CQ No.

38 December

11/21/11

9:47 AM

Page 37

SOUTH AFRICA
A HOME FOR
ALL?
The need for hate crime
legislation
Duncan Breen* and Juan A. Nel**
duncancbreen@gmail.com
Nelja@unisa.ac.za

The South African government is currently developing legislation on hate crimes. This follows repeated
calls by civil society for an appropriate response to the apparent scourge of hate and bias-motivated
crimes that tarnish the image of South Africa as a rainbow nation. This article is aimed at informing
related policy debates and provides discussion of violence targeted at foreign nationals and at those who
are (or perceived to be) sexual minorities and/or gender non-conforming. This will give an indication of
the trends and challenges that the proposed legislation and policy frameworks will need to address.
South Africas Constitution outlines the vision of
an equality-based society and in the preamble
notes that South Africa belongs to all who live in
it, united in our diversity.1 Despite these
provisions, a range of civil society organisations
(CSOs), human rights actors and academics have
observed ongoing patterns of crimes specifically
targeting people on the basis of their race,
nationality, religion, sexual orientation or other
such factors.2 Such crimes, known internationally
as hate crimes,3 undermine social cohesion4 and
have been shown to have an especially traumatic
impact on victims.5 South Africa has a number of
laws that deal with discrimination, such as the

* Duncan Breen was formerly an Advocacy Officer with

the Consortium for Refugees and Migrants in South
Africa and convener of the Hate Crimes Working Group.
He writes this article in his personal capacity.
** Juan A. Nel is an associate professor and head of the
Unisa Centre for Applied Psychology. He is a founding
member of the National Victim Empowerment
Programme management team and serves on the Hate
Crimes Working Group, as well as the recently
established National Task Team on gender-based
violence targeted at LGBTI persons.

SA Crime Quarterly no 38

December 2011

Equality Act, the Promotion of Equality and

Prevention of Unfair Discrimination Act
(PEPUDA) as well as section 9 of the Constitution, yet none of these is specifically tailored to
address the issue of hate crime. An analysis by
legal practitioners has demonstrated that the
existing legal framework does not provide
sufficient tools to address hate crime.6
The Department of Justice and Constitutional
Development (DOJCD) is currently developing
legislation on hate crimes as a means to
strengthen the role of police and justice officials
in holding perpetrators accountable and as a
result send a clear message to society that such
crimes will not be tolerated.7 This article provides
some international context, two case studies of
types of hate crime, and then discusses key policy
issues related to the impending legislation.

HATE CRIMES AND THEIR IMPACT

A hate crime has been defined by the
Organisation for Security and Cooperation in
33

CQ No. 38 December

11/21/11

9:47 AM

Page 38

Europe (OSCE) as a criminal act committed with

a bias motive.8 A hate crime is thus an act which
constitutes a criminal offence that is motivated in
part or whole by bias or hate. There are two key
components of hate crimes. The first is that the
incident (even without the bias motive) comprises
of a criminal offence under other existing laws
(such as arson, assault, rape or murder). In this
way, hate crimes differ from hate speech and
discrimination where proving bias is central to
determining whether or not an incident
comprises a criminal offence. The second element
of hate crimes is that some form of specific bias
was involved in the selection of the victim. Hate
crimes can involve mixed motives, including
criminal incentives, such as robbery, but
incorporate a range of crimes where the victims
actual or perceived identity such as race,
nationality or sexual orientation was a factor.9
There are several reasons why hate crimes require
specialised services and prioritisation, as well as
legislative and policy responses. Hate crimes are
treated differently in many countries, not because
of their prevalence, but because the severe
emotional and psychological impact of such
crimes potentially extends beyond the individual
victim to the group to which the individual
belongs, or is perceived to belong.10 However,
treating hate crimes as a separate category of
crime is not universally agreed.11
Whilst violent crime victimisation in general
carries the risk of psychological distress, studies
have indicated that victims of hate crimes have
distinct needs and may suffer from consistently
higher levels of psychological distress (e.g.
intrusive thoughts, feelings of helplessness,
depression, stress, anxiety, and anger) than
victims of other comparable crimes.12 Survivors of
violent crimes, including hate crimes, are also at
risk for developing a variety of mental health
problems including post-traumatic stress disorder
(PTSD).13
Prejudice renders victims of hate crime frequent
targets of further victimisation when they turn to
service providers for assistance after a hate-based
incident a phenomenon known as secondary
34

victimisation.14 Negative attitudes and prejudice

on the part of criminal justice officials and health
service providers play a role in secondary
victimisation; that is, decision-makers deprioritising hate victimisation, and service
providers neglecting, and sometimes even overtly
discriminating against, survivors of hate crimes
within the criminal justice system and health
care.15
Another example of such secondary victimisation
is when community members display more
support for the accused during a trial than for the
victims of a hate crime and/or their families.16 The
impact of these factors is compounded by selfstigmatisation and the hesitancy, as a result of
fear, of survivors of hate victimisation to approach
service providers for support or redress. Because
victims of hate crimes are aware that there is a
likelihood of secondary victimisation, they often
delay or completely avoid approaching the
criminal justice system or accessing health care.
In a 2003 community-based study (n=487)
conducted by OUT LGBT Well-Being (OUT)17 in
collaboration with the University of South Africa
Centre for Applied Psychology (UCAP), it was
found that 62% of the self-identified lesbian, gay
and bisexual survivors of hate victimisation did
not report their experience to the police and that
approximately 33% of the respondents
experienced the police as not interested in
assisting them when they had reported
discrimination. A significant proportion of the
respondents in this OUT/UCAP study also
confirmed that the victimisation had embarrassed them, and they feared that reporting it would
make their sexual orientation public knowledge.18
Such secondary victimisation has the effect of
exacerbating, rather than addressing, the
vulnerability of survivors of hate victimisation,
and constitutes another reason why unique
responses and prioritisation are required in the
aftermath of a hate crime.

