Supreme Court of Appeal gives clarity on the ambit of hate speech
Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies  ZASCA 180
Court: Supreme Court of Appeal (South Africa)
Date of judgment: 4 December 2018
In early 2009, against the backdrop of the conflict between Israel and Palestine in the Middle East, the South African Jewish Board of Deputies (SAJBOD) and the South African Zionist Federation (SAZF) published an open letter expressing support for Israeli actions. In response, another open letter was published by members of the Jewish community in South Africa, distancing themselves from the letter of support and condemning the ‘disproportionate use of force’ by the Israeli military.
At the same time, Mr Bongani Masuku was the Secretary of the International Relations arm of the Congress of South African Trade Unions (COSATU). COSATU strongly opposed the Israeli actions, including arranging a protest march to the headquarters of SAJBOD and SAZF. Mr Masuku posted the following statement on a blog called ‘It’s almost supernatural’:
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! 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.
During a speech on 5 March 2009, Mr Masuku also stated as follows:
… COSATU has got members here on this campus, we can make sure that for that side it will be hell …;
… the following things are going to apply: any South African family, I want to repeat it so that it is clear for everyone, 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
… COSATU is with you, 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 ….
On 26 March 2009, the SAJBOD lodged a complaint with the South African Human Rights Commission (Commission), alleging that certain statements made by Mr Masuku amounted to hate speech as prohibited by section 16(2) of the Constitution and section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). In response, Mr Masuku indicated that he had been repeatedly heckled whilst giving his speech. He also explained that his statements were directed at supporters of the State of Israel from different ethnic and religious backgrounds, rather than to Jewish students. He asserted that the religion and ethnicity of the supporters of the State of Israel were of no concern to him or COSATU, and that his references to ‘Zionists’ connoted adherence to a political ideology rather than a religious or ethnic orientation.
The Commission formed a preliminary view that Mr Masuku’s statements amounted to hate speech. In particular, the Commission was of the view that the statements were offensive and unpalatable to society; that they were of an extreme nature in that they advocated that the Jewish community should be despised, scorned, ridiculed and thus subjected to ill-treatment because of their religious affiliation. This was upheld by the Equality Court, which granted an order declaring the impugned statements to be “hurtful, harmful, incite harm, and propagate hatred, and amount to hate speech” in violation of section 10 of the Equality Act.
Decision of the Supreme Court of Appeal
At the core of the appeal before the Supreme Court of Appeal was the Equality Court’s interpretation of hate speech.
In respect of the blog post: The court noted regarding the term ‘Zionists’ that “not all Zionists are Jewish and not all Jewish people are Zionists”, and that nothing in the definitions and explanations conveys identification on the basis of ethnicity or religion. It noted further that none of the other offending terms in the blog post – ‘racists’, ‘fascists’ and ‘friends of Hitler’ – either on their own or within the statement connote religion or ethnicity. The court concluded in this regard that: “Even if ethnicity or religion was implied in the blog statement, neither the offensive words nor the blog statement could be considered advocacy of hatred or incitement of harm for the purpose of section 16(2)(c) of the Constitution, particularly in the context in which they were made”.
In respect of the statements made during the speech: The court reiterated that these statements must be interpreted within the context and circumstances at the place and time that they were made, including the tense atmosphere and heckling that took place. The court noted that Mr Masuku’s utterances were directed at supporters of the State of Israel, not Jews; further, that nothing in the content of his speech shows that it was anything other than a political speech.
Notably, the Supreme Court of Appeal concluded that:
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. 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.
Order of the Supreme Court of Appeal
The Supreme Court of Appeal therefore upheld the appeal, and ordered as follows:
“1. The appeal is upheld.
2. The order of the Equality Court is set aside and substituted with an order in the following terms:
‘(a) The complaint is dismissed.
(b) Each party is to pay its own costs.’
3. Each party to pay its own costs of the appeal.”
The full judgment is accessible here.
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