Zoliswa Nkonyana was raped and murdered by a group of young men on 4 February 2006 in Khayelitsha because she was a lesbian. Although another young woman witnessed the attack, it is alleged that the witness had only been contacted by the Police after a journalist alerted police to her existence more than two weeks after the murder. (The investigating officer denied this. “I was getting round to taking a statement from her,” said Constable Geldenhuys.)
Now, Constable Geldenhuys might be correct, but in my own experience I would be surprised if the police in Kayelitsha had prioritised the murder of a lesbian. A few years ago when a lesbian was brutally attacked in Kayelitsha by a group of young men who lived down the road from her, nothing I did could convince the police to go and arrest the suspects. I even wrote letters to the MEC for Safety and Security and phoned the station commander and they all seemed singularly uninterested in the case. After all, this was only a few young boys “teaching a lesbian a good lesson.”
The suspects were known to the police. There were at least five witnesses. Yet, up to this very day no one has been arrested for that crime. As the police officer sent to investigate the incident told the victim: “But you are a lesbian, so why are you crying with the police.”
Of course, if the woman who was raped and murdered was not a black lesbian from Khayelitsha, but a young heterosexual blond foreigner, it is inconceivable that the police would not have bothered to have interviewed the witness more than two weeks after the crime occurred. In South Africa some lives are cheaper and more expendable than others, and if you are a black lesbian you better know that your life is not worth much – even in the new South Africa.
On Friday I took part in a protest march to protest the fact that three and a half years after the murder and more than twenty postponements later, the young men alleged to have raped and killed Zoliswa have not yet been tried. One of the demands of the organisers of the march was that the trial be moved from the Kyaelitsha magistrates court to the Cape High Court because a strong suspicion lingers that no justice will ever be dispensed for the murderers in the Kyaelitsha court.
When people talk about the transformation of the judiciary and our legal system they will not mention the name of Zoliswa or any of the other victims of serious crime who seldom seem to have even a modest chance of receiving at least a semblance of justice – merely because they had the misfortune to live or have been murdered in a poor black area of town or because they belonged to an unpopular group because of their sexual orientation, their race or their gender.
The day the self-serving and self-interested so called champions of judicial transformation talk about the plight of people like Zoliswa, when they explain that the aim of the transformation of our legal system should be to get the police to seriously and vigorously investigate crimes – even if the victims are poor, black and homosexual – and for every court in South Africa – even those courts in poor black areas – to function efficiently and without the stench of corruption hanging over them, on that day I will take them seriously.
But until they talk about the real issues regarding the transformation of our legal system and focus on completely irrelevant but self-interested side-shows like whether John Hlophe should be Chief Justice, I will continue to dismiss them as self-serving charlatans who (ab)use “transformation” as an empty buzzword to advance their own interests and the interests of their elite friends in an attempt to corruptly “fix” the system to work towards their own advantage – the poor and the marginalised be damned.
If the Justice for Hlophe Alliance was serious about the transformation of the judiciary and our legal system, they would have been at the front of that march and the many others held over the past months to protest against the criminal way in which the police and the prosecutors have dealt with the murder of lesbians across South Africa. They would have issued angry statements (spelling mistakes and all) to condemn the homophobia, racism and sexism still entrenched in our legal system and would have demanded justice for Zoliswa and for others who like her, were murdered merely because they loved the wrong person and whose murderers have not been brought to book at least partly because from the police upwards the murder of a lesbian is not seen as a priority crime.
Of course much is wrong with our criminal justice system and Zoliswa is not the only victim of murder whose perpetrators have not been brought to book more than three years after the murder despite the availability of strong evidence. But the unpalatable fact is that if one is poor, if one is black and if – on top of that – one is a lesbian one is more likely to be killed in South Africa and one’s murder is more likely to be ignored.
That is the real injustice which people who throw that word around should shout and scream about. But real injustice usually happens to politically unconnected people, poor people, people who do not drive in Porche’s or own wine farms, people who could not do you favours when you happen to be in a fix and could not give you a job because they are well connected with politicians or slimy businessmen.
Prof, a good post once more, but yoiur fixation and obsession with the Honourable Justice Mandlakayise John Hlophe spoils every good point you make, you’re as obsessed as the people you criticise.Careful that you’re guilty of the same crime you accuse those who hold differing opinions to yours.
Prof,
Thanks for this insightful blog. It really is easy to forget in our middle class suburbs (complaining about the 4×4’s fuel economy) that poverty is not just about access to education, housing etc but that access to justice is lacking just as much.
