LGBTI Workshop in South Africa Resource Material

Contents
1 Agenda 1
2 Terms of Reference for National TASK Team on Gender ANS Sexual Orientation Based Violence
Perpetrated Against LGBTI Persons 5
3 National LGBTI Task Team, updated Intervention Strategy for March 2013-June 2014 25
4 National Intervention on Sex Gender and Gender Based Violence Perpetrated Against LGBTI Persons
Final Report November 2013 37
5 The Role of Chapter Nine Institutions in Promoting the rights of LGBTI Persons SAHRC Presentation:
Karam Singh 125
6 The Role of Chapter Nine Institutions in Promoting the rights of LGBTI Persons: CGE Chapter Nine
Institutions: Vernet Napo 145
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CSO Alliance Building Worskshop on LGBTI Rights, Durban - 9th December 2013
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1. Agenda

AGENDA
CSO Alliance Building Workshop on LGBTI Rights
24
th
& 25
th
February 2014

TIME WORKSHOP ACTIVITIES PRESENTER(S)
DAY ONE
08h30 09h00 Registration
09h00 09h25 Introductions
09h25 09h35 Welcome and Opening Emily Dhlamini, Regional Head:
Gauteng, DOJ&CD
09h35 09h50 Overview of the Workshop Yasmin Sooka, FHR
09h50 10h15 Discuss outcomes and set ground rules
Increase representation on the NTT
Build solidarity between LGBTI and other sectors
Understand local LGBTI experiences
Report on cases and Rapid Response mechanisms

10h15 10h35 Keynote address Thoko Mpumlwana, Deputy
Chairperson, Commission for Gender
Equality; Board Member, The
Foundation for Human Rights
10h35 10h50 TEA BREAK
10h50 12h00 1. Presentation on the Terms of Reference of the
National Task Team (NTT) 20 min.
2. Presentation on the NTTs Strategic Work Plan (01
September 2013 to 30 June 2014) 20 min.
3. Presentation on the National Intervention
Strategy (NIS): Five Year Plan 30 min.
Siphiwe Ntombela, DOJ&CD

Vernet Napo, CGE

Working Group member
12h00 12h45 Breakaway discussion groups among civil society
participants about the Terms of Reference and Strategic
Work Plan of the NTT, and the NIS

12h45 13h00 Feedback from civil society participants on the
presentations and plans; questions to and clarifications
from presenters and the NTT

13h00 14h00 LUNCH
14h00 14h15

Feedback from civil society participants on the
presentations and plans; questions to and clarifications
from presenters and the NTT, contd.

14h15 14h30 Address by the Deputy Minister of the Department of
Justice and Constitutional Development
John Jeffery, MP, Deputy Minister of
Justice and Constitutional
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Development
14h30 15h30

Local LGBTI experiences and strengths of organizations in
Gauteng and North West Provinces 15 min. each
Local LGBTI experiences in the Northern Cape, Limpopo,
and KZN 10 min. each
Representatives from LGBTI groups
in Gauteng, North West Province,
the Northern Cape, Limpopo, and
KZN
15h45 16h15 Discussion, questions and clarifications on LGBTI
experiences

16h15 16h45 Presentations on the role of Chapter 9 Institutions in the
promotion of the rights of LGBTI persons 15 min. each
Vernet Napo, CGE
Karam Singh, SAHRC
16h45 16h55 Discussion, questions and clarifications about the role of
Chapter 9 Institutions

16h55 17h00 Closing Day One
DAY TWO
09h00 09h30 Presentation on the Rapid Response Strategy and Pending
Cases within the Criminal Justice System
Arnaud de Villiers, Gender Dynamix
Brig. B. Linda, SAPS
Busisiwe Dhlamini, DOJ&CD
09h30 10h00 Breakaway discussion groups among civil society
participants about the Rapid Response Strategy and cases
in their provinces/communities

10h00 10h15 Feedback from breakaway discussions, questions to the
presenter and the NTT, and clarifications

10h30 10h55 Presentations on advocacy and networking initiatives
Communication Strategy 15 min.
Asiphephe 10 min.

M. Mpuzana, GCIS
Nomancotsho Pakade, GALA
10h55 11h15 Discussion, questions and clarifications about the
Communication Strategy and Asiphephe

11h15 12h35 Presentation on the role of Government Departments on
the rights of LGBTI persons 10 min. each
1. Dept of Justice & Constitutional
Development
2. National Prosecuting Authority
(tent.)
3. South African Police Service;
4. Dept of International Relations
and Cooperation;
5. Dept of Women, Children and
People with Disabilities;
6. Dept of Cooperative
Governance and Traditional
Affairs;
7. Dept of Correctional Services;
8. Dept of Basic Education
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12h35 13h15 Discussion, questions and clarifications about the role of
Government Departments

13h15 14h15 LUNCH
14:15 15h15

Breakaway group discussions on relevance and application
in local contexts, and modifications and recommendations,
on the following:
1. National Intervention Strategy (NIS)
2. Rapid Response Strategy
3. Linkages between local LGBTI groups and NIS
4. Representation of CSOs on the NTT
5. Any other similar issues that arise during the
workshop

15h30 16h15 Report back on group discussions, recommendations,
further questions

16h15 16h45 Way forward and closure

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2. Terms of Reference for National TASK Team on Gender ANS Sexual Orientation Based Violence Perpetrated Against LGBTI Persons
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BRANCH: CONSTITUTIONAL DEVELOPMENT

TERMS OF REFERENCE FOR NATIONAL INTERVENTION TASK TEAM ON GENDER- AND
SEXUAL ORIENTATION-BASED VIOLENCE PERPETRATED AGAINST LGBTI PERSONS

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Table of Contents
Title Page

1. Background 3
2. Governing Principles of the National Intervention Task Team 5
3. Mandate of the National Intervention Task Team 7
4. Purpose of the National Intervention Task Team 7
5. Objectives 7
6. Outputs 8
7. Composition of the National Intervention Task Team 8
8. Governance Issues 10
9. Service Provider/Partner 12
10. National Task Team 13
11. Methodology 14
12. Nominations of Chairperson and Co-chairperson 14
13. Decisions taken at Task Team Meetings 14
14. Adoption of Terms of Reference by the National Intervention Task Team 16

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The National Intervention Task Team on Gender- and Sexual Orientation-Based Violence
against LGBTI-Persons
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1. Background
The Bill of Rights, enshrined in the Constitution of the Republic of South Africa, 1996, includes a
guarantee of equality and a prohibition of discrimination on several grounds, including gender,
sex and sexual orientation.
The Constitution is the highest law of the country; the South African laws, through legal
challenge and reform, have adapted to the Constitution. Laws that protect people against
discrimination and promote equality on all grounds listed in the Bill of Rights include the Labour
Relations Act, 1995 (Act No. 66 of 1995); the Employment Equity Act, 1998 (Act No. 55 of
1998); the Medical Schemes Act, 1998 (Act No. 131 1998) (which defines dependent to
include same-sex partners); the Domestic Violence Act, 1998 (Act No. 116 1998) (which defines
domestic relationships to include same-sex partners); the Refugees Act, 1998 (Act No. 130 of
1998); the Rental Housing Act,1999 (Act No. 50 of 1999); and the Promotion of Equality and
Prevention of Unfair Discrimination Act,2000 (Act No. 4 of 2000). The introduction of Equality
Courts was a further step to ensure equal enjoyment of all rights and freedoms by every person.
The Childrens Act No 38 of 2005 legalised both joint and step adoption by same-sex couples.
In 2006, South Africa became the fifth country in the world, the second outside of Europe and
the first on the African continent to grant official recognition to same-sex marriages through the
Civil Union Act,2006 (Act No. 17 of 2000). In terms of the Alteration of Sex Description and Sex
Status Act, 2003 (Act No. 49 of 2003) transgender and intersex individuals can, under certain
circumstances, have their sex description altered on official documents. In terms of the law
South African lesbian, gay, bisexual and transgender people have achieved substantive
equality in terms of the law. Unfortunately legal rights do not always translate into attitudinal
change and full acceptance.
In the global arena, South Africa has since 1994 aligned itself with international trends to
promote and protect human rights, including those of vulnerable persons. As a country, we are
the proud signatories of many international treaties and regional protocols that promote a
human rights culture based on freedom and equality. The Universal Declaration of Human
Rights (1948), the Convention on the Elimination of all forms of Discrimination Against Women
(1981), the Convention on the Rights of the Child (1989), the Protocol to the African Charter on

i
See Glossary for definitions of relevant terminology.
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Human and Peoples Rights and the Rights of Women in Africa (2003), and the Southern
African Development Community Protocol on Gender and Development (2008) still remain the
key guiding international instruments for the promotion of human rights and for intervention
against gender-based violence.
Of more direct significance is the UN Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power (1985), which requires all stakeholders to treat victims of crime and
abuse of power with compassion and respect for their dignity when engaging with the criminal
justice system.
Domestically, our Constitution has guided legal reform to prevent discrimination and promote
equality. Internationally South Africa has set important precedents in expressly prohibiting all
forms of discrimination, including on the grounds of sexual orientation. On the African continent,
we have made a trend-setting mark in the recognition of the human rights of lesbian, gay,
bisexual, transgender and intersex (LGBTI) persons by asserting the right to equal protection
and benefit of the law.
However, guaranteed constitutional protection, equality before the law and international
instruments remain meaningless to citizens of this country unless the legislative framework and
accompanying interventions are effective and actually protect people from discrimination and
violence. Over the years, our Parliament has made great strides to show the dedicated
commitment of government to the constitutional protection guaranteed to LGBTI persons.
However, we cannot be oblivious to the increasing level of violent crimes directed at LGBTI
persons. At present, an increasing number of black lesbians in particular are becoming victims
of homophobic rape (wrongly referred to as corrective rape) and murder.
Recently, the country has seen another form of hate crime emerging against gay men. A rising
number of gay killings have been reported by the media, especially in the provinces of
Gauteng and recently, the Northern Cape.
According to a survey conducted by the Human Sciences Research Council in 2007, more than
80% of the South African population considered homosexuality as always wrong. These
homophobic views and beliefs are largely connected to issues of gender since the
discrimination and resulting violence is often triggered by the victims non-conforming to
patriarchal gender and sexuality norms and roles that are prescribed by society. In many
communities, same-sex relationships are still perceived as non-conforming to the dominant
societal norms which define heterosexuality as the only acceptable form of sexuality. These
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perceptions often expose LGBTI persons to hate speech and violent behaviour that sometimes
cost them their lives.
While harassment and violence occur across all communities, research shows that the working
class and poor black LGBTI people who live in townships and rural areas are subjected to more
violent homophobic and transphobic crimes. The fact that they are much less likely to have the
means and resources to access protection, justice and redress through either criminal or civil
law remedies increases their vulnerabilities. This violence reinforces the existing social
inequalities, based on gender, sexuality, race and class, and consequently widens the gap
between rights as enshrined in the constitution and rights as they are lived.
Despite the Constitutional right to be free from all forms of violence
i
and unfair , LGBTI persons
are still subjected to horrific murders that blatantly communicate to them that they are less
human with expendable lives. LGBTI persons are not seeking special rights, but equal rights.
In March 2011, the Minister of Justice and Constitutional Development was petitioned by Luleki
Sizwe, a civil society organisation (CSO) based in Cape Town, to quickly intervene against
homophobic rape. Soon thereafter, the Minister mandated the establishment of a National Task
Team to develop a National Intervention Strategy that will address homophobic rape.
In March 2011, the Department initiated engagements with the key Government Departments
and institutions to develop a National Task Team. In the same month Luleki Sizwe and other
LGBTI CSOs were also engaged for the same purpose. In August 2011 CSOs selected ten (10)
representatives to the National Intervention Task Team (NTT). In September 2011, the NTT
was officially established by the Deputy Minister of Justice and Constitutional Development.
2. Governing Principles of the NTT
2.1. Sharing, acceptance and respect
We strive to be open and encourage individuals in the NTT to self-disclose around our priorities,
personal values and individual uniqueness. Active involvement with each other is essential, in
aiming to get to know each other and in being respectful of each others individual strengths and
weaknesses, and accepting these without prejudice.
2.2. Confidentiality
We aim to respect the information shared within the NTT, whether it is about ourselves or the
organisations we represent. We, as a collective, will practise discretion and integrity in
distinguishing between what can or ought to be shared outside of the NTT and what needs to
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remain confidential, even if only for an agreed upon period of time. Individuals should make it
explicit when what they share is personal and/or confidential, and this should be respected by
all the Task Team members. Responsibility for holding confidentiality ultimately lies with partner
organisations, rather than their respective representatives at a particular meeting. These
representatives will thus strive to ensure that others of their organisations also understand the
need to respect agreed upon confidential matters.
2.3. Effective communication
We believe that effective communication is an active responsibility of both the receiver and
sender. And so, every sender will try to evaluate whether their communication is effective, and
take responsibility for what, how, when and they communicate. We acknowledge that a lack of
communication can also be seen by others to be communicating something. In the interest of
effective communication, in the event that new representatives are sent by organisations to
attend NTT meetings, they should be bound by the terms of reference, and fully briefed on the
content thereof.
2.4. Giving and receiving feedback
We hope to give constructive feedback to each other and to be willing to receive the same in
return. This means making space for our own, and others, thoughts and feelings. We recognise
that feedback is definitely not always negative, and will make sure that we also provide positive
feedback and recognition for other peoples achievements and efforts.
2.5. Managing conflict
We commit to avoid conflict through the exercise of respect for the dignity of one another.
Serious conflicts will be referred to the Working Group for resolution. Reaching closure on
issues will prevent us from accumulating baggage and unfinished business.
2.6. Building trust and commitment
We commit to taking responsibility for our respective tasks and to make sure that we discuss
these timeously in the event that we cannot keep a commitment. This means being prepared to
openly share the reasons and deal with the consequences. If a deadline is set, we will aim to
honour it, and not unduly change it. In the event that a deadline cannot be met, we will notify
partners in advance so that a contingency plan can be made. Being committed also means that
we will attend meetings regularly and keep to timetables that are set as far as possible.

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2.7. Being a team
We will encourage the viewing of different opinions and debate their merits as a collective.
When the team reaches a decision the we identity should take precedence over the I. In the
interest of team building we will trust the intentions of others and accept that an individual may
do what they do for the benefit of the group. Every attempt will be made to create and maintain
a supportive environment in which group members and their respective contributions to the NTT
are valued. Thus, in consolidating a team we will actively work towards treating each other fairly
and equally.
3. Mandate of the National Intervention NTT
The NTT was initially established to address homophobic rape. However, in light of other violent
crimes including murder, directed at LGBTI persons, a resolution was taken to extend the scope
of the project to include all gender-based violent crimes and sexual orientation-based crimes
that are perpetrated against LGBTI persons.
LGBTI people are often victims of gender-based violence and sexual orientation-based
violence. Many LGBTI persons become victims of these crimes due to non-conformity to
practices that legitimise heterosexuality as a dominant and acceptable sexuality against
homosexuality.
While violence against LGBTI persons has been identified as a priority, the Department of
Justice and Constitutional Development (DoJ&CD) recognises the need to take a more
comprehensive approach to promoting the human rights of LGBTI persons. The National
Intervention Strategy has an immediate goal of addressing violence perpetrated on the basis of
prejudice regarding a person's sexual orientation and/or gender identity, also referred to as hate
crimes. Hate crimes are defined as acts that are motivated in whole or in part by bias or hatred
regarding an aspect of a person's identity (Nel, van Wyk, & Mbatha, 2013)
ii
. Two key
components of hate crimes can be identified: "The first is that the act constitutes a crime under
existing criminal law (such as intimidation, arson, damage to property, assault, rape or murder);
the second is that some form of specific bias was involved in the selection of the victim" (Nel et
al, 2013, p. 6). However, this mandate may be extended to deal with the broad concerns of
LGBTI persons that are not related to violence and crime, but to the protection of their
constitutional rights.

ii
Nel, J.A., van Wyk, H., and Mbatha, K. 2013. User guide: Hate & Bias Crime Monitoring Form.
Johannesburg: Hate Crimes Working Group.

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4. Purpose of the NTT
The purpose of the NTT is to develop a National Intervention Strategy to address gender- and
sexual orientation-based violence against LGBTI persons, especially in the criminal justice
system. The Intervention Strategy will use an intersectional approach which may include, but is
not limited to addressing discrimination on the basis of gender and gender identity; sexual
orientation; socio-economic status, poverty and unemployment; race, ethnicity, culture and
language; age and life stage; physical, sensory and cognitive-emotional disabilities; HIV and
AIDS; internally and externally displaced people and asylum seekers; geographic differences
such as urban or rural dynamics; religion; sex work and spirituality
ii
.
5. Objectives
The objectives of the NTT are to:
5.1. Develop the National Intervention Strategy to respond to and prevent gender- and
sexual orientation-based violent crimes perpetrated against LGBTI persons;
5.2. Develop the Intersectoral Implementation Plan for the Strategy which would link parallel
and complementary initiatives, internal and external to the DoJ&CD such as the
concurrent development of a Hate Crimes Bill and Policy Framework, and the Hate and
Bias Crime Monitoring Forum;
5.3. Strengthen governments ability to respond to LGBTI needs and specific vulnerability
and strengthen the capacity of CSOs to deliver related services;
5.4. Improve linkages with other government departments, branches of the DoJ&CD such as
the Access to Justice and the Promotion of Constitutional Rights programme and the
National Action Plan (NAP) as well as relevant Chapter 9 institutions (such as the
Human Rights Commission and the Commission for Gender Equality), that combat
racism, xenophobia and related intolerance and in that manner address the impact of
multiple and intersecting forms of discrimination targeting LGBTI persons;
5.5. Improve the management of cases by relevant role players in the justice system
including the South African Police Services, the National Prosecuting Authority, the
Department of Social Development, the Department of Health and the Department of
Correctional Services;
5.6. Implement, coordinate, monitor and evaluate the National Intervention Strategy and
other related objectives.
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6. Composition of the National Intervention NTT
The NTT must be constituted by Government Departments and Institutions that participate in
crime intervention, including CSOs that specialise in issues related to LGBTI persons and
communities. The Justice Crime Prevention and Security Cluster Departments are key
representatives of the NTT, and their participation will be monitored through the Development
Committee (DevCom). These include:
6.1. The Department of Justice and Constitutional Development;
6.2. The National Prosecuting Authority of South Africa;
6.3. Legal Aid South Africa;
6.4. The Department of Social Development;
6.5. The South African Police Service;
6.6. The Department of Health;
6.7. The Department of Basic Education;
6.8. The Department of Correctional Services;
6.9. The Government Communications and Information Systems;
6.10. The Department of Women, Children and People with Disabilities;
6.11. The Department of International Relations and Cooperation;
6.12. The South African Human Rights Commission;
6.13. The Commission for Gender Equality;
6.14. Human Rights Watch (HRW);
6.15. The Department of Corporate Governance and Traditional Affairs;
6.16. Gay & Lesbian Memory in Action (GALA);
6.17. OUT LGBT Well-Being (OUT);
6.18. Forum for the Empowerment of Women (FEW);
6.19. The SANAC LGBTI Sector;
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6.20. The Triangle Project (TP);
6.21. Luleki Sizwe (LS);
6.22. Gender DynamiX (GDX);
6.23. Intersex South Africa;
6.24. Life Line; and
6.25. The Foundation for Human Rights (FHR).
As the lead Department, the DoJ&CD is responsible for setting up the NTT.
The Chapter 9 institutions have an important role to play in the NTT in terms of their mandate to
promote, protect and monitor rights as guaranteed in the Constitution.
The CSOs that have been selected by civil society to participate in the NTT may be revised by
LGBTI CSOs as needed, to ensure optimal representivity in terms of geographic location and
constituencies to be served by the NTT.
New members will be added if there are no objections by any other existing member, present at
the National Task Team Working Group meeting where the new member has been nominated.
National Task Team members remain obliged to report back to their respective constituencies
on the work undertaken by the National Task Team. The same applies to government
departments as well as Chapter 9 institutions.

7. Governance Issues
The NTT is established and led by the DoJ&CD. The governance structure is as follows:
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As shown in the above diagram, the Governance Structure has the following offices, bodies and
teams:
7.1. The Ministers Office
The Minister of Justice and Constitutional Development carries the ultimate authority over all
operations of the NTT. Upon the finalisation of the Terms of Reference (ToR), the National
Intervention Strategy, etc, the NTT will submit the ToR, the Strategy Document, to the Minister
for approval, via the office of the Director-General: DoJ&CD.
With effect from the date of the adoption of the ToR by the NTT, the Working Group through the
Branch: Constitutional Development, shall submit quarterly reports to the Minister, until the
objectives of the NTT are achieved.

