Introduction
“Stories matter. Many stories matter. Stories have been used to dispossess and to malign. But stories can also be used to empower, and to humanise. Stories can break the dignity of people. But stories can also repair that broken dignity.”[1] The case of Nathanson v Mteliso & Others[2] raises issues regarding the minority rights of the transgender community in our jurisdiction. His Lordship the Honourable Justice Bere who heard the matter remarked that, “this judgment, in a way, will help spark frank national conversation of these issues which we appear to have been shy or less enthusiastic to openly discuss.”[3] Indeed, the judgment will cause a national conversation which conversation will most likely involve religious leaders, gender activists, human rights groups etc.
What is Transgender Sexuality?
In the judgment supra, his Lordship authoritatively quotes Nolo’s Plain English Dictionary and the New Oxford American Dictionary which define transgender as: “The state of a person’s gender identity (Self-identification as male or female) not matching their assigned sex at birth” as well as; “Denoting or relating to a person whose sense of personal identity does not correspond with the gender assigned to them at birth".
Issues Considered Taboo in Zimbabwe
It is not a myth to state that during the liberation struggle it was claimed that if one indulged in sex one would die in combat. There were no records of persons who died as a result of fornication during the war but it was a very effective deterrent in preventing guerrillas from having and raising families during the war.[4] In our society a civil partner or civil partnership is frowned upon. One would recall the national dialogue that took place involving various cultural and traditional, religious and gender groups on the “Civil Partnership” or “Clause 40” of the Marriage Bill, which was later withdrawn by Cabinet. Are our statute books now going to contain provisions which safeguard the rights of the transgender community which have been confirmed in this judgment? At paragraph 132 of his judgment, the learned judge stated that,
‘to avoid the recurrence of what happened to the plaintiff in this case, it might be prudent to construct unisex toilets as an addition to the resting rooms in public places’.
How will Parliament react to this? How soon will we be seeing the necessary changes? No doubt the learned judge did not order the construction of unisex toilets, but the reality is, with the confirmation of this judgment, a sexual revolution is nigh! Instead of constructing “unisex toilets” how about constructing “transgender toilets” for use by the transgender community whose existence has been recognised by our courts?
The Facts of the Matter
On the 16th January 2014 at the Palace Hotel, Nathanson (a transgender) whilst waiting for a client took a tinkle in the Ladies’ Toilet. There were two gentlemen sitting at the bar in the hotel who noticed this and after her return from the ladies, invited her over to the bar and asked her to buy a bottle of whisky for them to maintain their silence. Nathanson declined the invitation and it was upon this rejection, that one of the gentlemen made a telephone call and advised Nathanson that he was going to ‘fix her’. Nathanson then tried to depart from the hotel, but was prevented from doing so by these gentlemen and was detained until the arrival of the police. A six-member police reaction group arrived at the scene and arrested Nathanson and bundled her into the back of an open truck headed for Bulawayo Central Police Station. Upon arrival, and is now the ‘indiscriminate practice’ she was told to remove her shoes. A little later she was then ordered by a group of about five men to go into a side room and ordered to remove her clothing in order for this group of men to ‘verify her gender’. On seeing Nathanson’s gender, the police officers started laughing and jeering at her. For a moment it is important to pause and just highlight what the learned judge stated about this incident:
“I imagine how unease one feels if they have to go to a medical doctor of their choice (someone who is specifically trained on issues of confidentiality), and expose their genitalia, if a medical need arose. Imagine five male strangers demanding and ordering one to display their genitalia for them to examine. It is better left to imagination how the plaintiff must have felt after this invasive conduct by these five police officers. It must naturally have gotten worse for the plaintiff when the officers started fidgeting and making fun of her after this inconclusive examination.”[5]
Nathanson was examined by medical doctors. The medical examination confirmed that she was transgender. The criminal charges which were laid against Nathanson were dropped. Again, one can do no better than quote his Lordship who held that:
‘even if it is assumed that the police officers who arrested the plaintiff in this case, genuinely believed that by entering a female toilet when she was a male plaintiff had committed a criminal offence one is left to wonder whether the police needed to use such a high-handed approach as what they did in this case. Their conduct was tantamount to using a 16-pound hammer or a machine gun to crush an ant. By any stretch of imagination, the conduct could not possibly have been justified by any fair-minded person. In my mind, such conduct was both excitable and unacceptable. It gets worse if one considers the fact that the plaintiff was only meaningfully advised of the reasons of her arrest on the 03rd day of her arrest, on 17th January 2014, that is, when she was warned and cautioned.’
