Constitutional Hill

Sexual orientation

Affirming their own moral inferiority

May 3rd, 2012
by Pierre De Vos.
178 comments

The Congress of Traditional Leaders of South Africa (Contralesa) styles itself as “the sole and authentic representative of the progressive traditional leadership of South Africa” because it is aligned to the ANC. The organisation aims to promote and protect traditional leadership, traditional customs and practices and the heritage of the 18 million South Africans who live under the authority of traditional leaders.

However, perusing their website, one cannot help but wonder whether Contralesa (pictured below) is not also spurred on by the far less noble goal of self-enrichment. Contralesa thus complains that traditional leaders are being discriminated against:

Traditional leaders of all ranks, i.e. kings, inkosi (chiefs) and inkosana (headmen), are, like politicians in government, public office bearers.  They are entitled to be remunerated in a manner commensurate with their responsibilities and status. The truth, however, is that in this regard traditional  leaders are discriminated against. The best that they receive is a basic salary without the concomitant allowances such as medical aid, motor vehicle  allowances, pension benefits, etc. Due to lack of uniformity in the manner in which provincial governments treat the institution, some traditional  leaders have been provided with motor vehicles, while others have not. Needless to say, this gives rise to resentment and annoyance on the part of  those who do not get this form of support.

Kings and Queens currently earn over R900 000 a year, while other traditional leaders earn between R180 00 and R650 000 a year. Not being provided with a free vehicle at taxpayers expense must therefore cause serious financial hardship for traditional leaders, but not to the extent that they are not prepared to engage in robust engagement about important issues of the day (other than the salaries and benefits paid to them by the taxpayer).

Last year The House of Traditional Leaders, packed with the members of Contralesa, submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually, but in the past 17 years they have rejected every single proposal made to it for the amendment of the Constitution out of hand. The Committee is chaired by Nkosi Sango Patekile Holomisa, who also happens to be the President of Contralesa.

At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The House of Traditional Leaders suggested a redrafting of the Bill of Rights so that it would in future be legal to discriminate unfairly against gay men, lesbians and other sexual minorities, and the Review Committee decided to refer this matter (along with the proposed amendments to the property clause) the political parties represented in the National Assembly for discussion and consideration.

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded.

The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggest that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans.

Given South Africa’s history, this is a shocking move. The apartheid government believed that some people were sub-human because they were black or female or gay, lesbian, transgendered or intersexed and enforced a dehumanising set of laws to give effect to this belief and to try and affirm their supposed superiority as white men. But in the very act of enforcing this kind of discrimination, they affirmed the opposite, namely their own moral inferiority.

As a direct response to this history of dehumanisation the drafters of the Constitution, endorsing the view that all human beings possess an inherent human dignity and are therefore of equal moral worth, prohibited unfair discrimination against individuals regardless of their race, sex, gender or sexual orientation.

The House of Traditional Leaders, on the other hand, seems to believe that some of us are not fully human and that it is therefore imperative that the state should be allowed unfairly to discriminate against us merely because we happen to be emotionally and erotically attracted to members of the same sex and because we do not conform to a specific notion of “normality” created and perpetuated by white, colonial missionaries, a norm ironically and tragically adopted by traditional leaders infected with the ideas of South Africa’s colonisers.

It might well be that traditional leaders are not aware that their support for unfair discriminatory measures against gay men, lesbians and other sexual minorities stem from the colonial encounter and that their fear of (and disgust towards) us stem from their internalisation of the values of the colonial master. It might also be that they are not aware that such fear and disgust often stem from an unacknowledged or unwitting anxiety about their own sexual identity.

But the drafters of our Constitution knew that equality is indivisible and that one cannot truly affirm the human dignity of all if one endorses unfair discrimination against a marginalised and oppressed minority merely because such a minority is viewed as different from oneself (or from who one believes or pretends one is).

The fact that the Committee has decided not to reject this deeply reactionary proposal out of hand, suggests that some of its members endorse inequality and prejudice and support an imposition of uniformity and the concomitant suppression of all difference. It suggests an intolerance of those who do not conform to gender or sexual stereotypes or to some other non-existing or ephemeral norm, created and perpetuated to enforce the continued dominance of patriarchy. Either that or the members of the Committee are prepared to flirt with these notions so roundly rejected by the drafters of our Constitution and by the ANC in its constitutional proposals for short term political gain.

In Minister of Justice v Coalition for Lesbian and Gay Equality Justice Albie Sachs noted that: “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled.” He continued by warning:

Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

The acknowledgment and acceptance of difference is particularly important in a society like South Africa where perceived racial differences were used to oppress the majority of citizens. As Sachs pointed out:

The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.163 What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

Those who believe that it is reasonable to debate whether some South Africans should be afforded equal concern and respect, are likely also those who believe that the state has a right to impose a standardised form of behaviour on all of us in order to eradicate all forms of behaviour which do not conform with what a small group of pampered patriarchs believe is acceptable (or in their financial interest). This is a small group of powerful men who might well believe that all outward manifestations of love and emotional affection that do not conform to what  they believe is in their interest must be suppressed in order  to retain and expand their power over what they believe to be their subjects: younger men; all women; and homosexuals.

The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed. Ironically, some of us will recall the depraved immorality of the patriarchal enforcers of apartheid and will know in our hearts that by the very act of raising this issue, the members of the Committee and the House of Traditional Leaders are merely affirming their own moral inferiority.

Silence = Death

Feb 2nd, 2012
by Pierre De Vos.
73 comments

Yesterday, more than six years and about 50 postponements later, four of the men who brutally murdered Zoliswa Nkonyana because she was a lesbian were finally sentenced to an effective fourteen years in jail. On the same day, in another part of South Africa, three men were sentenced to 25 years imprisonment by the Phalaborwa Regional Court for poaching Rhino. Decisions on the sentencing of serious criminals is not an exact science, but on its face, the difference between the relatively light sentences imposed on Nkonyana’s killers compared to the sentences imposed on the Rhino poachers, seems rather stark.