7.2. Branch: Constitutional Development
The Branch: Constitutional Development within the DoJ&CD must ensure dedicated expertise
and skills to ensure effective and smooth functioning of the NTT, including but not limited to the
following:
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LGBTI expertise- this may take the form of a technical advisor from civil society appointed to
the DoJ&CD for a specific period of time;
Project management skills;
Research skills;
Coordination skills;
Community capacity building skills;
Stakeholder management skills; and
Report writing skills.
In the event of a lack of dedicated capacity within the Chief Directorate: Constitutional
Development, DoJ&CD is expected to outsource these skills and expertise. This decision has
been taken to serve as a measure to address the inability of the members of the NTT to
dedicate full time services to the NTT.
In recognition of the leading role that South Africa plays in the arena of LGBTI rights on the
continent and internationally, it will be important to enhance and develop capacity in research
and knowledge management in DOJ&CD in order to create and maintain an archival repository
of the work of the NTT; this can be noted for consideration in internal capacity building of the
DOJ&CD and can also be addressed through linking with existing parallel initiatives.

7.2.1. The Duties, Responsibilities and Role of the DoJ&CD
The Chief Directorate: Constitutional Development within the DoJ&CD will provide secretariat
functions to the NTT to:
Lead and manage the NTT;
Lead and coordinate the execution of the activities of the NTT and its structures which
includes meeting with the Working Group and regularly consult, communicate with these
structures towards joint decision making;
Provide funding for the execution of the programme, excluding the travelling,
accommodation and subsistence claims of the government members of the NTT.
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Assist in securing donor funding to cover travelling and accommodation of the CSO
members who stay out of the province where the engagement is held;
Provide skills referred to in paragraph 8.2 above, to support the execution of the activities of
the NTT;
Convene meetings, working sessions and other related engagements of the NTT which
includes managing the flow of information and communication amongst the stakeholders of
the NTT.

7.3. Working Group
7.3.1. The Duties, Responsibilities and Roles of the Working Group
The Working Group is co-chaired by DoJ&CD and a representative from Civil Society (refer to
section 12) and is expected to:
Provide guidance and support to all structures of the NTT, including necessary and
essential operational planning;
Appoint sub-committees to address specific priorities as and when required;
Ensure that quarterly progress reports are submitted to the Minister;
Receive monthly reports from the DoJ&CD and all appointed stakeholders;
Monitor the performance of the DoJ&CD, stakeholders , and the NTT, as a whole; and
Meet every second month, unless otherwise agreed upon.

8. Stakeholders
Stakeholders could be appointed by the DoJ&CD, in consultation with the Working Group, to
provide technical support to the NTT. They provide the requisite skills and expertise at the
different levels of operation. The key deliverables of stakeholders include, for example,
providing support to the NTT to deliver:
8.1. Situational Analysis Report with recommendations; and
8.2. National Intervention Strategy.
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All stakeholders report directly to the DoJ&CD on a monthly basis until the delivery of the
output. However, the DoJ&CD monitors their performance in consultation with the Working
Group. All reports will be circulated to the Working Group and serve at meetings of the NTT.
Each stakeholder must compile and submit its work plan to the DoJ&CD. This work plan will be
considered and approved by the DoJ&CD, in consultation with the Working Group and NTT, as
a whole.

9. National Intervention Task Team (NTT)
The NTT is constituted by all relevant government departments, Chapter 9 Institutions and
CSOs listed in paragraph 7.
9.1. Duties, Responsibilities and Role of the NTT
Meetings of the NTT:
Should provide guidance and support to the Working Group and the DoJ&CD;
Must be held quarterly, unless otherwise agreed upon;
must monitor the performance of the Working Group and the DoJ&CD, and receives reports
from the Working Group and the DoJ&CD; and
must ultimately serve to oversee the development and implementation of the National
Intervention Strategy with the assistance of the required expertise provided by the DoJ&CD.
Attendance of meetings is compulsory and the failure by a member to attend a meeting
without an apology must be reported to the relevant institution.
10. Timeframe for the National Task Team
The timeframe of the NTT is subject to the development and implementation of related
legislation, policy frameworks and programmes.

11. Methodology
The NTT will develop the National Intervention Strategy through the execution of, amongst
others, the following sub-projects:
11.1. Situational Analysis in Courts
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11.2. Compilation of the National Intervention Strategy based on the Situational Analysis and
other research findings
11.3. Communication strategy developed by GCIS
11.4. Development of a mechanism to address unresolved and pending cases of LGBTI-
related violence

12. Nominations of Chairperson and Co-Chairperson:
The Chair of the NTT is the DoJ&CD, and a representative of civil society will serve as Co-chair
of the NTT and its Working Group. The Chair from the DoJ&CD will be the Director-General or
his/her nominee. The Chairperson of the NTT shall preside at meetings, approve the provisional
agenda prepared by the Secretariat, represent the NTT as required within the limits of the Task
Teams mandate, receive invitations to attend meetings on behalf of the NTT, delegate
attendance to those meetings and carry out other functions that may be entrusted to him/her by
the NTT.
The Co-Chairperson of the NTT shall jointly preside at meetings of the NTT and shall assist the
Chair in his or her functions.
In the absence of both the Chairperson and Co-Chairperson, the members present at a meeting
must elect a person from among those attending to preside at that specific meeting.

13. Decisions taken at NTT meetings
NTT decisions are made by consensus whenever possible. When consensus cannot be
reached, a vote will be called and a simple majority rule will apply. A quorum of 50% plus 1 of
the total NTT Working Group members present is required for decisions to be valid. Any NTT
member has the right to insert a dissenting voice or opinion into the minutes of the meeting at
which the decision is made, or at the first meeting thereafter.
For changes to the ToR, a two-thirds majority vote will be required.
If a member of the NTT is absent from more that two consecutive meetings, the DoJ&CD will
contact the organisation they represent to seek a resolution satisfactory to the NTT or to
request that a replacement attends.
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In the event of a NTT member not being able to attend, a representative who has been briefed
and who has the mandate from the nominating member, will be nominated to attend.

14. Media statements
The DoJ&CD will use their established channels to communicate on behalf of the NTT. CSOs
that participate in the NTT retain their right to communicate to or on behalf of their
constituencies about the work of the NTT, but should not purport to speak on behalf of the NTT
as a whole.

ADOPTION OF THE TERMS OF REFERENCE

Terms of Reference adopted by the National Intervention Task Team on

Date:

__________________________
Chairperson of the NTT
Date: _______________________

______________________________
Co-Chairperson of the NTT
Date: __________________________
2
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20 / 160 20 / 160 20 / 160
17 | P a g e

Glossary of LGBTI, gender and sexuality related terms
iii

Biological sex: The biological and physiological characteristics that are socially agreed upon
as informing the classification of a person as male or female.
Bisexual: A person who is capable of having sexual, romantic and intimate feelings for or a
love relationship with someone of the same gender and/or with someone of other genders.
Such an attraction to different genders is not necessarily simultaneous or equal in intensity.
Gay: A man who has sexual, romantic and intimate feelings for or a love relationship with
another man (or men).
Gender: The socially constructed roles, behaviour, activities and attributes that a particular
society considers appropriate for either men or women.
Gender identity: A person's private sense of being male, female or another gender. This may
or may not match the biological sex a person was assigned at birth.
Gender non-conformity: Displaying gender traits that are not normatively associated with a
person's biological sex. Feminine behaviour or appearance in a male is considered gender
non-conforming, as is masculine behaviour or appearance in a female.
Hate crime: A criminal offence perceived as being motivated by prejudice or hate. The
perpetrators seek to demean and dehumanise their victims, whom they consider different from
them based on their actual or perceived race, ethnicity, gender, gender identity, age, sexual
orientation, disability, health status, nationality, social origin, religious convictions, culture,
language or other characteristic.
Heteronormativity: Related to heterosexism, it refers to the privileged position associated
with heterosexuality based on the normative assumptions that there are only two genders, that
gender always reflects the persons biological sex as assigned at birth, and that only sexual
attraction between these opposite genders is considered normal or natural. The influence of
heteronormativity extends beyond sexuality to also determine what is regarded as viable or
socially valued masculine and feminine identities, i.e. it serves to regulate not only sexuality but
also gender.
Heterosexism: A system of beliefs that privileges heterosexuality and discriminates against
other sexual orientations. It assumes that heterosexuality is the only normal or natural option for
human relationships and posits that all other sexual relationships are either subordinate to or
2
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18 | P a g e

perversions of heterosexual relationships. In everyday life, this manifests as the assumption
that everyone is heterosexual until proven otherwise.
Heterosexual: Having sexual, romantic and intimate feelings for or a love relationship with a
person or persons of a gender other than your own.
Homophobia: Also termed homoprejudice, it refers to an irrational fear of and/or hostility
towards lesbian women and gay men, or same-sex sexuality more generally.
Intersectionality: The interaction of different axes of identity, such as gender, race, sexual
orientation, ability and socio-economic status, in multiple and intersecting ways, resulting in
different forms of oppression impacting on a person in interrelated ways.
Intersex: A term referring to a variety of conditions (genetic, physiological or anatomical) in
which a persons sexual and/or reproductive features and organs do not conform to dominant
and typical definitions of female or male. Such diversity in sex characteristics is also referred
to as "biological variance" a term which risks reinforcing a pathologising treatment of
differences among individuals, but is used with caution in this document to indicate an inclusive
grouping of diversity in sex characteristics, including, but not limited to, intersex individuals.
Lesbian: A woman who has sexual, romantic and intimate feelings for or a love relationship
with another woman (or women).
LGBTI: An abbreviation referring to lesbian, gay, bisexual, transgender and intersex persons.
"LGB" are sexual orientations, while "T" is a gender identity and "I" is a biological variant. They
are clustered together in one abbreviation due to similarities in experiences of marginalisation,
exclusion, discrimination and victimisation in a heteronormative and heterosexist society, in an
effort to ensure equality before the law and equal protection by the law. However, the possible
differences between persons who claim these labels or to whom these labels may be assigned
ought not to be trivialised. Their respective issues, experiences and needs may in fact differ
significantly and in several respects. In solidarity with the activist position regarding this matter,
however, in this document, reference is made to LGBTI and distinctions among the diversity of
identities that exist are minimised.
Sexual orientation: A person's lasting emotional, romantic, sexual or affectional attraction to
others (heterosexual, homosexual/same-sex sexual orientation, bisexual or asexual).
Transgender: A term for people who have a gender identity, and often a gender expression,
that is different to the sex they were assigned at birth by default of their primary sexual
characteristics. It is also used to refer to people who challenge societys view of gender as
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19 | P a g e

fixed, unmoving, dichotomous, and inextricably linked to ones biological sex. Gender is more
accurately viewed as a spectrum, rather than a polarised, dichotomous construct. Transgender
people can be heterosexual, bisexual, homosexual or asexual.

i
Section 12(1)(c) of the Constitution of the Republic of South Africa, 1996

ii
Reference from PsySSA. (2013). Sexual and gender diversity position statement: Introduction, rationale
and context. (www.psyssa.com)

iii
Adapted from PsySSA. (2013). Sexual and gender diversity position statement: Introduction, rationale
and context. (www.psyssa.com)
2
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23 / 160 23 / 160 23 / 160
2
2
2
24 / 160 24 / 160 24 / 160
3. National LGBTI Task Team, updated Intervention Strategy for March 2013-June 2014

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4. National Intervention on Sex Gender and Gender Based Violence Perpetrated Against LGBTI Persons Final Report November 2013

NATIONAL INTERIM STRATEGY
FOR ADDRESSING
VIOLENCE AGAINST LESBIAN, GAY, BISEXUAL, TRANSGENDER AND
INTERSEX (LGBTI) PERSONS
(to be referred to as Strategy throughout this document)

in response to a call to
DEVELOP A NATIONAL INTERVENTION STRATEGY ON SEX- AND GENDER-
BASED VIOLENCE PERPETRATED AGAINST LESBIAN, GAY, BISEXUAL,
TRANSGENDER AND INTERSEX (LGBTI) PERSONS

FINAL REPORT
November 2013

37

_______________________________________________________________________________
DoJ&CD NIS FINAL REPORT
National Intervention Strategy on Sex- and Gender-based violence against LGBTI persons
2
Table of Contents
GLOSSARY 4
LIST OF ACRONYMS AND ABBREVIATIONS 4
GLOSSARY OF TERMS 5
1. BACKGROUND 16
1.1 THE NATIONAL TASK TEAM ON GENDER- AND SEXUAL ORIENTATION-BASED VIOLENCE 17
1.1.1 PURPOSE OF THE NTT 17
1.1.2 OBJECTIVES 17
1.1.3 OUTPUTS 18
1.2 ADDRESSING GAPS IN THE JUSTICE SYSTEM 18
2. GENDER IDENTITY AND SEXUAL ORIENTATION CONTEXT 20
2.1 SEXUAL ORIENTATION 20
2.2 SEX- AND GENDER-BASED VIOLENCE (SGBV) 21
2.3 GENDER IDENTITY 21
2.4 INTERSECTIONALITY 22
2.5 VULNERABILITY 22
3. GENDER BASED VIOLENCE AGAINST LGBTI PERSONS 23
3.1 GENDER-BASED VIOLENCE 23
3.2 GENDER-BASED VIOLENCE AND PATRIARCHY 24
3.3 GENDER-BASED VIOLENCE AND HUMAN RIGHTS 25
3.4 LGBTI RELATED HATE CRIMES 26
3.4.1 GBV AND HATE CRIMES AGAINST LGBTI PERSONS 27
4. PARALLEL ACTIVITIES 31
4.1 HATE CRIMES 32
4.1.1 HATE CRIMES POLICY 32
4.1.2 HATE CRIMES WORKING GROUP (HCWG) 32
4.1.3 ASIPHEPHE PROJECT 33
4.1.4 SEXUALITY AND GENDER DIVISION OF THE PSYCHOLOGY ASSOCIATION OF SOUTH AFRICA 35
4.1.5 THE SOUTH AFRICAN NATIONAL AIDS COUNCIL (SANAC) 35
4.1.6 VICTIM EMPOWERMENT PROGRAMME 36
5. THE PROTECTION OF LGBTI PERSONS UNDER THE SOUTH AFRICAN CONSTITUTION
38
5.1 NATIONAL LEGISLATIVE AND POLICY CONTEXT 40
5.2 SAS INTERNATIONAL AND REGIONAL OBLIGATIONS 43
6. SCOPE OF THE PROBLEM 44
7. IMPLEMENTATION TERRAIN 46
7.1 COMPOSITION OF THE NTT 46
7.2 IMPLEMENTATION PROPOSALS 53
8. THE NIS FRAMEWORK AND IMPLEMENTATION PLAN 54
8.1 VISION OF THE NTT 54
8.2 AIMS 55
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_______________________________________________________________________________
3
8.3. STRATEGIC OBJECTIVES 55
9. INTERVENTION STRATEGY PRIORITIES AND PHASED APPROACH 56
9.1 P1: PREVENTION 58
9.1.1 THE ROLE OF NGOS 58
9.1.2 INFORMATION AND CASE-FLOW MANAGEMENT 59
9.1.3 LEGISLATION AND POLICY REVIEW 61
9.2 P2: RESPONSIVE SYSTEMS 63
9.2.1 CAPACITY BUILDING 65
9.3 P3: OPERATIONALISING IMPLEMENTATION AND MONITORING OF THE NIS IN AN INTEGRATED
MANNER 68
9.3.1 CHAPTER 9 INSTITUTIONS 70
10. STRATEGIC DIRECTIONS 72
11. STRATEGIC FRAMEWORK MATRIX 76
BIBLIOGRAPHY 79
APPENDIX A: FINDINGS AND RECOMMENDATIONS FROM SITUATIONAL ANALYSIS REPORT, 2011 82
APPENDIX B: A CASE STUDY IN ACTIVE CITIZENSHIP 86

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_______________________________________________________________________________
4

GLOSSARY

List of Acronyms and Abbreviations

CJS: Criminal Justice System
CJSC: Criminal Justice System Cluster
CSOs: Civil Society Organisations
DWCPD: Department of Women, Children and Persons with Disabilities
DoJ&CD: Department of Justice and Constitutional Development
HCWG: Hate Crimes Working Group
JCPSCC: Justice, Crime Prevention and Security Cluster
LGBTI: Lesbian, Gay, Bisexual, Transgender and Intersex
LGBQTIA: Lesbian, Gay, Bisexual, Queer, Transgender, Intersex and Asexual
NGOs: Non-governmental Organisations
NPA: National Prosecuting Authority
NTT: National Task Team (located in DoJ&CD)
PEPUDA: Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of
2000
SANAC: South African National Aids Council
SANACWS: South African National Aids Council Womens Sector
SAPS: South African Police Service
SOCs: Sexual Offences Courts
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_______________________________________________________________________________
5

Glossary of Terms

Asexual: A person who is not sexually attracted to either men or women
and does not have a desire to engage in sexual activity with a
partner. Some asexual people have a desire to form intimate
but nonsexual romantic relationships, and will date and seek
long-term partnerships.

Awareness-raising Attempts to enlighten and make people in all sectors aware of
GBV and LGBTI

Biological sex: Physical sexual differentiation, based on physiological
characteristics, including chromosomes, balance of hormones,
internal structures of reproduction and the appearance of the
external genitalia.

Bisexual: People who are emotionally, physically and sexually attracted
to both men and women, although not necessarily at the same
time.

Cis-gender: A cisgender person is someone who identifies as the
gender/sex they were assigned at birth. For example, your
birth certificate says female, and you identify as a female
woman.

Coming out: Coming out of the closet or being out, refers to the process
through which a person acknowledges, accepts, and learns to
appreciate her or his lesbian, gay, bisexual, transgender or
intersex identity.

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6
Corrective rape: A phenomenon (in South Africa) where men rape women they
assume or know to be lesbian in a violent attempt to convert
them to heterosexuality, or to cure them from their
homosexuality. Sexual orientation based violence was
formulated to move away from the term corrective rape and
to incorporate the fact that males, females, transgender
persons and intersex persons are victims of violence that
include, but is not restricted, to rape.
Cross-dressing: This is not necessarily related to transgender identity and is
more commonly a component of transvestistic fetishistic
behaviour associated with sexual arousal and largely among
cis-gendered heterosexual individuals. Crossdressing, as a type
of behaviour, or a cross-dresser as an agent of that behaviour,
must not be confused with the authentic expression of
transgender identity.
When a transgender person has a gender expression which
does not seem to fit the binary it may be confused with
crossdressing with its connotations of sexual arousal. Cross
dressing and transgender are not mutually exclusive categories
in the same way that homosexuality and transgender are also
not mutually exclusive categories.

Discriminate: To treat people differently, usually in an unfair and prejudicial
way, because of certain characteristics, including but not
limited to race, biological sex, gender, sexual orientation,
disability, nationality and religion.

FTM/F2M: Female to Male. A term that refers to male-identified people
who were categorised as female at birth. (See also MTF and
Transgender.)
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7

Gay: A socio-political term to describe homosexual men, or men
who emotionally, physically and sexually attracted to men, and
who identify as gay. The term is sometimes used broadly to
mean gay men and women and the homosexual community
at large, although many women prefer to be referred to as
lesbian.

Gender: A term used to describe the social status of people as men,
women, boys, girls, or variously transgendered, including
characteristics of masculinity and femininity that are learned or
chosen. A persons assigned sex does not always match their
gender (see Transgender), and many people display traits of
more than one gender. Gender is different from sexuality.

Gender-based violence: Gender-based violence (GBV) is a violation of human rights and
a form of discrimination. It is defined as violence that is
directed against a person on the basis of his or her biological
sex or gender. Gender-based violence reflects and reinforces
inequalities between men, women, and those who are sexually
variant or gender-variant.
Gender binary: Recognises only two genders and regulates behaviour within
narrowly male or female expectations. The idea is that
everyone be classified as either male or female, that all those
classified as male should be male-identified and masculine, and
that all those classified as female should be female-identified
and feminine.

Gender diversity: Being open to and including a range of ways of expressing
gender identity, including various ways of expressing
femininity, masculinity, transgendered and intersex identities.
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_______________________________________________________________________________
8
Transsexuality more specifically refers to gender identity and
falls under gender diversity.

Gender identity and gender expression are part of Gender.

Gender expression: The external presentation or appearance of a persons gender
(e.g. dress, mannerisms, hair style, speech, etc). Ones gender
expression may differ from ones gender identity.

