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[2017] ZAEQC 1
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South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another (EQ01/2012) [2017] ZAEQC 1; [2017] 3 All SA 1029 (EqC, J); 2018 (3) SA 291 (GJ) (29 June 2017)

REPUBLIC
OF SOUTH AFRICA
IN THE EQUALITY COURT
HELD AT THE GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
EQ
01/2012
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED.
29/6/2017
SOUTH
AFRICAN HUMAN RIGHTS
COMMISSION
Applicant
on
behalf of:
SOUTH
AFRICAN JEWISH BOARD OF DEPUTIES
and
BONGANI
MASUKU
First
Respondent
CONGRESS
OF SOUTH AFRICAN TRADE UNIONS
Second
Respondent
SUMMARY
Equality
Court – hate speech – sections 10, 11 and 12 of the
Promotion of Equality and Prevention of Unfair Discrimination
Act 4
of 2000 (the Equality Act) – hate speech – what
constitutes – defences thereto – whether speech targeted

specifically at Jewish community is protected by the right to freedom
of expression entrenched in section 16 of the Constitution
–
the first respondent (Masuku) delivering speech to audience at
University of the Witwatersrand Campus consisting of Jewish
students
and anti-Israel and Jewish community disparaging about Jewish
community, race on religion amounts to hate-speech as envisaged
in
section 10(1) of the Equality Act – the main objects, powers
and functions of the Equality Act – Equality Courts
– the
nature of the proceedings instituted in terms of the Equality Act –
the
onus
of
proof – the traditional approach of courts to contrasting
expert testimony.
JUDGMENT
MOSHIDI,
J
:
INTRODUCTION
[1] This enquiry, which
essentially proceeded on a trial basis (where evidence was led),
concerns the delicate balancing exercise
of the right to freedom of
expression as enshrined in the Constitution, on the one hand, and the
regulation of such right by National
Legislation, on the other hand,
as described more fully below. More specifically defined, the issue
for determination, is the question
whether political speech made
under circumstances alleged by the evidence led, does offend members
of the Jewish Community in the
form of hate speech.
THE
BASIS OF THE COMPLAINT
[2] The complaint is
launched in this Equality Court by the South African Human Rights
Commission (the Commission) against the respondents,
and on behalf of
the South African Jewish Board of Deputies (the SAJBOD).  In
terms of the provisions of s 10(1) of the Promotion
of Equality and
Prevention of Unfairly Discrimination Act 4 of 2000 (the Equality
Act).  The Equality Act, which came into
operation in the middle
of June 2003, is also colloquially referred to as PEPUDA.
THE
PARTIES
[3]
The Commission is one of the institutions established in terms of
Chapter 9 of the Constitution of the Republic of South Africa,

1996.
[1]
Its functions
include to: promote respect for human rights and a culture of human
rights; promote the protection, development
and attainment of human
rights; and to monitor and assess the observance of human rights in
the Republic.
[2]
On the
opposing side, Mr Bongani Masuku (Masuku) or (the first respondent),
at the relevant time was the International Relations
Secretary of the
Congress of South African Trade Unions (COSATU) or (the second
respondent). The first respondent only is involved
in these
proceedings.
[4] The Commission
complains that in about four statements made by the first respondent,
the contents thereof were aimed towards
Jewish people and to
propagate hatred and violence towards them.
THE
IMPUGNED STATEMENTS
[5] For proper context,
the impugned statements, indisputably uttered in reference to the
protracted feud in the Middle East, particularly
between Israel and
the Palestinians, and made by the first respondent during a series of
remarks on the website supernatural.blogs.com,
are reproduced
hereunder almost
verbatim
:
‘…
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! Cosatu
is a
tri-partite alliance with the ruling ANC party. A vote for the ANC is
a vote for Bongani.’  (
sic
)
The statement was made on
10 February 2009 (hereinafter ‘the first statement’).
[6] On 5 March 2009 and
during a rally convened by the Palestinian Solidarity Committee (the
PSC), at the University of the Witwatersrand
(Wits), the first
respondent made the statement:
‘…
Cosatu
has got members here even on this campus; we can make sure that for
that side it will be hell …’
This was with reference
to what COSATU’S intentions were regarding those who supported
Israel (hereinafter ‘the second
statement’). On the same
occasion and venue, the first respondent said that:
‘…
The
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 …’ (hereinafter ‘the third statement’).
The final statement made
by the first respondent was that:
‘…
Cosatu is
with you, we will do everything to make sure that whether its at
Wits, whether its 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 may necessarily cause what is regarded as harm …’
(hereinafter ‘the fourth statement’).
For purposes of the
judgment, all the above statements, collectively, shall be referred
to as ‘the offending statements’.
THE
PROCESSING OF THE COMPLAINT
[7] The Commission,
acting in accordance with its constitutional mandate, considered the
complaint, and invited the first respondent
to respond thereto.
On the invitation, the Commission stated,
inter alia
, as
follows:
‘
The
Commission has assessed this complaint and is of the opinion that
prima
facie
(on the face of the complaint and without your version) such
utterances amount to hate speech that is prohibited in terms of
section
16(2) of the Constitution of the RSA Act 108 of 1996 and
prohibited in terms of
section 10
of the
Promotion of Equality and
Prevention of Unfair Discrimination Act No 4 of 2000
.
Furthermore, the complainant’s right to equality as guaranteed
in section 9 of the Constitution, Act 108 of 1996 may
well have been
violated by your utterances.’
[3]
Indeed, in the present
proceedings, the Commission persists in the above contention.
THE
FIRST RESPONDENT’S RESPONSE
[8]
In response to the complaint, and under cover of the second
respondent’s letterhead,
[4]
the first respondent, admits that he was invited to deliver a lecture
at Wits ‘on the plight of the Palestinian people’.

