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30 Aug 2019 00:00
On balance: The Constitutional Court must decide if statements about Zionists by a Cosatu member were hate speech or political utterances, which are protected. (Delwyn Verasamy/M&G)
What amounts to hate speech? This week, in a potentially precedent-setting case in the highest court, counsel argued the case of a Cosatu official accused of hate speech directed at Jewish people. Franny Rabkin explores each side’s arguments
The Constitutional Court heard its first case on hate speech this week — on a subject that senior counsel Gilbert Marcus described as “emotional and intensely controversial”.
The highest court will have to decide whether statements made in 2009 by Bongani Masuku of union federation Cosatu — in the aftermath of the brutal conflict in Gaza, known as the Gaza War — amounted to hate speech directed at Jews, or whether they were constitutionally protected political speech.
Lining up behind the one side of the dispute is centuries of hatred and discrimination endured by Jews in the form of anti-Semitism, which by most indicators is on the rise again globally.
Arguing before the court, Carol Steinberg, counsel for the South African Holocaust and Genocide Foundation, said that Jews are a “minority and vulnerable group”, with Jews in South Africa being fewer in number than Cosatu members.
She added that sometimes anti-Semitism is undisguised, like during the Holocaust or the pogroms, but sometimes it is “coded” and takes the form of tropes and stereotypes.
On the other side of the argument is the plight of the Palestinian people — living under decades of a dehumanising occupation and, at the time in question, still reeling from a three-week military assault that saw more than 1 000 Palestinians, mostly civilians, killed.
South Africa’s labour movement, and its liberation movement generally, has a long tradition of international solidarity with oppressed people across the globe, and with the Palestinian people in particular, said Annemarie de Kock SC, Masuku’s counsel.
The case also revealed the tension between fundamental constitutional rights — equality and dignity on the one side and freedom of expression on the other. The Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) was meant to guide the courts on how to find the perfect balance between these rights — so that the law allows robust debate, but in a way that does not unacceptably encroach on people’s dignity.
But the Act is badly drafted and unclear, and some of the parties at court on Tuesday agreed it was probably unconstitutional. Marcus, counsel for friend of the court, Media Monitoring Africa, described section 10 of the Equality Act as “scarcely free from difficulty”.
Its construction invites questions and its practical application has thrown up more, leaving the courts to fend for themselves in figuring out what it all means. The result has been inconsistent application, with no one the wiser as to what — in what the Constitutional Court has called our “loud and fractious” democracy — we are prohibited from saying.
Many of the legal questions that have bedevilled the Equality Court over the years were raised before the Constitutional Court. But the court will likely answer only those that are strictly necessary to decide the case. And one of the hardest questions will be based on the facts: what did Masuku say and What did it — objectively assessed — mean?
According to the court record, in January 2009, Cosatu held a march to the offices of the South African Jewish Board of Deputies and the South African Zionist Federation. It said this was because the two organisations had come out in support of the Israeli government’s actions in the Gaza War. The offices are in the Johannesburg suburb of Raedene, close to Orange Grove. When the marchers arrived there, they were physically attacked by people occupying the offices, so they rerouted to a nearby synagogue, outside which an Israeli flag was burned. During the march, swastikas were raised.
A blog called It’s Almost Supernatural, which says it focuses on “exposing anti-Israel bias in the South African media” — published a post about the march and a number of comments were received. One of these was from “Phillip”, who said: “Even when all the monkeys in Cosatu have died of Aids (even those who were cured by raping babies) ... Jews should be supporting Israel.” Another was from “Gary”, who suggested that Jews refuse to employ members of Cosatu “in retaliation for their evil actions”.
These comments were forwarded to Masuku, who then made his own comment on the post. He said there should be no apologies as “we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler”. He added that every Zionist must “be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine”. Zionists must be targeted and exposed and subjected to “perpetual suffering”, he wrote.
A month later, during the University of the Witwatersrand’s Israeli Apartheid Week, Masuku gave a speech on practical solidarity with the Palestinian people. The majority of the speech was about practical things Cosatu had done in support of the people of Palestine. Masuku also specifically distinguished between Zionists and Jewish people, saying that he admired those Jews who stood against Zionism, naming former Cabinet minister Ronnie Kasrils as one of them.
But three parts of his speech were claimed to be hate speech by the South African Jewish Board of Deputies. Masuku said that Cosatu had members at Wits University and that “we can make sure that for that side it will be hell”. The second part was a statement that South African parents who chose to send their children to be part of the Israel Defence Force “must not blame us when something happens to them with immediate effect”. Finally, he said that Cosatu supported the Palestinian cause and would do everything to ensure — whether at Wits University or Orange Grove — that those who did not support equality and dignity must face the consequences — even if it meant “something that may necessarily cause what is regarded as harm”.
