Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

South Africa LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

International Law

South Africa ratified numerous international treaties stipulating the non-discrimination of LGBTI people. The International Covenant on Civil and Political Rights ICCPR obliges South Africa to 'guarantee to all persons equal and effective protection against discrimination on any ground', including sex and sexual orientation, as clarified by the UN Human Rights Committee. The International Covenant on Economic, Social and Cultural Rights ICESCR equally proscribes discrimination on the basis of sexual orientation and gender identity.

Moreover, South Africa is taking a leadership role in pushing for an inclusive human rights agenda at the UN, and accordingly sponsored the first UN resolution on sexual orientation and gender identity: Passed in June 2011, HRC resolution 17/19 on 'Human Rights, Sexual Orientation and Gender Identity' expresses 'grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation or gender identity'. South Africa is also a signatory to the preceding Joint Statement on the Rights of LGBT Persons approved by 85 countries at the HRC in March 2011. However, the Human Rights Watch World Report 2014 notes a strong decline in South Africa's leadership role. 

Regional Law

South Africa is a signatory to the African Charter on Human and People's Rights, stipulating the rights to non-discrimination, equality before the law, life and integrity of the person, dignity and freedom from torture or other cruel, inhuman or degrading treatment or punishment. 'Sexual orientation' and 'gender identity' are not explicitly rejected as criteria for distinction, but the rights stipulated are specified as belonging to 'every individual'.

Art. 2: 'Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status' 
'Other status' allows the inclusion of sexual orientation and gender identity as prohibited grounds. Thus, as suggested by treaty monitoring bodies, the protections set out in the African Charter must be interpreted as covering LGBTI individuals. However, as highlighted by Amnesty International, civil society efforts urging the Commission to adopt resolutions specifically condemning violence against LGBTI people and pressuring African states to honour their international law commitments have not been adopted by the Commission.

National Law 

Under colonial rule in the 17th century, the Netherlands imposed Roman-Dutch law criminalising same-sex sexual conduct, which was retained by the subsequent British colonial rulers. After apartheid, South Africa became the first country to constitutionally outlaw discrimination based in sexual orientation in 1996, as stipulated in Chapter 2 of the Constitution of the Republic of South Africa

Bill of Rights, Equality Clause:

§9(3): The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including … gender, sex, … sexual orientation.
§9(4): No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

Furthermore, §12 guarantees security of the person, §16 prohibits hate speech, §17 promises freedom of assembly and the right to protest, §18 defends freedom of association, and §35 the right to a fair trial. 

The provisions have partially been implemented in subordinate law:

However, there is no specific hate crime legislation in South Africa. In this background paper on Hate Crimes in South Africa, the Hate Crimes Working Group defines hate crimes as crimes involving 'an element of bias or prejudice towards the victim because of the group that the perpetrator sees the victim as belonging to', such as actual or perceived sexual orientation and/or gender identity. The Hate Crimes Bill proposed by the Working Group in 2010 has not been implemented, as noted by the South African Human Rights Commission in their 2012 Equality Report. A 2012 Human Sciences Research Council Policy Brief emphasises that the consequent lack of official hate crime statistics complicates an assessment of the relationship between homophobia and violent acts of aggression. The rejection of a hate crimes framework extends to so-called 'corrective rape' (further covered below), as clarified by Prof Juan Nel.

For further legal information, GayLawNet provides detailed information on legislation, cases and references relating to LGBTI rights. 

 

CASE LAW

Refugee Appeal No. 76484, New Zealand: Refugee Status Appeals Authority, 19 May 2010

This is the appeal of a national of South Africa, born in Pakistan, against the decision of a Refugee Status Officer declining the grant of refugee status in New Zealand. The appeal was dismissed by the Refugee Status Appeals Authority, asserting that the appellant's claims are not credible and that there is no objective risk of persecution due to his sexual orientation or ethnicity.

Refugee Appeal Board Decision (Nigeria), South Africa: Refugee Appeal Board, 13 May 2002

This is the appeal of a Nigerian citizen against the decision of a Refugee Status Determination Officer declining the grant of refugee status in South Africa. The appeal was dismissed by the Refugee Appeal Board, asserting that a well-founded fear based on the appellant's political opinion and homosexuality had not been proven. 

Refugee Appeal Board Decision (Tanzania), South Africa: Refugee Appeal Board, 5 December 2011

This is the appeal of a Tanzanian national against the decision of the Refugee Status Determination Officer declining refugee status in South Africa. The Refugee Appeal Board dismissed the appeal, finding that the discrimination the appellant suffered on account of his homosexuality did not amount to persecution.  

