By Nomfundo Manyathi-Jele

Justice Minister, Jeff Radebe, said that the justice system would aggressively respond to perpetrators who violently attack or discriminate against the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community. He added that the increasing spate of violence against LGBTI persons necessitated government to take an active role in coming up with effective measures to stop these heinous crimes. The Minister was speaking at the launch of the LGBTI programme on 29 April at Constitution Hill.

The programme aims to promote partnerships among government, civil society, business and the media in the fight against gender-based violence and to encourage communities to report such crimes.

The launch follows the work of the National Task Team that was set up by Minister Radebe in 2011 to develop a National Intervention Strategy that would be used as a guide to clamp down on violence against LGBTI persons.

Minister Radebe said that the equality clause in South Africa’s Constitution was one of the most progressive constitutional provisions in the world. He added that the Constitution lays the basis for the construction of a democratic, non-racial, non-sexist, united and prosperous society based on justice, equality, the rule of law and the inalienable human rights of all.

According to Minister Radebe South Africa was the first country in the world to prohibit discrimination based on sexual orientation legally. ‘We have a progressive legislative framework. We have legislated against discrimination on the grounds of sexual orientation in the workplace. In 1999 we introduced the Domestic Violence Act [116 of 1998] that classifies a same-sex relationship as a “domestic relationship”, in other words, thus qualifying to receive legal protection in terms of this Act. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the introduction of Equality Courts came about in an attempt to give effect to the text and spirit of the Constitution, in particular the promotion of equal enjoyment of all rights and freedoms by every person,’ he said.

South Africa legalised same-sex marriages and both joint and step adoption by same-sex couples. In addition, intersex people are permitted through the Alteration of Sex Description and Sex Status Act 49 of 2003 to undergo a sex change.

Minister Radebe said that the National Task Team is making significant progress in realising its mandate. It recently finalised the National Intervention Strategy, which assists the government to deal with violence perpetrated against LGBTI people, adding that the strategy covers –

• developing prevention programmes to address violence and discrimination perpetrated on the grounds of sexual orientation and gender identity;
• improving the criminal justice system’s response time in addressing such violence and discrimination; and
• strengthening the capacity of state and civil society institutions and systems to address and prevent such violence and discrimination.

Minister Radebe said that the strategy would be complemented by the finalisation of the legislative framework on hate crimes. ‘Developing specific legislation on hate crimes will have a number of advantages. It will help create a shared definition of hate crimes amongst all those involved in the criminal justice system and it will send a clear message that hate crimes will not be tolerated in South Africa. It will provide additional tools for investigators and prosecutors to hold the perpetrators of hate crimes accountable, and will provide a means to monitor efforts and trends in addressing hate crimes. Furthermore it will allow for effective coordination between government service providers in order to reduce the impact of secondary victimisation on hate crimes victims.’

Minister Radebe added that a Rapid Response Team had been established to attend to pending and reported cases in the criminal justice system where hate crimes had been committed against LGBTI persons. He said that progress was made in speeding up cases adding that of the cases received from civil society organisations:

• Fourteen have been finalised, five of which were with imprisonment sentences of 22 years; ten years; 15 years; 15 years and 20 years, respectively.
• Nineteen cases are pending.
• Eight cases cannot be traced due to incomplete or incorrect information submitted.

‘Regarding the undetected cases and cases withdrawn, the South African Police Service will be recalling the dockets in these cases to evaluate the contents thereof with the assistance of team members in the Rapid Response Team. The purpose, thereof, will be to ensure that all matters in the docket have been addressed correctly, if not, we will refer it back to the investigating officers concerned for further investigation,’ Minister Radebe said.

Minister Radebe also used the opportunity to announce that the Constitution has been translated into all 11 official languages and updated to include the Constitution Seventeenth Amendment Act of 2012. ‘The Constitution is also in the process of being translated into braille and will be made available in this regard in the very near future. Copies of the translated Constitutions will be made available by the [Justice] Department and are already up on our website,’ he said.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2014 (June) DR 11.