Shaun Zagnoev

Above Board 30.8.19


Any visit to the Constitutional Court is a stirring experience. Once used as a prison for political activists, amongst them M K Gandhi and Nelson Mandela, it today serves as a critical vehicle for safe-guarding the fundamental human rights and freedoms on which our post-apartheid society is founded. As such, it embodies the miracle of South Africa’s democratic transformation, and is an inspiring example of how through a common commitment to building a better future for all, even instruments of repression can become a means of promoting peace and justice.

This week, after more than a decade of complex legal proceedings that included an initial ruling by the SA Human Rights Commission and two subsequent court cases, the Board’s hate speech case against Cosatu’s Bongani Masuku finally came before the Constitutional Court. As reported elsewhere in this SAJR issue, the matter concerns various threatening and abusive statements made against Jewish supporters of Israel by Masuku in the aftermath of the 2008-9 Gaza conflict. While Cosatu has sought to portray the matter as an attempt to silence legitimate ‘criticism’ of Israel, what we believe is really at stake is the right of Jews to express support for Israel without being threatened with violent reprisals. As such, the court’s ruling will have significant implications for how the law concerning the anti-hate speech provisions in the Constitution and Equality Act is interpreted and applied in South Africa.

How seriously the Masuku matter is being seen by other civil society organisations, particularly those like the Board that involve themselves in combating unfair discrimination, was demonstrated both by the number of amici curiae (‘friends of the court’, who present expert evidence to assist the bench in coming to its decision) who participated and by the large number of people attending. The Constitutional Court was packed as one by one some of this country’s most eminent legal practitioners presented their arguments as to whether or not Masuku’s comments amounted to hate speech that in practice targeting the mainstream Jewish community.

While the case revolves around certain comments that we believe to have been menacing and defamatory against on our own community, the across-the-board support we have received for our stance has been very heartening. To quote one of the supportive tweets received this week, “Hate speech has no place in any society that sees itself as free and democratic. You take up the cudgels for every citizen, irrespective of race, colour, creed or gender”. The Masuku matter was in fact the second time that a case of antisemitism brought by the SAJBD had come before the Constitutional Court. The previous one concerned our complaint against the Islamic Unity Convention, which was frequently cited by those presenting to the court this week. When these and other SAJBD cases, combined with the important input that the Board ma Hate speech has no place in any society that sees itself as free and democratic. You take up the cudgels for every citizen irrespective of race colour creed or genderde into the Constitution and the Equality Act, are taken into account, one realizes how much of an impact our community has had in terms of influencing the development of anti-hate speech law in this country. It is one of the ways in which the Board has been able to combine fulfilling its mandate to protect the rights to dignity and equality of the Jewish community with making a meaningful contribution to building South African democracy as a whole.

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