By Adv. Craig Snoyman

This week, with a whimper, ended  probably  the longest-running  hate-speech case in South African legal history. Following a Constitutional Court order,  an apology was published on the South African Jewish Board of Deputies (SAJBD) website in which “Mr Masuku and Cosatu hereby tender their unconditional apology to the Jewish community and regret the harm caused.”

The unionist and his union were obliged to give an  unconditional apology  to the Jewish community.  The  apology had to receive at least the same publicity as Masuku’s initial offending statement. As the hate-speech was published on a weblog that no longer exists it was sent to the SAJBD, which then released it on its website. Some of us missed the judgment that was handed down. Most of us missed the apology. All of us had heard about the issue.

Masuku’s apology  is the culmination of a 13-year debacle that started  during Operation Protective Edge, in January 2009. His trade union organization, Cosatu, led a march to the offices of the SAJBD and the South African Zionist Federation (SAZF)  in support of “the Palestinians”. During this “mostly peaceful” march there were swastikas in evidence and an Israeli flag was burned.

Masuku then posted, on a  now-defunct weblog, that:

 “[A]s we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler!  We must not apologise, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine.  We must target them, expose them and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity.”   

Now where have we heard something similar about ‘perpetual suffering’?

Maybe the utterance that the Jews and their  successive generations will bear a communal guilt in perpetuity for the killing of Christ perhaps?

The following month Masuku addressed a Palestinian student’s group meeting at the University of the Witwatersrant (Wits}.  During his speech, he stated that he was making a distinction between Jews and Zionists. Three aspects of his speech drew attention.  First, he said that Cosatu had members at Wits and they can make sure that for “that side” it would be hell. He also continued by stating that South African parents who choose to send their children to be part of the Israeli Defence Force (IDF) must not blame them when something happens to them with immediate effect.  The third aspect of his speech was that Cosatu supported the Palestinian cause and would do everything to ensure – whether at Wits or Orange Grove – that those who did not support equality and dignity should face the consequences even if it meant  “something  that may necessarily cause what is regarded as harm.”

Masuku’s utterances provoked an outcry with parties very vocally taking sides. The SAJBD  referred the initial blog statement and these  three portions of his speech to the South African Human Rights Commission seeking that the matter  be pursued as ‘hate speech’ in the courts.  The issue required to be determined by the  court, as set out in its most basic terms  was:

Did Masuku’s statements amount to hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act? (sometimes called by its acronym PEPUDA,  but usually  referred to as the Equality Act).  Or are his statements constitutionally protected as freedom of speech? The equality and dignity as set out in the provisions of Section 8(3) of the Equality Act on the one side were  balanced against freedom of expression as set out in  Section 16 of the Constitution. Not for the first time were the South African courts called upon to interpret  poorly drafted laws with  unclear sections. Using the Act and the Constitution the Court had to decide the intention of Masuku.

Just as an aside, in a series of further  hostile communications with the blog,  Masuku also stated that “no pro-Israel Jews should ever consider South Africa to be their home (sic)“.  His further rabble-rousing statements were not  raised or dealt with in the courts, but one  – or should I say, “the reasonable person” – can get an idea of his mindset as he published his poison. Perhaps this ancillary little ditty was not deemed necessary to be included as part of the hate speech. However, in hindsight, this small voice believes that it would have been significant.

With the process through the South African courts grinding exceedingly fine, the  matter slowly wended its way through the Equality Court, the Supreme Court of Appeal and eventually the Constitutional Court. Finally, some twelve years after commencement, a final judgment was handed down in February this year.

The court of first instance,  the Equality Court, the Commission was of the view that the statements were offensive and unpalatable to society; that they were of an extreme nature in that they advocated that the Jewish community should be despised, scorned, ridiculed and thus subjected to ill-treatment because of their religious affiliation. It found that a prima facie case of hate speech had been established.

While Section 21 of the Equality Act provides for numerous different sanctions, the Court imposed an apology on Masuku, holding that “an order for an unconditional apology is by no means lenient, and should not be viewed in the light of the proverbial slap on the wrist”.

It would represent a recognition of “the fact that the statements are found to be hurtful and hate speech”, and would constitute “a notable move towards compensating the target groups, in this case, the Jewish community”.

Masuku appealed  to the Supreme Court of Appeal. There he argued that  the Equality Court was wrong and that  just because most people who  ‘would most likely support’ Zionism, were most likely to be  offended were Jewish, did not mean that the statements were directed at them. Rather the statements were  directed at the State of Israel and his statements  could not be  transformed  into ones based on religion or ethnicity. In coming  to its judgment, the SCA seemingly placed great reliance on  the opinion of numerous academics that the “convoluted” Section  10  of the Equity Act expanded the definition of hate speech  and  was unconstitutional. The Appeal Court decided the case solely on the basis of Section 16 of the constitution  and ignored the Equality Act entirely. The Equality Court decision was entirely overturned.

There was much celebration in BDS circles when the appeal Court decision was handed down.  One of the most notable quotes from BDS South Africa used its now “acceptable”  political expression. It  compared the SAJBD and its Zionist agents to Shylock in Shakespeare’s “The Merchant of Venice”  – an intentional slur as  Shylock presents with its many false traits of “the Jew” that are universally recognised as antisemitic stereotypes.  The SAJBD had been denied its ‘pound of flesh’, they proclaimed. There could be little confusion  as to whether their reference was to Jews or Zionists. But they  were safe in their new-found freedom to defame.

