South Africa

Summary

South Africa was the first country in Africa to legalise same sex marriage and was also the first in the world to provide explicit protection to LGBT persons in its Constitution. Despite the decriminalization and legal recognition of same-sex relationships, LGBT South Africans continue to suffer discrimination and demonization at the hands of the community. In rural South Africa, black lesbians and transgender men are particularly vulnerable to homophobic violence and hate crimes.

Legal Provisions

Prior to South Africa’s democratic transition in 1994, sexual intercourse between men was outlawed as the common law crimes of “sodomy” and “unnatural offences”. Subsequently, same-sex sexual activity has been decriminalized in a series of court decisions and legislative amendments (see below).

Following the Constitutional Court decision of Minister of Home Affairs and Another v Fourie and Another (see below) the Civil Union Act 17 of 2006 was passed. This Act confers all the benefits of marriage on gay and lesbian couples, even though it does not call the union a “marriage”.

Recognition of same-sex relationships

Same-sex marriage has been recognised since 2006.

Adoption

Same-sex couples may legally adopt children.

Military service

Gays and lesbians are permitted to serve openly in the military.

Legal change of gender

The Alteration of Sex Description and Sex Act 49 of 2003 was enacted to enable any intersexed person, or a person whose sexual characteristics have been altered by surgical or medical treatment, to apply to the Department of Home Affairs for the alteration of the sex description on his or her birth certificate.

Discrimination

The South African Constitution prohibits discrimination on specified grounds, including sexual orientation, in section 9. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was enacted to give effect to this section and reiterates sexual orientation as a prohibited ground for discrimination.

The Employment Equity Act 55 of 1998 protects people from labour discrimination based on sexual orientation.

Legal Decisions

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

In this case, the Constitutional Court confirmed an order by the Witwatersrand High Court that the common law offence of sodomy, the inclusion of sodomy in schedules to certain Acts of Parliament, and a section of the Sexual Offences Act which prohibits sexual conduct between men in certain circumstances are constitutionally invalid.

The Court held that offences which are aimed at prohibiting sexual intimacy between gay men, violate the right to equality in that they unfairly discriminate against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination. No legitimate reason could be found why the rights of gay men should be limited. The offences criminalise private conduct between consenting adults which causes no harm to anyone else.  This intrusion on the innermost sphere of human life was also held to violate the constitutional rights to privacy and dignity.

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 CC

This case concerned provisions of South African immigration laws which only allowed wives or husbands of South African residents to obtain rights to immigrate to South Africa. Thus, the legislation excluded same-sex partners of South African citizens from obtaining the same benefits.

This case was the first step in establishing that same-sex life partners ought to be afforded equivalent benefits to those granted to heterosexual married couples. The government opposed this application in the High Court but withdrew its opposition when the matter reached the Constitutional Court.

The Constitutional Court unanimously declared that the law was invalid and read the words “or same-sex life partner” into the legislation after the word “spouse”.

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

In this case, a lesbian High Court judge challenged the constitutional validity of statutes and regulations providing that judges’ spouses could obtain pension and other benefits from the state, thereby excluding life partners of gay and lesbian judges from these benefits. The Constitutional Court struck down the provisions and read in the words “or same-sex life partner” where necessary to remedy the defect.

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

In this case the statutory prohibition against gay and lesbian couples jointly adopting children was successfully challenged. Up to that point children could only be adopted by married persons in terms of the (now repealed) Child Care Act and Guardianship Act.

The applicants were partners in a longstanding lesbian relationship and wished to adopt two children. Due to the prohibitive legislation only one of the applicants could become the adoptive parent of the children. Upon an application to the High Court, it was held that the two statutes discriminated on the grounds of sexual orientation and marital status.

The government made no objection to the case and the declaration of constitutional invalidity was unanimously confirmed by the Constitutional Court.

J v Director-General, Department of Home Affairs 2003 (5) SA 621 CC

In this case a lesbian couple undergoing artificial insemination challenged legislation that did not provide for registration of persons in permanent same-sex life partnerships as parents of children conceived. Regulations made in terms of the Births and Deaths Registration Act of 1992 only provided for the registration of one male and one female parent. The Constitutional Court unanimously declared the legislation unconstitutional.