There is strong anecdotal evidence (as well as some research from South Africa and the USA), that suggests the race, the gender, the class, the HIV status, the sexual orientation or the education level of both the killer and of the victim sometimes play a role in the severity of the sentence imposed on a killer. A white farmer who kills a black labourer may sometime receive a lighter sentence than a black unemployed youth who kills a blonde young woman. A heterosexual man who kills a lesbian may sometimes receive a lighter sentence than a poor gay man who kills a rich heterosexual banker. And if one kills a tourist who lives in Europe one might well get a far heavier sentence than if one kills a poor black woman living in a rural area.

Given the serious delays in the Nkonyana case, coupled with reports of sloppy investigation and the stalling tactics used by the lawyers representing the killers, it is a bit of a miracle that the four men were indeed convicted and sentenced yesterday. From personal experience I know that not all members of the police are eager to investigate hate crimes against gay men and lesbians and often fail to investigate reports of assault against gay men, lesbians and transgendered persons. And if they do investigate the crimes they often fail to do so with the same diligence than they would investigate, say, the murder of a foreign tourist or a blond girlfriend of a rugby player.

This is not to deny that we have made progress over the past 15 years. At least the case was investigated and brought to court, the accused received a fair trial and the presiding officer was prepared to convict the killers and sentence them to jail – despite the fact that they “only” killed a black lesbian.

For example, some years ago Judge President John Hlophe allowed Christopher Moses “to get away with murder” because his victim was HIV positive. Moses had killed a gay man called, Gerhard Pretorius, and then claimed that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Academic critics argued that Hlophe should have found Moses guilty of murder and that he had misapplied the doctrine of criminal capacity to the case. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

In any event, it is impossible to say whether the sentences imposed on Zoliswa Nkonyana’s killers would have been significantly lighter if the court had not made a ground-breaking ruling that the killing was motivated by homophobic hate and if this was not taken into account as an aggravating factor in sentencing. Section 28 of the Equality Act states that when the state proves that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence, but the court yesterday extended this to sexual orientation. This section does not mention sexual orientation discrimination or any other criminal attacks animated by hatred for gay men or lesbians

Interesting, while looking at this aspect of the Equality Act, I have been unable to determine whether the provisions of this part of the Equality Act (which deals with the Promotion of Equality by the State and private individuals) have indeed come into operation. My LexisNexis legal database states that the date of commencement of these sections is “still to be proclaimed”. This means that the positive obligations imposed by the Equality Act to promote equality and thus deal with the causes of prejudice and discrimination have never been put into force, which would be strange, given the professed commitment of our government to the achievement of equality.

Section 25 of the Equality Act spells out some of the positive obligations placed on the state by this Act to promote equality.

(1) The State must, where necessary with the assistance of the relevant constitutional institutions (a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to promote equality; and (c) where necessary or appropriate: (i) develop action plans to address any unfair discrimination, hate speech or harassment; (ii) enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act.

(2) The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.

(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by: (a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and (b) preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.

Once these sections become operational (if ever) the state will have a legal duty to take the lead in educating the public around issues such as racism, sexism, homophobia, religious intolerance (including intolerance against non-believers), and prejudices against disabled persons.

The fact that this has not happened to the degree envisaged by the Constitution (and by these seemingly inoperable provisions of the Equality Act), suggests that not all members of our government (at both national and provincial level) are fully committed to the eradication of all forms of hatred and prejudice and to the promotion of a world in which all kinds of differences between people are respected and even celebrated.

What is needed to turn the tide against prejudice and hatred based on sexual orientation (as well as race, sex, gender and disability) is political leadership from the highest level. Unless the President, the Deputy President and Ministers (as well as Premiers and MEC’s and Mayors) regularly speak out against homophobia (and other forms of prejudice) and against the violence and threats of violence that haunt especially working class, black, gay men, lesbians and other sexual minorities, attitudes will not begin to change.

Just like Helen Zille needs to speak out regularly against racism and the racial utterances of people like Steve Hofmeyer, so Jacob Zuma should speak out against the homophobic statements that are regularly made by other politicians, community leaders and religious leaders.

Until these leaders stop feeling embarrassed about the fact that we have different sexual orientations and until they stop – through their silence – from condoning the hatred and prejudice that too often spill over into violence against gay men and lesbians, attitudes will not begin to change.

A good place to start a campaign that would foster respect for difference would be in our schools. School principals need to be trained in diversity management and should only be promoted if they can demonstrate that they have taken steps to create a school environment in which racial, gender, sexual orientation and religious diversity is not only tolerated but celebrated. An environment should be created in which teachers begin to realise that they have a duty to promote the values contained in our Constitution – including the value of respect for the human dignity of everyone, regardless of his or her sexual orientation.

The truth is that most politicians are uncomfortable about sexuality issues and would rather never have to think about the fact that gay men and lesbians exist and that they are our brothers and sisters, our mothers and fathers, our sons and daughters, our comrades and colleagues. They will not speak out against injustice because they are scared that they will be viewed with suspicion (and might be suspected of being gay or lesbian themselves), so they keep quiet while people like Zoliswa Nkonyana get harassed, assaulted, raped and murdered.

White South Africans have a specific duty to speak out against racism whenever it is expressed or perpetrated by fellow whites. When they keep silent around braaivleis fires, in boardrooms, at dinner parties when somebody tells a racist joke or makes racist statements about black South Africans, they become complicit in the perpetuation of racism. Similarly, if we remain silent in the face of implicit or explicit homophobia amongst our friends we become complicit in homophobia and, ultimately, in the killing of gay men and lesbians.

How anyone can justify his or her silence in the face of racism and sexism and homophobia, I really do not know.

On race and sex and unexamined assumptions

Jan 25th, 2012
by Pierre De Vos.
62 comments

The reaction from many people to a poster released by the Democratic Alliance Youth (DASO), in which they tried to make a point about the importance of trying to achieve a non-racial society in South Africa, is rather amusing and also quite revealing.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

Time to stop paying traditional leaders?

Jan 24th, 2012
by Pierre De Vos.
83 comments

Zulu monarch King Goodwill Zwelithini earlier this week reportedly criticised people who engaged in same-sex relationships, labelling them “rotten”. “Traditionally, there were no people who engaged in same sex-relationships. There was nothing like that and if you do it, you must know that you are rotten. I don’t care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same sex is not acceptable,” he reportedly said.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

What shall we do about the Reverend?