Gender identity: How an individual views himself or herself, psychologically and
socially, in terms of characteristics traditionally identified in
this culture as male or female. A person may self-identify as
purely male, purely female, or as possessing characteristics of
both, or neither. Gender identity must not be confused with sexual
orientation.

Gender roles: The socially constructed and culturally-specific behaviour and
appearance expectations imposed on people classified as
women (femininity) and people classified as men (masculinity).

Gender non-conformity: A term used to describe those people who do not fit
traditional, or heteronormative, prescriptions of what
masculinity or femininity should look like.

GBH: Grievous Bodily Harm, a term that is not restricted only to
physical harm, but also to psychological harm.

Hate crime: An act which constitutes a criminal offence that is motivated in
part or whole by prejudice or hate, including but not limited to
intimidation, arson, damage to property, murder, assault and
rape. Anyone can be a victim of a hate crime depending on the
social context, although minority groups, such as groups
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_______________________________________________________________________________
9
defined by race, religion and sexual orientation, are especially
vulnerable to hate crimes. A hate crime does not necessarily
have to involve actual hatred by the perpetrator toward the
victim, but is rather signified by an element of bias or prejudice
towards the victim because of perceived group membership.

Heteronormativity: The socio-political belief that heterosexuality is the only
socially acceptable sexual orientation. Heteronormativity is the
backbone of patriarchy, and is perpetuated through the
existence of a multitude of discourses that serve to maintain
the perceived normality of heterosexuality, and the perceived
abnormality of all other sexual orientations and gender
identities.

Heterosexism: A set of attitudes that is consistent with the belief that
heterosexuality is a superior psychological, social and moral
stance. This serves to create an invisibility or lack of validation
and representation for other than an opposite sex, sexual
orientation.

Heterosexual: People who are emotionally, physically and sexually attracted
to people of the opposite sex.

Heterosexual privilege: The benefits and advantages heterosexuals receive in a
heterosexist culture.

Homonormativity: The assimilation of heteronormative ideals and constructs into
homosexual culture and individual identity.

Homophobia: The irrational fear of, hatred against and disgust towards
homosexuals or homosexuality.

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_______________________________________________________________________________
10
Homosexual: A sexual orientation in which a person feels physically and
emotionally attracted to people of the same sex.

Hormone therapy: (Also known as Hormone Replacement Therapy, HRT,
Hormonal Sex Reassignment.) In this context this is part of the
therapeutic process to induce masculinisation in a person
assigned female at birth by using testosterone, or feminisation
in a person assigned male at birth by using oestrogen.
Initiation and ongoing therapy allows the development and
maintenance of the secondary sex characteristics which are
consistent with that persons gender identity.

Impact: The measurement of how change over time has resulted in
changes attitude, behaviour and ultimately, outcomes in a
project, programme or intervention.

Internalised homophobia/
transphobia: The fear and self-hate of ones own homosexuality or
bisexuality or transgender identity in individuals who have
learned negative ideas about homosexuality/ gender diversity
throughout childhood. One form of internalised oppression is
the acceptance of the myths and stereotypes applied to the
oppressed group. It can result in depression, alienation,
anxiety, and, in extreme cases, suicide.

Intersectionality: A sociological concept that relates to the idea that people
experience oppression in overlapping ways, not as separate
and distinct entities or incidents. E.g. a person may be
persecuted for being both disabled and gay.

Intersex persons: People born with underdeveloped or ambiguous external
genitalia, with both testicular and ovarian tissue, without
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_______________________________________________________________________________
11
gonads, or with unusual hormonal or chromosomal
combinations that are not physically standard for either male
or female. The gender identity and sexual orientation of
intersex people may vary. Although intersexuality is relatively
common, intersex infants often have their sex chosen for them
shortly after birth. This is sometimes referred to as assigned
sex. The existence of intersex people challenges the idea that
there are only two biological sexes.

Lesbian: Women who are emotionally, physically and sexually attracted
to women, and who identify as lesbian.

LGBTIA: A socio-political acronym for the community comprised of
Lesbians, Gay Men, Bisexuals, Transgender, Intersex and
Asexual individuals. The recent addition of a Q at the end
refers to individual who may affiliate with the community and
are questioning some aspect of their gender or sexuality. It is
also used to include those who identify as Queer. The acronym
has been and is still used in various formats, including LGB,
LGBT, LGBTI and LGBTQ.

Mainstream: The concept comes from gender mainstreaming, which the
process of bringing gender issues into the mainstream of
society as a global strategy for promoting gender equality.
When applied to LGBTI issues, mainstreaming is a strategy for
making the concerns and experiences of LGBTI persons part of
the design, implementation, monitoring and evaluation of
policies and programmes in all spheres.

Marginalise: To sideline or treat someone or a group of people differently,
or as if they are unimportant or invisible. People perceived as
other may be marginalised through unspoken cultural
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_______________________________________________________________________________
12
norms, practices, attitudes and behaviours, as well as overt
and aggressive gestures and actions.

Monitoring and Evaluation: An evidence-based social scientific method of gauging and
documenting progress on the current implementation of a
project or programme, or intervention. Evaluation takes place
after an intervention or activity is completed. This is time-
bound as it measures change or impact over a period of time.

MTF/M2F: Male to Female. A term that refers to female-identified people
who were categorised as male at birth. (See also FTM and
Transgender.)

Patriarchy: A system of societal ordering or government in which men
hold the power and women are largely excluded from it.

Prejudice: An opinion about individuals or groups of people, usually
negative, formed beforehand without having valid facts or
reasons.

Prevention: Being proactive and stopping something before it happens.
This is done through acknowledging and addressing a
particular issue.

Post-transition support: Providing the necessary psychological and/or medical support
for transgender persons who have transitioned to assist them
in adapting to the physical, emotional and mental changes that
are inherent to the process of transitioning.

Rapid Response Team: Team set up by the DoJ&CD with the purpose of urgently
attending to the pending cases in the criminal justice system
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_______________________________________________________________________________
13
where violent crimes have been committed against LGBTI
persons, that consists of representatives of the DOJ&CD, SAPS
and NPA and two CSOs.

Secondary victimisation: Also known as post-crime victimisation or double victimisation,
this term refers to the victimisation which occurs, not as a
direct result of the initial victimisation, but through the
response of institutions and individuals to the victim. This
includes but is not limited to victim blaming, or other actions
by service providers which may further add to the victims
trauma.

Sex: The biological (anatomical, hormonal, or genetic) traits used to
categorise someone as either male or female, or intersex.

Sexism: The societal/cultural, institutional, and individual beliefs and
practices that privilege men, subordinate women, and
denigrate women-identified values.

Sexual diversity: Being open to and including a range of ways of expressing or
embodying sex and sexuality, e.g. bisexuality, heterosexuality,
homosexuality and intersex.

Sexual orientation: A persons emotional, physical, and sexual attraction and the
expression of that attraction with other individuals.

Sex- and Gender-
Based violence (SGBV): A term formulated to move away from the term corrective
rape and to incorporate the fact that males, females,
transgender persons and intersex persons are victims of
violence, that can include, but is not restricted to, rape.
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14

Stereotype: Oversimplified and fixed ideas or beliefs about a group of
people based on specific characteristics, such as race, gender
or sexual orientation.

Transformation: Going through a process of fundamental change over time, e.g.
personal, social or political transformation. Transformation can
take place on an individual or institutional level.

Transgender: Transgender describes persons who are born with physical
sex characteristics or genitalia which do not match their gender
identity. For example,
A person born with a male body may identify as a woman,
adopt a female role and present as female. A person born
with a female body may identify as male, adopt a male role
and present as male.
A transgender person can also have a gender identity which is
not specifically male or female.
The sexual orientation of transgender persons varies just as it
varies across society.

Transsexual: Individuals whose assigned sex at birth does not match their
gender identity and who, through sex reassignment surgery
and hormone treatments may seek to change their physical
body to match their gender identity. Transsexual individuals
sexual orientation can be heterosexual, homosexual, bisexual,
or anywhere on the continuum.

Transitioning: The process by which some transgender individuals undergo
changes in fulltime gender presentation and gender role to be
aligned with and to express their gender identity. Transitioning
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_______________________________________________________________________________
15
often includes changes in name, clothing, appearance and may
include anatomical changes, but it is holistic and also
encompasses psychological, social, and emotional changes.
Some transgender people have little or no need to undergo
surgery to change their bodies but will transition in other ways.

Transphobia: Hatred and/or discrimination against people who break or blur
gender roles and sex characteristics, such as transgender
people.

Victims of LGBTI crimes: Reported cases indicate that victims of LGBTI related crimes
may be gender non-conforming persons (persons who choose
to live their lives outside of the accepted norms of the binary:
female/male), and/or persons who openly live their lives as
LGBTI persons.

Vulnerable groups: People living on the margins of society that are generally
inclusive of children, the elderly and women in unsafe
environments, LGBTI persons, homeless people, people living
with HIV/AIDS, unemployed people, asylum seekers and
refugees. For purposes of this study, the official definition (as
per DoJ&CD guidelines) includes women, children, people with
disabilities, the elderly and LGBTI persons.

Well-being: A persons overall sense of how they are coping with life,
including their physical, sexual, emotional and spiritual health.
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16

1. BACKGROUND

South Africas post-apartheid Constitution
1
was the first in the world to outlaw
discrimination based on sexual orientation, and South Africa was the fifth country in the
world, and the first in Africa, to legalise same-sex marriage.

The rights of LGBTI South Africans are clearly stated in Chapter 2 of the Bill of Rights, Section
9(3):
The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
Likewise, in Chapter 2 of the Bill of Rights 9(3):
No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (3).

This firmly places South Africa at the forefront of countries globally in terms of adopting a
comprehensive human rights approach to same-sex, or LGBTI-related rights. However, there
is a gap between the Constitutional rights and protections for LGBTI persons, and the actual
realisation of these rights, and this sets the tone for this strategic framework.

With the spate of targeted attacks and murders of black lesbians in certain townships in
South Africa continuing unabated, and following considerable pressure from various
stakeholders, the Department of Justice and Constitutional Development (DoJ&CD) took a
number of steps to respond to the problem. These steps are briefly outlined below.

1
See Section 9(3) of the Bill of Rights in the South African Constitution, referred to as the equality clause.The clause
affirms the rights to non-discrimination and equality on the basis of sexual orientation and gender respectively, amongst
other grounds.
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17
1.1 The National Task Team on Gender- and Sexual Orientation-based
Violence

In March 2011, the Minister of Justice and Constitutional Development mandated the
establishment of a National Task Team (NTT) to develop a National Intervention Strategy
that will address "corrective rape". The department initiated engagements with key
government departments and institutions to develop the National Task Team. The NTT is
constituted by government departments, chapter nine institutions and civil society
organisations that specialise in issues related to LGBTI persons and communities. The work
of the NTT is guided by the South African Constitution, which guarantees equality and
prohibits discrimination on many grounds, including gender, sex and sexual orientation.
1.1.1 Purpose of the NTT

The purpose of the NTT is to develop a National Intervention Strategy to address Sex-and
Gender-based violence against LGBTI persons, especially in the criminal justice system. The
Intervention Strategy will use an intersectional approach which could include, but is not
limited to addressing discrimination on the basis of gender; sexual orientation; socio-
economic status, poverty and unemployment; race, ethnicity, culture and language; age and
life stage; physical, sensory and cognitive-emotional disabilities; HIV and AIDS; internally
and externally displaced people and asylum seekers; geographic differences such as urban /
rural dynamics; religion; sex work and spirituality
i
.

1.1.2 Objectives

o Develop the National Intervention Strategy to respond to and prevent sex- and
gender-based violent crimes perpetrated against LGBTI persons.
o Develop the Intersectoral Implementation Plan for the Strategy which would link
parallel and complementary initiatives, internal and external to the DoJ&CD such
as the concurrent development of a Hate Crimes Bill and Policy Framework, and
the Hate and Bias Crime Monitoring Form.
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18
o Strengthen governments ability to respond to LGBTI needs and specific
vulnerability and strengthen the capacity of civil society organisations (CSOs) to
deliver related services;
o Improve linkages with other government departments, branches of the DoJ&CD
such as the Access to Justice and the Promotion of Constitutional Rights
programme and the National Action Plan (NAP) as well as relevant Chapter 9
institutions (such as the Human Rights Commission and the Commission for
Gender Equality), that combat racism, xenophobia and related intolerance and in
that manner address the impact of multiple and intersecting forms of
discrimination targeting LGBTI persons.
o Improve the management of cases by relevant role players in the justice system
including South African Police Services, National Prosecuting Authority,
Department of Social Development, Department of Health and Correctional
Services.
1.1.3 Outputs

o Approved National Intervention Strategy
o Approved Intersectoral Implementation Plan

1.2 Addressing gaps in the justice system

The DoJ&CDs Chief Directorate: Promotion of the Rights of Vulnerable Groups,
commissioned a Situational Analysis on LGBTI in the Courts in 2011. The report stemming
from this analysis highlighted existing gaps in the justice system as well as in the broader
JCPS cluster with regards to access to justice and further rights of LGBTI persons. In addition,
the study also developed a tool, based on past cases, to assist with capturing victims
experiences of the criminal justice system. In 2012 the DoJ&CD transferred the LGBTI Rights
Portfolio from Chief Directorate: Promotion of the Rights of Vulnerable Groups to Chief
Directorate: Constitutional Development. In 2013 the DoJ&CD, Chief Directorate:
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Constitutional Development, through the NTT, commissioned a National Intervention
Strategy On Gender- And Sexual Orientation-Based Violence perpetrated against Lesbian,
Gay, Bisexual, Transgender And Intersex (LGBTI) Persons. For purposes of inclusivity of
intersex and transgender identities, this title has been revised to National Intervention
Strategy On Sex- and Gender-Based Violence perpetrated against Lesbian, Gay, Bisexual,
Transgender And Intersex (LGBTI) Persons.

On 5 July 2013, the Working Group of the NTT established a Rapid Response Team
comprised of representatives of the Department of Justice and Constitutional Development,
National Prosecuting Authority, South African Police Service and civil society organisations.
The purpose of the Rapid Response Team is to urgently attend to the pending cases in the
criminal justice system where crimes have been committed against LGBTI persons.

After a number of deliberations with stakeholders, the NTT resolved that the scope of the
National Intervention Strategy on Sex- and Gender-Based Violence perpetrated against
LGBTI persons should be extended beyond a response to corrective rape to address sex-
and gender-based violence against LGBTI persons in general, as well as access to justice for
LGBTI persons. The rationale at the time was to include transgender (a matter of gender
identity rather than sexual orientation) and intersex (a matter of biological / anatomical
sexual characteristics rather than sexual orientation) in the reference to gender based
violence. Furthermore, the term sex- and gender based violence is proposed to reflect the
complexity of the LGBTI spectrum. It is also formulated to move us away from the term
corrective rape and to incorporate the fact that males, females, transgender persons and
intersex persons are victims of violence that include, but is not restricted to, rape.

The NTT also resolved that the new strategy should be inclusive of medium- and long-term
objectives, including planning documents produced by the Working Group of the NTT.

In the DoJ&CD Situational Analysis Report the context for violent crime that targets LGBTI
persons is sketched as follows:
2

2
The Situational Analysis of LGBTI in the Courts (DoJ&CD, 2011)
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In spite of this enabling legal environment, the lived reality for many
LGBTI persons is quite a different story. On the most extreme end of a
wide spectrum of discriminatory experiences, there are frequent reports
of extreme violence inflicted on young, black, lesbian women in the form
of so-called corrective rape, often ending in murder. Gay men and
transgender persons are also often targets of physical violence, and
labour discrimination and exposure to derogatory and threatening
speech is also common. Finally, deprioritisation, marginalisation,
exclusion and targeted victimisation by those public institutions intended
to provide services and protection are everyday realities for LGBTI
persons in many communities, leading to a lack of resources when crimes
are committed and resulting in victims fear to even report crimes.

2. GENDER IDENTITY AND SEXUAL ORIENTATION CONTEXT

It is very important to note that the acronym LGBTI is not at all exhaustive, neither is it
indicative of a homogeneous grouping of people or interests. It must be noted that many
persons choose not to identify as LGBTI, but they may live in non-conforming relationships
or choose non-conforming life choices. For the purposes of this strategy, we need to clarify
what is meant by some terms related to gender identity, sexual characteristics and sexual
orientation or gender identity, biological sex and sexual orientation, as LGBTI is recognised
by some as a sector and by others as a movement in South Africa. We also comment on
the current context in which these terms are used.

2.1 Sexual Orientation

Sexual orientation refers to ones preference in sexual partnership. Terms describing sexual
orientation include heterosexual, homosexual, bisexual, lesbian and gay. In South
Africa, common slang terms to describe LGBTI persons include moffie, stabane, man-
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21
vrou, etc
3
. When viewed from within a human rights context, different constellations of
sexual orientation are equal, normal and value-free.

2.2 Sex- and Gender-Based Violence (SGBV)

This term was formulated to move away from the term corrective rape and to incorporate
the fact that males, females, transgender persons and intersex persons are victims of
violence that includes, but is not restricted, to rape. It is used in conjunction with gender
based violence in the mandate of this strategy.

2.3 Gender Identity

Gender identity refers to ones personal sense and experience of gender, i.e. male, female
or other. In many people it matches the birth sex where, for example, a person assigned
male at birth has a masculine gender identity, that is expressed by a masculine role and
gender presentation (clothes, hairstyle, etc.). In South Africa, other as a term to denote a
third or undefined gender, has not been explored as such. The Working Group of the NTT
has raised the addition of a category other on related forms to include those persons that
do not identify with either male or female. This has implications for policy and
implementation and needs further attention.

It should be noted that people identify in ways that are cross-cutting and complex. Many
transgender persons identify as gay or intersex, for example. Similarly, some intersex people
identify as transgender, gay or lesbian. These terms are also often confused as the broader
public has limited access to guidance or information in this regard.

3
In terms of South African slang, there is little distinction between gender identity and sexual orientation, with
man-vrou, for example, applying equally to lesbians and transgender men. Likewise, moffie can refer to
both a gay man and a transgender woman. The term stabane, in its strict sense, refers to a person born with
ambiguous genitalia, that is to say, to a person who is intersex. This is why it is associated with forced exposure
of the genitals to see whether the genitals are indeed ambiguous. The term has been appropriated to refer
to people who are lesbian or gay.
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22
2.4 Intersectionality

The concept of intersectionality refers to the fact that we all have many different identities
at the same time. We usually structure those identities hierarchically, paying more attention
to some than to others, often to highlight certain identities political importance at a given
point in time.
In terms of vulnerability and intersectional discrimination, intersectionality means that a
disabled, HIV-positive LGBTI person who lives in a township in South Africa may encounter
discrimination on any number of levels and this person would require services that
specifically address these varying yet interdependent aspects of identity. It also means that
these intersections have to be surfaced and dealt with in the conversations and
deliberations that we have. By not surfacing these issues we run the risk of glossing over the
many determinants of that may be present in violence against LGBTI persons.

2.5 Vulnerability

LGBTI persons are vulnerable, not because of their gender identities or sexual orientation,
but because of the hostile socio-cultural environment in which they live. This hostile socio-
cultural environment is constructed through a patriarchal system that values role
compliance in terms of what it is to be a male and what it is to be a female in a society that
bases its value system on conformity to the heteronormative family ideal, and allows for
prejudice and discrimination against LGBTI persons to be practised institutionally. The
Situational Analysis of LGBTI in the Courts undertaken by the DoJ&CD
4
supported this as
follows:

Participants in the focus groups have knowledge of the SA Constitution
and the protection of LGBTI citizens, thus the notion that people lack
awareness seems to be about the lack of an active application of
knowledge in their everyday professional duties. There seems to be an

4
The Situational Analysis Report on LGBTI in the Courts, DoJ&CD, 2011
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23
expectation for specific information and instructions about expected
behaviour and attitudes towards vulnerable groups. In the absence of this
people go about their duties without feeling a responsibility towards
special protection for vulnerable groups, particularly LGBTI persons.
This is a clear indication that an institutionalised code of good practice would be
useful in managing the expectations and responsibilities of staff as service
providers.
3. GENDER BASED VIOLENCE AGAINST LGBTI PERSONS

The following section seeks to frame violence against LGBTI persons as firmly located within
gender-based violence (GBV). In order to understand the reasons behind GBV, we have to
understand patriarchy.