Du Plessis v Road Accident Fund 2004 (1) SA 359 SCA

In this case, one of the partners in a same-sex union was killed in a motor vehicle accident. The two men were in a stable relationship for more than ten years and had gone through a ceremony which would have been a wedding, had South African law recognised same-sex marriages at that time. At the time of his death, the deceased had been maintaining the plaintiff financially for five years.

The Supreme Court of Appeal held that the inference can be drawn that the plaintiff and the deceased had incurred reciprocal duties of support. The Court developed the common law of delict by extending the spouse’s action for loss of support to partners in same-sex permanent relationships which are similar to marriage.

Minister of Home Affairs v Fourie2006 (1) SA 524 CC

The Supreme Court of Appeal upheld a lesbian couple’s attack on the common law definition of marriage, which excluded same-sex marriages. The government appealed this decision. The Gay and Lesbian Equality Project lodged a separate application in the High Court attacking provisions of the Marriage Act which prohibited same-sex marriages.

Despite the government’s appeal and intervention by Christian groups, the Constitutional Court unanimously held that it was unconstitutional for the common law and legislation to prohibit same-sex marriage.The order of invalidity was suspended for 12 months in order to allow Parliament to correct the defect.

Strydom v NederduitseGereformeerdeGemeenteMoreleta Park(2009) 30 ILJ 868 (EqC)

The applicant, Mr Strydom, was appointed as an independent contractor to teach music to students at the arts academy of a Dutch Reformed Church (the respondent). The Church terminated Mr Strydom’s services when it was discovered that he was in a same-sex relationship. Mr Strydom instituted proceedings in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (because he was not a permanent employee proceedings could not be instituted in terms of the Labour Relations Act or the Employment Equity Act).

The Church relied on the Constitutional right to freedom of religion in its attempt to justify the discrimination. It argued that MrStrydom, in his role as a spiritual leader, was expected to lead an exemplary Christian lifestyle. The Equality Court found that the Church had unfairly discriminated against Mr Strydom. It held that there was no evidence that MrStrydom, as a music teacher, was a “spiritual leader” in the Church. It also held that MrStrydom was distanced from the Church in that he was neither an employee nor a member of the congregation.

The Court ordered the Church to apologise to MrStrydom and to pay him an amount in damages for emotional suffering and the balance owing on his contract.

Important Events

1969: The Immorality Act is amended to introduce the “men at a party” clause, section 20A. This clause criminalized all sexual acts committed between men “at a party”. This amendment follows the police raid of a gay party attended by 300 people in Johannesburg in 1966. The amendment also raised the age for consent for male homosexual sex from 16 to 19, even though “sodomy” and “unnatural acts” were criminalized.

1982: The first major gay association, Gay Association of South Africa (GASA) is launched. GASA was a predominantly white organization and was explicitly apolitical.

1987: GASA is expelled from the International Gay and Lesbian Association for refusing to condemn Apartheid.

1988: South Africa’s first national black LGBTI organization, Gay and Lesbian Association of the Witwatersrand (GLOW) was founded.

1988: The Immorality Act is amended to impose an age of consent of 19 years for lesbian sex, which had previously been unregulated by law.

1990: The first South African gay pride parade is held in Johannesburg.

27 April 1994: Apartheid ends and the Interim Constitution, explicitly prohibiting discrimination on the basis of sexual orientation, comes into force.Gay rights organisations and activists, such as Justice Edwin Cameron, were closely engaged in efforts to have non-discrimantion on the grounds of sexual orientation included in the new constitution.The Final Constitution, which contains the same protections, came into force in 1997.

1998: The criminalization of “sodomy” and “unnatural sexual acts” was declared constitutionally invalid.

1998: Gay activist and freedom fighter, Simon Nkoli, dies of AIDS-related complications. Nkoliworked with Nelson Mandela during and the African National Congress (ANC) to end Apartheid. His visibility in the anti-Apartheid struggle helped the gay movement to gain support from the ruling party.Nkoli cofounded GLOW, the Township AIDS Project and Gay Men’s Health Forum.

2004: The Alteration of Sex and Sex Description and Sex Status Act comes into force, allowing transsexual and intersex people to change their legally-recognised sex.

2005: The Constitutional Court rules that the common law definition of marriage and the Marriage Act are unconstitutional because they do not allow same-sex couples to marry (Fourie case). The order was suspended for one year in order to allow Parliament to rectify the constitutional invalidity.

2006: The Civil Union Act is signed into law as a consequence of the Constitutional Court’s judgment in Fourie.The first South African gay wedding takes place just a few days later.