He says he was hackled repeatedly mainly by a particular section of
the audience, most of whom seemed to be members of the South
African
Union of Jewish Students, and that part of the audience even shouted
pro-Nazi slogans in a deliberate attempt to provoke
him. On his
version, which he later confirmed in oral evidence, this is the
context in which he made the offending statements.
However, the
utterance of the offending statements is not in dispute although the
first respondent attempts to justify them in
one way or another,
including that he did not single out the Jewish race, ethnic gender,
or religious group.  The only group
that he made specific
reference to is the Zionists and that Zionism is a political ideology
which is inclusive of various religious
groupings.
[5]
The first respondent’s contention is that none of the offending
statements, individually or collectively, constitute hate
speech or
incite harm or physical violence or propagate hatred, as contended
for by the Commission. He, in essence, relies on the
right of freedom
of expression as enshrined in the Bill of Rights.
COMMON
CAUSE FACTS AND ISSUES FOR DETERMINATION
[9] From the above
exposition, it is plain that the making of the offending statements
is common cause. The only divergence of the
versions is the context
in which the offending statements were uttered and, their proper
interpretation. Thankfully, I am not called
upon, in any way, to
pronounce on the question whether Israel or Palestine is correct,
which is indeed a matter for international
debate. However, sight
cannot be lost of the ongoing conflict in the Middle East. Unlike the
other matter before this court (
SAHRC v Qwelane Dubula Jonathan
(Case No 44/2009 EQ, Johannesburg)), there is no constitutional
challenge here; nor on the question whether s 10(1) of the Equality

Act passes constitutional muster.  The essential issue for
determination remains whether the offending statements fall within

the purview of s 10(1) of the Equality Act, when having regard,
objectively, to all the relevant circumstances and complete factual

matrix in the proper context.  It follows, ineluctably, that the
contentions of the first respondent to the effect, not only
that he
relies on s 16 of the Bill of Rights, but also that the offending
statements constitute fair comment on matters of public
interest; the
first respondent’s
bona fide
beliefs in Zionism; and the
plight of the Palestinian people, must equally be examined.
THE
ORAL EVIDENCE
[10] I turn briefly,
where relevant, to the oral evidence presented. A great deal of
evidence was led, especially by the Commission.
The evidence included
that of Dr David Hirsch, a lecturer in Sociology, Goldsmiths,
University of London. He was called as an expert
in Judaism and
Zionism.  His evidence covered topics such as identifying
racism; identifying anti-Semitism; criticism of Israel
and
anti-Semitism; the meaning of Zionism; the connection between Jews
and Israel; and the analogy between Zionism and Nazism.
Dr Hirsch has
admittedly published scholarly peer reviewed journals and articles
and book chapters on anti-Semitism. One of his
books is
Law
against Genocide: Cosmopolitan Trials
, which was awarded the 2003
British Sociological Association Philip Abrams Prize.
[11]
The Commission also led the evidence of Dr Gregory Stanton, a
Research Professor in Genocide Studies and Prevention at the
School
for Conflict Analysis and Resolution, George Mason University,
Arlington, Virginia. Dr Stanton testified extensively on
the
processes that lead to genocide based on his model called:
The
Ten Stages of Genocide
.
He has analysed most of the genocides in recent history and has
discovered a predictable pattern. More significantly, he
said that
genocide starts with words, which have consequences. Further that
hate speech, repeated hundreds and thousands of times,
becomes
incitement to commit genocide.
[6]
The opinions of Dr Hirsch and Dr Stanton will be referred to later,
where necessary, in the course of this judgment.
[12]
The Commission also called as a witness, Mr Benjamin Shullman
(Shullman). His evidence extends over some 141 pages of the
transcript.
[7]
For present
purposes, Shullman, a Jewish person himself, was a student at Wits
from about 2005 to 2009. During the time of
the incidents under
discussion, he was present and doing a Master’s Degree in
Geography.  At the time of his testimony,
he was, however,
employed by the South African Israel Forum, and at the time of the
