Zoliswa Nkonyana

LGBT activists have welcomed the sentencing of four men found guilty of brutally murdering 19-year-old lesbian Zoliswa Nkonyana in 2006, describing it as a victory. But is it really?

On Wednesday, the Khayelitsha Regional Court sentenced Lubabalo Ntlabathi, Sicelo Mase, Luyanda Londzi and Mbulelo Damba to 18 years in prison, four of which were suspended for five years.

Prosecutors had asked Magistrate Raadiya Whaten for a sentence of 15 years for the men’s appalling crime of stoning and stabbing Zoliswa to death in Khayelitsha in the Western Cape, just meters from her home. They killed her simply because they were disgusted by the fact that she was proudly and openly a lesbian.

“We’re very satisfied with the sentence,” Jayne Arnott, Director of Western Cape LGBT rights group Triangle Project, told Mambaonline.

“It’s a victory for the community at large as well as a victory for lesbian and civil society organisations working against discrimination and homophobia.”

When I asked Arnott if the sentence was not rather weak for a brutal murder, she explained that the magistrate had many factors to weigh up.

“Mainly that the killers were juveniles when they committed the crime – and in light of that she made a fair judgment. We do recognise the complexity of the case”.

Most importantly, said Arnott, the issue of Zoliswa’s sexual orientation and the hate crime nature of the attack was highlighted by the magistrate in her sentencing.

“She gave quite a bit of focus on the issue of Zoliswa being a lesbian as an aggravating factor in the sentencing. She accepted our oral evidence for the state on this. She recognised that the motive was clearly discrimination against Zoliswa and that this was a motivating factor in the murder. I think that it will set a precedent.”

The magistrate, said Arnott, wanted to send a clear message to the community that Zoliswa had the right to live openly as a lesbian in the community.

The case is the second in recent weeks in which LGBT groups have been allowed to testify in court in the sentencing phase of a trial on the impact of hate crimes on the community and among LGBT people.

OUT, based in Pretoria, recently testified in the sentencing of three men who were found guilty of brutally beating a young, black, gay man in a bar in October 2007.

“Eighteen years in jail in exchange for a young woman’s life seems inappropriate. And what of other victims?”

This trend hopefully reflects a growing awareness in the justice system of the heinous nature of hate crimes, something which South African law still does not recognise as a category of crime.

The six-year-long trial of Zoliswa’s killers has been a tortuous and long one. It was characterised by repeated delays, over 40, giving the whole affair an element of absurdity.

Defence attorneys routinely missed court dates without any repercussions and witnesses began to falter in their testimony due to the long span of time between the murder and their court appearances.

Nine men were originally charged with Zoliswa’s murder, but five were acquitted due to lack of evidence, with suggestions that police incompetence was to blame. Farcically, in September 2010 four of the accused managed to escape from the court (apparently with the help of an officer) but were later recaptured.

Arnott noted that much had been learned in the long process of ensuring justice for Zoliswa.

“I think we have learned the importance of coordinating and working with the state prosecutors, keeping a presence and keeping active throughout the process and finding ways of introducing evidence to the court that is relevant.

“We are very pleased that we now have a precedent that other organisations can use when looking at issues of hate and discrimination.”

When one considers the extreme effort and commitment that they put into the trial I can’t blame Arnott and other activists in Khayelitsha for being satisfied with the case’s outcome. Without their ongoing pressure on the system we might well still be without any resolution to Zoliswa’s murder. For this they need to be applauded.

Arnott believes that the sentence “will definitely have an impact,” and that “it will send a message in addressing issues of violence against particularly black lesbians in townships”.

“It’s a clear message that the justice system will not tolerate these kinds of crimes,” she said. We can only hope that it will indeed play a part in stemming the brutalisation of lesbian women in South Africa.

Nevertheless, the sentence strikes me as a somewhat hollow victory. Eighteen years in jail in exchange for a young woman’s life seems inappropriate. And what of other victims? Will they too face years of delays and incompetence in the criminal justice system?

Until we have fixed the broken and flawed system that in many ways repeatedly failed Zoliswa, and will likely continue to fail others like her, she will not truly have justice.

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