Homophobic attack victims awarded damages in landmark case

2015-08-13 14:48
The Western Cape High Court in Cape Town. (Paul Herman, News24)

The Western Cape High Court in Cape Town. (Paul Herman, News24)

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Cape Town - A court has awarded two gay Cape Town women R150 000 each in damages for being physically intimidated and emotionally humiliated because of their sexual orientation.

The Western Cape High Court judgment is considered a precedent because it is the first time that a gay couple has pursued a case involving a homophobic attack through both the criminal and civil courts.

The women, identified only as AC and LD as per a court order, were also awarded damages for medical expenses and lost earnings as a result of the behaviour of a bar owner, bar woman and a frequent patron.

“Conduct of this nature is unfair because no-one is entitled to treat a person differently in a manner which impairs their fundamental dignity as human beings, because all people are inherently equal in dignity,” acting Judge Leslie Weinkove said in his judgment.

AC, 27, and LD, 37, are no longer a couple, but were dating when the attack happened on June 25 two years ago.

They were at a pub they frequented when patron Jacques Thiart came up behind AC and put his hand on her lower back, and then pinched a body part.

When she requested that he stop, he put a hand on her shoulder. AC said she slapped Thiart to warn him to leave her alone.

Fight like a man

On her version, which the court accepted, Thiart flew into a rage, called her “a fucking whore, a dyke, a cunt” and said he hated “all fucking lesbians”. He said “she needed a cock up her arse” to come right.

He left the pub and said he was going “to kill her” and “fuck her up”.

It was not too long before he returned and challenged her “to fight like a man”.

He grabbed her by the hair, pulled her hair and head backwards, and carried on with verbal abuse.

LD appealed to bar woman Denise Gerber to intervene. After ignoring Gerber at first, Thiart let AC’s hair go and threw her head forward.

While she managed to avoid hitting the bar counter, she sustained a mild whiplash injury.

AC later testified that she was scared her neck would snap and was also concerned about his threats to kill her.

Weinkove said in his judgment that the unprovoked assault was meant to humiliate and frighten AC, whom he described as a “very attractive, young, slightly built lady”.

The assault constituted “a gross violation of her dignity and security” and caused both women harm.

AC said Thiart had constantly pursued her for a year, but she ignored him. The court agreed that this was most probable and that he had lashed out in resentment.

The acting judge found Thiart’s evidence to be unsatisfactory and contradictory. 


Thiart claimed he simply asked her to stop interfering with bar operations and told them to get out the pub at once because they had been banned from the pub for an incident six months before.

Weinkove said it was “far-fetched and improbable” that AC had interrupted Gerber and a trainee while they were counting money. He also said it was improbable that the couple had been banned. 

After a friend apparently said he should not tolerate being slapped in the face, Thiart's version was that he returned and grabbed her by the hair, which he “held for a while”.

The women decided to bring a protection order against Thiart and reported the incident to the police.

The next day they returned to the pub, owned by Derrick Giles, to get Thiart’s full names.

LD went inside as AC was too distraught.

Gerber, on the instruction of the owner, told her to leave the premises.

When LD told the bar woman why she was there and that she wanted to speak to Giles, Gerber forcibly pushed her out.

LD tried retaining her balance by holding onto the door frame, but Gerber pried her fingers loose. She forced her out the doorway and LD fell to the ground and injured her knee.

Gerber denied pushing her.

Giles came out the pub and told them he had no personal objection to them, but objected to them as a lesbian couple because they caused trouble in the pub.

AC was later diagnosed with chronic post-traumatic stress disorder. She suffered a regression into a state of chronic anxiety and distress, which was the aftermath of childhood abuse she was in the process of trying to overcome.

Since then, she had struggled with persistent anxiety and could not sit in a room with her back to the door because she was hyper-vigilant. She seldom left her home.

Criminal matter

For his criminal behaviour against AC, Thiart was sentenced to a R6 000 fine or six months imprisonment, suspended for five years, in the Cape Town Magistrate’s Court in 2013. He apparently paid the fine.

Weinkove said in his judgment that he was empowered to deal with the matter as a civil claim for injuria (invasion of another person' s rights).

Besides the main damage claim, AC’s lawyers asked for an amount that would cover two counselling sessions a week for two years.

The court awarded half the requested amount.

“I cannot disregard the fact that [the] First Plaintiff had a very traumatic youth and that some of her present problems may be carry overs from that abuse,” Weinkove said.

Besides the R150 000, LD was awarded almost R15 000 for medical costs, injury to her knee and shoulder, and compensated for eight days of lost income.


The court declined a request to order the publication of a public apology.

Weinkove initially considered splitting the damages equally between the three defendants.

On reflection, he deemed Thiart’s conduct “far more reprehensible, painful and damaging” than that of Giles and Gerber. He would therefore have to pay two-thirds of the damages.

The three were also ordered to pay the women’s legal costs, fixed on the High Court scale, including wasted costs for all the days and times when the court was unable to sit for whatever reason.

Read more on:    cape town  |  gay rights  |  human rights  |  crime

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