Concourt orders Masuku to apologise for hate speech

South Africa’s highest court has ordered Bongani Masuku to apologise to the Jewish community for a series of hateful comments he made more than 13 years ago. He has been ordered to tender an unconditional apology within 30 days.

The long awaited and much anticipated Constitutional Court judgment confirmed on Wednesday, 16 February, that the former Congress of South African Trade Unions (Cosatu) international relations secretary must apologise for offensive and inflammatory remarks he made against the Jewish community in 2009.

The South African Jewish Board of Deputies (SAJBD) has welcomed the judgment.

It brings to an end a protracted legal saga, shining a light on what exactly constitutes freedom of speech and hate speech in South African law.

In February and March 2009, Masuku made a series of inflammatory and hateful comments directed at the Jewish community supporting Israel, following deadly violence in Gaza.

The SAJBD laid a complaint of hate speech with the South African Human Rights Commission (SAHRC) which found in its favour, and referred the matter to the Equality Court which, in turn, found Masuku’s statements to be hate speech in terms of the Equality Act. Masuku was ordered to apologise unconditionally to the Jewish community.

He refused to apologise, and took the matter on appeal.

The Supreme Court of Appeal (SCA) upheld his appeal against hate speech, finding Masuku not liable for committing an act of hate speech. The SCA found that the words were protected speech, and didn’t constitute hate speech in terms of the Constitution.

The SAHRC has continued to pursue the case against Masuku on behalf of the SAJBD since 2009.

“The ruling substantially upholds the conclusions reached initially by the SA Human Rights Commission and thereafter by the Equality Court that Masuku was guilty of contravening Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 [Pepuda],” said the SAJBD on Wednesday. “The SAHRC found Masuku’s statements to have been of ‘an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed, and thus subjected to ill-treatment on the basis of their religious affiliation’, and accordingly, as being ‘offensive and unpalatable to society’.”

The entire matter has to do with four disturbing statements made by Masuku in relation to the protracted conflict in the Middle East.

On 6 February 2009, Masuku stated on the website supernatural.blogs.com:

“Bongani says hi to you all 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 doo all that (sic) is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity.”

The Constitutional Court found this to be in contravention of the Pepuda Act.

The SAJBD said it was of the view that since the great majority of Jews in South Africa support and identify with Israel, Masuku’s threatening and offensive comments in practice target the Jewish community.

SAJBD Chairperson Professor Karen Milner stressed that while the Board fully supported the right to freedom of expression, it didn’t make it permissible to infringe on the fundamental right of others to equality and human dignity as enshrined in the Bill of Rights.

“Freedom of expression doesn’t permit people to incite harm against and call for the expulsion of one’s fellow citizens because of their political views. Such rhetoric crosses the line between legitimate comment and prohibited hate speech, especially when the targets of such hate speech are known to belong to an identifiable religious and ethnic group. Bongani Masuku’s taunting reference to Jews who supported Israel as being ‘friends of Hitler’ was especially hateful and was clearly intended to cause maximum hurt and offense.”

“This ruling reaffirms the zero-tolerance towards any form of hate speech that underpinned our country’s democratic culture, and as such, is a victory for all South Africans.”

On 5 March 2009, at a rally convened by the Palestinian Solidarity Committee at the University of the Witwatersrand (Wits), Masuku made three further statements, also while representing Cosatu. When referring to Cosatu’s intentions towards those who support Israel, he stated, “Cosatu has got members here even on this campus. We can make sure that for that side it will be hell.”

He further remarked, “The following things are going to apply: any South African family, I want to repeat it so that it’s 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.”

Finally, he stated, “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 doesn’t support equality and dignity, who doesn’t 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.”

“It’s quite telling that Cosatu basically refused for 13 years to apologise, given the insistence of the community and the various branches of the law that this was an antisemitic remark,” said Benji Shulman, the chairperson of the South African Union of Jewish Students at the time, and in the room when Masuku made the remarks. “It’s unfortunate it took so long, but I’m happy that the Concourt has decided that this is what it is. I look forward to the apology.”

“I can still recall his chilling threats and the hostile atmosphere that day in the Wits classroom,” said Alana Baranov, who was there in her capacity as diplomatic liaison for the SAJBD.

“With an epidemic of hate crimes in South Africa and rising levels of hate around the globe, all forms of hatred and discrimination in South Africa must be condemned.”

British academic David Hirsh, who teaches sociology at Goldsmiths, University of London, gave evidence when the matter was before the Equality Court.

“South Africa is hugely important to the struggle against antisemitism. The memory of apartheid is appropriated to denounce Israel, and the Jews for whom it is important, as uniquely evil. Today’s news is that the court of the Constitution that replaced apartheid has spoken out against the demonisation of those who are called, with hatred, ‘Zionists’. South Africa understands the difference between criticism of Israel and antisemitism. The rest of the world should follow.”