Oct 21st, 2011
by Pierre De Vos.
83 comments

Reports that a Cape Town pastor has called gays and lesbians drug addicts and child molesters and said that Archbishop Emeritus Desmond Tutu will burn in hell for supporting the LGBT community will probably be welcomed by some of the more bigoted readers of this Blog. According to the Mamba Online website the Rev Oscar Peter Bougardt, a Christian Minister of the Gospel of Jesus Christ and senior pastor at Calvary H.O.P.E Ministries in Mitchells Plain (what a wonderfully Orwelian name!), launched this attack against gay and lesbian people in unsolicited e-mails to local websites catering to the gay and lesbian community.

Bougardt said that his “mission is to take out all lesbians and gays because they are a bunch of idiots who confuse our children”. The pastor also said that “their lifestyle is an abomination to God and that gays and lesbians should know that they are going to burn in hell”. Apparently the majority of us are also drug addicts and:

offer our teenagers and children drugs and alcohol and once they are drugged and drunk they are seduced and end up having sexual relation with them…. Lesbians and gays are a curse on any community. I believe that a man that sleeps with another man doesn’t deserve to be part of a healthy community and I will mobilise the masses to stop them.

Asked about his comments he said:

If I say take out homosexuals, I mean they must be removed from our communities…You interpret that I am inciting violence against homosexuals, I see it is making our people aware that their lifestyles should not be approved by any healthy community. Just as homosexuals have the right to express their views, I have the right to express mine.

When I read these statements I could not help but laugh and, I have to confess, for a moment it did cross my mind that the pastor might have been smoking or drinking the strong stuff before he made these utterances. Then I felt sad and a bit sorry for the gentleman who styles himself as a man of the cloth.

Why would he have constructed for himself such a warped, perverted and hating religion? Why the obsession with sex and drugs and child molestation? Does he himself perhaps have an issue with his sexuality or with other urges that remain unspeakable to him? After all, the biggest homophobes are often repressed homosexuals. Or is he targeting the gay and lesbian community because he wishes to exploit the prejudices of other members in the community in the hope that the donations would start flowing into his ministry?

I have no way of knowing what his motivations might be for writing to these websites. Maybe he is a sincere person with strong if somewhat bizare views. Or maybe he has been watching too many YouTube videos of Ugandan pastors and feels jealous of them for having cornered the market on hate.

Of course, it would be easy to shut up the pastor and make a few hundred thousand Rand for a gay cause or organisation. After all, the words would almost certainly constitute hate speech in terms of section 10 of the Equality Act. As those who read this Blog know, that provision states that words that could reasonably be construed as having had the intention to be hurtful towards gays and lesbians would constitute hate speech. Advocating the “taking out” of homosexuals from society, sounds like the talk of an apartheid-era hit-squad member.

If Afriforum wanted to demonstrate that it did not only have an obsession with the ANC but was really concerned about hateful rhetoric in our society, it would take the pastor to the Equality Court and get that court to order him to stop making such statements (and to stop making an utter fool of himself too, one must add). His words sound not too different from the singing of the “Kill the Boer” song by Julius Malema. But while Malema invoked the struggle tradition, the pastor will obviously invoke his right to religious freedom (and the religious tradition centred around hate and homophobia) as well as his right to make a fool of himself. (Although, I am not sure the latter right is explicitly written into the Constitution.)

Yet, I for one would not be running off to the Equality Court. While I find his words hateful and deeply obnoxious, I do not think the best way to deal with the “pastor” is to ban him from writing these letters. Far better to mock the poor man or, alternatively (if that is your kind of thing) to show Christian compassion towards this seemingly deeply damaged soul by praying for him in the hope that he will eventually manage to deal with his suspiciously obsessive attitudes towards gay men and lesbians.

Besides, as I have written before, I am almost certain that section 10 of the Equality Act is overbroad (as it includes a far broader definition of hate speech than the definition contained in section 16 of the Constitution) and is hence unconstitutional. I would therefore not want to invoke a section of the law that I believe is unconstitutional. As I criticised President Jacob Zuma for invoking an unconstitutional provision of the Judges’ Remuneration Act to try and extend the term of office of the Chief Justice, it would be rather hypocritical of me now to invoke this provision which I believe is similarly unconstitutional.

But how should relatively reasonable, logical and respectful people deal with this kind of utterance? Am I not being a bit precious by arguing against the hate speech route? I happen to be an upper middle class white man living in the suburbs and I am usually able to avoid weirdo’s who make statements like those uttered by the pastor or who would want to do physical harm to me – unlike some other gay men and lesbians who face the most vile and sometimes lethal homophobia of members of their own communities and do not have the luxury of avoiding the homophobes.

Well, my belief is that banning these kinds of words will not stop homophobia. Neither will it stop homophobic attacks on gay men and lesbians. People will still think these things and they will still say these things – just not on public platforms. Some people will also act on their fears and hatred by attacking gay men and lesbians to make themlseves feel better about their internalised self-hatred.

The only thing that will stop this kind of exploitative hatred is a change of heart on the part of those people brainwashed by religious groups to believe that other human beings supposedly created in the image of God are inherently bad or even evil. In other words, we need to demonstrate how absurdly contradictory the teachings of the more extreme religious groups are and we need to change the way people think.

The only way people will change is if those of us who are more reasonable, more compassionate, more respectful of human difference, convince enough people that these hateful views are illogical, irrational  and immoral. We will only do so by using rational arguments (and the odd bit of ridicule and mockery). When those of us who are empowered to do so stand up for ourselves and for members of our community and if we demonstrate through our words and our deeds that people like Mr Bougardt is at best a deeply damaged souls and at worst, just a populist charlatan, we will begin to win this fight.

Personally, I am going to write to Rev Bougardt (pastor.bougardt@gmail.com) and tell him the good news that it is ok to be gay and that if he has any problems with his sexuality I will be very happy to talk to him about this. After all, it is only the Christian thing to do to help another person to overcome his or her self-hatred.

My heart says hate speech but my head is not sure

Jun 3rd, 2011
by Pierre De Vos.
44 comments

Sometimes a case comes along that pulls one sharply in diametrically opposed directions: one’s heart in one direction and one’s head in another. Such a case is that of South Africa’s ambassador to Uganda, Jon Qwelane. Ambassador Qwelane – a former newspaper columnist and well known homophobe and bigot – this week was found guilty by an Equality Court of hate speech for writing a newspaper column in which he denigrated gay men and lesbians.

