PsySSA (PSYCHOLOGICAL SOCIETY OF SOUTH AFRICA) is amicus curiae (‘friend of the court’) in a matter that concerns the contents of a newspaper article entitled “Call me names, but gay is not ok”, written by Jon Qwelane and published in the Sunday Sun on 20 July 2008.

The court case has been set down in the South Gauteng High Court for 29 August to 9 September 2016. The South African Human Rights Commission seeks an apology and damages from Mr Qwelane on the grounds that the contents of his article constitute prohibited hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“the Equality Act”). In response, Mr Qwelane has launched a constitutional challenge against the relevant provisions of the Equality Act.

Webber Wentzel acts as attorneys, pro bono, for PsySSA. As a friend of the court, PsySSA will present evidence and make submissions regarding the important purpose served by section 10(1) of the Equality Act to stem systemic verbal and physical violence based on the prohibited grounds of discrimination in that Act.

PsySSA will also present research-based evidence of the harmful psychological effects and consequences of hate speech on members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and on broader society.
More specifically, PsySSA intends:
• To locate the provisions of section 10(1) of the Equality Act which prohibits hate speech, within its proper psychological, social, scientific and constitutional context in order to demonstrate that hate speech causes deep psychological harm to its targets.
• To submit that section 10(1) is constitutional in that, although it limits the right to freedom of expression under section 16 of the Constitution, it does so in a manner that is reasonable and justifiable and satisfies the requirements of section 36 of the Constitution.
o Importantly, the Equality Act does not criminalise hate speech. Rather it balances the right to freedom of expression against the constitutional protection of equality and dignity of all persons, regardless of their status or identity.
o The Act is concerned with remedying the pernicious effects of discrimination on the victims of that discrimination and society generally. It does so by providing for a range of innovative and flexible civil remedies. It recognises, in its preamble, that our society is plagued by “systemic inequalities and unfair discrimination [which] remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy”.
• To highlight the damaging effects that the discriminatory speech contained in Qwelane’s article has on members of the LGBTI community in particular, and on society at large.
“It is critical that in making its determination, the court considers the nature and extent of the material harm caused by homophobic hate speech. This wider social context is critical to understanding the tangible consequences of such hate speech on the lives of those who are its target and society at large”, says Professor Juan Nel, Department of Psychology, University of South Africa and Past President of PsySSA.

Prof Saths Cooper, President of the International Union of Psychological Science, adds that, “through its submissions to the court PsySSA will show how an understanding of the psychological effects of the underlying prejudices in our society and their expression is necessary for the development of a healthy post-apartheid South Africa.”

About PsySSA:
PsySSA is a not-for-profit association of psychology practitioners and persons involved in the academic, research and practical application of the discipline of psychology. Established in 1994, it is the nationally representative professional body for psychology in South Africa. PsySSA is committed to the transformation and development of South African psychology to serve the needs and interests of all South Africa’s people. PsySSA advances psychology as a science, a profession and as a means of promoting human well-being.

The Sexuality and Gender Division of PsySSA has an established African LGBTI persons’ human rights project, in association with IPsyNET (the International Psychology Network for Lesbian, Gay, Bisexual, and Transgender Issues). PsySSA is committed to fostering active and vocal participation by psychology professionals in current and anticipated debates on sexual and gender diversity and to support the advancement of LGBTI rights in Africa.

For more information:
• Professor Juan Nel – PsySSA Past President- Cell: 083 282 0791
• Kerry Williams – Partner, Webber Wentzel – Cell: 082 400 0272

Section 10(1) of the Equality Act: “Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to – (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.”

Section 36 of the Constitution: “Limitation of rights – (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

POWA in partnership with Jenny Nijenhuis is asking for new panties/underwear to highlight rape issues in preparation for 16 Days of Activism for No Violence Against Women and Children campaign.

The case proceeded on the 19th of April 2016 with sentencing submissions at Palm Ridge Magistrate Court in Alberton.

During the proceedings in court the Defence Attorney emphasized that the accused is taking responsibility because he states that he could have acted differently on the day of the incident, therefore killed the deceased unintentionally. It is the defence submission that the court should deviate from the minimum sentence of 15 years imprisonment when sentencing the accused because at the time of the commission of the said offence the accused was 50 years of age, he therefore recommends 5 years imprisonment.

On the other hand the Prosecution states that the accused denied any responsibility, now that the state proved its case beyond reasonable doubt he admits that he was negligent. One would agree with the prosecution that he is not showing any remorse because he could have pleaded guilty from the onset. The prosecution recommends a harsher sentence against the accused, imposing a lenient sentence will be unjust.

