weaponizes
everyday life. Think about the sheer paranoia
this would inject into your daily routine if
you were living under this jurisdiction. Unbelievable.
The law took the old baseline, which didn't penalize
mere touching, and added this bizarre headcount
threshold. If you and a partner are showing affection
in your own home and a roommate, a repairman,
or a third friend simply walks into the room,
your interaction has just crossed a criminal
threshold. You're at a party. You are now instantly
at a legally defined party, provided a police
officer decides your actions were calculated
to stimulate sexual passion. And the stakes for
crossing that threshold were incredibly high.
This wasn't a minor citation. The prescribed
penalty for violating Section 20A was a fine
of up to R4 ,000 or imprisonment for up to two
years or both. You are looking at two years in
prison because a third person happened to exist
in the same airspace as you. It transforms the
mere presence of a third person into an unwitting
catalyst for a severe crime. It is a chilling
example of a state attempting to enforce its
moral ethos by micromanaging the physical proximity
and the exact headcount of its citizens. Every
casual gathering of three or more men was technically
a massive legal risk if the authorities chose
to target you. OK, I get the theory of the law.
I see the text on the page. But how does a justice
system actually enforce a law? that defines a
party as three people. It seems like an absolute
logistical nightmare. Did the police really just
wander around counting heads in living rooms?
They absolutely tried. And the historical record
gives us a highly specific, almost theatrical
court case from 1987 that perfectly illustrates
the sheer unworkability of this law in practice.
Of this case. Yeah. It exposes exactly what happens
when you force a justice system to operate on
absurd definitions. The 1987 bathhouse case.
Yes. I want to set the scene for you because
it plays out like a bizarre comedy of errors.
It's 1987, 18 years after the law was passed.
We were in a gay bathhouse. two men alone in
a room. Just two. Suddenly, a police officer
enters the room and switches on the light. The
absolute second the light comes on, the two men
immediately jump apart. And that right there,
that exact moment, results in a criminal conviction
under Section 20A. Because, according to the
police officer's logic, the moment he entered
the room, there were now three people present,
more than two persons. Therefore, the room was
legally a party, and whatever acts were occurring
before the men jumped apart were now a criminal
offense. Wait, so the police officer effectively
brought the party with him. His own presence
is what triggered the crime he was arresting
them for. That was the initial argument that
led to the conviction, yes. But the legal mechanics
of the appeal are absolutely fascinating. The
convicted men appealed the decision, and the
case made its way up to the Supreme Court. The
Supreme Court reviewed the facts and actually
reversed the conviction. They threw it out. Did
they throw it out because they realized defining
a party as three people is ridiculous? No, they
threw it out based on an incredibly microscopic
interpretation of the timeline. The Supreme Court
ruled that a party was not legally created by
the sudden presence of the police officer. And
the specific reason they give was because the
two men had jumped apart the moment the light
was switched on. Let me make sure I'm following
this. The highest court in the land. ruled that
because the men stopped whatever they were doing
the exact millisecond the third person entered
the room, the legal threshold for a party wasn't
met. If we connect this to the bigger picture,
it beautifully illustrates the logistical absurdity
of this entire legal endeavor. You have a formal
justice system. Supreme Court judges forced to
sit in a courtroom and debate the exact timing
of a light switch being flipped versus the human
reaction time of two individuals jumping apart.
That is insane. The entire weight of a criminal
conviction involving potential prison time and
massive fines hinged on the microscopic gap in
time between an officer opening a door and two
bodies physically separating. It's astounding.
It feels like a legal logic puzzle that completely
lost sight of human reality. The justice system
tied itself in knots over the definition of the
word party because the definition Parliament
wrote in 1969 was fundamentally absurd to begin
with. It is the ultimate example of a legal system
trapping itself in its own rigid architecture.
When you cast a net that wide defining a party
as three people just so you can persecute a specific
group. You force your highest courts to engage
in these ridiculous hair -splitting arguments
about who is standing where when a light bulb
illuminated. It's an enforcement nightmare. So
what does this all mean? How do we get from a
Supreme Court seriously debating light switches
in 1987 to where things stand today? Because
thankfully, Section 20A is no longer enforceable
law. The downfall of this clause ties directly
into the massive political and social upheavals
happening in South Africa at the end of the apartheid
regime. The shifting legal landscape of the 1990s
completely rewrote the foundation that Section
28 was built upon. The entire system of apartheid
was dismantled and the new legal framework fundamentally
rejected the old Afrikaner Calvinist ethos that
created these moral panics. There were two major
milestones here. First, the interim constitution
was adopted in 1994. Then the final constitution
replaced it in 1997. And both of those documents
did something revolutionary compared to the previous
era of South African law. They included equality
clauses that explicitly prohibited discrimination
on the basis of sex, gender, or sexual orientation.
Which immediately puts a massive glaring target
on the back of the men at a party clause. You
cannot have a supreme constitution that protects
sexual orientation alongside a criminal statute
that throws men in prison for being in a room
with a third person. The conflict was undeniable.
