CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 14/19
In the matter between:
SOUTH AFRICAN HUMAN RIGHTS COMMISSION ON BEHALF
OF SOUTH AFRICAN JEWISH BOARD OF DEPUTIES Applicant
and
BONGANI MASUKU First Respondent
CONGRESS OF THE SOUTH AFRICAN TRADE UNIONS Second Respondent
and
SOUTH AFRICAN HOLOCAUST AND
GENOCIDE FOUNDATION First Amicus Curiae
PSYCHOLOGICAL SOCIETY OF SOUTH AFRICA Second Amicus Curiae
FREEDOM OF EXPRESSION INSTITUTE Third Amicus Curiae
MEDIA MONITORING AFRICA Fourth Amicus Curiae
RULE OF LAW PROJECT Fifth Amicus Curiae
NELSON MANDELA FOUNDATION Sixth Amicus Curiae
Neutral citation: South African Human Rights Commission obo South African
Jewish Board of Deputies v Masuku and Another [2022] ZACC 5
Coram: Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Mathopo AJ,
Mhlantla J, Theron J and Victor AJ
Judgment: Khampepe J (unanimous)
Heard on: 27 August 2019
Decided on: 16 February 2022
Summary: Application for r ecusal — reasonable apprehension of bias —
grounds for recusal not met
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 — Hate speech — subsidiarity
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Local Division, Johannesburg, sitting as the Equality Court),
the following order is made:
1. The application for recusal is dismissed.
2. Leave to appeal is granted.
3. The appeal is upheld in part.
4. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“The appeal against the order of the Equality Court is dismissed with no
order as to costs.”
5. Leave to cross-appeal is granted.
6. The cross-appeal is upheld.
7. Paragraph 2 of the order of the Equality Court is set aside and substituted
with the following:
“The complaint against the respondents succeeds in respect of the first
statement with no order as to costs.”
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8. In the result, the order of the Equality Court is reinstated, subject to the
following amendments:
“1. The first statement is declared to be harmful, and to incite harm
and propagate hatred; and amounts to hate speech as envisaged in
section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000.
2. The complaint against the respondents succeeds in respect of the
first statement with no order as to costs.
3. The respondents are ordered to tender an unconditional apology to
the Jewish Community within thirty (30) days of this order, or
within such other period as the parties may agree. Such apology
must at least receive the same publicity as the offending
statement.”
9. No order is made as to costs in this Court.
JUDGMENT
KHAMPEPE J (Mogoeng CJ, Froneman J, Jafta J, Mathopo AJ, Mhlantla J, Theron J
and Victor AJ concurring):
Introduction
[1] At the heart of this matter are three fundamental rights, all indispensable to any
healthy constitutional order. These rights – the rights to equality, human dignity, and
the right to freedom of speech and expression – are rights that carry unique and troubled
pasts interwoven into the fabric of apartheid history. In this constitutional dispensation,
they are inextricably interconnected with what it means to be a citizen of a democracy,
free to live a life in a condition of dignity and humanity. In this matter, these rights
meet each other.
KHAMPEPE J
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[2] The background to this matter is disturbing, and the genesis of the legal question
with which this Court now finds itself seized, lies in four statements made orally and in
writing by Mr Bongani Masuku in respect of the protracte d feud between Israel and
Palestine in the Middle East. It should be said at this earliest opportunity that what this
Court is not called upon to do is to make any pronouncement on that situation, which is
a concern of international relations and not a justiciable issue. To pronounce on this
situation would be both wholly inappropriate and totally irrelevant to the legal questions
that are the objects of our attention. Now that any ambiguity as to wh at we are doing
here has been eradicated , let us turn to the background of this matter – the reason we
are here.
[3] On 6 February 2009, Mr Masuku, while representing the Congress of South
African Trade Unions ( COSATU), made a series of remarks on the website
supernatural.blogs.com, where he stated, verbatim:
“[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 Palest ine. 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.” (First Statement.)
[4] On 5 March 2009, at a rally convened b y the Palestinian Solidarity Committee
at the University of the Witwatersrand (Wits), Mr Masuku made three further
statements, also while representing COSATU. When referring to what COSATU’s
intentions were regarding those who supported Israel, he stated that “COSATU has got
members here even on this campus; we can make sure that for that side it will be hell.”
(Second Statement.)
[5] He further remarked:
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“[T]he following things are going to apply: any South African family, I want to repeat
it so that it is clear for anyone, 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.” (Third Statement.)
[6] Finally, he stated:
“COSATU is with you, we will do everything to make sure that whether it’s at Wits,
whether it’s at Orange Grove, anyone who does not support equality and dignity, who
does not support rights of other people must face the consequences even if it means
that we will do something that ma y necessarily cause what is regarded as harm.”
(Fourth Statement.)
[7] On 26 March 2009, the South African Jewish Board of Deputies (SAJBD) lodged
a complaint with the South African Human Rights Commission (HRC) , alleging that
the above statements (impugned statements) amounted to hate speech. The HRC
formed the view that the statements amounted to hate speech and subsequently launched
proceedings in the High Court of South Africa, Gauteng Local Division, Johannesburg,
sitting as the Equality Court, on behalf of the SAJBD.
[8] The Equality Court determined that the statements constituted hate speech as
defined in section 10 (1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act1 (Equality Act). The Supreme Court of Appeal, however, altogether
avoided the question whether the statements constituted hate speech in terms of the
Equality Act, and instead relied directly on the Constitution. Measuring the impugned
statements against section 16(2) of the Constitution, it found that the statements did not
amount to hate speech.
[9] It is against this disjuncture , as between the Equality Court and the Supreme
Court of Appeal , that this matter comes before this Court. The approaches f rom the
respective courts show stark disagreement not only as to the correct conclusions to be
1 4 of 2000.
KHAMPEPE J
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drawn from the facts of the matter but, more crucially, what the applicable law is. And
so, it is to these questions that this Court applies itself.
Parties
[10] The applicant is the HRC, a Chapter 9 institution governed by the Constitution
and the Human Rights Commission Act.2 The HRC brings the matter on behalf of the
SAJBD, an organisation that represents members of the South African Jewish
community. Its mission is to promote the safety and welfare of South African Jewish
people, this includes combatting anti-Semitism in all its forms, and building bridges of
friendship and understanding between Jews and the broader South African population.
[11] The first respondent is Mr Masuku who , at the time of the statements , was the
Head of International Relations for COSATU. The second respondent is COSATU, a
federation of trade unions representing various workers’ interests in the Republic of
South Africa, and, which, it is widely known, aligns itself with the Palestinian position
in the intractable Israeli/Palestinian conflict.
[12] The first amicus curiae is the South African Holocaust and Genocide Foundation
(SAHGF), an organisation that researches and promotes awareness of, among other
things, the genesis of genocide.
[13] The second amicus curiae is the Psychological Society of South Africa
(PsySSA), an organisation committed to promoting rigorous research and encouraging
the application of research findings in the advancement of public well-being.
[14] The third amicus curiae is the Freedom of Expression Institute (FXI), an
organisation that seeks to promote and protect the right to freedom of expression.
2 54 of 1994.
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[15] The fourth amicus curiae is Media Monitoring Africa (M MA), an organisation
that advocates for freedom of expression and supports the responsible free flow of
information to the public on matters of public interest.
[16] The fifth amicus curiae is the Rule of Law project (RoLP), which is a division of
the Free Mar ket Foundation. The objective of the RoLP is to provide intellectual
substance to section 1(c) of the Constitution.
[17] The sixth amicus curiae is the Nelson Mandela Foundation (NMF), an
organisation with a mission to create a society that remembers its past and pursues social
justice.
Legal framework
[18] Before launch ing into the litigation history of the matter, it is appropriate to
traverse at this juncture the pertinent legal framework. The HRC submits that the
impugned statements must be measured against s ection 10 of the Equality Act , which
is the primary legislation prohibiting hate speech, and which reads as follows:
“Prohibition of hate speech:
(1) Subject to the proviso in section 12, no person may publish, propagate,
advocate or communicate words based on one or more of the prohibited
grounds, against any person, that could reasonably be construed to demonstrate
a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
(2) Without prejudice to any remedies of a civil nature under this Act, the court
may, in accordance with section 21(2)(n) and where appropriate, refer any case
dealing with the publication, advocacy, propagation or communication of hate
speech as contemplated in subsection (1), to th e Director of Public
Prosecutions having jurisdiction for the institution of criminal proceedings in
terms of the common law or relevant legislation.”
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[19] The “prohibited grounds” are set out in section 1 of the Equality Act, and are as
follows––
“(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture,
language, birth and HIV/AIDS status; or
(b) any other ground where discrimination based on that other ground—
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person ’s rights and
freedoms in a serious manner that is comparable to discrimination on
a ground in paragraph (a).”
[20] Since Mr Masuku and the Supreme Court of Appeal relied heavily on the right
to freedom of expression, as enshrined in section 16 of the Constitution, it is also
prudent to set out this provision in full. Section 16 provides that:
“(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm.”
Litigation history
Equality Court
[21] The question before the Equality Court was whether the impugned statements
amounted to hate speech as contemplated in section 10(1) of the Equality Act. 3 In the
3 South African Human Rights Commission v Masuku 2018 (3) SA 291 (GJ) (Equality Court judgment) at para 2.
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proceedings before the Equality Court, the HRC relied on expert testimony led b y
Dr Hirsch4 and Dr Stanton 5 to contend that , despite Mr Masuku’s assertion that his
comments were directed at Zionists and not Jewish people, the relationship between
Judaism and Zionism was too closely linked to be distinguished in the way Mr Masuku
alleged.6 According to the HRC, Mr Masuku’s state ments amounted to hate speech
prohibited by section 16(2) of the C onstitution and violated the complainant’s right to
equality, as guaranteed by section 9 of the Constitution.7
[22] In response, Mr Masuku relied on the expert evidence of Prof Friedman8 to show
that there was a distinction between anti -Semitism and legitimate criticism of the
State of I srael (anti-Zionism).9 The latter, Mr Masuku contended, more accurately
reflects the character of his statements. According to Mr Masuku, his statements fell to
be protected: they did not constitute hate speech, and they were based on fact, were true,
and constituted fair comment on matters of public interest. Ultimately, he averred, the
position held by the HRC would result in the legitimate expression of his right to free
speech being unduly compromised.10
[23] According to the Equality Court, per Moshidi J, the matter involved a delicate
balancing exercise of the right to freedom of expression as enshrined in the Constitution
on the one hand, and the regulation of that right in order to give content to the rights to
dignity, equality and non -discrimination, specifically the rights of the Jewish
community not to suffer offence, on the other. 11 Against the backdrop of section 9 of
4 Dr Hirsch is a lecturer in Sociology at Goldsmiths University of London as well as an expert on Judaism and
Zionism. See Equality Court judgment above n 3 at para 10.
5 Dr Stanton is a Research Professor of Genocide Studies and Prevention at George Mason University. See
Equality Court judgment above n 3 at para 11.
6 Id at paras 10-1.
7 Id at para 7.
8 Prof Friedman is the director of the Centre for the Study of Democracy at the University of Johannesburg as well
as Professor of International Relations at Rhodes University. See Equality Court judgment above n 3 at para 14.
9 Id at para 14.
10 Id at para 18.
11 Id at para 1.
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the Constitution,12 Moshidi J analysed the Equality Act’s objects, and noted that one of
its express objects13 is:
“The prohibition of advocacy of hatred, based on race, ethnicity, gender or religion,
that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the
Constitution and section 12 of this Act.”14
[24] The Equality Court concluded that this indicates that the purpose of the hate
speech provisions in the Equality Act is the regulation of speech that is not subject to
constitutional protection under section 16(2) of the Constitution.15
[25] Because there was no frontal challenge to the constitutionality of section 10(1)
of the Equality Act, ergo, no question as to whether it passed constitutional muster, the
crux of the matt er to be determined by the Equality Court was whether the impugned
statements fell within the purview of section 10(1) of the Equality Act , and, thus, fell
beyond protection.16 The Equality Court noted that, whilst the Constitution puts certain
forms of expression outside constitutional protection, the Equality A ct goes further in
regulating and prohibiting hate speech . It employs distinct categories of expression
12 Section 9 of the Constitution provides that:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and oth er measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination may
be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gen der, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.”
13 Section 2 of the Equality Act sets out the express objects of the Act.
14 Equality Court judgment above n 3 at para 21.
15 Id at para 24.
16 Id at para 9.
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which it explicitly forbids, and which extend beyond the forms of hate speech that
section 16 of the Constitution places outside the confines of constitutional protection.17
Since the Equality Act constitutes the national legislation intended to prohibit hate
speech, and in the light of the principle of subsidiarity, the Equality Court analysed the
impugned statements under section 10(1).18
[26] The Equality Court, relying on a spate of judgments of this Court, observed that
the right to freedom of expression is inseparable from a functioning democracy, and is
an important right to be protected for it fosters the facilitation of truth, pluralism and
tolerance.19 However, the Court emphasised that , although important, it is no t an
absolute right and can be limited in accordance with section 36 of the Constitution.20
[27] The Equality Court dismissed as “untenable” Mr Masuku’s defences that the
statements were either true, fair comment or in the public interest, and thus, ought to be
protected.21 It concluded that , understood in their proper context, the impugned
statements targeted Jewish people, were hurtful, harmful and propagated hatred against
Jewish people, and constituted precisely the mischief that section 10(1) of the Equality
Act exist s to combat. 22 It was held that the Constitutional Court has repeatedly
17 Id at para 42.
18 Id at paras 19 and 60.
19 Id at para 26.
20 Id; Section 36 provides for the limitation of rights in the following terms:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”
21 Equality Court judgment id at para 47.
22 Id at para 38.
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highlighted the interests of the State in regulating hate speech because there is a
recognition that, where it prevails, it threatens the constitutionally mandated objective
of constructing a non -racial and non -sexist society based on common human dignity
and the attainment of equality. 23 The Equality Court, thus, held that the statements
unequivocally amounted to hate speech under sect ion 10(1) as the y: were based o n
prohibited grounds; reasonably indicated a discernible intention to be hurtful, harmful
or incite harm, or propagate hatred ; and did not add any value to public discourse nor
could they possibly be said to contribute meaningfully to democratic dialogue.24
[28] The Equality Court also noted that the impugned statements did not even traverse
the internal limitations imposed by section 16(2)(c) of the Constitution: they constituted
material that would have been prohibited by the Constitution itself, even if the
Equality Act did not render them prohibited.25 Accordingly, there was simply no need
to invoke section 36 to ascertain whether the limitation of M r Masuku’s freedom of
expression was justifiable.26 Ultimately, although the statements needed to be measured
against section 10(1) of the Equality Act, the Equality Court held that they were neither
protected by the Constitution nor the Equality Act, both of which they fell foul.27
[29] Having considered what would constitute an appropriate and effective remedy
for the harm done, the Equality Court directed the respondents to tender an
unconditional apology to the Jewish community within 30 days of the order. The details
of the apology would be agreed to by the parties, provided that the apology must at least
receive the same publicity as the impugned statements. The respondents were ordered
to pay the costs of the HRC.28
23 Id at para 35.
24 Id at para 39.
25 Id at para 55.
26 Id.
27 Id at para 60.
28 Id at para 65.3.
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Supreme Court of Appeal
[30] Aggrieved by the findings of the Equality Court, the respondents sought leave to
appeal to the Supreme Court of Appeal. The Supreme Court of Appeal concluded that
counsel for the HRC had disavowed the HRC’s reliance on the Equality Act, conceding
instead that the impugned statem ents were protected unless they fell within the
exclusion of section 16(2) of the Constitution. 29 The Supreme Court of Appeal was of
the view that this concession was properly made as there was a legitimate view in
academic circles that section 10 of the Equality Act “may well constitute an unjustified
limitation of the freedom of expression” 30 under the Constitution as section 10(1) has
the effect of condemning speech that is protected under section 16(1) of the
Constitution.31 Thus, the matter, as seen by the Supreme Court of Appeal, would not
turn on the wider formulation of hate speech under the Eq uality Act; rather, it was to
turn on whether the impugned speech constituted hate speech in terms of section 16(2),
and, if not, then it would be protected speech in terms of section 16(1).32
[31] As the Supreme Court of Appeal was of the view that the parties’ expert evidence
“was of minimal, if any, assistance to the resolution of the dispute as to whether
Mr Masuku’s statements amounted to hate speech”,33 it rejected it. The Supreme Court
of Appeal analysed the impugned statements in the light of the dictionary definition of
Zionism and found that Judaism and Zionism are not synonymous. 34 As a result, it
came to the conclusion that the impugned statements did not connote religion or
ethnicity, but represented political speech made in the context of the Israeli-Palestinian
conflict and amounted to speech protected under section 16(1). 35 The Court noted that
29 Masuku v South African Human Rights Commission [2018] ZASCA 180; 2019 (2) SA 194 (SCA) (Supreme
Court of Appeal judgment) at para 13.