offending statements, his involvement in politics
included being the
Chairperson of the South African Union of Jewish Students (SAUJS),
which is a representative organisation of
Jewish students in South
Africa. SAUJS is an affiliate of the South African Jewish Board of
Deputies (SAJBD). In brief, the role
of SAUJS is to deal with the
needs of the Jewish students on campus. On the other hand, the SAJBD
is an organisation that deals
specifically with anti-Semitism and
representing issues concerning the larger Jewish community, to the
government. One of the several
active interest groupings on campus is
the Palestinian Solidarity Committee (the PSC). The PSC is an
activist group concerned largely
with the Israel Palestinian
conflict.
[13] Shullman testified
about an incident of a march on the Jewish Community Affairs offices
by various groups such as COSATU, the
PSC, Muslim Groups and other
civil societies, during February 2009. The Jewish Community Affairs
offices house Shullman’s
employer, the SAUJS students, the
SAJBD, the Union of Jewish home in the Jewish environmental services,
and the Jewish library.
The Jewish Community Affairs offices are
situated in a mainly Jewish suburb, between Orange Grove and
Linksfield. He testified
that the marchers were aggressive and
violent. Shullman himself felt threatened and intimidated.
[14] For the respondents,
Professor Steven Friedman of Johannesburg, a Director of the Centre
for the Study of Democracy, University
of Johannesburg (Friedman) as
well as the first respondent, Masuku, testified.  Friedman, also
a Professor of Politics and
International Relations, Rhodes
University, testified extensively and mainly countering and withering
the opinions of the Commission’s
expert testimony.  He
testified, and rendered an overview of Zionism, anti-Semitism and
Silencing of Dissent; identifying
racism and anti-Semitism; Israel
and anti-Semitism; the opinion of the European Union Monitoring
Convention (EUMC); and Zionism
and Racism, all based on elaborate
authorities.
THE
TESTIMONY OF THE FIRST RESPONDENT
[15] As is the case with
the Commission’s expert witnesses, the opinions of Friedman
will appropriately be referred to later
in the judgment. First, and
briefly for now, the evidence of the first respondent is set out.
His evidence in large measure
mirrored his initial response to the
complaint detailed above (see paragraph [8] above of the judgment).
[16] He was born in
Swaziland and relocated to South Africa in 1998. He was employed by
COSATU (second respondent) up to now as
its Head: International
Affairs. In broad outline, the first respondent’s duties
included international policy for the second
respondent, supporting
political leadership, providing advice on global trends,
co-ordinating international activities, and advancing
campaigns on
international solidarity, justice and workers’ rights as a
trade union’s federation.
[17] In line with his
stated functions, when Israel engaged in war in the Gaza, in December
2008, his employer took a principled
decision to render solidarity
support to Palestine. The support, in collaboration with other trade
unions and interested parties,
would take the form of pickets,
marches, press releases, putting pressure on our government to take
decisive action, and pressurising
the Israeli Embassy to account for
the attack in the Gaza. The PSC would also be part of the solidarity
support. The South African
Board of Jewish Deputies and the South
African Zionist Federation were particularly targeted during the
March of 6 February 2009.
In his view, Zionism is a movement which
lays claim to exclusivity or supremacy over other groups, while
really being another form
of apartheid.  The first respondent
attended the meeting at Wits on 5 March 2009 during a week titled
‘Israel Apartheid
Week’. COSATU was invited. The venue
was sizeable. The audience consisted of Wits students, including
Jewish students; South
African Students Congress (SASCO); the Young
Communist League; and the Progressive Youth Alliance. The first
respondent attended
the meeting in the place of COSATU’s then
General Secretary, Mr Z Vavi. When he was invited to the podium to
deliver his
speech, he was booed, and called a friend of Hitler and
other derogatory names. During his speech he was hackled which made
it
difficult to convey his intended message properly. However, the
principled decision of COSATU for the campaign in solidarity with

