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[2018] ZASCA 180
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Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies (1062/2017) [2018] ZASCA 180; 2019 (2) SA 194 (SCA); [2019] 1 All SA 608 (SCA) (4 December 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1062/2017
In
the matter between:
BONGANI
MASUKU FIRST
APPELLANT
CONGRESS
OF SOUTH AFRICAN
TRADE
UNIONS SECOND
APPELLANT
and
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
obo
SOUTH AFRICAN JEWISH BOARD OF
DEPUTIES RESPONDENT
Neutral
citation:
Masuku & Ano v SAHRC
(1062/2017)
[2018] ZASCA 180
(04
December 2018)
Bench:
Lewis, Wallis, Zondi and Dambuza JJA
and Matojane AJA
Heard:
13 November 2018
Delivered:
04 December 2018
Summary:
Constitutional Law – right to
freedom of expression – principles on protection of freedom of
expression re-stated –
whether statements excluded from
protection under s 16(1) of the Constitution – statements to be
interpreted in the context
within which they were made – only
statements within the purview of s 16(2) of the Constitution are not
protected.
ORDER
On
appeal from
:
Gauteng
Division, Johannesburg (Moshidi J sitting as the Equality Court):
1. The appeal is upheld.
2. The order of the Equality Court is
set aside and substituted with an order in the following terms:
‘
(a)
The complaint is dismissed.
(b)
Each party is to pay its own costs.’
3. Each party to pay its own costs of
the appeal.
JUDGMENT
Dambuza
JA (Lewis, Wallis and Zondi JJA and Matojane AJA concurring):
Introduction
[1]
On 26 March 2009 the second respondent, the South African Jewish
Board of Deputies (SAJBOD), lodged a complaint with the first
respondent, the South African Human Rights Commission (Commission),
alleging that certain statements made by the first appellant,
Mr
Bongani Masuku, amounted to hate speech. On assessment, the
Commission formed a view that the statements did amount to hate
speech. So did the Equality Court, sitting in Johannesburg (Moshidi
J), when the complaint was referred to it. This appeal, with
leave of
the Equality Court, is against that judgment.
Background
[2]
The events from which these proceedings arose occurred on 6 February
and 5 March 2009. They were preceded and fuelled by intensification,
during December 2008 to January 2009, of the protracted conflict
between Israel and Palestine in the Middle East, particularly
the
launch, shortly before then, of a military operation against Hamas in
the Gaza Strip. This resulted in the death of more than
seven hundred
people. These events sparked strong worldwide reaction, (both
condemnatory and supportive) in different parts of
the world,
including South Africa.
[3]
In relation to these events, SAJBOD and the South African Zionist
Federation (SAZF) published an open letter in which they expressed
support for the Israeli actions. On the other hand, another open
letter signed by 315 members of the South African Jewish community,
distancing themselves from the letter of support and condemning the
‘disproportionate use of force’ by the Israeli
military,
was also published.
[4]
During this period Mr Masuku was the secretary of the International
Relations arm of the Congress of South African Trade Unions
(COSATU).
COSATU also fiercely opposed the Israeli actions. A protest march
against what was viewed as Israeli invasion of the
Gaza Strip took
place under the banner of COSATU and the Palestine Solidarity
Committee (PSC), to the headquarters of SAJBOD and
SAZF in
Johannesburg.
[1]
COSATU also
participated in an on-going campaign of solidarity with the
Palestinian people, including pickets, marches and press
releases,
all aimed at putting pressure on the South African Government to act
in support of the Palestinian people.
[5]
An online war of words erupted alongside these activities on a blog
called ‘It’s Almost Supernatural’.
[2]
On 6
February 2009 the following statement appeared on the blog:
‘
Even
when all the monkeys in Cosatu have died of Aids (even those who were
cured by raping babies), I still wont return [to SA].
Jews should be
in Israel supporting Israel – Friends – make Aliya! Do
it!’
