SAHRC on behalf of South African Jewish Board of Deputies (SAJBD), Emerge Victorious Against Hate Speech in the Equality Court

Today, the 29th June 2017, the Equality Court, sitting at the South Gauteng High Court, found in favour of the South African Human Rights Commission (the Commission or SAHRC) acting on behalf of the South African Jewish Board of Deputies (SAJBD), in a matter against Congress of South African Trade Unions (COSATU) International Relations Spokesperson Bongani Masuku, as first respondent and COSATU as second respondent, for statements Masuku had made in February and March 2009, that have been found to be hate speech. The complaint was brought to the Commission in April 2009. 
In February and March 2009, the first respondent, Bongani Masuku, made a series of remarks on a website and at a rally held by the Palestinian Solidarity Committee at the University of Witwatersrand. These statements were directed at the South African Jewish community and constituted hate speech to the extent that he said that: “.., any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect...”
The Commission contended that these statements constitute hate speech within the meaning of section 10(1) of the Equality Act. Within the context of these statements, the Commission and the SAJBD, had no doubt that they were directed at Jewish students and members of the Jewish community.
The Equality Court found that Chapter 2 of the Constitution, the Bill of Rights, protects the right to freedom of expression in section 16. However the court found that “the right is neither an absolute nor limitless right nor is it a pre-eminent right.” Therefore Judge DSS Moshidi found that Masuku’s utterances had caused harm that resulted in “emotional damage caused by words, which may have serious psychological and consequences.” In the Judge’s view Masuku’s utterances via the website transgress section 10 (1) of the Equality Act and clearly makes reference to persecution and harm, which amounts to a direct incitement to cause harm to South African Jews. The Judge further elaborates that “the post was made to instil detestation, enmity, ill-will and malevolence towards Jews in South Africa. It is distinct advocacy of hatred – nothing else.”
The court thus found that the statements by Masuku were harmful, hurtful, incited harm and propagated hatred which amounts to hate speech in contravention of section 10 of the Equality Act. Both Masuku as the first respondent and COSATU as the second respondent, on whose behalf he acted at the time, must tender an unconditional apology to the Jewish Community within 30 days of this judgment. The apology must receive the same publicity as the offensive statements.
The Commission welcomes this decision against hate speech in the Equality Court, and welcome the court’s re-iteration that freedom of expression needs to be exercised within a context that is sensitive and cognisant of hate speech.

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Determining where the boundary lies between legitimate freedom of expression and prohibited ‘hate speech’ can never be an exact science. During the flurry of debate that took place around the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill earlier this year, this was something that came through especially strongly. Err too much on one side, and victims of genuinely hurtful and insulting verbal abuse are left without a remedy; err too much on the other, and a fundamental pillar of democracy is undermined.