In the column – published in 2008 – Qwelane complained that “you regularly see men kissing other men in public, walking holding hands and shamefully flaunting what are misleadingly termed their ‘lifestyle’ and ’sexual preferences.’” The constitution also came under fire when he wrote that he prayed that politicians would some day have “the balls” to rewrite the constitution “to excise those sections which give license to men ‘marrying’ other men, and ditto women… Otherwise at this rate, how soon before some idiot demands to ‘marry’ an animal, and that this constitution ‘allows’ it?”

As I wrote at the time:

This is hateful stuff. Ignorant stuff. The kind of thing written by a man who is not very secure about his own sexuality. To equate homosexuality with bestiality is the kind of primary school argument used by bullies to denigrate gay men and lesbians and is not worthy of anyone with an IQ of more than 60. We all know most people who like to have sex with animals are heterosexual. (I will rather not talk about the strange morality in South Africa which abhors bestiality while seeing nothing wrong with killing and eating animals!)

David Bullard was fired from the Sunday Times for writing a far less offensive column – albeit on race and not sexual orientation. Qwelane is right, of course: wrong is wrong and being a hateful bigot is always wrong.

It was also wrong of the newspaper to publish this drivel. Maybe illegal too, but that is not the point. Even a tabloid like the Sunday Sun should show a modicum of responsibility and should not propagate hatred of gay men and lesbians. Just last month a Banyana Banyana player was murdered because she was a lesbian. This kind of column gives implicit legitimacy to such crimes and Qwelane and those in charge of the newspaper should be ashamed of themselves. They have blood on their hands – or soon will – because others will be killed in the name of this kind of hatred.

But should Qwelane have been found guilty of hate speech. I have often argued that the provisions on hate speech in the Equality Act are too broadly phrased and that section 10 of that Act which prohibits hate speech may well be unconstitutional. I have also argued consistently that when one determines whether a person can reasonably be construed as having had the intention to be hurtful to others based on their race, sex, or sexual orientation, context is everything.

Part of the context in South Africa is that of a deeply ingrained hatred of gay men and lesbians. 

A few weeks ago Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg, apparently because she was a lesbian. She has joined a long list of lesbians – including Banyana Banyana star Eudy Simelane and Cape Town activist Zoliswa Nkonyana – who have been brutally murdered in South Africa, merely because they dared to live openly and proudly as gay men or lesbians.

It can be argued that the kinds of statements made by Qwelane in his column – widely read by those who buy tabloid newspapers – might have encouraged the criminal bigots out there to go out and rape and murder lesbians, or at least might have confirmed their prejudices and might have comforted them by affirming their views about women in general and about lesbians in particular.

And yet…. and yet….

Is the hate speech route the best route to deal with these beliefs – which are, after all, widely shared? Would it not do more good if our government actually fired Qwelane (as it should have done long ago) and if it embarked on a massive education campaign in schools and elsewhere to teach the population how to respect the human dignity of us gay men and lesbians? By making it unlawful for anyone to utter such hateful statements, are we not driving these beliefs underground – instead of addressing them head on and eventually eradicating them?

As was the case with Julius Malema, I would probably not have brought a hate speech claim against Qwelane. Although I feel jubilant that Qwelane’s hateful bigotry has been declared hate speech (my heart talking), I remain unconvinced that the hate speech route will really address the very real and urgent problems relating to sexism and homophobia in our society (my head talking). Can one hold both of these impulses in one’s hands and remain consistent?

A positive duty to protect sexual minorities

May 4th, 2011
by Pierre De Vos.
42 comments

There is a worrying ambivalence at the heart of our government’s attitude towards the protection of the life, human dignity, right to quality and the protection of bodily integrity of sexual minorities in South Africa. Yesterday, a meeting was held between representatives from the Department of Justice (DOJ), National Prosecutors Office (NPO), Department of Social Development, crime victims empowerment groups, the South African Police Service (SAPS) and activists from organisations including Luleki Sizwe, Triangle Project, Free Gender, End Hate Crime and Rape Crisis to discuss the problem of hate crimes against lesbian, gay, bisexual and transgender people .

It is heartening to hear that the meeting went well and that it was announced afterwards that a special hate crimes task team is being set up. According to the Cape Town-based organisation Luleki Sizwe, Tuesday’s historic move shows that the government “has made a concerted effort to make [the] LGBTI community feel welcomed and heard by their government”.

This welcome development signals that some officials in government (as opposed to a majority of our most important and powerful politicians) are actually serious about preventing unfair discrimination against the LGBTI community and is willing to explore ways of promoting the achievement of equality for all members of our community.

Other signals emanating from the highest echelons of our government have, of course, been rather more worrying.

The President has made statements suggesting that gay men and lesbians deserve to be assaulted because they happen to be gay or lesbian. He has appointed a viscous, homophobic, bigot as the South African Ambassador to Uganda. Our government representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, last year refused to support efforts at the UN to protect gay men and lesbians against discrimination, saying that the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

(The naked prejudice encapsulated by this statement becomes clear if one pauses to reflect on the — absolutely correct — outcry that would have ensued if he had said that including “race” in a report on discrimination would demean the legitimate plight of gay men and lesbians.)

Now this same Mr Matjila has been appointed as the acting Director General of the Department of International Relations and Cooperation. This suggests that some of our government Ministers reward those whose official utterances reveal a deep-seated prejudice against (and even a revulsion of) members of the LGBTI community. No wonder so many police officers seem reluctant to investigate crimes perpetrated against gays, lesbians and other sexual minorities and why the police is widely feared and reviled in the LGBTI community.

Last week Ms Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg on April 24. As has been the case with many other such cases, members of the police appear to be extremely reluctant to even contemplate the possibility that her death was connected with her sexual orientation. Police spokesperson Tshisikhawe Ndou said investigators do not currently consider the murder a hate crime. “‘Purely’ rape, murder,” he is quoted as saying. Nogwaza’s body was found in the same township where Eudy Simelane, a former midfielder for the national women’s football side, was gang-raped and murdered in 2008.

