SA Jews shocked by hate speech u-turn

NICOLA MILTZ

Masuku was found not liable for having committed an act of hate speech after his appeal was upheld.

Nine years ago, Masuku, then Congress of South African Trade Union (Cosatu) International Relations Secretary, threatened to harm South African Zionists, as well as other hateful utterances.

The appeal court ruling was shocking news for the Jewish community, as Masuku had been found guilty of hate speech twice for the same statements, first by the South African Human Rights Commission (SAHRC) and then by the Equality Court. He had been ordered to apologise, but refused and appealed the hate speech judgement.

A disheartened Wendy Kahn, the National Director of the South African Jewish Board of Deputies (SAJBD), told the SA Jewish Report this week that the board noted the ruling by the SCA on Tuesday.

“We respectfully disagree with certain important aspects of its findings. The board strongly adheres to its belief that the statements by Bongani Masuku constituted unlawful incitement to cause harm,” she said.

“We will now be looking to the Constitutional Court to address these critical issues, and hopefully to confirm the original hate speech rulings of the SAHRC and Equality Court.”

The Equality Court found that Masuku’s words constituted hate speech, and more specifically hate speech directed at Jews.

The SCA expressed concern that the words were not directed at Jews, they were directed at Zionists, and the two were not synonymous.

Furthermore, it ruled that Masuku’s words did not constitute incitement to cause harm on the basis that the words used were metaphorical in nature and not direct incitement to harm.

The court’s ruling was based on a previous judgement which said that a court should not be hasty to conclude that because language is angry in tone or conveys hostility, it is characterised as hate speech, even though it has overtones of race or ethnicity.

Ultimately, the SCA found that the words were protected speech, and did not constitute hate speech in terms of the Constitution.

The case goes back to 2009, when Masuku, in written communication and on public speaking platforms, made a series of vitriolic and highly inflammatory comments about Jews who supported Israel. This took place soon after Operation Cast Lead, a three-week offensive launched by Israel to halt rocket attacks by Hamas in Gaza. Cosatu accused Israel of committing human-rights violations.

In February 2009, Masuku 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.”

The majority of his statements were made during Israel Apartheid Week 2009 on the east campus of the University of the Witwatersrand during a lunch-time lecture hosted by the Palestinian Solidarity Committee and the Young Communist League.

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.”

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

In 2009, the SAHRC ordered Masuku to apologise for his hate speech. When he refused, the commission took it to the Equality Court. In July last year Judge Dimpheletse Moshidi ordered Masuku to make an “unconditional apology” to the SAJBD for the hurtful and harmful comments he had made.

Moshidi said in his judgement that Masuku’s statements were 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.”

Masuku still refused to apologise, and took the matter on appeal.

According to the SCA judgement, “The fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection. Public debate is noisy, and there are many areas of dispute in our society that can provoke powerful emotions.

“The bounds of constitutional protection are only overstepped when the speech involves propaganda for war, the incitement of imminent violence, or the advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.”

It went on to say, “Nothing that Mr Masuku wrote or said transgressed those boundaries, however hurtful or distasteful they may have seemed to members of the Jewish and wider community. Many may deplore them, but that does not deprive them of constitutional protection.”

This week, Cosatu welcomed the SCA decision. In a statement, it said, “We will never keep quiet in the face of extreme barbarism of Israel against the Palestinian people.”

The trade federation also took a swipe at the SAHRC saying, “What was more heartbreaking about this case was to see the deterioration of an institution like the SAHRC that has essentially out-sourced its work to the SA Jewish Board of Deputies.”

It accused the SAHRC of being “too busy doing the bidding of the Zionist lobby”.

Boycott Divestment Sanctions South Africa tweeted the statement made by Cosatu at 15:26 on 4 December, saying, “South Africa’s trade union federation @_cosatu welcomes the ruling from the Supreme Court of Appeal clearing the federaton of the frivolous AntiSemitism claims by the Israeli lobby group @SAJBD. Full statement below: #FreePalestine”

The Masuku matter lives on.