LEGAL MODELS
Internationally there are generally two models of
hate crimes legislation.19 The hostility model
Institute for Security Studies

CQ No. 38 December

11/21/11

9:47 AM

Page 39

regards hate crimes as crimes motivated by hatred

or hostility based on factors such as race,
nationality, religion or sexual orientation (known
as protected characteristics). Convicting a person
of a hate crime requires evidence of this hatred or
hostility based on the victims protected
characteristic.20
The second model is known as the discriminatory selection model and provides a more
expanded definition whereby a perpetrators
deliberate selection of a victim based on the
victims race, nationality or other protected
characteristic would constitute a hate crime. This
legal model therefore also allows for mixed
motivation by perpetrators and so cases such as
armed robbery that deliberately target the victims
on the basis of their protected characteristic could
constitute hate crimes.21
Deciding on the appropriate legal model requires
a careful consideration of past, current and
possible future trends of hate crime in South
Africa. This article next presents an examination
of the nature of violence against foreign nationals
as well as violence targeting people on the basis of
their sexual orientation as a means of illustrating
the types of crimes that hate crime legislation
would need to address.

VIOLENCE AGAINST
FOREIGN NATIONALS
Violence against foreign nationals, popularly
known as xenophobic violence, was noted as a
major social challenge in South Africa as far back
as 1998.22 Some recent trends of violence against
foreign nationals are:

Indiscriminate mob violence against all

foreign nationals in a particular area
Attacks, intimidation or specific looting
campaigns targeting foreign-owned businesses
Individual attacks on foreign nationals.

In the first category, local residents typically

instigate the forceful removal of foreign nationals
from the area, blaming them for a range of social
ills. This was the case in many of the areas
SA Crime Quarterly no 38

December 2011

affected by the country-wide May 2008 violence,

De Doorns in November 2009 and Sasolburg in
May 2010, where individuals with economic or
political incentives mobilised other residents to
attack or remove all foreign nationals from the
area.23
In the second category, local residents have
protested publicly including about a lack of
service delivery and some have taken the
opportunity to attack and loot foreign-owned
shops in the area. Whilst the protests have usually
not been targeted at foreign nationals, the
resulting looting has usually specifically targeted
foreign-owned shops and left shops owned by
South Africans untouched.24 In 2011, local
business owners started a campaign of
intimidation against foreign-owned businesses
with one group calling itself the Greater Gauteng
Business Forum issuing threats with apparent
impunity in areas including Freedom Park,
Ramaphosa, Diepsloot and Tembisa.25
Finally, there continues to be a number of
seemingly isolated incidents where a foreign
national, or small groups of foreign nationals, are
attacked. Whilst high levels of crime in the
country suggests that any person can be a victim,
there have been a number of instances where it
has been clear that people have been attacked
deliberately because they are foreign.26 These are
some of the trends that new legislation on hate
crimes needs to address.
Further challenges for foreign nationals include
improving access to police protection and justice
on an equal basis to citizens. In the past, police
have been accused of intentionally protecting only
South African-owned businesses during looting,
ignoring requests for an urgent intervention
following a threat of mob violence, being
complicit in attacks on foreign nationals, and
refusing to assist foreign nationals who wish to
open a case at a police station.27 Various national
surveys have illustrated negative sentiments by
the public towards foreign nationals and some
police officers appear to share such sentiments.28
Victims of xenophobic violence have often
struggled to access justice. The low number of
35

CQ No. 38 December

11/21/11

10:01 AM

Page 40

arrests and lower number of successful

convictions in the wake of the 2008 violence is
one case in point.29
There has been some progress in both policing
and the justice response, including improved
cooperation between national police, civil society
and United Nations agencies with the
appointment of a national coordinator for
xenophobia in Visible Policing.30 This has
improved communication and has led to a
number of instances where police have been able
to respond quickly to outbreaks of violence. The
National Prosecuting Authority (NPA) has also
indicated that it has developed its own definition
of xenophobia-related cases and has focal points
in all the provinces responsible for collecting
information on these.31
A final area of concern is access to compensation
and restitution for foreign victims of hate crime.32
Obtaining a compensation order against the
perpetrator is difficult, given the low number of
arrests and successful convictions, but also
within a context where there is often tacit
support for crimes against foreign nationals.33
Access to restitution where perpetrators return
stolen goods or restore property is difficult for
the same reasons.34 These are some of the
challenges that hate crimes legislation needs to
address.

