The law is failing the South African LGBTIAQ+ community


A recent judgement allowed a Durban man to avoid jail time after confessing to killing a man who allegedly made sexual advances on him. The judge ruled that the accused reacted as anyone else would have. We take a look at how the law is supposed to protect the queer community.

Violent crime is an everyday occurrence in South Africa, and report after report shows that members of the LGBTIAQ+ community are not only some of the most vulnerable, but also specifically targeted because of their gender identity or sexual orientation. As the Gender Health and Justice Research Unit pointed in 2018: “In South Africa, a number of highly publicised cases of homophobic rapes and murders has increased awareness of bias-motivated violence against LGBT people”. In short, hate crimes are a growing epidemic in the country.

What does the law say?

All this rising hatred and brutality towards a community that is protected by a progressive Constitution in a country that is, somewhat ironically, called the Rainbow Nation doesn’t make sense on paper. The protection of LGBT rights in South Africa is based on section 9 of the Constitution, which forbids discrimination by sex, gender or sexual orientation, and applies to the Government and to private parties. What’s more, the Constitutional Court has stated that the section must also be interpreted as prohibiting discrimination against transgender people. Surely this indicates that there is a general tolerance and acceptance of the queer community in our society?

The queer community lives in fear every day.

Well, reality is a very different story for the South African queer community, which is estimated to be around just under 1 million people (do note: this number is based on a survey that counted “out” people, and there are many, many more who cannot be themselves due to fear of being ostracised, persecuted or killed).

According to 2017 research by the Centre for Risk Analysis at the South African Institute of Race Relations (IRR): “…an average of four out of ten lesbian, gay, bisexual or transgender (LGBT) South Africans — 49% if they are black — know of someone who has been murdered ‘for being or suspected of being’ a member of this community.” Of course, one must also apply an intersectional lens to the issue and realise that the type of discrimination varies depending on a person’s race, religion, cultural background, geography etc. and how all of those factors overlap. Essentially, some communities are more vulnerable and more likely to be targeted than others

Will the Hate Crimes Bill solve the problem?

However, despite Constitutional protection, members of the LGBTIAQ+ community still live in fear of being victims of hate crimes. And many can argue that the Government is just not doing enough. For example, the Prevention and Combating of Hate Crimes and Hate Speech Bill is still up in the air after more than a decade of campaigning. And it could prove to be an important piece of legislation. Adv. Jackie Nagtegaal, Managing Director of LAW FOR ALL, points out that the Bill is a step in the right direction: “The Bill will allow the courts and judges to take any form of prejudice or bias based on sex, gender, gender identity or sexual orientation into account as an aggravating factor when determining sentencing for a hate crime”.

This is especially significant because, while crimes like assault, rape and murder are already punishable offences, crimes inspired by hate need to be harshly punished. “Hate crimes don’t just target individuals, but also entire communities, and what being a member of that community represents. Our laws need to send a strong message that this type of criminal behaviour is unacceptable,” says Nagtegaal.

Society’s perception is a crucial element for proper change

So, while the Bill, when it is eventually signed into law, is a step in the right direction, there is another hurdle that the community faces: general perception from the public and authorities. A 2016 study by The Other Foundation revealed South Africans have a strangely conflicting and irrational view of the LGBTIAQ+ community: while 55% would accept a gay family member, only 51% believed LGBTIAQ+ people should have the same rights, and 72% felt that same-sex activity was immoral.

This prejudiced and bigoted perception is generally unacceptable, but it can become particularly dangerous when it influences how police officers handle the processing of crimes and judges determine sentences. Case in point: a Durbanite was recently handed a suspended sentence after confessing to killing a man who allegedly made unwanted sexual advances on him and kissed him.

Nkosinathi Madlala came off lightly with a suspended 10-year sentence on a charge of culpable homicide for striking Sduduzo Buthelezi once on the neck and disposing of his body. Unfortunately, the court had to rely solely on the accused’s version of events as there weren’t witnesses or other evidence. The accused argued that he felt humiliated and responded accordingly. Shockingly, Judge Shyam Gyanda said that Madlala’s “reaction” was consistent with how anyone else would have reacted in the situation. Madlala’s punishment, because he was a “first-offender” is court-ordered anger management classes and community service.

A member of the queer community’s life was reduced to a petty crime by a clearly bias judge. “This ruling is truly shocking! Our courts should never condone violence against a member of a minority group. Not only does it set a dangerous precedent, but it also sends a message to the queer community that their lives aren’t as valuable as others,” asserts Nagtegaal. The accused pleaded guilty and acknowledged that he could’ve reasonably foreseen his actions could kill. Instead of going to the police and reporting the incident, he dumped the body and disposed of evidence to conceal his crime.

A step towards true equality in South Africa

Perhaps the solution lies in more rigorous laws that punish those who carry out hate crimes, which in turn, might influence the general perception of people thinking queer lives aren’t as important as everyone else’s. But this will only work in conjunction with society raising generations who genuinely believe that all people are equal.

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