Analysts have expressed surprise at comments made by a DA councillor who said describing Israel as an apartheid state amounted to hate speech.
At Durban's North Beach last week, Avrille Coen, a Democratic Alliance councillor for the city's ward 27, denounced a painting by pro-Palestine activist and hip-hop artist Iain "Ewok" Robinson on the wall of a skaters' park that included the words "Israeli Apartheid Week (IAW) 2013".
Medical student Khadeeja Manjra, who was part of a flash mob for Gaza that was promoting the Isreali Apartheid Week and Palestine's cause in the area, said Coen was called to the park by the Durban Metropolitan Police after a member of the public objected to the activities.
"She [Coen] said that Israel was not classified as an apartheid state and she wanted the painting removed. She was adamant that the term 'Israeli apartheid' is hate speech," Manjra said.
The Daily News also quoted Coen as saying that the painting must be removed. "This is hate speech, calling a democratic country like Israel, which has people of Palestinian descent in Parliament, an apartheid state," she told Hlengiwe Kweyama, a reporter from the newspaper.
But John Dugard, who was the United Nations special rapporteur on human rights in the Occupied Palestine Territory (OPT), said he had himself used the term "apartheid" to describe the system in the region.
"I am greatly surprised that the term 'Israel apartheid' should be seen to be hate speech. It is a term used extensively in Israel itself to describe the dual legal system that exists in the West Bank and East Jerusalem for Jewish settlers and Palestinians," he said.
"The subjection of Palestinians to a separate and unequal judicial/legal system, separate roads, separate schools, separate hospitals and, more recently, separate buses has inevitably given rise to accusations that Israel applies a form of apartheid in the OPT," he added.
"In 2012 a study conducted by the South African Human Sciences Research Council found conclusively that Israel practises apartheid in the OPT."
Hate speech or not?
The study, Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories, was edited by Virginia Tilley. She said the term could not be construed as hate speech because "it's a denunciation of a political system and state doctrine, not human beings".
"Israel is a state, one that is now self-defined by its commitment to a formal doctrine of domination by one ethnic group over another. The state enforces that formal doctrine with policies of forced segregation, special reserves and all the other methods of repression that are listed in the international convention on apartheid," she said.
Steven Friedman, director of the Centre for the Study of Democracy at Rhodes University and the University of Johannesburg, said the hate speech claim was "absurd". "Was it hate speech to say apartheid in South Africa was wrong? This is a statement, an opinion about a political system and anyone who terms it hate speech is trying to censor that point of view," he said.
Constitutional law scholar Pierre de Vos agreed. "My view is that it clearly does not constitute hate speech as defined by the Equality Act. This Act states that it will only constitute hate speech if it can reasonably be construed that the intention of the authors was to hurt another group based on their religion, race, sex, etcetera. Here the target is Israel, a state, not a religious or cultural group. As such, it falls squarely within the boundaries of protected political speech.
"Just as it can never be hate speech against ... South Africans to criticise the ANC or the South African government, so it can never constitute hate speech to criticise the state of Israel. To hold otherwise would be to endorse severe censorship on political speech. I am surprised that the DA, a supposedly liberal organisation, would support such censorship. If the speech targeted Jewish people, the situation would, of course, have been different."
Coen declined to comment and directed queries to the party's KwaZulu-Natal chairperson Haniff Hoosen, who said the comments were the councillor's personal view and not the position of the DA.
David Saks, the associate director of the South African Jewish Board of Deputies (SAJBD), said that although the term "Israeli apartheid" was "a highly misleading description of the realities of what Israel is", it was also "ultimately a political standpoint fully protected under the Constitution".
"However, just because something is protected under free speech does not necessarily mean that it is not deeply offensive. At the heart of our Constitution is not merely the letter of the law but a desire to create a society that shows due sensitivity and deference to all who reside in the country," he said.
"The SAJBD regrets the use of emotive and factually unsound sloganising by those intent on waging an ideological war against Israel but fully endorses the constitutional right of those who engage in it to do so."
Ben Swartz, spokesperson for the South African Zionist Federation, declined to comment on the matter, adding that previous articles published by the Mail & Guardian on the Palestine-Israel issue were biased towards Palestine's version of the conflict.