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Surname, Initial(s). (2012). Title of the thesis or dissertation (Doctoral Thesis / Master’s Dissertation). Johannesburg: University of Johannesburg. Available from: http://hdl.handle.net/102000/0002 (Accessed: 22 August 2017).

CORRECTIVE RAPE OF BLACK LESBIANS IN SOUTH AFRICAN TOWNSHIPS - CRACKS IN THE ENFORCEMENT OF HUMAN RIGHTS

Belinda Tonono (201144805)

MINOR DISSERTATION

Submitted in partial fulfilment of the requirements for the Degree

MAGISTER LEGUM (LLM)

Human Rights

in the

FACULTY OF LAW

at the UNIVERSITY OF JOHANNESBURG

Supervisor: Dr M Roux

August 2020

ACKNOWLEDGEMENTS

I would like to thank everyone who has contributed to this minor dissertation. My supervisor, Dr Mispa Roux, bears a special mention. Thank you for helping me shape all my ideas into something coherent and something which vaguely makes sense. A word of thanks is extended towards my family, with my sisters Melinda and Pearl getting a special mention for all the proofreading and critique. I would further like to extend a word of thanks to Nomakomanisi Makubalo. Thank you for listening to all my ideas and for pushing me when I needed the push. I am grateful for all of that. To Carol Makutu, thank you so much for your assistance and for listening to me go on about my school work.

This minor dissertation is dedicated to all the black lesbians out there in South Africa who are needlessly required to be brave in order to live their truth. I hope that this minor dissertation has, even if in a small way, recognised your existence and bravery.

Table of Contents 1 CHAPTER 1: INTRODUCTION ...... 4 1.1 Research Question and Objectives of the Minor-Dissertation...... 5 1.2 Demarcation of Issues: Core Legal Concepts, Key Terms and Notions ...... 8 1.2.1 Corrective rape ...... 8 1.3 Research Methodology and Literature Review ...... 17 1.4 Brief Overview of the Minor-Dissertation ...... 18 2 CHAPTER 2: CAUSES OF CORRECTIVE RAPE ...... 20 2.1 Heteronormativity and its impact on Corrective Rape ...... 20 2.2 Identity and Culture ...... 23 2.3 Power, Patriarchy, Privilege and Misogyny ...... 25 2.4 Religion ...... 28 2.5 Apartheid ...... 30 2.6 Intersectionality ...... 31 2.7 Conclusion ...... 32 3 CHAPTER 3: THE RESPONSE OF THE DIFFERENT SPHERES OF THE SOUTH AFRICAN GOVERNMENT TO CORRECTIVE RAPE ...... 33 3.1 The Constitution and the South African Legislature ...... 33 3.2 The South African National Executive ...... 35 3.3 The South African Judiciary and the Administration of Justice ...... 38 3.4 Conclusion ...... 43 4 CHAPTER 4: RECOMMENDATIONS AND CONCLUSION ...... 45 4.1 Reparation ...... 45 4.2 Using the Crime of Torture in an Effort to Combat Corrective Rape .....48 4.3 The Application of Legislation to Combat Corrective Rape ...... 50 4.4 A Gendered Approach Towards Corrective Rape ...... 52 4.5 Grassroots Movements by Way of Community Activism ...... 52 5 CONCLUDING REMARKS ...... 53

6 BIBLIOGRAPHY ...... 55

LIST OF ABBREVIATIONS ANC - African National Congress

ICTR – International Criminal Tribunal For Rwanda

LGBT – Lesbian, Gay, Bisexual And Transsexual Community

NPA - National Prosecuting Authority

PEPUDA – Promotion Of Equality And Prevention Of Unfair Discrimination Act 4 of 2000

SAPS – South African Police Service

TAC – Treatment Action Campaign

1 CHAPTER 1: INTRODUCTION

Freedom is the most important entitlement a human being has.1 You can only live an enriched life if you are free to do so.2 Sociologically, we are challenged to understand freedom not as a set of political, economic, and legal rights which pre-exist and are waiting to be conferred on an abject population.3 Rather, we are challenged to understand freedom as a socio-cultural construct which is given meaning and is contested in communities through the actions of its citizens.4 The South African Constitution5 does not contain a general freedom right but instead contains separate but interrelated rights which collectively enable the exercise of freedom.6 In South Africa, a person has the right to equal treatment,7 the right to express themselves as they wish,8 the right to be associated with whomever they wish,9 the right to be free from harm,10 and the right to believe in whatever they wish.11 Collectively, these rights allow a person to exercise their freedom. Infringement of any of these rights disturbs the system within which the rights operate.

As a minority group, lesbians also benefit from the protection of human rights, and same-sex partners enjoy a wide ranging variety of protections, benefits and responsibilities that “marriage accords to opposite sex couples”.12 To illustrate, some examples of this include being beneficiaries in one another’s medical aid,13 pension and insurance schemes;14 receiving compensation from the Road Accident Fund for the death of a partner or spouse;15 jointly adopting children;16 being one another’s

1 Freedom is one of the founding values as stated in section 1 of the Constitution of the Republic of South Africa, 1996 2 Sachs J famously stated that a healthy life is dependent on a variety of interconnected social factors. Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17. 3 Livermon "Queer(y)ing Freedom - Black Visibilities in Postapartheid South Africa" (2012) Journal of Lesbian and Gay Studies at 300. 4 Livermon (n 3) 300. 5 The Constitution of the Republic of South Africa, 1996. 6 Soobramoney v Minister of Health (Kwazulu-Natal) (n 2) para 54. 7 Section 9 of the Constitution. 8 Section 16 of the Constitution. 9 Section 18 of the Constitution. 10 Section 12 of the Constitution. 11 Section 15 of the Constitution. 12 Preamble of the Civil Union Act 17 of 2006. 13 Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T) 14 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC). 15 Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86 . 16 Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC).

4 intestate heirs,17 and being able to enter into a civil union in terms of the Civil Union Act 17 of 2006. Despite this expansive breadth of human rights protection, South Africa is a paradox in that all these rights are rarely practiced in theory. It seems that society understands that South Africa is a democratic state that “respects, protects, promotes and fulfils” fundamental rights, yet the practical implementation and protection of these rights is less clear, in particular when it comes to relationships in a private setting. Few of these protections are realised practically and worse still, as illustrated above, these protections have only been extended to same sex partners or couples, without regard to the protection of individuals outside of a romantic relationship. The issue with implementation is connected to the notion that the Constitution predominantly contains aspirational goals, with the objective of establishing “an open and democratic society based on human dignity, equality and freedom”.18

1.1 Research Question and Objectives of the Minor-Dissertation

The oversight in the practical implementation and protection of the fundamental rights of individual lesbians forms the backdrop to the underlying research question of this minor dissertation. The lack of practical implementation and protection of lesbians manifests itself in “corrective rape”, a form of sexual violence directed at a lesbian woman with the express purpose of “changing” her sexual orientation from homosexuality to heterosexuality.19 This minor dissertation accordingly seeks to discuss the issue of corrective rape as an infringement of human rights in the South African context. The focus will be on a select number of rights which are infringed by corrective rape and the way in which they are infringed by the state.

17 Gory v Kolver NO 2007 (4) SA 97 (CC). 18 Section 36(1) of the Constitution; Woolman "South Africa’s aspirational Constitution and our problems of collective action" (2016) SAJHR 166. 19 Nel and Judge "Exploring Homophobic Victimisation in Gauteng, South Africa: Issues, Impact and Responses" 2008 Acta Criminologica 21(3) at 24; Koraan and Geduld ""Corrective Rape" of Lesbians in the Era of Transformative Constitutionalism in South Africa" (2015) PER at 1931; West, van der Walt and Kaoma "When faith does violence: Reimagining engagement between churches and LGBTI groups on Homophobia in Africa" (2016) HTS Theological Studies 72(1) at 5; Gobodo-Madikizela, Fish and Shefer "Gendered Violence: Continuities and Transformation in the Aftermath of Conflict in Africa" (2014) Signs at 91; Brown "Corrective Rape in South Africa: A Continuing Plight Despite an International Human Rights Response" (2012) Annual Survey of International & Comparative Law at 46; Mubangizi and Twinomugisha, "Protecting the Right to Freedom of Sexual Orientation: What can Uganda Learn from South Africa" (2011) Stellenbosch Law Review at 338.

Corrective rape infringes on a number of the rights enumerated in the Bill of Rights: the right to equality in section 9 of the Constitution, freedom of expression in section 16 of the Constitution, freedom and security of the person in section 12 of the Constitution, as well as freedom of religion, belief and opinion in section 15 of the Constitution. All of these rights are classically understood as freedoms in the sense that they have negative obligations and merely seeks those bound by them to refrain from doing something.20 In some instances, there are rights which require positive steps to be taken in order to fulfil those rights and these steps extend to the so-called freedom rights as well.21 This minor-dissertation seeks to argue that the state is required to ensure that the public is protected from corrective rape. This obligation requires positive steps from the state. Any failure to take action to protect the public from corrective rape constitutes an infringement of the rights in the Bill of Rights.

Located in section 12(1)(c) of the Constitution, the right to freedom and security of the person states that everyone has the right to freedom and security of the person and this includes the right to be free from all forms of violence from public or private sources. The Constitutional Court has interpreted this right as directly obliging the state to protect everyone to be free from private or domestic violence.22 The mere act of corrective rape is an infringement of section 12 and the state’s failure to take positive steps to ensure the public is protected from corrective rape compounds the infringement of this section.

Section 9 of the Constitution affirms the right to be different and respect across difference.23 Section 9(3) and 9(4) of the Constitution provide that the state and other persons may not discriminate on the basis of a number of grounds, with sexual orientation, sex and gender being among them. Section 9(2) of the Constitution further goes on to state that legislative and other measures may be taken to protect promote he achievement of equality. The right to equality has been understood to contain negative obligation requiring for those bound by it to simply refrain from discriminating.24 The only exception to this is in the context where there are positive

20 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20 para 69. 21 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (n 20) para 69. 22 S v Baloyi and Others (CCT29/99) [1999] ZACC 19 para 11. 23 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 132. 24 Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) para 47.

6 steps taken in order to achieve equality. The right to equality is infringed in that an identifiable member of a group of people are targeted by corrective rape, in particular based on their sexual orientation. Further, the right to equality is infringed by police action in relation to how victims of corrective rape (and rape in general) are treated on reporting offences committed towards them. As alluded in S v Baloyi, the right to equality and the prohibition of discrimination are undermined when people commit corrective rape.25

Freedom of expression includes the freedom to express oneself in the manner they wish (regardless of how that conduct is). Conduct by which a person expresses some emotion or belief should be protected under section 16 of the Constitution.26 The Constitution and the Constitutional Court’s understanding is to adopt an approach where all manner of expression are welcome and are protected unless they do not enjoy protection as espoused in section 16(2).27 Freedom of expression is violated as the aim of corrective rape is stopping a particular type of expression: that of openly identifying as a lesbian.

Section 15 of the Constitution states that everyone has the right to freedom of conscience, religion, thought, belief and opinion. It affirms the right for people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others.28 It affirms the right to be different just as equality.29 The right to freedom of belief, conscience and religion is also infringed, in that corrective rape pre-supposes that a particular set of beliefs are superior to others.

This minor dissertation proposes that these rights go further than negative obligations and create positive obligations on the part of the state to ensure that its lesbian inhabitants live in a society which is free from corrective rape. The concept of positive obligations is nothing new in the bill of rights. Indeed, the Constitutional Court has

25 S v Baloyi and Others (n 22) para 12. 26 Currie I & de Waal J The Bill of Rights Handbook (6th Edition) (2013) 341. 27 Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3 para 32. 28 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 24. 29 Christian Education South Africa v Minister of Education (n 28) para 24; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17 para 134.

7 indicated that the state has positive obligations when it comes to socio-economic rights as well as other rights such as section 12 of the Constitution.30 All that is suggested in this minor dissertation is that the positive obligations must be extended to the context of corrective rape and that the legal framework, as it currently exists, is capable of allowing that. The impediment to this is the implementation of the rights, in other words, taking positive measures to ensure that an effort is made towards curbing corrective rape.

This infringement of rights is done by the perpetrators of corrective rape through the commission of the offence of rape and one which is committed with the intent to degrade, to violate and to police lesbian women because of their sexual orientation. The perpetrators thus encroach on the freedoms of lesbian women through corrective rape. In other words, the perpetrators of corrective rape interfere with that with is none of their business. Notwithstanding this, it is the duty of the state ensure that the public is protected from harm occasioned by corrective rape despite the fact that the state is not involved in the commission of corrective rape and the state has not taken enough steps in the fight against corrective rape with the effect that the rights of lesbians are infringed.

1.2 Demarcation of Issues: Core Legal Concepts, Key Terms and Notions

1.2.1 Corrective rape “Corrective rape” is a form of sexual violence that is homophobic in nature.31 In the South African context, this extreme form of sexual violence discriminating against and targeting lesbian women32 is particularly rife, with little to no accountability of perpetrators.33 Generally, “corrective rape” can be defined as a category of the crime

30 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (n 20) para 69. 31 Nel and Judge (n 19) 24. 32 Research Report on Homophobia, Injustice and 'Corrective Rape' in Post-Apartheid South Africa accessible at https://www.files.ethz.ch/isn/166656/k_thomas_homophobia_injustice_and_corrective%20rape_in_po st_apartheid_sa.pdf (accessed on 30-04-2019). 33 Some further stories of corrective rape: Millicent Gaika was raped in Gugulethu, Hendrietta Morifi was raped and murdered in Limpopo, Lerato Moloi was raped and killed in Naledi and Lerato Moloi was raped and murdered. Research Report on Access to Justice for Lesbian, Gay, Bisexual and Transgender Survivors of sexual Offences in South Africa accessible at http://www.rci.uct.ac.za/sites/default/files/image_tool/images/242/report_images/1%20ICOP%20LGBT %20Doc%20PDF.pdf (accessed on 26-03-2019).