30 Id at para 14 quoting Cheadle et al The South African Constitutional Law: The Bill of Rights 2 ed (LexisNexis
Butterworths, Durban 2005).
31 Supreme Court of Appeal judgment id at para 14.
32 Id at paras 14 and 31.
33 Id at para 21.
34 Id at para 25.
35 Id at para 26.
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no matter how hurtful or distasteful the impugned statements may have been to
members of the Jewish community , they did not transgress the boundaries set out in
section 16(2).36 And, it went to great lengths to emphasise the importance of protecting
freedom of speech and expression in a constitutional democracy.
[32] The Supreme Court of Appeal upheld the appeal, finding that the impugned
statements did not amount to hate speech because none of the statements transgressed
the boundaries of section 16(2) of the Constitution. 37 It set aside the order of the
Equality Court and replaced it with an order that the HRC’s comp laint to the Equality
Court be dismissed, with each party paying its own costs.38
Submissions before this Court
HRC’s submissions
[33] The HRC approaches this Court, maintaining that the matter plainly engages its
constitutional and extended jurisdiction,39 submitting that it is in the interests of justice
to grant leave to appeal, and advancing several main grounds of appeal.
[34] First, the HRC submits that the Supreme Court of Appeal reached its order by
following an approach that was fundamentally at odds wit h the well -established
principle of constitutional subsidiarity, in terms of which neither litigants nor courts can
sidestep an Act of Parliament that has been enacted to give expression to a constitutional
right, if that Act exists, and instead rely direc tly on the Constitution itself. This is so,
regardless of any perceived misgivings about the Act or its provisions – any misgivings
must be addressed by way of a frontal challenge to the constitutionality of the Act or its
provisions.
36 Id at para 31.
37 Id.
38 Id at para 32.
39 The HRC avers that jurisdiction can also be established in terms of section 167(3)(b)(ii) on the basis that it
raises an arguable point of law of general public importance that ought to be considered by this Court.
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[35] According to the HRC, based on this principle, when the Legislature enacted the
Equality Act, it intended to regulate expression which is not constitutionally protected,
and to prohibit a wider range of speech and expression than that which is prohibited by
the Constitution – in other words, section 10(1) of the Equality Act is broader in scope
by design and not mistake. And, if the respondents were of the view that section 10(1)
was too broad, and unduly restrained Mr Masuku’s right to freedom of expression, they
ought to have impugned the constitutionality of the Act, which they failed to do. Thus,
the impugned statements had to be measured against section 10(1) of the Equality Act.
It was , therefore, in error that the Supreme Court of Appeal relied directly on the
Constitution, measuring the impugned statements against section 16(2) of the
Constitution as opposed to measuring them against section 10(1), as the Equality Court
had done, and as it was required to do.
[36] In sum: the HRC submits that the Supreme Court of Appeal conducted an
entirely incorrect enquiry, which resulted in a judgment that, if left to stand, would
create confusion for litigants and courts as to the proper place of the Equality Act and
the interplay between the Constitution , its rights and legislative provisions enacted to
give content to those rights.
[37] The HRC avers that , having misapprehended the standard against which the
impugned statements should be judged, the Supreme Court of Appeal then erred in its
analysis of the statements when it found that they did not relate to the Jewish
community, and therefore, did not amount to advocacy of hatred based on ethnicity or
race, but rather were a politically acceptable anti-Zionist commentary. According to
the HRC, the fine distinction was not one that concerned Mr Masuku when he made the
statements, which, understood within their context, target Jewish people.
[38] According to the HRC, the Supreme Court of Appeal failed to consider the
statements in their proper context and therefore made its determination oblivious to the
fact that a number of contextual indicators pointed to the fact that Jews were the target
of Mr Masuku’s speech . On this note, the HRC submits that the Supreme Court of
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Appeal also erred in d ismissing the relevance of the expert evidence, ignoring the
pertinent role that expert testimony can play in demonstrating why speech that may
appear neutral, in fact constitutes hate speech. Had it not dismissed the expert evidence,
it would have been patent that the statements amounted to hate speech.
[39] Although the HRC recognises that the importance of the right to free speech in
a constitutional democracy is indisputable, and that this extends even to ideas that
offend, shock or disturb, what is permitted is public debate that does not amount to hate
speech. The appropriate relief, so it contends, is an apology , to be tendered by the
respondents, along the lines of that ordered by the Equality Court.
Respondents’ submissions
[40] The respondents, Mr Masuku and COSATU, oppose the appeal and raise their
own cross-appeal against the adverse costs order granted by the Equality Court.
[41] They are of the view that the matter does not raise constitutional issues in relation
to the interpretation of sections 10 (1) of the Equality Act and 16 of the Constitution
such that this Court’s jurisdiction is engaged . What the Equality Court and Supreme
Court of Appeal were called upon to do was to interpret the speech, and, on this score,
the conclusion reached by the latter is unassailable. Therefore, according to the
respondents, the matter bears no prospects of success.
[42] The respondents maintain that the prohibition of expression does not extend to
speech that does not fall within the ambit of section 16(2) of the Constitution. Thus, to
the extent that section 10(1) prohibited a wider range of expression than that delineated
in section 16(2), that section would be unconstitutional, and that extended prohibition
would constitute an unreasonable and unjustifiable limitation of the rights guaranteed
by section 16(1) of the Constitution.
[43] In any event, argue the respondents, before the Equality Court the HRC had
pleaded that the impugned statements fell within the definition of hate speech as
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contemplated in section 16(2), and before the Supreme Court of Appeal, had abandoned
any reliance on the Equality Act. Therefore, there was no need for the statements to be
measured against section 10(1) of the Equality Act, and no need f or the respondents to
have challenged the constitutionality of the Equality Act.
[44] The respondents concede that the cause of action remained in terms of the
prohibition of hate speech in section 10(1) of the Equality Act ; however, this was
limited to thos e parts of the prohibition that do not go beyond the definition in
section 16(2) of the Constitution. In other words, the case did not stray beyond the parts
of section 10(1) that mirror section 16(2) . Because of this overlap, the issue of
subsidiarity never arose, and the Supreme Court of Appeal, essentially, albeit indirectly,
measured the statements against the correct yardstick. And, because of this, it would
have made no practical difference to the conclusion reached by the Supreme Court of
Appeal had it conducted that exercise in respect of section 10(1) of the Equality Act, or
in terms of section 16(2) of the Constitution.
[45] Ultimately, the respondents submit that a restrictive interpretation should be
given to the prohibitions on freedom of express ion, captured in both section 10(1) and
section 16, in order to give meaning to the important right to freedom of speech. In this
regard, they submit, the Supreme Court of Ap peal struck the correct chord, whilst the
Equality Court’s judgment, if upheld, would have a chilling effect on political speech.
[46] They submit that the Supreme Court of Appeal came to the correct conclusions
on assessing the impugned statements, finding that they were not based on the Jewish
faith or ethnicity and did not constitute the propagation of hatred and incitement of
violence against Jewish people . According to the m, when understood in context, it is
clear that Mr Masuku made a marked distinction between the Jewish faith and ethnicity
and support for the Israeli State and the ideology of Zionism – his statements were
anti-Zionist not anti-Semitic. His statements, they aver, had nothing to do with religion
or ethnicity and everything to do with the conduct of the State of Israel towards the
Palestinians. And, the Supreme Court of Appeal had the right idea about how to treat
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the expert testimony in respect of unpacking these terms of art, finding that they were
neither admissible nor useful to the Court.
Respondents’ cross appeal
[47] The respondents also raise a cross -appeal relating to costs, submitting that ,
because the HRC had not sought costs against the respondents, the Equality Court erred
in granting them. Furthermore, the Supreme Court of Appeal did not provide reasons
as to why it departed from the ordinary rule that costs follow the result, when it ordered
each party to pay their own costs even after it had found in favour of the respondents.
The respondents submit that this issue of costs raises a constitutional issue, because if
litigants are to be mulcted in costs when pursuing constitutional litigating against the
State, they will be discouraged from seeking to vindicate their rights. The chilling effect
on rights like the right to freedom of expression and to access to courts would be
self-evident.
[48] The HRC opposes the cross -appeal, submitting that the Equality Court acted
within the bounds of its discretion when it ordered the respondents to pay costs, and the
Supreme Court of Appeal similarly acted within its discretion when it ordered that each
party pay its own way. According to the HRC, this Court should not interfere , and the
cross-appeal ought to be dismissed with each party paying its own costs.
Amici’s submissions
[49] Six amici are admitted and advance a range of submissions that are of assistance
to this Court in determining the matter. These submissions will not be outlined in full ;
however, the thrust of their submissions will be briefly canvassed.
[50] The S AHGF provides insight into the difference between anti-Semitism and
anti-Zionism and suggests that this Court must look beyond the surface of the words to
consider their sub -textual meaning within the context they were used. It provides a
helpful analysis on the question whether the impugned statements propagated hatred
KHAMPEPE J
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and incited violence against Jews. Ultimately, it submits that the impugned statements
must be measured against section 10(1) of the Equality Act, and when this exercise is
carried out, it is clear that the statements had the effect of inciting violence against
South Africa’s vulnerable Jewish minority. It aligns itself with the relief sought by the
HRC.
[51] The PsySSA interrogates whether the Supreme Court of Appeal correctly framed
its enquiry within the ambit of section 16(2) of the Constitution rather than section 10(1)
of the Equality Act . It maintains that Parliament, when it promulgated section 10(1) ,
intentionally crafted a further limitation on section 16(1) of the Constitution than that
captured in section 16(2). Therefore, the Supreme Court of Appeal erred in reducing
the case to a determination of whether the impugned statements contravened section
16(2), ignoring section 10(1). It also maintains that that Court erred in dismissing the
expert evidence l ed at trial as being “ of minimal value ”, as such evidence plays an
important role in hate speech cases.
[52] The F XI, MMA, RoLP, and NMF all made submissions regarding the
interpretation and constitutionality of section 10 of the Equality Act. Since this Court
has subsequently pronounced on these issues, as will be explained in due course, these
submissions are no longer relevant and need not be discussed here. It is thus fitting to
move on to the adjudication of this matter, beginning with an interlocutory application
that was filed by the respondents.
Application for recusal
[53] As set out above, t he question this Court is asked to determine is whether the
series of remarks made by Mr Masuku constitute hate speech. We turn presently to this
question in what will be referred to as the “main application”, but first, we must divert
our attention to an interlocutory application filed by the respondents 40 on
40 Although Mr Masuku and COSATU brought this interlocutory application seeking recusal, and are therefore
technically the applicants in this matter, they are the respondents in the main application, and, to avoid confusion,
they will be referred to throughout as the respondents.
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16 November 2021, for the recusal of Chief Justice Mogoeng (Mogoeng CJ) from the
main application.41 We shall refer to this henceforth as the recusal application. We
must dispose of the recusal application first, because we cannot dispose of the main
application without determining whether Mogoeng CJ can remain part of coram.
[54] Recusal from judicial proceedings takes place where a Judge excuses himself or
herself from participating in a case. A Judge may recuse himself or herself mero motu
(on his or her own volition), or alternatively, upon application by a party to the
proceedings. This recusal application , which was launched at the instance of the
respondents, has its genesis in certain comments made by Mogoeng CJ when he
participated in a webinar, during which, inter alia, he conveyed a message of love for
Israel and Palestine as well as for the Jews and Palestinians, which s ome, like the
respondents, understood to be an expression of love for Israel and the Jews to the
exclusion of Palestine and the Palestinians . According to the respondents,
Mogoeng CJ’s comments created a reasonable apprehension of bias against them,
which militates in favour of his recusal.
[55] The HRC, which launched the main application on behalf of the SAJBD, filed a
notice of intention to abide by this Court’s decision in this recusal application. And,
although six parties applied to be admitted as amici curiae to assist this Court in the
determination of the main application, only the RoLP filed a response opposing this
recusal application.
The presumption of judicial impartiality
[56] In the matter of Basson, this Court remarked that “[a]ccess to courts that function
fairly and in public is a basic right”.42 Section 34 of the Constitution entitles everyone
to the right to have any dispute that can be resolved by the application of law decided
in a fair public hearing before a court or, where ap propriate, another independent and
41 The main application was heard by eight Justices of this Court, among whom was Mogoeng CJ.
42 S v Basson [2005] ZACC 10; 2007 (3) SA 582 (CC); 2005 (12) BCLR 1192 (CC) (Basson) at para 23.
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impartial tribunal or forum. The impartiality and independence of Judicial Officers are
essential requirements of a constitutional democracy and are core components of the
constitutional right of access to courts. 43 It is these requirements that constitute the
source of public trust in the Judiciary and in the administration of justice in general. 44
And, because impartiality of Judicial Officers and the impartial adjudication of disputes
of law constitute the bedrock upon which the rule of law exists, there must, in any sound
legal system, exist a general presumption of impartiality on the part of Judicial Officers.
In SARFU, this Court stated—
“A cornerstone of any fair and just legal system is the impartial adjudication of disputes
which come before the courts and other tribunals. This applies, of course, to both
criminal and civil cases as well as to quasi -judicial and administrative proceedings.
