Speeches

Keynote Address by the Deputy Minister of Justice and Constitutional Development,
the Hon JH Jeffery, MP, at the City of Tshwane’s LGBTIQA+ Summit, held at the Sammy Marks Council Chamber, 4 October 2023

Programme Directors,
Member of the Mayoral Committee, Cllr Peggy De Bruin,
Chairperson of the Multiparty Women Caucus, Cllr Sandy Motale,
Representatives of Chapter Nine institutions,
Members of civil society organisations,
Guests and friends,

Being here in Tshwane, I remembered how history was made in 2018 when the Pride rainbow flag was flown outside the Tshwane City Hall - making it, what is believed to be, the first time that the flag was officially hoisted by a municipality in our country.

And since it’s the month of October, we think back to the very Pride march which was held in Johannesburg on 13 October 1990. Speakers included Simon Nkoli, Justice Edwin Cameron and Beverley Ditsie. It was at that historic occasion when Nkoli said, and I quote –

“I am black and I am gay. I cannot separate the two parts of me into secondary and primary struggles. In South Africa, I am oppressed as a black person. And I am oppressed because I am gay.
So when I fight for my freedom, I must fight for both oppression, all intolerance, all injustice.”

Today South Africa has a progressive legislative framework to protect the rights of LGBTIQA+ persons.

In our Constitution’s Bill of Rights, there is an equality clause which prohibits discrimination on a number of listed grounds.  

This is in section 9(3) which says that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 

It further says that no person may unfairly discriminate, directly or indirectly, against anyone on one or more of the grounds listed and that national legislation must be enacted to prevent or prohibit unfair discrimination.

The Promotion of Equality and Prevention of Unfair Discrimination was subsequently enacted in line with section 9(4) of the Constitution.

We also have provisions in other laws and policies to protect and promote the rights of LGBTIQ+ persons. Since the transition to democracy in 1994 there have been important changes. These changes have not only been brought about in terms of laws passed, but also by our courts and its judgments.

For example, one thinks of the Du Toit case where the Constitutional Court held that certain provisions of two laws, which prevented a lesbian couple in a permanent relationship from jointly adopting children, violated the equality provision on two grounds: sexual orientation and marital status, because the legislation confined the right to adopt children to married couples only.

Or a Labour Court judgment where the applicant was atransgender woman who brought an unfair dismissal dispute in terms of the Labour Relations Act. She argued that shehad been unfairly dismissed based on her desire to undergo a sex change operation.The Court ruled in her favour as the dismissal had breached her constitutional rights.

In other instances, we’ve seen the recognition of same-sex partnerships in relation to benefits such as pensions and other employment benefits and immigration rights for same-sex couples.  

There are many laws which have provisions to protect the rights of LGBTIQ+ persons.

In 2003 we passed the Alteration of Sex Description and Sex Status Act and the Civil Union Act of 2006 provides for the solemnisation of civil unions, by way of either a marriage or civil partnership.

The Employment Equity Act prohibits unfair discrimination on a number of grounds, including sexual orientation.  The Labour Relations Act makes it an offence to dismiss any employee on the grounds of their sexual orientation while the Medical Schemes Act defines a dependent to include a same-sex partner.

Because of our laws and the judgments passed by our courts, South Africa is seen as leader in the area of legislative protection of LGBTIQ+ rights. Nine countries’ constitutions explicitly mention sexual orientation as a protected ground against discrimination. Only nine – and South Africa is one of them.

At the other end of the spectrum there are still a number of countries which continue to criminalize same-sex relationships and/or even impose the death penalty for consensual same-sex sexual acts.

But having good laws is not enough.

Despite constitutional and legislative protections of equality, we do know that there are on-going threats and violations against the rights, well-being and safety of LGBTIQA+ and gender non-confirming persons in South Africa.

Individuals in these vulnerable communities continue to be subjected to hate crimes and gender-based violence. Challenges still remain in changing peoples’ attitudes and personal prejudices.  LGBTIQA+ and gender-non-confirming persons are often discriminated against and even singled out for physical attack.

From the side of Government it was clear that more had to be done to protect and promote these rights.

The National Task Team on the Rights of LGBTI Persons was established in 2011 by the Department of Justice and Constitutional Development with the aim of strengthening government’s ability to respond to the needs of LGBTIQ persons and to strengthen the capacity of civil society organisations to deliver related services.

