Remedial or restitutionary equality are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination” … They are integral to the reach of our equality protection… Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes.. However, what is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.
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.BACK TO TOP