Nothing is more likely to impair confidence in such proceedings, whethe r on the part
of litigants or the general public, than actual bias or the appearance of bias in the official
or officials who have the power to adjudicate on disputes.”45
[57] Judicial Officers in this Republic are also constitutionally bound to discharge
their duties impartially and without bias. 46 Furthermore, in terms of section 174(8) of
the Constitution, which relates to the appointment of Judicial Officers, “before Judicial
Officers begin to perform their functions, they must take an oath or affirm, in
accordance with Schedule 2, that they will uphold and protect the Constitution”. Courts
have repeatedly recognised the presumption that officers of the Judiciary will discharge
their oath of office through the impartial adjudication of all disputes.47 In SARFU, this
Court recognised this, stating that—
43 Id at para 24.
44 Id at para 27.
45 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA
147 (CC); 1999 (7) BCLR 725 (CC) (SARFU) at para 35.
46 Section 165(2) of the Constitution states that “[t]he courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear, favour or prejudice”.
47 See, for example, this Court’s decision in Bernert v Absa Bank Ltd [2010] ZACC 28 ; 2011 (3) SA 92 (CC) ;
2011 (4) BCLR 329 (CC), at paras 31 -3 expanded on the meaning of the Judicial oath of office and the
presumption of impartiality:
“What must be stressed here is that which this court has stressed before: the presumption of
impartiality and the double requirement of reasonableness. The presumption of impartiality is
implicit, if not explicit, in the office of a judicial officer. This presumption must be understood
KHAMPEPE J
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“[i]n applying the test for recusal, Courts have recognised a presumption that Judicial
Officers are impartial in adjudicating disputes. This is based on the recognition that
legal training and experience pre pare Judges for the often-difficult task of fairly
determining where the truth may lie in a welter of contradictory evidence.”48
[58] All this to say that the law does not suppose the possibility of bias. If it did,
imagine the bedlam that would ensue. There is an assumption that Judges are
individuals of careful conscience and intellectual discipline, capable of applying their
minds to the multiplicity of cases which will seize them during their term of office,
without importing their own views or attempting to achieve ends justified in feebleness
by their own personal opinions.
[59] The presumption of impartiality has the effect “that a Judicial Officer will not
lightly be presumed to be biased”. 49 This was confirmed in SACCAWU, where this
Court emphasised that, not only is there a presumption in favour of the impartiality of
in the context of the oath of office that judicial officers are required to take, as well as the nature
of the judicial function. Judicial officers are required by the Constitution to appl y the
Constitution and the law ‘impartially and without fear, favour or prejudice’. Their oath of office
requires them to ‘ administer justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law ’. And the requirement of impartiality is also
implicit, if not explicit, in s ection 34 of the Constitution which gua rantees the right to have
disputes decided ‘ in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum ’. This presumption therefore flows directly from
the Constitution.
As is apparent from the Const itution, the very nature of the judicial function requires judicial
officers to be impartial. Therefore, the authority of the judicial process depends upon the
presumption of impartiality. As Blackstone aptly observed, ‘(t)he law will not suppose a
possibility of bias or favour in a judge, who [has] already sworn to administer impartial justice,
and whose authority greatly depends upon that presumption and idea ’. And, as this court
observed in SARFU II, judicial officers, through their training and exper ience, have the ability
to carry out their oath of office, and it ‘must be assumed that they can disabuse their minds of
any irrelevant personal beliefs and predispositions’. Hence the presumption of impartiality.
. . .
The effect of the presumption of impartiality is that a judicial officer will not lightly be presumed
to be biased.”
48 SARFU above n 45 at para 40.
49 Bernert above n 47 at para 33.
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the Court, but that this is a presumption that is not easily dislodged. 50 This point is
worthy of emphasis.
[60] That being said, there are of course instances where a Judicial Officer may not
be able to demonstrate impartiality or there may exist some apprehension of bias.
Therefore, although the correct point of departure must always be a presumption of
impartiality, “the presumption can be displaced with ‘cogent evidence’ that
demonstrates that something the Judge or Magistrate has done gives rise to a reasonable
apprehension of bias”.51
[61] However, as cautioned in SARFU:
“The reasonableness of the apprehension must be assessed in the light of the oath of
office taken by the Judges to administer justice without fear or favour; and their ability
to carry out that oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any irrelevant personal beliefs or predispositions.
They must take into account the fact that they have a duty to sit in any case in which
they are not obliged to recuse themselves.”52
[62] Accordingly, the presumption in favour of impartiality must always be taken into
account when conducting the enquiry into whether a reasonable apprehension of bias
exists.53 With that in mind, then, we turn to the test for establishing grounds for recusal.
The test for recusal: reasonable apprehension of bias
[63] As alluded to above , it has become trite law that the test for recusal is the
“reasonable apprehension of bias” test.54 And, as it says on the tin, the “existence of a
50 South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish
Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC) (SACCAWU) at para 12.
51 See for example, R v S (RD) (1997) 118 CCC (3d) 353 cited in SARFU above n 45 at para 40.
52 SARFU above n 45 at para 48.
53 Id at para 41.
54 BTR Industries South Africa (Pty) Ltd v Metal & Allied Workers Union [1992] ZASCA 85; 1992 (3) SA 673(A).
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reasonable suspicion of bias satisfies the test”. 55 The Code of Judicial Conduct for
Judges addresses recusal thus:
“A judge must recuse him or herself from a case if there is a—
(a) real or reasonably perceived conflict of interest; or
(b) reasonable suspicion of bias b ased upon objective facts, and shall not recuse
him or herself on insubstantial grounds.”56
And the test for recusal was later expanded upon by this Court, for example, in SARFU.
We can do no better than cite the pertinent finding of that case in full:
“It follows . . . that the correct approach to this application for the recusal of members
of this Court is objective and the onus of establishing it rests upon the applicant. The
question is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the judge has not or will not bring an impartial mind
to bear on the adjudication of the case, that is a mind open to persuasion by the evidence
and the submissions of counsel. The reasonableness of the apprehensi on must be
assessed in the light of the oath of office taken by the judges to administer justice
without fear or favour; and their ability to carry out that oath by reason of their training
and experience. It must be assumed that they can disabuse their minds of any irrelevant
personal beliefs or predispositions. They must take into account the fact that they have
a duty to sit in any case in which they are not obliged to recuse themselves. At the
same time, it must never be forgotten that an impartial j udge is a fundamental
prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or
himself if there are reasonable grounds on the part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not or will not be impartial.”57
[64] The test for recusal is objective and constitutes an assessment of whether a
reasonable litigant in possession of all the relevant facts would have a reasonable
apprehension that the Judge is biased and unable to bring an impar tial mind to bear on
55 Id at 821A.
56 Article 13 of the Code of Judicial Conduct, GN R865 GG 35802, 18 October 2012 (Code).
57 SARFU above n 45 at para 48.
See also SACCAWU above n 50 at para 13, where this Court held that t he applicant for recusal bears the onus of
rebutting the presumption of judicial impartiality and requires “cogent” or “convincing” evidence to do so.
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the issues in dispute. The application of the test requires both that the apprehension of
bias be that of a reasonable person in the position of the litigant and that it be based on
reasonable grounds.58 This test must , thus, be applied to the true facts on which the
recusal application is based.
[65] SARFU made clear that—
“a Judge who sits in a case in which she or he is disqualified from sitting because, seen
objectively, there exists a reasonable apprehension that the Judge may be bia sed, acts
in a manner inconsistent with section 34 of the Constitution and in breach of the
requirements of section 165(2) and the prescribed oath of office”.59
[66] The question of what will give rise to a “reasonable apprehension of bias”
requires some interrogation. This test does not mean that any Judge who holds certain
social, political or religious views will necessarily be biased in respect of certain
matters, nor does it naturally follow that, where a Judge is known to hold certain views,
they will not be capable of applying their minds to a particular matter. The question is
whether they can bring their mind to bear on a case with impartiality. To do so plainly
does not require a Judge to absolve himself or herself of his or her human condition and
experience. As C ardozo J put it: “absolute neutrality on the part of a Judicial Officer
can hardly if ever be achieved”60 for—
“[t]here is in each of us a stream of tendency, whether you choose to call it philosophy
or not, which gives coherence and direction to thought and action. Judges cannot
escape that current any more than other mortals. All their lives, forces which they do
not recognise and cannot name, have been tugging at them – inherited instincts,
traditional beliefs, acquired conviction s; and the resultant is an outlook on life, a
conception of social needs . . . . In this mental background every problem finds it[s]
58 SACCAWU above n 50 at para 14.
59 Basson above n 42 at para 25.
60 Cardozo J in The Nature of the Judicial Process (Yale University Press, New Haven 1921) at 12 -3 and 167,
which is quoted with approval by L’ Heureux-Dube J and McLachlin J in R v S (RD ) above n 51 at para 34, as
cited by this Court in SARFU above n 45 at para 42.
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setting. We may try to see things as objectively as we please. Nonetheless, we can
never see them with any eyes except our own.
. . .
Deep below consciousness are other forces, the likes and the dislikes, the predilections
and the prejudices, the complex of instincts and emotions and habits and convictions,
which make the [person], whether [she or he] be litigant or Judge.”61
[67] It is true that a Judge does not exist in a vacuum. In fulfilling his or her
adjudicative function, he or she brings personal and professional experiences and, what
is more, “it is appropriate for Judges to bring their own life experience to the
adjudication process”.62 This Court has said that in “a multicultural, multilingual and
multiracial country such as South Africa, it cannot reasonably be expected that Judicial
Officers should share all the views and even the prejudices of those persons who appear
before them”.63
[68] What an applicant raising an apprehension of bias must prove is that there is
some connection between the views, opinions or experiences of a Judicial Officer and
the subject matter they are to be seized with. So, proving that a Judicial Officer holds
a particular view is not, without more, sufficient to establish a reasonable apprehension
of bias.
[69] In Goosen, this Court, dismissing the recusal application, emphasised that—
“[i]t is unnecessary for a Judge to occupy a place of ut ter isolation from an issue or
from even a party for that matter. Judges do not recuse themselves when the banking
institution which keeps their money is sued and comes before them. Similarly, holding
shares in a public company quoted on the stock exchan ge does not trigger bias or a
perception of bias unless the value of the shareholding is substantial and likely to be
affected by a judgment.”64
61 SARFU above n 45 at para 42.
62 Id.
63 Id at para 43.
64 Ex parte Goosen 2020 (1) SA 569 (GJ) (Goosen) at para 25.
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This Court went on to emphasise that more is needed before the test for recusal will be
satisfied:
“There must be an articulation of a logical connection between the matter and the feared
deviation from the course of deciding the case on the merits. The bare assertion that a
Judge has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance
until the nature of the interest, and the asserted connection with the possibility of
departure from impartial decision making is articulated.”65
Ultimately, then, the test for reasonable apprehension of bias requires more than mere
association with a matter. The relevant connection must call into question the ability of
the Judge to apply their mind in an impartial manner to the case before them.
The irrelevance of certain issues to the recusal enquiry
[70] At the outset, it is imperative that one properly understands what this case is not
about. And, at this juncture, two points in particular must be emphasised.
[71] First, what this Court must decide in this recusal application is strictly whether
the respondents have satisfied the test for recusal. This may sound as though we are
stating the obvious. But this must be clarified because Mogoeng CJ’s comments, which
form the bedrock of this recusal application, also constituted the substance of an enquiry
conducted by the Judicial Conduct Committee (JCC), which was tasked with
ascertaining whether the se comments demonstrated that Mogoeng CJ had involved
himself in political controversy, contrary to the Code of Judicial Conduct. That was an
entirely different enquiry to the instant matter . The JCC, per Mojapelo J, in dealing
with the complaints lodged against Mogoeng CJ, specifically and expressly stated that
any issue pertaining to his possible recusal from matters, including the main application
here, could be determined by Mogoeng CJ and this Court alone: the JCC was simply
65 Id at para 29.
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not competent to make a finding in respect of this enquiry, and so it did not. 66 It ought
to be borne in mind that the findings of the JCC, on any issue, are not binding on this
Court, nothing turns on the correctness of its findings, 67 and ultimately, the enquiry
conducted by the JCC has absolutely no relevance to the question whether Mogoeng CJ
ought to be recused from the present matter. In sum, let he or she who cares to place
him- or herself in a position to properly engage with the following reasoning, simply
forget that that enquiry took place altogether.
[72] The second issue to be disposed of is one raised by the RoLP, which requires our
attention because it formed a significant component of their opposition to the recusal of
Mogoeng CJ and, we fear, if not tackled head-on, might lead a reader astray. The RoLP
pointed out that—
“should [Mogoen g CJ] not form part of the coram . . . it would render the entire
proceedings . . . inquorate as the matter was only heard by eight Justices of the
Constitutional Court. Were the quoram of the Court to be broken by recusal, it would
necessarily entail that the matter would require to be argued afresh”.
[73] This is indeed a correct reflection of what would happen should Mogoeng CJ be
recused. The main application was heard by eight Justices. Were one to be recused,
this Court would be rendered inquorate with the consequence that this Court would not
be able to make an order.68 Based on this unfortunate situation that would ensue, it then
66 See Mojapelo J’s decision at paras 45-7.
67 Mogoeng CJ has appealed against the findings of the JCC that he breached the Code of Judicial Conduct by
embroiling himself in political controversy. However, the findings and the appeal have no bearing on this Court
in disposing of this recusal application sinc e that enquiry is wholly distinct from the recusal enquiry conducted
here.
68 Section 167(1) of the Constitution provides that the Constitutional Court consists of eleven Judges.
Section 167(2) of the Constitution states that “ a matter before the Constitutional Court must be heard by at least
eight Judges”.
In Judge President Hlophe v Premier , Western Cape Province; Judge President Hlophe v Freedom Under Law
(Centre for Applied Legal Studies as Amici Curiae) [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567
(CC) (Judge President Hlophe ), a similar conundrum to that which arises in the present matter, arose. In that
case, the matter was heard by a bare constitutional quorum of eight Judges, including three Justices who were
parties to the complaint lodge d with the JSC against the applicant and two others who had been involved in
attempted mediation. The Court noted that “i f these Judges are disqualified from hearing the applications for
leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum
for this Court to hear and determine the matters” (see para 17). However, this Court held that the President is
KHAMPEPE J
29
stated that “the recusal of Mogoeng CJ at this late stage of the proceedings would create
significant procedural and logistical hurdles that would needlessly frustrate and further
delay already protracted proceedings”. Accordingly, so the RoLP goes on, these
considerations along with deference to the principles of equity and justice are germane
to this Court determining the a pplication for recusal. In sum, this Court is advised to
find that Mogoeng CJ need not be recused because it would not be in the interests of
justice to allow the consequences of his recusal to unfurl.
[74] Although this Court is grateful for the assistance of amicus curiae in determining
matters generally, in respect of this case, let me say this: this is an entirely unhelpful
and, in fact, misguided submission. There is absolutely no merit in any suggestion that
the determination of whether or not a Judge s hould be recused ought to be guided by
the consequences of a court being inquorate. In Judge President Hlophe, this Court did
note that the interests of justice might be taken into consideration when determining
whether to engage in the merits notwithstan ding that the Court is inquorate as a result
of recusal.69 But this is not the same as allowing the interests of justice to weigh on the
enquiry of reasonable apprehension of bias itself. Conspicuously, whether or not this
Court is rendered inquorate is of no relevance to whether Mogoeng CJ ought to recuse
himself. As set out above, when a court is seized with a recusal application, the legal
test is whether or not a reasonable apprehension of bias can be said to exist. That is all.
