By Adv. Craig Snoyman
The case of CITIZENS FOR INTEGRITY (CFI) vs THE GOVERNMENT OF SOUTH AFRICA is due to be heard in the urgent court in the Pretoria High Court on 7th December. The case has done the rounds on social media, but the mass media seem to have shown little interest in in it. Of note is that that CFI have taken the government to task, alleging that it has treated Miss South Africa unconstitutionally and acted irrationally. Even more notable is that the deponent, (the person signing the founding affidavit in the application) on behalf of CFI is the Deputy Chair of the ANC Women’s League, Sibongele Cele.
While not wishing to pre-empt the decision of the court in anyway, there was an interesting point that was raised in the papers, which I have not seen dealt with by any of the writers and experts. These pundits have flooded the South African media about the Government’s withdrawal of support for the Miss South Africa pageant and Miss South Africa with many tons of litres of ink (and billions of mega-pixels). The issue of the South African government’s actual boycotting action of the pageant – because it is being held in Israel – has been an ignored subsidiary issue. Admittedly, this issue will likely have no bearing on the outcome of the above case, but it certainly is an issue worth raising.
On 14 Nov 2021, the South African Minister for Sports, Art and Culture, Nathi Mthwethwa, made the following announcement:
“The South African government withdraws its support and that of South Africa for the Miss South Africa pageant following the latter’s intransigence and disregard of advice against partaking in the Miss Universe pageant scheduled to be held in Israel during the month of December 2021.”
He then proceeded to state further that:
“Following unsuccessful consultations initiated by the Ministry of Sport, Arts and Culture, it has proven difficult to persuade the Miss SA pageant organisers to reconsider their decision to partake in the Miss Universe event scheduled to be held in Israel during the month of December 2021. What during initial consultations appeared like engaging, constructive and progressive discussions, was later met with an unpleasant demeanour that is intransigent and lacking appreciation of the potential negative impact of such a decision on the reputation and future of a young black woman.”
The effect of the withdrawal of support for the Miss South Africa pageant, resulted in the effective withdrawal of government for the pageant organisers and also for Miss South Africa herself. She is only Miss South Africa as a result of the pageant. This caused a media feeding frenzy, with two sides of the South African public polarising as to whether Miss South Africa should follow the government’s instruction to boycott or whether she should go. Whether the government has the right to withdraw “its support and that of South Africa” is a question that will be answered by the court.
Polls in South Africa tended to support her attendance.
At this stage it is important to digress and deal with the concept of boycotts and America’s attitude to them, specifically concerning Israel and how it might affect South Africa. There are various forms of boycotts. I have used the example of Israel as the perceived wrongdoer.
A primary boycott would be a direct refusal to deal with or purchase Israeli goods or services, to sell their services or goods to Israel, or to deal in any manner with companies, nationals, or residents of Israel. A complete boycott of all things Israel.
A secondary boycott is where, to enhance the effects of a primary boycott, a boycotter may refuse to deal with those who support the adversary. Individuals may refuse to purchase goods manufactured by any company that sells its goods to the target of the boycott, Israel.
The distinctive feature of a secondary boycott is that the ultimate target of the strike action is one step removed from the direct target. The individual expects that applying pressure to the individual or company, it will be forced to deal differently with the (perceived) wrongdoer.
A tertiary boycott, (such as the Arab League “blacklist” against Israel) would ensure that a company that does not trade with Israel may also not trade with other companies that have dealing with the perceiver wrongdoer, i.e. Israel, the boycotted country. So the tertiary boycott led to the situation which prohibited an Arab League member and its nationals from doing business with any company that in turn dealt with companies that have been blacklisted The financial consequence of being placed on the Arab League blacklist was severe: the offending party was forced to choose between either terminating the offending acts or losing access to Arab League member markets. Notable examples were Pepsi and Toyota.
The US case of NAACP v. Claiborne Hardware Co. established that there are limits on the free-speech rights accompanying commercial boycotts. The obvious inquiry is where is the line between permissible restrictions and impermissible infringements on First Amendment, (Freedom of Speech) rights. The advocation of a boycott is a First Amendment right and would constitute free speech. The general principle developed is that when a boycott interferes with commerce or disrupts important policy goals of the government, especially if the boycott is of a secondary or tertiary nature, that right to boycott is vulnerable to government infringement.