A
further comment posted read:
‘
Let
us bombard the COSATU offices with phone calls to let them know our
anger. It is hard[er] to ignore phone calls than email.
Maybe we
should start a policy that Israel-loyal Jews refuse to employ COSATU
members in retaliation to COSATU’s evil actions.’
[6]
On the same day Mr Masuku posted the following statement on the blog:
‘
Hi
guys,
Bongani
says hi to you all
as
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 Palestine.
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
.
Every Palestinian who suffers is a direct attack on all of us.’
(Emphasis supplied on the portion
allegedly constituting hate speech)
[7]
On 5 March 2009 Mr Masuku made the following three statements as part
of his speech at a gathering at the University of the
Witwatersrand
(Wits):
‘ …
COSATU
has got members here on this campus, we can make sure that for that
side it will be hell …’,
…
the
following things are going to apply: any South African family, I want
to repeat it so that it is clear for everyone, any South
African
family who sends its son or daughter to be part of the Israeli
Defence Force must not blame us when something happens to
them with
immediate effect …’,
and
‘…
COSATU
is with you, we will do everything to make sure that whether it is at
Wits, whether it is at Orange Grove, anyone who does
not support
equality and dignity, who does not support the rights of other people
must face the consequences even if we will do
something that may
necessarily be regarded as harm …’
Other
statements, also extracted from Mr Masuku’s speech at Wits,
were included in the complaint. However, only the three
stated above
were found to amount to hate speech by the Equality Court.
[8]
After the complaint was made, the Commission formed a preliminary
view that Mr Masuku’s statements constituted hate speech,
prohibited under s 16(2) of the Constitution, and s 10 of the
Promotion of Equality and Prevention of Unfair Discrimination Act
No
4 of 2000 (the Equality Act).
[3]
It was also
of the view that the statements probably violated the complainant’s
right to equality guaranteed under s 9 of
the Constitution. More
specifically, the Commission was of the view that the second and
third statements, made during the speech
at Wits University, were
directed at Jewish students and Jewish families respectively and that
the reference to people at Wits
campus and Orange Grove in the third
statement was directed at ‘Jews’. Regarding the statement
posted on the blog the
Commission concluded that those who were to be
targeted, as proposed, were South African Jews.
[9]
In his response to the Commission’s preliminary view and
invitation to respond, Mr Masuku admitted to having made the
statements. He explained how he was repeatedly heckled whilst giving
his speech at Wits. He also explained that his statements
were
directed at supporters of the State of Israel from different ethnic
and religious backgrounds, rather than to Jewish students.
He
asserted that the religion and ethnicity of the supporters of the
State of Israel were of no concern to him (and COSATU) and
that his
references to ‘Zionists’ connoted adherence to a
political ideology rather than a religious or ethnic orientation.
[10]
In concluding that the statements made by Mr Masuku amounted to hate
speech and referring the matter to the Equality Court,
the Commission
was of the view that the statements were offensive and unpalatable to
society; that they were of an extreme nature
in that they advocated
that the Jewish community should be despised, scorned, ridiculed and
thus subjected to ill-treatment because
of their religious
affiliation. It found that a prima facie case of hate speech had been
established.
[11]
The Equality Court granted an order that:
’
65.1.
The impugned statements are declared to be ‘hurtful, harmful,
incite harm, and propagate hatred, and amount to hate
speech as
envisaged in s10 of the Equality Act No 4 of 2000;
65.2.
The complaint against the respondent succeeds with costs;
65.3.
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 statements’.
The
Issues
[12]
At the core of this appeal is the Equality Court’s
interpretation of hate speech. Mr Masuku contended that the Equality
Court erroneously reasoned that because most people who support or
‘would most likely support’ Zionism, and those who
most
likely would have been offended by the statements are Jewish,
therefore the statements were directed at people of Jewish religion
or ethnicity. He contended that they were rather directed at the
conduct of the State of Israel, and the fact that most Jewish
People
might support such conduct did not transform the statements into ones
based on religion or ethnicity.