Palestine was that of a struggle for equality of all nations for
justice, against occupation by colonialism and apartheid in and

outside Palestine. The campaign took the form of marches, pickets,
public debates, and all forms of pressure on Israel to withdraw
from
the occupied territories in order to ensure freedom for the
Palestinian people in the Middle East.
[18] As stated before,
the contention is premised on the Commission’s argument that
the impugned statements constitute hate
speech within the meaning of
s 10(1) of the Equality Act, read with the provisions of ss 1, 11 and
12 thereof, and that the context
in which the statements were made,
undoubtedly referred to members of the Jewish Community. On the other
hand, the respondents
submit that the impugned statements were based
on facts, are true, constitute fair comment on matters of public
interest, and in
any event, constitute
bona fide
beliefs on
Zionism and the plight of Palestinians which the respondents were
entitled to express. In addition, the respondents
argue that the
statements constitute the legitimate expression of the right to free
speech as enshrined in s 16 of the Constitution.
THE
EQUALITY LEGISLATION
[19] For the sake of
completeness, s 10(1) of the Equality Act provides as follows:
(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.
The long title of the
Equality Act states,
inter alia
, that it is intended:
‘
To give effect to
section 9 read with item 23(1) of Schedule 6 to the Constitution …,
so as to prevent and prohibit unfair
discrimination and harassment;
to promote equality and eliminate unfair discrimination; to prevent
and prohibit hate speech …’
In part, the Preamble to
the Equality Act provides that:
‘
Although
significant progress has been made in restructuring and transforming
our society and its institutions, systematic inequalities
and unfair
discrimination remain deeply embedded in social structures, practices
and attitudes, undermining the aspirations of
our constitutional
democracy;
The basis for
progressively redressing these conditions lies in the Constitution
which, amongst others, upholds the values of human
dignity, equality,
freedom and social justice in a united, non-racial and non-sexist
society where all may flourish;
South Africa also has
international obligations under binding treaties and customary
international law in the field of human rights
which promote
equalities and prohibit unfair discrimination. Among these
obligations are those specified in the Convention on the
Elimination
of All Forms of Discrimination Against Women and the Convention on
the Elimination of All Forms of Racial Discrimination;
…
Section 9 of the
Constitution provides for the enactment of national legislation to
prevent or prohibit unfair discrimination and
promote the achievement
of equality.’
This
is the case even though the prevention and prohibition of hate speech
is not provided for in s 9,
[8]
but in s 16 of the Constitution, as demonstrated below. The Equality
Act is therefore the national legislation referred to in s
9(3) of
the Constitution.
[20]
The prohibited grounds as defined in s 1 of the Equality Act are:
race, gender, sex, pregnancy, marital status, ethnic
or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth; or any
other ground
where discrimination based on that other ground – causes or
perpetuates systematic disadvantage, undermines
human dignity, or
adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner that is comparable
to discrimination on
a ground described above.
[9]
[21]
What is of particular significance, are the objects of the Equality
Act.
[10]
In addition to
those objects related to s 9 of the Constitution, the objects
include:
‘
(
a
) to
enact legislation required by section 9 of the Constitution;
(
b
) to give effect
to the letter and spirit of the Constitution, in particular –
(i) the equal enjoyment
of all rights and freedoms by every person;
(ii) the promotion of
equality, the values of non-racialism and non-sexism contained in
section 1 of the Constitution;
(iii) the prevention of
unfair discrimination and protection of human dignity as contemplated
in sections 9 and 10 of the Constitution;
(iv) 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;
(
c
) to provide for
measures to facilitate the eradication of unfair discrimination, hate
speech and harassment, particularly on the
grounds of race, gender
and disability;
…
(
e
) to provide for
measures to educate the public and raise public awareness on the
importance of promoting equality and overcoming
unfair
discrimination, hate speech and harassment.’
[22]
Section 3 of the Equality Act is also of significant relevance.
It provides firstly that, any person applying the Acts
must interpret
its provisions in order to give effect to the Constitution, the
provisions of which include the promotion of equality
through
legislative and other measures designed to protect or advance persons
disadvantaged by past and present unfair discrimination;
and the
preamble, the objects and guiding principles of the Act, thereby
fulfilling the spirit, purport and objects of the Act.
Secondly, s 3
provides that, any person interpreting the Act, must be mindful of,
any relevant law or code of practice in terms
of a law; international
law, particularly the international agreements referred to in s 2 and
customary international law; and
comparable foreign law. Thirdly, s 3
of the Equality Act provides that any person applying or interpreting
this Act must, take
into account the context of the dispute and the
purpose of this Act.
[11]
[23] On the other hand,
and in opposition to the complaint, reliance is based on s 16 of the
Constitution, which provides for freedom
of expression in the
following terms:
‘
(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.'
[12]
(emphasis added)
THE
RIGHT TO FREEDOM OF EXPRESSION
[24] Now, much has been
written about the right to freedom of expression both in our country
and abroad. But first, some observations
are made about the
significance of the objects of the Equality Act enumerated above. In
my view, in the context of the instant
matter, the objects of s 2 of
the Equality Act, as in any other legislation, particularly in our
developing and democratic society,
must always be accorded careful
and close scrutiny, second to the Constitution only. The exercise
will show undoubtedly that the
only object of s 2 of the Equality Act
which is compatible with the provisions of the Constitution is s
2(
b
)(v), which is the prohibition of expression which is
already excluded from constitutional protection by s 16(2)(
c
)
of the Constitution, namely ‘advocacy of hatred that is based
on race, ethnicity, gender or religion, and constitutes incitement
to
cause harm’.  The exercise will also show that, s 2 of the
Equality Act mentions particularly the grounds of race,
ethnicity,
gender or religion or race gender and disability. This is when regard
is had to the substantive provisions of the Act.
On these
observations alone, it can hardly be argued that the Equality Act
evinces any incoherence within itself.
[25]
Indeed, the interpretational approach in s 3 of the Equality Act, was
adopted by the Constitutional Court in several instances.
One of
these cases is