A national Rapid Response Team and nine provincial Rapid Response Teams were also established to monitor and track pending hate crime cases within the criminal justice system.

The RRTs are led by the Department of Justice and Constitutional Development and consist of the National Prosecuting Authority, the South African Police Service and nominated civil society organisations.

The NTT comprises government departments in the JCPS cluster and other relevant government departments (being Social Development, Health, Education, Correctional Services, Women and People with Disability, International Relations and Cooperation, Home Affairs, the National Prosecuting Authority, the South African Police Service and Government Communication and Information Services), as well as Chapter 9 institutions and civil society organisations in the sector.

The NTT is currently co-chaired by me and a nominated representative of the civil society organisations, Steve Mmapaseka Letsike of Access Chapter 2.

The NTT’s National Intervention Strategy for the LGBTIQ+ Sector was first launched in 2014 and founded on the following pillars – prevention, response, capacity building of officials in public institutions, the effective coordination of established national and provincial structures (provincial task teams, national and rapid response teams) and monitoring and evaluation.

The NTT, as a partnership between civil society and government, has proven to be very successful and enormous progress has been made in ensuring that proper structures are put in place to address this violence and to monitor hate crimes cases against LGBTIQ+ individuals.

A decision has since been made to widen the mandate and the focus of the NTT and to revise the NTT’s National Intervention Strategy. Cabinet approved both these interventions in August this year.

The NTT was initially established to focus specifically on violence against LGBTIQ+ people, but there is clearly a pressing need to widen the scope of the work of the NTT to focus more broadly on all aspects relating to the human rights of LGBTIQ+ people and not only on incidents of violence against them.

This widening of the focus will ensure that the NTT’s work deals with all matters pertaining to sexual orientation, gender identity, gender expression and sex characteristics so as to ensure holistic interventions and to conform to international standards.

The revised NIS doesn’t exist in isolation. The revised NIS and the pillars of National Strategic Plan on GBVF link very well, in particular in so far as how the objectives of various subcommittees of the NTT and the provincial task teams link to the NSP’s Pillar 6 (Research and Information Management), Pillar 2 (Prevention and Building Social Cohesion), Pillar 4 (Response, Care, Support and Healing) and Pillar 3 (Justice, Safety and Protection).

The NTT will also be elevating the challenges faced by transgender and intersex people, as well as gender non-conforming people.

But despite all these advances made, we still see hate crimes cases targeting LGBTIQ+ persons. But it is important to highlight that these cases are being investigated and successfully prosecuted.

For example, from April 2022 to August 2023, eight cases were successfully finalised with convictions. Of these, two were of rape, five of murder and one of common assault and malicious damage to property.  Currently there are 29 cases on our list of which 11 - in other words, over one third of the cases – are at trial stage.

I also want to share with you the progress being made on the Prevention and Combating of Hate Crimes and Hate Speech Bill, which has been passed by the National Assembly and is now with the National Council of Provinces for consideration.

This Bill is about hate crimes and about hate speech. It provides for a new category of crimes called hate crimes.  

These are existing crimes which are motivated by the perpetrator’s prejudice or intolerance towards the victim because of the group that the victim belongs to – in other words, because the victim is, for example, gay, Black, Jewish, Muslim et cetera.

So if a perpetrator kills a person, it’s murder.   If it can be proved that the motive for the murder was because the victim belongs to a certain group, for example, based on the victim’s race or sexual orientation then that murder will be a hate crime.

The Bill also creates a new offence of hate speech. Hate speech is effectively communicating things that are intended to be harmful or incite harm and promote or propagate hatred because of the group a person belongs to. 

Because we did not want to limit legitimate freedom of expression, there is a higher bar for artists, the media, academics and people preaching religious views as long as these do not advocate hatred that constitutes incitement to cause harm. The Bill also provides for a greater role for the victim or the victim’s family in sentencing.

I want to highlight that the Bill does not aim to be the comprehensive solution to end all discrimination and hatred in South Africa. 

It is but one of the strategies that will be used, in instances of serious and substantial hate crimes and hate speech. We still need to continue our work in changing societal attitudes, in promoting inclusivity and diversity and building social cohesion.

We need this Bill because we are seeing a growth in hatred of different groups of people both in South Africa and internationally.  The Bill will allow South Africa to more effectively investigate and prosecute hate crimes, ensure that the cases are victim-centered and that directives are issued to the police and the prosecution as to how to deal with these crimes.

