By: Hlengiwe Mkhasibe

Miss Hlengiwe Mkhasibe Senior Legal Consultant B.M. Legal Consultants
Miss Hlengiwe Mkhasibe
Senior Legal Consultant
B.M. Legal Consultants

The LGBTI community experiences a lot of discrimination in their everyday lives, most of which goes unattended due to lack of knowledge on how the law works in their favour.

Through my experience having worked for the Equality Court in the year 2005, I have come across many a matter such as these. The laws not being flexible at the time and not protecting issues such as marriage of same sex partners made it equally difficult to assist, further than just protecting their right to Equality as stated by Section 9 above.

Below is a brief discussion of such protection for Gays and Lesbians in a nutshell.

Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights. It prohibits both discrimination by the government and discrimination by private persons; however, it also allows for affirmative action to be taken to redress past unfair discrimination.

Under the heading “Equality”, the section states:

  1. (1) everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(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.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

South Africa has a complex and diverse history regarding LGBT rights. The legal and social status of lesbian, gay, bisexual, and transgender people has been influenced by a combination of traditional South African mores, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition. South Africa’s post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation, and South Africa was the fifth country in the world, and the first–and, to date, only–in Africa, to legalise same-sex marriage. Same-sex couples can also adopt children jointly, and also arrange IVF and surrogacy treatments. Nevertheless, LGBT South Africans continue to face considerable challenges, including social stigma, homophobic (particularly corrective rape), to name but a few.

Sexual Orientation is a personal choice and decision and therefore must be respected by all governed by The RSA Constitution.

The role of the Equality Courts in South Africa is to protect this very right as well as other mentioned under Section 9 of the Constitution.

Anti-discrimination laws

The Constitution prohibits all unfair discrimination on the basis of sex, gender or sexual orientation, whether committed by the government or by a private party. In 2000, Parliament enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which restates the constitutional prohibition and establishes special Equality Courts to address discrimination by private parties.

The PEPUDA also prohibits hate speech and harassment based on any of the prohibited grounds of discrimination. South Africa does not have any statutory law requiring increased penalties for hate crimes, but hatred motivated by homophobia has been treated by courts as an aggravating factor in sentencing.

National Intervention Strategy for the LGBTI Sector

In August 2011 the Department of Justice established a National Task Team (NTT) to address the issue of hate crimes against LGBT people. In April 2014, then Minister of Justice Jeff Radebe launched a National Intervention Strategy for the LGBTI Sector developed by the NTT to address sex-based violence and gender-based violence against members of the community. The NTT has established a rapid response team to attend to unsolved criminal cases as a matter of urgency and produced an information pamphlet with frequently asked questions about LGBTI persons. Radebe stated that the Department of Justice acknowledged the need for a specific legal framework for hate crimes and that the matter would be subjected to public debate.

Recognition of same-sex relationships

On 1 December 2005, in the case of Minister of Home Affairs v Fourie, the Constitutional Court ruled that it was unconstitutional for the state to deny to same-sex couples the ability to marry, and gave Parliament one year in which to rectify the situation. On 30 November 2006 the Civil Union Act came into force; despite its title it does provide for same-sex marriages. Indeed, the act allows both same- and opposite-sex couples to contract unions, and allows a couple to choose to call their union either a marriage or a civil partnership. Whichever name is chosen, the legal consequences are the same as those under the Marriage Act (which allows only for opposite-sex marriages).

Prior to the introduction of same-sex marriage, court decisions and statutes had recognized permanent same-sex partnerships for various specific purposes, but there was no system of domestic partnership registration. The rights recognised or extended by the courts include the duty of support between partners, immigration benefits, employment and pension benefits, joint adoption, parental rights to children conceived through artificial insemination, a claim for loss of support when a partner is negligently killed, and intestate inheritance. Rights extended by statute include protections against domestic violence and the right to family responsibility leave.

Parenting and adoption

A number of High Court judgments have determined that the sexual orientation of a parent is not a relevant issue in decisions on child custody. In 2002 the Constitutional Court’s ruling in Du Toit v Minister of Welfare and Population Development gave same-sex partners the same adoption rights as married spouses, allowing couples to adopt children jointly and allowing one partner to adopt the other’s children. The adoption law has since been replaced by the Children’s Act, 2005, which allows adoption by spouses and by “partners in a permanent domestic life-partnership” regardless of orientation.

In 1997, artificial insemination, which was previously limited to married women, was made legal for single women including lesbians. In the 2003 case of J v Director General, Department of Home Affairs the Constitutional Court ruled that a child born by artificial insemination to a lesbian couple was to be regarded as legitimate, and that the partner who was not the biological parent was entitled to be regarded as a natural parent and to be recorded on the child’s birth certificate.

There have been a number of cases in which gay women have been the victims of murder, beating or rape. This has been posited, in part, to be because of the perceived threat they pose to traditional male authority. South Africa has no specific hate crime legislation; human rights organisations have criticised the South African police for failing to address the matter of bias motivated crimes. For example, the NGO ActionAid has condemned the continued impunity and accused governments of turning a blind eye to reported murders of lesbians in homophobic attacks in South Africa; as well as to so-called corrective rapes, including cases among pupils, in which cases the male rapists purport to raping the lesbian victim with the intent of thereby curing her of her sexual orientation.

Despite the occasional incidents of homophobia, gay people in major urban areas, such as JohannesburgPretoriaDurban and Cape Town, are fairly accepted.

Prominent religious leaders have voiced their support for the South African LGBT community. Archbishop Desmond Tutu and Dr. Allan Boesak are vocal supporters of gay rights in South Africa. Even the conservative Dutch reformed church ruled that gay members should not be discriminated against and could hold certain positions within the church. However, much criticism of the church still exists; a court has ruled against a church congregation for firing a gay musician; the issue provoked much uproar from the gay community and within liberal circles.

All the above shows that the LGBTI community enjoy equal rights enjoyment more specifically to section 9 as stated above and should anyone from this community feel discriminated in any way and feel their right to Equality has been violated, they or their representatives should approach the Equality Court situated in our Magistrates Courts around South Africa and such matters shall be taken up and enquiries conducted, thereafter sanctions such as fines issued on behalf of the aggrieved parties. Anyone can approach the Equality Court on their own behalf or on behalf of any aggrieved person or on behalf of a group of aggrieved persons.

The Equality Court Clerk shall issue Form 2 to the victim, thereafter inform the wrongdoer by means of Form 3, whereafter the wrongdoer shall respond by means of Form 4 within 10 days. The Equality Court Clerk shall thereafter escalate the complaint to a Magistrate within 3 days of receiving the response from the wrongdoer where the Magistrate has 7 days to decide whether the matter is to be heard at the Equality Court or whether it should be referred to an alternative forum such as The South African Human Rights Commission.

Proceedings under the Equality Court are free of charge, should you appoint an Attorney you will be responsible for the legal costs of such Attorney…