POWA is praying for a harsher sentence against the accused because his actions were not the actions of the responsible father. The interests of the community should be taken into consideration and the circumstances of it having happened in a domestic setup. A harsher sentence will set a good precedence for future offenders and will also deter future perpetrators of the similar offence.

POWA is calling for strong action when dealing with perpetrators of Violence against Women & Children.
For more information and assistance through counselling and legal advice on violence against women kindly contact POWA at (011) 642 4345, email info@powa.co.za/ legal@powa.co.za or visit our website on www.powa.co.za to learn more about service that POWA offer.

After nine years of trying to get her abusive husband punished for killing their son and landing another in jail, Phindile Hadebe hopes that justice will be served.

Yesterday, members of NGO People Against Women Abuse (Powa) and the Katlehong community protested outside the Palm Ridge Magistrate’s Court where David Hadebe appeared briefly.

He was to be sentenced for murder but the case was postponed due to the unavailability of a defence lawyer.

It took nine years for David to be prosecuted and convicted of killing his own son.

Powa said it had intervened in the case two years ago after being approached by the community about the abuse that was continuing while David was out on bail.

On Christmas Day in 2006, Hadebe and her two sons had gone to visit her family, leaving her husband behind at their home in Katlehong. When they returned, David had locked them out of the house.

Their son. Musawenkosi, who was 20 at the time, managed to open the door but when he went in, his father stabbed him three times.

David Hadebe was arrested after being captured and beaten by members of the community. He was later released on bail. While on bail, Hadebe’s eldest son shot him, leading to a conviction of attempted murder. The son is serving a five-year prison sentence.

“Had he not been released on bail my son would never have attacked him and he would not be in jail,” Phindile Hadebe said. “I have been through so much. I’ve lost both my sons because of this man. He must just be sentenced and go to jail for good.”

She said her struggle to get justice had been long and painful. Hadebe said the case docket had miraculously disappeared and that she had been told that that was the end of it. It was only when Powa wrote a letter to the National Prosecuting Authority asking for the charges to be reinstated that she had gained hope again. David Hadebe will be sentenced on April 4.

Dudu Dube

dudud@thenewage.co.za

EXECUTIVE SUMMARY

POWA is a feminist organisation that was formed in 1979 by a group of women volunteers in order to provide referral services and sheltering to women who were experiencing domestic violence. Over a period of thirty six years, POWA has continued to provide shelter for abused women and their children, frontline services, including counseling and legal services and support.

POWA was the first organisation to establish a shelter for women who are abused in 1981.

The organisation also pioneered second stage (or transitional) housing for women in 2009 in Gauteng. The direct services delivery component of the organisation forms the basis of and informs all advocacy interventions, at local, national and regional level. Since 1979 the organisation has grown from a staff compliment of 18 to 36 staff members and 70 volunteers.

We currently have seven physical working sites in Gauteng that provide counselling, sheltering and legal support to women at face-to-face level. The organisation also have national reach and presence through our telephonic counselling, advocacy, public awareness and sector strengthening work.

Over the years POWA have become an organisation that is considered to be an expert on issues of women’s rights and therefore are consulted by the private sector, government and civil society on educational and decision-making
matters pertaining to women’s safety and enjoyment of their rights.

More: POWA Annual Report – 2014-2015

POWA members were again picketing at Westonaria Magistrate Court on the bail application of the accused in Zestah September’s case, a victim of intimate partner violence who was brutally murdered by her partner.

The decision of the court to deny the accused bail on the basis that the accused is suicidal and poses a threat to himself and community. The court sees a likelihood that he may not attend trial or he might commit a successful suicide if released. It was also mentioned by the court that the involvement of community members and civil society organisations like POWA shows how angry people are about this case and if ever he is released they would act out in revenge.

The court’s decision resonate with POWA is advocating for regarding bail for cases of domestic violence. POWA advocates for denial of bail because of the nature of the offence. The reasoning for this is in most cases the accused is always known to the family of the victim therefore by granting him bail, the family members might act in anger. Out of frustration they might “take the law in their own hands” by action in revenge, or commit other offences that could be prevented by keeping the accused in custody until trial. Denying him bail also prevents the likelihood of him interfering with the state witnesses who are usually the family members and friends of the victim that are known to him, says POWA Legal Manager Palesa Mpapa.

Now more than ever we are advocating for a stronger sentence to be passed by High Court in order to deter potential perpetrators of domestic violence. The statistics are continually alarming and the courts have not yet passed strong sanctions that sends a message across says Palesa Mpapa.

POWA is calling for strong action when dealing with perpetrators of Violence against Women & Children.

For more information kindly contact POWA at (011) 642 4345 he might commit a successful suicide if released. It was also mentioned by the court that the involvement of community members and civil society organisations like POWA shows how angry people are about this case and if ever he is released they would act out in revenge.