The Bongani Masuku judgement

David Saks writes on the implications of the ruling for SA law

The Bongani Masuku Judgement - Implications for South African Law

Determining where the boundary lies between legitimate freedom of expression and prohibited ‘hate speech’ can never be an exact science. During the flurry of debate that took place around the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill earlier this year, this was something that came through especially strongly. Err too much on one side, and victims of genuinely hurtful and insulting verbal abuse are left without a remedy; err too much on the other, and a fundamental pillar of democracy is undermined.

It is one thing to argue the question from a hypothetical point of view, but it is ultimately through engaging with and weighing up the details of real-life situations that practical legal principles are derived. One of the reasons why it is difficult to get any real clarity on the whole hate speech question is the relative dearth of case law in South Africa to date. In view of this, the judgment in the matter of the SA Human Rights Commission and Bongani Masuku (1st Respondent) and COSATU (2nd Respondent), handed down in the Equality Court last week, is a useful addition to our jurisprudence.

The origins of the Masuku case go back to the early months of 2009 when COSATU International Relations Spokesperson Bongani Masuku, in written communications and on public speaking platforms, made a series of vitriolic comments about Jews who supported Israel. This took place in the immediate aftermath of Operation Cast Lead, a three-week offensive launched by Israel to halt missile attacks by Hamas in Gaza. While Israel largely succeeded in its objective, its actions were labelled ‘war crimes’ by its detractors and elicited an unprecedented outpouring of vilification around the world.

Locally, COSATU was one of the most vociferous organisations charging Israel with committing human rights violations during the conflict. This was not unexpected given its long-standing identification with hard-line anti-Israel ideologies, nor did its pronouncements, emotive and unbalanced though they were, amount to constitutionally prohibited hate speech. Criticising the actions of a particular country falls into the category of political comment, where the bar limiting what one can and cannot say is, rightly, set very high.

However Masuku, speaking on behalf of COSATU, went significantly further than that. In addition to trotting out the usual baby-butchering canards against the Jewish state, he persistently extended his vitriol to those who supported it. In practice this meant the great majority of South African Jews, no matter how much Masuku and his partisans subsequently insisted that only ‘Zionists’ had been referred to.

Even when taking into account the exceptional partisan and extreme emotions that the Israel-Palestine question routinely evokes, the sheer brute invective engaged in by Masuku is startling. A fair idea of how he expressed himself is provided by the following extract from a post he left on a Jewish-run online discussion forum: “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! 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…”

This particular extract would feature prominently in the subsequent court case. That being said, had Masuku limited his comments to emails and online posts, the SA Jewish Board of Deputies (SAJBD) might have decided to let things lie. What made some sort of action essential was what Masuku went on to say at a rally held by the Palestinian Solidarity Committee at Wits University on 5 March. This time, there could be no mistaking the element of outright threats levelled against the Jewish community, particularly Wits Jewish students. “COSATU has got members here even on this campus; we can make sure that for that side it will be hell” he warned. COSATU would “do everything to make sure that whether it’s at Wits University, 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…” As for any South African family which had members serving in the Israeli Defence Force, they “must not blame us if something happens to them with immediate effect…”

In all of this, Masuku was careful not to identify Jews by name. Instead he referred to ‘racists’, ‘fascists’, ‘Zionists’ and the like. He further drew a distinction between “Jews who have risen above the fascist parochial paranoia of Israel” and “those who silently support the massacres, but expect us to regard them as human beings …” Typically, Masuku accused his detractors of using bogus charges of antisemitism to silence criticism of Israel or, as he put it, “whenever we speak about their evil acts, we must be called antisemitic [by] ... the world’s cry-babies who think they have a right to occupy and meet no resistance”.

In adopting the line that the SAJBD was ‘crying antisemitism’ to silence critics of Israel, Masuku and COSATU were, of course, turning the facts of the matter completely on their head. The case was never about preventing Masuku from expressing his views on Israel. Rather, it concerned the right of those who disagreed with him – which includes the vast majority of South African Jews - to do so without being subjected to threats, in this context levelled in the name of the country’s premier trade union movement.

In his testimony on behalf of the SAHRC, UK sociologist and antisemitism expert Dr David Hirsh further explained how knee-jerk accusations that Jews who raised the antisemitism issue in the context of the Middle East were as a matter of course doing so dishonestly in order to shut down debate was itself an antisemitic ploy. “This counter-accusation of bad faith to an accusation of antisemitism is itself highly problematic; it substitutes a contemptuous charge of dishonesty for listening seriously and attentively to a person who says they feel that they are suffering racism. It fosters a culture in which a person who says they perceive antisemitism is likely to be treated with contempt” he told the court.

Essentially, the case against Masuku came down to whether his statements were solely directed at a particular political ideology (Zionism), in which event they arguably fell within the boundaries of freedom of expression, or whether they amounted to an attack on the mainstream Jewish community. In its complaint to the SA Human Rights Commission (SAHRC), the SAJBD argued that his statements “could reasonably be construed to demonstrate a clear intention … to be hurtful and harmful …. to incite harm against… and to promote or propagate hatred against South African Jews”. Masuku response was to deny that his remarks were tantamount to hate speech, adding that the “constant cry of ‘hate speech’ from the SAJBD against criticisms of Israel had become “extremely tiresome, wasteful of resources, and [was] trivialising the serious charge of hate speech”.