Talking to activists and ordinary members of the gay, lesbian and transgender community, one hears horror stories about the homophobia and bigotry of police officers. I have been told by a young gay man from a township near Cape Town that he was ridiculed, laughed at an eventually chased away from the police station when he attempted to report that he had been raped by a much older man. When he refused to leave, he was threatened with arrest because: “jy is mos ‘n fokken moffie” (“you are a bloody faggot”). Meanwhile, the nine men accused of killing Zoliswa Nkonyana, a lesbian from Cape Town, have appeared in court too many times to count and the case has suffered from endless delays.

Despite yesterday’s encouraging development, there is clearly still a huge gap between how most South Africans (including many politicians, government officials and members of the Police) view gay men and lesbians and how the Constitution requires them to act towards members of this community. This is not surprising. One cannot change the hateful and bigoted attitudes of the vast majority of the South African population merely by passing a Constitution and subsequent legislation that prohibits discrimination against members of the LGBTI community.

Section 7(2) of the Constitution places a positive duty on the state to realise the rights enshrined in the Bill of Rights. In order to protect sexual minorities from unfair discrimination and in order to promote the achievement of full equality for all, the state has to do more than pass legislation. What is required is to educate and sensitise citizens to promote respect for sexual diversity.I would argue that this positive obligation requires the state to implement education programmes in schools to foster respect for members of the LGBTI community among school children. (One may also argue that workplace and other forms of affirmative action measures need to be implemented to address the systemic discrimination faced by gay men and lesbians in our society.)

It also requires the state to train government officials and members of the SAPS to treat all gay men and lesbians with dignity and respect. The Human Rights Commission as well as that useless Commission for Gender Equality also has a role to play to promote respect for the rights of sexual minorities. Perhaps because this is not a popular course of action amongst many of our leaders and because many citizens would get upset if the government and relevant Chapter 9 institutions actively promoted respect for the dignity of members of the LGBTI community, very little has been done to address the serious prejudices about sexual difference that are so prevalent amongst many members of the public.

It would, of course, be helpful if our President led the way on this and regularly made a clear and unambiguous statements about the need to respect the dignity of members of the LGBTI community. But that is probably not going to happen because it is unclear whether our President actually believes that gay men, lesbians and other sexual minorities deserve to be respected and protected. Besides, even if our President had a change of heart and now respects the equal dignity of all, this issue is not a vote-catcher and our President has not shown a willingness to say or do things that would upset too many people who form part of any of a number of factions within the ruling party.

Given this reality, the forming of a task team is perhaps as much as we might hope for at present. Meanwhile, especially poor and black women who happen to be lesbians will continue to live in fear.

What a load of dangerous nonsense

Mar 25th, 2011
by Pierre De Vos.
95 comments

NOTE TO READERS: I wrote this piece based on information gleaned from the Lead SA Website and other documents sent to me. Primedia has pointed out (see full letter here) that although a version of the Bill of Responsibilities on the website did not include sexual orientation, other documents did. Although the original version of the document drafted by religious leaders did not include sexual orientation, I have no reason to doubt that the Lead SA campaign did intend to include it in their version and that it made an honest mistake when it published the document that excluded sexual orientation. I therefore apologise for assuming that the campaign did not intend to do so and for claiming that the campaign was homophobic. I am happy to retract the criticism of the Bill (and of Lead SA) based on this assumption. I stand by the rest of my criticism of the campaign.

When the Department of Education, 567 Cape Talk, Radio 702 and others involved in the so called “Lead SA” campaign launched a “Bill of Responsibilities for the Youth of South Africa” this week, I thought it might be a good idea. Rights carry with them responsibilities and promoting both rights and the concomitant responsibilities amongst our youth seems like a good idea.

But then I read the document and was truly appalled. How such a wrongheaded and bigoted document could have been endorsed and promoted by Lead SA and the Department of Education is beyond me. Don’t these people think? If they do, don’t they have any moral compass to guide their thoughts and actions or any notion of what democracy is all about?

Of course, given the fact that the document was drafted by a group of religious leaders, it is not surprising that it gets our Bill of Rights so wrong. The document is shot through with pious platitudes and sickly sweet but morally dubious claims. It is also overlaid with the casual but deadly serious prejudices that sadly infest many who take up leadership positions in organised religious bodies. What is surprising is that the Department of Education and radio stations that pride themselves in getting South Africa talking would endorse this nonsense.

First, the document suggests that it is perfectly fine to discriminate against gay men, lesbians and other sexual minorities. In the sections dealing with equality the document states that the right to equality places a responsibility on everyone not discriminate unfairly against anyone else “on the basis of race, gender, religion, national— ethnic- or social origin, disability, culture, language, status or appearance”. No mention is made of a duty not to discriminate against anyone on the basis of his or her sexual orientation — an obligation that flows directly from section 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

One cannot but conclude that this deliberate and quite glaring omission means that the Minister of Education, 567 Cape Talk, Radio 702, and the Lead SA campaign do not support the prohibition against unfair discrimination against gay youth. In effect these institutions and the Lead SA campaign are endorsing the widespread hatred and homophobia that are also prevalent amongst school children. The silence in this document on the impermissibility of discriminating against gay men, lesbians and transgender youth speaks louder than they might think about the deep prejudices underlying this document.

Given the fact that gay, lesbian and transgender youth are particularly vulnerable as they are still coming to terms with their sexuality — a sexuality they are often told by parents, by their religious leaders, by teachers and by fellow learners are perverted and sinful — it is an outrage that this document deliberately skirts the issue. Gay, lesbian and transgender youth are often relentlessly taunted and bullied by peers — which in extreme cases lead to suicide — yet this document suggests that it is perfectly acceptable to discriminate against them.

According to this deeply odious document, while one has a responsibility not to discriminate against anyone because of her race, one has no corresponding responsibility not to discriminate against anyone because of her sexual orientation. This is not what the Constitution and our law says, so it is misleading. Neither is it what any ethical human being would expect. It is, however, how many bigots — including some religious bigots — think.