SEXUAL ORIENTATION AND

GENDER-BASED VIOLENCE
Another type of hate crime is that which
specifically targets lesbian, gay, bisexual,
transgender and intersex (LGBTI) people. Like
many South Africans, LGBTI people are targets
of general violence and crime. However, because
they are stigmatised for their perceived sexual
and/or gender deviance, LGBTI people are also
frequently discriminated against, through
criminal acts, because of their sexual orientation,
gender identity and/or biological variance.35
Often, hate speech (such as harassment, slurring,
name-calling and other forms of verbal abuse)
creates the breeding ground for hate-based
attacks.36
36

Nel and Judge report that, internationally, the vast

majority of openly LGB37 persons have
experienced some form of victimisation, such as
verbal abuse, threats, being chased or followed, or
being spat on. In comparison, research findings
suggest that South Africans were less likely to
experience verbal abuse and threats of violence
than their American counterparts, but they were
more prone to be physically assaulted and
substantially more often sexually assaulted. The
authors also suggest that homophobic hate crime
increases as lesbian and gay communities become
more visible.38
Anecdotal evidence of sexual orientation-related
hate crime, such as assault, malicious damage to
property, rape and murder, abound.39 The
phenomenon of corrective rape40 has received
considerable media attention. It will seem that
black lesbians, particularly in townships, where
they are seen to challenge patriarchal gender
norms, are increasingly targeted for rape and/or
murder. Although not a separate and distinct
phenomenon from the high incidence of genderbased 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. The fatal shooting of a
gender non-conforming drag queen in Yeoville,
Johannesburg, in 2008 is a case in point.41 The
connection between hate speech, hate crimes,
gender-based violence and sexual orientation
more generally seems to be too evident to ignore
in considering appropriate responses to related
victimisation within a South African context.
In 2010, the US-based site www.change.org started
an online petition against corrective rape directed
at the government in partnership with Luleki
Sizwe (a Cape Town township-based CSO), which
received several thousand signatures. In response,
in May 2011, the DOJCD declared that they would
set up a multi-sectoral task team to address the
issue. The proposal for this task team came after
more than ten years of multi-sectoral advocacy
aimed at raising awareness of gender-based
violence against black lesbians in particular and
LGBTI communities more broadly, and calling for
a response from government and broader society.
Institute for Security Studies

CQ No. 38 December

11/21/11

9:47 AM

Page 41

A DOJCD spokesperson however, publicly stated

that this was the first time they were hearing
about the problem of violence against lesbians.42
The DOJCD-led national task team officially
started meeting in July 2011.43 Going forward,
similarities and differences in respect of other
prejudice-motivated crimes, such as xenophobic
attacks and race-based incidents, will also be
considered.44

POLICY DEBATES
While not ignoring that there are some critics,
internationally, of hate crime legislation,45 there
do seem to be many more voices calling for the
South African criminal justice system to
recognise such crimes. Hate crime legislation will,
however, need to respond to the particular social
context in South Africa and therefore some
debate is required on which characteristics should
be specifically protected. Characteristics generally
protected by hate crimes legislation
internationally are those that are fundamental or
immutable that is, those that a person cannot
change and that tend to identify people as
members of a social group. Internationally, race,
national origin and ethnicity are frequently
protected characteristics as are religion, gender,
age, mental or physical disability, and sexual
orientation.46
Section 9(3) and the Equality Act referred to in
Section 9(4) of South Africas Constitution
prohibit discrimination on the basis of race,
gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture,
language and birth.47 Subsequent jurisprudence
also established nationality as a prohibited basis
for discrimination. The Constitution could
therefore be used as a starting point in
determining which characteristics to protect,
based on which of these characteristics have been
or are reasonably likely to be a causal factor in
crimes, as well as whether any additional
characteristics, such as gender identity and gender
expression, should be included. Given the types of
crimes hate crimes legislation tries to protect
against, there may also be merit in exploring how
SA Crime Quarterly no 38

December 2011

best to protect people who are targeted for crime

on the basis of their HIV status, as was the case
for Gugu Dlamini in 1998.48
Another important policy choice is determining
the appropriate legal model for South Africa, as it
is critical to avoid developing legislation that
becomes difficult to implement. With the
hostility model proving subjective hate on the
part of the perpetrator towards the victim, based
on a protected characteristic, can be very
challenging.
While some may argue that the discriminatory
selection model with its lower threshold dilutes
the concept of a hate crime, this model requires
police and prosecutors to simply show that the
victim was selected because of a protected
characteristic such as race, nationality, religion,
sexual orientation or gender identity and/or
expression. The discriminatory selection model
also allows for mixed motives such as criminal
incentives alongside bias. This broader
applicability of the law can go beyond hate to
include stereotypes about particular social groups.
This model of legislation thus aims to protect
against prejudice as well as protect groups that
may be targeted by criminals on the basis of
perceived vulnerability. Countries with this model
of legislation tend to require a causal link between
a victims protected characteristic and the crime.49
Determining an appropriate punishment for hate
crimes offenders is another matter that needs
careful consideration. Internationally, hate crimes
legislation usually either introduces hate crimes as
substantive new offences (such as raciallyaggravated assault) or introduces aggravating
circumstances to argue for enhanced sentencing.
Some have even introduced a combination of the
two approaches as a means of providing
prosecutors with a greater range of tools with
which to address the offence.50 Determining how
best to aid prosecutors and equip them to ensure
convictions of hate crimes perpetrators is an area
where leadership by the NPA would be valuable.
In South Africa, there is some debate as to
whether mandatory minimum sentences are
37