In its ruling, issued in December 2009, the SAHRC upheld the Board’s complaint, observing that Masuku’s comments and statements were “of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation”. Masuku was directed to apologise to the Jewish community within thirty days.

That should have been the end of it, but in fact the whole saga had barely gotten started. Here one comes to the most disquieting aspect of the affair, and not just from the Jewish community’s point of view, and that is the attitude of COSATU itself. Far from rebuking its employee and distancing itself from his statements, it stood by Masuku every step of the way, from the time when it declined to respond to overtures from the SAJBD to discuss the issue right at the outset all the way through to the humiliating outcome of the resulting Equality Court case eight years later. Nor is it the only occasion in which COSATU spokespeople have engaged in virulent Jew-baiting without being called to book by their organisation. In July 2014 Tony Ehrenreich, Provincial Secretary of COSATU (Western Cape), presented the SAJBD with an ultimatum to cease its ‘Zionist propaganda’ or face a COSATU-led campaign of strikes and boycotts against its members and all supporting companies and organisations. The following month, Ehrenreich went even further, writing that the time had come to say that if a woman or child was killed in Gaza, then “the Jewish Board of Deputies, who are complicit, will feel the wrath of the People of SA with the age old biblical teaching of an eye for an eye”. The time had come, he continued, “for the conflict to be waged everywhere the Zionist supporters fund and condone the war killing machine of Israel”. The outcome of the SAJBD’s complaint to the SAHRC against Ehrenreich is still being awaited.

In his unusually unequivocal judgment, Judge Moshidi upheld in all essentials the 2009 SAHRC finding. Masuku’s statements were held to be “hurtful, harmful, incite harm, and propagate hatred, and amount to hate speech”, and he was ordered to make an “unconditional apology” to the SAJBD. Moshidi further ordered Masuku and COSATU to pay the SAHRC’s costs.  

One of the implications of the Equality Court judgment is that one cannot get away with inciting hatred and/or harm against a particular group, whether defined by ethnicity, religion, nationality or other such grounds, by using code words. Professor Gregory Stanton, an authority on genocide studies, explained in his testimony before the court the concept of `subtext’ in this regard, saying, “we all know when you say Zionist you mean Jew, just like in Rwanda in the mid-1990s when you said ‘cockroach’ everyone knew you were referring to the Tutsis”.

Applying this principle beyond the confines of the Jewish community, it would mean, for example, that inciting harm against foreign nationals would not be permitted on the basis of the latter not having been identified explicitly but instead through veiled terms such as ‘parasites’, ‘interlopers’ or ‘job stealers’. A reasonable person in such cases would be well aware who were being referred to.

An inevitable question that remains is why anti-Israel sentiment within COSATU has reached such levels of virulence as to result in the movement’s at best sanctioning and at worst actively promoting the dissemination of hatred and issuing of threats against the Jewish mainstream. Such a stance, after all, clearly goes against Cosatu’s own stated commitment both to non-racism and to upholding the fundamental democratic values of freedom of belief and expression.

The answer in large part lies in what has been a deliberate strategy on the part of hard-line anti-Israel campaigners, in particular those associated with the Boycott Divestment and Sanctions (BDS) movement, which aims not only at demonising the State of Israel but in systematically defaming, isolating and ultimately silencing Jews who support it. Pointing to the existence of a small fringe group of anti-Zionist Jews as evidence that that they are not antisemitic but only anti-Zionist, BDS activists work indefatigably to poison attitudes towards mainstream Jewry, and it is quite obvious that their efforts to this end have been concentrated on political movements that the black population in the main identifies with.

The evidence suggests that they have done their work well – perhaps too well. The Masuku affair is just one of a string of ugly incidents where anti-Israel agitation has led directly to Jews being grossly insulted, intimidated and sometimes explicitly threatened, One thinks in this regard of calls for the ‘deregistration’ of Jewish students by the SRC at the Durban University of Technology, the chanting of “Shoot the Jew” by protestors at Wits University, the depositing by the Congress of SA Students of a pig’s head in what was thought to be the kosher section of a Woolworths store in Cape Town and of Jewish communal events, even those having nothing to do with Israel, being noisily and aggressively picketed by BDS activists.

Apart from none of this having done anything to deter local Jews from demonstrating their traditionally strong support for Israel, let alone causing any harm to Israel itself, the BDS strategy of making not just Israel but South African Jewry at large targets for opprobrium is self-defeating. Time and again, the claim is made that its campaigns to boycott Israel are driven by human rights concerns, not anti-Jewish prejudice, yet the actual results of its activities consistently belie such assertions. The only real result of it all has been the importation of a foreign conflict onto South African streets and campuses and the sowing of further hostility, division and mistrust within an already dangerously polarised population. 

David Saks is Associate Director, SA Jewish Board of Deputies