Words can harm, Concourt rules

The Constitutional Court recently handed down its much-anticipated judgment in the South African Human Rights Commission (SAHRC) on behalf of the South African Jewish Board of Deputies (SAJBD) versus Masuku and the Congress of South African Trade Unions (Cosatu) case, bringing finality to litigation which took 12 years to resolve.

In early 2009, at the height of the Gaza war, Cosatu official Bongani Masuku made various statements online and at a pro-Palestinian rally on the campus of the University of the Witwatersrand (Wits). On the basis of a complaint laid by the SAJBD, the SAHRC prosecuted Masuku in the Equality Court for hate speech in the form of antisemitism for four statements he had made.

• On 6 February 2009, Masuku made a series of remarks on the internet site supernatural.biogs.com stating, “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.”
• On 5 March 2009, at the Wits rally, Masuku said, “Cosatu has got members here even on this campus; we can make sure that for that side it will be hell.”
• At the same rally, Masuku said, “The following things are going to apply: any South African family, I want to repeat it so that it is clear for anyone, any South African family who sends its son or daughter to be part of the Israel Defense Forces must not blame us when something happens to them with immediate effect.”
• Masuku also said, “Cosatu is with you, we will do everything to make sure that, whether it’s at Wits, whether it’s 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 Equality Court found Masuku guilty of hate speech on all four counts. Masuku and Cosatu appealed, and the Supreme Court of Appeal reversed the decision.

The SAHRC appealed to the Constitutional Court. Six parties joined as “friends of the court”, one of which was the South African Holocaust & Genocide Foundation, for which I acted together with advocate Wim Trengove.

The enormous public interest in the case went beyond the issue of antisemitism. As the court put it, the case implicated “the delicate relationship between the fundamental rights at stake” where “the ends of our constitutional democracy are served by striking an elusive yet crucial balance between the imperative to regulate hate speech and the importance of fostering an environment that allows a free and open exchange of ideas, free from censorship, no matter how offensive, shocking, or disturbing these ideas may be”.

The crux of the matter was whether Masuku was expressing antisemitic or anti-Zionist sentiments. The SAHRC argued that Masuku’s statements were directed towards Jewish people and propagated hatred and violence towards Jewish people. Masuku denied this, insisting that his statements “entail my bona-fide views on Zionism and the plight of the Palestinian people”.

All the parties and the court accepted that it was legitimate to criticise the ideology of Zionism and the policies of Israel, even in trenchant and aggressive terms, but it wasn’t legitimate to attack Jews on the basis of their religion or ethnic identity.

On behalf the Holocaust & Genocide Foundation, we argued that the court should accept and start from two fundamental principles. First, that genocide begins with words. Words have consequences. Hate speech, repeated hundreds and thousands of times, becomes incitement to commit genocide. It creates a culture of genocide. The second principle was that through millennia, leaders have used words, and in particular, proxy words, to prepare the ground for persecuting Jews.

We argued that the words Masuku used in the context in which he used them were likely to have had the effect of inciting violence against South Africa’s Jewish minority. Avoiding using the word “Jew”, Masuku drew on age-old antisemitic rhetoric and proxy words to convey to his audience that Jews should be harmed. He did so in a moment in time in which, worldwide and barely 70 years after the Holocaust, antisemitism is on the rise.

The critical question at the heart of the case was whether Masuku was merely criticising the political ideology of the state of Israel, as would appear from the express words he used, or was he in fact using the language of anti-Zionism as a code for antisemitism, expressly targeting “Zionists” but signalling “Jews”?

The Constitutional Court, in a unanimous judgment penned by Justice Sisi Khampepe, recognised the complexity of the relationship between Judaism and Zionism. Although they are distinct, Zionism forms part of the core identity for many Jews, for whom it’s impossible to disentangle one from the other. However, the court also recognised that some are trying to silence legitimate criticism of Israel as being antisemitic.

In perhaps the most significant paragraph of the judgment, the court held that “…words cannot always be taken for their plain meaning. The [Holocaust & Genocide Foundation] aptly emphasised that there exists a long narrative of anti-Jewish rhetoric. This has dominated world history for thousands of years, and culminated in the Holocaust. Due regard to this context and history must be observed when dealing with expressions that are allegedly antisemitic because many socially acceptable words may become a proxy for antisemitic sentiments. Focusing on the plain text and ignoring the objectively ascertainable subtext would be ignorant, inappropriate, and antithetical to what our Constitution demands.”

On this basis, the court held that Masuku’s first statement constituted hate speech because it was based on Jewishness as a religion or an ethnicity, and there was a clear intent to be harmful and incite hatred. Masuku’s invocation of Hitler was the clincher. The court noted that “Hitler’s antisemitic extermination campaign wasn’t limited to people of the Jewish faith or ethnicity who identified as Zionists. Moreover, any mention of ‘Hitler’ undeniably evokes semantic associations with the entire global Jewish community, and not a specific faction thereof.”

Regarding the other three statements, the court held that “Mr Masuku had in mind those persons actively involved in support of the state of Israel – and a political hew to these comments”, which means he wasn’t singling out Jewish people generally as an ethnic and religious group. These statements didn’t fall foul of the law.

The court ordered Masuku to “tender an unconditional apology to the Jewish community within 30 days of this order or within such other period as the parties may agree. Such apology must at least receive the same publicity as the offending statement.”

This case has international significance because our Constitutional Court expressly recognised that, in certain contexts, anti-Zionist words, which are ordinarily part of legitimate political discourse, can be used as a cover to express antisemitic hatred. As important was the court’s recognition of the power of words, as it said in its closing sentence: “In the context of this matter, and in appreciating the power of words to inflict harm, it’s fitting to close with a cautionary and apposite extract taken from the Torah: ‘Death and life are in the tongue’.”

• Advocate Carol Steinberg is senior counsel at the Johannesburg Bar.