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OUT Well-Being sets groundbreaking precedent in the hate crime case of S v Madubaduba and 2 Others

in SOUTH AFRICA, 13/12/2011

On Friday, 9 December 2011 OUT, represented by Webber Wentzel Attorneys, was successfully admitted as amicus curiae in the sentencing phase of a hate crimes trial in the Germiston Magistrates Court.

On Friday, 9 December 2011 OUT, represented by Webber Wentzel Attorneys, was successfully admitted as amicus curiae in the sentencing phase of a hate crimes trial in the Germiston Magistrates Court.
The success of OUT's application is groundbreaking on at least 2 fronts:

  • OUT is the first organisation to be successfully admitted as amicus curiae in a criminal trial in the magistrates courts; and
  • This is the first time an Lesbian/Gay/Bisexual/Transgender (LGBT) rights organisation will be leading expert evidence to ensure that sentencing in homophobia-motivated crimes takes into account the hate element in the commissioning of these crimes.

Successful admission as amicus curiae in the magistrates' courts

OUT adopted a novel approach by applying for leave to intervene as amicus curiae in a magistrate's court.

The rules regulating procedure in the lower courts do not specifically provide for the admission of amicus curiae. However, Advocate Kate Hofmeyr compellingly argued on behalf of OUT that the magistrates' courts rules, properly interpreted, do indeed allow for the admission of amicus curiae. Furthermore, provisions of the Criminal Procedure Act 51 of 1977 clearly empower a court to receive evidence that will assist the court in arriving at a proper sentence.

OUT is hopeful that the successful admission of the organisation as a friend of the court in this case may enable other civil society organisations to offer their expertise to the lower courts on a range of issues, including those affecting the LGBT community.

Leading expert evidence on sentencing of hate crimes

On Friday, OUT led the evidence of Professor Juan Nel, an associate professor at the University of South Africa, on the nature of hate crimes. The magistrate heard evidence on the particularly detrimental impact that such crimes have on the victim, the victim's family, the geographical community within which the victim lives and on the LGBT community and society in general.

In this case, following a lengthy trial, spanning more than 3 years, the accused were found guilty of assault with intent to cause grievous bodily harm after attacking a young, black, gay man in a bar. The offence is a typical hate crime as the gay man was targeted as a result of his sexual orientation. In delivering judgment, the magistrate had specifically noted that the accused were motivated by hatred and disrespect for gay people, which was particularly degrading for the complainant.

Based on extensive research, Professor Nel explained to the court that the intensity and duration of the trauma experienced by victims of hate crimes were more severe than victims of ordinary crimes. He further explained the pervasive impact that homophobic victimisation had on the victim's family and community, contributing to heightened levels of marginalisation of LGBT persons and other vulnerable groups in society.

When proceedings continue on 27 January 2012, OUT will lead additional witnesses to provide the court with further information on homophobic victimisation and discrimination in South Africa and the particularly detrimental impact of hate crimes on victims, communities and society.

OUT is pleased that this case contributes to the ability of LGBT rights organisations to provide courts with proper evidence on the pernicious impact of hate crimes on LGBT individuals and communities. In order to counter the prevailing attitudes that deem it acceptable for LGBT people to be insulted, discriminated against, stigmatised and, at times, violently attacked because of their sexual orientation, it is critical that the courts and prosecuting authorities have a full understanding of the dynamics of, and context in which, homophobic crimes take place.


FOR MORE INFORMATION CONTACT
Kerry Williams (Partner, Webber Wentzel Attorneys): Tel. 082 4000272
Mmapaseka Steve Letsike (OUT Associate): Tel. 073 435 6501

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