Investigating
Directorate: SEO v Hyundai Motor Distributors (Pty) Ltd
,
[13]
where the Court said:
‘…
The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental
values.
Consistently with this, when the constitutionality of legislation is
in issue, they are under a duty to examine the objects
and purport of
an Act and to read the provisions of the legislation, so far as is
possible, in conformity with the Constitution
…  In
De
Lange v Smuts NO and Others
, Ackermann J stated that the
principle of reading in conformity does “no more than give
expression to a sound principle of
constitutional interpretation
recognised by other open and democratic societies based on human
dignity, equality and freedom such
as, for example, the United States
of America, Canada and Germany whose constitutions, like our 1996
Constitution, contain no express
provision to such effect. In my
view, the same interpretative approach should be adopted under the
1996 Constitution” Accordingly,
judicial officers must prefer
interpretations of legislations that fall within Constitutional
bounds over those that do not, provided
that such an interpretation
can be reasonably be ascribed to the section.’ (footnotes
omitted)
See
also
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd.
[14]
Based on the above, I am accordingly enjoined to interpret the
provisions of s 10(1), and related sections of the Equality
Act by
adopting the approach enunciated in the principles laid down above.
However, prior to doing so, it is also instructive to
first deal
briefly with the approach of our courts in pronouncing on the
provisions of s 16 of the Constitution, on which the respondents
rely
in the instant matter. At the same time, I bear in mind the
contentions of the respondents that the
impugned
statements are based on facts, are true and constitute fair comment
on matters of public interest
(emphasis added).
[26]
The settled and trite approach has been that, although the right to
freedom of expression is inseparable from a normal democracy,
it is
however, neither an absolute nor limitless right nor is it a
pre-eminent right. In addition, as shown below, our courts have
also
adopted a rather generous interpretation in holding that,
inter
alia
,
unless an expressive act is excluded by s 16(2) of the Constitution,
it is a protected expression.  See
LAWSA
.
[15]
In my view, all this immediately brings into question the veracity of
the respondents’ reliance on s 16 of the Constitution
in this
matter, more so that the targeted group is visibly identifiable.
[27]
In
South
African National Defence Union v Minister of Defence and Another,
[16]
O’Regan J held that:
‘
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 …  As Mokgoro J observed
in
Case and
Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) …
in para [27].’
In
addition, in defining the right to freedom of expression, the
Constitutional Court in
Islamic
Unity Convention v Independent Broadcasting Authority,
[17]
said:
‘
South Africa is
not alone in its recognition of the right to freedom of expression
and its importance to a democratic society.
The right has been
described as “one of the essential foundations of a democratic
society; one of the basic conditions of
its progress and for the
development of every one of its members” … As such it is
protected in almost every international
human rights instrument.
In
Handyside v The United Kingdom
the European Court of Human
Rights pointed out that this approach to the right to freedom of
expression is “applicable not
only to ‘information’
or ‘ideas’ that are favourably received or regarded as
inoffensive or as a matter
of indifference, but also to those that
offend, shock or disturb … Such are the demands of that
pluralism, tolerance and
broadmindedness without which there is no
“democracy society”’. (footnotes omitted)
See
also
De
Reuck v Director of Public Prosecutions, Witwatersrand Local
Division
,
[18]
and
Phillips
v Director of Public Prosecutions, Witwatersrand Local Division.
[19]
THE
LIMITATION OF THE RIGHT
[28] Indeed, the above
approach and interpretation of the right to freedom of expression,
not only show the importance and indispensability
of the right, but
also that it is not without any limitation. In fact s 36 of the
Constitution specifically limits the right 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 the 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.’
(emphasis added)
[29] From the provisions
of s 36 of the Constitution, the following is more than plain: the
rights targeted therein, in particular
the right to dignity, are more
than critical in the evaluation of this matter, bearing in mind the
interpretational instruction
prescribed in s 39 of the Constitution;
that the Equality Act is part of the national legislation anticipated
in s 9(3) of the
Constitution; and as referred to in s 2 (Objects of
the Act) of the Equality Act; and finally, and most importantly, in
the context
of the matter, the provisions of s 10(1) as well as the
related sections of the Equality Act, must be interpreted in such a
manner
that is consciously and especially circumspect, to avoid
simply exchanging one type of thought regulation for another –
and
in order to achieve an equitable balance between the contrasting
rights. In doing so, I must conclude, as I do, ultimately below,
that
the limitation of freedom of expression imposed by ss 10(1) and 11
and related provisions of the Equality Act under discussion,
are not
unreasonable and not unjustifiable in an open and democratic society
based on human dignity, equality and freedom, when
regard is had to
all the relevant circumstances. The same should apply to s 12, which
in its proviso essentially and potentially
targets speakers who do
not act
bona fide
and whose utterances have the damaging
effects listed in s 10.
THE
CIRCUMSTANCES UNDER WHICH THE STATEMENTS WERE MADE
[30] It is necessary,
even at the risk of repetition, that the impugned statements: were
made by the first respondent representing
the second respondent
(COSATU) at a rally held by the Palestinian Solidarity Committee
(PSC) at the Wits University campus. The
atmosphere was rather tense.
The Commission maintains that the statements in their utterance,
singularly or collectively, numerously
amount to anti-semantic
remarks which should be understood to incite violence and hatred
against the Jewish community and the students
present. The
Commission’s witness, Shullman, a Jewish person himself,
testified and confirmed this. He said that he felt
threatened and
intimidated.  More will be said about the evidence of Shullman
below.
[31]
It is necessary to revert to the impugned statements and the
prevailing circumstances in order to assess the proper context.
In
Seven
Eleven Corporation of SA (Pty) Ltd v Cancun Trading NO 150 CC
,
[20]
it was said that ‘in law context is everything’. It is
not disputed that the statements were made during a series of
events
between February 2009 and March 2009. These statements are aptly
captured in a letter of complaint addressed by the Commission
to the
first respondent, Masuku, on 11 May 2009.
[21]
The statements were made to an audience consisting of mainly students
on campus, which included Jewish, Zionists and Palestinian

