Alleged Homophobic Statements by Mr Peter Marais: Report Released

31 January 2003

The Public Protector�s report on alleged homophobic statements by Mr Peter Marais was presented to the Speaker of the Western Cape Provincial Parliament this morning. These statements by Mr Marais, then Premier of the Western Cape and previously Mayor of Cape Town, were said to be in breach of the rights to equality and dignity contained in the Constitution of the Republic of South Africa Act, No. 108 of 1996, and to have caused improper prejudice. The statements were, further, alleged to be in breach of Mr Marais� oath of office as Premier and of his Constitutional obligation to uphold the rights and values enshrined therein.

The complaint against Mr Marais referred to:

(a) Mr Marais� public opposition to marketing Cape Town as the gay [�pink�] tourism capital;
(b) his alleged general homophobia, as evidenced in the reported statement that he had �condemned homosexuals�; 
(c) his allegedly unfounded statement that a group of �gays� within the Democratic Alliance were plotting to remove him from office; 
(d) his alleged disrespect for the rights and values of equality and human dignity contained in the Constitution, as evidenced inter alia in his reported statement that Christians must choose between the Bible and the Constitution as the latter was written by communists.

The complainant asserted, further, that Mr Marais� occupation of the post of Premier of the Western Cape Province and Mayor of Cape Town at the time that most of the alleged statements were made and decisions taken, should to some degree have limited his freedom of speech with regard to airing his personal views in public. The complainant argued that these posts were occupied as a public official and as a representative of a population with a wide range of views. The Complainant was also concerned that some of Mr Marais� allegedly improper statements appeared on the Western Cape Provincial Government website, which seemed to reflect some form of official endorsement of his allegedly improper and unconstitutional statements.

The complainant alleged that the broader Cape Town and Western Cape gay community had been improperly prejudiced by Mr Marais� refusal to allow them, as a �previously disadvantaged grouping, to promote [their] individuality and commerce internationally to a specific target market�.

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Findings

It was not possible to find that Mr Marais had made all the alleged statements precisely as claimed, largely because it was not possible to conclusively verify the accuracy of the rapportage of those statements. While Mr Marais admitted making some of the statements attributed to him, he denied having made others. Where he admitted making certain statements and adopting certain policy decisions, he was able to satisfactorily contextualise and justify them. It appeared furthermore that, where he had become aware of the possibility that an incorrect impression had been created by rapportage of certain of his statements, he showed that he had taken prompt corrective action.

It was, therefore, not possible to find that either the individual Complainant or the gay community that he claimed to represent, had been improperly prejudiced.

The particular circumstances in this matter rendered it inappropriate to make a finding regarding the complaint that public representatives should be constrained in some way from making public statements on matters of conscience. 

The oath of office of senior public representatives requires them to uphold constitutional values. However, the available case law is not directly in point, but suggests that, generally, it is permissible to express disagreement with constitutional standards. The applicable legislation, primarily the South African Constitution and the Western Cape Provincial Constitution, the Executive Members� Ethics Act and the Western Cape Members of Parliament Code of Conduct Act, does not deal directly with the issue. 

The relevant legislation does afford a provincial legislature the power to set detailed standards of conduct relating to the conduct and performance of its provincial executive, including the Premier. The Public Protector has, consequently, in terms of the provisions of the Public Protector Act, referred this element of the complaint to the Western Cape Provincial Legislature for consideration.

Enquiries: Adv Gary Pienaar
Tel: (021) 423 8644

Nicolette Teichmann
(012) 322 1190
082 333 5624 

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