[13]
Although the Commission and the complainants’ reliance on the
offensive and hurtful nature of the statements continued
in the
complainants’ Heads of Argument, during the hearing of the
appeal counsel for the Commission disavowed the reliance
on the
Equality Act, accepting that the statements, as any other form of
speech, would be excluded from protection (as hate speech)
under s
16(1) of the Constitution only if they fell foul of s 16(2) thereof.
However, the retraction of the reliance on the Equality
Act left
intact the underlying substantive arguments that had formed the basis
of the claim. In that argument it was contended
that the statements
amounted to unambiguous threats of harm and violence, and amounted to
hate speech directed at members of the
Jewish Community.
[14]
The disavowal was properly made. There is cause for concern that the
provisions of s 10 of the Equality Act have the effect
of condemning
speech that is protected under s 16(1) of the Constitution. In their
book
The South African Constitutional Law: The Bill of Rights
the
writers Cheadle, Davis and Haysom examine the provisions of s 10 of
the Equality Act. They suggest that the formulation of s
10 of the
Equality Act is ‘a most unfortunate convoluted formulation’
and that it may well constitute an unjustified
limitation of the
freedom of expression in the context of a constitutional order
‘committed to robust deliberation’
for these reasons:
‘
It
extends the prohibited grounds contained in s16(2) of the
Constitution in that the latter provision refers to race, ethnicity,
gender or religion only, and uncouples hurt and harm from incitement
to cause harm. While the extension of the prohibited grounds
can
doubtless be justified in terms of the limitation clause as contained
in section 36, particularly in the context of the prohibited
grounds
contained in section 9(3), the wider formulation adopted in section
10(1) will also have to be saved in terms of section
36. The
combination of an extension of the prohibited grounds beyond those
contained in section 16(2) and the dispensing with the
requirement of
causation creates the potential for challenge’.
The
contention that a more extensive definition of hate speech can be
justified under s 36 is at the least debatable as s 16(2)
provides an
internal limitation clause.
The
Law
[15]
Consideration of the issues that arise in this appeal will be
confined to the Constitution. Section 16 thereof guarantees the
right
to freedom of expression. The section reads as follows:
‘
(1)
Everyone has a right to freedom of expression, which includes-
(a)
freedom
of press and other media;
(b)
freedom
to receive and 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.
[16]
Since the advent of our Constitution, the right to enjoy freedom of
expression is one that has been fiercely promoted and jealously
guarded in this country. Section 15 of the Interim Constitution
protected both ‘speech’ and ‘expression’.
[4]
The use of
only the wider concept, ‘expression’ in s 16 of the
Constitution, has been interpreted as signifying a deliberately
expansive approach to constitutional protection of speech and
expression. None of the parties in this appeal take issue with the
liberal approach to protection of freedom of expression as
demonstrated in the various judgments of the courts around the
country.
[17]
In
South
African National Defence Union v Minister of Defence & another
[5]
O’Regan
J highlighted the importance of the right to freedom of expression as
follows:
‘
Freedom
of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as
a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation
of the
search for truth by individuals and society generally. The
Constitution recognises that individuals in our society need
to be
able to hear, form, and express opinions and views freely on a wide
range of matters.’
[18]
In
The
Citizen 1978 (Pty) Ltd & others v McBride,
[6]
the
Constitutional Court upheld a defence of fair comment in an action
for defamation based on reports which referred to the plaintiff
as a
murderer even though he had been granted amnesty in terms of
s 20
of
the
Promotion of National Unity and Reconciliation Act 34 of 1995
.
The court remarked that comment on matters of public interest is
protected under the guarantee of freedom of expression and that
the
values and norms of the Constitution determine the boundaries of what
is protected. The courts cannot prescribe what people
may or may not
say. The right to freedom of expression is an essential component of
dignity and continued improvement in the quality
of people’s
lives. As the Constitutional Court said in
Democratic
Alliance v African National Congress & another
:
[7]
‘
It
[the right to freedom of expression] is valuable for its intrinsic
importance and because it is instrumentally useful. It is
useful in
protecting democracy, by informing citizens, encouraging debate and
enabling folly and mis-governance to be exposed.