supporters. From the credible evidence led by the Commission, there
was already some amount of tension between the opposing groups.
The
audience also included COSATU’s members of Palestinian
supporters. In addition, to the impugned statements, there ensued

exchanges of emails between the first respondent and numerous other
persons and institutions reacting to the statements.
One of
these exchanges was between the first respondent and one Steve, the
owner of ‘its supernatural blog’ (Steve).
On 11
February 2009, Steve emailed the first respondent,
inter
alia
,
as follows:
‘…
The
comment in question was removed as soon as I spotted it – which
was 1 day after it had been posted due to the Jewish Sabbath,
during
which I refrain from using a computer, amongst many other things …
I only spotted the offensive comment after
Sabbath came out which was
February 07 – Saturday night. As soon as I saw the comment, I
deleted it. I do this whenever I
see comments that invoke hate-speech
…’
Immediately thereafter,
and on the same day, the first respondent responded to Steve in an
email,
inter alia
, (in relation to the march) in the following
terms:
‘…
I
came to the conclusion, that Jews are arrogant, not from being told
by any Palestinian, but from what I saw myself. No you blame
me for
making my conclusion. I owe no one an explanation and care not a bit,
but want freedom of Palestinians and I am convinced
no amount of
being reasonable will resolve the real problem, because occupation is
not reasonable itself and we know it ourselves,
worst still when
people come all the way from wherever they come from to tell us where
and how to march, they can do that in their
own country, not here. I
repeat, there are Jews all over the world who have proven to be
reasonable and human, but I have no doubt
that all those who support
Israel are just as evil as the actions of Israel and I am less
concerned whether that is semantic or
not, but I am interested in the
end of human suffering caused by Israel.’
[32] Pursuant to the
utterance of the statements, there ensued a plethora of
correspondence between various parties, notably between
the first
respondent and others. There were also complaints directed to the
Commission, including the SAJBOD. As stated above,
the complaint was
forwarded to the first respondent who responded thereto. The matter
is therefore before this court as envisaged
in s 21(1) of the
Equality Act which provides as follows:
‘
The Equality Court
before which proceedings are instituted in terms of or under this Act
must hold an inquiry in the prescribed
manner and determine whether
unfair discrimination, hate speech or harassment, as the case may be,
has taken place, as alleged.’
This court is established
in terms of s 16 of the Equality Act. Although s 21(1) refers to an
‘enquiry’, the provisions
of s 19 of the Equality Act
provide,
inter alia
, that the provisions of the Supreme Court
Act 59 of 1959, (now the
Superior Courts Act 10 of 2013
) and the
rules made thereunder as well as the rules made under the Rules Board
for Courts of Law Act, apply to the nature of enquiry
under
discussion. It can therefore be accepted that the present enquiry may
be conducted as a civil trial, for all intents and
purposes.
[33] The term ‘hate
speech’ referred to in s 21 of the Act, is not defined under s
1 of the Act, although ‘harassment’
is defined as
‘
unwanted
conduct which is persistent or serious and demeans, humiliates or
creates a hostile or intimidating environment or is
calculated to
induce submission by actual or threatened adverse consequences and
which is related to –
(a)
sex, gender or sexual orientation, or
(b)
a person’s membership or presumed membership of a group
identified by one or more of the prohibited grounds or a
characteristic
associated with such group’.
For present purposes,
this matter should be adjudicated upon having in mind the ‘prohibited
grounds’ as contained in
s 1 of the Act.
WHAT
IS HATE SPEECH
?
[34] I have already dealt
with the legal principles and approach to be adopted in matters of
this nature. Article 4 of the Elimination
of All Forms of Racial
Discrimination of 1965 (ICRD) describes hate speech as:
‘
Any speech,
gesture or conduct, writing, or display which is forbidden because it
may incite violence or prejudicial action against
or by a protected
individual or group, or because it disparages or intimidates
protected individual or group.’
Another source describes
hate speech as:
‘
[S]peech
or expression which is capable of instilling or inciting hatred of,
or prejudice towards, a person or group of people on
a specified
ground including race, nationality, ethnicity, country of origin,
ethno-religious identity, religion, sexuality, gender
identity or
gender.’
[22]
From the above, it is
plain that the complaint in the instant matter falls into the
definition above on more than one ground, including
religion.
[35] Indeed, the
Constitutional Court has repeatedly highlighted the interest of the
State in regulating hate speech since it may
cause harm to the
constitutionally mandated objective of constructing a non-racial and
non-sexist society which is based on common
human dignity and
attainment of equality.  This is in
Islamic Unity Convention
v Independent Broadcast Authority, supra,
where the Court said:
‘
Three
categories of expression are enumerated in s 16(2). They are
expressed in specific and defined terms. Section 16(2
)(a)
and
(b)
are respectively concerned with “propaganda for war”, and
“incitement of imminent violence”. Section 16(2)
(c)
is directed at what is commonly referred to as hate speech.
What is not protected by the Constitution is expression or speech