8 of rape that is specifically motivated by existing prejudice against lesbian women.34 The prejudice is manifested with the goal of altering a person's sexuality and sexual identity from one of homosexuality to heterosexuality:35 it is to ostensibly "cure" lesbians of their non-conforming sexual orientation, informed by the underlying belief that homosexuality is an imported “white disease”.36 Mittelstaedt defines corrective rape as the practice of raping perceived lesbian African women and girls in particular, with the claimed purpose of turning them into "real African women", again with the underlying belief that homosexuality is a “disease” imported by the white colonial empire.37 It is a rife issue in South Africa and reports are abound with stories of corrective rape but very little is done about them.

The reason for focusing on corrective rape of black lesbians in South African townships is that it is considered a human rights infringement, and essentially symbolises the disrespect with which both the State and South African society bestows on the Constitution. This is coupled with the general problem of gender-based violence in South Africa.38 This problem arises despite the fact that we are supposed to be living in a democratic state founded upon the values of freedom, equality and human dignity.39 Although the Constitution states this, the reality is that the law is a scarce resource only available to the wealthy and justice is even more elusive.40 Moreover, the state and South African society seem to care very little about the effect of these enumerated rights and how they should impact on our conduct. The state has a positive obligation to ensure that corrective rape is prevented. While the state cannot physically restrain perpetrators from committing corrective rape, it plays a central role in apprehending and prosecuting the perpetrators. It is in this aspect where the state falls short. The reasons behind this are both legal and extra-legal. Black lesbians in South African townships are the subjects of multiple disadvantages. They are

34 Nel and Judge (n 19) 24; Koraan and Geduld (n 19) 1931. 35 West, van der Walt and Kaoma (n 19) 5; Gobodo-Madikizela, Fish and Shefer (n 19) 91; Brown (n 19) 46; Mubangizi and Twinomugisha (n 19) 338. 36 Van der Walt, West and Kaoma (n 19) 5. 37 Mittelstaedt "Safeguarding the Rights of Sexual Minorities: The Incremental and Legal Approaches to Enforcing International Human Rights Obligations" (2008) 9 Chicago Journal of International Law at 353 38 Graaff and Heinecken Masculinities and gender-based violence in South Africa: A study of a masculinities-focused intervention programme (2017) Development Southern Africa 34(5) at 624. 39 Section 1(a) of the Constitution. 40 Permanent Secretary, Department Of Welfare, Eastern Cape, And Another v Ngxuza And Others 2001 (4) SA 1184 (SCA) para 1.

9 impoverished and suffer the effects of patriarchy and apartheid. The disadvantages they suffer intersect. It is with this in mind that this minor dissertation seeks to look into the corrective rape of black lesbian women in South African townships.

Corrective rape is laden with beliefs about homosexuality being tied to "white culture" and colonialism,41 and is defined with reference to sexual orientation, non- conformance with the aim to cure, as well as the idea of homosexuality being a (curable) “disease”. South African courts have not yet defined corrective rape, but it has two fundamental aspects. The first aspect of corrective rape is punishment, which seeks to “punish” the victim for “transgressing” the roles that society has determined for a woman (this is for "behaving" like a man, instead of an "African woman").42 The second aspect is deterrent, and seeks to deter would-be lesbian women from conducting themselves in a manner which transgresses roles which society has determined for them.43 The deterrent nature is such that a lesbian woman is expected to be "cured" from their lesbianism to heterosexuality.44 Corrective rape is best encapsulated by the following two statements quoted by Morrisey: that the only way to deal with lesbian women is to “rape the lesbian out of them”,45 or that the ethics of the community do not allow lesbianism, and that men are willing to enforce those ethics as far as possible.46

The incapacity of the South African Police Service (SAPS), coupled with the homophobic attitudes of society, means that those lesbian women who fall victims to corrective rape never receive the justice they deserve and the state fails when it comes to its human rights obligations.47 A further factor is that corrective rape is racialized in South Africa,48 in particular because the overwhelming majority of victims of corrective

41 Sigamoney and Epprecht "Meanings of Homosexuality, Same-Sex Sexuality, and Africanness in Two South African Townships: An Evidence-Based Approach for Rethinking Same-Sex Prejudice" (2013) African Studies Review 83 84. 42 Lake Corrective rape and black lesbian sexualities in contemporary South African cultural texts (2017 thesis SA) 13. 43 Nel and Judge (n 19) at 26. 44 Kooran and Geduld (n 19) 1937; Research Report on Homophobia, Injustice and 'Corrective Rape' in Post-Apartheid South Africa accessible at https://www.files.ethz.ch/isn/166656/k_thomas_homophobia_injustice_and_corrective%20rape_in_po st_apartheid_sa.pdf (accessed on 30-04-2019). 45 Morrisey "Rape as a Weapon of Hate: Discursive Constructions and Material Consequences of Black Lesbianism in South Africa" (2013) Women's Studies in Communication 84. 46 Morissey (n 45) 84. 47 Nel and Judge (n 19) 21. 48 Morissey (n 45) 76.

10 rape are impoverished, black women who predominantly live in townships, and in some instances, rural areas.49 It is important to focus on this group because of the multiple disadvantages the group suffers and in as much as corrective rape is documented, very little has been done to combat it and this minor dissertation seeks to streamline some ways of combating corrective rape.

1.2.2 Black Lesbian Women in South African Townships

In South Africa, black women are among the most disadvantaged groups. They are disadvantaged because of past injustices relating to race and because of past injustices relating to patriarchy. To further this, black lesbian women are the predominant victims of corrective rape.

1.2.3 Protection of LGBT Rights in South Africa

This next section will discuss the context of the protection of LGBT rights in South Africa, by focusing on the attainment of rights for this group in terms of an historical background. This is an important discussion because it illustrates the depth of protection that is available for lesbian women and gay men. It will be noted below that the law protecting lesbian women and gay men reinforces existing ideas around heteronormativity and patriarchy, ideas which are central to the existence of corrective rape.

The attainment of LGBT rights in South Africa has relied on section 9 of the Constitution. Section 9 states that everyone has the right to be treated equally and has equal protection of the law. The section further prohibits unfair discrimination on the basis of, among others, sexual orientation.50 The courts have defined sexual orientation with reference to erotic attraction, with heterosexual people being attracted to people of the opposite-sex and homosexual people being attracted to people of the same-sex.51 At each turn, the applicants have advanced the argument that particular conduct is unfairly discriminatory on the basis of sexual orientation.52 To bolster this

49 Gobodo-Madikizela, Fish and Shefer (n 19) 91. 50 Section 9(3) of the Constitution. 51 National Coalition for Gay and Lesbian Equality v Minister of Justice (n 23) para 20. 52 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (n 29) para 1; National Coalition for Gay and Lesbian Equality v Minister of Justice (n 23) paras 10 and 15; Gory v Kolver (n 17) para 19; Langemaat v Minister of Safety and Security (n 13) 315C; Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19 para 45.

11 argument, the applicants relied on the section 10 right to human dignity.53 Section 10 states that everyone has inherent dignity and the right to have their dignity respected and promoted. Both of these sections found favour with the courts.54 This legal strategy has led South African lesbian and gay people being among the most protected in the world.

The protection of LGBT rights in South Africa has focused on persons in a relationship:55 sexual orientation jurisprudence has reinforced these notions and mirrors that of an idealised, dominant heterosexual, Christian, physically able-bodied marriage.56 This idealised group seems to serve as a normative reference point for decisions on which intimate relations are worthy of legal recognition and protection, and which ones are not.57 Duggan describes this as “homonormativity”, a political belief which does not contest dominant heteronormative assumptions and institutions, but upholds and sustains them, while promising the possibility of a demobilized gay constituency and a privatized, depoliticized gay culture anchored in domesticity and consumption.58 This is not helpful, as it alienates any couple or people that do not fit into this mould.59 Further, the prejudices that come with life as a lesbian or gay person (outside of a relationship) are not examined and therefore, it is almost impossible to prescribe that anything be done to curb the potential dangerous prejudices.60 The jurisprudence has forced the state to change the manner in which it has treated lesbian and gay people, but has been unable to cultivate the same change in broader society.

The LGBT rights movement in South Africa has historically consisted of fragmented groups with separate agendas, but they collated into one group, namely the National Coalition for Gay and Lesbian Equality (Coalition), a non-profit organization that

53 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (n 51) para 30 and para 172; Gory v Kolver (n 17) para 30; National Coalition for Gay and Lesbian Equality v Minister of Justice (n 23) para 26. 54 The court in Minister of Home Affairs and Another v Fourie and Another (n 52) found the provisions of the Marriage Act which referred to marriage as between a man and woman unconstitutional on the basis that of discrimination against same-sex couples. This has been the same in all the above mentioned cases in note 52 above. 55 De Vos "The Inevitability of Same-Sex Marriage in South Africa's Post-Apartheid State" (2007) 23 SAJHR 432 433. 56 De Vos "Same sexual desire and the re-imagining of the South African family" (2004) 20 SAJHR 199 57 De Vos (n 56) 199. 58 Oswin "Producing Homonormativity in Neoliberal South Africa: Recognition, Redistribution, and the Equality Project " Signs (2007) 656. 59 De Vos (n 56) 198. 60 De Vos (n 56) 198.

12 focused on the expansion of LGBT rights in South Africa.61 The Coalition had a unified goal of attaining protections for sexual orientation.62 One of the initial tasks of the Coalition was the inclusion of sexual orientation in the interim Constitution, and thereafter retaining it in the final Constitution in a non-confrontational and non- threatening manner so as not to further alienate the LGBT community, which had hardly found favour within broader society.63 This campaign for the retention of sexual orientation in the equality clause was never aimed at changing or confronting social attitudes and assumptions about sexuality,64 specifically because the Coalition felt that it was too risky to confront homophobia, out of fear of the strong possibility of backlash.65 Care was thus taken to be uncontroversial and to portray gay and lesbian people as "normal" human beings.66 This non-confrontational stance may have had an effect on social perceptions about LGBT people. It seems that the Coalition was not cognisant of the importance of changing societal attitudes. It is important that societal attitudes are changed because a minority group needs to see the change occur within their communities, rather than merely on paper. The Constitution will be ineffective if those who need its protection the most are unable to use the Constitution.

Once sexual orientation was entrenched in section 9 of the final Constitution, the Coalition set about protecting the rights which were available as a result of protection in terms of the Constitution. This protection was done by means of a narrow strategic agenda dominated by legal interventions which consisted of a carefully crafted, controlled programme of litigation.67 The rights attained with this strategy have already been discussed.68 The strong emphasis on litigation, however, meant that activists never needed to build a grassroots movement:69 it was thought that strategic victories in court would later allow a grassroots movement to flourish.70 Yet, the attainment of the legal victories and access to benefits did not necessarily improve the lives of those

61 Cock "Engendering Gay and Lesbian Rights: the Equality Clause in the South African Constitution" (2003) Women's Studies International Forum 35 37. 62 Oswin (n 58) 652; De Vos (n 55) 443. 63 De Vos (n 55) 438 and 440. 64 De Vos (n 55) 440. 65 De Vos (n 55) 440. 66 De Vos (n 55) 440. 67 De Vos (n 55) 443. 68 As already discussed above, same sex marriage has been legalized, same sex partners are able to be members in each other’s medical aids, they are able to be beneficiaries in pension funds and are able to apply for permanent residence on account of partnership. 69 De Vos (n 55) 446; Oswin (n 58) 661. 70 De Vos (n 55) 446.

13 individuals who were supposed to be the target beneficiaries of the work of the Coalition.71 The gains made by the Coalition were mainly focused on middle-class people who could afford access to all of these institutions which were made available to them and the strategy did not challenge prevailing attitudes around gay and lesbian people within society.72 The gains made were without profound change on lesbian women who, due to financial constraints, could not get access to them.73 In this regard, the strategy of the Coalition differed from that of the Treatment Action Campaign (TAC) in its quest to obtain access to medication for those infected with HIV/AIDS.74 Unlike the Coalition, the TAC relied heavily on grassroots support that by the time the TAC approached the courts, it seemed absurd and cruel for the TAC not to be granted the access to medication it sought.75

The inclusion of sexual orientation as protected in the Constitution did not amount to any cultural shift in the perception of and prejudice against sexual orientation minority groups, even though it was appropriately legitimate and the public was aware of the inclusion of sexual orientation.76 The result has been to create a right devoid of any tangible use or protection. This has created a disconnect between the state’s obligation to “respect, protect, promote and fulfil”77 the human rights of lesbian women in terms of the Constitution by prohibiting unfair discrimination on the basis of gender and sexual orientation,78 and the lived experiences of lesbian women on the other.

The Coalition is not entirely to blame for this disconnect but it shares some responsibility for perpetuating it. The failure to build grassroots support further means that the Coalition did not organise citizens with a view to informing them of the rights they have, and that therefore there would not be much support from society in general,

71 De Vos (n 55) 447. 72 Oswin (n 58) 565. 73 Oswin (n 58) 663. 74 Pieterse "Health, Social Movements, and Rights-based Litigation in South Africa" (2008) Journal of Law and Society 364 368. 75 Pieterse (n 74) 369. 76 This has been taken from Thomas Stoddard' method of determining the effect that law has had on society and whether the law has led to change in society. He states that four factors must be engaged in order to determine whether law has had profound social change. These considerations are that the law must have change that is very broad or profound, there must be public awareness of the change, there must be a general sense of legitimacy to the change and there must be continued enforcement of the change. Stoddard "Bleeding Heart: Reflections on using the law to make social change" (1997) 72 New York Law Review 967 970. 77 Section 7(2) of the Constitution. 78 Section 9 of the Constitution.

