A tale of two Equality Court cases

Sara Gon compares the experience of Penny Sparrow with that of Bongani Masuku

Some are more equal than others

“COSATU has got members here even on this campus; we can make sure that for that side it will be hell”

“COSATU is with you, we will do everything to make sure that whether its at Wits University, whether its at Orange Grove, anyone who does not support equality and dignity, who does not support the rights of other people must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm…”

“…The following things are going to apply: any South African family who sends its son or daughter to be part of the Israeli Defence Force must not blame us if something happens to them with immediate effect…”

Bongani Masuku, International Secretary of the Congress of South African Trade Unions (COSATU) said at a Palestinian Solidarity Committee at the University of the Witwatersrand 5 March 2009.

“…as 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…” – Bongani Masuku, internet

“…all who have not accepted or woken up to the reality that we now live in a democratic South Africa where racism or promotion of it is a crime, are free to leave the country. I repeat whether Jew or whomsoever does so, must not just be encouraged but forced to leave, for such a crime is so heinous it cant be tolerated…” – Email from Bongani Masuku to the South African Jewish Board of Deputies (SAJBD)

“…all those who deny that occupation is wrong must be encouraged to leave South Africa before they infect our society with much more racism…”

The document then notes: Mr Masuku, in response to a letter from the South African Human Rights Commission dated 11 May 2009 outlining the allegations made by the SAJBD denied that his remarks were tantamount to hate speech and stated that the “constant cry of ‘hate speechfrom the South African Jewish Board of Deputies against criticisms of Israel has become extremely tiresome, wasteful of resources, and is trivialising the serious charge of ‘hate speech’.” – Email to multiple recipients on the 13 February 2009

In April 2009, the SAJBD referred a complaint of hate speech against Masuku to the South African Human Rights Commission (SAHRC).

On 4 December 2009, the SAHRC ruled that the statements were hate speech. The SAHRC instructed him to apologise to the SAJBD. Masuku didn’t and COSATU didn’t.

The SAHCR, on behalf of the SAJBD referred the matter to the Equality Court. The respondents were Masuku and COSATU.

On 29 June 2017, the Equality Court in Southern Gauteng found in favour of the SAHRC.

Judge DSS Moshidi found that although the Bill of Rights protects the right to freedom of expression, the court found: “the right is neither an absolute nor limitless right nor is it a pre-eminent right.”

Judge Mosidi found that Masukus utterances had caused harm that resulted in “emotional damage caused by words, which may have serious psychological and consequences.”

In the Judges view Masukus utterances via the website transgress section 10 (1) of the Equality Act and clearly makes reference to persecution and harm, which amounts to a direct incitement to cause harm to South African Jews.

The Judge elaborated: “the post was made to instill detestation, enmity, ill-will and malevolence towards Jews in South Africa. It is distinct advocacy of hatred – nothing else.”

The court thus found that Masuku’s statements were harmful, hurtful, incited harm and propagated hatred which amounts to hate speech in contravention of section 10 of the Equality Act.

Both Masuku and COSATU, on whose behalf he acted at the time, were ordered must tender an unconditional apology to the Jewish Community within 30 days of the judgment. The apology must receive the same publicity as the offensive statements.

Masuku and COSATU were ordered to pay costs.

COSATU’s response? COSATU’s organising secretary Theodore Steele said they would study the judgment before taking any further steps. "We are very disappointed with the outcome. We will study the judgment while the [Palestine] campaign continues.”

"We are going to intensify the campaign of awareness so that the broader public understands what is happening in Palestine [and that they] understand [that] women and children are killed daily and [that they] understand that at times there will be emotional responses.” (News24 Cosatu 'disappointed' at Equality Court ruling on Masuku Jeanette Chabalala 29/06/2017)

No contrition or factual accuracy there then.

This judgment is hugely important in declaring that anti-Semitism IS hate speech and can no more be uttered by blacks than hate speech can be uttered by whites.

However, a sobering contrast of this case to that of Penny Sparrow (Sparrow) is elucidating.

Sparrow notoriously referred to black people as “monkeys” for littering a beach on her Facebook page on 2 January 2016.

The African National Congress (ANC) laid a complaint with the SAHRC. The latter then charged her with hate speech in the Equality Court on behalf of the ANC.

On 10 June 2016, the Equality Court of Umzinto heard the matter. It deemed her utterances hate speech. Sparrow was interdicted from uttering hate speech again. She was also ordered to pay “damages” of R 150 000 to the Oliver and Adelaide Tambo Foundation, the court was instructed to refer the matter to the Director of Public Prosecutions KwaZulu-Natal to consider instituting criminal proceedings. Sparrow was ordered to pay costs.

In September 2016, Sparrow appeared in the Scottburgh Magistrates court where she pleaded guilty to a charge of crimen injuria.

The court fined her R 5 000 or 12 months imprisonment, in addition to two years imprisonment suspended for five years on condition she does not commit a similar offence. Sparrow also had to tender a public and Facebook apology for her offending post.

As 15 December 2016 Sparrow had not paid the fine. She has applied for condonation and for leave to appeal. She has written a letter of apology in terms of the court order.

In this period Sparrow lost her livelihood, her house, and had to go into hiding. She was soon penniless.

The first case was resolved eight years after it was initiated and punishment was a public apology.

The second case was completed in less than nine months with punishment of fines of R 150 000 and R 5 000 or twelve months imprisonment, two years imprisonment suspended conditionally for five years, and obliged to make two public apologies.

All complainants are equal, but some complainants are more equal than others.

All accused are equal, but some are more equal than others.

Apologies, George Orwell.

Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. Follow the IRR on Twitter @IRR_SouthAfrica.