CQ No. 38 December

11/21/11

9:47 AM

Page 42

effective in deterring would-be offenders from the

commission of a particular type of crime. Mandatory minimum sentencing, which prescribed
severe prison terms, was introduced in 1998 and
is currently in place for crimes such as gang rape
and premeditated murder. It has been argued that
minimum sentencing has not had the effect of
deterring crime (as many offenders do not expect
to be caught), and has instead had a negative
impact by contributing to overcrowding in
correctional facilities.51 Determining appropriate
punishments for hate crimes offences is an area
where further input from criminal justice experts
would be welcome, to ensure that the provisions
of hate crimes legislation respond to the specific
challenges in South Africa. There may also be
scope to explore the use of alternative dispute
resolution mechanisms in non-violent hate crimes
cases.52
Once hate crimes legislation is developed there is
an opportunity for police and the NPA to develop
guidelines for the police and prosecutors on how
to utilise the legal provisions. A number of
countries with hate crimes legislation have
developed guidelines for prosecutors and
investigators to assist them in collecting and
demonstrating evidence of prejudice or deliberate
selection of the victim on the basis of their
identity.53
In addition, the police in several countries have
developed guidance manuals on policing hate
crimes. For example, the Association of Chiefs of
Police in Scotland 2010 manual provides
information on the legislation, key definitions,
recording and reporting of hate crimes offences,
supporting witnesses and victims (and avoiding
secondary victimisation), as well as other related
considerations.54 The existence and availability of
such manuals represents a valuable opportunity
for South Africa to ensure its police are well
trained and have the knowledge to effectively
address and collect evidence of hate crimes.
The perception of the victims or the victims
community is often used to determine whether to
investigate a crime as a possible hate crime. This
is specifically important to demonstrate that
38

police and prosecutors are sensitive to

community perceptions of the nature of the case.
Whilst in some cases there may be immediate
suggestions pointing towards an incident being a
hate crime, further investigation by police may
reveal otherwise. If police are transparent and
share this information with concerned
communities, this can allay fears that people like
us are under attack. In South Africa, media
reports on a number of crimes indicate that
victims or other concerned groups have reported
their perceptions that a crime constituted a hate
crime.55
Because of the traumatic impact of hate crimes on
their victims and because these crimes can
seriously disrupt social cohesion, one possible
approach is to fast track hate crimes cases
through the criminal justice system in order to
demonstrate that such crimes are taken seriously.
Whilst the attempts at fast tracking xenophobiarelated cases following the 2008 violence met
many challenges, the FIFA World Cup 2010
special courts demonstrated that it can be
possible to try cases rapidly, provided that there is
political will, effective cooperation between police
and prosecutors, and sufficient budget to support
these courts.
To support the implementation of the law,
training will be required for police, prosecutors,
magistrates and judges, as well as service
providers, such as health care providers, as a
means to ensure that law enforcement and justice
officials are able to make use of the legislative
provisions effectively and that service providers
are able to assist victims without secondary
victimisation. Of course, as recognised by the
National Victim Empowerment Programme, such
service provider guidelines have a crucial
contribution to make, even in the absence of hate
crime legislation.56 At least one international
organisation has expressed an interest in supporting South Africa by providing experts for related
training.57
Regardless of whether hate crime legislation is
adopted in South Africa or not, a further
important intervention is the need to collect
Institute for Security Studies

CQ No. 38 December

11/21/11

9:47 AM

Page 43

accurate data on hate crimes across the country.

Enhanced recording practices will translate into
data that can be used to determine trends of hate
crimes and where they are most likely to occur, as
well as track the progress in holding perpetrators
accountable by observing the number of cases
lodged with police and assessing how many of
these were successfully prosecuted. Such analysis
will guide interventions to address any barriers
that may emerge, either by police not producing
sufficient evidence, or by obstacles occurring in
the prosecution process.
Civil society is currently in the process of
developing its own monitoring system to record
cases of hate crimes and assess the quality of
support offered by service providers and police,
the traumatic impact on the victim and whether
the victim intends to report the matter. In
addition to providing information on the levels of
service provision and the psychological impact,
this monitoring will also provide one mechanism
to examine levels of under-reporting of hate
crimes. The monitoring system is being
developed by the UCAP in collaboration with
members of the Hate Crimes Working Group.58
Finally, legislation on hate crimes is only likely to
be effective if there is sufficient political and
public support to implement it. This requires
senior leaders to speak out on a regular basis
against all types of hate crimes. A number of
leaders have spoken out on racism and
xenophobia, but this needs to be consistent and
extend to other forms of hate crimes.59 At the
core, related experiences of discrimination and
victimisation are more similar than different, and
a prejudice hierarchy, where some experiences
are valued over others, ought to be avoided.60

problem is more widespread than these

occurrences. Hate crimes are not reconcilable with
the democratic principles of equality and human
rights for all and do not serve the international
image of this rainbow nation well. Current
legislation and policy frameworks are insufficient
to appropriately respond to related incidences or
to effectively minimise and/or prevent hate crimes
from happening. To address the social causes
underlying hate crimes, multi-level responses are
required, including interventions aimed at
increased diversity awareness in communities, and
education and training programmes for service
providers. However, the symbolism of law reform
is of the utmost importance, as is the platform
provided by the legal system from which to
condemn violating behaviours. It is therefore, in
our view, in the South African governments
interest to fast track the development of hate
crime legislation and related service provider
guidelines, in which hate crimes are acknowledged
as priority crimes. Introducing hate crime
legislation will send a clear message that hate will
not be tolerated. As indicated, various
international examples exist to assist in this
important process. The time is now to clearly
signal that South Africa belongs to all who live in
it.
To comment on this article visit
http://www.issafrica.org/sacq.php

NOTES
1.
2.