3.1 Gender-based Violence

The term gender-based violence (GBV) is considered to have the following meaning for
the purposes of this study.
Gender-based violence is an umbrella term for any harm that is
perpetrated against a persons will; that has a negative impact on the
physical or psychological health, development, and identity of the person;
and that is the result of gendered power inequities that exploit
distinctions between males and females, among males, and among
females. Although not exclusive to women and girls, GBV principally
affects them across all cultures. Violence may be physical, sexual,
psychological, economic, or socio-cultural. Categories of perpetrators
may include family members, community members, and those acting on
behalf of or in proportion to the disregard of cultural, religious, state, or
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24
intrastate institutions
5
.
This definition of gender-based violence extends to all forms of violence that are related to
(a) social expectations and social positions based on gender and (b) not conforming to a
socially accepted gender role. In this way the term is increasingly used to connect all acts of
violence rooted in some form of patriarchal ideology and can thus be committed against
both women and men, by both women and men with the purpose of maintaining
(heterosexual) mens position of social power
6
.
The rising figures in gender-based violence creates the backdrop to this strategy. It also
foregrounds the need for an approach that prioritises crimes against LGBTI persons, in an
attempt to mete out justice, whilst simultaneously strengthening the understanding and
knowledge of crimes perpetrated against LGBTI persons.

3.2 Gender-based Violence and Patriarchy

It is held that gender-based violence is entrenched in the strong patriarchal ideologies of
control, subversion and subordination of women and girls
7
. A study undertaken in Nigeria
claims that
GBV has been globally recognized to stem from patriarchy which is also
based on the ideology and exercise of power. Regulated by the pattern of
gender relations and norms which guide allocations of resources and
power at household levels, patriarchy ensures and maintains the status
quo of power over orchestrated by gendered roles/division of labour
where male authority and power are dominant. Men and boys are
protagonists as heads of households and breadwinners in the private and
public domain while women and girls take secondary position and value

5
Gender-based violence (Chapter 2) in Gender Matters A manual addressing gender-based violence with
young people, an online resource by the Council of Europe, accessed at
http://eycb.coe.int/gendermatters/chapter_2/1.html on 2 September 2013.
6
More Power than We Want ,Masculine Sexuality and Violence, Bruce Kokopeli and George Lakey in Margaret
L Andersen and Patricia Hill Collins eds. Race, Class and Gender, An Anthology. Second edition, 1995
7
Contextualizing Gender Based Violence within Patriarchy in Nigeria by NkiruIgbelina-Igbokwe
2013-05-30, Issue 632, accessed at http://pambazuka.org/en/category/features/87597 on 20 August 2013
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25
is relation to their ability to organize efficiently household social
reproduction
8
.

It is claimed that efforts to resist this has mostly been undertaken at individual level and as
a result, patriarchy has continued to thrive. By implication then, gender based violence, if it
is taken to stem from patriarchy, will also continue to exist, if it is not addressed critically at
both an institutional and relationship level.

Looking at patriarchy from an institutionalised systematic point of view, Kokopeli and Lakey
define patriarchy as:
the systematic domination of women by men through unequal
opportunities, rewards, punishments and the internalization of unequal
expectations through sex role differentiation it is the institution that
organizes these behaviors. Patriarchy is men having more power both
personally and politically than women of the same rank. This imbalance
of power is the core of patriarchy but definitely not the extent of it.
9

A critical discourse is required in order to start addressing the systematic domination of
women by men, as referred to above, in relation to GBV. In the same breath, this critical
discourse articulates with LGBTI issues as they too relate to real lived discriminatory
constructs of power within institutions such as the church, schools and the family, for
instance.

3.3 Gender-based Violence and Human Rights

Acts of GBV violate a number of principles enshrined in international and regional human
rights instruments, including the right to life, equality, security of the person, equal
protection under the law, and freedom from torture and other cruel, inhumane or
degrading treatment. The Convention on the Elimination of All Forms of Discrimination

8
ibid.
9
Ibid.
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26
Against Women, which was ratified by the United Nations in 1979 commits its signatories to
condemn violence against women, to create legal and social protections against violence,
and not to invoke custom, tradition, or religion to avoid the obligations it outlines. The
Declaration on the Elimination of Violence Against Women, adopted by the U.N. General
Assembly in 1993, and the subsequent Global Platform for Action, adopted at the Beijing
Fourth World Conference on Women in 1995, further elaborate the nature of GBV and
reiterate state responsibility to protect women and girls.
In 1998 the International Criminal Court adopted the Rome Statute, which defines crimes
against humanity to include torture, rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilisation, or any other comparably grave acts of sexual violence that
are committed as part of a systematic attack on civilian populations.

3.4 LGBTI related Hate Crimes

This section moves from the broad lens of GBV to the more narrowly defined lens of SGBV
in the light of Hate Crimes. Iole Matthews, the Chairperson of the Hate Crimes Working
Group, argues that government should have separate legislation for specific recognition of
hate crime. This will help monitor the extent of these crimes in our society, as well as
successful prosecution rates. She says, Hate crimes often take place in an environment
where discrimination against particular groups is socially accepted, such as against non-
nationals or lesbian, gay, bisexual and transgender people in South Africa. Hate crimes are
different to other forms of crime not just because of the prejudice motive, but also because
of the traumatic effect on their victims.
10
Over the past few years, however, Professor Juan
Nel and the Hate Crimes Working Group have been carrying out research into hate crimes in
five different provinces. Provisional findings presented in May 2013 revealed that of the
hate crime victims polled the majority were female, black, heterosexual and township-
dwelling. They were also more likely to be unemployed. The most common type of incident
perpetrated against them was physical violence (63%), followed by verbal abuse (59%) and
rape (44%). The most listed common causes for the reported incidents other than Other

10
HCWG: Statement by the Hate Crimes Working Group, condemns in the strongest terms the brutal killing of
Duduzile Zozo (04/07/2013) in www.polit.org.za, accessed 10 November 2013
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27
were nationality and sexual orientation. One particularly frightening aspect of the
incidents was that although 61% of them involved witnesses, only 16% of the victims were
assisted by witnesses. Another chilling statistic is that 47% of the offenders were believed to
be law enforcement officials.
3.4.1 GBV and hate crimes against LGBTI persons

Recent research (Nel and Judge, 2008) has provided broad trends that influence
discrimination and that may lead to hate crimes against LGBT persons. In their research, Nel
and Judge find that:
Sexual orientation-based hate crimes are extreme expressions of homophobia (also
known as homo-prejudice see Hattingh, 1994) through criminal acts (such as rape,
assault, or damage to property) committed against people, their property, or
organisations because of their actual or perceived sexual orientation (Eliason, 1996).
Violence against LGBT persons motivated by sexual orientation-related bias is not an
individual injury alone, but can be classified as a hate crime that is part of a larger
system of domination against LGBT persons (UCAP & Out, 2008b). This links hate
crime to issues of identity, social power and public attitudes (UCAP & Out, 2008b).
Such crimes against LGBT persons are often calculated to send a message to the
victim/survivor that his or her sexual orientation and/or gender non-conformity is
deviant and must be changed
11
.

Furthermore, Nel and Judge, (Nel and Judge, 2008) make the case that there are indications
that homophobic hate crime in fact increases as lesbian and gay communities become more
visible (Eliason, 1996; Schippers, 1997). They quote international research (Eliason, 1996;
Samelius & Wgberg, 2005; Schippers, 1997) that purports that the vast majority of openly
LGB
12
persons have experienced some form of victimisation, such as verbal abuse, threats,
being chased or followed, or being spat on. A comparison of the findings of seven USA anti-
gay violence victimisation surveys (1988 - 1991) with a South African study conducted in

11
Nel, J and Judge, M. Exploring homophobic victimisation in Gauteng, South
Africa: issues, impacts and responses in Acta Criminologica 21(3) 2008
12
Throughout the paper, where T is not indicated in references to research findings, transgender people were
not included in the research, Acta Criminologica 21(3) 2008, p. 24

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1992 found that, while South Africans were less likely to experience verbal abuse and
threats of violence than their American counterparts, they were more prone to be physically
assaulted and substantially more often sexually assaulted (Theron & Bezuidenhout, 1995).
In their research with a predominantly white male sample, Theron and Bezuidenhout (1995)
report that 22% of gay hate victimisation involved rape or sexual assault, 22% physical
assault, and 67% involved hate speech. Similarly, a study by Theuninck (2000) found that
75% of the sample, again consisting primarily of white gay males, had experienced hate
speech, 22% had been physically assaulted, and 17% had been victims of sexual assault.

Limited research on LGBT issues in South Africa, including on homophobic hate crimes
against lesbian and gay people, has been conducted and, as indicated, previous studies
focused primarily on white middle-class gay men. Even less is known of the experiences
of bisexual and transgender persons and not to mention, intersex persons. The studies that
do exist and a growing body of anecdotal evidence (Campaign 07-07-07, 2007; Isaack, 2007),
however, suggests that LGBT persons are often targeted for discrimination as a result of
their sexual orientation or gender identity. Violence is not experienced equally across class,
race and gender lines in the general population of South Africa and women from lower
socio-economic levels are more susceptible to gender-based crimes, such as rape, domestic
violence and child abuse (Nel & Kruger, 1999; Van der Hoven & Maree, 2005). The role of
physical appearance as well as the intersection with other identities (race, class and gender)
are critical to understanding LGBT hate crimes. For, a LGBT person may experience
intersecting forms of discrimination on one or more of the listed grounds in section 9(3) of
the Constitution (i.e. race, sex, gender, pregnancy, marital status, sexual orientation, age,
disability etc.) (Campaign 07-07-07, 2007; Isaack, 2007; UCAP & Out, 2008b).

It is purported that LGBT persons from poor African communities and black lesbian women
in particular, are disproportionately at risk for discrimination (Smith, 2004). Studies have
shown that lesbians face violence twice as often as heterosexual women (Graham & Kiguwa,
2004). The phenomenon of corrective rape has been documented amongst Gauteng
township-dwelling black lesbian women (Mufweba, 2003; Reid & Dirsuweit, 2002; Reuters,
2004; Special Assignment, 2004). Unpublished research findings of the Forum for the
Empowerment of Women (FEW) suggest that black lesbians, particularly in townships,
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29
where they are seen to challenge patriarchal gender norms, are increasingly targeted for
rape. Of the 46 black women interviewed, 41% had been raped, 9% were survivors of
attempted rape, 37% had been assaulted and 17% verbally abused. Most survivors know
their perpetrators, who are often a family member, friend or neighbour (Smith, 2004).
Although not a separate and distinct phenomenon from the high incidence of gender-based
violence in the country, it has also been reported that highly visibly gay, lesbian or
transgender people are more often the targets of homophobic violence (Reuters, 2004;
Smith, 2004).

The invisibility of transgender and intersex experiences within the ambit of hate
victimization points to the fact that there is a deficit in the global mapping of discrimination
against transgender and intersex people (Samelius & Wgberg, 2005). To date, transgender,
and to an even greater extent, intersex persons are seldom included in sexual orientation-
related research (Nel, 2007).

Although yet to be the focus of empirical investigations, it is likely that these international
findings will be confirmed in South Africa given the heightened visibility of transgender
people. The recent fatal shooting of a drag queen in Yeoville, Johannesburg, is a case in
point (Lesbian and Gay Equality Project, 2008). Anecdotal evidence of sexual orientation-
related hate crime, such as assault, malicious damage to property, corrective rape and
murder, abound. For example, two lesbian women were brutally raped and murdered in
Soweto on 7 July 2007 (Campaign 07-07-07, 2007): It is believed that the rapes and brutal
murders of Salome Masooa and Sizakele Sigasa were hate crime related (BMT, 2007;
Campaign 07-07-07, 2007; Isaack, 2007). On 22 July 2007 a black lesbian woman, Thokozane
Qwabe a 23 year old lesbian, was found murdered in Ladysmith, KZN (Ibid). In March 2006,
a 19 year-old black lesbian, Zoliswa Nkonyana, was murdered by a mob in Khayelitsha, Cape
Town, because of her sexual orientation (Triangle Project, 2006). In June 2013, 26 year old
lesbian Duduzile Zozo was found murdered with a toilet brush up her vagina. The man
accused of killing her was a neighbour who lived in a street behind hers.

Vernon Gibbs and Tony Halls, the first same-sex couple to be married under the Civil Union
Act, had previously made news headlines as targets of a hate crime. In 2005, the white male
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couple had pressed criminal charges after their guest lodge in Riversdal, Eastern Cape, was
vandalised five times by local Dutch Reformed Church members who objected to their
opening the lodge to gay tourists (Jacobson, 2006). During the 2005 Lesbian and Gay Pride
march in Braamfontein, Johannesburg, the float of FEW was targeted by spectators
throwing bottles, seriously injuring a lesbian volunteer (De Waal & Manion, 2006). In light of
the general hostility to same-sex marriage, it is precisely for fear of victimisation that the
two Johannesburg based black men who were the first couple to legally marry in a religious
ceremony chose to remain anonymous (Van der Westhuizen, 2006).

Violence against LGBTI persons is often neglected when gender-based violence is discussed.
It is not unusual, for example, for perpetrators of violence against LGBTI persons to justify
their actions through expressing disgust at same-sex sexualities or gay masculinities
13
. It is
not clear what percentage of GBV is constituted by sexual orientation and transgender and
identity based crime as there are no reliable statistics related to this matter yet.
Transgender people experience GBV being targeted either for their female birth sex, or
female gender identity and expression. They are more at risk because they represent a
direct challenge to traditional gender norms and roles
14
.

Victims beliefs and perceptions that they will experience secondary victimisation when
reporting a case that has an element or elements of sexual orientation-based violence have
also been recorded. South African law allows for the intervention of a friend of the court
(amicus curiae) as a party to a dispute where such friend of the court is not the party
involved in the dispute. This is a relatively recent development (post 1994), which was
introduced when the court needed additional input and information that was not, or could
not be, provided by the parties to the dispute
15
. An LGBTI organization, OUT, applied to be a

13
ibid.
14
http://pdf.usaid.gov/pdf_docs/PNADU585.pdf
15
Originally, friends of the court would appear if they were either asked to appear for a particular party or
interest at the request of the court. A friend of the court could also be an advocate requested by the court to
provide assistance in developing a novel question of law that arises in a matter. It is only more recently that
the rules of court and the common law have been developed to allow the intervention by parties who wish to
be friends of the court on their own volition and because of their own interests (see Geoff Budlender, Amicus
Curiae in Constitutional Law of South Africa (Juta & Co, Second Edition, Revision Service 1, 2009), at 8-1).
Quoted from Kerry Williams, Dip me in Chocolate and throw me to the Lesbians, Homophobic Hate Crime,
the State and Civil Society, in SA Crime Quarterly No. 42, December 2012
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friend of the court only after the perpetrators were found guilty in a case concerning a
young black man, who was severely assaulted in a tavern in Germiston in 2007 and where
there was evidence of homophobia. OUT called three witnesses over a period of two days,
and led expert and experiential evidence that it believed was crucial to a fair sentence
16
.
However, the magistrate did not treat the homophobic hate aspect of the crime as an
aggravating factor in sentencing. OUT chose to intervene in this case because it was the only
legal remedy available to do it.

Another case in point is that of Jon Qwelane who calls for the Constitution to be rewritten
to outlaw gay marriage, invoking the slippery-slope argument that otherwise humans will
soon be able to marry animals. Following almost 1,000 complaints to the Press
Ombudsman, the South African Human Rights Commission (SAHRC) took the matter to the
Equality Court, and the Equality Court agreed that the column constituted hate speech.
Qwelane was ordered to make an unconditional apology to the LGBTI community and to
donate R100, 000 to the SAHRC. Even at the time of the ruling, however, Press Ombudsman
Joe Thloloe expressed doubts as to whether Qwelane had really met the conditions for hate
speech. Thloloe said that it was in his opinion most unlikely that the column would lead to
violence against gays and lesbians. The lived reality of most LGBTI persons negates Thloloes
statement. It is in fact statements such as Jon Qwelanes that not only enable an already
existing general societal acceptance of bias and distinction, it also perpetuates language
critical of and harmful to the human rights of individuals who happen to be LGBTI
17
.
4. PARALLEL ACTIVITIES

At the same time that the NTT has been doing its work, a number of parallel developments
have been taking place. These include the development of a hate crimes policy and the
establishment of a civil society Hate Crimes Working Group, and work done by the

16
ibid. p. 4
17
As Qwelane challenges Equality Act, government gets serious on hate crimes, Daily Maverick, 10
November 2013, accessed at www.dailymaverick.co.za on 10 November 2013.

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Psychology Association of South Africa, the SA National AIDS Council and the Victim
Empowerment Programme, as outlined below.

4.1 Hate Crimes

4.1.1 Hate Crimes Policy

The Department of Justice and Constitutional Development is in the process of developing
policy around hate crimes. One of the areas covered as a possible hate crime is sexual
orientation-based crime and gender-based violence against LGBTI persons. It is important
for the NTT to start engaging with the draft policy to influence the finalisation of the policy
and to ensure that the interim strategys structures and processes are in alignment with the
anticipated policy. Linked to this is an assessment as to what extent the strategy is aligned
with the policy. This will only be clarified once the policy is in the public domain.

4.1.2 Hate Crimes Working Group (HCWG)

The HCWG was set up by civil society in 2009. It has a multi-sectoral focus and seeks to
contribute towards sound national policy and legislative interventions to combat hate
crimes by seeking to contribute towards the speedy enactment of comprehensive hate
crimes laws; improve the policing of, and judicial responses to hate crimes; and assisting in
the development of effective mechanisms to monitor hate crimes incidents
18
. A hate crime
is defined as A criminal act committed against people, property, or organisations that is
motivated in whole or part by prejudice because of the group to which the victim belongs or
identifies with (i.e. LGBTI community, foreign national or Muslims)
19
.
The HCWG deals with hate crimes that include xenophobic attacks, sexual-orientation-based
and gender-based violence against LGTI persons, race-based hate victimisation, religion-

18
http://www.hcwg.ipt.co.za, accessed on 10 September 2013
19
Understanding and responding to hate crime, presented by Prof Juan A. Nel (UNISA Centre for Applied
Psychology) at HSRC/ ISS Panel Discussion, Pretoria, 30 August 2011, accessed at
http://www.hcwg.ipt.co.za/research.asp on 10 September 2013
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based victimisation and disability-based victimisation. In September 2010 the HCWG made
recommendations on Hate and Bias Crime Legislation to DoJ&CD. The research undertaken
by the HCWG resulted in retrospectively capturing 394 hate crimes in five provinces.
Preliminary findings of this research have been presented and the project is ongoing, with
great impact on the improvement of policy and strategies for addressing hate crimes.

The development of a Bias Crime Monitoring Form has enabled the collation of available
data, in an inclusive way, and it has raised governments awareness of the nature and type
of hate crimes taking place, as well as providing a measure of the extent of hate crimes in
the country. The monitoring form contains the following sections:
General information section
Victim details and background
Current incident details
Alleged offenders details
Police
Access to healthcare assistance and support
Previous incident details

Using the data gathered through this process, the NTT should consider it as baseline data
that may further be refined to assist with data gathering. The Bias Crime Monitoring Form
does not cover court processes.

4.1.3 Asiphephe Project

Asiphephe (isiZulu for Let us be safe) is the name of an innovative joint project by Gay
and Lesbian Memory in Action (GALA) and the Lesbian and Gay Equality Project (LGEP) that
seeks to create a positive change in safety and security for lesbian, gay, bisexual,
transgender, and intersex (LGBTI) people in South Africa. The Asiphephe project uses a
range of creative strategies to increase access to legal information and other resources on
sex- and gender-based violence, and also to strengthen collaboration and solidarity
between LGBTI and other social justice movements.

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An online resource and information hub for Sex- and Gender-based
violence forms the cornerstone of the Asiphephe project and is an easy-to-use website that
brings together existing and newly created resources relating to violence against LGBTI
people. Users of the website will have access to a wide range of resources, including legal
information, details of clinics and shelters, and advice on accessing support services. The
website includes an online database of resources and literature. GALAs report Outside the
Safety Zone, 2012: An Agenda for Future Research on Gender-based Violence targeting
Lesbian and Bisexual Women highlighted that, while a number of research projects have
investigated the incidences, causes and outcomes of violence against LGBTI people in South
Africa, it remains difficult to search and find this literature, and other relevant resources.

Through the database the project hopes to stimulate further research and assist
organisations to ensure that programmes and advocacy campaigns are knowledge-based. In
addition to offering information to LGBTI communities and survivors of sex- and gender-
based violence, the website will also serve as an important advocacy and training tool.