During his speech, members of the South Africa Union of Jewish Students heckled rowdily from the sidelines, with interjections such as “including the Jews” and “by Jews” and one even shouting: “Heil Hitler!”
Christiaan Bester — counsel for the Human Rights Commission, which took up the case on behalf of the board of deputies — said that although Masuku had been careful to use the word “Zionist”, what he actually meant was “Jew”. He argued that the vast majority of South African Jews were Zionists, so in the South African context, “Zionist” was code for “Jew”. By referring to Orange Grove, traditionally a predominantly Jewish suburb, Masuku was revealing his true meaning, said Bester. He also referred to an (earlier) email from Masuku about the march, in which he said Jews, not Zionists, were arrogant.
The commission was supported by the South African Holocaust Foundation. Its senior counsel, Wim Trengove, said that, although there may be debate about whether Masuku was targeting Jews or Zionists, what cannot be debated was that he was threatening people: “Mr Masuku certainly repeatedly threatened people with violence.”
Trengove added: “It is no answer to a claim of anti-Semitism to say ‘Some of my best friends are Jews.’” Steinberg said that, although it was true that Zionist did not always mean Jew, in this particular case the surrounding context — the hoisting of a swastika, “the foremost emblem of the Holocaust, of the extermination of the Jews” and the marching to a synagogue — showed that Masuku had been using coded language for anti-Semitism.
But De Kock argued that the facts simply did not bear out the argument that Masuku’s statements were directed at Jews. She agreed that language could be coded and there was such a thing as a “dog-whistle”. But that simply was not present in Masuku’s case, she said.
“The basis of Mr Masuku’s remarks had nothing to do with religion or ethnicity. It had everything to do with the conduct of the state of Israel towards the Palestinians,” she said.
She said he had made it very clear in his speech at Wits University that he drew a distinction between Jews and Zionists. His statements may have been “overblown”, but he was giving a political speech.
He was also provoked: he was responding to comments that Cosatu members were monkeys and from people who heckled and provoked from the sidelines.
“The transcripts show how Mr Masuku tried repeatedly to bring the focus back to the topic of his speech, being practical solidarity for the Palestinians, whereas the hecklers kept trying to change the topic to one of anti-Semitism,” said De Kock. Provocation was not a defence to a claim of hate speech, she said, but it was “essential context”.
Political speech was specifically protected by the Constitution, said Marcus. He said: “It is precisely in cases which evoke the greatest controversy and contestation where freedom of expression matters most. Freedom of expression is of little value if it only protects speech that is bland or mundane.”
He quoted Aryeh Neier, the Jewish lawyer who, in one of the seminal free speech cases of the United States Supreme Court, defended the right of neo-Nazis to march through Skokie, a Jewish neighbourhood in Illinois. Neier said: “The Nazis — I respond to those who ask how I, a Jew, can defend freedom for Nazis — must be free to speak because Jews must be free to speak; and because I must be free to speak.”
Many of the arguments from the friends of the court were specifically made to counter the earlier judgment of the Supreme Court of Appeal in the case. In its judgment, the appeal court decided the case on the basis of section 16 of the Constitution and ignored the Equality Act entirely, remarking that it was probably unconstitutional.
Counsel for the Psychological Society of South Africa, Kate Hofmeyr, emphasised that at the heart of the Equality Act were the constitutional rights to equality and dignity. “The starting point is not free speech,” she said.
The purpose of the Equality Act was to regulate that which “undermines dignity, evidences disrespect and denigrates on the basis of immutable characteristics”. Although section 16(2) of the Constitution sets out certain speech that falls outside its protection, it would not be unconstitutional for the Equality Act to go further in limiting protected speech, she argued.
This is because the Constitution itself allows for rights to be limited — if it is justifiable. She said the Act does not criminalise hate speech, and provides only civil remedies, such as apologies and the payment of damages. If “this preoccupation of the SCA [Supreme Court of Appeal] is not set straight by this court, the constitutional project at the basis of the Equality Act will be jeopardised,” she said.
Ben Winks for the Nelson Mandela Foundation argued that if the hate speech clause were to be read as closely as possible to section 16 (2) of the Constitution, it would exclude important cases from its ambit.
“Those that argue for maximum freedom of expression don’t tell us what should be done when black people are called bobbejaans or homosexuals are told that same-sex marriage is akin to bestiality. They don’t tell us,” he said.
Judgment was reserved.
Read more from Franny Rabkin
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