14 gay and lesbian people, as well as from allies who know of the plight of the LGBT community.79

The Coalition has since been replaced by the Equality Project, whose vision is that of a just and democratic South Africa, free from all forms of social oppression, discrimination and exclusion; one in which there is full social liberation, full equality; in which all citizens claim their citizenship and rights in full; in which there is vibrant and self-sustaining popular and participatory democracy.80

1.2.4 Selected Case Studies of Notable Corrective Rape Committed in South African Townships against Black Lesbians

This sub-section will provide a discussion of some notable cases of corrective rape, which is no way indicative of the number of cases reported. In general, sexual violence and rape is considerably under-reported in South African society, and so is corrective rape.81 However, the selected sample of cases is important in assisting with an understanding of some trends in relation to the treatment of corrective rape of black women in South African townships.

One of the more famous cases of corrective rape is that of Eudy Simelane (Simelane). On 28 April 2008, Simelane, a thirty-one-year-old lesbian from Kwa-Thema outside Johannesburg, was walking near her home after a night out with friends.82 On her way home from a bar, she was attacked by a group of men.83 The men dragged her across the ground, stabbed her twenty-five times in the face, chest, legs and gang raped her, dumping her body in a ditch where she died.84 Four suspects were tried at the Delmas High Court in 2009 and two were convicted, receiving sentences exceeding 30 years, whilst the other two were acquitted.85 The judge stated that Simelane's sexual orientation had no bearing on the case, but there are reports that the accused knew of

79 De Vos (n 55) 447. 80 https://www.facebook.com/pg/The-Equality-Project-100764313312586/about/?ref=page_internal (accessed on 26-03-2019). 81 Nel and Judge (n 19) 21; Mwambene and Wheal " Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa" 2015 AHRLJ 61. 82 Di Silvio "Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations to Prevent Violence Against Women" 2011 Georgetown Law Journal 1470; Mkhize, Bennett, Reddy and Moletsane The Country we want to live in: Hate Crimes and Homophobia in the Lives of Black Lesbian South Africans (2010) 46; Mwambene and Wheal (n 81) 65. 83 Di Silvio (n 82) 1470. 84 Di Silvio (n 82) 1470. 85 Mwambene and Wheal (n 81) 65.

Simelane's sexual orientation.86 Mwambene and Wheal note that at the trial, the prosecutor failed to raise questions around prejudice being the motivation for the attack.87

Another victim of corrective rape was Duduzile Zozo, who was brutally murdered on 30 June 2013 and was found partially naked with a toilet brush shoved up her vagina, a mere 40 feet from her home in a neighbour's yard.88 Zoliswa Nkonyana (Nkonyana), a 19 year old woman, was brutally murdered in Khayelitsha, Cape Town, on 4 February 2006 when she was stabbed, kicked and beaten to death.89 She lived her life openly as a lesbian which ultimately led to the loss of her life.90 Nkonyana was at a tavern with a friend when an argument broke out around lesbians' use of the ladies' toilet, while pretending to be 'tomboys'.91 They left the tavern and when they separated a group of 9 youths caught up with Nkonyana.92 The young men who attacked her were explicit about the fact that they wanted to kill her because she was a lesbian.93

The case was one of the longest-running in the country's history and was postponed 50 times.94 Five of the 9 accused were acquitted because the state did not have sufficient evidence against them and the rest of the accused were convicted of murder.95 The presiding magistrate deemed it important to take the youth of the accused into account, and the magistrate was of the view that sentencing should serve as a deterrent to the accused as well as to the community at large by sending a message that such crimes would not be tolerated, and also, to encourage rehabilitation.96 The magistrate considered that the state had proven a case which dealt with the murder of a young woman whose life was taken away by virtue of her life choices and personal beliefs.97 The woman had posed no threat to the accused, yet they acted in a brutal and violent manner which cannot be condoned by the

86 Mkhize, Bennett, Reddy and Moletsane (n 82) 49; Mwambene and Wheal (n 82) 65. 87 Mwambene and Wheal (n 81) 75. 88 Mwambene and Wheal (n 81) 66. 89 Mwambene and Wheal (n 81) 66. 90 Mwambene and Wheal (n 81) 66. 91 Mwambene and Wheal (n 81) 66. 92 Mwambene and Wheal (n 81) 66. 93 Mwambene and Wheal (n 81) 66. 94 Mwambene and Wheal (n 81) 66. 95 Mwambene and Wheal (n 81) 77; https://www.news24.com/SouthAfrica/News/2-acquitted-in-lesbian- murder-trial-20110907 (accessed on 05-04-2019). 96 Mwambene and Wheal (n 81) 77. 97 Mwambene and Wheal (n 81) 77.

16 community, nor the Court.98 During the trial, no reference was made to the motive for the commitment of the offence, but this consideration was made when it came to the sentencing of the accused.99 The Court stated that the events preceding the commission of the offence were a clear indicator as to the motive of the commission of the offence, which the Court held to be hatred.100 The Court held that the hatred was based on the accused's intolerance of her difference.101

This is one of the few cases with a relatively justice orientated outcome. It is a clear example of the intolerance, intimidation and dangers that lesbians face in informal settlements, making them vulnerable and in need of protection.

An evaluation of all the above cases leads to the conclusion that all of the cases have been motivated by prejudice towards lesbian women and they seem to lack remorse for the very violent offences they have perpetrated. The violent and personal nature of the offences leads to the belief that these accused harboured a significant amount of hatred for what these women supposedly symbolise. Further, we see that the judiciary and the prosecutors who deal with these cases are not equipped to deal with them. This particular aspect will be discussed more below.

The above sections have illustrated the protection which lesbian women have as well as the shortcomings with this protection. It is evident that despite the vast range of protection available to lesbian women, these same protections perpetuate some of the prevailing stereotypes about how a person is to conduct themselves within society. This is saddening as it further illustrates the punishment that accompanies any transgression from that norm which society has set for its inhabitants.

1.3 Research Methodology and Literature Review A desktop study was employed with a particular focus on legislation, conventional law, common law, case law, bills, journal articles, and reports from human rights organisations as sources of law as well as newspaper articles as supplementary resources. These provide for a comprehensive overview on corrective rape.

98 Mwambene and Wheal (n 81) 77. 99 Mwambene and Wheal (n 81) 77. 100 Mwambene and Wheal (n 81) 77. 101 Mwambene and Wheal (n 81) 77.

1.4 Brief Overview of the Minor-Dissertation

The minor dissertation will consist of four chapters. The first chapter identifies corrective rape as specifically targeting impoverished lesbian women in South African townships and engage with the meaning of corrective rape within the South African context. This is done by discussing prominent cases of corrective rape. Thereafter, a discussion of the protection of the rights of lesbian, gay, bisexual and transgendered people in South Africa will follow. The above sections have defined corrective rape and the victim of corrective rape in the South African context. The sections have also discussed protection of LGBT rights in South Africa as well as a discussion of selected accounts of corrective rape. The objectives of the above have been to problematise corrective rape and sketch the context in which it occurs and has occurred.

The second chapter will contain a discussion of the causes of corrective rape. There will be a discussion of heteronormativity and its impact on corrective rape. Other causes which will be discussed are identity and culture, patriarchy, power and privilege, intersectionality, religion and apartheid.

The third chapter will contain a discussion of the responses of the state when it comes to corrective rape. It will contain a discussion of what is expected from each branch of the state as well as what each branch has done to combat corrective rape. The chapter will finally contain some thought in relation to the efforts of each branch and whether theses have been adequate.

The final chapter will contain a discussion of the proposed changes to assist with curbing corrective rape. All of this will be done with the understanding that Sachs J in Minister of Home Affairs and Another v Fourie and Another stated that the hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner.102 This minor dissertation will illustrate that corrective rape shows that South Africa has failed at accommodating difference and this is for a number of reasons. The sting of the past and continuing discrimination against the LGBT community conveys the message that members of the LGBT community do not have inherent dignity and are not worthy of

102 Minister of Home Affairs v Fourie (n 52) para 95.

18 the human respect accorded to heterosexuals.103 This discrimination occurs at a deeply intimate level of human existence.104

103 Minister of Home Affairs v Fourie (n 52) para 15. 104 Minister of Home Affairs v Fourie (n 52) para 50.

2 CHAPTER 2: CAUSES OF CORRECTIVE RAPE

This chapter will contain a discussion of the various causes that can be identified as leading to the commission of corrective rape of black lesbians in South African townships. Causes of corrective rape that will be engaged include heteronormativity, identity and culture; power, patriarchy, privilege, and misogyny, religion, apartheid, as well as intersectionality.

The purpose is to discuss how all of these causes interrelate with one another, resulting in exacerbating corrective rape. Further, the causes of corrective rape that have been identified all play a role in reinforcing and strengthening prejudicial behaviours and attitudes within society, leading to the tacit approval of corrective rape of lesbians at best, and its encouragement, at worst.105 Exploring the causes of this extreme form of sexual violence against lesbian women encourages a better understanding of the context within which it is allowed to take place, especially when considering that the South African Constitution’s Bill of Rights is lauded for its comprehensive protection of fundamental rights. An engagement with the causes of corrective rape also serves to remind us of the limitations of the law, particularly the fact that the law cannot be effective without support from broader society. This is to say that both the perpetrators of corrective rape and the state (those who are supposed to be protecting lesbian women from corrective rape) are influenced by some of these causes of corrective rape.

2.1 Heteronormativity and its impact on Corrective Rape

Society provides that there are two biologically derived sexes.106 Sex refers to the anatomical body into which a human being is born,107 and in general, society recognises that there are two sexes, a male (who is born with testes) and a female

105 Nkosi and Masson "Christianity and homosexuality: contradictory or complimentary? A qualitative study of the experiences of Christian homosexual university students" (2017) South African journal of Higher Education at 85. 106 Schilt and Westbrook "Doing gender, doing heteronormativity: ‘Gender normals,’ transgender people and the social maintenance of heterosexuality" (2009) Gender and Society 440 442; West and Zimmerman ‘Doing gender’ (1987) 1 Gender and Society 127. 107 Schilt and Westbrook (n 106) 442.

(who is born with ovaries).108 There is also a third sex, referring to persons born with a combination of genetalia found in females and males (intersex).109

Connected to sex is the idea that the two sexes correspond with gender role expectations.110 Gender refers to conduct which is expected from a person belonging to a particular sex.111 A person who is male will be expected to conduct themselves in a particular manner, which differs from conduct expected from a female, and this division is perceived to be natural and rooted in biology.112 When it comes to the concept of gender, reference is made to the terms of a man and a woman. A male is expected to behave and exhibit particular traits which are thought to be common with men such as being a provider of the household, whereas a female is expected to behave and exhibit particular traits which are associated with women being the care- giver in society.

Closely connected to both of these terms is the concept of sexual orientation, which is defined with reference to attraction.113 A person who is a female and who is attracted to men is referred to as a heterosexual woman.114 A female who is attracted to other females is referred to as a homosexual woman, or the more common term of a lesbian.115 Society dictates that gender and sex regulate the persons to whom we are attracted.116 The behaviour that flows when the “correct” form of attraction is followed refers to the concept of heteronormativity.117 All these concepts are seen by society as rigid and immutable.118 Of course all of them are social constructs to define the relations between human beings.119 It is this transgression from the norm which generally gives rise to corrective rape.

108 Schilt and Westbrook (n 106) 442. 109 Kerry "Representation of intersex in news media: the case of Kathleen Worrall" (2011) Journal of Gender Studies at 265. 110 West and Zimmerman (n 106) 127. 111 West and Zimmerman (n 106) 127. 112 West and Zimmerman (n 106) 128. 113 National Coalition for Gay and Lesbian Equality v Minister of Justice (n 23) para 20. 114 National Coalition for Gay and Lesbian Equality v Minister of Justice (n 23) para 20. 115 National Coalition for Gay and lesbian Equality v Minister of Justice (n 23) para 20. 116 Schilt and Westbrook (n 106) 443. 117 Msibi "The Lies We Have Been Told: On (Homo) Sexuality in Africa" (2011) Africa Today at 71; Weiss "The Gender Caste System: Identity, Privacy, and Heteronormativity" (2001) Law and Sexuality 124. 118 West and Zimmerman (n 106) 128; Weiss (n 117) 124. 119 Nagoshi, Brzurzy and Terrell "Deconstructing the complex perceptions of gender roles, gender identity, and sexual orientation among transgender individuals" (2012) Feminism & Psychology 405 418.