It would seem that the actions of Minister Mthwethwa have exceeded the bounds of First Amendment rights. He had discussions with the organisers of Miss South Africa pageant, at the very least. After the discussions having been met by an “unpleasant demeanour” and “intransigent attitude”, where his opinion was not accepted, he then withdrew support of the government and South Africa of those opposing him. In boycotting terminology, he has refused to deal with Miss South Africa and the pageant who wished to attend the Miss Universe pageant in Israel. His target was the organisation and people who were one step removed from the direct target, being Israel. By his deeds, he falls within the category of a secondary boycotter.
While South Africa is a country, the situation with the ice cream company Ben & Jerry’s is not very different. In July this year, American ice cream company Ben & Jerry’s announced that they planned to boycott West Bank settlements and Jewish neighbours in East Jerusalem by refusing to allow its products to be sold in those areas. In a statement on its website, they stated
“We believe it is inconsistent with our values for Ben & Jerry’s ice cream to be sold in the Occupied Palestinian Territory (OPT)”
It further stated that they were not boycotting Israel, just the “Occupied Palestinian Territories” and would continue with the sales to Israel within the pre-1967 borders.
The fallout for its parent company, Unilever, was swift. Unilever stated that it remained fully committed to its presence in Israel but respected the right of the independent board of Ben &Jerry’s to make such decisions. Prime Minister Bennett of Israel condemned the move. Foreign Minister Lapid stated:
“Over 30 states in the United States have passed BDS legislation in recent years. I plan on asking each of them to enforce these laws against Ben & Jerry’s. They will not treat the State of Israel like this without a response,”
In fact, 35 states have passed bills and executive orders designed to discourage boycotts of Israel. Most have been passed with broad bipartisan support. While the bills are different in certain respects, they have taken one of two forms:
(a) contract-focused laws requiring government contractors to promise that they are not boycotting Israel; and
(b) investment-focused laws, mandating public investment funds to avoid entities boycotting Israel.
Consequences for the boycotting entity may range from disinvestment from State employee pension funds to losing out on contracts at State run organisations.
The first State to react was Arizona, on August 3, 2021, when its Treasurer’s Office informed Unilever PLC that it was actively boycotting Israel due to the actions of Ben & Jerry’s, a subsidiary of Unilever, by announcing that it will withdraw sales from Israel. These actions were in direct violation of Arizona statutes and accordingly public state entities would not be allowed to invest moneys with an entity that boycotts Israel.
Since the announcement, at least eight states have taken steps to halt or withdraw investments in Unilever since Ben & Jerry’s announcement. Arizona and New Jersey already divested all of their state funds from Unilever. Texas and Florida have already “begun applying their anti-Israel boycott statutes to begin divestment from Unilever.”
Last month, the New York’s Common Retirement Fund announced that it will withdraw $111 million in actively managed holdings in Unilever after a 90-day review.
The South African government’s formal explicit statement withdrawing support for Miss South Africa and the pageant leave the government with little or no wiggle-room.
“The atrocities committed by Israel against Palestinians are well documented and Government, as the legitimate representative of the people of South Africa, cannot in good conscience associate itself with such. …. Israel was guilty of the apartheid treatment of Palestinians.”
It announced very clearly that the South African government intends to cause harm to the State of Israel and violates the BDS legislation of 35 states of the United States of America. As was stated by Governor Cuomo when the BDS legislation was passed in New York:
“It’s very simple. If you boycott against Israel, New York will boycott you. “If you divert revenues from Israel, New York will divert revenues from you. If you sanction Israel, New York will sanction you. Period.”
So, from where I sit, it appears that South Africa has opened itself up to anti-boycott legislation which can be called up by the various States. The action taken by Ben & Jerry’s does not appear to be nearly as heinous as that of South Africa. Perhaps South Africa doesn’t feature in the class of Unilever and that is why sanctions have not been imposed on it. Even the State of Israel has regarded South Africa as sufficiently insignificant so as not to invoke the anti-BDS legislative sanction.
But I certainly would not want to be a negotiator for South Africa the next time that AGOA (African Growth and Opportunity Act) and trade barriers between the USA and South Africa come up for discussion.
About the writer:
Craig Snoyman is a practising advocate in South Africa.
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