2007:  The Criminal Law (Sexual Offences and Related Matters) Amendment Act came into force. Prior to the enactment of this Act, the age of consent for homosexual sex was 19 but only 16 for heterosexual sex.

2009: Former national football star, Eudy Simelane, was gang-raped and murdered in a park outside of Johannesburg. Her death turned the spotlight on the crisis homophobic violence that lesbians in townships and rural parts South Africa face.One of her murderers were sentenced to life imprisonment.

2010: A gay pride flag of South Africa is launched in Cape Town.

March 2011: A National Task Team was established to address the crisis of hate crimes against LGBT persons.

June 2011: South Africa initiated a resolution in the United Nations Human Rights Council requesting that the United Nations High Commissioner for Human Rights draft a report detailing the situation of LGBTI citizens worldwide.

2012: A privately owned guest house refused to host the wedding of a lesbian couple. The couple brought a case to theAlberton Magistrates’ Court, sitting as an Equality Court, under the Promotion of Equality and Prevention of Unfair Discrimination Act. The Court accepted an agreement between the parties and ruled that the guest house must pay a substantial amount to an organization working in the field of LGBT rights in South Africa.

2013: For the first time in history, a gay couple got married in a traditional African ceremony.

2014: The South African National Blood Service implemented a new policy which is no longer discriminatory against sexually active gay men. Previously, men who have sex with men were viewed as having a higher risk of being infected with HIV/Aids and were only allowed to donate blood if they had been celibate for six months or longer. The new policy favours people in monogamous relationships, regardless of their sexuality.

2014: President Jacob Zuma appoints South Africa’s first openly gay cabinet minister.

Civil Society Organisations Working in LGBT Issues

Gay and Lesbian Archives (GALA)

Physical address: 706 University Corner, University of Witwatersrand, Braamfontein, Johannesburg

Tel: +2711 717 4239

Fax: +2711 717 1783

Email: info@gala.co.za

Website: http://www.gala.co.za/

Gay and Lesbian Network (GLN)

Physical address: 187A Burger Street, Pietermaritzburg

Tel: +2733 342 6165/ +2733 342 6500

Website: www.gaylesbiankzn.org

Health4Men

Website: www.health4men.co.za

Cape Town

Physical address: 1st Floor, 24 Napier Street, De Waterkant

Tel: +2721 421 6127

Email: info@health4men.co.za

Chiawelo Clinic (Soweto)

Physical address: 1742 Rihlamphu Street

Tel: +2771 150 1750

Email: chiawelo@anovahealth.co.za

Yeoville Clinic (Johannesburg)

Physical address: 1219 Kenmere Street (corner of Kenmere and Hopkins)

Tel: +2772 654 0816

Email: yeoville@anovahealth.co.za

Zola Clinic (Soweto)

Physical address: Zola Community Centre, Bendile Road

Tel: +2771 286 3762

Email: zola@anovahealth.co.za

Intersex South Africa

Physical address: 19 Anson Street, Observatory, Cape Town

Tel: +27 21 447 3803

Website:http://www.intersex.org.za/index.php/en/contact-us

Lesbian and Gay Equality Project (LEGP)

Physical address: 36 Grafton Road, Yeoville, Johannesburg

Tel: +2711 487 3810/1

Email: info@equality.org.za

Website: www.equality.org.za

Facebook:https://www.facebook.com/pages/The-Equality-Project/100764313312586

OUT

Physical address: 1081 Pretorius Steet, Hatfield, Pretoria

Tel: +2712 430 3272

Fax: +2712 3342 2700

Email: neld@out.org.za

Website:http://www.out.org.za/

Facebook: https://www.facebook.com/outlgbt

Parents, Families and Friends of Lesbians and Gays (PFLAG)

Durban

Tel: +27847002536

Email: samelovefamilies@gmail.com

Facebook: https://www.facebook.com/pages/Same-Love-Support-Group-Toti/240468179493101

Gauteng

Email: rudenedupreez@gmail.com

Website: http://glfamilies.blogspot.com

Twitter: http://twitter.com/#!/GLFAMILIES

SA Gay and Lesbian Alliance against Defamation

Facebook: https://www.facebook.com/SAGLAAD

Triangle Project

Helpline: +2721 712 6699

Website: http://thetriangleproject.org/about/more-about-triangle-project/

Facebook: https://www.facebook.com/pages/Triangle-Project/92804147303

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