It also helps the
search for the truth by both individuals and society generally. If
society represses views it considers unacceptable
they may never be
exposed as wrong. Open debate enhances truth finding and enables us
to scrutinise political argument and deliberate
social values.’
[19]
However, the Constitution recognises that the right to freedom of
expression must be limited in certain circumstances for the
protection of other rights, particularly the right to dignity. Thus,
s 16(2)(
c
)
of the Constitution qualifies the extent and scope of the right to
freedom of expression. Of relevance to this case is that under
that
sub-section advocacy of hatred is excluded from protection where such
hatred (1) is based on race, ethnicity, gender or religion
and (2)
constitutes incitement to cause harm. A hostile statement is not
necessarily hateful in the sense envisaged under s 16(2)
(c)
.
Hence the decision of this court in
Hotz
& others v University of Cape Town
[8]
that:
‘
A
court should not be hasty to conclude that because language is angry
in tone or conveys hostility it is therefore to be characterised
as
hate speech, even if it has overtones of race or ethnicity’.
[20]
Before I consider the question whether the statements made by Mr
Masuku amounted to hate speech, it is necessary that I advert
to one
other issue – the extensive evidence led in the Equality Court,
particularly the expert evidence led with the intention,
it was said,
to explain the difference between ‘anti-Zionism’ and
‘anti-Semitism’. Dr David Hirsch, a lecturer
in Sociology
at Goldsmiths University of London, Dr Gregory Stanton, a research
professor and an expert on Judaism and Zionism,
and Mr Benjamin
Shullman, a lay person of Jewish origin, who attended the gathering
at Wits where Mr Masuku gave the speech, all
testified on behalf of
the Commission. Professor Steven Friedman, then the Director of the
Centre of the Study for Democracy at
the University of Johannesburg,
testified as Mr Masuku’s witness. Dr Hirsch, Dr Stanton and
Prof Friedman testified as expert
witnesses.
[21]
This evidence was of minimal, if any, assistance to the resolution of
the dispute as to whether Mr Masuku’s statements
amounted to
hate speech. At best it revealed that academics are not in agreement
as to the meaning of the terms.
[22]
It is also necessary to deal with certain adverse findings made by
the Equality Court against Prof Friedman. That court found
it
difficult to accept of Prof Friedman’s evidence. This is
because, in the judge’s opinion, Prof Friedman had not
demonstrated ‘convincingly’ that he was an expert on
issues of ‘anti-Semitism’, and its proper
inter-relationship
with ‘anti-Zionism’ in the context of
the broader Israeli-Palestinian conflict’. Although he had
‘immense
interest in these matters [they had] not been the
focus of his academic career. In addition he [had] somewhat showed
that he [was]
partisan which on its own, offend[ed] the approach and
principles to expert testimony’. The basis for this finding was
that
Prof Friedman had previously supported a campaign for the
boycott, sanctions and disinvestment campaign against Israel (BDS
campaign),
and was part of a group of academics that had made
submissions to the University of Johannesburg to terminate its
association with
the Ben-Gurion University of Israel.
[23]
Other than highlighting Prof Friedman’s general activism in
relation to Israel, the judge did not refer to any evidence
showing
bias, or unreliability, either in the content of his evidence, or in
any other evidence. Neither did he make any negative
finding
regarding his independence, integrity, candour, knowledge of the
subject, intellect, and reputation. If the basis for the
Equality
Court’s assessment of Prof Friedman was anything to go by, Dr
Hirsch’s membership of ‘Engage’,
an activist group
that was engaged in mobilising against the academic boycott of
Israel, would also disqualify him as a witness
in this case. This
finding by the Equality Court was therefore unjustified.
