ConCourt judgment welcomed

Professor Karen Milner, Chairperson of the South African Jewish Board of Deputies (SAJBD)

The SA Jewish Board of Deputies (SAJBD) welcomes the Constitutional Court judgment confirming that COSATU international relations secretary Bongani Masuku must apologise for offensive and inflammatory remarks he made against the Jewish community in 2009.

The ruling substantially upholds the conclusions reached initially by the SA Human Rights Commission (SAHRC) and thereafter by the Equality Court that Masuku was guilty of contravening s10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).

The SAHRC found Masuku’s statements to have been 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”, and accordingly as being “offensive and unpalatable to society”.

The SAJBD is of the view that since the great majority of Jews in South Africa, as demonstrated by credible academic surveys, support and identify with Israel, Masuku’s threatening and offensive comments in practice target the Jewish community.

However, we respect the conclusion of the Constitutional Court that other impugned statements by Masuku, while “inflammatory” and “seditious”, would on the balance of probability not be considered by a reasonable person to be aimed at Jews specifically, but rather at Israel and those who supported it.

While the Board fully supports the right to freedom of expression, this does not make it permissible to infringe on the fundamental right of others to equality and human dignity as enshrined in the Bill of Rights.

Freedom of expression does not permit people to incite harm against and call for the expulsion of one’s fellow citizens because of their political views.

Such rhetoric crosses the line between legitimate comment and prohibited hate speech, and especially when the targets of such hate speech are known to belong to an identifiable religious and ethnic group. Bongani Masuku’s taunting reference to Jews who supported Israel as being friends of Hitler was especially hateful, and in view of well-known Jewish sensitivities over this tragic part of their history was clearly intended by him to cause maximum hurt and offence.

The SAJBD commends the SAHRC and the Apex court for sending out a clear message that the right to freedom of expression does not include a license to indulge in hate speech and incitement.

This ruling reaffirms the zero-tolerance attitude towards any form of hate speech that underpinned our country’s democratic culture, and as such is a victory for all South Africans.