How any reputable organisation could endorse this document is therefore beyond me. The fact that the Ministry of Education – who has a duty to uphold and respect the rights in the Constitution – is promoting this document, suggests that it has deliberately and flagrantly decided not to honour its constitutional obligations towards a particularly vulnerable section of society. The Ministry is therefore flouting its constitutional duties and I would argue that in promoting this document the Department is in breach of its constitutional duties to respect, protect, promote and fulfil the rights in section 9 of our Constitution.

The document is also laughably and perhaps quite dangerously anti-democratic. In a democracy, a thousand opinions are supposed to bloom. We are supposed to hold strong opinions and express those opinions — even when such opinions are not popular or even when others (including parents, religious leaders and teachers) do not agree with our opinions. This view of democracy is at the heart of what it means to live in a democracy based on the value of human dignity. In such a democracy we are assumed to have agency and to be able to decide for ourselves what we wish to believe and how we ought to behave — as long as we do not break the law.

But this document suggests that children should be seen and not heard, that they should not upset anyone and hence should not really enjoy the freedom of expression that others take for granted. Children should be passive and obedient creatures who upset no one and express no controversial opinions. What this document demands is that our children should act like passive, unresponsive, scared and obedient automatons without any zest for life, no intellectual curiosity, no belief that what they think matter. This, it seems to me, is a dangerously anti-democratic (even fascist) idea.

First, the document states that the right to human dignity means that everyone has a responsibility ”to treat people with reverence, respect and dignity and be kind, compassionate and sensitive to every human being, including greeting them warmly and speaking to them courteously”.

Well, it would be nice if people were generally polite but we have no constitutional duty to treat people with reverence and respect. In fact, I would argue that in a democracy in which we are empowered to decide for ourselves who we are, what we believe and how we want to live, we have a duty sometimes to tell people that they are talking crap and that we do not respect them. How else will they know that they are ridiculous, callous or just plain wrong?

When a religious leader endorses homophobic bigotry I for one will not treat him or her with reverence. I will tell him (because it is mostly a him) that he is harming others and that he is being a very bad person for doing so. A failure to do so would require me to act in a fundamentally unethical manner merely to promote politeness and respect for others. What nonsense.

Similarly the right to freedom of expression does not mean — as this ridiculous document asserts — that we have a duty to ensure that others are “not insulted or have their feelings hurt”. How can we engage in a vigorous exchange of ideas and how can we express ourselves freely if we can never hurt the feelings of anyone? Of course, it is a good thing to try and express one’s beliefs in a logical and rational manner and to engage with the ideas of others seriously, but this does not mean we have an obligation never to hurt the feelings of others. If that were to be the case, I could never express a view, say, that organised religion is often deeply bigoted, that god does not exist or that unbridled capitalism is an evil force in the world.

This document purports to set out a list of responsibilities that are inextricably linked to the rights in the Bill of Rights. But the document does no such thing. It reflects the pious and paternalistic attitudes and beliefs held by many in the field of organised religion. It does not reflect in any way the real responsibilities placed on us by the Bill of Rights. Unlike this document, the Bill of Rights assumes that we are individual human beings whose dignity can only be respected if others also respect our right to say what we believe and think.

In other words the document gets it exactly wrong. Where the Bill of Rights and the law demands that we do not discriminate against anyone because of their sexual orientation, this document is silent. Where the Bill of Rights demands that we should be allowed to express our views and opinions robustly, this document tells us we have a responsibility not to do so if we will hurt the feelings of anyone else. It is teaching our children the wrong things in the wrong way. It is a dangerous document concocted by people who do not like or believe in equality and democracy.

Lead SA should never have gotten involved with this reactionary and paternalistic exercise. They should be ashamed of themselves.

The silence of Justice Mogoeng

Mar 16th, 2011
by Pierre De Vos.
49 comments

Does a judge have a duty to provide reasons when he or she expressly disagrees with aspects of a colleagues judgement when he or she sits on the same bench as that colleague? Does it matter when the disagreement is on a matter of legal principle that seems settled law? If a judge of the Constitutional Court indicates that he or she disagrees with certain views expressed by one of his or her colleagues, should that judge not provide reasons for this disagreement in the name of transparency and in order to foster a culture of justification?

After all, as the late Prof Etienne Mureinik argued in a brilliant and seminal article in 1994, our new constitutional order provides us with a bridge from a culture of authority to a culture of justification. Do judges of the Constitutional Court not have a special responsibility to justify their decisions so that legal academics, other members of the legal community and the public at large can analyse those reasons and — if appropriate — can critique the judgment of an individual judge and the reasons advanced for that judgment by the individual judge?

When we analyse and critique individual judgments handed down by judges of any court, this serves as an appropriate (if limited) mechanism to hold the judges of the court accountable. This does not mean that judges must or do change their views every time they are criticised by the public or by legal academics. But such critiques generate a dialogue (in which judges always have the final say) and hopefully this improves the jurisprudence of our courts.

In our system, not all decisions made by a judge requires the furnishing of reasons. For example, where the Supreme Court of Appeal declines to hear an appeal they are not required to furnish reasons for their decision in every case. But when a judge of the highest court in the land disagrees with a colleague on what seems to be an issue of trite law, but he or she does not furnish reasons for that disagreement, questions will inevitably be asked about the real motivation behind the disagreement and for the failure to provide a reasoned judgment which sets out the justification for the disagreement.

In the case of Le Roux and Others v Dey, the Constitutional Court judgment, which sharply divided between a minority judgment written by Yacoob J and two majority decisions (one written by Brand AJ and one written by Cameron and Froneman), the judgment is preceded by a summary of the various positions taken by the various judges in the case. What caught my eye in this summary was the short sentence in paragraph 9 of this summary which states that all members of the Court endorsed the exposition in the judgment of Froneman J and Cameron J about apology “and, save for Mogoeng J, regarding expression about constitutionally protected groups (paras 181 to 189)”.

Paragraph 181 of the Froneman and Cameron judgment states that:

It is correct, as counsel for the applicants emphasised, that Dr Dey found it objectionable that the image associates him with two men portrayed as engaging in same-sex conduct.  Counsel also emphasised that the Constitution discountenances anti-gay sentiments.  He suggested that Dr Dey’s claim should for this reason fail.

Paragraph 189 states that:

The image showed Dr Dey’s face on a naked body in a sexually compromising position, being photographed.  The affront this caused to his feelings is in our view actionable.  The wounded feelings relate to constitutionally sanctioned and protected personal choices, and are legally compensable.