One thing is puzzling me, is it just the police, judiciary that is ignoring the poor? Of does the press have a role to play as well?
I have read numerous articles about President Zuma’s (apparently unconstitutional) CJ nomination yet not a single news paper has bothered making a fuss about “corrective” rape… Usually something you’ll find on page 116 of international magazines like The Economist and Time, but that is about it, but not a peep from Naspers, M&G or any other big local media house.
Shame on them!
Don’t forget potholes ….
Prof, a good and very emotional post that talks to the REAL problems we have in SA.
Whilst I wouldn’t agree totally with your views, for example I do not know if the situation would have been any different if she was a white lesbian – the prejudice seems to be primarily premised on her sexual orientation, which is really sad in this day and age – I share your views that it’s time we start debating real issues of transformation, not always whether Hlophe, Ngcobo or whoever is going to be our next CJ. As much as those issues are important, I doubt whether the family and friends of Zoliswa even care – they just want, and deserve, JUSTICE.
I also agree with Mdu that your continued negative reference to Hlophe etc does exactly what we do not need – it diverts the attention from the real issues, which is unfortunate.
Whatever transformstion may mean – and apparently no one is altogether sure as to what it truly means – I think it must at least embrace the view that constitutionally protected rights should amount to far more than token entitlements. And it seems that the rights of black lesbians amount to little beyond baubles really – which of course is a great shame.
I would also say that I think the Professor acted responsibly when he referred to the Justice For Hlophe Alliance in his latest piece. That is, for all their impassioned talk of the need for transformation, they have (as far as I am aware) remained silent as to pressing concerns such as the need to ensure that police avoid discriminating against victims on the basis of sexual orientation. I think that this is an important revelation in that it helps to underscore the view that much of the more passionate and public references to transformation are misinformed and misconceived.
Leigh
I will start by saying I have no idea what the total scope of the JFHA is, but could it be that fighting for the rights of lesbians is not what they are concerned about – not necessarily that they don’t care about the issue?
I just feel that it’s a bit unfair to expect all the little groupings we have in our society to have a voice on each ad every issue that we are confronted with. We will soon be asking why was the BMF or any other grouping that supposedly advocates for transformation not at this or the other march. It seems to me to be an unreasonable expectation and a fulire to acknowledge that most of these groupings have a specific purpose, not to say they are oblivious to other issues in society.
…that should have been a “falure to acknowledge”….
Mzo, I agree with you insofar as it would be unfair to accuse a group formed to pursue a focused object of being disinterested in other concerns. Or more accurately, it would be unfair to level such an accusation without some pretty convincing evidence to that effect.
So I suppose the question has to become: what strikes me as being objectionable about what the JFHA does?
The problem as I see it is this: the JFHA seems to back Hlophe on the grounds that his appointment to the Constitutional Court bench would be the best thing for transformation. And to me, for that view to pass muster, the JFHA would have to (a) offer a constitutionally tenable conception of transformation and (b) demonstrate how Hlophe’s appointment would help in the realisation thereof.
As I mentioned in an earlier post, it seems no one can offer a definitive conception of transformation. But I do think that we can reliably say that any cogent definition thereof would have to embrace certain values such as equality, respect for human dignity and very importantly as regards Hlophe, accountability.
I do not think the JFHA has directed enough meaningful thought towards (a) what a convincing definition of transformation would have to embrace and (b) whether Hlophe’s appointment could conceivably undermine some of the goals that any convincing conception of transformation would have to endorse.
Mzo: I hope that the Prof’s mention of the JFHA does not take us away from the real issues that in general justice is not as free and fair to all. The case of Zoliswa is one of many cases that has dragged on and on without any prosecution of people. A good friend of mine from Canada after reading in our press talk about Justice said: The police, state and courts cannot bring Justice. They can make sure that the rule of law is enacted; during the course of this there could be some justice.
I have previously in this blog asked the very same issue the Prof. raises today: Why is the law seen to be applied to some and not others? Can we say the legal system is Just? Can someone please make me believe there is something call justice.
Thomas, you ask whether we can say that the legal system is just. I think – in case you are vaguely interested in my ramblings – that as regards the procedural and substantive rights for which it provides, our system is admirably just in many respects.
But as you will know, the question of whether our system is just is quite distinguishable from the issue of whether people in South Africa enjoy justice. And I do not think that people in this country see much in the way of justice at all.