The slogan adopted by the Asiphephe project is Let us connect, let us be safe. The
Asiphephe Project is based on partnership and collaboration with LGBTI organizations,
movements and interest groups and other social justice movements. The Asiphephe project
therefore goes beyond resource-based initiatives to include initiatives that
seek to build solidarity and to transform solidarity into action.

The Asiphephe project also involves a law and policy review function that highlights areas in
need of reform, as well as a digital stories DVD that will be distributed to criminal justice
institutions and health service providers. A major goal of the project is to foster closer
engagement with service providers and to educate and inform multiple sectors about
violence directed at LGBTI persons.
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4.1.4 Sexuality and Gender Division of the Psychology Association of South
Africa

The Sexuality and Gender Division of the Psychology Association of South Africa (PsySSA)
has made huge strides in ensuring that a Sexual and Gender Diversity Position Statement
20

is developed for the guidance of psychology professionals in the country. The position
statement encompasses the intricacies and complexities of human lived experience
understood from an affirmative stance that is consciously inclusive of a broad sexual and
gender diversity spectrum. The next step for PsySSA will be the development of South
African guidelines for LGBTI-affirmative psychological practice. This will potentially be
followed by collaboration with colleagues from the rest of Africa in developing statements
and practice guidelines suited to their unique contexts.

4.1.5 THE SOUTH AFRICAN NATIONAL AIDS COUNCIL (SANAC)

The South African National AIDS Council brings together civil society, government and the
private sector to create a collective response to the scourge of HIV AIDS, tuberculosis and
sexually transmitted infections in South Africa. The Council is chaired by the Deputy
President of South Africa.

The council consists of service providers who have done most of the groundwork in
research, advocacy, training, treatment, support and care for the LGBTI community. These
service providers are OUT in Pretoria, ICAP South Africa, Durban Gay and Lesbian Centre,
Pietermaritzburg Gay and Lesbian Network, NACOSA, Triangle Project Cape Town, Anova
Health, Desmond Tutu HIV Foundation Cape Town, Gender Dynamix and Intersex South
Africa.

20
Psychological Society of South Africa, Sexual and gender diversity position statement: Introduction, rationale
and context, 24 September 2013

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The following conclusions and recommendations stem from studies
21
done by SANAC:
Men who have Sex with Men (MSM) are specified as a key population in the
National Strategic Plan 2011-2016. This group is situated in a broader group,
namely LGBTI, or lesbian, gay, bisexual, transgender and intersex.
There have been about five HIV prevalence studies among MSMs. In the most
recent study, it was found that 30% of respondents were HIV-positive.
Very little is known about HIV prevalence among lesbian women, transgender and
intersex people.
There is very little government funding for HIV-prevention programmes for the
LGBTI community.

4.1.6 Victim Empowerment Programme

Victim empowerment is an approach to facilitating access to a range of services for all
people who have individually or collectively suffered harm, trauma and/or material loss
through violence, crime, natural disaster, human accident and/or through socio-economic
conditions. It is the process of promoting the resourcefulness of victims of crime and
violence by providing opportunities to access services available to them, as well as to use
and build their own capacity and support networks and to act on their own choices. Hence,
empowerment may be defined as having (or taking) control, having a say, being listened to,
being recognised and respected as an individual and having the choices one makes
respected by others (moving from victim to survivor).

Victim empowerment aims to restore the loss or damage caused by criminal acts and their
consequences through a variety of actions intended to empower the victim to deal with the
consequences of the event, to leave it behind and suffer no further loss or damage. It is
premised upon the belief that individuals, families, and communities have the right to

21
Advocacy by the South African National AIDS Council (SANAC) Lesbian, Gay, Bisexual, Transgender and
Intersex (LGBTI) Sector (March 2011), accessed at http://www.sanac.org.za/civil-society-sectors/item/11-the-
lgbti-sector, on 25 October 2013.

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privacy, safety and human dignity, and that victims should play a more central role in the
criminal justice process.

South Africas Victim Empowerment Policy is based upon the concept of restorative
justice
22
. This approach is fully in concert with international trends over the past decade to
promote a victim-centred approach to criminal justice. Whereas formerly the focus was
almost exclusively on the progress of the perpetrator through the system, the current focus
is also strongly on serving the needs of the victim. Wherever a victim-centred approach has
been put into practice internationally, it has invariably resulted in a reduction of
victimisation, while simultaneously improving service standards in the system.

Since inception in 1998, a National Victim Empowerment Management team is responsible
for giving strategic direction to the business of the VEP and a similar structure is replicated
in the provinces. Representation in the management team is from national and provincial
government departments, civil society organisations, academic institutions and research
institutes. The representation is according to the areas of responsibility towards the victims
within the criminal justice system, e.g. the Departments of Health, Justice and Constitutional
Development, Correctional Services, Education, Social Development and SAPS.

The VEP Strategy covers the following areas:
Policy framework: With reference to the Victim Empowerment Policy, SA Victims
Charter of Rights, Minimum Standards for service delivery;
Management: Related to the development and capacitating Victim Empowerment
governance structures to ensure effective decision making and enhance service
delivery at all levels;
Direct Service Delivery: To develop best practice models and increase the scope and
quality of services for victims of crime and violence in SA;
Marketing and Communication: Ensure effective communication and marketing of
VE-related issues to promote accessibility and accountability in service delivery;

22
National Policy Guidelines on Victim Empowerment, DSD, 2009

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Education, training and development of VE Practitioners: To enhance the capacity of
VE service providers to provide appropriate and effective VE services for all victims
of crime and violence in South Africa; and
Research, Monitoring and Evaluation: Conduct research on VE-related issues,
monitor the implementation of services and evaluate the impact thereof.

Nel and Judge (2008) support the implementation of the Victims Charter and minimum
standards to maximise service delivery and to lower the risk of secondary victimisation for
survivors of crime and violence.

The Hate Crimes Working Group proposed the Victim Empowerment Programme be
strengthened and capacitated so that it may serve as a co-ordinating structure from which
the NTT implements its National Intervention strategy, as it has intersectoral and
interdepartmental representation within it. To enable this, the NTT would need to seek
representation on the Victim Empowerment Programme.
5. THE PROTECTION OF LGBTI PERSONS UNDER THE SOUTH
AFRICAN CONSTITUTION

The political transition of 1994 ushered in a new era for law and governance in South Africa,
informed by constitutional principles. The positive impact of this transition to democracy
and human rights is neither understood nor experienced evenly across society. The legacies
of colonialism and Apartheid are acutely present in that prejudice and intolerance for
difference prevails in South African society. Despite all citizens being equal before the law,
the rights of those that remain economically, politically and socially marginalised have not
been fully realised. More specifically, sexuality and gender continue to be sites of prejudice
with those people with non-conforming sexual orientations and gender identities
experiencing discrimination.

The Constitution of the RSA provides a baseline as follows:
Section 9:
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No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds including gender, sex, sexual orientation, pregnancy and disability.

The Constitutions baseline, continued:
Section 10:
Everyone has inherent dignity and the right to have their dignity respected and protected.

Section 11:
Everyone has the right to life.

Section 12:
Everyone has the right to freedom and security of the person which includes the rights to be
free from all forms of violence from either public or private sources; and not to be treated
or punished in a cruel, inhuman or degrading way.

Everyone has the right to bodily and psychological integrity, which includes the rights to
make decisions concerning reproduction and to security in and control over their body.

The Constitution of South Africa is a social contract hinged upon foundation principles of
human dignity, equality and the advancement of human freedom. It creates the framework
for a democratic dispensation with human rights at its core, positioning South Africa as a
leading proponent of equality. In addition, transgender and intersex opinion is that gender
identity should be part of gender in the South African Constitution Section 2, Article(3)
and 9 (4) [Equality].

While homophobia is a universal phenomenon the fact that SA has a progressive and
inclusive Constitution, from a formal equality perspective, bears testimony to the fact that
homosexuality, transgenderism and intersexuality cannot be classed as un-African a
popular argument invoked by those who resist sexual and gender diversity
23
.

23
The reference to LGBTI being un-African invoked a normative, moralist cultural response from
conservative South African individuals and constituencies, in effect equating LGBTI as something imported
through exposure to the West and thereby creating distance rather than embracing diversity.
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5.1 National legislative and policy context

In an attempt to ensure coherence, it is important to locate this strategy in the national
legislative and policy context, as it provides the framework for implementation mechanisms.
This basic Constitutional right to equality flows through into all aspects of criminal and civil
law where LGBTI persons are affected as victims/claimants. Central to ensuring the right to
equality, dignity and freedom for all South Africans is the assurance of equal and non-
discriminatory access to services, including access to justice. The South African legislative
framework asserts that no one may refuse an LGBTI person a service or treatment, or
alternatively provide them with inferior services or treatment, based on their sexual
orientation.
There are several laws that deal with or apply to the substantive rights of LGBTI persons (as
members of South Africas broader society) to enjoy safety and freedom from violence and
discrimination.
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) (No. 4 of
2000) was intended to give effect to Section 9 read with item 23(1) of Schedule 6 of the
Constitution so as to prevent and prohibit unfair discrimination and harassment; to promote
equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to
provide for matters connected therewith. It is indeed true that PEPUDA singles out race,
gender and disability in chapter 2 (see sections 7, 8 and 9); but it does not follow that
discrimination on grounds of sex or of sexual orientation are excluded from the scope of
PEPUDA. The purpose of PEPUDA is to govern the judicial interpretation of the
Constitutions Equality Clause, and it cannot weaken the Equality Clause as it stands (see
Section 5 (2)). In addition, Section 1 of PEPUDA, a schedule of definitions, defines
prohibited grounds in terms which reflect the Equality Clause exactly, and which include
sex and sexual orientation. The schedule of definitions also brings intersex explicitly
within the scope of sex for purposes of judicial interpretation. South African primary and
secondary legislation often treat sex and gender as synonymous, failing to distinguish
between the two or between different senses of the term sex, and this holds true of
PEPUDA. In the light of all of these considerations, it is simply not true that the absence of a
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section concerning sexual identity per se in PEPUDA is intentional and that discrimination on
grounds of sex or sexual orientation are intentionally and explicitly excluded from the scope
of PEPUDA. The Constitution itself requires a generous interpretation of the Equality Clause.
As a piece of legislation deriving from the Equality Clause, this principle of interpretation
must also apply to PEPUDA.
The Sexual Offences Act (No. 32 of 2007) is an important contribution to addressing sexual
and gender-based violence and LGBTI persons can be interpreted to be included if they are
victims of such violence. The new Sexual Offences Bill, passed by the National Assembly in
2007, broadens the definition of rape to include forced anal or oral sex, irrespective of the
gender of either the victim or the perpetrator. It thus recognises male rape, which was
previously classified as indecent assault, and also widens the definition of rape to include
sexual penetration with an inanimate object or animal genitalia.
There are several pieces of legislation which impact on the civil law rights to LGBTI persons.
As this is not the focus of this report, these will only be touched on here:
The Employment Equity Act, No. 55 of 1998, (EEA) includes sexual orientation as a specific
group to be protected from discrimination. Chapter 2, which deals with the prohibition of
unfair discrimination, states the following:

No person may unfairly discriminate, directly or indirectly, against an
employee in any employment policy or practice, on one or more grounds
including race, gender, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
HIV status, conscience, belief, political opinion, culture, language, and
birth.

The Labour Relations Act, (No. 66 of 1995) provides for an employer to be charged with
unfair labour practice if the employer sexually harasses an employee.

The Civil Unions Act (No. 17 of 2006) specifically names sexual orientation as one of the
grounds that people may not be discriminated against when entering into a civil union.
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Section 8 (6) limits the application of the Act to people who are either male or female
biologically, implicitly excluding people who are intersex, thus creating problems for
intersex people
24
.

With regard to legislation governing the procedural aspects of access to justice, and
specifically providing means of combating secondary victimisation because of discrimination
against vulnerable victims while engaging with the justice system, the following pieces of
legislation have relevance:
The Criminal Procedure Act (No 51 of 1977) provides guidance on administration processes
linked to the role of the prosecutor, in terms of power to withdraw a charge or stop
prosecution, as well as processes around the charge, the plea, accessing witnesses and trial
procedures.

The Criminal Law (Sexual Offences and Related Matters) Act (No. 32 of 2007) seeks to
protect complainants of sexual offences and promote effective service delivery (including all
the principles of Batho Pele) in relation to investigations and prosecutions and the provision
of other services aimed at minimising the risk of HIV infection. This Act ensures that sexual
offences complainants get the maximum protection and redress that the law can provide,
introducing measures which seek to enable the relevant organs of the state to give full
effect to the provisions of the Act in order to combat and ultimately eradicate the relatively
high incidence of sexual offences in the Republic.

The Promotion of Administrative Justice Act, (No 3 of 2000) (PAJA). The provisions of PAJA
complement the principles of Batho Pele and can be interpreted as building blocks for a
more efficient service delivery system. In principle, the Act is aimed at encouraging fair,
rational and lawful decision-making and discouraging maladministration by setting out a
minimum set of procedures relating to the making of decisions and requires the provision of

24
For further information see See Sally Gross, De-gendering unions: the Civil Union Act and the Intersexed,
in Melanie Judge, Anthony Mannion & Shaun De Waal (eds.), 2008. To Have & to Hold: The Making of Same-
Sex Marriage in South Africa. Auckland Park: Fanele, pp. 264 273, especially p. 270 f.
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reasons for certain decisions.
25
The PAJA thus sets a guideline against which the quality of
services provided by the DoJ&CD and the SAPS may be assessed.

In addition:
Departments such as the Department of Health has a Recognition of Social context of key
populations that includes LGBTI in its National Strategic plan for HIV+2016.
The Department of Education has a life skills orientation structure in schools, which aims to
address issues of sex, sexuality and gender, among others.
The Department of Social Development houses The Victims Charter (2004) and the Victim
Empowerment Programme (VEP) (2009). The DoJ&CD and JCPS Cluster are developing a
strategy for LGBTI violence that includes primary and secondary preventive elements.
Finally, the Justice, Crime Prevention and Security (JCPS) Cluster has been given the
mandate to achieve the goal of Outcome 3 of the Priorities of Government, namely that all
people in South Africa, are and feel safe.

5.2 SAS International and Regional Obligations

South Africa is a signatory or has ratified the following key international instruments:
Universal Declaration of Human Rights;
The Convention on the Elimination of All forms of Discrimination Against
Women;
The United Nations Convention on the Rights of the Child;
The Optional Protocol on the Sale of Children, Child Trafficking and Child
Pornography;
Violence Against Women Migrant Workers, Resolution 48/110 of the UN General
Assembly (1993);
The Beijing Declaration and its Platform of Action (1995);
The Protocol to the African Charter on Human and Peoples Rights on the Rights
of Women in Africa (2003); and

25
Currie and Klaaren, 2001
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The SADC Protocol on Gender and Development.

A resolution submitted by South Africa requesting a study on discrimination and sexual
orientation (A/HRC/17/L.9/Rev.1)
26
was passed, with a majority of 23 to 19 with three
abstentions, in the Human Rights Council on June 17, 2011. The resolution led to the first
ever United Nations Report on the human rights of lesbian, gay, bisexual and transgender
people. It details how, across the world, people are killed or endure hate-motivated
violence, torture, detention, criminalisation and discrimination in jobs, health-care and
education because of their real or perceived sexual orientation or gender identity.

The report, released December 2011, found that violence against LGBT persons remains
common, and confirmed that 76 countries retain laws that are used to criminalize people
on the basis of sexual orientation or gender identity, and that In at least five countries the
death penalty may be applied to those found guilty of offences relating to consensual, adult
homosexual conduct.
6. SCOPE OF THE PROBLEM

GBV is a complex and multidimensional problem embedded within the broader socio-
economic, political and cultural context with traditional norms influencing the likelihood of
GBV. The key risk factors for GBV are best described in an ecological model. In this model,
the ultimate goal is to stop violence before it begins. Prevention requires understanding the
factors that influence violence. This model considers the complex interplay between
individual, relationship, community, and societal factors. It allows us to address the factors
that put people at risk for experiencing or perpetrating violence. Prevention strategies
should include a continuum of activities that address multiple levels of the model. These
activities should be developmentally appropriate and conducted across a lifespan. This
approach is more likely to sustain prevention efforts over time than any single
intervention
27
.

26
http://ilga.org/ilga/static/uploads/files/2011/6/17/RESOLUTION%20L9rev1.pdf, accessed 29 August 2013
27
The Social-Ecological Model: A Framework for Prevention, accessed at
http://www.cdc.gov/violenceprevention/overview/social-ecologicalmodel.html, on 26 October 2013
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In recognition of the multiple causes of violence and the interaction of risk factors operating
at the individual, relationship, community and social level (Table 1). GBV is more prevalent
in situations of political, social and economic inequity and conflict; as well as in patriarchal
societies with rigid notions of manhood, weak institutions, poor access to information and
poor reinforcement of human rights; societies where violence is socially accepted as a
means to settle inter-personal disputes.

Risk Factors for violence based in the Ecological Model
28

Societal (broad
factors that reduce
inhibitions against
violence)
Community
(neighbourhood,
shools and
workplaces)
Relationship (with
family, intimate
partners and friends)
Individual (Personal
factors that influence
individual behaviour)
Poverty High unemployment Family dysfunction Gender, age and education
Economic, social and
gender inequalities
High population
density
Intergenerational
violence and poor
parenting practices
A family history of violence
Poor social security Social isolation of
females and family
Association with friends
who engage in violent or
delinquent behaviour
Witnessing GBV
Masculinity linked to
aggression and
dominance
Lack of information Low socio-economic
status
Victim of child abuse or
neglect
Weak legal and
criminal justice system
Inadequate victim care Socio-economic stress Lack of sufficient livelihood
and personal income
Perpetrators not
prosecuted
Schools and
workplaces not
addressing GBV
Friction over
womens empowerment
Unemployment
No legal rights for
victims
Weak community
sanctions against GBV
Family honour more
important than female
health and safety
Mental health and
behavioural problems
Social and cultural
norms support
violence
Poor safety in public
spaces
Alcohol and substance
abuse

Small fire arms Challenging traditional
gender roles
Prostitution
Conflict or post conflict Blaming the victim Refugee internally displaced
Internal displacement Violating of victim
confidentiality
Disabilities
Refugee camps Small Firearms ownership

Violence against LGBTI persons has escalated over the past few years, and a coordinated

28
Sources: Buvinic, Morrison and Shifter 1999; Heise and Garcia Moreno 2002; Jewkes, Sen and Garcia
Moreno 2002; Krug et al 2002; http://www.dcp2.org/pubs/DCP/40/Table/40.3 in GBV Health and the role of
the Health Sector, June 2009, accessed 24 October 2013

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national response to crimes perpetrated because of the victims sexual orientation, gender
identity or gender expression is required. The most pressing need is to understand this type
of crime in an attempt to deal with it effectively. Because crime targeting sexual orientation
or gender non-conformity is considered to be motivated by bias or hate, it requires an
analysis that goes beyond what is prescribed on paper. It enters the realm of belief systems,
perceptions, stereotypes and prejudices on behalf of the perpetrator and on behalf of civil
servants that provide access to justice for victims of these crimes.

7. IMPLEMENTATION TERRAIN
7.1 Composition of the NTT

The NTT Refers To The National Intervention Task Team On Gender- And Sexual Orientation-
Based Violence Perpetrated Against LGBTI Persons, instituted in 2011 by the then Deputy
Minister, Andries Nel. It is chaired by the Director General of Justice and Constitutional
Development, and the deputy chair is a representative from civil society.

SERVICE
PROVIDERS:
Contracted
Staff
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The NTT must be constituted by Government Departments and Institutions that participate
in crime intervention, including CSOs that specialise in issues related to LGBTI persons and
communities. The Justice Crime Prevention and Security Cluster Departments are key
representatives of the NTT, and their participation will be monitored through the
Development Committee (DevCom). These include:

o Department of Justice and Constitutional Development;
o National Prosecuting Authority of South Africa;
o Legal Aid South Africa;
o Department of Social Development;
o South African Police Service;
o Department of Health;
o Department of Basic Education;
o Department of Correctional Services;
o Government Communications and Information Systems;
o Department of Women, Children and People with Disabilities;
o Department of International Relations and Cooperation;
o South African Human Rights Commission;
o Commission for Gender Equality;
o Human Rights Watch (HRW);
o Corporate Governance and Traditional Affairs;
o Gay & Lesbian Memory in Action (GALA);
o OUT LGBT Well-Being (OUT);
o Forum for the Empowerment of Women (FEW);
o SANAC LGBTI Sector;
o Triangle Project (TP);
o Luleki Sizwe (LS);
o Gender DynamiX (GDX);
o Intersex South Africa;
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o Life Line;
o Foundation for Human Rights (FHR).

