No, that's not why the SAHRC's Malema ruling was wrong

Jeremy Gordin responds to Steven Friedman's indignant take on the commission's finding

In Business Day of April 10, a column by the learned Steven Friedman appeared. I write “learned” because Friedman recently wrote a book titled Power in Action: Democracy, Citizenship and Social Justice. No longer possessing the sitzfleisch for learned tomes, I have not read it. But Adam Habib, vice-chancellor and principal of Wits, no less, has proclaimed it to be “intellectually superb” – so it must be.

The headline on Friedman’s column was somewhat clumsy (not to mention tendentious): “A useless defender will favour the powerful for quiet life”. Clearly, the sub-editor responsible for writing the headline had struggled to figure out the precise or even approximate thrust of the column.

Then – perhaps Friedman complained – the on-line, Businesslive headline was changed to “Human rights rulings show a bias towards a popular persona” and there was an explanatory sub-head: “Firebrand Julius Malema gets away with being outspoken, yet Bongani Masuku is sanctioned for utterances about Israel.” (By the way, the Malema referred to in the sub-head is not a “persona” – unless we are to believe that he’s one kind of person in public while at home he’s a softly-spoken sweetheart who loves whiteys. This is possible; it’s also possible that I’m Robert Redford.)

Anyway, the second headline and sub-head are much clearer, yeah? But, although the sub-head captures part of Friedman’s message, neither the headlines nor the sub-head represent the juicy little piece of offensive cant that is hidden in the column. Well, it’s not really hidden; it’s right there; though I did have to read the column a couple of times. (I must be the only person, besides Friedman, his partner and family, the sub-editors, and Friedman’s eight fans, who bothered to re-read the column.)

Friedman’s article is ostensibly an “attack” on, or snipe at, or “ironic reflection” on, the Human Rights Commission (HRC). Look here, says the learned research professor (Friedman), the HRC found the statements by Malema – about intending to slaughter white folk at an unspecified date and his claim that in KZN “everything is strategically given to Indians” – not to be hate speech, although “offensive”. This being the case, Friedman asks, why, a decade ago, did the HRC find the comments made by former Cosatu official Bongani Masuku about “supporters of the Israeli state” to be hate speech?

Masuku said, as per Friedman, that “Zionists” (explained helpfully by Friedman as “supporters of a state for Jews only”, nothing more) “must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine”; furthermore, they must be subject to “perpetual suffering” until they withdraw from Palestine and have stopped “their savage attack on human dignity”.

Masuku threatened “hell” for any SA family who sent their children to join the Israeli defence force and said people who did not respect equality and dignity should “take the consequences” even if “we do something which may necessarily be regarded as harm”.

Following these utterances, Masuku was taken to the HRC by the SA Jewish Board of Deputies (SAJBD). The HRC found that Masuku had threatened Jews (“hate speech”), a view backed by the Equality Court (EQ) – but then overturned by a unanimous full bench of the Supreme Court of Appeal (SCA). The matter has now been taken to the Constitutional Court by the HRC.

Quick NB: the only “punishment” meted out to Masuku by the HRC and the EQ was the order that he “apologise”. That was all: he could have said “sorry” for being offensive and called it a day. He chose not to do so. That’s fine; it was Masuku’s right. But Friedman’s contention that the HRC “was still pursuing Masuku in the courts ... as late as 2017”, which clearly suggests that the HRC is being unnecessarily vindictive, as is another group (whom we’ll get to in a moment), is a trifle disingenuous. Masuku could have said sorry – and everyone could have gone home for a whisky.

In short, Friedman asks why the HRC found Masuku’s comments to be hate speech, but that Malema’s were not. His answer is that “[i]n both cases, the [HRC’s] view seems based less on a concern for human rights than a desire for the quiet life, less on coming to the aid of the downtrodden than on giving the powerful [sic] who might give it a hard time what they want”. Friedman is saying that the HRC let Malema get away with being “outspoken” (Friedman’s word), but sanctioned Masuku, because the HRC, which just wants a quiet life, rules in favour of the “popular” or powerful.

Not to put too fine a point on it, this line of “reasoning” is rubbish. To argue that, because Malema was let off, Masuku should also have been let off, is patent codswallop. It’s getting the whole thing the wrong way around. The argument should actually be: because Masuku was sanctioned, so should Malema have been, even more so in fact. The issue is not that Masuku was sanctioned, but that Malema was not. Quite patently, the HRC finding in respect of Malema was a shameful travesty.    

And, if we look a little closer, we also note that Friedman explains to us that the reason Masuku got whacked in the first place and is still being “pursued” is that he “fell foul of very well resourced and aggressive supporters of the Israeli state who have become world class at fooling people that attacks on their state’s actions and their ideas are attacks on Jews”. And we may thereby also understand that the HRC was also “fooled” by the same group – if not for this group, then surely the HRC wouldn’t have ruled against poor Masuku.

Know who those “very well resourced and aggressive supporters of the Israeli state” are? It’s uncomplicated code for “rich, pushy Jews”.

Uh-oh, there they are again, Friedman’s perennial bêtes noires – responsible for just about everything that is ugly in the world, especially if they happen to harbour the belief that perhaps Jews might also be entitled to a place called home. It’s depressing, isn’t it, especially when one realises that such an intellectually superb mind needs to have its owner’s mouth washed out with soap.

But let me not proceed in too ad hominem a fashion. Let us take from this what lessons we can. First: be warned, fake news can be found in places we least expect to encounter it. Two: some things don’t change: the basic thinking (for want of a better word) and emotions underlying the good ol’ Protocols of the Elders of Zion, never really disappear ...