The
Blog
[24]
Turning to the use of the term ‘Zionists’ in the blog
statement by Mr Masuku, the Shorter-Oxford dictionary defines
the
term ‘Zionism’ as
‘
a
movement for (originally) the re-establishment and (now) the
development and protection of a Jewish nation that is now Israel’.
The Merriam-Webster Dictionary describes it as ‘an
international movement originally for the establishment of a Jewish
national
or religious community and later for the support of modern
Israel’. And the Cambridge Advanced Learner’s Dictionary
and Thesaurus defines the term as
‘
a
political movement that had as its original aim the creation of a
country for Jewish people, and that now supports the state of
Israel’
.
[25]
It bears mention that both of the Commission’s experts and Mr
Shullman defined the term ‘Zionism’ broadly
in the same
terms as the dictionary definitions, and were in agreement that not
all Zionists are Jewish and not all Jewish people
are Zionists.
Dr Hirsch defined Zionism as
historically referring to a political or ideological movement for the
establishment of a Jewish state,
although, after the establishment of
the State of Israel in 1948, it no longer has that meaning. He did
not give a definition of
the current meaning, other than to say that
it has a different meaning to different people. Prof Friedman defined
‘Zionism’
as a political ideology, which is founded on a
belief in a state for Jews only. He explained that prior to 1948 the
ideology focused
on working for creation of the state, and thereafter
on defending its existence as an ethnic state. And Mr Shullman’s
evidence
was that at the core of Zionism is the support for the
existence of a Jewish state in the Middle East and that the term is
not
synonymous with the word ‘Jew’. Nothing in these
definitions and explanations conveys identification on the basis of
ethnicity or religion. The furthest one can take the matter is that
because very many Zionists are Jewish and very many Jews may
be
Zionists, the two concepts may, in some circumstances, become blurred
if care it not taken to distinguish between them.
[26]
Further, none of the other offending terms ‘racists’,
‘fascists’ and ‘friends of Hitler’,
either on
their own or within the statement, connote religion or ethnicity. The
terms may be irrational, offensive or ever insulting.
Threatening or
unsavoury words in the statement such as ‘bitter medicine’,
and ‘perpetual suffering’ are
only metaphorical. Even if
ethnicity or religion was implied in the blog statement, neither the
offensive words nor the blog statemetn
could be considered advocacy
of hatred or incitement of harm for the purpose of s 16 (2)(
c
)
of the Constitution, particularly in the context in which they were
made. The context in which the statement was posted on the
blog has
been outlined above.
The
second to fourth statements
[27]
These statements also fell to be interpreted within the context of
the speech and the circumstances attendant at the place
and time they
were made.
[9]
The meeting
at which Mr Masuku gave his speech at Wits was part of a global
annual event called Israel-Apartheid week. It was not
in dispute
that, as the title of the event conveys, it is intended to highlight
the similarities between the State of Israel and
the apartheid state,
and to call for action similar to that which was taken by the
international anti-apartheid movement. It is
not difficult to imagine
the atmosphere that prevailed at this gathering. That tense
atmosphere would have been exacerbated by
the presence of a small,
but vociferous, group of Jewish students, who repeatedly heckled Mr
Masuku during his speech.
[28]
The theme of Mr Masuku’s speech was how practical solidarity
with Palestinians could be demonstrated. In his speech he
referred to
the boycott, divestment and sanction campaign against Israel, refusal
by SATAWU workers to offload goods arriving at
Durban from Israel,
working to ensure that other countries in Southern Africa should also
not allow exports to and imports from
Israel, efforts to remove
Israel from the International Trade Union Confederation, an academic
boycott and refusal of a visa for
an Israeli sportsman.
[29]
On Mr Shullman’s own evidence, before Mr Masuku had uttered any
offensive statement, he (Mr Shullman) shouted the words
‘Heil
Hitler!’ at him. The transcript of portions of the speech, the
contents of which were not in dispute, showed
that indeed Mr Masuku
was heckled and booed on numerous occasions during the speech. On the
transcript it was the hecklers who
interjected with the words ‘Jews’.