That test is not informed nor is it guided by any consideration other than whether there
is reasonable apprehension of bias. If there is, cadit quaestio (the question falls
away/the case is closed) , no matter what effect this might have on the particular
proceedings. What to do with an inquorate court would be a question for that particular
court to address subsequent to its establishing that recusal is warranted. And that might
permitted to appoint a person to be an Acting Judge of the Constitutional Court “if there is a vacancy or if a judge
is absent”. However, the word “absent” is to be interpreted narrowly to mean physically absent (see para 40), and
it is not possible to interpret “absent” in section 175(1) of the Constitution to cover a situation where
Constitutional Court Justices have recused themselves from hearing a specific matter (at para 42). It was held that
the effect of a recusal therefore cannot be considered to be an absence so the position of the recused Justice may
not be filled by another (see para 3 4). Specifically, this Court held that the option of the appointment of Acting
Justices under section 175(1) of the Constitution is not available as a means to render the Court quorate.
69 Judge President Hlophe id at para 46.
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30
be where what was said as obiter in Judge President Hlophe comes into play.
Fortunately, in this case, we need not get to that for the reasons set out below.
Does a reasonable apprehension of bias exist?
[75] In Goosen, the High Court noted that “[i]t is self-evident that the fate of a recusal
application depends on the totality of the relevant facts in any given case”. 70 Thus,
before delving into the application of the law, it is useful to reiterate what the main
application is about. At its heart is the question of whether Mr Masuku’s statements
constitute hate speech in terms of the Equality Act. What t his involves is an
interpretative exercise to ascertain the meaning, target group , and impact of the
impugned statements. What it does not involve is any kind of moral assessment of the
spoken words, nor does it require this Court to comment on the truth or value of the
statements, or render an opinion on their contents. It simply demands that we apply our
minds to the objective determination of whether the Equality Court correctly concluded
that the statements constitute hate speech. We emphasise this, because the matter’s
connection to the conflict in the Middle East is a red herring. The fact that any or all
members of the Bench may hold opinions, even strong opinions, on this conflict is of
no moment to our ability to determine whether the impugned statements constitute hate
speech. For now, this is all that needs to be said on that, and we turn to assess whether
the respondents have met the test for recusal.
[76] This recusal application is grounded in the following facts and events that
transpired after the main application was heard by this Court. On 26 June 2020,
Mogoeng CJ participated in a webinar hosted by the Jerusalem Post,71 during which he
and Chief Rabbi Warren Goldstein were interviewed by Mr Yaakov Katz.72 During the
course of the webinar, Mogoeng CJ made certain comments related to the State of Israel.
70 Goosen above n 64 at para 14.
71 The Jerusalem Post is a daily newspaper based in Israel, which markets itself as the “oldest and largest English
daily newspaper in Israel”.
72 Chief Rabbi Goldstein is the current Chief Rabbi of South Africa, meaning that he is the leader of the Jewish
faith in South Africa. Mr Katz is the Editor-in-Chief of the Jerusalem Post.
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31
These comments catalysed controversy, much public discourse , and somewhat of a
media-storm. The details of the aftermath need not be discussed here, but in the briefest
possible terms, the public responses to the comments were divided along partisan
political views, with proponents of the State of Israel expressing their support for the
comments while opponents of the Israeli State objected. As alluded to above, all of this
culminated in proceedings before the JCC on the basis of allegations that Mogoeng CJ
had breached the Code of Judicial Conduct by becoming embroiled in a political
controversy.73 The South African Zionist Federation (SAZF) wrote a letter to
Mogoeng CJ expressing its support for him in relation to the JCC proceedings. 74
As already stated, the particulars of those proceedings are entirely separate from and
distinct to this recusal application.
[77] At various points throughout these events, Mogoeng CJ has responded to the
public scrutiny and criticisms that his comments received. He has done so publicly and
in his papers before the JCC. Without being detained by unnecessary details, the nub
of these responses was that the comments have been taken completely out of context
and misinterpreted. He averred that the comments were no more than a reflection of his
earnestly held religious views, which advocate for universal peace a nd love, and were
in no way indicative of his political support for, or opposition to, any particular political
stance towards the Israel -Palestine conflict. However, the respondents argue that the
cumulative effect of Mogoeng CJ’s attitude reflected in h is responses, as well as the
overall factual matrix, creates a reasonable apprehension of bias warranting his recusal.
[78] Since the law on recusal evidently requires an objective analysis of the facts
giving rise to an application for recusal, our first step must be to examine the comments
73 Article 12(1)(b) of the Code stipulates that a Judge must not “ become involved in any political controversy or
activity”.
74 The letter, in relevant part, stated that—
“The SAZF would like to give every support possible in the upcoming matter as regards your
stance on Israel- Palestine conflict. [An employee of SAZF] would appreciate the opportunity
of communicating with a person in your legal team. What do you suggest?”
This letter was disclosed to the parties in correspondence issued by this Court on 29 October 2021, together with
directions calling for the filing of an application of recusal and written submissions.
KHAMPEPE J
32
themselves. To avoid any misrepresentation, the relevant portion of the transcript of
the webinar is quoted here in its entirety. Earl y in the webinar, Mogoeng CJ made the
following remarks , while reflecting generally on forgiveness and his personal
experiences with forgiveness:
“Some possibly expect of me to be very hateful of Israel and the Jews, I do not. I love
the Jews. I love Israel. I love Palestine, I love Palestinians. I love everybody. One,
because it is a commandment from the God in whom I believe. But also, because when
you love, when you pursue peace with all human beings, you allow yourself the
opportunity to be a critical role-player wherever there is a dispute.”
[79] He later went on to say:
“Mr Katz: Right, this is a . . . the state of Israel is a country, we used to have very close
relations with South Africa, they’ve gone up and down over the years. Um, is that
something that should be improved, in your opinion?
Mogoeng CJ: I think so. Uh, let me beg in by saying I acknowledge without any
equivocation that the policy direction taken by my country, South Africa, is binding on
me, it is binding on me as any other law would bind on me. So, whatever I have to say
should not be misunderstood as an attempt to say the policy direction taken by my
country in terms of their constitutional responsibilities is not binding on me. But just
as a citizen, any citizen is entitled to criticize the laws and the policies of South Africa
or even suggest that changes are necessary, and that’s where I come from.
Let me give the base. The first base I give is in Psalm 122, verse 6, which says ‘Pray
for the peace of Jerusalem. They shall prosper that love thee’. And see, also
Genesis 12, verse 1 to 3 that says to me as a C hristian that, if I curse Abraham and
Israel, God, the Almighty God, will curse me too. So, I’m under an obligation as a
Christian to love Israel, to pray for the peace of Jerusalem which actually means the
peace of Israel. And I cannot as a Christian do anything other than love and pray for
Israel because I know hatred for Israel by me and for my nation will, can only attract
unprecedented curses upon our nation.
So, what do you think should happen? I think, I think as a citizen of this great country,
that we are denying ourselves a wonderful opportunity of being a game changer in the
Israeli-Palestinian situation. We know what it means to be at loggerheads, to be a
nation at war with itself, and therefore the forgiveness that was demonstrated, the
understanding, the big heart that was displayed by President Nelson Mandela and we,
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the people of South Africa, following his leadership, is an asset that we must use around
the world to bring about peace where there is no peace, to mediate effectively based on
our rich experience.
Let me cite another example, for instance in regards to the Israeli -South African
situation. Remember the overwhelming majority of South Africans of African descent
are landless, they don’t have land. Why? Because the colonialists came and took away
the land that belongs to them. The colonialists came and took the wealth that belongs
to them and that has never stopped. To date, in South Africa and in Africa, people are
landless and some are wallowing in poverty and yet, South Africa and the whole of the
continent is rich in fertile soil, rich with water, rich with mineral resources.
Have we cut diplomatic ties with our previous colonisers? Have we embarked on a
disinvestment campaign against those that are responsible for untold suffering in
South Africa and the continent of Africa? Did Israel take away our land? Did Israel
take away the land of Africa? Did Israel take the mineral wealth of South Africa and
of Africa?
So, we’ve got to move from a position of principle here, we’ve got to have the broader
perspective and say: we know what it means to suffer and to be made to suffer. But
we’ve always had this spirit of generosity, this spirit of forgiveness, this spirit of
building bridges and together with those that did us harm, coming together and saying,
‘Well, we can’t forget what happened but we’re stuck together. Our history forces us
to come together and look for how best to coexist in a mutually beneficial way.’
Reflect on all those colonial powers in South Africa. Now i n Africa there is
neo-colonialism, it is an open secret, we know why South Africans and Africans are
suffering. What about diplomatic ties, what about disinvestment, what about strong
campaigns against those that have ensured that we are where we are, those that
supported apartheid, vocally.
So, I believe that we will do well to reflect on these things as a nation, and reflect on
the objectivity involved in adopting a particular attitude towards a particular country,
that did not, that does not seem to have taken as much and unjustly from South Africa
and Africa as other nations that we consider to be an honour to be having sound
diplomatic relations with. People that we are not even, nations that we are not even
criticising right now and yet, the harm they have caused South Africa and Africa and
the rest of the developing world is unimaginable. So, we’ve got to reflect, take a deep
breath and adopt a principled stance here, that we will go somewhere.”
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[80] The crux of the respondents’ case is that the above comments and Mogoeng CJ’s
subsequent conduct are indicative of the fact that he holds strong personal views that
are diametrically opposed to the beliefs of the respondents, which beliefs led to the
impugned statements that are under scrutiny in the main application. Based on the
above comments, they aver that Mogoeng CJ has professed his unconditional support
for the State of Israel, and that he has openly condemned the BDS movement and
South Africa’s political stance towards the Israel -Palestine confli ct. On the basis of
these publicised views, the respondents submit that it is evident that Mogoeng CJ will
not be able to bring an impartial mind to the adjudication of the main application.
[81] On a plain reading of the transcript of the webinar, which is q uoted above, the
respondents’ submissions are unsustainable. Interpreted objectively and within the
context of the entire webinar, none of Mogoeng CJ’s statements can be taken to be
anything more than his religious and personal views. Quite contrary to w hat the
respondents argue, an objective reader would not understand the comments to be
advocating for a particular political stance towards the conflict other than, at most,
hopes of forgiveness, peace and love. They do not intimate any kind of hostility or
negative views towards any of the parties involved in the conflict.
[82] It is an untenable stretch to characterise Mogoeng CJ’s comments as expressing
“unconditional support for the State of Israel” when the context quite evidently shows
that Mogoeng CJ was communicating his biblical love for all, including Israel and
Palestine, and his opinion on South Africa’s painful past and unique perspective which
enables it to advocate for peace in the global context. There is also nothing in the
evidence prov ided by the respondents which supports the notion that Mogoeng CJ
condemned the BDS movement and South Africa’s stance towards Israel. On the
contrary, the transcript of the webinar reveals that Mogoeng CJ declined to comment
on whether the BDS movement is conducive to a peaceful resolution of the conflict.
[83] The emphasis placed by the respondents on Mogoeng CJ’s religious beliefs about
the consequences of “hating” or “cursing” Israel is also plainly taken out of context. It
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does not follow from Mogoeng CJ’s belief that he, personally, bears a religious
obligation to love all and pray for peace in the Middle East, that he holds views that are
opposed to those of the respondents, and certainly not to the extent that renders him
partial. As has already been explained, the law does not expect Judges to deactivate
their humanity and operate from islands of indifference, and the test for recusal will not
be satisfied on the basis that a Judge may have views or beliefs that differ from those of
the parties before them, even if those beliefs are relevant in some way to the matter. It
is safe and pragmatic to assume that Judges are able to set aside their personal views
and be guided by the relevant legal principles when deciding any matter. We must,
after all, be reminded of the weight of the presumption of impartiality.
[84] With all of this in mind, it is perspicuous that the respondents, not only failed to
provide an interpretation of the comments that adheres to the standard of objectivity
required by the test for bias, but have also failed to prove that Mogoeng CJ’s religious
views and opinions render him incapable of impartially applying his mind to whether
Mr Masuku’s statements constitute hate speech. It may be conceivable that a reasonable
apprehension of bias could exist in respect of a Judge who is known to “equate criticism
of Israel with ‘hatred’ of Israel and of Jewish people”, as the respondents have alleged
is the case here. However, the respondents have failed to establish that this allegation
is born e out by Mogoeng CJ’s statements. It bears repetition that an objective
interpretation of the statements reveals nothing more than Mogoeng CJ’s support for
Israel and Jewish people dictated by very broad religious convictions. Nothing in the
statements can be reasonably understood to establish that Mogoeng CJ equates criticism
of Israel with hatred of Jewish people.
[85] In these circumstances, it cannot be said that the test for recusal has been met, or
that there is any reason to apprehend bias on the part of Mogoeng CJ. Whatever
disagreement or disapproval the respondents may harbour in relation to the personal
and religious views that Mogoeng CJ espoused, is simply insufficient to constitute a
valid ground for recusal. Indeed, if it were open to litigants to request the recusal of
every Judicial Officer whose worldview and beliefs differ from their own, the work of
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our courts would be entirely suspended: our courts would spend most of their time
processing recusal applications and battling the Sisyphean task of finding Judges who
would not be disqualified on account of their opinions or religious affiliations.
[86] Although we are not persuaded at all by the respondents’ interpretation of and
submissions on the webinar comments, we must also consider the other concerns that
they raised in their recusal application. These include the fact that Mogoeng CJ elected
to participate in the webinar without disclosing that intention to the parties, and his
subsequent defences of his comments. Having considered the transcript of the webinar
in its totality, as well as the impugned comments, it is manifestly evident that the
interview canvassed broad topics and general principles. There is nothing in the
transcript that bears any relation or relevance to the main application, and the
respondents have failed to draw this Court’s attention to any truthful or accurate aspect
of the webinar that reveals why Mogoeng CJ was obliged to disclose his participation
beforehand. It follows that this argument, too, is a non-starter.
[87] The same can be said of Mogoeng CJ’s subsequent remarks. Objectively
analysed, these responses are nothing more than attempts to explain and contextualise
the original comments. Nothing in any of t hose responses objectively confirms the
allegations of bias made by the respondents. Rather, it seems that the respondents have
taken for granted that the webinar comments were indefensible and, thus, that
Mogoeng CJ’s attempts to defend them reflect his strong opinions that are opposed to
their own, which underpin the main application. This does not cohere, and since the
webinar comments do not objectively reflect any bias, we do not see how the act of
defending and contextualising these statements can, without more, lead to a reasonable
apprehension of bias.
[88] The final item in the so -called “basket” of factors supporting the recusal
application is the correspondence sent by the SAZF to Mogoeng CJ expressing the
organisation’s support for him, and the att ention that his comments received in the
media.