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

South Africa has one of the world's most progressive constitutions concerning LGBTI rights, but the lived reality of LGBTI people in South Africa evinces a stark gap between the law and its application. Given the progressive legal framework in South Africa, Human Rights Watch notes that 'legally speaking, lesbians, gay men, and, to a more limited extend, transgender people have achieved equality'. However, practically speaking, LGBTI people in South Africa are unable to claim these rights and are subject to numerous human rights violations. 'The legal victories have done little to address the underlying causes of discrimination and subordination in South Africa', as emphasised in the book Outside the Safety Zone

The UK Home Office's description of the situation of LGBTI persons in South Africa is available on pp. 40-43 of the 2010 Home Office Country of Origin Information Report on South Africa.

High levels of verbal, physical and sexual abuse

South Africa evinces persistently high levels of various forms of discrimination, ranging from structural disadvantages, to threats and insults, as well as physical violence and assassinations.

In 2008, the openly lesbian national soccer player Eudy Simelane was beaten, gang raped and stabbed to death in Kwa-Thema township. In 2009, two perpetrators were given prison sentences (but the role of sexual orientation was rejected by the court), marking the first conviction in a considerably higher number of attacks against LGBTI persons. The lesbian woman Girlie Nkosi was repeatedly stabbed in KwaThema in 2009. In the case of murdered lesbian activist Noxolo Nogwaza, who was raped, stabbed with glass and beaten with pieces of concrete in Tsakane in 2011, witnesses fear coming forward and no arrests have been made. At least 7 people were murdered between June and November 2012, reports Amnesty International: Neil Daniels, Thapelo Makhutle, Phumeza Nkolonzi, Hendrietta Thapelo Morifi, Sanna Supa, Ntombana Mafu and Sihle Sikhoji. Attacks originate from close friends and family, as well as strangers.

The Joint Working Group, a national network of LGBTI organisations, commissioned several studies on empowerment, conducted with local organisations in Gauteng, KwaZulu-Natal and the Western Cape between 2002 and 2006. Reviewing the surveys in their 2012 Equality Report, the South African Human Rights Commission diagnosed 'a depressing picture', given that all three studies reveal verbal, physical, sexual and other forms of abuse. These three studies did not include transgender or intersex persons. A fourth study was conducted in a more rural setting in the North West Province between 2009 and 2010.

Other forms of discrimination include structural and psychological violence in various contexts. Regarding health, sexual orientation can result in lack of access to medical treatment. For instance, 7.6% of black gay men and 8.4% of black lesbian women experienced refusal of medical treatment in Gauteng province, as stated in Chapter 15 of the book From Social Silence to Social Science: Same-sex Sexuality, HIV & AIDS and Gender in South Africa. Prof Vasu Reddy, a co-editor of the book, emphasises self-acceptance, societal acceptance, unemployment, lack of upward mobility and lack of access to justice as further issues facing LGBTI persons. Further information can be accessed on the website of Gay and Lesbian Memory in Action GALA, an NGO collecting and disseminating the contemporary experiences of LGBTI persons.

There is no empirical data on violence against intersex people, as Susan Holland-Muter notes in Outside the Safety Zone. Information on the experiences of trans persons is limited to anecdotal evidence, such as the experiences reported to Gender DynamiX, an NGO focussing on the rights of trans persons, or this blog article on the shooting of Drag Queen Daisy Dube in Johannisburg in June 2008.

In Outside the Safety Zone, Susan Holland-Muter emphasises the persistent nature of anti-LGBTI violence, explaining that 'violence against LGBTI communities has been a feature of life before, during and after the transition to democracy. This violence is rooted in the patriarchal nature of South African society and the economic inequalities and institutionalised discrimination experienced under Apartheid and colonialism'.

Intersectionality: Gender, race and class background

The risk and intensity of discrimination experienced due to sexual orientation varies with gender, race and class background. 'Violence is not experienced equally across class, race and gender lines', as Susan Holland-Muter emphasises in Outside the Safety Zone.

The number of attacks against lesbians and transgender men (perceived as women who do not conform to dominant sexuality and gender norms) is particularly high, as emphasised by Human Rights Watch's report Violence and Discrimination against Black Lesbians and Transgender Men in South Africa, and Amnesty International's report Making Love a Crime. Sexual assault in these cases often takes the form of so-called 'corrective rapes', perpetrated with the purported aim to 'cure' black lesbians of their sexual attitude. Integrated Regional Information Networks report estimates of 10 cases of 'corrective' rape in Cape Town per week. The term 'corrective rape' is highly problematic: it portrays sexual orientation as something to be adjusted and separates these rapes from the context of violence against women in general. South African activists and INGOs explain that the disproportionately high number of violence against non-conforming women must be seen in the context of high levels of gender-based violence in a patriarchal society and South Africa's history of violent conflict. 