CONCLUSION
Hate crimes occur more often in South Africa
than the government may wish to acknowledge.
Whilst this article primarily highlights those
crimes that specifically target people on the basis
of their nationality, sexual orientation and/or
gender expression, sufficient anecdotal evidence
and early research findings suggest that the
SA Crime Quarterly no 38

December 2011

3.

Constitution of the Republic of South Africa (Act 136

of 1996), Pretoria: Government Gazette.
Some of those who have spoken out on the need to
address hate crimes in South Africa include the United
Nations Committee on the Elimination of Racial
Discrimination, South African Human Rights
Commission (SAHRC), a number of lesbian, gay,
bisexual, transgender and intersex (LGBTI) CSOs, the
Consortium for Refugees and Migrants in South Africa,
the Special Rapporteur on the Human Rights of
Migrants, and most recently, participants in an Institute
for Security Studies and Human Sciences Research
Council Seminar, South Africa: The Country We Want
To Live In: Policy, Practice, Legislation With Respect To
Hate Crime (See http://www.issafrica.org/
eventitem.php?EID=739).
The term hate crimes tends to be misleading as the
crimes popularly referred to as such may not be fuelled
by actual hatred. Such crimes are also referred to as
bias crimes or bias-related crimes. For the sake of

39

CQ No. 38 December

4.

5.

6.

7.

8.

9.
10.

11.

12.

13.

14.

40

11/21/11

9:47 AM

Page 44

clarity, we will use the popular term hate crimes in this

article.
See for example Laws of New York, 2000, Chapter 107,
Hate Crimes Act of 2000, http://criminaljustice.state.
ny.us/legalservices/ch107_hate_crimes_2000.htm
(accessed 14 October 2011) in which the nature and
impact of hate crimes that extend beyond the individual
are articulated. Also see P Iganski, Hate Crimes Hurt
More, American Behavioral Scientist, 45(4) (2001), 626638.
Iganski, Hate Crimes Hurt More and also J McDevitt,
J Balbonic, L Garcia and J Gui, Consequences for
Victims, A Comparison of Bias and Non-Bias Motivated
Assaults, American Behavioral Scientist, 45(4) (2001),
697-711.
For a more extensive discussion around the gaps in
the existing legal framework in South Africa, see K
Williams, Legal brief on hate crimes in South Africa,
2010. http://www.cormsa.org.za/wp-content/uploads/
2010/07/cormsa-hate-crimes-legal-brief.pdf (accessed 7
November 2011).
The DOJCD is also overseeing the development of a
National Action Plan against Racism, Racial
Discrimination, Xenophobia and Related Intolerances.
Organisation for Security and Cooperation in Europe,
Hate Crime Laws: A Practical Guide, Warsaw:
Organisation for Security and Cooperation in Europe,
2009, 16.
Organisation for Security and Cooperation in Europe,
Hate Crime Laws: A Practical Guide.
See for example Laws of New York, 2000; B Harris,
Arranging prejudice: Exploring hate crime in postapartheid South Africa, Race and citizenship in
transition series, 2004, http://www.csvr.org.za/wits/
papers/paprctp1.htm (accessed 14 October 2011); Juan
A Nel, Towards the Good Society: Healthcare provision
for victims of hate crime from periphery to centre stage,
unpublished doctoral thesis, Unisa, Pretoria, 2007;
Organisation for Security and Cooperation in Europe,
Hate Crime Laws: A Practical Guide.
Among others, see JB Jacobs and KA Potter, Hate
Crimes: Criminal Law & Identity Politics, New York:
Oxford University Press, 1998.
In McDevitt et al., Consequences for Victims, A
Comparison of Bias and Non-Bias Motivated Assaults,
comparable crimes refer to the location of the incident
(for example, victimisation in the area of the home, at
work, etc), relationship between victim and perpetrator,
and nature of the assault (i.e. whether medical
treatment was required). Also see GM Herek, JR Gillis
and JC Cogan, Psychological sequelae of hate-crime
victimization among lesbian, gay and bisexual adults,
Journal of Consulting and Clinical Psychology, 67(6)
(1999), 945-951.
American Psychological Association, The Psychology
of Hate Crimes, 2009. www.apa.org/about/gr/issues/
violence/hate-crimes-faq.pdf (accessed 14 October
2011).
This is acknowledged in the South African national
policy guidelines for victim empowerment. See
Department of Social Development, National Policy

15.

16.

17.

18.

19.
20.

21.

22.

