Cosatu’s Masuku must say sorry for hate speech

NICOLA MILTZ

In 2009, the Human Rights Commission ordered Masuku to apologise for his hate speech. When he refused, the commission took it to the Equality Court. Last week Judge Dimpheletse Moshidi ordered Masuku to make an “unconditional apology” to the South African Jewish Board of Deputies (SAJBD) for the hurtful and harmful comments he made. 

“I make the finding even though the Constitution protects and recognises rather strenuously, freedom of expression,” said Judge Moshidi.

He said Masuku’s statements were found to be hateful and hurtful. “In essence… made to instil detestation, enmity, ill-will and malevolence towards Jews in South Africa. It is distinct advocacy of hatred – nothing else.

“The statements clearly fall outside the right to freedom of expression, and are… to be separated from the protection of constitutional protection since the statements infringe negatively on the right to dignity of the Jewish and Israeli community and probably cause harm,” Moshidi said in his judgment.

The impugned statements and exchanges in question, occurred during February and March 2009. The majority of the statements took place in a packed lecture hall on Wits University’s East campus during a lunch-time lecture hosted by the Palestinian Solidarity Committee (PSC) and the Young Communist League.

It was Apartheid Week 2009 and the war in Gaza was still fresh in the minds of activist students.

Masuku – an invited guest speaker and known critic of Israel – arrived and it turned ugly. Student at the time, Benji Shulman, recalls the day on March 5, 2009: “It became very heated, there was chanting, shouting, heckling. The speaker became aggressive. In terms of what he was saying he was threatening people and people as a group. He moved from aggressive political talk to hate speech. He had crossed over.”

A recording of the event was played out in court.

Masuku said: “…Cosatu has got members here even on this campus; we can make sure that for that side it will be hell…

“… 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…”

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

Only a few weeks prior to the March 5, 2009 Wits incident, Cosatu had marched on the offices of Beyachad, upping its anti-Israel ante. Things were tense.

On February 10, 2009 Masuku had said: “…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. Every Palestinian who suffers is a direct attack on all of us.”

Judge Moshidi said: “The statements conveyed more than ordinary detestation for the Jewish and Israeli community and their origin and religion, and were accompanied by threats of potential violence, and aim to subject this minority targeted group, to probable mistreatment, based purely on their religious and ethnicity affiliation.

“Indeed, the protection of minorities and vulnerable members of our society has repeatedly been endorsed and promoted by the Constitutional Court.”

Referring to another case, Judge Moshidi quoted: “…the more vulnerable group, the more likely it is that it will be harmed by the advocacy of hatred.

“In my view, this is precisely what occurred… a reasonable person in the Jewish community, in particular a Wits University student… would probably have been driven out of sheer fear and intimidation for their security.

“It is irrelevant whether any actual attack became likely or ensued. It is equally irrelevant whether the impugned statements… were aimed at Zionism when regard is had to persecution and discrimination inflicted on the Jewish community historically. The protection of their rights, especially to equality and religion, remain crucial.”

UK-based expert on anti-Semitism, racism and Zionism, David Hirsh, explained to the court in minute detail during the trial how Masuku’s statements were racist and anti-Semitic.

“Just as some kinds of criticism of South Africa are racist and some kinds of criticism of South Africa are entirely legitimate, so it is true with Israel. Some kinds of criticism of Israel are anti-Semitic while other kinds are not.

“It requires knowledge, judgement and an appreciation of context, to make the distinction between legitimate criticism and racist demonisation.”

Said Hirsh, also a lecturer in sociology at Goldsmiths, University of London: “Masuku’s defence against a charge of anti-Semitism is to say that hatred of ‘Zionists’ is legitimate and defensible and has nothing to do with hatred of Jews.”

The South African Human Rights Commission (SAHRC) ruled in April 2009 that Masuku’s statements constituted hate speech and found that his remarks in the context of the tense meeting, were an incitement to violence.

It ruled that the statements made were of an “extreme nature” that implied that the Jewish and Israeli community are to be “despised, scorned, ridiculed”.  Masuku did not accept the order to apologise and so the case was moved to the Equality Court.

Fast-forward eight years following a protracted legal maze, and the SAJBD0 welcomed the Equality Court judgment. Judge Moshidi said Masuku’s statements did not “add any value to the public discourse or contribute to the greater debate in a meaningful manner, whatsoever.”

“The SAJBD welcomes the fact that in terms of the judgment, threats and insults against Jews who support Israel cannot be justified on the alleged basis that such attacks are aimed not at Jews but at Zionists,” said Wendy Kahn, SAJBD national director.

“In the spirit of conciliation and acceptance of diversity, the SAJBD hopes that Bongani Masuku and Cosatu will comply with the court’s judgment that Mr Masuku apologise to the Jewish community, thereby bringing this painful matter to finality and allowing all the parties to move on.”

SAJBD National Chairman Jeff Katz added: “Credit must be given to the Human Rights Commission on its initiative of taking their 2009 ruling to the Equality Court, which resulted in Masuku’s utterances being found to constitute hate speech.”

Katz said the SAHRC finding confirmed – and “this is very important” – that there is a “very important legal line” between the protection of speech and what is considered hate speech.

Said Hirsh this week: “Cosatu needs to think hard about how and why it stood by a man who made credible and racist threats against South African Jews. It needs to understand how hostility to Israel has led to anti-Semitic hate speech and how it has led many people to rally round and defend the hate speaker.”

In his judgment Judge Moshidi said that an order for an “unconditional apology is by no means lenient, and should not be viewed in the light of the proverbial slap on the wrist.”

He said the apology remained vital to victims of hate speech.

Cosatu’s organising secretary, Theodore Steele, said they would study the judgment before taking further steps.

“We are very disappointed with the outcome. We will study the judgment while the Palestinian campaign continues,” he said.

“We are going to intensify the campaign of awareness so that the broader public understands what is happening in Palestine and that they understand that women and children are killed daily and that they understand that at times there will be emotional responses.”

Masuku and Cosatu were ordered to pay legal costs.