There is perhaps no more destructive and ruinous concept in identity theory than heteronormativity. When put together with incorrect ideas about the African identity and ideas of masculinity, heteronormativity has disastrous consequences for any person who does not conform or ascribe to it. Heteronormativity assists in the investigation and understanding of how sexualities are expressed and performed, and it further assists in the understanding of how societal systems are organised, structured and maintained.120 Heteronormativity as a concept is a societal hierarchical system that privileges and sanctions individuals on presumed binaries of gender and sexuality.121 As a system, it defines beliefs and practices about what is considered “normal” in everyday life.122 Viewed this way, heteronormativity conceives of heterosexuality as something natural and unquestioned.123 As a system, heteronormativity sanctions and condemns people who do not fit in and who fail to behave according to an acceptable and given societal value system.124 Understood this way, heteronormativity envisages a strong connection between sexuality and gender.125 Further, heteronormativity affects and is affected by a person’s personal views on gender and sexuality.126 It points at the everyday and mundane ways in which heterosexuality is privileged and normalised.127 It posits that there are notions of compulsory heterosexuality which are tied to conceptions, ideas and acts of sexuality, and which form a foundational structure in society and culture.128

Generally, lesbian women fall within two sides of heteronormativity. On the one side is a group of women who appear (from clothing, facial features etc.) to be feminine. These women are thought, by virtue of their presentation, to conform to idealised notions of how a woman should look like and how she should behave. With their appearance, these women do not appear to confront any perception on how a woman is and what her place within society is.129 Society will readily accept these women,

120 Herz and Johansson "The Normativity of the Concept of Heteronormativity" 2015 Journal of Homosexuality 1009 at 1012. 121 Herz and Johansson (n 120) 1013. 122 Herz and Johansson (n 120) 1013. 123 Herz and Johansson (n 120) 1013. 124 Herz and Johansson (n 120) 1013. 125 Herz and Johansson (n 120) 1013. 126 Herz and Johansson (n 120)1013. 127 Herz and Johansson (n 120)1011. 128 Herz and Johansson (n 120)1011. 129 It must be noted that this is not an attempt to demonise women whose presentation falls within the prescription of heteronormativity but is rather an attempt to highlight the deficiencies of heteronormativity.

22 and they are not considered particularly problematic. Their homosexuality is often seen as a “passing phase”. On the other side is the second type of lesbian woman: she will generally not outwardly present as feminine, and might cause confusion as to their gender or sex.130 This group does not present gender in terms of the prescripts of heteronormativity, postulating a point of confrontation with ideas of how women are supposed to behave. This group of lesbian women generally fall victims to corrective rape.131 The perception is that these women need to be taught how a “real” woman conducts herself or are shown that they are "not men as they think they are"; generally manifesting by being raped by men.132 South Africa provides a good example in understanding the violent nature of heteronormativity through compulsory heterosexuality, specifically in light of its history of colonialism and apartheid. The commonality between these regimes is the emphasis on Christianity as a vital part of society, whose ideals were considered aspirations for South African society.

Linked to heteronormativity are the concepts of identity and culture. Heteronormativity, whether acknowledged or not, forms part of the identity and culture in South Africa. Identity and culture will be discussed below.

2.2 Identity and Culture

Identity has two meanings: the first refers to a social category, which is defined by membership rules and characteristic attributes or expected behaviours.133 The second definition refers to socially distinguishing features in which a person takes views as unchangeable, but socially consequential.134 It essentially refers to particular areas of belonging.135 A person's identity is made up of different aspects such as gender, sexual orientation, ethnicity, race, language and nationality. In the context of this minor dissertation, the different aspects of identity are important in the manner they help us understand how people considered “different” are treated by others considered “normal”. Perceived notions of identity have led to the policing of those who do not perform identity “well”: women have historically had a particular identity associated

130 These two different concepts tend to be conflated by those who are not particularly well versed in issues of identity and those who generally see no issues with heteronormativity. 131 Corrective rape is generally focused on black lesbian women who are more masculine in appearance than they are feminine. 132 Morissey (n 45) 77. 133 Béland "Identity, politics, and public policy" (2017) Vol 11 Critical Policy Studies 1. 134 Béland (n 133) 3. 135 Béland (n 133) 3.

23 with them, and the liberalisation of sexuality in South Africa appears to have been accompanied by an increase in gender violence.136 The Constitutional, legislative and ideological efforts to reconstruct and reward less violent and less patriarchal masculinities have had the unintended effect of lifting the lid on sexual violence.137 As a result of the country’s colonial and apartheid history, many South Africans appear recommitted to what they conceive as a traditionally African heritage, and the apparently accompanying identity.138 Consequently, a popular discourse about the interconnectedness of South African identity and heterosexuality is emerging, which has the effect of relegating same-sex desire (lesbianism in particular) to a discursive space of whiteness and the culturally “unnatural”.139

Closely linked to identity is culture. Culture is that which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.140 Within some cultural circles, homosexuality is framed as an idea that is “alien” to African culture.141 The argument is that homosexuality is a Western import, which was introduced to Africa through colonialism.142 Within this context, homosexuality is viewed as a threat to African culture and African identity. However, this argument can be discounted143 by considering long-documented accounts of same-sex conduct among African communities.144

The impact of this “threat” to African culture results in stricter regulation of the relationships and is geared towards maintaining the status quo.145 Transgressions of this regulation lead to punishment which can be violent (as with the case of corrective rape).146 In many African states such as Uganda, homosexuality has been re-

136 Walker (n 181) 228. 137 Walker (n 181) 228. 138 Morrisey (n 45)76. 139 Morrisey (n 45) 76. 140 Goldstein "On Defining Culture" (1957) American Anthropologist 1075 1076. 141 Vincent and Howell "'Unnatural', 'Un-African' and 'Ungodly': Homophobic Discourses in democratic South Africa" (2014) Sexualities 475. 142 Vincent and Howell (n 141) 475. 143 Msibi (n 117) 63. 144 Msibi (n 117) 63. 145 Msibi (n 117) 70; Wells and Polders "Anti-Gay Hate Crimes in South Africa: Prevalence, Reporting Practices, and Experiences of the Police" 2006 (67) Agenda: Empowering Women for Gender Equity 20. 146 Wells and Polders (n 145) 20.

24 criminalised homosexuality, as it offends most major religions and cultures.147 In effect, this is a denigration of the LGBT community through an appeal to democracy.148 In this context, it is argued that because the majority of Africans do not believe in homosexuality, then it ought to be outlawed.149 Arguments of this nature conveniently disregard that South Africa is a constitutional democracy with an entrenched Bill of Rights, which are used to protect minority communities.

Culture is further used by appealing to customs and practices not conforming to sexuality. It is argued that homosexuality is against cultural practice.150 In this context, culture is seen as static, rigid and incapable of change.151 This is a fallacy as culture is ever-changing in order to meet the needs of society within which its people live.152 It is a way of life and a way of life can be adapted to suit the needs of the people who practice it.

The next section will contain a discussion of power, privilege and patriarchy. All of these concepts have an influence on the perception which prevail around black lesbian women and they assist in understanding the interplay between these concepts and their ability to enable corrective rape.

2.3 Power, Patriarchy, Privilege and Misogyny

Those who fall within the generally accepted side of heteronormativity have access to power and privilege. The major definitions of power are in reference to the ability to influence another person's attitude or behaviour and the capacity to produce the intended effects.153 Feminist concern with power and rape is that rape is treated as an expression of dominance and therefore problematizes sex and gender inequality.154 Rape, at its core, is an abuse of power.155 It is characterised with power on one side

147 Msibi (n 117) 62; Thoreson "Somewhere over the Rainbow Nation: Gay, Lesbian and Bisexual Activism in South Africa" (2008) Vol 34 Journal of Southern African Studies 679 690; Wells and Polders (n 145) 21. 148 Thoreson (n 147) 690. 149 Wells and Polders (n 145) 21. 150 Vincent and Howell (n 141) 476 and 477. 151 Brown (n19) 51. 152 Gobodo-Madikizela, Fish and Shefer (n 19) 94. 153 Browning, Kessler, Hatfield and Choo "Power, gender, and sexual behaviour " 1999 Journal of Sex Research 342. 154 Modiri "The Rhetoric of Rape: An extended note on apologism, depoliticisation and the male gaze" 2014 SAJHR 134 at 143. 155 Tshabalala v S; Ntuli v S (CCT323/18;CCT69/19) [2019] ZACC 48 para 73.

25 and disempowerment on the other.156 Quoting Hall, Modiri states that rape is not one form of attack, but a category of behaviour which is structurally generated by the power imbalance between the sexes, and which is culturally sustained (in a male supremacist ethos).157 At its most basic, Hodge defines “privilege” as an unearned set of social benefits which a dominant group possesses and about which they are largely unaware.158 Then, McIntosh uses the metaphor of a “knapsack” to describe privilege: she states that privilege is like an invisible package of unearned assets which a member of a particular group can count on cashing in each day, but about which that person is meant to remain oblivious.159 It is like an invisible weightless “knapsack” of special provisions, maps, passports, codebooks, visas, clothes, tools and blank cheques which are ready to be used.160

Privilege exists in many forms, some of which are based on race, class, sexual orientation and gender.161 It is important to note that privilege is not necessarily determined by numerical majority, but is rather determined by social power.162 In this way, a person can at times be both a recipient of, and be disadvantaged by, privilege.163 Since people are generally unconscious about privilege, it is important to raise consciousness on privilege in order to assist society in being an agent of change.164

Lesbian women are harmed when it comes to privilege, because of the fact that by their non-performance (or perceived incorrect performance) of gender, they threaten some of the privileges that men enjoy, and thus need to be put in their place.165 In South African society power rests, in the following order, with: firstly, white men; secondly white women; thirdly, non-white but also non-black men; fourthly, non-white but also non-black women; fifthly, black men; and lastly, black women.166 Power

156 Tshabalala v S; Ntuli v S (n 155) para 73. 157 Modiri (n 154) 143. 158 Hodge "Secular Privilege: deconstructing the Invisible Rose-Tinted Sunglasses" 2009 Journal of Religion & Spirituality in Social Work: Social Thought 8. 159 McIntosh "White Privilege: Unpacking the Invisible Knapsack " in Multiculturalism (1992) 30. 160 McIntosh (n 159) 31. 161 Hodge (n 158) 9 McIntosh (n 159) 35. 162 Hodge (n 158) 9. 163 Hodge (n 158) 10. 164 Hodge (n 158) 9. 165 Msibi (n 117) 71. 166 In this context, reference to black people refers to those people who were systematically excluded by apartheid and colonialism before it, on the basis of their skin colour. White people on the other hand occupied the opposite side of the spectrum when it came to economic and societal inclusion.

26 therefore resides first and foremost with white men, and the least power or privilege rests with black women. It is further understood that corrective rape occurs mainly in townships, which are almost exclusively black communities. Because they are black communities, black men have access to more power than black women. The conduct of these lesbian women who "act" like men provides a disruption to the power possessed by men, and the action by the perpetrators is an attempt to “take back” that power. Since power does not only denote social power, but also refers to financial power, black women happen to be the least empowered group in South Africa, residing within impoverished communities. The impact hereof is that, regardless of the violence these women suffer, they are unable to leave such abusive communities because they do not have access to the resources which are required to live elsewhere. It is here that we see the way in which different aspects of a person's identity intersect. Lesbian women from townships find themselves at a point of disadvantage in triplicate: they are disadvantaged because they are black in a society which has long privileged white people and has denigrated black people since colonialism. They are further disadvantaged because there are women in a society which places men in higher esteem over women, and finally, they are also disadvantaged because they identify as lesbians, which clashes with heteronormativity and African identity.

These disadvantages mean that black women in particular are at the bottom of any chain of power and privilege and they can be treated accordingly. While the men who perpetrate the corrective rape might not be aware of the implications that come with their conduct, the fact is that they do what they do on account of the fact that they seek to "right that which is wrong". The reason they generally state to justify the conduct is that it is not the “African way of life”. In this way, men see themselves as “enforcers” of their idealised notions of African identity, and Afro-Christian identity.

Patriarchy is a system of social structures, and practices in which men dominate, oppress and exploit women.167 It exists as a system of social relations.168 Like all forms of systemic humiliation, patriarchy strips people of their dignity and renders them

The economic and societal systems before and during apartheid were made with white people in mind. Any person who is neither white nor black in the context set out above is described as non- white and non-black. In the South African context, these categories of people experienced their fair share of discrimination as people who were not classified as white. In South Africa, these categories of people include the Indian and Coloured communities. 167 Walby "Theorising Patriarchy" 1989 (23) Sociology at 214. 168 Walby (n 167) 214.

27 inferior.169 Patriarchy speaks to male dominance where authoritarianism and coercive power are embedded in competitive, hierarchical societal structures that render human beings unequal.170

Patriarchal values are deeply rooted in the social fabric of South African society as part of the apartheid legacy that was premised on inequalities in power sharing and the distribution of social, political and economic resources.171 As stated by the South African Commission on Gender Equality:

“to challenge patriarchy, to dispute the idea that men should be dominant figures in the family and society, is to be seen not as fighting male privilege, but as attempting to destroy African tradition, or to subvert Afrikaner ideals or undermine civilised British values …. Patriarchy brutalises men and neutralises women across the colour line.”172

Research conducted worldwide points to a backlash from men, because policies and other moves in the direction of gender equality usually provoke resistance.173 In a society which is characterised by deeply rooted patriarchy, and when women are seen as falling into certain undesirable roles, those women will generally fail to achieve justice in the criminal justice system.174

2.4 Religion

Religion plays an important role in society. It forms the primary basis for the legal system which a country has, and an overwhelming majority of the population considers itself religious.175 “Religious” is to be understood as referring to the three Abrahamic religions which comprise of Christianity, Islam and Judaism. A conservative interpretation of the texts of these religions state that homosexuality is against their central religious tenets and beliefs. These beliefs have a tendency to desensitise the

169 Snodgrass "the sins of the Father: Gender-based Violence in Post-Apartheid South Africa" 2016 (14) Common Youth and Development at 60. 170 Snodgrass (n 169) 61. 171 Snodgrass (n 169) 61. 172 Snodgrass (n 169) 61. 173 Walker (n 181) 226. 174 Dicklitch, Yost and Dougan "Building a Barometer of Gay Rights (BGR): A Case Study of Uganda and the Persecution of Homosexuals" (2012) Human Rights Quarterly at 464. 175 Tamale Exploring the contours of African sexualities: Religion, law and power" (2014) AHRLJ at 154; http://www.statssa.gov.za/publications/SAStatistics/SAStatistics2012.pdf (accessed on 23-11-2018).

