Masuku judgment confirms freedom of expression not a license for racism

22 February 2022  

“The comments and statements made are of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation.  A prima facie case of hate speech is clearly established as the statements and comments by Mr. Masuku are offensive and unpalatable to society”.

Thus was the unequivocal conclusion of the SA Human Rights Commission (SAHRC) when ruling on a complaint against Bongani Masuku, International Relations Secretary of the Congress of South African Trade Unions (COSATU) in December 2009. Masuku was found guilty of hate speech and directed to apologize to the Jewish community.

The complaint was lodged by the SA Jewish Board of Deputies (SAJBD) in March that year in response to various inflammatory statements by Masuku against Israel and its local supporters. The Board argued that these had crossed the line between legitimate expression of opinion and incitement to hatred and cause harm to South African Jewry, thereby contravening the anti-hate speech provisions under s10 of the Promotion of Equality and Prevention of Unfair Discrimination Act.

The fact that the SAHRC, a vital Chapter 9 Institution whose mission it is to “promote respect for, observance of and protection of human rights for everyone without fear or favour”, had denounced its spokesperson in such forthright terms was already a stinging rebuke to Cosatu. 

However, the matter would have ended there had Masuku complied with the ruling. Instead, backed every step of the way by COSATU, he opted first to disregard it and then, when the Commission turned to litigation to get its ruling enforced, to fight the matter through the courts. The ensuing series of court cases would have a profound impact on South African jurisprudence in terms of how to understand and apply existing legislation prohibiting hate speech in the country.      

In August 2019, following hearings before the Equality Court in February 2017 and the Supreme Court of Appeal (SCA) in November the following year, “the matter between the SAHRC on behalf of the SA Jewish Board of Deputies (applicant) and Bongani Masuku (First Respondent) and Congress of South African Trade Unions (Second Respondent)” came before the country’s apex judicial forum, the Constitutional Court.

Last week, just under thirteen years since the lodging of the original complaint by the SAJBD, the court handed down its judgment in which it upheld the SAHRC’s finding that Masuku had been guilty of hate speech against the Jewish community and ordering him to apologise.

In arriving at its conclusion, the Concourt found the following statement by Masuku “to be harmful, and to incite harm and propagate hatred; and amount[s] to hate speech as envisaged in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000” [hereafter ‘PEPUDA’]:

“…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…”. 

In considering this statement, the Concourt concurred with the Equality Court that a reasonable reader would have noted that a reference to Hitler to a group that was predominately Jewish was used because of their “Jewishness” – namely, their Jewish ethnicity and identity. As the Equality Court had noted, Hitler’s antisemitic extermination campaign was not limited to people of the Jewish faith or ethnicity who identified as Zionists, and moreover, any mention of “Hitler” undeniably “evoked semantic associations with the entire global Jewish community, and not a specific faction thereof”.

This is an important finding, and its implications are likely to resonate widely in the ongoing battle against global antisemitism.

A noxious form of antisemitic discourse that has surfaced in recent times has been to accuse Jews, formerly the primary victims of Nazism, of now behaving like Nazis themselves, a scurrilous and intentionally wounding charge that inter alia serves not only to grossly exaggerate the alleged misdeeds of the Israeli state but by implication to minimise the true scale of the horrors inflicted upon European Jewry during the Holocaust.

In describing those he was addressing as being “friends of Hitler”, Masuku would have been well aware of how profoundly hurtful and insulting his words would be to his mainly Jewish readership. For the Constitutional Court, while it gave Masuku the benefit of the doubt regarding other impugned statements on his part, this was the clincher. With the upholding of the SAHRC ruling against him by the apex court, Masuku has now finally run out of options and has 30 days from the handing down of the judgment to comply with the order that he apologise to the Jewish community.

It is worth recording that in addition to his “Friends of Hitler” comment, Masuku’s various communications featured a number of other overtly antisemitic comments, including references to “loud-mouthed rabbis” and describing Jews as being “arrogant” and “greedy”. All of this and more can be found in the court record.

The other big loser in this prolonged affair is, of course, COSATU. After more than a decade of aggressively defending Masuku’s statements, in the course of which it will have expended what one can only imagine in terms of legal fees, it has now effectively been shown to have endorsed anti-Jewish racism and must now after all accede to its spokesperson apologizing to those he has maligned.

Bizarrely enough, certain die-hard anti-Israel groupings have chosen to portray the Concourt ruling as a victory, claiming that it had dismissed the equating of anti-Zionism with antisemitism. This, of course, is entirely untrue. The right of Masuku or anyone else to say whatever they like about Israel was never in question in this case.

What was at issue rather was the right of people to identify with Israel and defend it against such attacks without being subjected to racist invective and threats by powerful political lobbies. In this regard, the judgment of the Constitutional Court speaks for itself.

It has reaffirmed at the highest level the principle that while the right to express one’s political or ideological views, no matter how robustly one chooses to do so, is an inalienable democratic right, this never justifies causing gratuitous offense to those who choose to differ on the basis of such immutable factors as race, ethnicity, religion or any of the other grounds listed under s10 of PEPUDA.

While it took a long time to get there, the outcome is decidedly a good one for democracy a for the human rights culture we are striving to build in South Africa.