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[89] Turning first to the correspondence, while the propriety of the SAZF’s conduct
may be questionable, and somewhat unfortunate, the facts are that Mogoeng CJ did not
act on receipt of the correspondence, nor did he provide any response. Under these
circumstances, the mere existence of the correspondence does not create a reasonable
apprehension of bias. It is absurd to suggest that Judges’ impartiality and ability to
adjudicate matters could be so easily affe cted by the unilateral act of some party
attempting to contact them. This would strip Judges of their judicial powers all the time
and render them vulnerable to recusal for conduct entirely beyond their control. The
correspondence was disclosed in the in terests of full transparency, but does not in and
of itself demonstrate that there exists a reasonable apprehension of bias.
[90] The respondents have also failed to explain why the controversy in the media
creates a reasonable apprehension of bias. That cont roversy may have been of some
relevance to the JCC proceedings, but reliance thereon in this recusal application is
misplaced. In determining this enquiry, we have to assess the facts relating to
Mogoeng CJ’s conduct, not the media’s interpretation thereof. On the contrary, courts
must cautiously avoid being influenced by the media, for failure to do so would be the
end of a functional and independent Judiciary. The issue of recusal must be determined
by taking stock of the objective facts, which can hardly be said to be found in the pages
of the press. We have already determined and discussed the objective facts that are
relevant to this recusal application, and are aware of no reason why anything in the
media should have any bearing on this enquiry. W e could very easily find ourselves
going down a treacherous rabbit hole if the media were to guide our objective
assessment of facts in cases that seize us.
Conclusion on recusal application
[91] After applying the law to the facts, the only conclusion that we can reach is that
the respondents have not discharged the onus of establishing that, on the correct facts,
Mogoeng CJ’s conduct created a reasonable apprehension of bias. Moreover, the
evidence does not indicate any predisposition on the part of Mogoeng CJ towards any
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of the parties before this Court, nor do they provide any basis for the conclusion that he
would be unable to “disabuse [his] mind of any irrelevant perso nal beliefs or
predispositions.”75
[92] Having made this finding, it naturally follows that the respondents’ application
for recusal is dismissed, and that Mogoeng CJ is to remain part of the coram in the main
application. On finding this, to that is where we now direct our attention.
Jurisdiction and leave to appeal
[93] Having finally reached the point where we are to address the main application ,
we must dispose of two preliminary questions: whether this Court’s jurisdiction is
engaged and whether it is in the interests of justice to grant leave to appeal.
[94] This matter concerns the interaction between section 16 of the Constitution and
section 10(1) of the Equality Act, promulgated to give effect to the right to equality , to
prevent unfair discrimination and, more broadly, to heal the wrongs of the past.76 The
Equality Act, at its heart, engages in a balancing exercise with rights that are guaranteed
under sections 9 and 10 of the Constitution.77 This Court’s jurisprudence has reiterated
that when it comes to legislation that is enacted to give e ffect to a constitutional right,
questions concerning the proper interpretation and application of that legislation are a
constitutional issue. 78 Since the Equality Act is legislation enacted to give effect to
constitutional rights, the interconnected tasks of interpreting and applying section 10(1)
of the Equality Act, self -evidently, give rise to constitutional issues. Furthermore, at
75 SARFU above n 45 at para 48.
76 In its preamble, the Equality Act states that it is the legislation designed to give effect to the right to equality
set out in section 9 of the Constitution. Section 9(4) of the Constitution mandates that national legislation
codifying this right must be enacted.
77 Preamble to the Equality Act.
78 For example, in the context of the Labour Relations A ct 66 of 1995, see National Education Health & Allied
Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC)
(NEHAWU) at para 14; and , in relation to the Restitution of Land Rights Act 22 of 1994, see Alexkor Limited v
The Richtersveld Community [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC ) at para 23.
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the heart of this matter are competing , yet interrelated, constitutional rights. This
matter, then, is one imbued with constitutional significance.
[95] The constitutional issues in this matter are further evinced by the fact that this
Court is called upon to comment on the decision of the Supreme Court of Appeal to
sidestep section 10(1) of the Equality Act and instead, in resolving the dispute, to place
reliance entirely on the Constitution itself. All the parties accepted that this implicates
the important constitutional principle of subsidiarity. This principle will be discussed
in great depth later in this judgment . At this stage, it suffices to say that questions
concerning this principle, which operates to ensure comity between the arms of
government in circumstances where legislation has been designed to codify a
constitutional right and, thus, in circumstances where the courts and the Legislature act
in partnership to give life to a constitutional right, unequivocally constitute questions of
constitutional law.79 In this matter, the question whether the judgment of the Supreme
Court of Appeal violated this principle goes to the heartland of the separation of powers
doctrine, and most certainly engages our jurisdiction. In fact, there can be no doubt that
questions concerning the principle of subsidiarity necessarily constitute questions of an
inherently constitutional character that engages this Court’s jurisdiction in terms of
section 167(3)(b)(i) of the Constitution.
[96] Notwithstanding that the jurisdiction of this Court is engaged, we must still apply
ourselves to the question whether it is in the interests of justice for this Court to grant
leave to appeal. Upon transition, our constitutional dispensation made a commitment
to building a non -racial and non -sexist society which chooses to celebrate and
accommodate our diversity rather than reject it. However, more than 27 years since that
constitutional promise was first made, as a country we are still grappling with how to
reconcile that promise with our commitment to protecting and promoting freedom of
expression and a culture of openness, transparency and healthy dem ocratic dialogue
79 In My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31, 2016 (1) SA 132 (CC); 2015
(12) BCLR 1407 (CC) (My Vote Counts ), this Court expanded upon the extent of the constitutional issues that
underpin the principle of subsidiarity. At para 61, this Court said that “ [t]he principle is concerned in the first
place with the programmatic scheme and significance of the Constitution”.
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which necessarily means that free expression must have its limits. This exercise of
navigation is far from complete. This country is still grappling with identifying where
the bounds of freedom of expression lie, with the meaning of hate speech, and with the
extent to which speech of an offensive and harmful nature can be tolerated. These are
issues of broad public interest which remain as relevant today as they ever did. It is in
the interests of justice for leave to be granted so that this Court may pronounce on these
issues.
Issues
[97] We can now turn our attention to the salient issues raised by this application for
leave to appeal, which are as follows:
(a) Whether the Supreme Court of Appeal erred in its reliance on
section 16(2) of the Constitution rather than the relevant provisions of the
Equality Act, in the light of the principle of subsidiarity.
(b) If it did err, what the proper and constitutionally compliant interpretation
of section 10(1) of the Equality Act is.
(c) In the light of that interpretation, whether the HRC has established that
the impugned statements made by Mr Masuku constitute hate speech in
terms of section 10(1) of the Equality Act.
(d) And finally, whether the respondents’ cross-appeal against the costs order
granted against them in the Equality Court succeeds.
We proceed to deal with these issues in turn.
Subsidiarity and whether the Supreme Court of Appeal erred in relying on
section 16(2) of the Constitution rather than section 10(1) of the Equality Act
[98] As set out above, the Supreme Court of Appeal opted not to determine the matter
on the basis of section 10(1) of the Equality Act, instead relying directly on
section 16(2) of the Constitution. It did so because, in its view, the constitutionality of
section 10(1) was suspect, and it had understood the HRC to have abandoned reliance
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on that provision. The question is whether the Supreme Court of Appeal was correct in
its conclusion that it was empowered to do this. The corollary to that question is another
question: did the Supreme Court of Appeal violate the principle of subsidiarity?
[99] In respect of the first question – whether the Supreme Court of Appeal was
empowered to rely on section 16(2) of the Constitution – let me say now that there is a
straightforward answer to this question. This is that, whatever the Supreme Court of
Appeal’s apprehension about section 10 of the Equality Act may have been, its reliance
on section 16(2) of the Constitution is simply untenable because section 16(2) does not
create a cause of act ion by which Mr Masuku could have been found to have
contravened anything.80 Nothing in the language of section 16(2) creates any crime or
prohibition which an individual may be held liable for contravening, nor does the
section prescribe any avenue of rec ourse or promise of remedy. All that section 16(2)
does is to create a category of expression which does not enjoy constitutional protection.
The effect of this is merely to say that this type of expression can be prohibited in
legislation without raisin g any constitutional concerns. As this Court put it in
Islamic Unity:
“Section 16(2) . . . defines the boundaries beyond which the right to freedom of
expression does not extend. In that sense, the subsection is definitional. Implicit in its
provisions is an acknowledgment that certain expression does not deserve
constitutional protection because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm.”81
And then later noted:
“There is no doubt that the State has a particular interest in regulating this type of
expression because of the harm it may pose to the constitutionally mandated objective
of building the non -racial and non -sexist society based on human dignity and the
achievement of equality. There is accordingly no bar to the enactment of legislation
80 See section 16 of the Constitution.
81 Islamic Unity Convention v Independent Broadcasting Authority [2002] ZACC 3; 2002 (4) SA 294 (CC); 2002
(5) BCLR 433 (CC) (Islamic Unity) at para 32.
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that prohibits such expression. Any regulation of expression that falls within the
categories enumerated in section 16(2) would not be a limitation of the right in
section 16.”82
[100] As the Court correctly stated in that case, while section 16(2) may define the
forms of expression that fall outside of constitutionally protected expression, it is still
incumbent on the Legislature, if it so wishes, to enact legislation to regulate these forms
of speech. And, while legislation of this sort will always have to be interpreted in the
light of the closed list of constitutionally unprotected forms of speech defined in
section 16(2) together with the open list of constitutionally prote cted forms of speech
defined in section 16(1), this does not without more create a prohibition out of thin air.
In that regard, the Supreme Court of Appeal’s attempt to adjudicate Mr Masuku’s
speech against section 16(2) was misguided.
[101] This finding may b e dispositive of the question whether the Supreme Court of
Appeal erred, but there are further issues worth unpacking here. This is because the
reasons underlying why the approach of the Supreme Court of Appeal was incorrect are
important, and worth ingem ination, for they go to the heart of a court’s role when our
Constitution has expressly demarcated competency as between various branches of the
State. The question then also becomes whether the principle of subsidiarity finds
applicability or relevance in this matter, and whether that principle was violated by the
Supreme Court of Appeal.
[102] Broadly, the principle of subsidiarity is the judicial theory whereby the
adjudication of substantive issues is determined with reference to more particular, rather
than more general, constitutional norms. The principle is based on the understanding
that, although the Constitution enjoys superiority over other legal sources, its existence
does not threaten or displace ordinary legal principles and its superiority cannot oust
legislative provisions enacted to give life and content to rights introduced by the
Constitution. In simple terms, the principle can be summarised thus:
82 Id at para 33.
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“Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment
of that right is no longer the prime mechanism for its enforcement. The legislation is
primary. The right in the Constitution plays only a subsidiary or supporting role.”83
Ultimately, the effect of the principle is that it operates to ensure that disputes are
determined using the specific, often more comprehensive, legislation enacted to give
effect to a constitutional right, preventing them from being determined by invoking the
Constitution and relying on the right directly, to the exclusion of that legislation.84
[103] This principle has been pronounced upon by this Court on numerous occasions.
And, in My Vote Counts , Cameron J, noting how deeply entrenched in South African
constitutional litigation the principle is, identified three categories of cases where the
principle has been endorsed.85 Firstly, in a range of socio-economic rights cases where
the government is under a duty to take reasonable legislative and other measures, within
its available resources, to progressively realise the rights, this Court has af firmed the
proposition that claimants must first impugn the legislation enacted to give effect to
those rights before they may rely on the right itself in the Constitution.86
[104] The second line of cases were those where this Court had determined that there
existed legislation which was “codifying a right afforded by the Bill of Rights”. 87
83 My Vote Counts above n 79 at para 53.
84 S v Mhlungu 1995 ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) ( Mhlungu) at para 59. See
du Plessis “‘Subsidiarity’: What’s in the Name for Constitutional Interpretation and Adjudication? ” (2006) 17
Stell LR at 207; and see also de Visser “ Institutional Subsidiarity in the South African Constitution” (2010) 1
Stell LR at 90.
85 My Vote Counts above n 79 at paras 44-66. Although Cameron J wrote the minority judgment in this case, the
Court unanimously concurred in this section of his judgment.
86 See Mazibuko v City of Johannesburg [2009] ZACC 28; 2010 (4) SA 1 (CC); 2010 (3) BCLR 239 (CC), where
the litigant had argued that a local authority’s water provision policy was unreasonable in the light of the right to
have access to sufficient water guaranteed by section 27(1)(b) of the Constitution. However, the litigant in that
case had not made a frontal challenge to the constitutionality of the governing legislation, the Water Services Act
108 of 1997 . O’Regan J, writing for the Court , noted at para 73 that this situation gave rise to the question of
subsidiarity as the Court had on numerous occasion s held that “where legislation has been enacted to give effect
to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the
legislation as being inconsistent with the Constitution”.
87 My Vote Counts above n 79 at para 55.
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Cameron J noted that this principle was first affirmed in New Clicks ,88 and then
expounded and endorsed in the context of labour rights in SANDU.89 In that instance,
the litig ant had attempted to rely directly on their section 25(3) right to collective
bargaining as enshrined in the Constitution, as opposed to what had been codified in the
Labour Relations Act90 (LRA). This Court held that, where legislation has been enacted
to give effect to a constitutional right, “a litigant may not bypass that legislation and
rely directly on the Constitution without challenging that legislation as falling short of
the constitutional standard”.91 If the legislation is wanting in its protection of the right,
then a frontal attack to the constitutionality of that legislation must be brought.92
[105] Notably, for the purposes of this matter, the principle of subsidiarity has also
been recognised with approval in relation to the interaction between the Equality Act
and section 9 of the Constitution. In Pillay, for example, Langa J reiterated that:
“[C]laims brought under the Equality Act must be considered within the four corners
of that Act. This Court has held in the context of both administrative and labour law
that a litigant cannot circumvent legislation enacted to give effect to a constitutional
right by attempting to rely directly on the constitutional right. To do so would be to
‘fail to recognise the important task conferred upon the Legislature by the Constitution
to respect, protect, promote and fulfil the rights in the Bill of Rights.’ The same
principle applies to the Equality Act. Absent a direct challenge to the Act, courts must
assume that the Equality Act is consistent with the Constitution and claims must be
decided within its margins.”93
88 In Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1)
BCLR 1 (CC) (New Clicks) the judgments of Chaskalson CJ and Ngcobo J alluded to the principle.
89 South African National Defence Union v M inister of Defence [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007
(8) BCLR 863 (CC) (SANDU).
90 66 of 1995.
91 SANDU above n 89 at para 51.
92 Id at para 52.
93 MEC for Education: KwaZulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(Pillay) at para 40.
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[106] The third line of cases were those where “ the Court has applied the principle of
subsidiarity to those provisions of the Bill of Rights that specifically oblige Parliament
to enact legislation: sections 9(4), 25(9), 33(3), and 32(2)”. 94 In that case, it would be
plainly inappropriate for litigants to ignore legislation that Parliament had been required
by the Constitution to enact.
