By Anton Katz SC
The key feature of a free and good society is protection of the right to freedom of speech and expression.
Voltaire made the point, “I may not agree with what you have to say, but I will defend to the death your right to say it.”
Under Apartheid, people were arrested and imprisoned for saying the ‘wrong thing’. Indeed, to criticise the apartheid government would have had serious negative consequences. In some countries it is a crime to write negatively about the president and government. For government to curtail what may be said can — and often does — lead to oppression and deep unhappiness. The Constitutional Court years ago remarked, “Freedom of expression is one of a ‘web of mutually supporting rights’.”
Expression is closely related to freedom of religion, belief and opinion, the right to dignity, to freedom of association, the right to vote and to stand for public office and the right to assembly. These rights, taken together, protect the rights of individuals not only individually to form and express opinions, but to establish associations and groups of people to foster and propagate such opinions.
Without the right to freedom of expression, the right to practise one’s religion of choice could be infringed or violated. Indeed, the practice of Judaism and other religions has been and still is prohibited in many countries.
So, when certain hateful words are uttered at a rally or on social media about Jewish people, it is appropriate for the courts to take action against the purveyors of the hatred. And this must be considered in light of the so-important right to freedom of expression.
This issue arose in the case of Bongani Masuku’s remarks. He said (amongst other), “[A]s 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.” Masuku’s comments were made during tensions that broke out in response to the Gaza War of 2008/2009. Supporters of Israeli and Palestinian causes were involved in increasingly fraught demonstrations, debates and communications in Johannesburg.
The SA Jewish Board of Deputies complained to SA Human Rights Commission, which in turn approached the Equality Court. The Equality Court declared Masuku to have committed hate speech and ordered Masuku to unconditionally apologise to the Jewish community. Masuku appealed to the Supreme Court of Appeal. The Supreme Court of Appeal analysed the statements in the light of the dictionary definition of Zionism, and found that Judaism and Zionism are not synonymous. It concluded that Masuku’s statements represented political speech made in the context of the Israeli-Palestinian conflict and amounted to speech protected under the Constitution.
The Constitutional Court disagreed. It found that Masuku’s speech did cross over into hate speech. It considered expert evidence on the complex nature of the nexus between anti-Zionism and anti-Semism. The expert evidence showed that although Judaism and Zionism are distinct, Zionism forms a part of the core identity for many Jews. Responding expert testimony noted that there was also a tendency to silence legitimate criticism of Israel as being antisemitic. As noted by the applicant’s expert, Zionism means various different things to different people. And so the context of the speech needed to be considered. The Court accepted that the reference to Hitler made it clear that the statement was based on Jewish ethnicity. A reasonable reader would have noted that a reference to Hitler to a group that was predominately Jewish was used because of their ‘Jewishness’ — their Jewish ethnicity and identity. Hitler’s antisemitic extermination campaign was not limited to people of the Jewish faith or ethnicity who identified as Zionists. And any mention of Hitler evokes semantic associations with the entire global Jewish community, and not a specific faction (Zionists) thereof. Mr Masuku’s remarks were targeted at membership of the Jewish identity. The Court accepted that a reasonable interpretation of the statement was that it was based on Jewishness as an ethnicity, and not on anti-Zionism.
The Court found that the tenor and explicitness of Mr Masuku’s threats would have indicated to a reasonable reader that his intention was to cause harm. The vehemence and aggression in his tone and allusions to the horrors suffered by Palestinian civilians at the hands of the Israeli forces was enough to give the impression that the aim would be for reprisals or revenge. This sort of threat manifested a clear intention of detestation, enmity, ill-will and malevolence. This expression could be interpreted to have been intended to be harmful to those who heard it and to society, and to have sought to incite others to harm Jewish people and promote hatred.
The Constitutional Court found that Masuku’s exercise of his freedom of expression collided with what it means for Jews to be a citizens of the South African democratic state, and free to live a life in a condition of dignity and humanity. The dignity and humanity of Jews took precedence over Masuku’s free expression rights. The statement was declared to be harmful, and to incite harm and propagate hatred and amount to hate speech. Masuku must apologise to the Jewish community.
Interestingly, the Court concluded its judgment with the following words, “In the context of this matter, and in appreciating the power of words to inflict harm, it is fitting to close with a cautionary and apposite extract taken from the Torah. “Death and life are in the tongue.”
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the PDF edition of the March 2022 issue – Click here to get it.
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