28 religious community to the plight of black lesbian women in particular.176 To most South Africans, church is one of the most significant spaces in which socialisation and communal life occurs, where social attitudes and ethical responses are formed, and often where religious communities facilitate a climate of intolerance.177

While Christianity is not the only religion to exist in South Africa, its influence in South African public order cannot be understated. Its influence has permeated through our criminal justice system, such that most statutory and common law crimes have their foundation in the Judeo-Christian Bible.178 In some respects, it is Christianity which contains the tenets of heteronormativity.179 This is certainly the case within South African society. Because of the influence of Christianity, the state (during colonial rule and apartheid) prescribed an idealised, particular conduct from the public.180 These idealised notions of conduct still persist, despite South Africa being a secular state, and these notions cut across all races, ethnicities, cultures, languages and socio- economic classes.181 Further, South Africa is still a deeply patriarchal and heterosexist society,182 with the impact that heteronormativity thrives in South African society. Governmental and mediated representations of a heterosexual centre, and a queer margin, contribute to a cultural climate which enables social disciplining to occur.183

When it comes to homosexuality, religion and culture seem to find a common place; they both see homosexuality as "ungodly" and "un-African".184 Another argument generally put forward by the religious community is an appeal to intolerance towards homosexuality on the basis that homosexuality or homosexuals will hurt children.185

176 Report on Violence and Discrimination against Black Lesbians and Transgender Men in South Africa at 21 accessible at https://www.hrw.org/report/2011/12/05/well-show-you-youre-woman/violence-and- discrimination-against-black-lesbians-and (accessed on 24-11-2018). 177 Report on Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (n 176) 21. 178 In the Holy Bible the book of Exodus chapter 20, verses 13 to 15 state that a person shall not kill, a person steal and a person shall not commit adultery. Up until a few years ago, all of these were regulated in the law. 179 Vorster "Introduction: Interconnecting Discourses—Gender, Bible, Publics" (2014) Neotestamentica at 6. 180 Morrisey (n 45) 76. 181 Walker "Men behaving differently: South African men since 1994" 2005 Culture Health & Sexuality at 228. 182 Morrisey (n 45) 76. 183 Morrisey (n 45) 76. 184 Vincent and Howell (n 141) 479. 185 Vincent and Howell (n 141) 478.

This is not true and seeks to rely on archaic and misguided beliefs about lesbian and gay people being “paedophiles”.186

2.5 Apartheid

South Africa's past is characterised by a regime of categorisation and prejudice on the basis of race.187 This prejudice has birthed "othering" and "abnormality", which still persists to be an inherent practice of identity construction in South African society.188 The experience for non-white people, both men and women, under apartheid was of extreme systemic humiliation: a process of subjugation that stripped away pride, dignity and honour, and rendered the person or group helpless and inferior.189 Subjugation and humiliation imposed under apartheid continues to impact on non- white people. The argument that males whose formative years are dominated by humiliating experiences will display aggressive tendencies and the urge to counter- dominate can be supported,190 as it is not only humiliating experiences that determine aggressive responses, but also the vivid memories and accompanying emotional pain that motivate the violent behaviour.191 However, this argument does not account for those whose formative years occurred after apartheid. Research reveals that sexual violence speaks to the particular humiliation experienced by black men under apartheid.192 Apartheid emasculated black men.193 They were called “boys”, treated as subordinates, and denied respect.194 Where black men resisted class and race oppression, they were also, simultaneously, defending their masculinity.195 This defence often involved efforts of re-establishing dominance or perpetuating power over women.196 In this way, violence and masculinity are interconnected.197 While gender- based violence worldwide is not particularly linked to race, in South Africa, it is the effect of deep-rooted historical, social and psychological factors.198 Slavery and

186 Nel and Judge (n 19) 21. 187 Nel and Judge (n 19) 21. 188 Nel and Judge (n 19) 21. 189 Snodgrass (n 169) 65. 190 Snodgrass (n 169) 65. 191 Snodgrass (n 169) 65. 192 Snodgrass (n 169) 65. 193 Snodgrass (n 169) 65. 194 Snodgrass (n 169) 65. 195 Snodgrass (n 169) 65. 196 Snodgrass (n 169) 65. 197 Snodgrass (n 169) 65. 198 Snodgrass (n 169) 65.

30 colonialism were rooted in violence and violation, in the negation of some lives, it tore apart of families, and the ingrained of self-hate.199 Building on this, apartheid capitalized on the physical violence of contestation through the militaristic control as well as the structural violence of the economy.200 It systematically brutalized black people through various forms of impoverishment, displacement, disenfranchisement and military occupation.201 It is then not surprising that violence in South Africa is the way it is. The failure to dismantle the above in a new South Africa is directly implicated in what ails the country.202

Currently, men and women, especially black women, experience many of the same issues that hark back to the country’s traumatic past of structural violence that privileged certain groups and discarded other groups based on the colour of their skin.203 For women in South Africa, the most challenging threat to their well-being and freedom is gender-based violence, which ranks South Africa as one of the worst in the world.204 Gender-based violence does not arise in a vacuum, but is impacted by a complex array of interrelated social, economic, cultural and political factors that disadvantage women.205

The purpose of this section is not to mitigate the violence perpetrated by men on lesbian women and women in general and to blame it solely on Apartheid. Its purpose is to acknowledge that Apartheid has played a part in the patriarchy, misogyny and gender-based violence which is evident in South African society today.

2.6 Intersectionality

Intersectionality occurs when there is a combination of multiple inequalities.206 This occurs when a person belongs to different groups, some of which are subject to inequalities.207 Black lesbian women are an example of this: they are disadvantaged not only by their race, but also by their gender, sexual orientation and at times, their

199 Gqola “How the ‘cult of femininity’ and violent masculinities support endemic gender based violence in contemporary South Africa” (2007) 5 African Identities at 113. 200 Gqola (n 199) 113. 201 Gqola (n 199) 113. 202 Gqola (n 199) 114. 203 Snodgrass (n 169) 67. 204 Snodgrass (n 169) 67. 205 Snodgrass (n 169) 67. 206 Gopaldas "Intersectionality 101" (2013) Journal of Public Policy & Marketing at 90. 207 Gopaldas (n 206) 90.

31 social class or physical and mental disability. The objective of intersectionality is to view individuals not in binary terms, but rather in a manner which appreciates that humans are multifaceted beings who typically enjoy some degree of both privilege and disadvantage as they navigate life.208 Understood in this way, a person can be both a victim and a perpetrator of oppression.209 In South Africa, the black skin of lesbian women is of particular concern, because much of the popular discourse in South Africa implies that homosexuality, and lesbianism more specifically, is taboo, and many South Africans continue to claim that same-sex desire is not native to South African culture.210 Intersectionality is where all of the above intersect to create a multiplicity of disadvantages for black lesbian women. It is important that these are discussed because it illustrates the multitudes of disadvantage which brings rise to corrective rape.

2.7 Conclusion

This part contained a discussion of social issues which contribute to corrective rape. The section contained a discussion on religion, culture, patriarchy, misogyny, heteronormativity, power relations identity and culture and the intersection of all to exacerbate corrective rape. We have seen that there are societal issues which have given rise to corrective rape. These issues are apart from any legal impediments which exist in the fight against corrective rape. These issues are societal, and the law and law makers can only go so far in the combat of corrective rape. The below section will discuss some suggested recommendations to fight corrective rape.

208 Hodge (n 158) 10. 209 Hodge (n 158) 10. 210 Morrisey (n 45)79.

3 CHAPTER 3: THE RESPONSE OF THE DIFFERENT SPHERES OF THE SOUTH AFRICAN GOVERNMENT TO CORRECTIVE RAPE This chapter will contain a discussion on the response of the various branches of the South African government to corrective rape. It will specifically look at how corrective rape is treated in terms of legislation, by the executive, and the courts and the administration of justice. This chapter aims to show that corrective rape stems from various factors some of which are attributable to the government and that it is not treated as seriously as it should be. With the legislative branch, this dissertation will look for whether the appropriate legislation has been enacted to ensure that there is sufficient authority to combat corrective rape. With the executive (within the executive, politicians are included since the executive generally consists of political appointments), this minor dissertation will contain a discussion on whether they have executed the legislation enacted by the legislature and on the conduct of the politicians in South Africa. The judiciary will look at the efforts of the National Prosecuting Authority as well as those of the courts in the administration of justice.

3.1 The Constitution and the South African Legislature As illustrated above, “corrective rape” is not considered a crime in itself in terms of statutory or common law but is rather prosecuted as the offence of rape in general. The Criminal Law (Sexual Offences and Related Matters) Amendment Act211 defines rape as the unlawful and intentional commission of an act of sexual penetration with a complainant without their consent.212 In terms of section 39(2) of the Constitution, courts are required to develop the common law in line with the spirit, objects and purport of the Bill of Rights213, which this Amendment Act did. The Constitutional Court extended the definition of rape to include the penetration, by the male penis, of the anus of another person.214 However, it is expected that the legislature enacts legislation that will enable the prosecution of those committers of corrective rape

211 32 of 2007. 212 Section 3. 213 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 37. 214 Masiya v Director of Public Prosecutions Pretoria (The State) and Another 2007 (5) SA 30 (CC) para 93.

33 seamlessly. This has not occurred, as corrective rape is treated like any other form of rape, as is evidenced by the Simelane, Zozo and Nkonyana cases.

Apart from the Constitution, there is also legislation which is enacted to give effect to the rights enumerated in the Bill of Rights. The Promotion of Equality and Prevention of Unfair Discrimination Act215 (PEPUDA) was enacted to give effect to sections 9 and 16 of the Constitution and to promote the achievement of equality.216 The point of departure for PEPUDA is that the state and all private persons are prohibited from unfairly discriminating against others.217 Section 8 of PEPUDA includes gender-based violence in its prohibition of unfair discrimination and section 11 prohibits harassment. Part of the guiding principles of PEPUDA include the use of corrective or restorative measures in conjunction with measures of a deterrent nature.218 PEPUDA further states that the existence of systemic discrimination and inequalities in respect of gender in all spheres of life brought about by patriarchy, colonialism and apartheid must be taken into account in the application of the Act.219

PEPUDA acknowledges the gender-based violence issues which the country has. Moreover, it acknowledges the effect of gender-based violence on the right to equality; that it serves to undermine equality.220 While PEPUDA allows for presiding officials to impose sanctions which are aimed at changing societal attitudes.221 While the remedies provided by PEPUDA are not criminal in nature, they are indicative of the theoretical protections available. With creative implementation, the provisions of PEPUDA can bring awareness to the plight of lesbian women.

From what has been discussed above, it is evident that there is law available which is adequate to deal with corrective rape. What follows will be a discussion of the efforts of the state and whether such efforts amount to fulfilling the obligations which the state has towards lesbian inhabitants of South Africa.

215 4 of 2000. 216 Section 9(4) of the Constitution; Preamble to the Promotion of Equality and Prevention of Unfair Discrimination Act. 217 Section 6. 218 Section 4(1)(d). 219 Section 2(a). 220 S v Baloyi and Others (n 22) para 11. 221 An example of this is in the guidelines contained in section 4 of PEPUDA.

3.2 The South African National Executive

This next section on the executive will include a discussion of the South African national executive, the role of the South African Police Service, as well as disparaging comments made by parliamentarians against the LGBT community. It is important that these responses are discussed because they illuminate us on the reasons behind the relative inaction by the state when it comes to corrective rape. Further, the statements made by politicians in particular are important since they have the potential to legitimise homophobia, and essentially tacitly approves thereof.222 The national executive is tasked with implementing legislation enacted by the legislature.223 They do this through the different portfolios which are headed by ministers.224 The ministers ultimately answer to the state president.225 The failure to do this is an infringement of the rights of those affected by the conduct of the executive. In the context of corrective rape, the executive is expected to create whatever programmes which will adequately deal with corrective rape.

The most relevant portfolios, for the purposes of this minor dissertation, are the Department of Police, in particular the SAPS and the Department of Women. The SAPS has generally not responded in the best way when it comes to survivors of corrective rape, specifically in that complainants reporting that they continue to face discrimination once they report offences to the SAPS.226 This discourages the reporting of anti-gay hate crimes for fear of this maltreatment.227 The Department of Women seems to have limited programmes aimed at fighting rape. The Department is seemingly focused on championing the advancement of women’s socio-economic empowerment and the promotion of gender equality,228 which is done through various programmes aiming in the achievement hereof, including fighting against gender- based violence.229 The Department has noted that it is limited in its programmes

222 Batisai K "Being gendered in Africa's flag-democracies : narratives of sexual minorities living in the diaspora" 2015 Gender Questions Vol 3 issue 1 25 at 27. 223 Section 85(2) of the Constitution. 224 Section 92(1). 225 Section 91 of the Constitution. 226 Nel and Judge (n 19) 20. 227 Wells and Polders (n 145) 22. 228 Department of Women Annual Performance Plan for 2018/2019 accessible at http://www.women.gov.za/images/Women-APP-2018-WEB.pdf (accessed on 15-04-2019). 229 Department of Women Annual Performance Plan for 2018/2019 accessible at http://www.women.gov.za/images/Women-APP-2018-WEB.pdf (accessed on 15-04-2019).