The Constitutional Court,  in its customary eloquent manner then proceeded to give the Supreme Court of Appeal (and the Chief Justice of the Appeal Court, who was an assenting judge in the decision) a scathing  tongue-lashing and lambasted the  SCA judgment. It scolded that court for not applying the Equity Act at all.  It held that the Equity act had been  enacted to give life and extend context to the Constitution by the principle of subsidiarity.

The Constitutional Court picked its way carefully through a minefield and set out a clear course to follow in the future.  The statements should be judged objectively applying “the reasonable person’s” view. Applying this standard, the Court held that the statement in the blog constituted hate-speech, but nothing in Masuku’s speech made to the Palestine students fell within the definition of hate-speech.  It re-instated the order of apology.

This  decision, with much to  commend it,  still  shielded those who make harmful statements. It was abundantly clear that Masuku sought to incite harm and violence.  While the Court made clear its abhorrence of the statements made at Wits University, it  correctly held that the statements did not constitute hate-speech which protects only against race, ethnicity, gender or religion.  However, by acknowledging  the extreme nature of  Masuku’s  incitement, it was ideally placed to make an order in terms of  Section. 21(2)(n) of the Equality Act,  that  institution of criminal proceedings in terms of the common law or relevant legislation should have been ordered against  Masuku. The statements constituted criminal  conduct.  But in fairness,  it does not seem that it was asked to do so.

Jews who regard themselves as Zionists can hardly be expected to feel protected as a result of this judgment. The potentially devastating effects of the type of speech remain. The first statement  did not identify Jews by name, but it was viewed as hate-speech. In his  Wits speech is seems that because he said he was distinguishing between Jews and Zionists, there was no hate speech – although the speech was clearly more threatening.  Simply because Zionism is not regarded as race/ ethnicity/ gender/ religion and is excluded from the definition of hate-speech, it does not render that person safe or the atmosphere any less fraught. How is the reasonable person to decide whether I wear a Jewish kippa or a Zionist hat? In all these statements there were only referrals to Zionists. Jews, or even pro-Israel Jews, were never mentioned. Sometimes,  contextual circumstances and perception of the “reasonable man” do not intersect.

Can the reasonable South African objectively identify whether I am a Jewish Zionist? Certainly the opposing experts who testified in the court proceedings could not agree or make a clear contextual  distinction. So if I am confronted with a Masuku-like statement” –  I wish to repeat to you so that it is clear that if you send your son to the Israeli Defence Force then don’t blame us if something happens to you with immediate effect”  –  am I going to be objectively viewed as a Jew or a Zionist?  In either event, it must be regarded as a serious threat.  If I’m identified  as a Jew, then it is both hate speech and a criminal offence. However, if as  a Zionist, then it is only a criminal offence. The nature and gravity of  such an offence  will  likely result in  our over-worked National Prosecuting Authority declining to  pursue the matter criminally.   Clearly,  identifiable context is everything, especially  when the person making  the statement has also just said that these pro-Israeli Jews have no place in South Africa, (a judenrein South Africa?) 

The novelist, Upton Sinclair wrote:

 “It is difficult to get a man to understand something when his salary depends on his not understanding it.”  

The BDS spin doctors are spinning, and these experts are being paid according to their paygrade. Since the judgment, we have heard the spin:  Bongani Masuku remains a non-racist.  Cosatu still remains supporters of the oppressed Palestinians. BDS will continue to rely on the illustrious “human rights” organisations which hold that Israel is an apartheid state. There must still be a concerted effort to root out the kids signing up for the Israeli Defence Force. Sure, there is a  ‘Court ordered Apology’ on record,  but the judgment should still be seen as a win.  The publicity against apartheid Israel following Masuku’s statements was substantial, while his  apology wasn’t even really an apology. His apology was only  for “any harm caused” but he didn’t apologise  for what he said, or for the threat of immediate harm against those living in Orange Grove. He didn’t have to because the court held that that was part of the three out of four statements which were not hate-speech. Victory!

Masuku’s apology merely follows the pattern of his defence in these court cases. The Zionists deserve what they have coming to them and his freedom of speech should not be restricted.  His liberation credentials remain intact. His apology is hardly the apology that the Equity court had in mind! He must be well aware of it.  There was no compensation or remorse in his apology. The judgment against him must now viewed by reasonable people as  far less than a slap on the wrist, as far less than the pound of flesh. His sanction is more like a chewed-up piece of  nail that has been spat out by a laughing villain – and about as visible. He received millions of paragraphs of publicity flowing from what he said, but his remorse is reflected in a one sentence apology about causing harm and addressed to a substitute  of the source where he initially issued his hate-speech. That same press which expended all that ink, saved some by ignoring the apology.

But made no mistake,  the SAJBD can celebrate what is really a spectacular and very rare win, in overturning a unanimous full bench decision made by what was once  our highest court in the land. Pure nachas and major boasting rights.

Next time, and unfortunately there will be a next time, they must go for the jugular. The Masuku ilk should not get off so lightly.

About the writer:

Craig Snoyman is a practising advocate in South Africa.

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