We have a difficult past as South Africans. We’ve had conflict for 360 years, possibly more, and this was so because colonialism had to find its full sway and that took easily 200 years, followed by another 150 years of conflict, essentially over gold and diamonds. And in that process many people’s lives were trampled upon, and we ended up with what I will call a “last fling” — 50 years of apartheid in which prejudices, differences, insularity and narrow-mindedness found root and became entrenched.
And what did apartheid teach? It really was premised on the notion that people are deeply and inherently different, and that the difference ought not to stay in people’s personal notions, but actually had to be entrenched in law.
And once it had done that it had to find the power of the state to enforce one particular worldview over others. This is really what it was about, and for good measure you could decide who was superior or inferior. If you were heterosexual it must be because somebody willed it so — some even suggested the ridiculous notion that God willed it.
Some would say that if you were black, clearly God sought to place you at some particular place in the social scheme of things. So it was a world that was clearly premised on the notion that you ought to keep out those who are different from you. And around this was the whole notion of what families are and ought to be, what good people do, what culture is permissible and what culture is not permissible.
In short, we have had a background of amazing repression, of exclusion, of exploitation, but above all, of indignity — the absence of equal worth. Under apartheid, diversity didn’t exist.
Come 1994, and we made a collective commitment to create a whole number of things, but most people are only prepared to go so far in relation to personal relationships and to family.
Once, the South African Council of Churches literally summoned one of us (Constitutional Court judges) to come and explain a judgment. There were many people present, probably all people of the cloth. And the question was: “Haven’t you departed from what is fundamental in all religions?”
I was at pains to suggest that if you sought to exclude people from making choices that they find appropriate in their own lives, you are probably much further away from your convictions, from compassion and from the understanding that each one of us has a right to be different. Each one of us has a right to live a full life without a need to apologise.
And one of them said: “But I have seen you a few times in a church service. How do you live side by side with jurisprudence that you have been supporting and been a part of?” And I said, it’s simple: we have committed to turn our back on all those things that seek to impede the fullness of each one of us, and we should steadfastly continue to do so.
And it is in that context that we have seen the court, in a very steadfast way in the last 12-13 years, pronouncing on matters that others find to be difficult.
I should pay tribute to gay and lesbian structures that helped, wittingly and unwittingly, in the development of quality jurisprudence in this country. All those struggles around the rights of gay and lesbian people have in many ways allowed the court and allowed our Constitution and many other people to be able to express themselves on issues of equality. We actually owe a great debt to gays and lesbians in this country, certainly around equality issues.
It is important to remember that the Constitutional Court has consistently said that South Africa has a multitude of family formations.
This is a groundbreaking observation. It may be plain to others, but certainly many people think there is only one family. It’s not unlike the three and a half centuries of refusal to recognise Muslim marriages, for instance. It’s not unlike non-recognition of customary marriages, which could not even be called marriages — they were called “unions” that never could equate to marriages, some thought. One of the fundamental things in our jurisprudence is the recognition that there is a multitude of family formations that have evolved, and that will continue to evolve, as we move to recreate our society.
It is important that we acknow-ledge the long history in this country, and in many other countries, of the marginalisation and persecution of gays and lesbians. It was important for us to reassert their right to live just as well as everybody else. And it was an important assertion in an environment that was not exactly always friendly.
Up to now there has been no comprehensive legal regulation of family and personal rights around gays and lesbians in this country. It is therefore appropriate to put the government on terms. We opted for a very unusual court order where we eventually said it had to be done in a very specified time, and if not then certain rights would kick in that we did not create — they sit in the Constitution already. So we were really just messengers of what pre-existed before the Fourie judgment.
From time to time, we have made the point that there has been a need to remind our people that we require a radical rupture from the past, one that is not limited to race. That rupture includes family relations — it is a rejection of patriarchy. Probably one of the most entrenched and most substantial forms of oppression still in this country is unequal relations between men and women within family arrangements. This explains in many ways a whole range of deficiencies that women are still subjected to. So we need a more comprehensive rupture that will equalise the power relationships in society and create a much more equitable society.
That’s how I understand my own imprisonment as a young boy of 15 for 10 years, and that’s how I understand the sacrifices many have made to ensure that there is a full turning away from an evil past to create a just rearrangement, socially and economically. For me it was race and for many it was sexual orientation. I think it has also to move on to poverty — to equalise economic activity to a whole range of areas so we move to embrace a much broader notion of freedom, of equality, of equal dignity. It is important that we build a groundswell for a society very different from the one we had to live through for over 350 years.
It is an important constitutional value to acknowledge diversity, to acknowledge pluralism, freedom of association, the right to be different within a cohesive whole — that is, within our nation. People in this country must have the assurance that there will be protection when they choose to depart from a majoritarian norm, provided the purpose served is legitimate. We should have a society that is capable of enduring that, living with that, and making sure that indeed it becomes a proud part of all of us.
Dikgang Moseneke is Deputy Chief Justice of the Constitutional Court. This is an edited version of his opening-night speech at the 13th Out In Africa South African Gay & Lesbian Film Festival on March 1 in Johannesburg