As the lead Department, the DoJ&CD is responsible for setting up the NTT.

The CSOs that have been selected by civil society to participate in the NTT may be revised by
LGBTI CSOs as needed, to ensure optimal representivity in terms of geographic location and
constituencies to be served by the NTT.

New members will be added if there are no objections by any other existing member,
present at the National Task Team Working Group meeting where the new member has
been nominated. National Task Team members remain obliged to report back to their
respective constituencies on the work undertaken by the National Task Team. The same
applies to government departments as well as chapter 9 institutions.

As shown in the above diagram, the Governance Structure has the following offices, bodies
and teams:

1.1. The Ministers Office
The Minister of Justice and Constitutional Development carries the ultimate authority over
all operations of the NTT. Upon the finalisation of the ToR, the NTT will submit the ToR, and
the National Intervention Strategy to the Minister for approval, via the office of the
Director-General: DoJ&CD. With effect from the date of the adoption of this ToR by the NTT,
the working group through the project office will submit quarterly reports to the Minister,
until the project objectives are achieved.

1.2. Programme Office
(a) The DoJ&CD must set up a Programme Office that must, at least, be constituted by
the following:
Programmes Manager;
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Programmes Coordinator;
Technical advisor
Administration Officer.
(b) As the LGBTI is a sector that requires specialisation, DoJ&CD is expected to provide
the following expertise and skills into the project to ease the execution of the
functions of the NTT:
LGBTI expertise- this may take the form of a technical advisor from civil
society appointed to the DoJ&CD for a specific period of time;
Project management skills;
Research skills;
Coordination skills;
Community capacity building skills;
Stakeholder management skills; and
Report writing skills.

In the event of a lack of dedicated capacity within the Chief Directorate: Constitutional
Development, DoJ&CD is expected to outsource these skills and expertise. This decision has
been taken to serve as a measure to address the inability of the members of the NTT to
dedicate full time services to the NTT. It is recognised that there is limited capacity in
research and knowledge management in DOJ&CD in order to create and maintain an
archival repository of the work of the NTT; this may be achieved through a partnership with
an LGBTI civil society organisation such as GALA, that has experience and skills in this area.

The landscape within which the NIS operates can be depicted as follows:

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Government or the Executive has the responsibility to respect, protect, promote and fulfil
the rights enshrined in the Bill of Rights, section 7(2) of the Constitution of South Africa. The
chapter 9 institutions, in this case the CGE and SAHRC, are independent entities that have a
developmental and oversight role to play in strengthening constitutional democracy
through their representation on the NTT and WG. The judiciary, also independent, and
operating in the criminal courts in this instance, have a responsibility to pass fair and just
sentences in all criminal cases, particularly LGBTI-related cases. As central tenets in the
landscape, the executive (government) the judiciary and the chapter 9 institutions foster
constitutional democracy. The Department of International Relations and Cooperation
(DIRCO) is a key international stakeholder that is represented in the NTT, as its role is to
promote and defend the rights of all citizens of South Africa, and in this instance, it is able to
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complete the loop in terms of international developments post the passing of Resolution
17/19 at the UN.

Civil Society inhabits one arm of a partnership in the NTT together with government and
representation from the CGE and SAHRC and an international NGO. The Civil Society Forum
is a structure that has not yet been set up. The role of this forum would be to enable
networking, communication and strengthening of the response of the civil society sector
with regard to SGBV and GBV matters. This Forum may then nominate civil society
representatives to serve on the NTT and other structures such as the National Council for
Gender-based Violence, a council located in the DCPWD and set up in 2012 to lead and
monitor the implementation of a 365 Days Plan of Action against gender-based violence for
Children and People with Disabilities, which is a high level, multi-sectoral national response
to the scourge of gender-based violence
29
.

Central to the NIS is the National Task Team. It reports to the Development Committee
(DevComm) of the DoJ&CD and thereafter decisions pass up to the JCPS DG Cluster,
followed by the JCPS Cluster, the Cabinet Committee of the JCPS and eventually to
Parliament of South Africa, where a committee in the National Assembly has oversight over
the cluster.

The NTT is the overarching body in the structure and it is responsible for the lifespan of the
NIS and the mechanisms for implementation and monitoring it across the board. A Working
Group reports to the NTT. The Working Group has a subcommittee, the Rapid Response
Team with the purpose of urgently attending to the pending cases in the criminal justice
system where crimes have been committed against LGBTI persons. Through the Working
Group of the NTT (located in the DoJ&CD), a list of pending cases has been collated for
prioritization by the Rapid Response Team, a permanent subgroup set up by the Working
Group of the NTT. Its composition was finalised as: DOJ&CD, SAPS and NPA and two CSOs.
Issues for further discussion include the nature of prioritisation and fast tracking of cases, as

29
SA to Launch Council for gender based violence, accessed at
http://www.ngopulse.org/newsflash/sa-launch-national-council-gender-based-violence on
28 October 2013
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well as third party reporting and a the identification of a nodal point for ease of reference.
One of the key challenges remains the identification of an LGBTI related case in the absence
of legislation that provides for this.

This Team will meet regularly as the RRT and government departments are to have
interdepartmental meetings in respect of the RRT, when necessitated. A streamlined
format is to be decided upon for the pending cases template. In this regard, the HCWG
Monitoring Tool as developed by civil society was again suggested as an ideal possibility.
The NTT, as it relates to the LGBTI sector specifically, can be depicted as follows:

The Programme Office is a management and oversight structure set up by the Working
Group of the NTT. This structure has to be set up and staffed in the near future.

In support of the aims of the NIS there are 27 full Thuthuzela Care Centres established and
25 partly established. The DoJ&CD has announced that 22 Sexual Offences Courts are to be
LGBTI-SPECIFIC ENVIRONMENT
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reintroduced by the end of the 2013/14 financial year, with specially trained officials and
equipment to reduce the chance of secondary trauma for victims. This goes a long way in
creating an enabling environment for addressing SGBV and GBV against LGBTI persons.

7.2 Implementation Proposals

Recent policy documents such as the National Policy Guidelines For Victim Empowerment,
Social Development (no date) provides evidence that there are existing structures such as
the Victim Empowerment Programme of the Department of Social Development through
which to potentially implement the NIS. These National Policy Guidelines provide a
framework for sound interdepartmental and intersectoral collaboration and for the
integration of effective institutional arrangements for a multi-pronged approach in
managing victim empowerment
30
.

Similarly, the Draft Policy, Specialisation of Services for Victims of Sexual Offences, Court
Services, Chief Directorate: Promotion of the Rights of Vulnerable groups (undated),
provides a supportive policy for victims of sexual offences, and thus for LGBTI persons who
are victims of sexual offences. With an expanded definition of sexual violence, the Act has
placed a significant degree of responsibility on government departments to deliver services,
based on human rights, which are responsive to challenges of socio-economic conditions of
beneficiaries and using an approach to service delivery that is integrated and coordinated.
The Act entrenches the inter-sectoral coordination of services, which reflects a major
departure from the fragmented service delivery that has been a feature of the political past.
In terms of this philosophy all policies and programmes must be aligned with a view to
developing effective monitoring and evaluation systems for measuring progress. The objects
of the Act emphasise therefore, an effective, responsive and sensitive criminal justice
system as it relates specifically to sexual offences.

It has been proposed that Instead of reinventing a new structure, the aims of the National
Task Team (NTT) should rather be articulated within an existing structure that has at its core

30
Foreword to national Policy Guidelines for Victim Empowerment, Dr Z.S.T. Skweyiya, Minister of Social
Development, no date
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the same set of deliverables as the NTT. As mentioned earlier, the Victim Empowerment
Programme is suggested as this vehicle, as service delivery within this structure cuts across a
range of relevant departments, and it has a history of being operational since 2009.

If the VEP is the vehicle for addressing the NIS, then the NTT has to formally engage in
consultations at DG and Cabinet level for approval.

In addition, there are numerous other forums and structures the JCPS Cluster has put in
place to help deal with gender-based and domestic violence, including the establishment of
the following framework and governance structures. These need to be investigated for
representation by the NTT.

JCPS Domestic Violence Task Team, chaired by DoJCD;
Inter-sectoral Steering Committee on Sexual Offences, located in Chief Directorate
Protection of Vulnerable Group chaired by DoJCD;
Regional Head Forums on all court service issues;
Interdepartmental Management Team on Sexual Offences, chaired by the NPA; and
The Victim Empowerment Management Forum, including victims of domestic and
other gender based violence, chaired by the National Department of Social
Development. They meet on a regular basis led by DSD.

Outside of the JCPS cluster, SANAC has a focus on Adult Sex Work in relation to LGBTI, and
there is an Interdepartmental Committee on Human Trafficking with DoJ&CD
representation.

8. THE NIS FRAMEWORK AND IMPLEMENTATION PLAN

8.1 Vision of the NTT
The vision of the NTT is a long-term one. It is to ensure safety and security for all South
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Africans. This vision is built upon the notion that there is freedom, equality and prosperity
for all South Africans in a society that is able to integrate and celebrate difference and
diversity in a society in which LGBTI persons feel their human rights are protected.
8.2 Aims

The NIS follows a multisectoral approach that calls for systemic JCPS cluster involvement. It
includes government and civil society and related organisations and addresses sexual
orientation-based violence and GBV against LGBTI persons through two programme areas,
namely Prevention and Response, to hate crimes against LGBTI persons, on a national level.

The ultimate aim is for national, regional and municipal policies, strategies, plans, budgets
and legislation to have an integrated, mainstreamed approach to eradicating SGBV and GBV.
To a large extent, the political will is evident in the setting up of a National Task Team
consisting of government, chapter 9 institutions, LGBTI civil society organisations and
international NGOs. Allocation of initial resources has also been attained with the support of
the Foundation for Human Rights as a partner-funder. The terrain has been set for a system
wide approach linking local, regional and international mechanisms to i) prevent, ii) respond
to and iii) implement and monitor LGBTI-related issues in a short-, medium- and long-term
intervention strategy.

8.3. Strategic Objectives

Through the roll-out of the National Intervention Strategy to address SGBV against LGBTI
persons (2013-2018), the NTT has the duty to:
1. Increase the finalisation of reported cases of SGBV against LGBTI persons by at least
50% by using a combination of available and new prevention methods (P1,
Prevention);
2. Develop a series of frameworks (research and development, communications,
education and training, and monitoring and evaluation) that will form the basis of
the Prevention Programme (P1, Prevention).
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3. Ensure an enabling and accessible legal framework that protects and promotes
human rights of LGBTI persons in order to further support the implementation of the
NIS through the promotion of a Hate Crimes Policy (P2, Responsive Systems);
4. Strengthen the capacity of partner organisations (LGBTI NGOs) in the NTT to enable
effective implementation of the NIS, by supporting the establishment of a Civil
Society Forum that meets quarterly to assess its response to the NIS, and by enabling
ongoing training and development for all roleplayers (P2, Responsive Systems);
5. Capacitate itself as a mechanism for effective implementation and monitoring of the
NIS through a Programme Office located in the DoJ&CD (P3, Operationalise
Implementation and Monitoring of NIS); and
6. Integrate the work of the NIS through the VEP (P3, Operationalise Implementation
and Monitoring of NIS)

There is clearly a need for an intersectoral approach to this strategy and this will necessitate
the need for the appointment of a technical specialist to set up the Programme Office
within the DoJ&CD as soon as possible over a period of 1 year.

9. INTERVENTION STRATEGY PRIORITIES AND PHASED APPROACH

This is a strategy to intervene in a situation that is typified by very high levels of sex- and
gender-based violence against LGBTI persons. The National Task Team in ensuring
implementation and monitoring of this NIS, will move from responding to an extreme set of
circumstances, to human rights more broadly.

At the foundation of each of the programmes is the need for attitude change. This needs to
be evident in behaviour change. When a complainant arrives at a SAPS station to make a
complaint that is LGBTI-related, there should be no room for secondary victimisation by
members of the SAPS, court staff, medical staff, or any other member of an institution that
is tasked to uphold the human rights and constitutional rights of a complainant.
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Although there is a great need to ensure that there is an attitude that is positive,
acknowledging and inclusive of LGBTI persons in all spheres of life, the LGBTI community
also has a leading role to play in making sure that positive change is promoted by the LGBTI
community and by encouraging a more prominent role for LGBTI role models. It should be
noted that the L-G-B-T-I community or sector is not a homogenous one, as issues relating to
transgender and intersex persons are visible in principle but not always in execution. For
the purposes of this strategy, there is sensitivity to diversity within LGBTI and it is important
therefore to ensure that reporting, case management and research activities capture not
only sexual orientation but also gender identity and variant sexual anatomy.

For ease of reference and for clear planning and measurement of the objectives, the NIS has
been divided into three Programmes. Prevention (P1) and Responsive Systems (P2) are not
mutually exclusive. The only distinction is that there is a short term focus on a rapid
response mechanism to deal with pending LGBTI related cases under P1. A series of
outcomes are raised in this programme, all of which have a short term, medium term and
long term lifespan. Whilst prioritising a crime prevention rapid response approach to
pending cases in P1, and engaging in public awareness and education through a television
ad campaign, P2 is strengthening capacity within the NTT, by reviewing and developing
frameworks for research and development, education and training and monitoring and
evaluation, whilst simultaneously building resource capacity of LGBTI NGOs and government
departments in the JCPS cluster.

The short term priorities are outlined by the Working Group of the NTT and all activities are
sponsored until March 2014. Thereafter a further process of detailing the next phase will
take place. As it stands currently, a phased approach now includes:
Phase 1: current to March 2014, (funded by FHR)
Phase 2: March 2014 to March 2018, and
Phase 3: March 2018 to 2030.

A long-term strategy will integrate the successes of the short-term goals and objectives of
all three programmes. While the annual performance plan for 2013-14 has funding, the
three- to five-year plan does not have funding yet. A review should be planned in Year 4 of
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each three- to five-year planning cycle to enable sufficient lead time to transition into the
next cycle. Planning and reporting will fall within the domain of the Programme Office
located in the Branch Constitutional Development.

9.1 P1: Prevention
Prevention is divided into prevention targeting the public (LGBTI persons, the broader
public, service providers), and institutional prevention targeting government departments,
agencies, chapter 9 institutions, international NGOs, national NGOs, international agencies.

LGBTI persons report problematic attitudes from members of society (including family and
friends) and institutions (such as schools, faith-based organisations) that lead to increased
vulnerability and marginalisation. Self identification or being identified by others as an LGBTI
person has been known to result in ridicule, discrimination, violence or even death.

There is evidence that similar attitudes of ridicule and discrimination are experienced by
LGBTI persons when they present at institutions such as police stations, courts and at clinics.
This victimisation is considered secondary victimisation, a form of compounded
victimisation following the incident the complainant is reporting. Secondary victimisation
often has a very negative effect on the victim, to the extent that the victim may even
withdraw the case.

9.1.1 The role of NGOs

In the current state of affairs, LGBTI NGOs are often called upon to ensure that victims of
LGBTI-related crime receive fair and unbiased treatment from the police, the courts and
clinics, often assisting the complainants in court and keeping track of the case. They further
assist the complainant by taking them for counselling, psychological support, and medical
support and doing regular family visits.

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Transgender organisations have pointed out that transgender persons are most at risk for
secondary victimisation, delays and prejudicial outcomes on the criminal justice system and
therefore raised the need to continuously build awareness around transgender issues.

9.1.2 Information and case-flow management

The aim of P1: Prevention is to ensure no secondary victimisation occurs in relation to LGBTI
persons, and that violence against LGBTI persons decreases.
One of the means to ensure that secondary victimisation does not occur, is through an
effective and efficient information and case-flow management system in the JCPS cluster,
that is being staffed by sensitised, caring individuals, who understand the impact of their
actions on a larger scale.
There is an institutional framework through DOJ&CD supporting a functional information
system to track delays in all cases, not only LGBTI-related cases. The system is able to draw
reports of crimes against children, for example, an integrated management system that
houses criminal offence information. As a case is opened with SAPS it enters the integrated
case management system (ICMS), followed by the opening of a docket. The NPA then
creates a charge sheet if the possibility of prosecution exists and the ICMS clerk places the
case on the court roll. Usually the case is postponed for further investigation, after which it
goes to trial. The outcome of the trial is put into the information system by the same clerk,
and the prosecutor can now feed the information back to the public. When the accused is
unknown the NPA must make a decision through the ICMS about the case.
Another of the key components to enable P1: Prevention in an effective way is a case flow
management system with an adequate data capturing tool for monitoring cases, with
disaggregated data according to specific sexual orientation and gender identity status; data
fields that capture sufficient information regarding court processes in order to establish
where and how cases get stuck in the system, e.g. reasons for postponements, adequacy
of victim support and court preparation. Even though the focus is on LGBTI-related cases
and solving for the lack of legislation to direct and guide areas such as codification,
identification of the nature of an LGBTI bias crime, and sensitisation to this type of crime,
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the outcome should ensure that the tool does not simply monitor selected cases for fast-
tracking but provides information to influence and improve the criminal justice system for
all cases. The idea is to develop a centralised mechanism to collate information and feed
this through to important role players in the CJS (SAPS, Courts, victim support) to improve
the functioning of the system as a whole.

At a Justice Crime Prevention Safety And Security (JCPS) Media Briefing Held 24 February
2013 the Minister of Justice and Constitutional Development, Hon Jeff Radebe, made the
following statement.

The Electronic Case Management System (ECMS) was introduced to ensure the
integration of the Criminal Justice System (CJS). The integration with SAPS systems
was established in early February 2013 to provide instant messaging and case details
to the process clerks, eliminating manual data capturing. The current ECMS solution
is being enhanced to a fully integrated solution that will enable the Prosecutors to
manage the electronic information relating to criminal cases that will include
electronic charge sheets and the ability to enrol cases electronically. In the process
this will automatically create an electronic court roll at the Department of Justice
and Constitutional Development. The ECMS will further make it possible to receive
real time case update information from the Department of Justice and Constitutional
Development and South African Police, keeping the prosecutor informed of
important case outcome information such as postponements dates and bail status.
The Integrated ECMS solution is planned to be rolled out to 20 more sites by the end
of 2013 and to additional 100 sites by the end of 2014.

Primarily, this programme P1: Prevention, focuses on the reduction and prevention of
prejudice-motivated crimes (Nel and Judge, 2008), and the systems that are required to
enable this. Prevention is characterised by the ability of the system to break down the
existing barriers and to create a preventative space in which to respond to a critical
situation swiftly by ensuring that LGBTI human rights are upheld through a crime prevention
strategy related to serious crimes perpetrated against LGBTI persons. The rapid response
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mechanism has the task of bringing together a highly skilled team to fast-track justice for
victims of SGBV against LGBTI persons. The short-term response here is to deal with early
intervention and rapid response.

9.1.3 Legislation and Policy Review

On another level, Prevention is also about the legislative and policy environment. The
following instruments are structured to intervene in LGBTI matters through policy
development:
The Domestic Violence Act
Victim Empowerment Policy guideline (DSD)
Victims Charter
Torture Convention
Optional Protocols on Children
Sexual Offences Policy
Child Justice Policy

Although the constitutional protection of sexual orientation and gender identity in principle
grants LGBTI persons freedom to realise and define their political, cultural, religious, social
and individual place in society, there are gaps that need urgent attention if the human rights
of LGBTI persons are to be guaranteed in law. The exercise of continuous review is
recommended in relation to: The Equality Act , PEPUDA , the Alteration of Sex Act, the
Human Trafficking Bill, the Child Protection Act, the Maintenance Act, the Sexual Offences
Amendment Act, and the Child Justice Act. Some considerations for review include:

There is dissonance between the Constitution and other legislation, such as sections
of PEPUDA and the Schools Act, which need to be addressed;
Legislation which criminalises certain intersecting key populations in LGBTI
population, e.g. sex workers, needs to be reviewed;
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The Domestic Violence Act has made presentations at SANAC and would like LGBTI
issues to be harnessed as there is a growing number of Domestic Violence cases
amongst LGBTI persons;
The Maintenance Act allows for spousal and parental responsibilities;
The Equality Act has given provisions by providing for equality courts; in addition,
there is need to assess whether social context training as provided for in PEPUDA, is
being considered at Equality Courts in order to support the needs of LGBTI victims;
The Sexual Offences Act drafted a framework on specialisation services for victims.
There is need to broaden the services enough to encompass all victims. The Sexual
Offences Amendment Act allows and creates specialised services on secondary
victimisation and vulnerability;
The intention of the Victim Empowerment Programme and Victims Charter is for
Restorative Justice. However, there is evidence that victims who have internalised
violence, may become perpetrators and this leads to a belief that there is a need for
healing;
All policy developments should continue to harness awareness of violence against
LGBTI persons (this includes policy regarding the rights of children and minors); and
Intersex organisations have reported the continuing practice of non-consensual
genital surgery on babies, children and young adults, without the persons consent.
This has been raised as a human rights and advocacy issue with regard to non-
consensual genital surgery. This is contextualised in Chapter 2, Section 12, of the
Constitution, which reads: Everyone has the right to bodily and psychological
integrity, which includes the right to make decisions concerning reproduction; to
security and control over their body; and not to be subjected to medical or scientific
experiments without their informed consent.
Special attention needs to be given to populations with increased vulnerability. The
following elements should be taken into consideration:
As sex work is considered a criminal activity, intersecting minorities such as LGBTI
sex workers are further predisposed to primary and secondary bias-violence.
A situation that increases vulnerability occurs when a perpetrator is allocated to
holding cells that are inappropriate to that persons gender.
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Regular occurrences of court delays, poor implementation of restraining orders, low
conviction rates and early parole provides an environment conducive to secondary
victimisation and witness attrition. This results in a perception that there is a lack of
justice for LGBTI persons as there are insufficient deterrents to secondary
victimisation within the Criminal Justice System.