On the issue of wrongful arrest, Mc Kerron in his Law of Delict, 7th Edition at page 259 and 260 states that: “It is also an actionable wrong to procure the imprisonment or arrest of anyone by settling the law in motion against him maliciously and without reasonable cause." It is because of her unlawful imprisonment and the malicious prosecution and emotional distress that Nathanson went through that she filed a lawsuit claiming damages.
Award of Damages
It is useful to briefly highlight some of the amounts i.e. damages that our courts have granted in recent years.
CASE YEAR ZWL AMOUNT USD$
Nyandoro v Minister of Home Affairs & Another 2010 5 000.00
Nyambara v The Co-Ministers of Home Affairs 2011 2 168.00
Muyambo v Ngomaikavira & 5 Others 2011 3 000.00
Tshuma v The Minister of Home Affairs & 4 Others 2013 4 500.00
Mapiye v Minister of Home Affairs & 2 Others 2018 4 000.00
Manjoro v Home Affairs & 2 Others 2018 18 075.00
Generally, an award must reflect the state of economic development and current economic conditions of a country. It is common cause that the calamitous economic decline that has been experienced in Zimbabwe has pushed growing numbers below the poverty datum line. It is perhaps for this reason that it was held that “the downward spiral of the value of the currency is one consideration which, must not escape the attention of the court. There can be no doubt that in this country the purchasing power of our dollar is at its worst and because of this, reference to those cases where the quantification of similar damages was done ten or so years ago many not be very helpful.”[6][7] His Lordship at the conclusion of his judgment, then ordered the defendants jointly and severally the one paying the other to be absolved to pay Nathanson the following:
Damages in the sum of $100 000.00 being damages for unlawful arrest
Damages in the sum of $100 000.00 being damages for malicious prosecution
Damages in the sum of $200 000.00 being damages for emotional distress and contumelia.
Interest at the prescribed rate on the above amounts from the date of judgment to the date of payment in full; and
Costs of suit.
The phrase ‘new dispensation’ has been over-sensationalized as a marketing tool to place Zimbabwe again on the map. One could say that the judiciary has through this case come into a ‘new dispensation’. Only time and jurisprudence will tell!
Conclusion
The transgender community are to be acknowledged for their value and worth as individuals and members of society.”[8] The transgender are citizens and are a part of the Zimbabwean society. Their rights ought to be recognized like those of other citizens. Our constitution does not provide for their discrimination.
[1] Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46 at para 1
[2] HB 176/19
[3] Ibid para 1 See also Promoting and Protecting Minority Rights A Guide for Advocates, Publishing Service, United Nations, Geneva 2012 where it was held that “It is pertinent to note that the concepts of ‘minority’ and ‘majority’ rights are relatively recent in international law, although distinctions among communities have obviously existed throughout history.”
[4] C Pfukwa in Unwritten Ethics and Moral Values: The Human Face of Chimurenga II in Orality and Cultural Identities in Zimbabwe at pages 25 – 36
[5] Para 92
[6] See also Karimazondo & Anor vMinister of Home Affairs 2001 (2) ZLR 363 (H) at 372; Biti v Minister of State Security 1999 (1) ZLR 165 (S) and Gweshe v Minister of Defence [2006] ZWHHC 28
[8] Iain Currie and Johan de Waal, Bill of Rights Handbook, 5th Edition, page 273
Kanokanga & Partners
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