Guidelines for Victim Empowerment, Pretoria:

Department of Social Development, 2009.
Ministerial Advisory Committee on Gay and Lesbian
Health, Health and sexual diversity: A health and
wellbeing action plan for gay, lesbian, bisexual,
transgender and intersex (GLBTI) Victorians, 2003,
http://www.glhv.org.au/files/health_action_plan.pdf
(accessed on 14 October 2011); Nel, Towards the Good
Society: Healthcare provision for victims of hate crime
from periphery to centre stage.
N Mkhize, J Bennett, V Reddy and R Moletsane, The
country we want to live in: Hate crimes and homophobia
in the lives of black lesbian South Africans, Cape Town:
HSRC Press, 2010.
OUT is a CSO working towards the well-being and
rights of LGBT persons in Pretoria, Gauteng and South
Africa.
JA Nel and M Judge, Exploring homophobic
victimisation in Gauteng, South Africa: Issues, impacts
and responses. Acta Criminologica, 21(3), (2008); L
Polders and H Wells, Overall research findings on levels
of empowerment among LGBT people in Gauteng, South
Africa, Unpublished report, Pretoria: OUT LGBT Wellbeing, 2004.
Organisation for Security and Cooperation in Europe,
Hate Crime Laws: A Practical Guide.
This legal model appears consistent with what many
people popularly understand a hate crime to consist
of.
An example of this model can be seen in section 422.55
of the California Penal Code, which states that Hate
crime means a criminal act committed, in whole or in
part, because of one or more of the following actual or
perceived characteristics of the victim. The
characteristics specifically protected in California are
then listed as disability, gender, nationality, race or
ethnicity, religion, sexual orientation, and association
with a person or group with one or more of these
actual or perceived characteristics. California Penal
Code (amended 1987).
In 1998 the SAHRC, the United Nations High
Commissioner for Refugees and the National
Consortium for Refugee Affairs jointly launched the
Roll Back Xenophobia campaign. Despite efforts from
a range of stakeholders, including hearings on
xenophobia in 2004 held jointly by the SAHRC and the
Portfolio Committee on Foreign Affairs, as well as
concerns cited by the African Peer Review Mechanism
2007 report, there was little concerted effort by
government departments to address violence against
foreign nationals. This reluctance of government
culminated in the widespread violence of 2008 which
left at least 62 dead and an estimated 100 000
displaced. Since 2008, there has been increased
awareness of the problem and this, as well as new
partnerships between government, civil society and
international agencies, has gone some way to
preventing a repeat of the 2008 violence. Yet, small
scale attacks deliberately targeting foreign nationals
continue to occur. Threats of violence around the FIFA
World Cup saw Cabinet reactivate an Inter-Ministerial
Committee to coordinate governments response, which
included pre-emptive and responsive deployment of

Institute for Security Studies

CQ No. 38 December

23.

24.

25.

26.

27.

28.

29.

11/21/11

9:47 AM

Page 45

police and the military in suspected hotspots. For

examples of such attacks, see Consortium for Refugees
and Migrants in South Africa, Incidents of Violence
against Foreign Nationals, 2010,
http://www.cormsa.org.za/wp-content/uploads/
2009/05/cormsa-database-of-violence-against-foreignnationals.pdf (accessed 16 October 2011).
See J-P Misago, T Monson, T Polzer and L Landau,
May 2008 violence against foreign nationals in South
Africa: Understanding causes and evaluating responses,
Johannesburg: CoRMSA, 2010. There have also been
numerous cases where residents have correctly or
incorrectly suspected a foreign national of a particular
crime and then formed vigilante groups to evict all
foreign nationals from the area. This was the case in
Imizamo Yethu in November 2009, Riviersonderend in
January 2010 and Masiphumelele in October 2008. See
Consortium for Refugees and Migrants in South
Africa, Incidents of Violence against Foreign Nationals.
This has been the case in a number of incidents
reported in Mpumalanga such as Siyathemba in July
2009 and February 2010, Sakhile in July 2009, Mhluzi
in March 2010 and Ermelo in February 2011. See
Consortium for Refugees and Migrants in South
Africa, Incidents of Violence against Foreign Nationals.
Lawyers for Human Rights, LHR calls on the police to
protect foreign nationals and foreign-owned businesses
in the pre-election intimidation and attacks in Gauteng,
press release issued 13 May 2011,
http://www.lhr.org.za/news/2011/lhr-calls-policeprotect-foreign-nationals-and-foreign-ownedbusinesses-pre-elections-inti (accessed 16 October
2011).
Some examples include a Burundian national being
attacked on a train near Claremont station in Cape
Town in August 2010, allegedly by a group of people
singing get out, foreigner, a Congolese woman being
raped in Samora Machel by attackers who told her they
will do the same to all other foreigners in the area, and
a Zimbabwean national being thrown off a train
allegedly after being threatened due to being foreign.
See Consortium for Refugees and Migrants in South
Africa, Incidents of Violence against Foreign Nationals.
See Consortium for Refugees and Migrants in South
Africa, CoRMSA Brief for the Independent Complaints
Directorate: Police Harassment and Abuse of Foreign
Nationals, 2010, http://www.cormsa.org.za/wp-content
/uploads/2009/05/submission-to-the-independentcomplaints-directorate-on-police-abuse-of-foreignnationals.pdf (accessed 16 October 2011).
See the survey results described in Southern African
Migration Project, The Perfect Storm; The Realities of
Xenophobia in Contemporary South Africa, Cape Town:
IDASA, 2008. For a discussion of police attitudes
towards foreign nationals, see D Bruce, G Newham and
T Masuku, In Service of the Peoples Democracy: An
assessment of the South African Police Service,
Johannesburg: Centre for the Study of Violence and
Reconciliation, 2007.
In response to an enquiry from the SAHRC regarding
progress on cases related to the 2008 xenophobic
violence, the DOJCD responded: Of 597 cases, only
159 had been finalised with a verdict (98 guilty; 61 not
guilty), while 218 had been withdrawn by October

SA Crime Quarterly no 38

December 2011

30.