In the Department of Education, school-bullying is often not addressed, goes unreported or
is tacitly approved when involving LGBTI learners. Furthermore, there is a lack of social
context understanding by other departments as legislation such as the Schools Act, that has
a regulation enforcing gendered school uniforms, is not aligned with the Constitution.
In the Department of Home Affairs, inefficiencies with issuing identity documents cause
problems for LGBTI persons, particularly transgender persons, often affecting these persons
livelihood and survival.
Broadly speaking, LGBTI persons are often uninformed of their rights, how to reduce risk of
violence, how to negotiate with the Criminal Justice System, where to report a crime to and
how to use existing resources and thus the Prevention programme needs to make inroads
on many levels to be effective.

9.2 P2: Responsive Systems
A justice system has to be robust to enable swift and effective resolution of a case. In order
for the state to respect, protect, promote and fulfil the rights in the Bill of Rights, each of
the stakeholders in the Criminal Justice System must know their roles and responsibilities
and they must act on these roles and responsibilities in a manner that also respects,
protects, promotes and fulfils the rights of LGBTI persons.

The defining characteristic of a responsive system is that it is able to respond effectively and
timeously to mete out justice. The NIS aims to provide the resources and infrastructure to
strengthen the response mechanism, by further using the successes achieved by the rapid
response mechanism and integrating best practices into workable, sustainable models that
are appropriate for all involved. A responsive system has in place systems that have been
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tried and tested, it has stakeholders that have the will to effect justice for all, it is staffed
with members that have adequate skills to deal with LGBTI-related matters and that have
the ability to advocate for the mainstreaming of LGBTI issues within broader frameworks,
based on evidence based research.

It has in place mechanisms such as effective case opening (SAPS and DoH), case tracking
(DoJ&CD and NPA, SAPS), and case finalisation and sentencing (DoJ&CD and DCS). As part of
this programme, and in the absence of policy, there is a possibility to develop support
mechanisms such as an interim form on the database for complainants that is inclusive of
LGBTI, and in order to manage tracking, there is the possibility of creating a dashboard that
is easily accessible and provides headline information on cases in the system. This should
enable ease of access to case tracking information for LGBTI NGOs.

In addition to mainstreaming research and development, legal research should also form
part of this programme, and a review of legislation, policies and guidelines that may have
relevance to LGBTI persons in the context of the mandate of the NTT, should be undertaken
periodically and with the appropriate level of skilled personnel. All policies on intimidation
of victims and witnesses, harassment, tampering, bribery, corruption and abuse by service
providers should explicitly mention such acts committed against LGBTI persons (Nel and
Judge, 2008).

Cross-cutting activities such as training, communication, public education and awareness
strategies have to take into account the current institutional systems and the needs of
various stakeholders on the NTT as both government and LGBTI civil society require ongoing
capacity building within their respective sectors, and as the members of a participatory
democracy structure, the NTT and Working Group. All stakeholders must have the requisite
education and skills to respond effectively. If stakeholders do not have these skills, targeted
training and or mentoring should be made possible, as provided by in the education and
training framework. As a start, members of the NTT and its structures require induction and
team strengthening interventions. All training interventions are to have a built in impact
assessment mechanism that enables measurement of impact.
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Civil Society, especially organised LGBTI, has been significantly weakened and has to be
strengthened. Funds should be used to build the strength, capacity and knowledge base of
the organised LGBTI sector, in contrast to employing short-term consultants to do the work.
In this way, it will be possible to strengthen the sector in a manner that is sustainable. In
terms of strengthening civil society, it was felt that the SAHRC and Civil Society should
partner in establishing a Civil society working group on LGBTI violence, that will undertake
amongst others, to monitor, address and expose incidents of violence against LGBTI persons
and to produce annual reports on the functioning and progress of the working group.
In terms of strengthening government, the DOJ&CD and Government Departments such as
SAPS, NPA, DoH, DSD, DoE, DHA, should have standing interdepartmental forum, meetings,
exhibitions and events.
All stakeholders must know their roles and there should be seamless integration at the
point of gathering information, through the process of justice, to the point of successfully
concluding a case. The holding to account of all roleplayers who clearly understand the
sequencing of their roles in a case management process is of the essence, as there also has
to be contingencies such as knowing who to turn to in the event that the chain has been
broken. One of the options that a complainant has is to make use of a 3
rd
party to report a
crime; however, a protocol regarding this option needs to developed in order to protect all
concerned.

The long term approach is to move from a victim centred approach towards a human rights
for LGBTI approach.

9.2.1 Capacity Building

Capacity building is a term that is used to refer to a various strengthening interventions that
may be applied to communities, organisations and individuals. Capacity building may take
the form of
training for existing staff;
the identification of appropriately skilled human resources;
financial resources;
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infrastructural resources; and
any other.

Capacity building sometimes refers to systems development
There is a need to build systems such as the information management systems (using
electronic databases), case management systems (forms to capture data at case opening
stage accurately, integration of SAPS case dockets and DoJ&CD court dockets) in all
programme areas to respond to immediate priorities (P1, Prevention).

Capacity building may refer to the development of management systems
In this instance, all programmes will be affected by building the capacity of government
through the Programme Office, to deal with this strategy (P3, Operationalising
Implementation and Monitoring of NIS). This will entail the acquisition of project
management and monitoring and evaluation skills, amongst others.

There is also an equally important need to build the capacity of civil society by supporting
the resourcing of an LGBTI civil society working group in a sustainable manner (P2,
Responsive Systems). This means that LGBTI civil society organisations have to engage as an
entity and strengthen its own systems of recordkeeping, communication and stakeholder
management.

Capacity building may refer to skills acquisition through a training and development
approach
This common understanding of capacity building requires the development of an
overarching framework for training and development against which the skills needs may be
plotted. This skills mapping exercise is to be led by a technical specialist through the
Programme Office (P3, Operationalising Implementation and Monitoring of the NIS), and it
will have strong delivery in P1 and P2. The development of this framework will need to take
place whilst there is simultaneous implementation of the short term objectives. A process of
integration will need to be managed over time. In addition, meticulous documentation of
the short term processes will enable integration into the longer term strategy.

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It must be noted that South Africa has a National Qualifications Framework (NQF Act No 67
of 2008) with the aim:
To create a single integrated national framework for learning achievements;
To facilitate access to, and mobility and progression within, education, training and
career paths;
To enhance the quality of education and training; and
To accelerate the redress of past unfair discrimination in education, training and
employment opportunities.

This framework is available to contain the competencies (knowledges, skills and
attributes/attitudes) in order to make a positive difference in crime intervention, and
prevention. Stakeholders have indicated that an Intersectoral Learning Programme should
be developed as part of learning outcomes relating to diversity, with a special focus on
sexual orientation and gender identity in the context of sexual orientation based violence
against LGBTI persons. This is a long term project that will evolve over time, with the aim of
becoming part of a comprehensive Human Rights Module, with a focus on LGBTI, in time.

A technical specialist will need to guide the NTT with regard to the benefits of registering
unit standards against learning outcomes, or using a short course approach. In time, a post
graduate qualification in diversity studies with an LGBTI focus can be developed and
registered with the relevant authority.

Training Provision within the JCPS cluster
Continued and intensive training of all role-players, including Clerks of the Court,
magistrates and police members, should feature prominently in an education and training
framework. In this regard, the following needs to be considered
31
:

Justice College has dedicated training programs for clerks and prosecutors.

31
Department Of Justice And Constitutional Development: Presentation To The Select Committee On Women,
Children And People With Disabilities: Implementation Of The Domestic Violence Act, 1998 (Act No 99 Of
1998): The Fight Against Gender-Based Violence, 15 Feb 2012
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The South African Judicial Education Institute is up and running to train the Judiciary
in matters relating to Domestic Violence.
The DoJ&CD, in partnership with NPA, also implements training on the Family Law
Practice Learnership: SAQA Qualification No. 50265, which carries 3 Unit Standards
for Domestic Violence having a total of 32 credits.
NPA also conducts multi-disciplinary training through the Integrated Domestic
Violence Training Programme. The Programme covers all the roles of stakeholders
within the DV sector.
SAPS has dedicated training programs relating to Gender based Violence and
Domestic Violence as well as Social context training.

Education and Training Programmes
All training on the implementation of the Victims Charter should include conscientisation,
building on laws and policies that recognise gender equality and sexual diversity, such as the
expanded definition of rape in the Sexual Offences Act; and recognition of same-sex
relationships in the context of the Domestic Violence Act, the National Family Policy and the
Civil Union Act, amongst others (Nel and Judge, 2008).

In this regard, education and training programmes for service providers should include
information related to LGBTI concerns and these should be mainstreamed into all aspects of
professional development. There is also a need to develop unit standards and qualifications
at the appropriate level specifying the required competencies (knowledge, skills, and
attitudes) that recognise and affirm diversity. Gender-sensitisation (as part of diversity
awareness) programmes should be integrated into the training of all state services providers
with an emphasis on SAPS, criminal justice officials, magistrates and prosecutors.

9.3 P3: Operationalising Implementation and Monitoring of the NIS in an
integrated manner
In order for the NIS to have traction, it needs to be resourced through identifying and filling
of posts. It also requires dedicated funding so that it is able to strengthen existing services,
and introduce those that are required.
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69

The NTT needs to mobilise resources as it oversees everything; it is located within the
strategy and it needs to align with existing bodies. NTT is the driver through its members.
The Working Group gets responses, these go the NTT for a mandate, there is feedback into
all departments (JCPS and DevComm) and these filter into government departments. It is
also responsible for ensuring the development of integrated frameworks (research and
development, training and education, communications, monitoring and evaluation) and for
monitoring and evaluating the outputs and outcomes against these frameworks. The NTT
may plan, implement, monitor and evaluate. It is the extension of participatory democracy
in action.

The ability of government and LGBTI civil society organisations to work together in a co-
operative manner is important. It is important to consider the impact that LGBTI civil society
has on government and the impact that government has on LGBTI civil society organisations
in order to forge a national identity on LGBTI. The LGBTI civil society organisations need to
set up a forum where LGBTI civil society organisations reflect on issues relating to itself as a
sector and to facilitate understanding of priorities at the NTT level. Specialised skills such as
archiving of resources may be undertaken by civil society organisations such as Gay and
Lesbian Memory in Action (GALA), on behalf of the NTT, and where civil society
organisations are experienced in mobilising resources, this skill should be harnessed in
service of the NTT.

Research, monitoring and evaluation are critical components of the NIS as there is a lack of
comprehensive information on awareness of LGBTI issues amongst the general public and
service providers within the criminal justice system. What further complexifies it is accessing
the perceptions regarding LGBTI persons that may become a contributing factor to violence
against LGBTI persons. Although the aim is to provide equal access and support to all within
the criminal justice system, there is a recognition that there are special needs of LGBTI
victims when they engage with the criminal justice system. These have to be researched,
and monitored on an ongoing basis so that impact may be measured over time.
The nodal point for research, implementation and monitoring and evaluation, is the
Programme Office, located in the Branch Constitutional Development, to ensure dedicated
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105 / 160 105 / 160 105 / 160

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70
expertise and to build an effective Task Team. Staffing requirements will include an
additional Director, as well as legal officers and administrators. It is envisaged that the
Programme Office will use a project management methodology in its approach.

9.3.1 Chapter 9 Institutions

Chapter 9 institutions are established as watchdog bodies that have oversight over
constitutional democracy. The SAHRC and CGE are relevant to the NIS, as they are
represented on the NTT and Working Group. These institutions have in their mandates,
reference to attainment, and this ensures that the NTT can hold the CGE and SAHRC
accountable for attainment of their mandate in this respect.

Chapter 9 institutions have a mandate to engage in Community dialogues as a means of
gathering information regarding their constitutional oversight role. The role of the CGE and
SAHRC in harnessing and initiating community dialogues in LGBTI-phobic, violence-enabling
communities would be most significant as part of both the Prevention and Responsive
Systems Programmes.
It is clear from the functions of the CGE and the SAHRC (listed below), that there is a role
that articulates with P3, as it has a natural synergy with the monitoring and oversight roles
of the Programme Office in the Branch Constitutional Development. In addition, a
community dialogue programme should be developed as part of a monitoring and
evaluation framework, so that it may be piloted, and documented.

Functions of South African Human Rights Commission
The South African Human Rights Commission must
promote respect for human rights and a culture of human rights;
promote the protection, development and attainment of human rights; and
monitor and assess the observance of human rights in the Republic.
The South African Human Rights Commission has the powers, as regulated by national
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106 / 160 106 / 160 106 / 160

_______________________________________________________________________________
71
legislation, necessary to perform its functions, including the power -
to investigate and to report on the observance of human rights;
to take steps to secure appropriate redress where human rights have been violated;
to carry out research; and
to educate.

Functions of Commission for Gender Equality
The Commission for Gender Equality must promote respect for gender equality and
the protection, development and attainment of gender equality.
The Commission for Gender Equality has the power, as regulated by national
legislation, necessary to perform its functions, including the power to monitor,
investigate, research, educate, lobby, advise and report on issues concerning
gender equality.
4
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4
107 / 160 107 / 160 107 / 160
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11. STRATEGIC FRAMEWORK MATRIX

In principle, the strategic framework is an integrated framework, with national
governments Outcome 3 in mind, namely to ensure that all the people of South Africa are
and feel safe. It is informed by the Constitutional mandate as defined in Chapter 2, 7(2) of
the Bill of Rights, which states the role of the State as follows: the state must respect,
promote, protect and fulfil the rights in the Bill of Rights
Respect relates to the way in which institutions integrate respect as a
fundamental right of an LGBTI person who is seeking fair and equal
access to justice.
Promote includes the need to promote LGBTI rights as human rights, and
awareness and education and training with regard to LGBTI matters.
Protect through protecting LGBTI concerns; legislation in this regard has been
applied for but is still pending.
Fulfil points to the understanding that there have been progressive measures
installed through several Acts to address violence against LGBTI persons.
The following Matrix has been developed to capture the Outcomes in relation to the three
programme areas over the Short to Medium Term (2013-2018)

Medium to Long Term Strategic Direction
The Strategic Plan 2013-2018 for the Department of Justice and Constitutional Development
has a number of outcomes of which the following were found to be relevant to the work of
the NTT as part of its medium to long-term approach.
Outcome
3 Improved Effectiveness of Support Services
4 Optimisation of ICT/Infrastructure
5 Enhanced Human resource capacity for service delivery
7 Improved coordination of JCPS cluster towards Delivery of Outcome 3
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77
8 Improved finalisation of activities in support of Outcome 3
9 Increased promotion and protection of vulnerable groups
11 Increased access to justice services by underserviced communities
17 Promotion of constitutional development and strengthening participatory
democracy to ensure respect for fundamental human rights

After the first 3 to 5 year strategy, long-term objectives (2018-2030) for the NTT could
include:
1. Foster dialogue between government, civil society and all other stakeholders in
relation to the country's response to SGBV against LGBTI persons. Starting in 2016,
this objective starts to be formalized as the systems in the NTT are established and
as a result, rapid response approaches in the criminal justice system are now
integrated and form part of mainstream crime prevention strategies.

2. Strengthen the governance, leadership and management of the response to SGBV
against LGBTI persons at national, provincial, district and local levels. This objective
is in the domain of building the capacity of all the NTT roleplayers over time P2,
Responsive Systems. The startup phase will be initiated early in the rollout of phase
1 (2013-2014) and will gain momentum in the next 3 -5 year cycle (2014-2018).
Managing programmes that are complex in nature, are multisectoral and that
require huge shifts in behaviour towards LGBTI persons, requires a cohort of very
special dedicated people with specialised skills and above all, tenacity. The pioneer
stage of the NIS needs to be documented as the kinds of skills that will be of great
value for future practitioners and for future programmes.

3. Strengthen the multi-sectoral response to SGBV against LGBTI persons as a
contribution to the overall social and economic development of South Africa and
create and strengthen partnerships for an expanded national response in South
Africa to SGBV against LGBTI persons among government agencies, non-
governmental organisations (NGOs), donors of funds, agencies of the United
Nations, the South African private sector and the LGBTI community.
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78

4. Mobilise resources domestically and internationally to finance the response to
SGBV against LGBTI persons. As the implementation of the programmes progress,
new and exciting opportunities will arise. This will require more resources in order to
build the networks, exchanges and information sharing capacity of South Africa, with
regard to LGBTI issues. Prevention and responsive systems are long term objectives,
and there will be iterative processes before the long term goals are reached. For this,
a long term view of resourcing will have to take into account multi-funding sources
as well as creative ways of raising and securing funds for programmes.

5. Ensure the monitoring of progress against the targets set in the NIS and ensure
tracking, monitoring and evaluation for the prevailing NIS. The programme:
Operationalising and Monitoring the NIS in an integrated manner, has at its core
management, resourcing and monitoring all the work done by the NIS on behalf of
the NTT. Hopefully, this strategy will be the breeding ground for developing skills
and for attracting new sets of skills. South Africa should aim at being the world
leader in addressing LGBTI issues. The Programme Office should have a pivotal role
to play in attracting international scholars, students and volunteers through the NIS
by 2030.

6. Cost the Hate Crimes Policy to enable rollout of required capacitation of all
roleplayers (when it becomes an Act). Lessons were learnt with Domestic Violence
legislation, in that the implementation costs of the Act were not fully considered
before the Act was passed. In order to avoid this pitfall, there is a need to plan for it
in advance.