My first impression of these two paragraphs is that anyone who embraces the constitutional injunction that one has to respect the equal dignity of all — regardless of the sexual orientation of the person — would have no problem with the content of these two paragraphs. I might be wrong, but these paragraphs do not seem particularly controversial — given the jurisprudence of the Constitutional Court on sexual orientation discrimination.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the brief throwaway line in the court’s summary of the judgment quoted above therefore suggests that Justice Mogoeng does not agree with the long line of precedent on sexual orientation discrimination.

This perception may be wrong. I might have misinterpreted the meaning of the paragraphs quoted above. Besides, there may be very good reasons why Justice Mogoeng does not agree with the statement that our Constitution does not favour anti-gay sentiment. It may also be that Justice Mogoeng disagrees with the statement that choices about engaging in same-sex sexual behaviour are protected by the Constitution not because he does not respect the human dignity of gay men and lesbians but because of some other — as yet unstated — reason.

The problem is that Justice Mogoeng did not provide us with such reasons. There is no separate judgment provided to explain the position of Justice Mogoeng. It is therefore impossible to analyse or critique his stance or to say what motivated it. No one can say whether he or she ought to agree or disagree with Justice Mogoeng or with the other judges of the Constitutional Court.

Justice Mogoeng has in effect managed to avoid scrutiny of his views by the legal community and by the public. While this means he has avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy, there might be good reasons for this. But as these reasons were not provided, it is not possible to have an informed and reasoned discussion about it.

In the absence of reasons one may well wonder what Justice Mogoeng’s views are about the rights of gay men and lesbians protected by our Constitution. One may wonder whether he believes that the prohibition on unfair discrimination on the basis of sexual orientation enshrined in our Constitution should be ignored or subverted by the judges on the Constitutional Court and whether he believes that he is bound by the precedent set by the Court in a long line of previous cases. But as no reasons were given, one would not be able to engage in a reasoned and responsible discussion on this disagreement.

The fact is that we simply do not know why Justice Mogoeng declined to agree with the paragraphs quoted above. By not providing us with reasons for his disagreement, Justice Mogoeng has left himself open to criticism — not for expressing his views in a reasoned and careful judgment, but for not providing any reasons at all.

The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, has not been served by this silence. Justice Mogoeng has, in my opinion, therefore unwisely failed to embody the culture of justification demanded by our Constitution.

If Justice Mogoeng holds controversial views on the rights of gay men and lesbians (rights which are explicitly enshrined in our Constitution) it would have been better for everyone concerned if he had expressed these views in a reasoned judgment. Some of us might have unpacked and criticised these reasons and might have had harsh words about his views, but at least we would then have engaged in a reasoned dialogue about the values and principles of one of the judges on our highest court.

In the absence of reasons, no such dialogue is possible. In my opinion the South African public is not served by such a silence. Neither is the Constitutional Court or the judge who has declined to provide reasons for his disagreement with colleagues. It is surely always better to debate an issue on the basis of a reasoned set of arguments, than to leave things unclear and vague. Such a silence creates unnecessary suspicion and invites uninformed speculation about the motives and views of a judge.

Is the reasonable person a homophobic prude?

Mar 11th, 2011
by Pierre De Vos.
64 comments

Is it reasonable to be a prude who thinks of sex as always being somewhat dirty and depraved, as something that must remain hidden and covered up at all cost? More pertinently, is it reasonable not to have a sense of humour? In the Laugh it Off case, dealing with the Black Labour/White Guilt T-shirt, Justice Albie Sachs famously asked: “Does the law have a sense of humour?” In that case the Constitutional Court seemed to have agreed that the law can have a sense of humour.

But things seem to have changed up on Constitution Hill and this week the majority of judges of the Constitutional Court found that three schoolboys who played a prank on a deputy headmaster could be successfully sued by that deputy headmaster for defamation. In the case of Le Roux and Others v Dey the majority (per Brand AJ) argued that it was per se defamatory for schoolboys to publish a manipulated picture, described in the following – laughably prudish – manner by Brand AJ:

What the picture explicitly shows is a frontal image of two men, both naked, sitting very close together on a couch. Their legs are wide open and the leg of the one is resting across the leg of the other. The hands of both are obviously in the region of their own genitals, but both the hands and the genitals are covered by an image of the school crest. The position of the hands behind the crest is suggestive of sexual stimulation or some other sexual activity. In short, the vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society. The faces of the two men are electronically cut out and replaced by those of the school principal, on the one figure, and that of Dr Dey, on the other. The manipulation of the picture in this way is obvious and crude. No reasonable person could ever think that the bodies on which the faces are pasted were actually those of the principal and Dr Dey.

I find this description of the picture rather extraordinary. It reveals perhaps more about the moral universe inhabited by the author of the Constitutional Court judgment than he might have realised when he wrote the passage quoted above. The majority seems to assume that two men who have a photograph taken of themselves while they engage in sexual acts are necessarily and always promiscuous and that they are therefore engaged in sexually immoral acts.

While the majority judgment seems to suggest that the fact that the picture depicts two men (as opposed to one man and one woman – the deputy headmaster with Pamela Anderson, say) was irrelevant, it is not so clear from the passage quoted above that this logic is adhered to throughout the judgment. The idea that when two men are depicted as engaging in sexual acts one can reasonably assume that they are promiscuous, defies logic. While many South Africans will have this view, the meaning of the pictures cannot be judged according to how excessively prudish and homophobic members of the public will interpret the picture.

As Brand points out, when deciding whether a statement was defamatory one must ascribe to it the ordinary meaning given to the picture in its context by a reasonable person.  The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the picture in its context and that he or she would have had regard not only to what is expressly conveyed but also to what is implied. 

This leads one to pose the following set of questions: who is this reasonable viewer conjured up by the court and what are the values according to which such a reasonable viewer will judge the meaning of a picture? Will such an ordinary reasonable viewer have a sense of humour? Will he or she take into account the fact that the picture was produced by school children and that the faces on the picture clearly did not belong to the bodies on the picture but were added to them by school children?

