Out In Africa - http://www.oia.co.za/

The Out in Africa Gay and Lesbian film festival opened on Thursday 1st March with the film “Beautiful Boxer” an excellent film about a trans woman from Thailand. What was also exceptional was the speech delivered by Deputy Chief Justice Moseneke who opened the festival. Below is an excerpt from his speech.

“I firstly would like to congratulate you on the 13th time and that just coincides so well with that momentous year, 13 years back and I’ll talk a little about that and I really would like to wish the Out In Africa Gay and Lesbian Film Festival rather well.

We have a difficult past as South Africans – let us stand back to think for a moment – 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 and another 150 years of conflict, essentially over gold and diamonds. And in that process many many people’s lives were trampled and we ended up with a, I will call it, a last fling – 50 years of apartheid in which prejudices, differences, insular and narrow mindedness found root and became entrenched. And what did apartheid teach in this time? It really was premised on the notion that people are deeply and inherently different and that the difference ought to not stay in peoples personal notions but it actually had to be entrenched into law – it had to find ways to actually draw lines amongst people.

And once it had done that it actually had to find the power of the state to enforce your particular world view on others – this is really what it was about, and for good measure you could decide who was superior or – inferior. If you are heterosexual it must be because somebody willed it so – some even suggest the ridiculous notion that God willed it - and some would say if you are 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 – those who are not part of the mainstream. And around this the whole notion about what families are and ought to be – about what good people do – and what culture in fact is permissible and what culture is in fact not permissible. So in short we have had a background of amazing repression, of exclusion, of exploitation, but above all of indignity – just absence of equal worth – equal dignity. Under apartheid diversity didn’t exist.

Come 1994, we created a collective commitment to create a whole number of things, but most people are only prepared to go so far and certainly in relation to personal relationships. Not in relation to family – not in relation to a whole range of choices that people might make. In a strange way sometimes not quite fully appreciated, and this much I said one time to a meeting at which the South African Council of Churches literally summoned one of us to come and explain our judgment in Fourie. I went and there were as many people as there are here, probably all people of the Cloth of that particular religion. And the question was: “Haven’t you departed from what is fundamental in all religions?” And I was at pains to suggest that if you sought to exclude people for choices that they make, that they find appropriate in their own lives, you are probably much further away from your convictions - you are much, much further away from compassion - and surely 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 – it’s clearly 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 I think you have seen the Court, in a very steadfast way in the last certainly 12 to 13 years, pronouncing on matters which others find to be difficult and this seems to have taken 4 key characteristics – and before I do so I think I should just pay tribute to gay and lesbian structures that actually helped wittingly and unwittingly in the development of quality jurisprudence in this country. All those struggles around 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 around issues of equality, so we owe a lot of debt actually to gays and lesbians in this country certainly around equality issues

But perhaps just to wrap up it’s important to remind all of us that the Courts and our Court has consistently said that SA has a multitude of family formations - it’s a groundbreaking observation to make. It may be plain to others, but certainly in many minds people think there is only one family – a family that they think they know what that must be - it’s not unlike three and a half centuries of no recognition of Muslim marriages, for instance, heterosexual marriages. Its 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. So it’s just important to understand that one of the key fundamental things we say in our jurisprudence, the recognition that there is a multitude of family formations and that they have evolved – they are evolving and they will continue to evolve - as we move in recreating our society.

Just as important I think we have said time and again, is that we have to acknowledge the long history in this country, and indeed in many other countries around the world, of the marginalisation and persecution of gays and lesbians, and that it was important for us to reassert their right to live just as well as, and hopefully better than, everybody else around them. And it was an important assertion in an environment which was not exactly always friendly.

It reminds me of the death penalty decision in a society, which holds views that might possibly not accord with their own constitution, but it’s important for a Court like ours to say so in clear and loud terms. We have observed from time to time that, in fact that up to now, there is no comprehensive legal regulation of family and personal rights around gays and lesbians in this country, and that it is therefore appropriate to put government on terms. And we opted for a very unusual court order where we eventually said it has to be done in a very specified time – it will be 12 months and if not then certain rights will kick in which we did not create – they sit in the constitution already – so we were really just messengers of what pre-existed before the Fourie Judgment.

And the fourth point that we made from time to time was a need just to remind our people that we need a radical rupture from the past and that - is not limited to race, that rupture includes family relations – it’s 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 and explains in many ways a whole of range of deficiencies that women still have to be subjected to in this country. So we need a more comprehensive rupture that will equalize 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 I think sacrifices many have made in order to ensure that there is a full turning away from an evil past and create a just rearrangement socially and otherwise and economically. It is quite often most struggles end up insular. For me it was race and for many it was sexual orientation, but I think it has to move on to poverty - to equalize 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 just important that we build a groundswell of a society very different from the one we had to live through for over 350 years.

I’ve made the four big points that I sought to make and I can close by saying that its an important constitutional value to acknowledge diversity, to acknowledge pluralism, freedom of association, the right to be different within a cohesive whole i.e. Our nation, our people in this country and the right to have the assurance that there will be protection as when you choose to depart from majoritarium norm. People should be free to be able to make choices that they may depart from the norm and provided the purpose served is legitimate we should have a society that is capable of enduring that, living with that, and make sure that indeed it becomes a proud part of all of us. I would like to thank you for listening. What remains is for me to say is a few things about opening the festival which sounds a little presumptuous for me to say that – it’s been around for 13 years - but please do enjoy this festival and from my side and coming from Pretoria all I can say is “sterkte” and the very best to all of you."