31.
32.

33.

34.

35.
36.

37.

38.
39.

2009. The SAHRC observed that this amounted to a

withdrawal rate of almost four times that of typical
violent crime. South African Human Rights
Commission, Report on the SAHRC Investigation into
Issues of Rule of Law, Justice and Impunity arising out of
the 2008 Public Violence against Non-Nationals,
Johannesburg: South African Human Rights
Commission, 2010: 68.
T Polzer and K Takabvirwa, Just Crime? Violence,
Xenophobia and Crime: Discourse and Practice, SACQ
33, September 2010.
National Prosecuting Authority, personal
communication, 21 April 2011.
The Victim Empowerment Programme (VEP)
integrated policy guidelines prescribe that victims of
hate victimisation should be one of the ten priority
groups. Assistance listed in the guidelines includes
access to compensation and restitution. See
Department of Social Development, National policy
guidelines for victim empowerment.
There have been a number of instances where,
following displacement due to xenophobic violence,
foreign nationals have been intimidated or encouraged
to drop the criminal charges against residents. One
example of this was in Siyathemba in July 2009 where a
group of residents approached displaced foreign
nationals and forced them into dropping charges. This
and other cases are listed in Consortium for Refugees
and Migrants in South Africa, Incidents of Violence
against Foreign Nationals. In this social and political
context it is very difficult for foreign nationals to seek
and enforce a compensation order, especially if they
intend returning to the area.
Following the May 2008 violence, victims spoke about
the difficulties of returning to an area where
perpetrators who had stolen goods were known but the
victim was unable to do anything about it. Group of
displaced foreign nationals, Rand Airport shelter,
personal communication, September 2008.
Nel, Towards the Good Society: Healthcare provision
for victims of hate crime from periphery to centre stage.
For example, homophobic speech is often shaped by
so-called religious and cultural narratives:
Homosexuality is un-African taken to its logical
conclusion, may be used to justify a hate crime and
homosexuality is a sin, may also be used in the same
manner (Nel and Judge, Exploring homophobic
victimisation in Gauteng, South Africa: Issues, impacts
and responses, 22). Hate crimes can therefore be
understood as representing the extreme side of a
continuum that starts with it being socially acceptable
to name call and demean specific social groups.
Where T and I are not in references to research
findings, transgender and intersex persons were not
included in the research.
Nel and Judge, Exploring homophobic victimisation in
Gauteng, South Africa: Issues, impacts and responses.
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, this white male 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

41

CQ No. 38 December

40.

41.

42.

43.

42

11/21/11

9:47 AM

Page 46

opening the lodge to gay tourists. During the 2005

Lesbian and Gay Pride march in Braamfontein,
Johannesburg, the float of the CSO, Forum for the
Empowerment of Women, or FEW, was targeted by
spectators throwing bottles, seriously injuring a
lesbian volunteer. 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. In
2006, a 19 year-old black lesbian, Zoliswa Nkonyana,
was murdered by a mob in Khayelitsha, Cape Town,
because of her sexual orientation. On 7 July 2007, two
black lesbian women, Salome Masooa and Sizakele
Sigasa, were brutally raped and murdered in Soweto
and in response, Campaign 07-07-07 was initiated,
among others, calling for hate crime legislation. Only
15 days later, a black lesbian woman, Thokozane
Qwabe (23), was found murdered in Ladysmith,
KwaZulu-Natal. For full references, see Nel and Judge,
Exploring homophobic victimisation in Gauteng, South
Africa: Issues, impacts and responses. In addition, also
see Mkhize et. al., The country we want to live in: hate
crimes and homo-phobia in the lives of black lesbian
South Africans.
Corrective rape is the prejudiced notion that a lesbian
woman can be raped to make her straight: i.e., to
correct her lesbian sexuality. Corrective rape seeks to
justify the rape of those people who are perceived to
not conform - or to disrupt - expected gender roles,
behaviour and/or presentation. Misogyny and
homophobia underpin the prejudice associated with
corrective rape (OUT, 2008, cited in Nel and Judge,
Exploring homophobic victimisation in Gauteng, South
Africa: Issues, impacts and responses, 24). Also see
www.actionaid.org.uk/doc_lib/correctiverape
rep_final.pdf.
Lesbian and Gay Equality Project, South Africa:
LGBTI People in Yeoville Mourn the Killing of Daisy
Dube, an Open Drag Queen. Press release on 12 June
2008, http://www.anarkismo.net/article/9125 (accessed
15 August 2008). Also see Mkhize et. al., The country
we want to live in: hate crimes and homo-phobia in the
lives of black lesbian South Africans.
FEW initiated the Rose has Thorns campaign as far
back as 2003, and the earlier mentioned Campaign 0707-07 was launched in 2007. Other initiatives include
submissions made to government, such as UCAP and
OUT, Hate crime in South Africa: Issues, challenges and
strategies for action, submission to the National
Prosecuting Authority, June 2008, Pretoria: UCAP &
OUT; and Hate Crimes Working Group. Memo for the
Department of Justice and Constitutional Development
on Hate Crimes in South Africa, June 2010,
Johannesburg: Hate Crimes Working Group in which
among others, reference is made to South Africas VEP
integrated policy guidelines and 10th anniversary
conference resolution that recognise those subjected to
hate victimisation as priority target groups for
assistance, as well as the need to develop comprehensive legislative and policy frameworks for hate crimes,
including xenophobia and for LGBTI people.
Following concerns raised by civil society representatives about both such narrow focus and the language

44.