[107] In My Vote Counts , the majority noted general reasons underpinning the
principle:
“First, allowing a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted in terms of the Constitution to give
effect to that right, ‘would defeat the purpose of the Constitution in requiring the right
to be given effect by means of national legislation’. Second, comity between the arms
of government enjoins courts to respect the efforts of other arms of government in
fulfilling constitutional rights. Third, ‘allowing reliance directly on constitutional
rights, in defiance of their statutory embodiment, would encourage the development of
‘two parallel systems of law’’.”95
[108] On a conspectus of the above, it is perspicuous from this Court’s jurisprudence
that subsidiarity as a principle serves important practical and normative purposes. It
respects the separation of powers, as design ed by the Constitution. Moreover, it
promotes principled and consistent application of judicial reasoning to the hierarchical
scheme of legal norms laid out in the Constitution.
[109] The question, therefore, is whether the Supreme Court of Appeal violated the
principle of subsidiarity in this case when it measured the impugned statements against
section 16(2) of the Constitution rather than against section 10(1) of the Equality Act.
94 My Vote Counts above n 79 at para 160.
95 Id.
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[110] The first port of call is , of course, to determine whether the Equality Act
constitutes legislation promulgated to give effect to one or more of the rights in the Bill
of Rights. The Equality Act was enacted pursuant to Parliament’s obligation under
section 9(4) of the Constitution , where it was prescribed that “[n]ational legisla tion
must be enacted to prevent or prohibit unfair discrimination”. This much is evident
from the preamble to the Equality Act.96 Thus, as quoted above, “claims brought under
the Equality Act must be considered within the four corners of that Act”.97
[111] The Equality Act goes beyond the mere furtherance of the right to equality and
non-discrimination, however. It also expressly regulates hate speech. 98 As one of its
objects set out in section 2, the Equality Act states that it was enacted—
“(b) to give effect to the letter and spirit of the Constitution, in particular—
. . .
(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender
or religion, that constitutes incitement to cause harm as contemplated
in section 16(2)(c) of the Constitution and section 12 of this Act.”
[112] The denouement of the above is that the hate speech provisions of the
Equality Act are clearly designed to give scope to section 16 of the Constitution, which
at section 16(2)(c) carves out hate speech from constitutional protection. In this regard,
this fits within the second line of cases identified above, where the legislation attempts
to codify a right in the Bill of Rights. Thus, the principle of subsidiarity must apply so
that, unless there is a direct frontal chal lenge to the hate speech provision of the
Equality Act (section 10(1)), a court must adjudicate the dispute with regard to that
provision, and not with direct reliance on section 16(2) of the Constitution.
96 The long title of the Equality Act states that the legislation is intended—
“to give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic
of South Africa, 1996 so as to prevent and prohibit unfair discrimination and harassment; to
promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and
to provide for matters connected therewith.”
97 Pillay above n 93 at para 40.
98 See the long title of the Equality Act above n 1.
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[113] The judgment in the Supreme Court of Appeal noted that academic
commentators had questioned the constitutionality of section 10 of the Equality Act and
that, together with the supposed disavowal of those provisions by the HRC’s counsel,
mandated it to rely directly on section 16(2) of the Constitution. The third amicus curiae
raised the argument that the Supreme Court of Appeal was empowered to act on this
basis, as the principle of subsidiarity was not rigid and could be departed from in
situations where the legislation may very well be constitutionally invalid. In support of
this proposition, they cite this Court’s previous decisions in Albutt99 and KZN JLC100 as
authority for the contention that the principle of subsidiarity may be relaxed. This
argument is misplaced. Properly understood, neither Albutt nor KZN JLC provide
support for the Supreme Court of Appeal’s decision to ignore the legislation that was
enacted to codify section 16(2)(c) of the Constitution.
[114] In Albutt, this Court was confronted with the question whether it was unlawful
for the President to establish a special dispensation process in accordance with his
pardon powers under section 84(2)(j) of the Constitution without the participation of
victims in the process. 101 This Court chose to avoid the question of whether the
President’s pardon powers amounted to administrative action because, in any event, his
decision was irrational under the principle of legality. This Court did not attempt to
flout the Promotion of Administrative Justice Act102 (PAJA), it merely chose to dispose
of the matter before deciding whether it even applied. Considering the fact that the
President’s decision was irrational under “the less exacting constraints imposed by the
principle of legality”,103 this approach was entirely sagacious in that case.
99 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC).
100 KwaZulu-Natal Joint Liaison Committee v MEC, Department of Education, KwaZulu-Natal [2013] ZACC 10;
2013 (4) SA 262 (CC); 2013 (6) BCLR 615 (CC) (KZN JLC).
101 Albutt above n 99 at para 1.
102 3 of 2000.
103 Minister of Defence and Military Veterans v Motau [2014] ZACC 18; 2014 (5) SA 69 (CC); 2014 (8) BCLR
930 (CC) (Motau) at para 27.
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[115] The KZN JLC case provides even less support for the proposition that the hate
speech provisions of the Equality Act could be ignored. In that case, this Court was
confronted with the question whether certain promises made by government were
necessarily binding. The applicants had relied on contractual principles rather than
PAJA as the basis of their claim. The Court ultimately decided the question on the basis
of the rationality requirement of the principle of legality. Again, this Court did not
ignore PAJA, but r ather chose to dispose of the matter without having to answer the
question whether PAJA applied.
[116] In the matter before us, where we must decide whether the impugned statements
amounted to hate speech, it is evident that section 10 of the Equality Act applies. This,
because the Equality Act expressly attempts to regulate hate speech and, moreover,
section 16(2)(c) of the Constitution does not prohibit hate speech, but merely indicates
that it will not enjoy constitutional protection. Ergo, we can only conclude that the
Supreme Court of Appeal erred. This is patent from the concluding paragraph of that
Court’s judgment:
“In summary, the starting point for the enquiry in this case was that the Constitution in
section 16(1) protects freedom of expressio n. The boundaries of that protection are
delimited in section 16(2). The fact that particular expression may be hurtful of
people’s feelings, or wounding, distasteful, politically inflammatory or downright
offensive, does not exclude it from protection. . . . The bounds of constitutional
protection are only overstepped when the speech involves propaganda for war; the
incitement of imminent violence; or the advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incit ement to cause harm. Nothing
that Mr Masuku wrote or said transgressed those boundaries.”104
[117] The Supreme Court of Appeal went no further. No mention was made of the
prohibition of hate speech by section 10(1) of the Equality Act. And, whilst it is indeed
so that the starting point for the enquiry required of a court in a matter like this is
104 Supreme Court of Appeal judgment above n 29 at para 31.
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section 16(1) of the Constitution, the enquiry does not end at section 16(2). In
measuring the impugned statements against that which is expressly prohibited by
section 16(2), and failing to measure the statements against the relevant provision of the
Equality Act, the Supreme Court of Appeal erred.
[118] As has already been stated, the principle of subsidiarity is a key tenet upholding
the separation of powers. Whatever a nxiety the Supreme Court of Appeal may have
had over the constitutionality of section 10(1), absent an explicit frontal challenge , it
was bound to rely on the Equality Act. It was empowered to attempt to interpret
section 10(1) in the most constitutionally compliant manner, though it chose not to.
This decision undermined the well-established principle that requires respect for the
Legislature’s concomitant role in giving effect to the Bill of Rights , and the duty that
each arm of the State bears, to give effect to the Constitution. This approach was also
inconsistent with the binding precedent on adjudic ating claims under the Equality Act
set in Pillay.
[119] It would be remarkable indeed, if this Court, having made known its fidelity to
the principle of subsidiarity through jurisprudence that spans decades, were to depart
from it now or find anything but that the Supreme Court of Appeal erred when it turned
to the Constitution at the expense of legislation specifically enacted by Parliament to
address the mischief in question. Need we say more? We should think not. This part
of the appeal is upheld.
The decision in Qwelane
[120] In precise terms, the following issues, which are relevant for our purposes, arose
for determination in Qwelane:
“(a) whether [section 10(1)] entails a subjective or objective test;
(b) whether section 10(1)(a)-(c) must be read disjunctively or conjunctively;
(c) whether [section 10(1)] is impermissibly vague;
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(d) whether [section 10(1)] leads to an unjustifiable limitation of section 16 of the
Constitution.”105
These issues were decided against the backdrop of the Constitution itself and, indeed,
the specific constitutional provisions from which the Equality Act derives its life
force.106 Notably, this Court held that “section 10 is located at the confluence of three
fundamental rights: equality, dignity and freedom of expression, and we ought to
navigate an interpretation of that section wi thin this terrain ”.107 Within that context,
and prior to determining the issues, this Court noted that “section 10(1) can be described
as a statutory delict that innovatively offers, unlike any crime or other delict in our law,
specific remedies concerning the right to equality”.108
[121] This Court’s unanimous findings on each of the above issues, insofar as they are
relevant to the matter with which we are presently seized, will be addressed in turn.
Is the test subjective or objective?
[122] After giving due consideration to the debate as to whether the phrase “that could
reasonably be construed to demonstrate a clear intention” connotes an objective or
subjective test, this Court held that—
“it is plainly an objective standard that requires a reasonable person test. This is based
on the gloss ‘reasonably be construed’ and ‘to demonstrate a clear intention’, implying
an objective test that considers the facts and circumstances surrounding the expression,
and not mere inferences or assumptions that are made by the targeted group.”109
105 Qwelane v South African Human Rights Council [2021] ZACC 22; 2021 (6) SA 579 (CC); 2022 (2) BCLR
219 (CC) at para 31.
106 Id at paras 48-93, where this Court referred specifically to sections 9, 10, 16, 39 and 233 of the Constitution in
an exercise of contextualising the interpretation of section 10 of the Equality Act.
107 Id at para 49.
108 Id at para 95.
109 Id at para 96.
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It is pertinent that this interpretation was held to be consistent with the jurisprudence of
our courts as well as foreign law.110
[123] Later in the judgment, when applying this objective test, this Court held that the
following considerations are important to the determi nation: “who the speaker is, the
context in which the speech occurred and its impact, as well as the likelihood of
inflicting harm and propagating hatred.”111
Must section 10(1)(a)-(c) be read disjunctively or conjunctively?
[124] On the next issue, this Court di sagreed with the Supreme Court of Appeal’s
finding that section 10(1)(a) -(c) must be read disjunctively. It held that a disjunctive
reading of these paragraphs creates a bar for hate speech that is significantly too low,
thereby encroaching on the right to freedom of expression. It held thus:
“The absence of the conjunction ‘and’ between the paragraphs, accentuated by the
Supreme Court of Appeal in its reasoning, is countered by the absence of the
disjunction ‘or’. This is therefore a neutral factor. On a disjunctive reading, section 10
would prohibit mere private communication which could reasonably be construed to
demonstrate a clear intention to be hurtful – this is an overly extensive and
impermissible infringement of freedom of expression.”112
[125] Further, this Court held that a conjunctive reading is necessary for section 10(1)
to withstand constitutional scrutiny, for a disjunctive reading would prohibit
expressions that are merely hurtful. This Court emphasised that this would have
egregious conseque nces for freedom of expression, and would result in
110 Id at paras 97-101 where this Court cited Rustenburg Platinum Mine v SAEWA obo Bester [2018] ZACC 13;
2018 (5) SA 78 (CC); 2018 (8) BCLR 951 (CC) ; SATAWU v Moloto N.N.O. [2012] ZACC 19; 2012 (6) SA 249
(CC); 2012 (11) BCLR 117 (CC) ; Le Roux v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577
(CC); S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) ; Brink v Kitshoff N.O.
[1996] ZACC 9; 1996 (4) SA 197 (C C); 1996 (6) BCLR 752 (CC) ; Dendy v University of the Witwatersrand
[2007] ZASCA 30; [2007] 3 All SA 1 (SCA); South African Human Rights Commission v Khumalo 2019 (1) SA
289 (GJ); Afriforum v Malema 2011 (6) SA 240 (EqC); Sonke Gender Justice Network v Malema 2010 (7) BCLR
729 (EqC); and Saskatchewan (Human Rights Commission) v Whatcott 2012 SCC 11; [2013] 1 SCR 467.
111 Qwelane above n 105 at para 176.
112 Id at para 102.
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overly-extensive censorship of expressions that might “offend, shock and disturb.” 113
The salient point made in these findings is that, in an open and democratic society like
ours, where diversity is celeb rated and inclusivity and participation are encouraged in
politics and all spheres of life, a conjunctive reading which guards against oppressive
censorship of opinions must be preferred.
Whether the impugned provision is impermissibly vague
[126] This Court engaged in a rigorous exercise of interpretation to determine whether
section 10(1) is impermissibly vague. In doing so, it specifically considered whether
the terms “hurtful”, “harmful” and “to incite harm” are vague. It is instructive, once
more, to consider this Court’s eloquent exposition of the interpretative difficulties that
arose:
“Various interpretations for ‘harmful’ and ‘hurtful’ were suggested . . . . However,
they all present problems. In particular, it is not clear whether there is any diff erence
in their meaning or whether one is a component of the other. If one accepts that
‘hurtful’ only refers to emotional or psychological harm and ‘harmful’ refers to
physical harm, the immediate difficulty is that expression cannot in and of itself ‘be
harmful’ in the physical sense. Put differently, words cannot intrinsically cause
physical harm. The HRC’s proposed definition of these concepts does not appear to
me to create any distinction between them. Substantively they appear to mean the same
thing. Intricate semantic contortions are required to reach separate meanings in them,
and even then, the attainment of separate meanings seems to be a bridge too far. This
tortuous interpretative odyssey usurps the Legislature’s legislative functions and
offends the principle of separation of powers.”114
[127] This Court accordingly held that the term “hurtful” does little more than to create
confusion as to what is required by section 10(1) by espousing an additional requirement
yet, in the same breath, adding n othing.115 However, as the Court held, “[i]n
113 Id at para 104.
114 Id at para 152.
115 Id at para 153.
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contradistinction to the insuperable difficulties with ‘hurtful’, the term ‘harmful’ does
not suffer the same fate”. 116 This is because the meaning of “‘harmful’ can be
understood as deep emotional and psychologic al harm that severely undermines the
dignity of the targeted group”. 117 Thus, unlike “hurtful”, “harmful” imposes a
requirement that can be clearly and plainly understood. The Court concluded thus:
“[T]he use of ‘hurtful’ on a conjunctive reading appears to be redundant and that
contributes to the lack of clarity of the impugned section. This is because ‘harmful’
can be understood as emotional and psychological harm that severely undermines the
dignity of the targeted group as well as physical harm. ‘Hurtful’ could reasonably mean
the same as ‘harmful’, that is including both emotional and psychological harm. There
is no need to have both. A possible solution would be for ‘hurtful’ to mean something
other than emotional harm, something less perhaps. However, due to the conjunctive
reading, a claimant would have to show that in addition to being emotionally harmed,
she was also hurt. It may be so that harmful communication is always hurtful. If it is,
the removal of the word ‘hurtful’ due to its vagueness avoids any redundancy that can
lead to a lack of clarity.”118
[128] After reaching this conclusion, this Court held that section 10(1) of the Equality
Act was “irredeemably vague” and accordingly undermined the rule of law.