I also want to touch on the issue of gender-based violence more broadly. As a country we have a history of violence. That history of violence can be seen in the way many people still seem to see violence as a way of resolving conflict – which only then perpetuates the cycle of violence from one generation to the next.

Discrimination and violence towards LGBTIQ+ persons is gender-based violence.

And that’s why the recently passed three GBV Amendment Acts, which are now all in effect, are so important. These laws have drastically changed the architecture of the legal framework in the GBVF sector.

We also have specialized Sexual Offences Courts and Thuthuzela Care Centres which aim to prevent secondary trauma for survivors of sexual offences.

The National Prosecuting Authority has seen significant improvements in the expansion of its Thuthuzela Care Centres whilst maintaining high sexual offences conviction rates, with a current conviction rate of 76%.

To date there are over 60 operational TCCs located in rural, urban and peri-urban communities nationally. For those of you working within communities, it is important that members of our communities know where their nearest TCC is.

With the unabated increase of sexual violence in the country, our court system has to be responsive and more accessible to survivors of sex crimes so as to increase reporting and the use of the courts, while reducing the withdrawal rate by complainants in these cases.

Changes were also introduced in the management of the National Register for Sex Offenders, which were made in response to the demands made by women who marched in 2018 under the umbrella of #TheTotalShutDown Movement.

Our Department has since 31 July last year amended this Register to include particulars of all convicted sex offenders, irrespective of the age and the mental status of the sex crime victim.

I therefore want to urge that we inform our educators, lecturers and other workers at tertiary institutions, social workers, heath care officials, child-care givers, employees at pre-schools and nurseries, employees at civil society organisations, and other persons who offer services directly to vulnerable persons to apply for the NRSO clearance certificates as failure to do so amounts to a punishable offence.

Finally, I want to focus specifically on what municipalities can do to prevent GBV and to promote and protect the rights of LGBTIQ+ persons.

Municipalities are one of the main role-players in our 100 Days Challenges. The 100 Days Challenges are structured journeys led by our courts and municipalities designed to achieve dramatic results and justice system improvements towards responding to gender-based violence and femicide.   We are seeing the successes of the 100 Days Challenges in all areas of our country.

For example, in 2022, in eleven courts across South Africa the backlog of domestic violence protection orders was reduced by 98% - and this was done in 100 days.

In 100 days the team in Phutanang in Galeshewe in the Northern Cape repaired and installed 62 new streetlights so as to make communities safer and they held 60 door-to-door GBV awareness campaigns. This led to a reduction in the number of rape cases.

Through the 100 Days Challenges various municipalities from around the country are joining hands with us to pave the way for a future of South Africa that is free from gender-based violence and femicide and I really want to encourage all the role-players here today to get involved and support these and other such initiatives.

Local authorities are the sphere of government which is often closest to communities and thus able to have an immediate impact on the lives of communities.

One must also not forget the impact of bylaws on anti-GBV efforts. As you may know, we are receiving many reports of human rights violations being committed against sex workers, who are often prosecuted in terms of municipal bylaws. We also hear about poor and vulnerable people, such as the homeless or street traders – many of them women – who are harassed by local law enforcement officials. So a municipality, when enforcing the law, must be sensitive to not contributing to GBV. That is why it is important to have well-considered policies and implementation at local level.

Most importantly, it is crucial for our councillors and municipal officials to be the eyes and ears of the community and to intervene and provide support and services to communities.

To conclude, I want to commend the City of Tshwane for taking this initiative and on the recent launch of its campaign against GBVF in communities and with all sectors during its door-to-door campaign in Mabopane. I also want to wish you well on your Program of Action.

You can be assured of our support for the soon-to-be-established Tshwane LGBTIQA+ Forum.

A person’s sexual orientation, gender identity and sex characteristics are part and parcel of who they are.   

It is about a person’s own sense of self, it’s who they are – and who are we to tell other people who they should be, how they should dress or who they should love?  

How can we expect people to live a meaningful life by pretending to be someone else?

Programme Directors,

The people who have the ability to bring about profound change in respect of greater protection of the rights of LGBTIQ+ persons, are the very people in this room this morning.

We all have a shared commitment to the universality of human rights and the importance of including everyone in Africa in the process of advancing development and prosperity – with special attention to those who are most marginalized and most vulnerable. 

We must ensure that we leave no one behind.

I thank you.