Concourt probes appeal court’s U-turn on hate-speech

NICOLA MILTZ

These organisations, represented by the country’s top legal counsel, included the South African Human Rights Commission (SAHRC), the South African Holocaust & Genocide Foundation, The Psychological Society of South Africa, the Rule of Law Project, and the Nelson Mandela Foundation.

The arguments in the landmark hate-speech case covered the carrying and burning of swastikas, code words, the difference between Zionists and Jews, freedom of speech, and what constitutes hate speech.

The case goes back to 2009, when Masuku, then head of international relations at Cosatu (the Congress of South African Trade Unions), made a number of highly inflammatory statements in the wake of violence on the Gaza border.

“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,” Masuku said in February 2009.

“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. Every Palestinian who suffers is a direct attack on all of us.”

The majority of his statements occurred during Israel Apartheid Week 2009 on the University of the Witwatersrand’s east campus during a lunch-time lecture hosted by the Palestinian Solidarity Committee (PSC) and the Young Communist League.

“Cosatu has got members here even on this campus; we can make sure that for that side it will be hell,” Masuku said. “Any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect.

“Cosatu is with you, we will do everything to make sure that whether it is at Wits, whether it’s at Orange Grove, anyone who does not support equality and dignity, who does not support 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.”

Masuku reportedly said that Jews who continued to stand up for Israel should “not just be encouraged but forced to leave South Africa”.

He was found guilty of hate speech by the SAHRC and the Equality Court, and ordered to apologise. Instead, Masuku and Cosatu took the matter to the SCA, which overturned the Equality Court judgement.

This week’s case in the Constitutional Court was the culmination of 10 years of legal action by the South African Jewish Board of Deputies (SAJBD) in dealing with what it’s certain is hate speech by Masuku. It wants him to be made accountable for threats against Jewish students at Wits, as well as the inflammatory comments made against the community.

Experts agree the case is broader than just about the Jewish community, it’s about the fundamental interpretation of the law prohibiting hate speech in South Africa.

One of the main contentions in the case is whether Masuku’s speech targeted Zionists or Jews. The SAHRC insisted that Masuku’s use of “coded language” could not be interpreted in any other way other than being directed at the Jewish community.

Counsel for the SAHRC, Christiaan Bester, said “Zionist” in the South African context means “Jew” because the vast majority of South African Jews are Zionist. He said that when Masuku used the word “Zionist” it was “coded language” for Jews.

Advocate Wim Trengove, counsel for the Holocaust & Genocide Foundation said, “He spoke of Zionists. We submit that, in South Africa at a rowdy political meeting, Zionist in the context meant Jews.

“He didn’t identify them merely as Zionists, he spoke of ‘friends of Hitler’ – what else could that mean? It means Jews and nothing else,” he said.

Trengove further submitted that Masuku had referred to the suburb of Orange Grove which is known as being Jewish.

“We cannot analyse this in isolation, we must take each factor together, and we can reasonably conclude that he targeted Jews,” he said.

Judge Johan Froneman asked Trengove if one wanted to attack or criticise the government of Israel, what would one say? To which he replied, “You speak of the government and its supporters.”

Carol Steinberg, junior counsel for the Holocaust & Genocide Foundation explained to the court that the South African Jewish community was smaller in number than the membership of Cosatu.

“Anti-Semitism is a fact in contemporary South Africa, and Jews are a vulnerable community,” she said.

She explained to the court that at a march in the run-up to the speech Masuku gave at Wits, people brandished swastikas and burned a swastika outside a synagogue.

“A swastika has nothing to do with a war in Gaza. It is the symbol of the extermination of the Jews in Europe,” she said.

Steinberg said that swastikas also made their way onto Wits campus. The swastika is the ultimate emblem of hatred of Jews, and is banned in a number of European countries.

The Holocaust & Genocide Foundation said in its heads of argument, “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.

“We analyse Mr Masuku’s speech in the light of the learning on how, through the millennia, leaders have used words, and in particular proxy words, to prepare the ground for persecuting Jews.”

It said Masuku’s words were “likely to have had the effect of inciting violence against South Africa’s Jewish minority”.

“Speaking to an audience that largely doesn’t differentiate between Zionists and Jews, and avoiding using the word ‘Jew’, he [Masuku] drew on age-old anti-Semitic rhetoric and proxy words to convey to his audience that Jews should be visited with immediate harm,” according to the heads of argument.

“He did so at a moment in time in which, worldwide and barely 70 years after the Holocaust, anti-Semitism is on the rise. Even in South Africa, it’s not uncommon for protesters against Israel to brandish swastikas and march on synagogues.”

The SAHRC contended that the appeal court was obliged to analyse Masuku’s statements through the lens of the Equality Act, and not under the auspices of the Constitution. It also contended that the appeal court erred by not considering expert evidence by witnesses such as British anti-Semitism expert David Hirsh.

Anne-Marie De Kok, the counsel for Masuku and Cosatu, said that Masuku’s speech constituted political speech, and did not demonstrate hatred of a religious or ethnic group.

She said Masuku’s statements should be viewed in the context in that he was subjected to provocation and baiting on a sensitive political issue that resulted in his speech being reactive rather than advocating hatred.

“When Masuku addressed students at Wits, there were Jewish students on the sidelines heckling that he was a racist, and one shouted, ‘Heil Hitler!’ When you are in a political meeting heckling, you should not be surprised when a heated retort comes your way.”

She said that words can be codes or proxies for other words, but on the facts of this case, that’s not what happened.

The Rule of Law Project said there should be strong protections for free speech and, among other things, a court could not take into account the race of the speaker in determining hate speech. The same rules should apply regardless of the race of the person.

Chief Justice Mogoeng Mogoeng presided over the proceedings. Judgement is pending.