that amounts to “advocacy of hatred” that is based on one
or other of the listed grounds, namely race, ethnicity, gender
or
religion and which amounts to “incitement to cause harm”.
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
that prohibits such expression.
Any
regulation of expression that falls within the categories enumerated
in s 16(2) would not be a limitation of the right in s
16
.’
[23]
(emphasis added)
See
also the Canadian decision of
R
v Andrews
,
[24]
where it was said that:
‘
Hatred is not a
word of casual connotation. To promote hatred is to instill
detestation, enmity, ill-will and malevolence in another.’
When properly viewed, the
principles enunciated in the above authorities, in essence show
that:  the expressions targeted in
s 16 of the Constitution are
specific and defined in definitive terms; what should be interpreted
as hate speech; what is, and
what is not protected by s 16 of the
Constitution; what are intended by the prohibited grounds referred to
in s 1 of the Equality
Act; the justification accorded to the State
for enacting legislation such as the Equality Act as envisaged in s
9(4) of the Constitution;
the objects of the Equality Act referred to
earlier in this judgment;  what is entailed in promoting hatred;
and more relevantly,
whether the first respondent is entitled to
raise the defence of freedom of expression, as he does in this case;
more about
this later in the judgment.
RESTATED
OBJECTS OF EQUALITY LEGISLATION
[36]
I have already dealt with the rationale for the enactment and objects
of the Equality Act, and the regulations framed thereunder
as
mirrored in the preamble. To recall, the purpose was to implement the
provisions of s 9 of the Constitution in order to prohibit
unfair
discrimination and harassment, to promote equality and to prohibit
hate speech which is the subject matter under discussion.
There will,
naturally, always be palpable tension between what is described as
hate speech provisions in terms of the Constitution
and the Equality
Act. Interestingly, another source, namely Christa van Wyk,
[25]
quoted with approval in
ANC
v Harmse
[26]
said:
‘
This act
implements and clarifies the constitutional hate speech provision.
While the Constitution puts these forms of expression
outside
constitutional protection, the Act clearly prohibits hate speech and
creates rights. It provides remedies to counter the
harmful effects
of hate speech.’
(See s 21 of the Equality
Act dealing with the powers and functions of the Equality Act, quoted
above.)
[37]
In the Swedish case of
Vejdeland
v Sweden
,
[27]
the complaint was against the Kingdom of Sweden under the Convention
for the Protection of Human Rights and Fundamental Freedoms
(the
Convention) by four Swedish nationals, including Mr Vejdeland (the
applicants). There, the applicants alleged that the Court
a
quo
,
namely the Supreme Court judgment, constituted a violation of their
freedom of expression under Article 10 of the Convention.
The
applicants had previously gone to an upper secondary school and
distributed approximately 100 leaflets by leaving them in or
on the
pupils’ lockers.  The originator of the leaflets was an
organisation called ‘National Youth’ and
the leaflets
contained,
inter
alia
,
statements disparaging against homosexuals. The applicants had
advanced as their main defence the ground that, the purpose of
the
activity had been to start a debate about the lack of objectivity in
the education dispensed in Swedish schools. The applicants
were
subsequently convicted by a criminal court which found,
inter
alia
,
that the statements in the ‘leaflets had clearly gone beyond
what could be considered an objective discussion of homosexuals
as a
group and that the applicants’ intention had been to express
contempt for homosexuals’. This sounds, in large
measure,
similar to the defence raised by Masuku in the instant matter. In
finally finding against the applicants, the European
Court of Human
Rights, stated,
inter
alia
,
at para 55 that:
‘
Moreover,
the Court reiterates that
inciting to hatred does not
necessarily amount to a call for an act of violence, or other
criminal acts. Attacks on persons committed
by insulting, holding up
to ridicule or slandering specific groups of the population can be
sufficient for the authorities to favour
combating racist speech in
the face of freedom of expression exercised in an irresponsible
manner
. (See Vêret v
Belgium, No 15615/07, S73, 16 July 2009.)  In this regard, the
Court stresses that discrimination based
on sexual orientation is as
serious as discrimination based.’ (emphasis added)
APPLYING
THE PRINCIPLES TO THE PRESENT CASE
[38]
In applying the above principles to the facts of the present matter,
the following is of relevance: the evidence before me,
in particular
that of Shullman, does not show any significant violent conduct by
the Jewish audience or population following the
statements by Masuku;
neither does it show any subsequent criminal activity; what the
evidence does show, however, is that the
impugned statements were
offensive and targeted at the Jewish community present or not during
the utterances. This, despite Masuku’s
reliance on the right to
freedom of expression. In my view, the principles additionally show
that, s 10(1) of the Equality Act
is well in place to combat such
utterances. See in this regard,
R
v Keegstra
,
[28]
where it was stated that the harm that may result from hate speech
covers emotional damage caused by words, which may have serious

psychological and social consequences. The result is a response of
humiliation and degradation from the individual targeted by
hate
speech. (See also Shaun Teichner)
[29]
To the extent that Masuku in the impugned statements made reference
to ‘Wits’ or at ‘Orange Grove’
and facing the
consequences, including causing what is referred to as harm, must
also be regarded as constituting unprotected hate
speech countenanced
by the objects of the Equality Act. The contention of Mr Masuku that
what he meant by ‘harm’ in
the impugned statements was
encouraging vigorous intellectual debate, as well as other forms of
engagement, is extremely hard to
accept in the circumstances of this
matter. When considered properly in context, as expanded more fully
below, the only reasonable
probability is that Masuku in fact meant
that some form of ‘harm’ will befall the Jewish people if
they do not conform,
whatever it may have been. For present purposes,
and for this finding (the finding) to prevail, it is truly
unnecessary to identify
with exact precision such harm. Neither is it
necessary for the evidence led in the enquiry to establish on a
balance of probabilities,
that there ensued actual physical harm or
violence to the targeted group pursuant to the impugned statements.
[39] It is, more than
plain from the above authorities, and upon a proper contextual
interpretation of the provisions of s 10(1)
and the prohibited
grounds in s 1 of the Equality Act, that at least two requirements
for hate speech are created, namely; it must
be based on a prohibited
ground or any other ground where discrimination which is based on
that other ground promotes or perpetuates
systematic disadvantage, or
undermines human dignity or adversely affects the equal enjoyment of
a person’s rights and freedoms
in a serious manner which is
comparable to discrimination on a ground specifically listed.
Secondly, the hate speech must be construed
reasonably to indicate a
visible or discernible intention to be hurtful, harmful or incite
harm, or propagate hatred. See
Christa van Wyk,
supra
,
where it was also suggested that the harm contemplated in s 10(1) of
the Act, probably has the same meaning as ‘harm’