35 because it does not have accurate data on violence against women and the department and has as a result, not yet achieved anything as yet.230

One of the most well know political leaders in South Africa, Jacob Zuma (Zuma), was accused of having raped Khwezi, a lesbian woman.231 At the time, Zuma was the deputy president of South Africa and of the African National Congress (ANC).232 The leaders of the ANC Youth League (Julius Malema), the ANC Women’s League (Bathabile Dlamini) as well as the then secretary-general of the Congress of South African Trade Unions (Zwelinzima Vavi) all supported Zuma during the trial.233 All of them vilified Khwezi for having laid the rape charge at all.234 Malema (who is now the leader of the Economic Freedom Fighters which claims to want to combat homophobia and corrective rape) famously said that Khwezi had a “nice time” with Zuma and that if a woman “didn’t enjoy it, she leaves early in the morning”.235 Some people who were dressed in ANC Women’s League regalia said that Khwezi should “feel lucky to have been raped by such a handsome man”. 236 They referred to her sexuality as only a “claim”.237 Khwezi was constantly vilified by supporters of Zuma outside the court and all Zuma did was to sing songs. The result of the rape trial was to find that Zuma was not guilty of committing rape because there had been consent.238 The verdict itself is not the issue with the Zuma rape trial. The biggest concern was the fact that South African society did not have any concerns with supporting a person who had been accused of rape. It had a massive impact in South African society that the deputy President at the time, future state president, was found not guilty in this case.

Certain members of parliament have made certain disparaging comments regarding the LGBT community: in 2009, Lulu Xingwana (a member of parliament and former

230 Department of Women Annual Report for 2017/2018 accessible at http://www.women.gov.za/images/DOW---Annual-Report-Email-Version.pdf (accessed 15-04-2019); Department of Women Annual Performance Plan for 2018/2019 accessible at at http://www.women.gov.za/images/Women-APP-2018-WEB.pdf (accessed on 15-04-2019). 231 https://www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215 (20-09-2019). 232 https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 233 https://www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215 (20-09-2019); https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 234 https://www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215 (20-09-2019); https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 235 https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 236 https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 237 https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019). 238 https://www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215 (20-09-2019). https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019).

36 minister of the Department of Arts and Culture) walked out of an exhibition at the Constitutional Hill when she saw intimate portrayals of same-sex couples by photographer Zanele Muholi.239 In walking out, Xingwana stated that the exhibition was going against the Department's mandate of promoting social cohesion and nation building.240 She further stated that she found the exhibition immoral and offensive.241 After accusations of homophobia, the minister stated that she had been concerned that there were children at the exhibition who should not have been exposed to such explicit images.242 She stated that she would not be part of any tendencies that undermine the rights of people and that she respects and accepts the rights of people of different sexual orientations.243 While seemingly innocuous, the words uttered by the former minister matter because of the influence she wields as a public figure and an apartheid struggle stalwart. There is also the documented publication by Jon Qwelane who has likened same-sex marriage to marriage between humans and animals.244 This particular publication has been the subject of a case at the Equality Court, the Supreme Court of Appeal and is currently on appeal at the Constitutional Court.245

The comments made by members of the executive and political parties illustrate that they share the same views as the broader society. The effect of these view is to embolden the rest of society and to provide an understanding into some of the reasons behind the slow action by the executive.246 This means that there is greater difficulty with fulfilling any of the obligations which the executive has. While the state has an obligation to combat and to prosecute the perpetrators of corrective rape, the executive does not aid in this because of their personal beliefs. These beliefs go on to influence the rest of society. This is illustrative of a failure to perform obligations created by

239 https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as-immoral (03-11- 2018); https://mg.co.za/article/2010-03-05-xingwana-homophobic-claims-baseless-insulting (03-11- 2018). 240 https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as-immoral (03-11- 2018). 241 https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as-immoral (03-11- 2018). 242 https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as-immoral (03-11- 2018). 243 https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as-immoral (03-11- 2018). 244 https://www.news24.com/SouthAfrica/News/jon-qwelane-found-guilty-of-hate-speech-20170818 (03-11-2018). 245 https://collections.concourt.org.za/handle/20.500.12144/36639 (accessed on 11-02-2020). 246

37 human rights. Further, the ministerial portfolios which should be looking to working on corrective rape (the department of Women and Children and the department of Police) are currently not doing enough to ensure that corrective rape is prevented. While the department of Women and Children is not connected to the criminal aspects of combating corrective rape. They could certainly do more when it comes to awareness programmes and the supporting of victims of corrective rape.

3.3 The South African Judiciary, the National Prosecuting Authority and the Administration of Justice

This section will discuss the duties of presiding officers when court cases concerning corrective rape come before them. The section will further discuss the rules of evidence and their effect on administration of justice, sentencing as well as the role of the National Prosecuting Authority (NPA). The judiciary is expected to interpret the laws which are in existence in a manner which will promote the spirit, purport and objects of the Bill of Rights. This means that, at all times, the judiciary is to attempt to give effect to the rights in the Bill of Rights or it is to interpret the laws in a manner which gives effect the rights in the Bill of Rights.

The judiciary has passed some progressive judgements in relation to sexual orientation and rape in general, yet magistrates' courts, in particular, have generally taken a rather conservative approach to corrective rape. In the Simelane case, the magistrate explicitly stated that the sexual orientation, which was known to the general public, would not be considered in the case at all.247 In the Zozo case, a magistrate stated that a corrective rape case could be postponed.248 That is not problematic in itself as criminal and civil cases are postponed all the time. However, what was problematic was the magistrate’s statement that "there were more important cases at the moment", where after the case was postponed.249 The statements made by the magistrates belie the impression that members of the judiciary are not as open minded as the law needs them to be, and that they might not be alive to the manifestations of prejudice in society. This is problematic because the judiciary is responsible for adjudicating criminal cases, and presiding officers are supposed to be adequately

247 Mwambene and Wheal (n 81) 65; Mkhize, Bennett, Reddy and Moletsane (n 82) 49. 248 Mwambene and Wheal (n 81) 67. 249 Mwambene and Wheal (n 81) 67.

38 aware of how prejudice works and how it can manifest. However, the Nkonyana case is indicative of the fact that there are some presiding officers who are aware of prejudice and have generally handed down sentences taking those prejudices into account, as well as the effect they have had towards committing the corrective rape. Victor J, in Tshabalala, has correctly noted that a historical overview of in South African jurisprudence in respect of rape demonstrates a number of embedded patriarchal gender norms in the procedural rules of evidence in relation to rape.250

While the judiciary cannot be entirely to blame in the fight against corrective rape, as some remnants of past rules of evidence still exists to this day, seemingly influencing the adjudication process and the way in which the law is applied by presiding officers. An example of this is the cautionary rules of evidence, even though it has been abolished to a certain extent. The cautionary rules of evidence required a judge to exercise caution with particular witnesses (accomplices, young children and complainants in sexual offences) in relation to their testimony, particularly when that evidence is without corroboration or where there is no indication of the trustworthiness of the evidence.251 The rule was based on the principle that women are prone to lie and to fantasise, particularly in sexual matters and that they are naturally vengeful and spiteful in accusing an “innocent man” of rape.252 The effect of this rule was that it invalidated the claims of a complainant, while simultaneously carving out a plausible deniability for the accused. It was first abolished in the case of S v Jackson, where the Supreme Court of Appeal stated that the rule, as it applies to sexual assault cases, is based on irrational and out-dated perceptions.253 The Court rightfully stated that it unjustly stereotypes complainants in sexual assault (most of whom are women) as particularly unreliable.254 The Criminal Law (Sexual Offences and Related Matters) Amendment Act has also partially abolished the cautionary rule in so far as it relates to sexual assault cases. Section 60 states that a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence, with caution, on account of the nature of the offence.

250 Tshabalala v S; Ntuli v S (n 155) para 80. 251 Zeffert and Paizes Essential Evidence (2010) 308. 252 S v Jackson (35/97) [1998] ZASCA 13 at para 13. 253 S v Jackson (n 252) 18. 254 S v Jackson (n 252) 18.

Notwithstanding the fact that the rule has been abolished, the courts nevertheless still insist on applying the rule where there is a conditional factor.255 Because the rule has been abolished only in relation to sexual offences, it presents a complication in cases where the complainants of sexual offences are young children. In S v Mthethwa256 the appeal court stated that a magistrate in the court a quo had applied caution when it came to the testimony of an 11 year-old complainant to the detrimental effect on the case.257 The magistrate in the court a quo had stated the following regarding the complainant:

“The State in this case relied on the evidence of a single witness who is 11 years of age. Her evidence relates to a matter involving a sexual element. The court is alive of the degree of caution to be applied in evaluating the evidence of a child in these matters. The child ... is 11 years of age and doing grade 4. She gave an impression she is someone who is very forgetful. She could not remember even her date of birth. She could not even differentiate between dates and months. She only remembered how accused had sex with her. She explained how she came to the conclusion that accused had raped her. Her friends told her what is rape (sic). She later remembered when she testified it was on 9 December. To [the] court her mind is unstable.'”258

Commenting on this, the court indicated that the show that the learned regional magistrate lacked the necessary sensitivity and empathy for the complainant and demonstrated a complete lack of appreciation for the constitutional dictate of section 28(2) regarding the best interests of the child in all circumstances.259 The court further indicated that the magistrate in the court a quo had been brash, abrasive and overbearing towards the child by informing them that the magistrate would punish the complainant was intimidating and might have influenced the complainant’s testimony.260 Appearing in court as a witness can be a daunting task for most people, even more so when such a witness is a child complainant, especially in a rape case.261

Connected to the cautionary rules of evidence is the rule regarding previous statements by a witness. Previous statements made by a witness may not be used to

255 Zeffert and Paizes (n 251) 312. 256 2015 (1) SACR 609 (GP). 257 S v Mthethwa (n 256) para 28. 258 S v Mthethwa (n 256) para 28. 259 S v Mthethwa (n 256) para 29. 260 S v Mthethwa (n 256) para 28. 261 S v Mthethwa (n 256) para 28.

40 corroborate their testimony, with the exception of sexual offence cases.262 In sexual offences, a previously consistent statement made by a complainant was admissible as evidence where the complainant had made a complaint at the first reasonable opportunity.263 The rule in relation to previously consistent statements, just as with the cautionary rules, is derived from a period where there was a considerable amount of untruths in relation to how victims of sexual offences ought to complain.264 This rule has been found to be unfair in its operation against complainants because courts used to draw negative inferences in instances where the complainant waited for a considerable period of time before reporting the commission of a sexual offence against them.265 The negative inference has since been abolished by the Criminal Law (Sexual Offences and Related Matters) Amendment Act as well, but the remnants of the rule have still lingered in practice.

These rules of evidence are illustrative of the way in which the law has continuously worked against victims of rape. These rules show that the law of evidence has a tendency to focus on the conduct of the complainant and attributing a delay in the reporting of an offence with inherent distrust.266 The genuineness of sexual offence complaints appear to be judged with reference to the character and behaviour of the complainant as opposed to that of the accused.267 Indeed it is with the law of evidence where we see that the law is littered with assumptions that reflect the attitudes of the dominant group towards race and gender.268 In interpreting an applying the law in the manner as shown above, the judiciary has showed a failure to promote the spirit, objects and purport of the Bill of Rights and this has resulted in an unnecessary infringement of rights.

The motive for the rape (which is crucial in the case of corrective rape) is not considered during the trial stage, where the guilt of the accused is still under

262 Zeffert and Paizes (n 251) 147. 263 Zeffert and Paizes (n 251) 147 and Singh "Evaluating the 'First Report': The Persistent Problem of Evidence and Distrust of the Complainant in the Adjudication of Sexual Offences" 2006 SACJ 37 at 42. 264 Zeffert and Paizes (n 251) 147. 265 Singh (n 263) 42 and Zeffert and Paizes (n 251) 147. 266 Singh (n 263) 42. 267 Singh (n 263) 39. 268 Schwikkard "Silence and Common Sense: Evidence, Criminal Process and Criminology" 2003 Acta Juridica 9299.

41 consideration.269 It is only once the accused has been convicted that the question of motive is considered during sentencing proceedings:270 the motive (prejudice in the case of corrective rape) will usually serve as an aggravating factor during this stage.271 The failure to take into account the motive during the sentencing stage is an infringement of human rights. It also lacks the empathy spoke about in S v Mthethwa.272 However, the benefit of not including prejudice in the definitional elements of the crime of corrective rape273 is that the state would not have the additional task of proving prejudice as a definitional element beyond a reasonable doubt, adding to a layer of complications to an already over-burdened criminal justice system. Further, the additional definitional element of prejudice would mean that the state would have to prove "double intent", in the sense that the state would have to prove intent to rape, as well as intent to rape as a result of the complainant's sexual orientation. Again, this would add a complication to an already over-burdened system. In S v Chapman274, the Court set out the rights which are infringed by rape as the rights to dignity, privacy, bodily integrity and safety.275 There is also the right to equality (in the sense that corrective rape unfairly discriminates against lesbian women on the basis of their gender and sexual orientation). The legislation which has been enacted to implement these rights also gives further protection to militate against corrective rape. Yet, all of these enumerated rights are on paper, and their theoretical existence neither guarantees their practical implementation, nor that the broader public will be aware of its existence.

The Courts have a wide discretion when it comes to sentencing,276 and may not be exercised arbitrarily. For sentencing in general, the Court will take various factors into consideration, namely, the nature and circumstances of the offence, the characteristics of the offender, and the impact of the crime on the community.277 In S v Rabie,278 the

269 Burchell J South African Criminal Law and Procedure Volume I: General Principles of Criminal Law (4th Edition) (2011) 366. 270 Snyman CR Criminal Law (6th Edition) (2014) 186. 271 Snyman (n 270) 186. 272 S v Mthethwa (n 256) para 29. 273 The offence would likely read something along the lines of: "the unlawful and intentional sexual penetration of another without their consent and with prejudice based on their sexual orientation". 274 1997 (3) SA 341 (SCA). 275 S v Chapman (n 274) 344J - 345A. 276 Geldenhuys, Joubert, Swanepoel, Terblanche and van der Merwe Criminal Procedure Handbook (10th Edition) (2011) 316. 277 S v Zinn 1969 (2) SA 537 (A) at 540G. 278 1975 (4) SA 855 (A).