Would such a reasonable viewer “instinctively” jump to the conclusion that where two men are depicted as engaging in sexual activity they are promiscuous and are engaged in immoral acts? Will  the reasonable person be imbued with the values enshrined in the Constitution or will he or she (like the majority of South Africans) harbour explicit or latent prejudices about gay men and jump “instinctively” to conclusions based on the stereotypes and prejudices that many South Africans (and perhaps also some judges?) hold about gay men?

The construct of the reasonable person is of course a legal fiction. The reasonable person is a fictitious person created by the judge to provide a lens through which to evaluate the picture or publication. Where a judge constructs the reasonable person as someone who is prudish beyond belief and jumps to the conclusion that where two men are depicted as engaging in sexual activity that reasonable person would believe that they are promiscuous and engaged in immoral activity, what the judge in effect is doing is telescoping his or her own beliefs, sexual anxieties, feelings of moral superiority and other prejudices on to the legal construct of the reasonable person to justify his or her own judgment and to provide that judgment with the veneer of objectivity.  

That is why I would argue that the judgment of Brand AJ may perhaps be read as an essay on the homophobic stereotypes that are still deeply embedded in the minds of a majority of South Africans. That is also why the judgment may be saying more about the impossibility of judges constructing and applying a truly “objective” standard of the “reasonable person”, than it may be saying about the defamatory nature of the image under discussion. 

As far as I can see, the reasonable person constructed by the majority of the Constitutional Court is a person who “instinctively” assumes that men depicted as engaging in sexual acts are promiscuous and that what they are doing is immoral – without ever having to engage with concepts such as promiscuity and immorality. The reasonable person cannot define these concepts, but he or she knows it when he sees it because of a gut feeling of revulsion experienced at seeing such a picture.

It is unclear why the majority of the court did not provide a cogent argument to justify its conclusion that sexual immorality was at stake here. Neither is it clear why the court did not fully explain how it came to the conclusion that the two men depicted in the picture were promiscuous.

As far as it is possible to answer these questions based on the reasoning of the court, one might conclude that the Constitutional Court came to the conclusion that whenever a picture is taken of two people engaged in sexual acts (whether the picture is taken by themselves or by someone else), this turns a private and acceptable (if somewhat strange and perhaps slightly shameful) act into a public and hence depraved and immoral act.

Maybe in Bloemfontein – as elsewehere in South Africa – many people think in this way, but in a constitutional democracy in which the narrow and moralistic, religiously-inspired, values are not supposed to be enforced by the law, one can hardly argue that the legal construct of a reasonable person could jump to such a conclusion. But this is exactly what the Constitutional Court – at least the majority – seemed to have done here.

In the absence of an explanation, it is not far-fetched to wonder whether the majority of the court was not influenced by its own ambivalent (if perhaps repressed) assumptions about gay men. After all, the stereotype that all gay men are always promiscuous and that gay men are always engaged in immoral acts are widely held in our society. Could it be that because the two men were photographed and did not care to hide the fact that they might enjoy the sexual company of each other (hence that the two men were not ashamed of their homosexuality and the sex they were enjoying), made the “perversion” and “immorality” just so much more shocking for the so called “reasonable person” constructed by the majority of the Constitutional Court.

What I take from this judgment is that for the reasonable person constructed by the Constitutional Court, sex and sexuality is by its vary nature shameful and degrading, that as long as sex (especially sex between two men) remain hidden in the privacy of these men’s bedroom one could still tolerate the immorality of it all, but as soon as the sexual engagement is made public it becomes so shameful, depraved and immoral that any reasonable person would conclude that it would be deeply hurtful to anyone if one ever suggested that they could possibly have been engaged in such activity.

After having concluded that the reasonable person would have interpreted the picture in the way described above, the court had to decide whether the image was defamatory. In doing so, the majority of the Constitutional Court argued that what had to be answered was the question whether any reasonable observer would infer some association between the two teachers, on the one hand, and the situation described in the picture, on the other. The majority found that the mythical reasonable observer would do just that:

After all, their faces were directly linked to the bodies. In my view that renders the picture difficult to distinguish from a caricature or a cartoon: in all these cases it is obvious that the person identified is not an actual depiction of that person, but that there is some association between that person and what the picture conveys.

According to the Court the reasonable person would ask: why?  “Why are the principal and his deputy, Dr Dey, associated with persons behaving in a lewd and indecent way”? (Once again, note the assumption that when two men are depicted as engaging in sexual activity this must always be assumed to be lewd and indecent.) Why are their faces not pasted on, say, the bodies of ballet dancers, the court wanted to know.

The answer to these questions that, in my view, instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.

The majority of the Constitutional Court somehow did not “instinctively” jump to the conclusion that the picture was manufactured and distributed by schoolboys and that they were engaged in a schoolboy prank. Could it be that the judges were so horrified by the depiction of two men engaging in sexual activity (this “lewd”, “indecent” and “immoral” behaviour – siesa!) that the majority could not conceive of the schoolboy prank in any way other than that it was aimed at tarnishing the image of the headmaster and his deputy and that it had achieved this purpose.

Of course, I would argue that a reasonable person imbued with the values of the Constitution, a person who did not instinctively recoil from depictions of gay sex but understood that sexual activity was a rather enjoyable and mostly positive experience - whether the sex occurred between two men or between a man and a woman – a person who showed some understanding and tolerance for the world of pranks and jokes inhabited by schoolchildren, that such a person might well have concluded that the images were not defamatory because they did not in fact lower the esteem of the headmaster and deputy headmaster in the eyes of any reasonable person.  (Athough it must be conceded that the schoolboy prank probably did lowered the esteem of the headsmaster and the deputy headmaster in the eyes of humourless homophobes and bigots.)

But the majority of the Court found that the fact that this was a schoolboy prank was of little use to the defendants. The real question, argued Brand AJ, is whether the reasonable observer – perhaps, while laughing – will understand the joke as belittling the plaintiff; as making the plaintiff look foolish and unworthy of respect; or as exposing the plaintiff to ridicule and contempt.

Once one has assumed that sex between men – unless hidden away in the privacy of a bedroom – is always promiscuous and immoral, the answer to this question seems pretty obvious. No wonder the majority of the court found in favour of the deputy headmaster who (revealingly) seemed to have been rather disproportionately upset by the suggestion that he might have engaged in same-sex sexual acts.

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