Anti-Israel protests: Legal issues and responses

Daniel Bloch and Simone Sulcas


To many of us, the anti-Israel protests and messaging we are seeing in Cape Town come as something of a shock. But the fact is that the sentiment currently being expressed is nothing new. Since the October 7 attacks on Israel, it’s certainly become more aggressive, and the displays of anti-Israel feelings are expressed more openly and with a far louder voice, but the views are not something new. 

The South African Jewish Board of Deputies (SAJBD) nationally and in the Western Cape makes sure that they keep abreast of things happening and that they respond accordingly to particular events and statements that are made in the public domain, including on social media. 

The Cape Jewish Chronicle spoke to the Executive Director of the Cape SAJBD, Daniel Bloch, and Simone Sulcas, the Cape Board’s Vice Chairperson and Chairperson of the Antisemitism and Legal subcommittee, about recent anti-Israel events. 

Simone and Daniel share some of the comments they have heard from members of our community and have provided us with responses regarding these: 

Q: “It’s shocking that Palestinian and Hamas flags are being displayed. Why aren’t they banned?” 

Firstly, one needs to understand that whilst Hamas has been designated as a terrorist organisation by many countries including the US, UK, Germany and others, here in South Africa, this is not the case. Therefore, displaying the Hamas flag is not illegal. It is no secret that the South African government has a relationship with Hamas and has endorsed their support of this terrorist organisation. Hence the flags and other paraphernalia are not banned.

Q: “All these protests against Israel are just antisemitism. Surely they are all just hate speech, and we should go after the people involved.” 

It is important to appreciate that the right to protest is entrenched in our constitution, and all protests must be viewed through this lens. If an anti-Israel protest is lawful and peaceful in terms of the Constitution of South Africa and the Gathering Act, then the protest is protected. That being said, should the protest include the use of antisemitic rhetoric and written material then legal remedies are available. The protests are focused on Israel as a result of the war in the Middle East and, as such, most of the statements made against Israel at these protests are protected by freedom of expression provisions in the constitution. Whilst much of the rhetoric is deeply offensive and aggressive, many statements would not be defined as “hate speech” in terms of the legislation and the leading cases on this issue. There is a fine line between anti-Zionism and antisemitism and, since October 7th, these lines have become increasingly blurred. In many instances antisemitism has found new life as “opposition to the State of Israel” and, as such, a successful hate speech case will need to prove that the anti-Israel rhetoric crosses the line into antisemitism. We do know that many of the anti-Israel supporters are simply against Israel and not necessarily against Jews – therefore it would be challenging to single out individuals for being antisemitic. Our core mandate as the Cape SAJBD is to assess each and every case and pursue the most viable option, which may include legal action, education, political lobbying and media activism. 

Q: “I was horrified to see that yet another anti-Israel protest took place on the Sea Point beachfront. Why do we allow these protests to take place? The protesters should be arrested!” 

 The Sea Point promenade is a public space and, as South African citizens, all are allowed to enjoy these open areas. As long as the group gathering to protest acts within the laws, they have a right to be there and express themselves. The City of Cape Town has strict laws in place to both govern the protest as well as protect each and every citizen before, during and after the protest action. The Cape SAJBD carefully monitors and documents every protest and engages with the relevant stakeholders to ensure these protests are in accordance with the law. 

Q: “There’s a Muslim who is posting such hateful stuff on Twitter and Facebook. We should lay criminal charges against him.” 

Social media is a challenging space, as are the laws associated with governing these platforms. The advice given to us by legal experts in this field would be to report the individuals to the relevant platforms and then block them accordingly. It is also important to capture the “evidence” by taking a screenshot or screen recording in case it is needed down the line.  It is not recommended to engage with these particular individuals. Where there is clear incitement of violence or antisemitism, this should then be reported to the Cape SAJBD and we will investigate the matter further and take the appropriate action. 

Q: “There’s so much antisemitism around these days. We need to prosecute more people, and we should sue them for defamation.” 

The war against Hamas has manifested in a sharp rise in antisemitism globally and at home. However, despite the increase, our numbers are low compared with Jewish communities abroad. This is despite our government’s pro-Palestinian stance, culminating in South Africa instituting legal action against Israel  at the International Court of Justice in the Hague recently. Any potential incident of antisemitism, once reported, will be assessed by our antisemitism and legal subcommittee. This committee will collaborate with our executive and other board members, as well as the South African Jewish Board of Deputies (SAJBD). There are various legal remedies available depending on the facts of the case. An action of defamation may be one of these remedies, where the legal requirements of defamation are satisfied. 

Q: “My daughter is at UCT, and she’s so frightened these days because of the pro-Palestine demonstrations on campus. Can’t the community get UCT to ban these events?” 

The protest action at UCT is loud, offensive and intimidating, and to date has been non-violent. Whilst Jewish students may feel unsettled on campus, their safety is a primary concern for UCT leadership, and students should feel safe within the campus environment. UCT provides a safe space for students to express themselves, which is why they allow the protests, both anti-Israel as well as pro-Israel. The Cape SAJBD engages regularly with UCT leadership to ensure that students are protected on campus and that all parties conform to the UCT code of conduct. If any students feel frightened, they should make contact with either a SAUJS representative or the Cape SAJBD. They will receive counselling, advice and support.

• Published in the February 2024 issue – Click here to start reading.

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