42 then Appellate Division stated that punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.279 Notwithstanding this discretion which the Courts have, there are minimum sentences which are imposed for certain offences. When it comes to sentencing, corrective rape (because of the grievous bodily harm that comes with the offence) is likely to attract a minimum sentence of life imprisonment as stated in section 51(1) of the Criminal Law Amendment Act.280 Where there is less grievous bodily harm the minimum sentence which it will carry is not less than 10 years for a first-time offender, 15 years for a second-time offender and 20 years for an offender who has been convicted of that offence for 3 or more times.281 Theoretically, the minimum sentencing provisions seem more than adequate as they are reliant on the state to prove its case and the sentence which comes with the offence will be automatic.

Finally, in an effort to curb the high statistics of rape, the NPA formed the Sexual Offences and Community Affairs Unit.282 This unit was to work for an inter-disciplinary strategy in order to improve the care and treatment of rape victims at all points in the criminal justice system (thereby reducing secondary victimisation), ensuring speedy, effective investigation and prosecutions of rape cases, and a reduction in cycle times and increase in conviction rates.283 The aim of the Unit is to pool together the requisite resources in order to fulfil the purposes of the management team.

The inter-departmental management team is indicative of the work which all three branches have done to respond to gander-based violence. While this management team is not aimed at corrective rape only, it is good in the sense that it offers a glimpse into what is on the proverbial mind of the government and this is a good thing.

3.4 Conclusion

The state is at the centre of humanity when it comes to organising society. It is responsible for organising humanity and helps people make sense of the world. The

279 S v Rabie 1975 (4) SA 855 (A) at 862G. 280 105 of 1997. 281 Section 51(2)(b) of the Criminal Law Amendment Act. 282 https://www.npa.gov.za/node/18 (accessed 03-11-2018). 283 Report on the Feasibility and Locations of a Thuthuzela Care Centres Gauteng, Limpopo, Free State, Northern Cape and Mpumalanga (Phase 2) accessible at https://www.npa.gov.za/sites/default/files/sexual-offences-ndaba-2008/Phase%202.pdf (accessed 03- 11-2018).

43 state is the entity upon which human beings depend when an injustice has been committed against them. Moreover, the state has particular human rights obligations to fulfil. The legislature is to enact law which adequately deal with corrective rape, the executive is to implement this legislation with the due diligence required in order to combat corrective rape and the judiciary is expected to interpret and apply the legislation in a manner which enables the exercise of the rights in the Bill of Rights. We can see that the three arms of the state have shortcomings when it comes to the combating of corrective rape. These shortcomings are a failure to fulfil human rights obligations. In this instance the infringement is by the state. The executive and politicians seem to be the ones most culpable. This is quite ironic when one considers the fact that the legislature and the executive consider themselves the most legitimate since the parties who nominate them are elected. Sachs J was apt in pointing out that the ineffectiveness of the criminal justice system in addressing violence intensifies the subordination and helplessness of the victims and sends an unmistakable message to the whole of society that the daily trauma of lesbian women counts for little.284 Notwithstanding the above, the state is but an aspect of society and the state alone is not going to completely eradicate corrective rape. For this, the rest of society will have to lend its hand as well.

284 S v Baloyi and Others (n 22) para 12.

4 CHAPTER 4: RECOMMENDATIONS AND CONCLUSION

“We have to open up a space for an investment in healthy sexual relations for men, women and queer or nonbinary persons, a space in which they can thrive without being subjected to others’ desire to use their bodies as a test of their violent manhood.”285

In this final chapter, this minor-dissertation will provide a discussion of some proposed changes which might assist in the fight against corrective rape. The chapter will start with a discussion of the concept of reparations as a first step in the fight against corrective rape. Following this, there will be a discussion of the concept of torture and how that can be used in the fight against corrective rape. The third part of the chapter will be a discussion of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Combating of Hate Crimes and Hate Speech Bill B009-2018 (Hate Crimes Bill). Following that, there will be a discussion of the role played by women's organisations as well as training judges in sexuality and sexual violence.

4.1 Reparation

The concept of reparations recognises the obligations which states have towards victims of human rights violations.286 In international law, the duty to provide reparations derives from particular consequences of serious breaches in international law by the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,287 and the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts.288 Reparation can consist of restitution, compensation, and satisfaction,289 rehabilitation, and will therefore consist of both pecuniary or non-pecuniary reparation.290 The right to reparations is premised on the rights to equal and effective

285 https://mg.co.za/article/2015-03-05-our-culture-idolises-monsters (accessed on 23-09-2019) 286 Roux "Sexual Violence During Armed Conflict and Reparation: Paying Due Regard to a Unique Trauma" (2014) African Yearbook on International Humanitarian Law 95. 287 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Resolution 60/147 of 16 December 2005) article 11(b). 288 https://casebook.icrc.org/case-study/international-law-commission-articles-state-responsibility (accessed 23-09-2019) 289 Articles 34 – 37 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts. 290 Watkins (n 291) 563.

45 access to justice, the right to adequate and effective reparations for harm suffered and the right to truth.291 A victim is generally understood to be any person or a group of persons who have suffered or are alleged to have suffered human rights violation or abuse and this includes the sexual partners, immediate family or dependents of the direct victim.292

The underlying principle of reparations is to place a person in the same position they would have occupied had the violation not occurred. This is not possible when it comes to corrective rape because one cannot possibly restore a person to their previous position once they have been raped. For this reason, therefore, restitution as a form of reparation, is not appropriate in the context of corrective rape. In the context of corrective rape, reparations in the form of satisfaction will consist of the acknowledgement of the occurrence of the offence. Corrective rape is a gross violation of human rights. Within this context, South Africa is required to ensure that reparations are made to victims or families of victims of corrective rape. The executive and the legislature would have the obligation to provide reparations to victims (or their families) of corrective rape on behalf of the community at large. The first form or symbolic reparation is to recognise that corrective rape exists. This recognition ought to occur in a public nature so that inhabitants of South Africa are aware of corrective rape. In this way, LGBT rights and the existence of prejudices which exist in relation to lesbian women (and LGBT people as a whole) are recognised as legitimate. Satisfaction will not necessarily stop corrective rape, but it is a necessary first step towards fighting it and will facilitate awareness on corrective rape. The South African government must also (in line with the obligation to ‘respect, protect, promote and fulfil’ human rights) create a safe environment for victims to not only report their crimes, but also to share their experience openly.

The case of Carmichele has provided a blue print for a possible damages claim which would serve as reparation in a pecuniary form can be used to protect lesbian women against corrective rape. Delictual claims are included as part of reparations because a claim of this nature only occurs after the fact and any success of the claim is part of

291 Watkins "The Right to Reparations in International Human Rights Law and the case of Bahrain" (2009) Brooklyn Journal of International Law at 559. 292 General Assembly Res 40/34 (1985), Declaration of basic principles of justice for victims of crime and abuse of power, 29 November 1985, para 1.

46 reparations. In Carmichele, the Constitutional Court established that the state has a legal duty to take positive action to protect the public from harm.293 Di Silvio is of the opinion that, while a delictual claim against the offender may not bear any fruit for the accuser, a claim can be made against the state, as it has the duty to protect its lesbian citizens from harm.294 This duty, he says, arises not by virtue of the protective position of the state, but by virtue of the fact that it is well known that South Africa has gender violence issues.295 From that knowledge, the state ought to take more action to protect its lesbian citizens.296 He acknowledges that there are a number of problems with pursuing civil remedies for what is ultimately a criminal case.297 The biggest of these problems is that a delictual claim does not prevent criminal prosecution, and only occurs after the fact.298 This problem has to be balanced with the fact that rape survivors often only want for society to acknowledge that a gross violation has occurred. A delictual claim where the state is forced to acknowledge its role in sexual violence against women might go a long way towards this recognition.

One of the possible ways in which a delictual action can be launched against the state is through a class action. Lesbian women can institute a class action using section 38(c) of the Constitution which allows a person to institute proceedings on behalf of a class of persons. The class, in this instance, would be defined by the sexual orientation as well as having suffered corrective rape. This can be bolstered by a claim of constitutional damages. Constitutional damages are generally claimed for an infringement of a right in the Constitution.299 They are generally used as a last resort when a party cannot claim damages through common law.300

While always helpful, it is important to note that damages claims can only be effected after the occurrence of an offence and in that way are unhelpful in curbing violence and might prove cold comfort to a person whose has been a victim of corrective rape. Further, there might be issues with quantifying the damages to be claimed by a victim

293 Carmichele v Minister of Safety and Security (n 213) para 49. 294 Di Silvio (n 82) 1482. 295 Di Silvio (n 82) 1483. 296 Di Silvio (n 82) 1483. 297 Di Silvio (n 82) 1484. 298 Di Silvio (n 82) 1484. 299 Fose v Minister of Safety and Security [1997] ZACC 6 para 60; Zitzke "Constitutional Heedlessness and Over-Excitement in the Common Law of Delict’s Development" (2015) 2 Constitutional Court Review 259 289. 300 Zitzke (n 299) 289.

47 of corrective rape. While quantifying the medical expenses associated with the corrective rape, quantification of the emotional damages are harder to quantify and this might lead to complaints regarding the courts undermining the amount of harm corrective rape does and the long term effects which come with corrective rape. Compensation may also come in the form of compensating no-profit organisations which work with members of the LGBT community. Ultimately, compensation is only symbolic because no amount of money will ever be able to take away the harm that a victim of corrective rape has endured.

Rehabilitation is another form of reparation which can be explored. Rehabilitation can be focused on the victims of corrective rape or the perpetrators of corrective rape. When it comes to the victims, the rehabilitation could focus on ensuring that the victims continue to live a fruitful life despite their experience. The aim of rehabilitation would therefore be focused on the psyche of the victim and with equipping them to cope with life after the corrective rape. When it comes to the perpetrators the aim would be two- fold. The first aim would be to create a structural change on the perpetrators with a specific aim to change the whole reason why they commit corrective rape in the first place. This aim would this be aimed at changing the mentality around sexuality and human beings. The second aim of rehabilitating the perpetrators would be for the benefit of the victims of corrective rape. It might be of assistance for the perpetrators to acknowledge the wrongs they have committed and for them to apologise to their victims or the families of the victims.

These forms of reparation are practicable and do not cost much when it comes to administering them. All of these forms of reparation are aimed at acknowledging the pain endured by the victims of corrective rape. None of them can take away the fact that a horrible crime has been committed upon a victim, but they are aimed at acknowledging them.

4.2 Using the Crime of Torture in an Effort to Combat Corrective Rape

One of the traditional purposes of torture has been its use as a form of punishment.301 In its modern incarnation, torture has been synonymous with the extraction of information.302 South African courts have not yet given a definition of what constitutes

301 Woolman and Bishop Constitutional Law of South Africa (2014) 56. 302 Di Silvio (n 82) 1478.

48 torture, but international law has adopted the definition of torture in its modern form. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.303 It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. In international law, rape has been recognised as a form of torture. In this regard, the International Criminal Tribunal for Rwanda (ICTR) confirmed rape as a form or torture.304 In Akayesu the ICTR Trial Chamber stated that:

“rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.305

The issue with the statement by the ICTR is that it only envisages torture as mandated by the government and this is limiting on the potential for the offence. Woolman and Bishop have stated that what distinguishes torture from other acts such as with victims of war, disease and starvation is what lies at the heart of torture.306 Torture includes pain which is inflicted with domination and the destruction of the personality of the individual.307 It is not merely cruelty, but is rather cruelty bordering on barbarism.308 Domination and destruction of the personality of the individual is also what is at the heart of corrective rape. Denigration and punishment define corrective rape aptly. It makes sense therefore that the act of corrective rape is included within the definition

303 Article 1(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (39/46 10 December 1984). 304 The Prosecutor v Jean-Paul Akayesu (2 September 1998) Case No ICTR-96-4-T (Judgment and Sentence) ; The Inter-American Court of Human Rights in Raquel Martí de Mejía v Perú (1 March 1996) Case No 10.970 Report No. 5/96 OEA/Ser.L/V/II.91 Doc. 7 (Judgment) rape was also confirmed as a form of torture. 305 Akayesu (n 304) para 597. 306 Woolman and Bishop (n 301) 58. 307 Woolman and Bishop (n 301) 58. 308 Woolman and Bishop (n 301) 58.

49 of torture. This does not necessarily have to be an adopted standard globally, South Africa certainly ought to include the act of corrective rape.

In South African law, the Convention has been domesticized by the Preventing and Combating of Torture Act (Torture Act).309 The Torture Act defines torture as an act by which severe pain or suffering is intentionally inflicted on a person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation, or with the consent or acquiescence of a public official.310 The Oxford Dictionary defines acquiescence as the reluctant acceptance of something without protest.311 An argument can be made that the passive statements of the state in relation to corrective rape can be construed as acquiescence. Argued this way, corrective rape falls neatly within the prescripts of the Torture Act and perpetrators of corrective rape could be prosecuted in terms of the Torture Act.

4.3 The Application of Legislation to Combat Corrective Rape

PEPUDA has rarely been used when it comes to the fight against corrective rape. I propose that PEPUDA can be adequately used in order to enhance the punishment which perpetrators of the offence. Section 24(2) of PEPUDA states that it is the duty of everyone to promote equality. It goes on to prohibit people from publishing, propagating, advocating or communicating anything on one of the prohibited grounds.312 The section goes on to say that all the above should be done with a demonstration of the clear intention to be hurtful, harmful or to incite harm or to promote or propagate hatred.