Discrimination on the basis of ascribed or expressed gender and sexual orientation intersects with race and class background: black lesbians and trans men in townships and rural areas are relatively more vulnerable to attacks than white and middle-class LGBTI. This is emphasised by 1) OUT LGBT Wellbeing in a report on homophobic victimisation in Gauteng, 2) the One In Nine-Campaign in an interview with Amnesty International, 3) in a Human Rights Watch report on state-sponsored homophobia in Southern Africa, 4) in the 2012 Equality Report of the South African Human Rights Commission, diagnosing that violent attacks and 'corrective' rape are 'highest in the poorest communities', 5) the book Outside the Safety Zone, and 6) a Human Sciences Research Council Policy Brief on Hate Crimes and Homophobia, highlighting that 'black lesbians living in poor neighbourhoods are the most vulnerable to different forms of sexual attack and are the most likely to be exposed to community rejection and policing, and to homophobic attacks, including assault, rape and murder'. In this article, South African LGBTI activist Bontle Khalo discusses LGBTI discrimination in Kwa-Thema township. 

Police brutality, state failure and judicial inertia

Police failure to protect the human rights of LGBTI takes several forms: Primary perpetration of human rights violations, secondary victimisation (victim-blaming causing additional trauma), and inaction in cases of abuse by other actors.

Amnesty International's report Making Love a Crime records instances of police abuse denounced by South African LGBTI activists, such as verbal and physical harassment during and after pride events in Johannesburg. Nonhlanhla Mkhize, Director of the Durban Gay and Lesbian Community and Health Centre denounces further instances of police abuse and irresponsiveness in the same report: The case of two lesbians who were arrested and sexually harassed by a police officer, and the case of a police refusal to investigate the beating of a gay man in his residence hall at university, as well as Mkhize's own experience of homophobic attacks and inappropriate police response. Mkhize underlines that a key factor underlying the pattern of police brutality is the policing culture inherited from the apartheid era. Amnesty diagnoses that the government and judicial system fail to respond adequately to discrimination of LGBTI persons, given that 'more times than not, cases are not adequately investigated, prosecutions do not occur, and victims are denied justice'.

This information is corroborated and complemented in Susan Holland-Muter's Outside the Safety Zone: The section 'Obstacles to reporting  violence against the LGBTI community' enumerates ignorance of court officials, police refusal to take on cases, fear of secondary victimisation, lack of faith in the criminal justice system, fear of publicity, normalisation of violence and lack of knowledge about rights. A second section on 'Challenges to state service provision in response to violence against LGBTI communities' denounces general malfunctioning and lack of service delivery, as well as more specific obstacles experienced by LGBTI communities ranging from discriminatory attitudes to lack of political will expressed in victim blaming, secondary victimisation and low conviction rates. The lack of services to LGBTI communities in rural areas and contexts with dominating conservative views is documented as particularly high.

The National Task Team, set up to address gender and sexual orientation-based violence against LGBTI people generally and discriminatory dynamics operating in the criminal justice sector in particular, is 'dormant and ineffectual', as noted by Human Rights Watch in their 2014 World Report.

Public attitudes

The Human Sciences Research Council Review Pride and Prejudice: Public attitudes toward homosexuality, analyses data derived from the South African Social Attitudes Survey (SASAS), finding that over 80% of the population consider gay and lesbian people as 'un-African' and deem 'sex between two men or two women always wrong'.

Anti-LGBTI discourse and behaviour also emanates from high state functionaries. In 2008, South African journalist and politician Jon Qwelane published an article entitled 'Call me names, gay's not okay' in the Sunday Sun, in which he compares gay marriage to bestiality. As Melanie Judge emphasises in a Mail&Guardian article, Qwelane answered accusations of hate speech with a constitutional challenge to the Equality Act. In 2010, President Jacob Zuma appointed Qwelane as High Commissioner to Uganda. Zuma himself was accused of rape but acquitted of the charges in 2006, as described in this Mail&Guardian article.

Furthermore, LGBTI communities struggle with religious opposition to LGBTI rights. As Human Rights Watch notes in a 2011 report, conservative churches tend to disseminate a view of LGBTI as 'un-Christian'. In an Amnesty International report, Prof Vasu Reddy describes homophobia emanating from churches through portrayals of homosexuality as 'decadent, abnormal and pathological'. 

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

No NGOs working with LGBTI populations are listed here, but we welcome suggestions. 

 

COUNTRY OF ORIGIN SPECIALISTS

We currently have no specialist on LGBTI for South Africa, but would welcome suggestions.

 

Researched by: Vera Wriedt
email: vera [dot] wriedtatgmail [dot] com  

 

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