Constitutional Court: Anti-Zionism Is Not Anti-Semitism
16 February 2022
The Constitutional Court yesterday, Wednesday 16 February, made an important ruling that anti-Zionism is NOT anti-Semitism, and that attacking Zionism is NOT the same as attacking Jewish people. (See Concourt Judgement 17 February 2022.)
The Concourt ruled in the case brought by the South African Human Rights Commission on behalf of the South African Jewish Board of Deputies against comments made in 2009 by Bongani Masuku, who was then International Relations Secretary of COSATU. The Court found that of four comments that were at issue, only one met the criteria of hate speech.
Masuku was found not guilty of hate speech for the three other comments, which had been made under severe provocation from Zionists during a public meeting of the Wits Palestine Solidarity Campaign. At that meeting, where Masuku was, according to the Court, “subject to much heckling from people who opposed his speech.” In fact, he was baited by a group of Jewish students, whose consistent interjections tried to force him to make anti-Jewish statements and curtail his right to freedom of expression.
The three statements that the Court ruled were not anti-Jewish and not hate speech were:
When referring to what COSATU’s intentions were regarding those who supported Israel, he stated that “COSATU has got members here even on this campus; we can make sure that for that side it will be hell.”
He also said: “[T]he following things are going to apply: any South African family, I want to repeat it so that it is clear for anyone, 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.”
In the same meeting, he added: “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 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.”
These statements were not found to be hate speech because “they were clearly aimed at Israel and those who support Israel” and not aimed at Jewish people.
The first statement, which the Court ruled was hate speech, was a comment on a Zionist blog where, according to the Concourt, Masuku was “responding to a particularly racist comment directed towards Black COSATU members”. Masuku was ordered to apologise for this statement only, but no costs were awarded against him in respect of this statement.
It is significant that throughout the judgement, the Court makes a distinction between Jewish people and “those who support Israel”, between Judaism and Zionism, between Jews and Zionists. These are not the same thing, according to the Constitutional Court. It clarifies: “Indeed, Mr Masuku targeted those who support Israel via their membership of the IDF and their support for pro-Israel organisations... The facts and evidence do not support the conclusion that the second to fourth statements... were targeted at members of the Jewish faith or ethnicity.”
Far from being found guilty of hate speech and anti-Semitism, as Israel apologists are suggesting, the Palestine Solidarity Campaign notes an important and progressive Concourt ruling about freedom of expression. It says that Masuku “raised a bona fide constitutional argument on the basis that his statements constituted political speech.
This argument succeeded in part, and we cannot ignore the fact that Mr Masuku was attempting to assert his right to freedom of expression, an important constitutional right which, unless its exercise falls foul of the applicable constitutional protections, is worthy of protection in any constitutional democracy.”
We welcome the distinction that our apex court makes on this issue. This should decisively end the series of frivolous complaints and cases by the pro-Israeli lobby in South Africa, which labels any criticism of Israel as anti-Semitism. They seek, by these complaints, only to silence any speech that is (even mildly) critical of Israel’s occupation, colonialism and apartheid. The Concourt has made it clear that Israel apologists will no longer get away with this intimidatory tactic.
Salim Vally
Roshan Dadoo
Ronnie Kasrils
Statement issued by the Palestine Solidarity Campaign, 20 February 2022