And it didn't take long for that conflict to
be formally challenged. In 1997, an organization
called the National Coalition for Gay and Lesbian
Equality launched a constitutional challenge
in the Witwatersrand local division of the high
court. Their argument was incredibly straightforward.
The old common law offenses against sodomy and
unnatural sexual acts, along with the Section
28 men at a party clause, directly infringed
on the new equality protections of the Constitution.
But the most revealing part of that 1997 challenge
isn't just the argument. It's the response from
the state. When the National Coalition brought
this challenge forward, the South African government
didn't even bother to oppose the application.
That silence from the government is so telling.
It speaks volumes. It shows how completely the
cultural and legal tide had turned. Just a few
decades earlier, in 1966, a 300 -person gathering
in Forest Town sparked a nationwide moral panic,
police raids across multiple cities, and a specialized
parliamentary committee. Yeah. The state utilized
all its power. to crush that community. Now,
in 1997, when the laws born from that exact panic
were challenged, the state essentially stepped
aside and offered zero defense. It's a profound
shift in power. And because the challenge was
unopposed, it paved the way for a swift and pivotal
ruling. In May of 1998, Judge Heyer handed down
a judgment and an order that struck down all
of those impugned laws. The sodomy laws were
gone. The unnatural sexual acts laws were gone.
And our focus today, the men at a party clause,
was entirely struck down. But the South African
legal system has a specific architectural requirement
for this kind of sweeping change. A high court
judge like Judge Hager can strike down an act
of parliament, but that order isn't finalized
immediately. It must be referred to the Constitutional
Court for confirmation. Right. I guess your step.
It's an extra layer of supreme constitutional
review. So the confirmation case was presented
to the Constitutional Court later that year in
August of 1998. And the result of that confirmation
case is incredibly. powerful. In October of 1998,
the Constitutional Court issued a unanimous judgment
confirming Judge Hare's order. Every single justice
agreed. Unanimity at the highest level of a nation's
court system is always significant. But the actual
text of the judgment is even more striking than
the vote count. Justice Lawrence Ackerman wrote
the judgment for the court, and he absolutely
did not mince words when evaluating the history
of Section 20A. He described the clause as having
an absurdly discriminatory purpose and impact.
Absurdly discriminatory. That perfectly captures
the bizarre three -person party definition we
were breaking down earlier. It was absurd on
its face. And he went much further than that.
Evaluating the 1969 law and the moral panic that
spawned it, Justice Ackerman wrote, this is a
direct quote, there is nothing before us to show
that the provision was motivated by anything
other than rank prejudice. Rank prejudice. That
is the highest court in the land officially looking
back at the history of this law and concluding
that it had absolutely nothing to do with public
safety or legitimate legal ordering or justice.
It was just raw codified bigotry. It is a remarkable,
devastating condemnation of the past by the legal
institutions of the present. It stripped away
all the respectable legal jargon, all the subsections
and the definitions of a party, and called it
exactly what it was. Just to add the final piece
of historical housekeeping here. After that October
1998 constitutional court order, Section 20A
was completely dead in the water. It was totally
unenforceable. No one could be arrested or tried
under it. But it actually wasn't formally physically
scraped off the printed pages of the statute
book until 2007 when it was finally removed by
the Criminal Law Amendment Act. It was a final
administrative cleanup of a very dark legal chapter.
It took almost 40 years from its inception in
the late 60s to be physically erased from the
books, even though its actual power had been
broken by the Constitution nine years prior.
It really is an incredible sweeping journey when
you step back and look at the whole timeline
we've explored today. We started in 1966 with
a moral panic sparked by a single 300 -person
gathering in a Johannesburg suburb. We watched
that panic get funneled into Parliament, resulting
in a 1969 law so broad and paranoid that it turned
three men standing in a room into a criminalized
party. We saw the bizarre logistical nightmare
of the 1980s, where Supreme Court justices were
forced to count people in bathhouses and time
the jumping apart of suspects. And finally, we
saw the entire apparatus dismantled by the new
constitutions of the 1990s, culminating in a
unanimous constitutional court rejection of the
rank prejudice that built the law in the first
place. This raises an important question for
you to consider as you process this history.
It forces us to think deeply about how societies
operate and how the law can be manipulated. today
how incredibly complex, legal, jargon -like drafting
specific subsections to define the word party
can be meticulously constructed to mask very
simple, very base discrimination. Exactly. The
language of the law can be entirely weaponized
to enforce the moral anxieties of a specific
era. It dresses up prejudice in the highly respectable
clothes of statutes, fines, and prison sentences.
I want to thank you so much for joining us on
this deep dive. It is always a privilege to explore
these forgotten mechanical corners of history
with you. We've talked a lot today about how
a simple, seemingly objective threshold like
just counting to three was used by a government
to enforce a deeply subjective bias. I want to
leave you with a final provocative thought to
mull over long after we sign off today. If an
entire national legal system could spend decades
enthusiastically enforcing a law that hinged
entirely on the exact moment a third person walked
into a room, what other seemingly objective legal
definitions in our world today are actually just
relying on the exact same kind of rank prejudice?
We'll see you next time.