On the 27th of August 2019, the South African Constitutional Court (Court) heard its first substantive hate speech case in relation to statements made by Bongani Masuku, as Head of International Relations for the Congress of South African Trade Unions (COSATU) against the South African Jewish community.
Mr Masuku made the following statements online with reference to Zionists ‘…We must … do all that is needed to subject them to perpetual suffering…’ At a gathering held at Wits University, he said ‘ . . . COSATU has got members here 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 Israeli Defence Force must not blame us when something happens to them with immediate effect . . .’, and ‘. . . we will do everything to make sure that whether it is at Wits, whether it is 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 we will do something that may necessarily be regarded as harm . . .’
The impugned statements were made in 2009 during the Gaza War. At the time, the Human Rights Commission – the national institution tasked with promoting and protecting human rights – ruled in favour of the South African Jewish Board of Deputies (SAJBD) who instituted action against Masuku. That these remarks constituted hate speech, was confirmed by a 2017 Equality Court ruling. The Equality Act, which establishes the Equality Court, protects against speech that can be construed to be hurtful, harmful or promote hatred. Masuku was ordered to apologise, but instead, he appealed to the Supreme Court of Appeal which decided the case in his favour based on section 16 of the Constitution – Freedom of Expression.
The importance of freedom of expression cannot be downplayed in a country plagued with a history of censorship laws and political suppression. As argued by Masuku’s counsel, such freedom matters most “in cases that provoke controversy”. But, in a constitutional democracy with a history of detestable discrimination, it is also imperative that such statements are not glossed over. The SAJBD contended, that in the context, ‘Zionist’ was code for ‘Jew’.
It was put forward that while not every Zionist is a Jew and not every Jew is a Zionist, so often political ‘debate’ transgresses hateful manipulation that has very little to do with the Middle East. Sometimes, antisemitism is undisguised, such as during the Holocaust, but other times it is coded. It takes the forms of tropes – often used by powerful figures, like President Trump, and stereotypes, such as Masuku calling for consequences that ‘may necessarily be classified as harm’ for people in the Orange Grove area, a neighbourhood where Jewish people ‘stereotypically’ live. These codes are not new. The 1968 state sponsored anti-Zionist campaign in Poland demonstrates how easily anti-Zionist rhetoric slips into open antisemitism.
While section 16 of the Constitution protects free speech that can indeed offend and insult, it does not protect speech that advocates hate and incites violence. Legitimate criticism of a state and government must be protected in law as political speech. But, as contended by the SAJBD, Masuku was not calling for harm to an ideology – he called for harm to people who represent that ideology and do not share his political sentiments.
What is at risk in this case is shielding those who make hateful statements that incite harm and violence behind the guise of ‘free speech martyrs’. Since the 2009 incident, the courts have been dedicated to making hate speech rulings, ordering prison sentences, fines and community service. This is not the time to shy away. As history has proven, genocides and human rights atrocities are not committed out of the blue, they begin with desensitisation to hateful speech and calling for harm to ‘the other’.
It is hoped that the Court utilises its moral authority to make a sophisticated decision that holds that hateful rhetoric and violent threats will not be tolerated in our democracy.