Consequently, it declared that the provision could not pass constitutional muster in this
regard.119
Whether the impugned provision leads to an unjustifiable limitation of
section 16 of the Constitution
[129] The constitutionality of section 10(1) was not only attacked by the allegation of
vagueness. Indeed, this provision was also challenged on the basis of its impact on the
116 Id at para 154.
117 Id.
118 Id at para 155.
119 Id at para 157.
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right to freedom of expression. In determining whether section 10(1) of the Equality
Act leads to an unjustifiable limitation of section 16, this Court held as follows:
“Section 10(1)(c) of the Equality Act prohibits words that ‘promote or propagate
hatred’, and this may be interpreted to accord with the prohibition of the ‘advocacy of
hatred’ in section 16(2). Similarly, the classification in section 10 of hate speech as
speech that is ‘harmful or incite[s] harm’ may be read to align with the prohibition
against the ‘advocacy of hatred’ in section 16(2)(c) of the Constitution. However, there
is no similar exercise that can b e conducted to read ‘hurtful’ constitutionally, as
section 16 has no similar wording. Furthermore, the term is clearly broader than what
is envisioned in section 16, which focuses on war, violence and hatred, and not merely
speech that hurts. Therefore, on this count, section 10 limits section 16 of the
Constitution, and a justification analysis is required.”120
[130] After conducting the justification analysis in terms of section 36, this Court
concluded that the inclusion of “hurtful” constitutes an unjustifia ble limitation of the
right to freedom of expression. It accordingly declared this aspect of section 10(1) to
be unconstitutional. To illustrate the principles underlying this finding, we can do no
better than to quote directly from Qwelane:
“The import ance of the right to freedom of expression on the one hand and the
importance of the purpose of the limitation of that right, namely to protect the equally
important rights to equality and dignity by way of prohibiting hate speech, have been
expounded. So too, the nature and extent of the limitation and the relation between the
limitation and its purpose. However, it is here that the usefulness of the term “hurtful”
becomes less clear. If speech that is merely hurtful is considered hate speech, this sets
the bar rather low. It is an extensive limitation. The prohibition of hurtful speech
would certainly serve to protect the rights to dignity and equality of hate speech victims.
However, hurtful speech does not necessarily seek to spread hatred against a person
because of their membership of a particular group, and it is that which is being targeted
by section 10 of the Equality Act. Therefore, the relationship between the limitation
and its purpose is not proportionate.”121
120 Id at para 135.
121 Id at para 139.
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Remedy
[131] After making the abo ve findings in Qwelane, this Court declared section 10(1)
of the Equality Act to be invalid insofar as it was inconsistent with the Constitution.
This order of invalidity was suspended for 24 months to permit the Legislature sufficient
time to remedy the statutory defects.122
[132] Furthermore, the Court considered appropriate interim relief and held that
severance was appropriate in the circumstances, because severing the word “hurtful”
from section 10(1) would still enable the objects of the Equality Act to be realised and
fulfilled.123 In the result, the following order was issued:
“During the period of suspension of the order of constitutional invalidity, section 10 of
the Equality Act will read as follows:
‘Subject to the proviso in section 12, no person may publish, propagate, advocate or
communicate words that are based on one or more of the prohibited grounds, against
any person, that could reasonably be construed to demonstrate a clear intention to be
harmful or to incite harm and to promote or propagate hatred.’”124
The implications of Qwelane
[133] Having held the present matter in abeyance, it behoves this Court to determine
its outcome with regard to the findings in Qwelane, as expounded above. This means
that we find ourselves in the happy position of being able to apply section 10(1) of the
Equality Act to the facts of this matter, comforted by the knowledge that this provision
is constitutionally compliant. So , the next question that arises is how this Court’s
findings in Qwelane may affect the determinat ion of the present matter. The parties
were invited to make written submissions on this question, which will now be
considered briefly.
122 Id at para 162.
123 Id at para 161.
124 Id at para 1(d) of the order.
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HRC’s further submissions
[134] The thrust of the HRC’s submissions is that the impugned statements constitute
hate speech in terms of section 10(1), both before and after its reformulation in
Qwelane. The HRC argues that the aspect of section 10(1) that was declared
unconstitutional in Qwelane did not form any part of its case, which accordingly
remains entirely intact.
[135] The HRC further submits that the Qwelane decision bolsters its case insofar as
it clarified that an objective approach is required in relation to allegations of hate speech.
This, it submits, indicates that the Supreme Court of Appeal fatally erred in relying on
Mr Masuku’s subjective explanati on of the impugned statements, as opposed to
determining the objective meaning and import of the statements. It also casts serious
doubt as to the correctness of the Supreme Court of Appeal’s decision to disregard the
expert evidence , for expert evidence may be instrumental to a court seeking to
objectively determine the meaning of alleged hate speech . After all, there are peculiar
features of the antipathy and attacks encountered by the targets of hate speech which
may not be ordinarily known to a court.
[136] The HRC submits that the impugned statements plainly satisfy the threshold set
by section 10(1) of the Equality Act, as they contain direct threats of violence and harm,
as well as invitations to their audience to band together and target the subjects of the
statements with perpetual suffering and hatred. Thus, the HRC submits, a reasonable
audience would construe the impugned statements as seeking to violate the rights of
another person or group of persons based on their group identity, and that there c an be
no doubt that these statements incited discrimination and hatred towards the target of
the speech. The HRC also refers to the considerations outlined by this Court in Qwelane
and submits that: Mr Masuku is a prominent political figure; the impugned statements
were made in the context of a political rally concerning the deeply divisive,
inflammatory and controversial conflict between Israel and Palestine; and that the
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impugned statements were highly likely to inflict harm and propagate hatred towards
members of the Jewish faith.
[137] Finally, the HRC submits that there can be no doubt that the impugned
statements, interpreted objectively, targeted the Jewish community. The HRC submits
that the statements contain explicit metaphorical references that any r easonable person
would associate with the Jewish community, and that cannot be explained away as
references to political ideology.
Respondents’ further submissions
[138] The respondents submit that Qwelane is distinguishable from this matter on the
facts, because the target of the alleged hate speech in this matter is in dispute. Further
to this, the respondents reiterate that Mr Masuku’s statements were based on political
ideology and were unrelated to a religious or marginalised group.
[139] The respondents are of the view that the objective requirement and related
considerations espoused in Qwelane support their case. To this end, the respondents
argue that Mr Masuku is not a prominent political figure, and emphasise the context in
which the statements were made, being a rally about the conflict between Israel and
Palestine where Mr Masuku was heckled and provoked by Jewish students in
attendance. They accordingly submit that the target of the impugned statements,
objectively determined, was clearly not the Jewish community but rather proponents of
the Israeli State, and that political statements of this kind are protected by the right to
freedom of expression. On the strength of these considerations, they submit that the
impugned statements do not constitute hate speech.
Amici’s further submissions
[140] Submissions on the import of Qwelane in this matter were filed by the first,
fourth, fifth, and sixth amici curiae. In the interests of brevity, the pertinent points that
can be gleaned from their submissions will be dealt with as a collective.
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[141] On behalf of the amici, it was submitted, inter alia, that the impugned statements
must be assessed against section 10(1) as reformulated in Qwelane, and that doing so
does not give rise to issues of retrospectivity because ha rmful speech that propagates
hatred was always excluded from constitutional protection. Thus, holding Mr Masuku
to the recrafted section 10(1) does not deprive Mr Masuku of any existing rights that he
had prior to Qwelane. The amici also provide extensive submissions on how,
contextually, the impugned statements can only be reasonably and objectively
understood to connote Jewish people as opposed to Zionists.
Application of section 10(1)
[142] At the outset of these proceedings , it appeared necessary to embark on an
interpretative exercise into what the prohibition against “hate speech” as defined in
section 10(1) of the Equality Act entails. However, as noted and demonstrated above,
Qwelane has shed considerable light on the matter, and what remains now is to engage
with the facts at hand and measure them against the constitutionally compliant
section 10(1). In the interests of completeness and avoiding confusion, we should
mention that the amici curiae were absolutely correct to emphasise that no issues of
retrospectivity will arise, for the severance applied to section 10(1) has unequivocally
not had the effect of depriving Mr Masuku of any pre -existing rights. 125 There is
accordingly no issue, whatsoever, with this Court applying section 10(1), as severed, to
the current facts. It is to that exercise that we now turn.
125 In this way, this matter is squarely on all fours with Qwelane. In this regard, see para 184 where this Court
held:
“In this matter, there is no impingement of the rule of law and the principle of legality and the
typical concerns regarding retrospectivity are not triggered. This is simply because the recrafted
provision does not take away or deprive Mr Qwelane of any existing rights that he had. Before
the amendment of section 10, the elements of hate speech that were clear and constitutional
were those in section 10(1)(b) and (c), and it is these provisions that Mr Qwelane fell foul of.
Therefore, he could not have claimed that he was prejudiced by not knowing the law beforehand
and that the hate speech prohibition did not exist at the time the article was published.”
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Meaning, context and the relevance of expert evidence
[143] The usual first step in a hate speech enquiry in terms o f section 10(1) of the
Equality Act will be to ascertain the meaning of the words and determine whether they
fall within the section. This is the logically anterior question. In this regard, in the
context of defamation law, our courts have repeatedly confirmed that the determination
of the meaning of a statement is an objective test. 126 And the standard of assessing
whether statements constitute hate speech in terms of section 10(1) of the Equality Act,
as recently found by this Court in Qwelane, is also one of objectivity. 127 Making this
determination falls within the exclusive functions of a court and no evidence whatsoever
is admissible – either expert or otherwise. 128 There is no reason why this should also
not be the position in adjudicating section 10 cases. Making a determination as to the
meaning of words is a task that rightfully falls to the expertise, competency , and
responsibility of courts. That said, it would be remiss of me not to acknowledge that
words are naturally coloured by the context in which they appear and are used. Indeed,
this Court, in Le Roux, discussed the importance of determining the meaning of words
with recourse to their context:
“The primary meaning is the ordinary meaning given to the statement in its context by
a reasonable person . . . . The reasonable reader or observer is thus a legal construct of
an individual utilised by the court to establish meaning.”129
[144] In Bester, this Court explained that it is “accepted that the test to determine
whether the use of the words is racist is objective – whether a reasonable, objective and
informed person, on hearing the words, would perceive them to be racist or
derogatory”.130 And context, to the objective person, is important and instructive of
meaning. In Bester, this Court held that when dealing with, for example, racial tropes
126 Le Roux above n 110 at para 89.
127 See Qwelane above n 105 at para 94.
128 Le Roux above n 110 at paras 91 and 156.
129 Id at paras 87 and 90.
130 Rustenburg Platinum Mine above n 110 at para 38.
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which are inherently imbued with deep historical roots and contemporary
manifestations, it would be unwise to assume that the context in which words are used
is neutral. On this, this Court held thus:
“[A] starting point that phrases are presumptively neutral fails to recognise the impact
of the legacy of apartheid and racial segregation that has left us with a racially charged
present. This approach holds the danger that the dominant, racist view of the past – of
what is neutral, normal and acceptable – might be used as the starting point in the
objective enquiry without recognising that the root of this view skews such enquiry. It
cannot be correct to ignore the reality of our past of institutionally ent renched racism
and begin an enquiry into whether or not a statement is racist and derogatory from a
presumption that the context is neutral – our societal and historical context dictates the
contrary.”131
What this means is that, whilst the determination as to whether words are likely to be
harmful and propagate hatred, and thus constitute hate speech, falls within the exclusive
aegis of a court, evidence that shines a light on the context of those words may be of
assistance to that court in conducting this exercise.
[145] Because it has long been held that an expert may not usurp the adjudicative
functions of our courts,132 the experts in this matter could not be used to determine the
meaning of the statements and whether they were based on Judaism or Zionism.
Nevertheless, as was held in Salem Party Club, “courts routinely rely on experts in
fields [varying] from medicine to sociology to clarify issues and to understand
complexities in evidence”. 133 In the matter at hand , the complex n ature of the nexus
between anti-Zionism and anti-Semitism means, the evidence of experts as to patterns
131 Id at para 48.
132 As the Court in Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616H noted—
“the true and practical test of the admissibility of the opinion of a sk illed witness is whether or
not the Court can receive ‘appreciable help’ from that witness on the particular issue . . . the test
is a relative one, depending on the particular subject and the particular witness with reference
to that subject.”
133 Salem Party Club v Salem Community [2017] ZACC 46; 2018 (3) BCLR 342 (CC); 2018 (3) SA 1 (CC) at
para 63.
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of discrimination, historical uses of language, its harmful effects, and the fine nuances
between anti-Semitic and anti -Zionist tropes can only be of assistance to this Court.
Expert testimony colours the context that we need to understand before we can assess
the statements properly. With careful management and circumspection, expert evidence
may be useful to courts in adjudicating hate speech cases. The Supreme Court of Appeal
erred in dismissing the expert evidence as being of limited to no value whatsoever.
Did Mr Masuku commit hate spe ech in terms of section 10(1) of the Equality
Act?
[146] It is worth noting at the outset of this part of the enquiry that, during the hearing,
the parties appeared to be ad idem (in agreement) on the application of the law. The
second amicus argued that there are at least five points of commonality between the two
primary parties. The list of points of commonality included the fact that: (i) evidence
about the impact of speech on the target group is relevant to remedy; (ii) witnesses may
not be asked what they understood the words to mean or what they meant by the words
as this undermines the accepted objective test; (iii) meaning is dependent on context
and thus evidence of context matters; (iv) expert evidence is admissible in so far as it
can help the court understand context; and (v) the Supreme Court of Appeal ought to
have approached the question with regard to section 10 of the Equality Act and not
section 16 of the Constitution.
[147] The glaring legal issues around section 10(1) of the Equality Act having be en
dealt with by this Court in Qwelane, the crisp issue with which this Court is now seized
is whether the Equality Court was correct to find that the impugned statements
constituted hate speech. It must accordingly be borne in mind that the test for
permissible interference by a court of appeal with a trial court’s factual findings imposes
a high threshold. 134 It is, of course, trite that the powers of a court of appeal against
134 Maphana v S [2018] ZASCA 8 at para 17.
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factual findings are limited. There must be demonstrable and material misdirec tion by
the trial court before a court of appeal will interfere.135
[148] In Mashongwa, it was unanimously held that it is undesirable for this Court to
second-guess the well-reasoned factual findings of the trial court.136 Only under certain
circumstances may an appellate court interfere with the factual findings of a trial court.
What constitute those circumstances are a demonstrable and material misdirection and
a finding that is clearly wrong. Otherwise , trial courts are best placed to make factual
findings.
[149] This Court has also explained that the principle that an appellate court will not
ordinarily interfere with a factual finding by a trial court is recognition of the advantages
that the trial court enjoys that the appellate court does not. 137 These advantages flow
from observing and hearing witnesses as opposed to reading “the cold printed word”,138
the main advantage being the opportunity to observe the demeanour of the witnesses.
