High profile hate speech case heard in South Africa’s Constitutional Court

Trade unionist Bongani Masuku threatened Jewish community in blog post and during a speech at a Johannesburg university

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August 28, 2019 18:34
3 minute read.
High profile hate speech case heard in South Africa’s Constitutional Court

Protestors call for the severing of diplomatic ties with Israel during a march in Cape Town, South Africa.. (photo credit: MIKE HUTCHINGS / REUTERS)

Ten years ago, well-known South African trade unionist Bongani Masuku walked into a classroom at Johannesburg’s University of the Witwatersrand and made threats against the Jewish community.

It was March 2009, and it happened to be the in middle of Israel-Apartheid week, where tension between pro-Palestinian students and pro-Israel students on campus swells.

Masuku, who was the spokesman for international relations for the country’s main trade union, the Congress of South African Trade Unions (COSATU), was addressing an event hosted by the Palestine Solidarity Committee and the Young Communist League.
He told attendees that life for Jews who support Israel would be made “hell.”

During his speech, Masuku also threatened violence against South African Jewish families who had members who were serving or had served in the IDF, adding that Jews who continue to stand with Israel must “not just be encouraged, but forced to leave South Africa.”

Just a month before, in February 2009, Masuku had written a blog post attacking Jews.

“As we struggle to liberate Palestine from the racists, fascists, and Zionists who belong to the era of their friend Hitler,” he wrote. “We must not apologize, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine,” he said.

“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,” Masuku continued.

“Every Palestinian who suffers is a direct attack on all of us,” he added.

On Tuesday, following a lengthy legal process against Masuku, the case was heard in South Africa’s Constitutional Court.

South African Jewish Board of Deputies (SAJBD) national director Wendy Kahn explained that “the case has its origins in a complaint lodged on March 26, 2009, with the SA Human Rights Commission (SAHRC) against Masuku,” she said.

“The complaint was based on various threatening, inflammatory and derogatory statements made by Masuku against the South African Jewish community and Jewish students,” she said.

On December 4, 2009, the SAHRC issued its ruling upholding the Board’s complaint, saying that his remarks were “of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation.”

Kahn said that the SAHRC then directed Masuku to apologize to the SAJBD within 14 days. “Masuku and COSATU decided to contest the ruling,” she said. “The matter was heard by the Equality Court, which in its judgment of June 29, 2017, unequivocally upheld the SAHRC ruling.” Following this, Masuku and COSATU then took the matter to the Supreme Court of Appeal (SCA). In December 2018, the SCA overturned the judgment of the Equality Court.

During Tuesday’s hearing at the Constitutional Court, the SAHRC, the SA Holocaust and Genocide Foundation, the Psychological Society of SA, the Rule of Law Project, and the Nelson Mandela Foundation argued that the SCA had erred in its decision.
Kahn emphasized that this case “will impact significantly on South African law” with regards to freedom of speech and freedom of expression.

Counsel for the SAHRC told the court during proceedings that the word Zionist “in the South African context means ‘Jew’ because vast majority of South African Jews are Zionist.”

The SAHRC also emphasized that this means that Masuku’s use of the word “Zionist” is “coded language” for Jews.

However, Masuku’s counsel argued that his comments referred to his and COSATU’s position that the “Israeli occupation of Palestine,” which COSATU believes “is unlawful and akin to apartheid and should be opposed in the same way as freedom fighters in South Africa, and allies abroad, fought against the oppression of apartheid.”

His counsel added that Masuku’s comments “plainly show” that he and COSATU “oppose the conduct of the Israeli state and the ideology of Zionism,” and “this characterization,” referring to the belief that he hates Jews, “bears no resemblance to the facts.”
On Wednesday morning, it was announced that the court would reserve judgment, which means its decision may only be made in a few months time.

In a statement, the SAJBD said it “is resolute that any form of racism, including antisemitism, flouts the fundamental right to dignity and equality of all South Africans and as such is unconstitutional.”

“In addition, the SAJBD believes that the threats made by Masuku, in the name of COSATU, infringed the SAJBD’s right to freedom of association,” the Jewish body added.


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