45.

46.

47.
48.

49.

50.

51.

52.

53.

that is being used to frame violence against lesbians, a

suggestion was provisionally accepted to stop using the
term corrective rape altogether and instead refer to
gender-based violence targeted at LGBTI persons in
order to capture both homophobic and gender
discrimination, and to cover the various forms of
violence against LGBTI people (e.g. harassment,
assault, rape, murder).
Civil society update on task team to address genderbased violence against lesbian, gay, bisexual,
transgender and intersex (LGBTI) people, September
2011.
See Jacobs and Potter, Hate Crimes. Criminal Law &
Identity Politics. In Nel, Towards the Good Society:
Healthcare provision for victims of hate crime from
periphery to centre stage, some of the controversies
related to hate crime laws is also outlined.
Department of Social Development, National policy
guidelines for victim empowerment, Pretoria:
Department of Social Development, 2009.
Constitution of the Republic of South Africa, 1996.
See for example, Partnership against AIDS, Press
Release issued by the Department of Health on the
Killing of Ms Gugu Dlamini (AIDS Campaign Worker),
1998, http://www.info.gov.za/speeches/1998/
990428438p1006.htm (accessed 16 October 2011).
An example of this is a case from New York where
robbers targeted a gay man because they thought he
would be less likely to resist and to report the crime. In
court the defendants argued that they could not be
found guilty of a hate crime as they had no anti-gay
hostility towards the victim. The court disagreed on
the basis that they had deliberately selected the victim
on the basis of a protected characteristic. See
Organisation for Security and Cooperation in Europe,
Hate Crime Laws: A Practical Guide.
In the United Kingdom, for example, the Crime and
Disorder Act of 1998 created new racially-aggravated
and religiously-aggravated offences. In addition, the
Powers of Criminal Courts (Sentencing) Act of 2000
prescribes that if an offence was racially aggravated,
this shall be treated as an aggravating circumstance
during sentencing and it shall be noted on the court
record that the offence was such.
M ODonovan and J Redpath, The Impact of Minimum
Sentencing in South Africa, Cape Town: Open Society
Foundation for South Africa, 2006.
For example, the Jewish Board of Deputies has
facilitated visits to the Holocaust Museum by children
who have been accused of using anti-Semitic speech.
Feedback from this suggests that such types of
interventions may be most appropriate in less serious
cases. Jewish Board of Deputies, Johannesburg,
personal communication, 23 April 2011.
The United Kingdoms Crown Prosecution Service has
developed a policy on prosecuting racist and religious
crime as well as hate crimes based on disability. This
covers matters such as the legislative background,
ensuring full recognition of evidence of bias in a crime,
support for victims and witnesses, as well as guidance
for the sentencing phase. See Crown Prosecution
Service, Racist and religious crime CPS prosecution
policy, http://www.cps.gov.uk/publications/
prosecution/rrpbcrbook.html (accessed 16.10.2011)

Institute for Security Studies

CQ No. 38 December

54.

55.

56.
57.

58.

59.

60.

11/21/11

9:47 AM

Page 47

and Crown Prosecution Service, Policy for Prosecuting

Cases of Disability Hate Crime, http://www.cps.gov.uk/
publications/docs/disability_hate_crime_policy.pdf
(accessed 16 October 2011).
Association of Chiefs Police Officers in Scotland, Hate
Crime Guidance Manual, 2010, http://www.acpos.
police.uk/Documents/Policies/ED_ACPOS_HateCrime
Manual_Sept2010.pdf (accessed 16 October 2011).
See, for example, N Joseph, We think it was
Xenophobic, 2009, http://www.iol.co.za/news/southafrica/we-think-it-was-xenophobic-1.444551?ot=in
msa.ArticlePrintPageLayout.ot (accessed 16 October
2011). Cases of attacks on black lesbians have often
been immediately suggested to be hate crimes - see for
example A Kelly, Raped and Killed for being a Lesbian:
South Africa ignores corrective attacks, Guradian.co.uk,
12 March 2009, http://www.guardian.
co.uk/world/2009/mar/12/eudy-simelane-correctiverape-south-africa (accessed 16 October 2011).
Department of Social Development. National policy
guidelines for victim empowerment.
Personal communication with a representation of the
Organisation for Security and Cooperation in Europe,
1 July 2010.
The Hate Crimes Working Group comprises of a multisectoral group of CSOs working to address crimes
motivated by different forms of prejudice. The
Working Group can be contacted via CoRMSA.
For example, President Zuma included comments on
racism and xenophobia in his Reconciliation Day
address in 2009. President Jacob Zuma, Address by His
Excellency, President JG Zuma on National
Reconciliation Day; Amphitheatre, Freedom Park,
Salvokop, Tshwane, 16 December 2009,
http://www.info.gov.za/speeches/2009/09121708351001
.htm (accessed 16 October 2011).
Harris, Arranging prejudice: Exploring hate crime in
post-apartheid South Africa.

SA Crime Quarterly no 38

December 2011

43