To take my last point a little further: I think we can draw a list of requisites for societal justice. And that list would necessarily include (a) that all people are to be bound by the rule of law and (b), that any discrimination on unfair bases would have to be eradicated.
Sadly, it seems that our society does not meet even these two basic requirements.
Leigh,
Just like you, I still need to see any convincing reason why Hlophe JP will supposedly advance transformation more than any other judge, say Ngcobo J, would.
Whilst I’ll be the first to acknowledge my ignorance w.r.t. what their aims actually are, it seems to me that the JFHA is concerned primarily with lobbying for Hlophe JP to go to the CC on the basis of, inter alia, his perceived role in fighting racism. I may have captured their stated claims incorrectly. However, if I’m right, it would appear that their main concern (by no means a suggestion that this is their only concern) is transformation along racial lines and the so-called “Africanisation” of SA law – whatever that means.
In that respect, I concede that there might be merit in expecting groupings like the JFHA to be more vocal on issues of transformation in general and not just on issues relating to their beloved JP – entitled to lobby for him as they may be!!
Thomas
That’s exactly why I called Prof’s reference to the JP unfortunate. I can imagine that if there was someone from the JFHA alliance here, they would probably be more concerned with defending the JFHA / Hlophe JP than the serious issue raised by Prof.
Cases of Zoliswa just remind us that, whatever we mean by transformation, it would appear that we are still a long way from transforming our society, let alone the judicial sysyem as a whole.
Mzo, I agree that the JFHA seems to back Hlophe on the basis that his appointment would foster transformation along racial lines. And I have never read of anyone of them consider other issues around transformation and whether the impact of Hlophe’s appointment on those other issues would be for good or ill.
And while I will respectfully concede that the JFHA is entitled to voice its support for Hlophe on any constitutionally permissible basis, its conception of transformation and its inspection of the impact that the appointment of Hlophe could conceivably have given his past indiscretions seem to be decidedly unsatisfactory.
@Thomas
“Can someone please make me believe there is something call justice.”
I suppose thats the problem right there because we ask so little from law i.e justice
we need justice and reduced crime
Justice is not accomplished and crime is not reduced because of “innocent bias,” The political means of trying to control crime sacrifice the ends of achieving justice .The ends actually achieved are a deprivation of citizens’ due process rights. The results of this injustice fall disproportionately to the poor blacks, and increasingly, females as pointed out by pierre.
The law is the foundation upon which “innocent bias” is constructed and propelled forward in the criminal justice process. How this is done is through a government who is not actually demographically representative of the the population nore are the voters who voted for them into power .
The government is not representative of black lesbians are they?
The ANC party isnt exactly poor isnt it? last time i checked they all driving german cars. how is that representative of the poor? its representative of black people but not poor people
The problem with Law i.e criminal law is this its targeted for the poor people who happen to be black by targeting the most serious crimes. Where as white collar deviance is actually the most threatening of crimes.
The next problem is media (mzo will love me for that) becuase media only focuses on the bizarre and overly violent crimes but not reporting on a more harmfull acts of white collier crime.
What laws are there that inadvertently shield white-collar criminals?
so if Zuma and jeff want to talk about transformation… how is putting more and more people of a certian race on the judiciary gonna help poor people?
this is one area im sorry Zuma and jeff have completely failed. The criminal law itself needs to be restructed, retransformed. The sheilds in place in law that protect rich people need to be demolished
Pierre, you do not seem to grasp that that the main problem faced by ordinary black men and women in South Africa is not criminality, or so-called “lesbian attacks,” but rather (a) the acute humiliation of not being presented with the bill at fine eating houses; (b) failure to appoint them as CC clerks and, (c) worst of all …. HLOPHEPHOBIA!
Mikhail, I shall draw attention to what I see as two shortcomings of your post.
The first is that you appear to misconstrue the Professor’s piece. You do so inasmuch as the Professor does not say that the principal problem faced by ordinary black South Africans is ‘criminality’. Further, the Professor does not rule out the problems which you label (a) and (b).
The second flaw is your reference to ‘Hlophephobia’. That description seems to suggest that the Professor has no rational bases for seeing Hlophe’s continuation in judical office as being exceedingly repellant. Believe me, if you where to ask the Professor (or anyone of a number of very clever and articulate bloggers) why he thinks that Hlophe should not be a judge, the only reason as to why he would decline would go directly to time constraints.
You seem to me to have an excellent grasp of how to structure written work. That fact, of itself,suggests a keen mind. And with all respect, it is disheartening that your capacity to apply your mind is needlessly constrained by your clear lack of objectivity.