But this rule of practice should not be used to “tie the hand s of appellate courts”.139 It
should be used to assist, and not to hamper, an appellate court to do justice to the case
before it. Thus, where there is misdirection on the facts by the trial court, the appellate
court is entitled to disregard the findings on facts and come to its own conclusion on the
facts as they appear on the record. Similarly, where the appellate court is convinced
that the conclusion reached by the trial court is clearly wrong, it will reverse it.
135 S v Hadebe [1997] ZASCA 86 (Hadebe) at 645F.
136 Mashongwa v PRASA [2015] ZACC 36; 2016 (3) SA 528 (CC); 2016 (2) BCLR 204 (CC) at para 45.
137 Bernert above n 47 at para 106.
138 R v Dhlumayo 1948 (2) SA 677 (A) (Dhlumayo) at 696.
139 Id at 695.
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[150] In Florence140 and Competition Commiss ion,141 this Court noted that this
circumspection at overturning factual findings of trial courts is heightened when one
has regard to the factual findings of specialist courts like the Land Claims Court and
Competition Appeal Court. The Equality Court had the benefit of listening to the
evidence of witnesses who were present at the march as well as the expert testimony.
In this regard, the Court was able to make credibility findings that could assist it in
determining how much to weigh the evidentiary value of this evidence as to the context
of the impugned statements.
[151] The immediate context in which Mr Masuku made the impugned statements was
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. 142 COSATU had come out denouncing Israel’s actions
and reiterated its support for the Palestinian community. The SAJB D and SAZF
defended Israel’s military actions.
[152] The expert evidence relied on during the trial 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 anti -Semitic. As noted by the applicant’s expert, Zionism
means various different things to different people.
[153] For the reasons already provided, this Court must tread carefully before
interfering with the factual findings made by the Equality Court regarding this evidence.
However, the crisp question is whether we ought t o pay deference to the
Equality Court’s finding on whether a reasonable person would have considered the
impugned statements to have been based on Jewish identity and intended to incite harm
140 Florence v Government of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10)
BCLR 1137 (CC) at para 24.
141 Competition Commission of South Africa v Media 24 (Pty) Limited [2019] ZACC 26; 2019 (5) SA 598 (CC) ;
2019 (9) BCLR 1049 (CC) (Media 24) at para 52.
142 Equality Court judgment above n 3 at para 31.
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or propagate hatred. This enquiry involves a mixed question of fact and law to the
extent that it requires an evaluative exercise entailing, inter alia, the weighing up of
expert evidence in the light of the criterion of reasonabl eness. This enquiry does not
turn entirely on the merits of the factual findings made by the Equality Court, which it
was best placed to make as a trial court. Thus, on the one hand, the Equality Court’s
findings on factual questions relating to the comp osition of the attendees at the rally,
what was said or shouted, and whether the impugned speech included anti -Semitic
innuendos, cannot be overturned unless they are vitiated by material misdirection . On
the other, however, as an appellate court we are e ntitled to draw inferences from these
facts to determine whether a reasonable person would have interpreted Mr Masuku’s
statements in a manner that would render them in contravention of section 10(1), for
that is a question of law that this Court is well-placed to answer.
[154] At this juncture, it is noteworthy that the preceding analysis and this Court’s
jurisprudence, most recently detailed in Qwelane, reveals that words cannot always be
taken for their plain meaning. The first amicus aptly emphasised that there exists a long
narrative of anti -Jewish rhetoric. This has dominated world history for thousands of
years, and culminated in the Holocaust. Due regard to this context and history must be
observed when dealing with expressions that are allegedly anti -Semitic, because many
socially acceptable words may become a proxy for anti -Semitic sentiments. Focusing
on the plain text and ignoring the objectively ascertainable subtext would be ignorant,
inappropriate and antithetical to what our Constitution demands.
[155] Bearing these considerations in mind, we turn now to the impugned statements,
to ascertain whether they constitute hate speech.
First statement
(i) Were the words based on Jewishness as a religion or ethnicity?
[156] In respect of the first statement, the Equa lity Court concluded that the words
were based on membership of the Jewish religion or ethnicity. The Supreme Court of
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Appeal made its finding in terms of a separate area of the law, so it can be put to one
side. The Equality Court concluded as it did, because the majority of Jewish people are
Zionists in South Africa and globally.143 Although this may not be ordinarily sufficient
to find that the remarks were based on the Jewish identity – as that would mean every
mention of Zionism may potentially open itself to censure – the Equality Court went on
to conclude that the further reference to “Hitler” made it clear that the statement was
based on Jewish ethnicity. The Equality Court held that a reasonable reader would have
noted that a reference to Hitler t o a group that was predominately Jewish was used
because of their “Jewishness” – namely, their Jewish ethnicity and identity. As the
Equality Court noted, Hitler’s anti -Semitic extermination campaign was not limited to
people of the Jewish faith or ethnic ity who identified as Zionists. 144 Moreover, any
mention of “Hitler” undeniably evokes semantic associations with the entire global
Jewish community, and not a specific faction thereof.
[157] There were no contextual factors that indicate that a reasonable perso n who had
sight of the blog post would not have thought this the most probable meaning. Although
Mr Masuku seemed to be responding to a particularly racist comment directed towards
Black COSATU members, this could not disturb the reasonable apprehension t hat a
reader of the blog post would have concluded that, more likely than not, Mr Masuku
based his remarks on membership of the Jewish identity. We accordingly agree with
and uphold the Equality Court’s inference that a reasonable interpretation of the fi rst
statement would understand it as being based on Jewishness as an ethnicity, and not on
anti-Zionism.
143 Equality Court judgment above n 3 at para 41.
144 Id at para 48.
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(ii) Would a reasonable person conclude that there had been a clear
intent to be harmful or incite harm and promote and propagate
hatred?
[158] The Equality Court further held that a reasonable reader would have found that
there was a clear intent to be harmful or incite harm and propagate or promote hatred in
the blog statement. The Equality Court concluded 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, in the
view of the Equality Court, manifested a clear intention of detestation, enmity, ill -will
and malevolence. This sort of expression could reasonably 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.
[159] While the Equality Court proceeded to ignore Mr Masuku’s subjective intention
on this score, the same result would hav e arisen if the Equality Court had taken into
account contextual factors, including his possible subjective intention. There were no
contextual factors that indicated that Mr Masuku was unaware of the meaning or likely
effect of his words so that a reason able person might conclude that he had no clear
intention for his words to have their effect.
[160] It is therefore clear that the first statement meets the threshold required by
section 10(1), and the Equality Court was correct to conclude that this first stat ement
amounted to a contravention of section 10(1).
Second, third and fourth statements
(i) Were the words based on Jewishness as a religion or ethnicity?
[161] The second to fourth statements were all made at the Wits rally ; thus, it is
sensible to analyse them together. The Equality Court concluded on the basis of the
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eyewitness evidence that the only members of the audience who held a different view
to Mr Masuku would have been Jewish. The transcript of the rally indicates that
Mr Masuku was subject to much heckling from people who opposed his speech. Where
Mr Masuku showed his opposition to those whom he believed were oppressing
Palestinians, he faced retorts of “Including Jews!”, “Especially Jews!”, “By Jews!”. It
is unclear why the individuals opposing Mr Masuku would have shouted these things,
but the respondents contend that this was done to bait Mr Masuku into saying something
which singled out Jews. Curiously, the Equality Court does not include this relevant
context in its analysis of the statements made at the rally.
[162] Although there is no reason that anything should turn on this omission by the
Equality Court, we pause to make one comment on this purported defence. It seems to
be flagrantly incongruent to persist with the argument that the impugned statements
were political in nature and were in no way targeted at the Jewish com munity; but in
the same breath to justify these statements, as the respondents do in their further
submissions, by the context of antagonism fr om Jewish people. We note this only to
express discomfort at the notion, which is seemingly suggested by the respondents, that
retort to anti-Semitism may be acceptable in the context of provocation.
[163] In these statements, Mr Masuku cajoles that he would c onfront his opponents
whether it was at Wits University or whether it was at Orange Grove. The HRC
contended, and the Equality Court accepted, that the reference to Orange Grove was
meant as a reference to a predominately Jewish neighbourhood. Mr Masuku contended
that his reference to Wits University and Orange Grove was simply because these were
the sites of the most recent marches and rallies, and of the offices of two major defenders
of Israel’s actions in Gaza (which are also prominent Jewish associat ions). It is not
conclusive either way that a reasonable reader who would have known that
Orange Grove was a predominately Jewish suburb would also not have been aware of
the march to the offices of the SAJBD and SAZF which are in Raedene, a small suburb
between Orange Grove and Linksfield.
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[164] The tenor of this back and forth continued between the groups when Mr Masuku
made a threat to those who would join the Israeli Defense Force (IDF). It was common
cause that only Jewish families would send their children to join the IDF, but that it was
unlikely that a Jewish person would join the IDF if they were not a Zionist -supporter.
While a threat of this sort is offensive and menacing, it is not clear that a reasonable
person would conclude that this reference was based on Jewish identity.
[165] Furthermore, this analysis of the rally holds that it was inconclusive as to whether
a reasonable person would have considered Mr Masuku’s statements to have been based
on Jewish identity . Thus, while the first statement contravened section 10(1), the
second to fourth statements, on a balance of probabilities, did not. On the whole, these
statements were undoubtedly adversarial and inflammatory, but they were clearly aimed
at Israel and those who support Israel. Indeed, Mr Masuku targeted those who support
Israel via their membership of the IDF and their support for pro -Israel organisations.
However, there was a degree of specificity – clearly, Mr Masuku had in mind those
persons actively involved in support of the state of Israel – and a political hew to these
comments, which make it more likely than not that a reasonable person would not
understand Mr Masuku as singling out Jewish people generally as an ethnic and
religious group. The facts and evidence do not support the conclusion that the second
to fourth statements, seditious as they may have been, were targeted at members of the
Jewish faith or ethnicity.
[166] The second to fourth statements were accordingly not based on a prohibited
ground, and do not constitute hate speech in terms of section 10(1). Thus, the question
as to whether a reasonable person would have concluded that there was an intention to
be harmful or promote hatred does not arise for consideration in respect of these
statements. The refore, the Equality Court’s conclusion in relation to the second to
fourth statements must be overturned.
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Cross-appeal
[167] The respondents brought a cross -appeal, appealing the decision of the
Equality Court to award costs against them, even though the HRC did not pray for this
costs order and in fact, disavowed any costs order.
[168] The Biowatch principle requires that an unsuccessful private party in legal
proceedings against the State be spared from paying the State’s costs in constitutional
matters.145 The purpose of the principle is to shield unsuccessful litigants in genuine
constitutional litigation from the obligation of paying costs, as the risk of being mulcted
in costs might discourage litigants from seeking to vindicate their constitutional
rights.146 In litigation between the government and a private party seeking to assert a
constitutional right, Affordable Medicines Trust established the principle that,
ordinarily, if the government loses, it should pay the costs of the other side, and if the
government wins, each party should bear its own costs. 147 Again, the idea is to
encourage bone fide litigation between individuals and organs of State without the fear
of “chilling” legal costs.148
[169] Exceptional circumstances may justify a departure from this rule where, for
example, litigation is frivolous or vexatious or the party conducts himself or herself in
a manner warranting disapproval by the Court. 149 However, we are of the view that
Mr Masuku raised a bona fide constitutional argument on the basis tha t his statements
constituted political speech. This argument succeeded in part, and we cannot ignore the
fact that Mr Masuku was attempting to assert his right to freedom of expression, an
important constitutional right which, unless its exercise falls fo ul of the applicable
145 Biowatch Trust v Registrar Genetic Resources (Biowatch) [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10)
BCLR 1014 (CC).
146 Id at para 21.
147 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC) at para 138.
148 Id.
149 Id.
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constitutional protections, is worthy of protection in any constitutional democracy. The
Biowatch principle applies. The Equality Court erred, and the cross-appeal succeeds.
Relief
[170] In the circumstances, the appropriate relief is undo ubtedly to set aside the order
of the Supreme Court of Appeal and reinstate the order of the Equality Court, save for
the aspect thereof that is inconsistent with this Court’s decision in Qwelane,150 and save
for the findings above on the second to fourth statements and costs. This imposes the
obligation on Mr Masuku to tender an unconditional apology to the Jewish community
in respect of the first statement . And so it is that he who expressed the harmful words
that led to these proce edings, and undoubtedly a great deal of emotional suffering for
the Jewish community, must find the words to make amends.
Conclusion
[171] In dealing with the delicate relationship between the fundamental rights at stake
in a matter like this, the ends of our constitutional democracy are served by striking an
elusive yet crucial balance between the imperative to regulate hate speech and the
importance of fostering “an environment that allows a free and open exchange of ideas,
free from censorship, no matter how offensive, shocking or disturbing these ideas may
be”.151 This is unlikely to be a straight -forward task, and will involve careful
consideration of the law and context. 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 app osite
extract taken from the Tanuch: “Death and life are in the tongue”.
Order
[172] In the result, the following order is made:
1. The application for recusal is dismissed.
2. Leave to appeal is granted.
150 In line with the wording of section 10(1) of the Equality Act prior to this Court’s pronouncements in Qwelane,
the order of the Equality Court declared the impugned statements to be “hurtful”. It is this aspect of that order
that can no longer be sustained for the reasons explained in this judgment.
151 Qwelane above n 105 at para 74.
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3. The appeal is upheld in part.
4. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“The appeal against the order of the Equality Court is dismissed with no
order as to costs.”
5. Leave to cross-appeal is granted.
6. The cross-appeal is upheld.
7. Paragraph 2 of the order of the Equality Court is set aside and substituted
with the following:
“The complaint against the respondents succeeds in respect of the first
statement with no order as to costs.”
8. In the result, the order of the Equality Cour t is reinstated, subject to the
following amendments:
“1. The first statement is declared to be harmful, and to incite harm
and propagate hatred; and amount to hate speech as envisaged in
section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act No 4 of 2000.
2. The complaint against the respondents succeeds in respect of the
first statement with no order as to costs.
3. The respondents are ordered to tender an unconditional apology to
the Jewish Community within thirty (30) days o f this order, or
within such other period as the parties may agree. Such apology
must at least receive the same publicity as the offending
statement.”
9. No order is made as to costs in this Court.
For the Applicant:
For the Respondents:
For the First Amicus Curiae:
For the Second Amicus Curiae:
For the Third Amicus Curiae:
For the Fourth Amicus Curiae:
For the Fifth Amicus Curiae:
For the Sixth Amicus Curiae:
C Bester, M Seape, S Scott and J Chanza
instructed by Cliffe Dekker Hofmeyer
Incorporated
A de Kok SC and A Hassim instructed
by Cheadle Thompson and Haysom
Incorporated
W Trengove SC and C Steinberg
instructed by Edward Nathan
Sonnenbergs Incorporated
K Hofmeyr, D Smit, H Cassim and K
van Heerden instructed by Webber
Wentzel
MM Ka -Siboto instructed by Freedom
of Expression Law Clinic
G Marcus SC and M Mbikiwa instructed
by Webber Wentzel
M Oppenheiner and S A Nakhjavani
instructed by Hurter Spies Incorporated
T Ngcukaitobi and B Winks instructed
by Rupert Candy Attorneys