It is submitted that corrective rape fits into all of these categories and PEPUDA can be utilised a lot more within the criminal law. Further, PEPUDA makes it incumbent upon the state to promote equality.313 The promotion of the equality envisaged in PEPUDA requires that the state takes positive measures in order to erase the discrimination which a particular group might experience. Section 25 of PEPUDA requires the state

309 13 of 2013. 310 Section 3. 311 https://en.oxforddictionaries.com/definition/acquiescence (accessed on 29-11-2018). 312 The prohibited grounds are defined in section 1 of PEPUDA as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; as well as any other grounds where discrimination causes or perpetuates systemic disadvantage or undermines human dignity. 313 Section 24(1) of PEPUDA.

50 to develop an awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality. In particular, the state is required to take measures to develop and implement programmes which promote equality.314 This gives the state a positive duty to ensure that offences which are committed with an element of hate must be curbed. Section 10(2) goes on to state that a presiding officer may direct a case which contravenes PEPUDA to the relevant director of public prosecutions. PEPUDA seems to be a useful tool to use in conjunction with existing legislation on offences. Due to the nature of PEPUDA, its effect would not be to enhance the sentences which perpetrators receive, but rather as a manner to promote awareness with the judiciary, the executive and the public. If there is a need to do so, I am of the opinion that PEPUDA is adequate to ensure that harsher sentences are received by perpetrators. PEPUDA further enables the state to enact legislation which will promote equality.

Part of this duty would have been fulfilled by virtue of the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill.315 This Bill is the first of its kind in South Africa, by creating the offence of a “hate crime”. It states that a person who commits an offence which is recognised under law, and who commits such offence with the motivation of prejudice or intolerance towards, among others, a person's sexual orientation, will be committing a hate crime.316 In so far as sentencing is concerned, the Bill simply states that a person who is liable for the commission of a hate crime may be convicted or be given a fine imposed or declared a habitual criminal as per the prescripts of the Criminal Procedure Act. 317

It is submitted that the stance of the Bill is inadequate when it comes to sentencing for the commission of a hate crime. It is submitted that, at the very least, if legislation of this nature is to exist in South Africa, then such legislation should contain minimum sentencing provisions and they should ensure that such sentences prove to be a deterrence to others who may want to propagate the commission of hate crimes. It is further submitted that, due to the often heinous nature of hate crimes, normal sentencing guidelines as prescribed by the Criminal Procedure Act are not enough.318

314 Section 25(1)(b) of PEPUDA 315 B009-2018. 316 Clause 3. 317 Clause 6(1)(a). 318 Section 276 of the Criminal Procedure Act states:

While the Hate Crimes Bill is a good step towards curbing hate crimes, more needs to be done with the Bill. In its current form, the content of the Bill is inadequate. In any event, the Hate Crimes Bill has recently lapsed due to the fact that it had not been finalised when parliament was dissolved prior to the 2019 elections.319

4.4 Judicial Training on Sexuality and Sexual Violence

There is a view that judges should be made aware of sexuality and sexual violence in order to assist them in adjudicating cases of corrective rape. The aim of the awareness is so that judges are able to see corrective rape not only through a sexual lense but also through a societal lense. There is one issue which would need awareness wit this approach. This is the role of heteronormativity. Heteronormativity is a concept which is not only propagated by men (those with the most vested interest in it), but it is also propagated by women. This means that presiding officers might not necessarily portray the sensitivity required in adjudicating cases of corrective rape. I am of the opinion that this is a genuine concern but it can be solved by simply creating a certain kind of awareness from the presiding officers so that they are cognisant of the impact of their lived experience as far as their exposure, belief-systems, culture, sexual orientation, and identity is concerned.

4.5 Grassroots Movements by Way of Community Activism

A grassroots movement is required in order to create public awareness of corrective rape and the effects thereof. In this regard, I critiqued the minimal actions of the National Coalition when it comes to creating a grassroots movement which is supportive of LGBT rights. Community activists such as Ndumie Funda have shelters

"276 Nature of punishments (1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely- (a) ... (b) imprisonment, including imprisonment for life or imprisonment for an indefinite period as referred to in section 286B (1); (c) periodical imprisonment; (d) declaration as an habitual criminal; (e) committal to any institution established by law; (f) a fine; (g) ... (h) correctional supervision; (i) imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board…” 319 Rule 333 of the Rules of the National Assembly; https://pmg.org.za/bill/779/ (accessed on 20-05- 2019).

52 to accommodate victims of corrective rape.320 This particular initiative is named “Luleki Sizwe” and provides support for lesbian women in the township and aims to rescue, feed and nurse survivors of corrective rape.321 More participation is required from women's rights organisations. Generally, women's rights organisations tend to focus on women's issues aside from the issue of sexual orientation and the effects of sexual orientation.322

5 CONCLUDING REMARKS

This minor dissertation set about discussing corrective rape and the lack of response from the state. It has discussed that there are various causes to corrective rape, most of which are indicative of the dysfunctions of society as well as the proposed responses. While it is evident that there is a lot that needs to be done in order to fight corrective rape and discrimination in general, South Africa has a lot of the legal tools required to do so. The rest is up to society at large.

Finally, it is important to note that the fight against corrective rape is more than a legal one. The law can be easily changed to in order to ensure that there is adequate justice which is received by the primary victims of corrective rape, as well as the secondary victims, namely the victims’ loved-ones, families and friends. What is needed more than anything is a change in the mindset of society. This much has been confirmed by the Constitutional Court in a recent judgment which has extended the principle of common purpose to apply to rape.323 There is a need to overhaul society as a whole when it comes to the prejudices which exist, and there is a need for society to stop thinking of corrective rape as a crime to “correct” sexual orientation which is somehow “wrong”. There is a need for society to understand that corrective rape, just as any other rape, is a deeply invasive crime against a person's body and that the scars which are left by corrective rape will probably never heal on those who have been victims of and affected by corrective rape.

320 Mwambene and Wheal (n 81) 63. 321 Mwambene and Wheal (n 81) 63. 322 Examples of these are; Sonke Gender Justice which works around sexual and reproductive rights but makes no mention of sexual orientation or sexuality and this can be found in https://genderjustice.org.za/project/sexual-reproductive-health-rights/gender-integration-in-family- planning/ (accessed on 15-07-2019), Oxfam South Africa also makes no mention of sexuality and sexual orientation and this can be found in https://www.oxfam.org.za/what-we- do/programmes/womens-rights-and-gender-justice/ (accessed on 15-07-2019). 323 Tshabalala v S; Ntuli v S (n 155) para 66.

It is crucial that all three arms of the state play an active role in fighting against corrective rape, starting with the mentality of its own functionaries and employees. The state, not only by virtue of the prescripts of the law, but also through the interpretation of Ubuntu as espoused by Makgoro J in Makwanyane,324 is required to foster an environment where it is easy for victims of corrective rape to report the crime and where their complaints will be taken with seriousness and with sensitivity towards the incredibly invasive harm that has occurred. The executive is required to keep itself in check when it comes to the things they say. The things that politicians say legitimise homophobia, which can ultimately lead to corrective rape. The executive is required to be aware of the influence of the things they say and the impact these things have. There is also a need to train the judiciary in relation to issues of gender and sexual orientation.

324 S v Makwanyane 1995 (3) SA 391 (CC).

6 BIBLIOGRAPHY 6.1 Books

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Burchell J South African Criminal Law and Procedure Volume I: General Principles of Criminal Law (4th Edition) (2011)

Exodus 20:13 - 15, Holy Bible: New International Version

Geldenhuys T, Joubert JJ, Swanepoel JP, Terblanche SS and van der Merwe SE Criminal Procedure Handbook Juta (2011)

McIntosh P "White Privilege: Unpacking the Invisible Knapsack " in Filor AM Multiculturalism (1992)

Mkhize N, Bennett J, Reddy V and Moletsane R The Country we want to live in: Hate Crimes and Homophobia in the Lives of Black Lesbian South Africans HSRC Press (2010)

Snyman CR Criminal Law (6th Edition) (2014)

Woolman S and Bishop M Constitutional Law of South Africa Juta (2014)

Zeffert DT and Paizes A Essential Evidence LexisNexis (2010)

6.2 Journal Articles

Batisai K "Being gendered in Africa's flag-democracies : narratives of sexual minorities living in the diaspora" 2015 Gender Questions Vol 3 issue 1 25

Béland D "Identity, politics, and public policy" 2017 Vol 11 Critical Policy Studies 1

Bonthuys E "Race and gender in the Civil Union Act" (2007) 23 SAJHR 526

Brown R "Corrective Rape in South Africa: A Continuing Plight Despite an International Human Rights Response" (2012) Annual Survey of International & Comparative Law 45

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De Vos P "The Inevitability of Same-Sex Marriage in South Africa's Post-Apartheid State" (2007) 23 SAJHR at 432

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Morrisey ME "Rape as a Weapon of Hate: Discursive Constructions and Material Consequences of Black Lesbianism in South Africa" 2013 Women's Studies in Communication 72

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6.3 Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts

6.4 Legislation

The Constitution of the Republic of South Africa, 1996

Criminal Law Amendment Act 105 of 1997

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act 32 of 2007

Preventing and Combating of Torture Act 13 of 2013

Hate Crimes Bill B009-2018

Rules of the National Assembly 9th ed

6.5 Judgments 6.5.1 International Judgments

Prosecutor v Akayesu Case Number ICTR-96-4-T

Raquel Martí de Mejía v Perú (1 March 1996) Case No 10.970 Report No. 5/96 OEA/Ser.L/V/II.91 Doc. 7

6.5.2 Domestic Judgments

S v Zinn 1969 (2) SA 537 (A)

S v Rabie 1975 (4) SA 855 (A)

S v Makwanyane 1995 (3) SA 391 (CC)

S v Chapman 1997 (3) SA 341 (SCA)

Fose v Minister of Safety and Security [1997] ZACC 6

Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T)

S v Jackson (35/97) [1998] ZASCA 13

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)

S v Baloyi and Others (CCT29/99) [1999] ZACC 19

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)

Permanent Secretary, Department Of Welfare, Eastern Cape, And Another V Ngxuza And Others 2001 (4) SA 1184 (SCA)

Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] (11 April 2002) ZACC 3

Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC)

Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86

Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC)

Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC

Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19

Gory v Kolver NO 2007 (4) SA 97 (CC)

Masiya v Director of Public Prosecutions Pretoria (The State) and Another 2007 (5) SA 30 (CC)

Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC)

S v Mthethwa 2015 SACR 609 (GP)

Tshabalala v S; Ntuli v S (CCT323/18;CCT69/19) [2019] ZACC 48

6.6 United Nations Sources

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Resolution 60/147 of 16 December 2005)

6.7 Internet Sources

Report on the Feasibility and Locations of a Thuthuzela Care Centres Gauteng, Limpopo, Free State, Northern Cape and Mpumalanga (Phase 2) https://www.npa.g ov.za/sites/default/files/sexual-offences-ndaba-2008/Phase%202.pdf (03-11-2018) https://mg.co.za/article/2010-03-03-lulu-xingwana-describes-lesbian-photos-as- immoral (03-11-2018) https://mg.co.za/article/2010-03-05-xingwana-homophobic-claims-baseless- insulting (03-11-2018) https://www.npa.gov.za/node/18 (03-11-2018) https://www.timeslive.co.za/news/south-africa/2018-04-20-qwelane-to-appeal- judgment-on-his-gay-bashing-column/ (03-11-2018) http://www.statssa.gov.za/publications/SAStatistics/SAStatistics2012.pdf (23-11- 2018)

Report on Violence and Discrimination against Black Lesbians and Transgender Men in South Africa at 21 https://www.hrw.org/report/2011/12/05/well-show-you-youre- woman/violence-and-discrimination-against-black-lesbians-and (24-11-2018) https://en.oxforddictionaries.com/definition/acquiescence (29-11-2018)

Research Report on Access to Justice for Lesbian, Gay, Bisexual and Transgender Survivors of Sexual Offences in South Africa http://www.rci.uct.ac.za/sites/default/files/image_tool/images/242/report_images/1%2 0ICOP%20LGBT%20Doc%20PDF.pdf (26-03-2019) https://www.facebook.com/pg/The-Equality-Project- 100764313312586/about/?ref=page_internal (26-03-2019)

Department of Women Annual Report for 2017/2018 http://www.women.gov.za/images/DOW---Annual-Report-Email-Version.pdf (15-04- 2019)

Department of Women Annual Performance Plan for 2018/2019 http://www.women.gov.za/images/Women-APP-2018-WEB.pdf (on 15-04-2019)

Research Report on Homophobia, Injustice and 'Corrective Rape' in Post-Apartheid South Africa https://www.files.ethz.ch/isn/166656/k_thomas_homophobia_injustice_and_correctiv e%20rape_in_post_apartheid_sa.pdf (30-04-2019) https://www.news24.com/SouthAfrica/News/2-acquitted-in-lesbian-murder-trial- 20110907 (05-04-2019) https://www.facebook.com/pg/The-Equality-Project- 100764313312586/about/?ref=page_internal https://pmg.org.za/bill/779/ (20-05-2019) https://genderjustice.org.za/project/sexual-reproductive-health-rights/gender- integration-in-family-planning/ (15-07-2019) https://www.oxfam.org.za/what-we-do/programmes/womens-rights-and-genderjustice/ (15-07-2019) https://casebook.icrc.org/case-study/international-law-commission-articles-state- responsibility (23-09-2019) https://www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215 (20-09- 2019) https://www.okayafrica.com/jacob-zuma-rape-trial-10-years-later/ (20-09-2019) https://mg.co.za/article/2015-03-05-our-culture-idolises-monsters (23-09-2019) https://collections.concourt.org.za/handle/20.500.12144/36639 (accessed on 11-02- 2020)

6.8 Other

Lake NC Corrective rape and black lesbian sexualities in contemporary South African cultural texts (2017 thesis SA)