I say that you lack objectivity because you have illustrated that you will defend Hlophe and his supporters on poorly investigated grounds. For a start, you have yet to apologise for your clear factual inaccuracy as regards your very vigorous defense of Paul Ngobeni during a previous discussion. And with respect, your failure to do so amounts to either (a) cowardice or at least (b) extraordinarily bad form.
And secondly, it seems that you have not even bothered to investigate whether your assertion of Hlophephobia is defensible – which for the most part it simply cannot be.
Leigh, have you considered the possibility that Mikhail is actually pulling everyone’s leg and is being ironic/sarcastic?
Professor, I must concede that I have not.
I would like to think that he is because that would be a far more comforting thought than the idea that someone with his apparent abililty could produce such a cack-handed display of advocacy.
Pierre, this is all well-and-good. But Die Burger have stolen a march on you with their Medical Miracles related cover story this morning. I’m sorely disappointed. Standards are slipping here at constitutionallyspeaking.co.za
Dude this was awesome.
Thanks a lot. I have been reflecting a lot on my blackness because of certain new conditions in my life. The paragraph relating to black poor lesbian and blond white foreigner touched me.
I have a few generalizations to say: we live in a work which fucks with everyone who is not a white heterosexual male. I have seen then, niggas and women actively let themselves down, like in the example of the police in khayelitsha who i presume to be black males. So by own own acts, we let ourselves down, and add to our inferiority and misery and marginalization and other deeply fucked up conditions of being.
My question now is, are we to blame? Or is the white heterosexual male to blame? I have let down my blackness many times in my life. But you see, i was disempowered, i did not know better, i was in effect told racial inferiority is the norm and is the way forward. That africa must ‘modernize’, ‘develop’, ‘have highways’, ‘speak good and be articulate in English’, ‘science and technology’.
So was it my fault, or the beast’s? I blame the beast. But that fact does not deprive me of the power to overcome this beast.
Peace
Prof
With all this leg pulling by Mikhail and Leigh, I’m really hoping that they start pulling in the same direction soon, ‘cos I’m sick of having to lengthen my trousers. Reading your blog is getting like dancing the hokey cokey.
One more thing:
The relationship between the customary law and common law of South Africa is imbued qualities which reflect racialized grossly unequal sickness described in my last posting.
Dude
Sarah, what sort of dance is the hokey cokey?
And sorry about your trousers.
Gays and Lesbians are worse than dogs and pigs.
Good post Pierre.
Well, Leigh
You put your left leg in,
You put your left leg out,
In out, in out
You shake it all about.
You do the Hokey Cokey
and you turn around.
That’s what it’s all about!
[repeat for right leg, right arm, left arm, head, whole self and anything else you might fancy putting in and out.]
Hope that helps.
Ah, Sarah!
Is THAT what its all about?
As the genome project progresses we increasingly learn
that human behaviour is largely genetically determined.
This is modifying the falseness against ‘racism & sexism’
eg. from ‘we are one’ to the more realistic ‘let’s see how
to reduce conflict’.
Since we now KNOW that homosexuality is genetically
determined, it’s interesting to see how this fits in to the
‘system’: bantu attituted that infertility is a disaster
[called failure-to-produce] -> unsound population increase
-> economic deprivation -> xenophobia & blame-zungu
-> transformation will solve the problem/issue/challenge
[have you watch how the PeeCee-clowns morph their
terminology?] -> so we must support Hlope.
Isn’t it strange, how we see that everything is interconnected,
as we get old? So yes, from his constitutional justice view, the
Prof’s post is admirable, but will not halt the transformation
of Zanzi towards a Zaire-like-society, via the intermediate
stages of Zimbabwe -> Zambia.
A luta Continua !
PS. pity for Prof’s poohwah credentials that DA criticises Shaik too.
Zanzi is becoming increasingly polarised.
Sarah, thanks for that – it all helps in one way or another. And again, my sympathies about your trousers (hate to see a good pair of those ruined).
Leigh,
Sorry, I got one of those lines wrong. It should of course read ‘Shaik it all about’.
Thanks for your concern about my trousers. Did I mention how my midis are fast becoming minis?
Good post. I linked to it.
http://africasacountry.wordpress.com/2009/08/12/black-lesbian-justice/
BTW, It did not need the reference to Hlophe et al’s sideshow.
Sean
[...] targeted is no accident. That these acts are not causing mass outcry or even being consistently investigated is no [...]
hi friends