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79
BIBLIOGRAPHY

Acts see South Africa
Constitution see South Africa.
Council of Europe. (2007). Gender Matters A manual on addressing gender-based violence
with young people.Accessed at http://eycb.coe.int/gendermatters/pdf/GMCH2.pdf
on 2 September 2013.
Currie, I. and Klaaren, J. (2001). The promotion of administrative justice act benchbook.
Johannesburg: Wits University Press.
Daily Maverick (2013). As Qwelane challenges Equality Act, government gets serious on
hate crimes, Daily Maverick, 10 November 2013, accessed at www.dailymaverick.co.za on
10 November 2013.
Department of Justice and Constitutional Development see South Africa. Department of
Justice and Constitutional Development.
GALA (2013). The Asiphephe Project: A New Initiative to Improve Safety and
Security for LGBTI People in South Africa, accessed at www.ambafrance-
rsa.org/IMG/pdf/GALA_Asiphephe_project.pdf on 10 November 2013.
Gross, S. (2009). Intersex and the Law. Mail and Guardian, 19 September 2012.
Accessed at http://mg.co.za/article/2009-09-19-intersex-and-the-law on 22 August
2013
Human Sciences Research Council. (2009). The Prize and the Price. Shaping Sexualities in
South Africa, edited by Melissa Steyn and Mikki van Zyl.
Human Rights Watch. (2011). Well Show You Youre a Woman: Violence and
Discrimination Against Black Lesbians and Transgender Men. Accessed at
http://www.hrw.org/sites/default/files/reports/southafrica1211.pdf on 2 September
2013.
Igbelina-Igbokwe, N. (2013). Contextualising Gender-based Violence within Patriarchy in
Nigeria. Pambazuka News, 632. Accessed at
http://www.pambazuka.org/en/category/features/87597/printon 20 August 2013.
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Kokopeli, G. and Lakey, G. (1995). More Power than We Want: Masculine Sexuality and
Violence. In ML Andersen and PH Collins (eds), Race, Class and Gender: An
Anthology. Stamford, CT: Cengage Learning
Nel, J.A. (2011). Understanding and responding to hate crime. Accessed at
http://www.hcwg.ipt.co.za/research.asp on 10 September 2013.
Nel, J and Judge, M. 2008. Exploring Homophobic Victimisation In Gauteng, South Africa:
Issues, Impacts And Responses, Acta Criminologica, 21 (3)

SANAC Womens Sector. (2012). SANACWS Press Release on escalating LGBT hate crimes.
Accessed at http://agi.ac.za/news/sanacws-press-release-escalating-lgbt-hate-
crimes on 10 September 2013.
South Africa. (1996). Constitution of the Republic of South Africa 1996.
South Africa. (2000). Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000.
South Africa. (2007). Sexual Offences Act 32 of 2007.
South Africa. (1998). Employment Equity Act 55 of 1998.
South Africa. (1995). Labour Relations Act 66 of 1995.
South Africa. (2006). Civil Unions Act 17 of 2006.
South Africa. (1977). Criminal Procedure Act 51 of 1977.
South Africa. (2007). Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007.
South Africa. (2000). Promotion of Administrative Justice Act 3 of 2000.
South Africa. Department of Justice and Constitutional Development. (Undated). Draft
Provisional Terms of Reference for National Intervention Task Team on Gender- and
Sexual Orientation-based Violence Perpetrated Against LGBTI Persons.
South Africa. Department of Justice and Constitutional Development. (2011). The Situational
Analysis of LGBTI in the Courts.
South Africa. Department of Social Development. (2009). National Policy Guidelines for
Victim Empowerment.
South African Human Rights Commission. (2012). South African Human Rights Commission
Equality Report. Commentaries on Equality: Race, Gender, Disability and LGBTI
Issues. Accessed at
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81
http://www.sahrc.org.za/home/21/files/Equality%20Report%2020%20Oct%202012%20Final
.pdf on 2 September 2013.
Steyn, M. (2010). Critical Diversity Literacy: Diversity Awareness In Twelve South African
Organisations. Innovative Issues and Approaches in Social Sciences, Vol.3, No.3
September 2010
UN General Assembly. (2011). Human rights, sexual orientation and gender identity. UN Doc
A/HRC/17/L.9/Rev.1. Accessed at
http://ilga.org/ilga/static/uploads/files/2011/6/17/RESOLUTION%20L9rev1.pdf on
29 August 2013
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82

APPENDIX A: Findings and Recommendations from Situational Analysis
Report, 2011

The Situational Analysis Report (2011), although limited to a study of LGBTI experiences in
South African Courts, makes recommendations to the actors in the JCPS cluster, largely
reflecting on similar issues. The following table represents the key findings and
recommendations from this report:

Finding Recommendation
1. Meaning of access to Justice according to
results of interviews held with senior court
staff
Court staff to acknowledge the existence of LGBTI
amongst court staff, and the public in general, and to
support the human and constitutional rights of LGBTI
persons in accordance with standards set in the court
system
2. Further rights for LGBTI persons (framed
through VCMS) according to results of
interviews held with senior court staff
a. Victims Charter needs to be promulgated in order
for compliance and standardisation at each court
b. Evaluate model of Victim Empowerment as it is
currently interpreted as a mechanistic response to
victim empowerment in the courts
c. Do targeted recruitment for LGBTI-identifying
persons as court preparation officers, as many non-
governmental agencies engage at this level with LGBTI
victims of crime
3. Court and case-flow management is not
efficient in terms of LGBTI cases as LGBTI
cases studied in depth for this report fall
outside the recognised standard for backlog
cases of six months for district courts, and
nine months for regional courts
a. Improve the global court and case-flow
management system by improving LGBTI court and
case-flow management

b. Engage in a broad-based discussion on codification
and classification of LGBTI-related cases, for purposes
of monitoring and evaluation
4. No LGBTI forums for DoJ&CD staff who
identify as LGBTI, or who identify as gender
non-conforming
Institute LGBTI forums at each court to improve
understanding of LGBTI at each court and thereby to
assist with LGBTI related cases, where required
5. Legislated social context training according to
PEPUDA 31(4) (5) (6) is not happening

a. PEPUDA prescribes that the Chief Justice must
develop and implement social context training for
Presiding Officers, and the DG must do the same for
clerks
b. An impact study of sensitisation and awareness
training undertaken by DoJ&CD staff is to be
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83
undertaken taking into account the recommendation
that all training include partnerships with agencies
whose core business is LGBTI
c.Introduce intersectoral social context training by
setting up cooperative mechanisms to compel
interdepartmental and stakeholder co-operation, with
the understanding that it is difficult to legislate co-
operation and collaboration
6. DoJ&CD leadership does not support the
human and constitutional rights of LGBTI
persons
DoJ&CD leadership needs to support the human and
constitutional rights of LGBTI persons
Take same bold approach of DIRCO at international
level and resolve matters on a national level and move
forward
7. No consequences for non-compliance Management to be accountable and to be held
responsible for non-compliance with regard to LGBTI
related matters
8. No impact on Legislation Legislation to be analysed with regard to impact on
LGBTI persons, e.g. Traditional Courts Bill, Women
Empowerment and Gender Equality Draft Bill, Notice
701 of 2012
9. Lack of a LGBTI repository and effective
documentation on LGBTI cases
a. Create a repository for case transcripts and legal
analyses relating to LGBTI cases as SA is the leading
country with regard to rights accorded to LGBTI
persons on the continent
b. Ensure that LGBTI related case and related
information is documented and protected and is
housed with DoJ&CD for easy access
10. Court staff experience high levels of stress as
a result of dealing with violent crime cases,
many of which are LGBTI related
Provide psychological counselling for staff as there are
high rates of very violent crimes that staff need to deal
with on a daily basis
11. Ineffective Mechanisms for communications
with the community
Create opportunities to have community
conversations, e.g. through existing chapter 9
structures such as community councils, or existing
community based structures
12. National Task Team to be reviewed Review the positive gains and the obstacles relating to
the current structure, and implement a long term
working solution to enable full ownership of the
strategies relating to LGBTI

In addition, the following issues were also extracted from the full Situational Analysis report
in order to inform the cornerstones of this strategy.

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84
Further Issues raised in Situational Analysis in Courts (2011)
32
PAGE
reference
in source
LGBTI issues remain far from consolidated on the African continent, though, and this
effort will need to be intensified going forward.
22
A number of organisations and bodies have called for the introduction of mechanisms
to deal with hate crimes.
25
To change the situation and to nurture the gains that have been made legally, what is
required is the strengthening of progressive civil society and the building of solidarity
networks of ,amongst others, religious leaders and health, legal and government
professionals.
30
The courts need to play a developmental and educational role before it can offer access
to justice for members of vulnerable groups
62
There should be equal access to justice rather than special treatment and this is a more
effective way to deal with secondary victimisation.
64
What is required is the perspective of substantive equality, where court staff embody
and reflect on equality for all, irrespective of their own personal beliefs. This
perspective places a victim within the context of the LGBTI community at the centre of
its model and addresses solutions from this position.
65
Institute LGBTI forums at each court to improve understanding of LGBTI at each court
and thereby to assist with LGBTI related cases, where required
65
Thuthuzela Care Centres - community outreach and centres should be marketed as a
24-hour service.

Specialist training or the appointment of specialists to deal with rape victims and other
victims of trauma is needed to ensure proper evidence gathering at primary level. The
Thuthuzela Care Centres are key to ensuring this.
79

79
There is a need to keep statistics so that cases can be tracked with regard to case
finalisation as well as turnaround times.
68
It was felt that there is a need to codify the crimes committed against vulnerable
groups such as targeted rapes and murder of lesbians.
69
IPID was mentioned as requiring more sensitisation training 70
A clear outline of safety measures for LGBTI victims and prisoners by DCS is needed to
enable the following:
Disclosure and self-identifying
Safe cells and rooms
Suicide watch
Restorative justice processes
70
There is a strong belief that education can make people more sensitive and respectful
of difference.
71
It was noted that gender stereotypes need to be challenged at home and at work. In
the larger society, it was felt that in order to address prejudice and discrimination
against LGBTI persons, there is a need for more research into the school curriculum to
teach about LGBTI and diversity in schools and universities. Similarly it was felt that
LGBTI should be embedded in the life orientation curriculum at schools.
71
Immediate, on-going and effective sensitisation and diversity training for SAPS to
prevent secondary victimisation and fair prosecution.
71
There is need for more awareness education to alter behaviour especially in the
areas of stigma, bias and discrimination.
All awareness, sensitisation and social context training must be continuous and in
line with the Victim Empowerment Charter minimum standards.
NGOs believe that LGBTI social context training should happen with LGBTI persons
71

71

32
The Situational Analysis of LGBTI in the Courts (DoJ&CD, 2011)
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85
involved.
72
Monitoring and accountability needs to be built into the system 72
The transformation of lower courts is considered a priority by government. 73
Use proposed tool (Experience Chart) that could assist in identifying some of the critical
bottlenecks that may result in the miscarriage of justice.

Proper and efficient investigation should become a professional requirement and there
should be consequences for non-compliance.
There is no need for special treatment for LGBTI victims if investigations are conducted
efficiently, evidence is gathered effectively and prosecutions rest squarely on the cases
being constructed on the viability of this evidence.
78
Creation of safe spaces for victims of violent and gender-based crime is needed.

79
Correct procedures and the appointment of sensitised officials should become a
specific requirement for remaining in frontline and top decision-making jobs.

79

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86

APPENDIX B: A Case Study in Active Citizenship

A case in point is the one in which Sally Gross, an intersex activist connected to the
organisation Intersex South Africa, identified a potential gap in the legislation where direct
reference to intersex was omitted. This left the law open to interpretation, and is addressed
in an article by Gross in the M&G.
33

According to Gross, the promulgation of the Judicial Matters Amendment Act of 2005,
which inserted two definitions into section 1 of the Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA), closed a dangerous loophole and guaranteed
protection to intersex persons. It was necessary because an American federal court had
found that the firing of a woman because she was born intersex did not breach a
Pennsylvania equality statute similar to the South African Equality Clause. The statute
forbade discrimination on grounds of sex. The court argued that sex, undefined in the
statute, was to be understood in its ordinary dictionary sense. So it referred to the state of
being male and not female or female and not male, therefore excluding intersex
identities.
The South African Equality Clause rules discrimination on certain listed grounds, including
sex, unfair unless and until proved fair, but the term sex was not defined in statute. The
dictionary definition of sexmale, female and nothing elsetherefore governed its
interpretation before the introduction of appropriate definitions into PEPUDA. Human
being and *natural+ person are also defined as having a sex in exclusively binary terms.
The intersexed, somewhere in between, could thus be argued to be neither human beings
nor natural persons. Adding two definitionssex includes intersex and intersex means
a congenital sexual differentiation which is atypical, to whatever degreewould make
intersex part of the meaning of sex in the Equality Clause. And so, in January 2006, the
definitions were added to PEPUDA and became law via the Judicial Matters Amendment
Act, 2005.

33
http://mg.co.za/article/2009-09-19-intersex-and-the-law, 19 Sep 2009, accessed on 22 August 2013
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87
This is a good example of civil society activism and active citizenship, in which the
transformative nature of the Constitution is demonstrated.

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5. The Role of Chapter Nine Institutions in Promoting the rights of LGBTI Persons SAHRC Presentation: Karam Singh
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6
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154 / 160 154 / 160 154 / 160
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6
6
6
155 / 160 155 / 160 155 / 160
6
6
6

1

Promoting and protecting the Rights of the LGBTI Persons
Vernet Napo: Senior Researcher: CGE

Introduction:

Gender equality is a constitutional imperative in South Africa, and as programmes for
promoting gender mainstreaming gather pace, the public service is unavoidably becoming
a central mechanism for government to fulfil this imperative. Over the past decade, the
country has not only introduced, promulgated and adopted a bewildering array of
national policies, strategies and legislative frameworks but also international protocols,
declarations and conventions aimed at promoting, protecting and developing gender
equality.

The need to monitor and maintain effective oversight of the implementation of these
legislative frameworks, policies, programmes, strategies as well as international protocols,
declarations and conventions rests primarily with the Commission for Gender Equality
(CGE).

The Commission for Gender Equality (CGE) was established in terms of Chapter 9 of
the Constitution of the Republic of South Africa, Act 108 of 1996. One of its governing
principles is that it is independent, and subject only to the law, and must be impartial and
must exercise its powers and perform its functions without fear, favour or prejudice. It is
accountable to the National assembly and must report on its activities and performance
of its function to the Assembly at least once a year.

Section 187 clearly outlines the mandate of the CGE which states that the Commission:
1) Must promote respect for gender equality and the protection, development and
attainment of gender equality.
2) It has the powers as regulated by national legislation necessary to perform its
function, including the powers to monitor, investigate, research, educate, lobby,
advise and report on issues concerning gender equality

The functions of the CGE are clearly articulated in the Commission for Gender Equality
Act no 39 of 1996 (CGE Act). Even though these are extensive, they can be grouped
into four broad categories. The first of them is a monitoring function, which broadly
incorporates the evaluation of policies and practices of both public and private bodies,
government compliance with international agreements, legislative review and law reform,
as well as research. The second is an investigative function of any gender-related issue or
complaints received from the public or of the CGEs own accord. The third is a public
education and information function to raise awareness not only on issues linked to the
promotion of gender equality but also about the activities and services provided by the
CGE. Lastly, the fourth function is one of liaison with a range of like-minded organisations to
promote the object of the CGE. These functions are fulfilled by three departments,
namely the Legal, Research and Public Education and Information (PEI) departments.
156 / 160 156 / 160 156 / 160

2

1.1. Evaluation of policies and practices of both public and private bodies
The CGEs most important function is to act as a watchdog for gender equality, and
hence of democracy. This role extends beyond the state to the private sector and civil
society. Section 11(1)(a) of the CGE Act explicitly authorizes the CGE to monitor and
to evaluate the policies and practices of all organs of state at any level, statutory bodies or
functionaries, public bodies and authorities, and private businesses, enterprises and
institutions in order to promote gender equality
1
.

The monitoring function of the CGE is expanded in the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA), Act 4 of 2000. This is also known
as the Equality Act. Section 21(2) (m) of the Equality Act provides for the CGE to
receive regular progress reports as to how a person found guilty of unfair discrimination
is implementing the courts order. This delegation recognizes the particular expertise of
the CGE and reduces the burden of supervisory jurisdiction on a court. Even though
the CGE has no power to enforce a court order, it has the power to refer a matter back
to the court.

In addition to being tasked with the monitoring of national policies and practices across
all organs of society, including the components of the National Gender Machinery,
Section 11(1)(h) of the CGE Act requires the CGE to monitor compliance with relevant
international instruments relating to the object of the commission. These include the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), the Beijing Declaration and Platform of Action (1995) (BPA), all of which
have been ratified by the South African government. In 2010/ 11 the CGE produced
monitoring reports in relation to CEDAW, BPA and the Millennium Development
Goals (MDGS)

The CGE has partnered with the Department of Justice and Constitutional Development
in several initiatives and the most recent partnership has been in the Interdepartmental
Task Team of the Victims Charter. The CGE was tasked with the monitoring of the
Five-Year National Implementation Plan on Victims of Crime (2006-2011) and three
reports have been produced covering two departments per annum. The CGE will
therefore continue to use the two above-mentioned monitoring functions by partnering
with civil society organizations to monitor and evaluate the efficacy of governments
LGBTI programme as stipulated in the DoJ & CD National Interim Task Team Strategy.

1
Section 11(1) (a) of the CGE Act, Act 39 of 1996.
6
6
6
157 / 160 157 / 160 157 / 160

3

1.2. Monitoring responsibilities arising from the implementation of the
Equality Act

The CGEs monitoring role under the Equality Act also extends to powers to request
any part of the state or any person to supply information on any measures relating to
the achievement of equality, including , where appropriate, on legislative and executive
action and compliance with legislation, codes of practice and programmes
2
.

Finally, the Equality Act permits the CGE to monitor cases that are adjudicated under
the Equality Act
3
, by authorizing the CGE to request from the Justice Department, inter
alia, regular reports regarding the number of cases and the nature and outcome thereof.
The CGE through its legal department has monitored the equality courts. The CGE will
continue to perform this task with regard to any LGBTI-related cases.

Another way in which the CGE has sought to give substance to its monitoring mandate
has been through its research function. Section 11(1) (j) of the CGE Act states that the
CGE may conduct research or cause research to be conducted to further the object of
the Commission and several studies have been produced in Education; land; Water and
national and local government elections and political parties.

1.3. The CGEs education function
Section 11(b) of the CGE Act requires the CGE to develop, manage or conduct public
information and education programmes to foster public understanding of matters linked
to the promotion of gender equality, as well as the role and activities of the CGE. Over
the years, this function has taken a number of forms ranging from education and
information workshops and extensive use of the media advocacy, dialogues, information
sessions, conferences, campaigns and workshops at both national and provincial levels,
particularly aimed at the most vulnerable groupings in society.

The CGEs mandate goes beyond the protection of individual rights and incorporates an
obligation to change societal attitudes and practices. During the Womens month in
August 2013 the CGE worked in provinces with the LGBTI organizations to sensitize
communities about the rights of the LGBTI people and the discrimination they
experience in some communities. This invaluable task is captured in the National Interim
Strategy for addressing violence against the LGBTI persons; and the CGE will continue
to partner with civil society organizations that specialize in addressing discrimination of
the LGBTI persons by sensitizing the South African communities about the rights of the
LGBTI persons.

2
Section 25(3) (2) of the Equality Act.
3
Section 25(3) (c) of the Equality Act.
6
6
6
158 / 160 158 / 160 158 / 160

4

1.4. The CGEs investigative function
The CGEs investigative function is carried out by the legal department. It could be said
to be one of the key functions that differentiates the CGE from other civil society
organisations and government departments who are also involved in the promotion of
gender equality. In particular, the CGE Act not only accords the CGE a very broad
investigative function, but also substantial powers to enhance its effectiveness in carrying
out this task.

Section 11(e) of the CGE Act gives the CGE the power to investigate any gender-
related issues of its own accord or on receipt of a complaint. Section 20(1) of PEPUDA
also gives the CGE the power to act on behalf of another person who cannot act in
their own name In other words, the CGE has the power to investigate any issue,
regardless of whether it arises out of its monitoring activities or whether it is the product
of a specific gender-related complaint by a member of the public. The CGE Act further
stipulates that the CGE should try, as far as possible; to resolve any dispute, rectify any
act or omission by mediation, conciliation or negotiation. The Act nonetheless gives the
CGE the power to refer any matter, at any stage, to the SAHRC, the Public Protector or
any other authority, depending on which one is appropriate to a particular case. This is
reiterated by Section 20 (1) (e) of PEPUDA.

The majority of individual complaints received by the CGE relate to maintenance issues,
family issues (divorce and custody), and domestic and other forms of gender-based
violence. Other complaints received vary from succession, labour, restitution, custody
and unlawful eviction it received

Even though the CGE Act does not grant the CGE the express power to litigate, as the
SAHRC and the Public Protector do, the CGE has asserted its prerogative to do so.
However, not by initiating cases, but by lending support to, or participating in, cases that
raise important gender issues. The CGE intervenes primarily in those cases that relate to
systemic gender inequality or the rights of disadvantaged groups of women. This
function relates to issues of the LGBTI community as well.

1.5. Establishing relations with like-minded organisations
Sections 11 (f) and (g) of the CGE Act call on the CGE not only to maintain a close
working relationship with institutions, bodies, or authorities with similar objectives to the
Commission such as the SAHRC, IEC, the Public Protector, but also, and more
importantly, to liaise and interact with any organisation which actively promotes gender
equality and other sectors of civil society to further the object of the Commission. This
function will be performed by all three CGE departments to ensure integration and
collaboration of activities.

6
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159 / 160 159 / 160 159 / 160

5

Conclusion:

Gender-based work cannot be eradicated overnight. It is a battle that cannot be fought in
isolation; hence the CGE welcomes the move taken by the DOJ&CD by establishing the
National Task Team and the Working Group in its quest to eradicate discrimination
against the LGBTI people; and will endeavour to work within those structures at
implementation level, namely the nine provincial offices to ensure that their rights are
entrenched.
6
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160 / 160 160 / 160 160 / 160

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