For example, at one instance, when Mr Masuku stated that other people
deserved dignity,
peace, food etc, a heckler shouted ‘including
Jews’. Mr Masuku’s explanation that his utterances had
nothing
to do with Jews but were directed at supporters of the State
of Israel find support in the transcripts. Nothing in the content of
the speech shows that it was anything more than a political speech.
[30]
Much of the argument made in the Commission’s Heads of Argument
and before us on whether a statement amounts to hate
speech was drawn
from the approach in some foreign jurisdictions. Reliance was placed,
for example on
R
v Keegstra.
[10]
Such
reliance on foreign jurisprudence must be considered carefully in the
interpretation of this and similar rights. As Langa DCJ
said in
Islamic
Unity Convention v Independent Broadcasting Authority &
others
[11]
our courts
need to take account of:
‘…
[the]
severely restrictive past where expression, especially political and
artistic expression, was extensively circumscribed by
various
legislative enactments. The restrictions that were placed on
expression were not only a denial of democracy itself, but
also
exacerbated the impact of the systematic violations of other
fundamental human rights in South Africa.’
[31]
In summary, the starting point for the enquiry in this case was that
the Constitution in s 16(1) protects freedom of expression.
The
boundaries of that protection are delimited in s 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. Public
debate is
noisy and there are many areas of dispute in our society that can
provoke powerful emotions. 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
incitement to cause harm. Nothing that Mr
Masuku wrote or said
transgressed those boundaries, however hurtful or distasteful they
may have seemed to members of the Jewish
and wider community. Many
may deplore them, but that does not deprive them of constitutional
protection.
[32]
In the result, the following order is made:
1. The appeal is upheld.
2. The order of the Equality Court is
set aside and substituted with an order in the following terms:
‘
(a) The
complaint is dismissed.
(b) Each party is
to pay its own costs.’
3. Each party to pay its own costs of
the appeal.
_________________
N Dambuza
Judge of Appeal
APPEARANCES
For
Appellants: A de Kok SC
Instructed
by:
Cheadle
Thompson & Haysom Inc., Braamfontein
McIntyre
van der Post, Bloemfontein
For
Respondent: C Bester (with him M Seape and J Chanze)
(heads
of argument drawn also by S Scott)
Instructed
by:
Cliffe
Dekker Hofmeyer Inc., Sandton
Rossouws
Attorneys, Bloemfontein
[1]
The march
took place even though permission, which had been sought from the
City of Johannesburg was refused.
[2]
This blog was hosted at: https://supernatural.blogs.com.
[3]
Section 10(1) of the Equality Act reads as follows:
‘
Subject to the provisio 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.’
[4]
‘
Expression’
being a wider concept than ‘speech’. See Cheadle, Davis
and Haysom
The
South African Constitutional Law: The Bill of Rights
2 ed (2018) at 11-3.
[5]
South
African National Defence Union v Minister of Defence & ano
[1999] ZACC 7
;
1999 (4) SA 469
(CC) para 7.
[6]
The
Citizen 1978 (Pty) Ltd & others v McBride
[2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC).
[7]
Democratic
Alliance v African National Congress & another
[2015]
ZACC 1
;
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC) at para 122.
[8]
Hotz &
others v University of Cape Town
[2016]
ZASCA 159
;
[2016] 4 All SA 723
(SCA);
2017 (2) SA 485
(SCA) para 68.
[9]
S v
Mamabolo (E TV, Business Day and the Freedom of Expression Institute
intervening)
[2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC).
[10]
R v
Keegstra
(1990)
3 CRR (2d) 193.
[11]
Islamic
Unity Convention v Independent Broadcasting Authority and others
[2002] ZACC 3
;
2002 (4) SA 294
;
2002 (5) BCLR 433
para 25.