contemplated in s 16(2)
(c)
of the Constitution.  It was
further suggested that s 10(1) of the Equality Act is, however,
subject to an important proviso,
namely the
bona fide
engagement in artistic creativity, academic and scientific inquiry,
fair and accurate reporting in public interest or publication
of any
information, and advertisement or notice in accordance with s 16 of
the Constitution, are not precluded by this section.
THE
ONUS
OF PROOF
[40]
I mentioned in paragraph [1] of this judgment that this matter
proceeded essentially on the basis of a trial. In this regard,
s 13
of the Equality Act, which deals with the burden of proof, provides
that, the complainant must make out a
prima
facie
case of discrimination, and that the respondent, on the other hand,
must prove, on the facts presented, that the discrimination
did not
take place as alleged; or that the respondent must prove that the
conduct is not based on one or more of the prohibited
grounds.
For present purposes, and in matters of this nature, guidance must be
sought in what Corbett JA said in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
:
[30]
‘
As was pointed out
by Davis AJA in
Pillay v Krishna
1946 AD 946
AD at p 952-953,
the word
onus
has often been used to denote,
inter alia
,
two distinct concepts:  (i) the duty which is cast on the
particular litigant, in order to be successful, of finally satisfying

the court that he is entitled to succeed on his claim or defence, as
the case may be; and (ii) the duty cast upon a litigant to
adduce
evidence in order to combat a
prima facie
case made by his
opponent, only the first of these concepts represents the
onus
in its true and original sense.  In
Brand v Minister of
Justice
1959 (4) SA 712
(AD) at p 715 Ogilvie Thompson JA called
it “the overall
onus
”. In this sense the
onus
can never shift from the party upon whom it originally rested. The
second concept may be termed, in order to avoid confusion, the
burden
of adducing evidence in rebuttal (“weerleggingslas”).
This may shift, or be transferred in the course of the
case,
depending upon the measure of proof furnished by the one party or the
other. (See also
Tregea v Godart
1939 AD 16
at p 28;
Marine
and Trade Insurance Ltd v Van der Schyff
1972 (1) SA 26
(A) at p
37-9.”).
Section 14 of the
Equality Act also deals with the determination of fairness or
unfairness, in matters such as under discussion.
The view that
proceedings in the Equality Court are essentially civil in nature, is
further fortified by having regard to certain
provisions of the Act.
These include ss 16(1)
(c)
and
(d)
which provide that:
‘
The
minister must, after consultation with the head of an administrative
region defined in section 1 of the Magistrates’ Courts
Act,
1944 (Act 32 of 1944), or the magistrate at the head of a regional
division established for
the purposes of adjudicating civil
disputes
, by notice in the
Gazette, … designated any regional division established for
the purposes of adjudicating civil disputes
,
as an equality court …; and the head of an administrative
region or magistrate at the head of a regional division contemplated

in paragraph (c) must, subject to subsection (2), designate in
writing any magistrate, additional magistrate or magistrate of a

regional division established
for the purposes of adjudicating
civil disputes
, as a presiding
officer of the equality court.’ (emphasis added)
Section 16(2) provides,
inter alia
, that:
‘
Only
a judge, magistrate, additional magistrate or magistrate of a
regional division established
for the purposes of adjudicating
civil disputes
, who has completed
a training course as a presiding officer of an equality court …’
(emphasis added)
Having sketched the
nature of the
onus
of proof in matters of this nature, as well
as the actual nature of the proceedings, it appears to me that, there
is abundant scope
to be less formal and procedural at the same time.
I have already set out the objects of the Act (s 2), as well as the
rules and
court proceedings (s 19). However, s 20 of the Act, which
deals with the institution of proceedings of this nature under the
Act,
provides,
inter alia
, that
‘
the
proceedings may be instituted by any person acting in their own
interest; or any person acting on behalf of another person who
cannot
act in their own name; or any person acting as a member of, or in the
interests, of a group or class of persons or person;
or any person
acting in the public interest; or any association acting in the
interests of its members; or finally, the South African
Human Rights
Commission …’,
as
happened in the present matter. In this regard, in
Afriforum
v Malema
,
[31]
the informality of the proceedings, at para [43] was indicated
as follows:
‘
The Equality Act
and the regulations promulgated thereunder provide that the presiding
officer is to follow the legislation governing
the procedures in the
court in which the proceedings are being conducted.  In the
present case the High Court Rules provide
for the regulation of the
procedure. The presiding officer is given the right to make
appropriate changes to the rules for the
purpose of supplementing the
regulation and may, in the interests of justice, if no one is
prejudiced, deviate from the procedure
after hearing the parties.
The presiding officer is required to resolve matters of an
administrative or procedural nature,
and is to give direction in
respect thereof after consultation with the parties. A list of the
issues which should be discussed
in the course of managing the matter
is set out.’
In addition, s 173 of the
Constitution also enjoins this Court to exercise its inherent power
to protect and regulate its own process,
and to adopt the common law,
taking into account the interests of justice. I endorse this
approach.  In my view, the observations
made in this paragraph
regarding the
onus
of proof, the nature of the proceedings
under the Equality Act, as well as the flexibility during the
proceedings, chiefly to achieve
the objects of the Act, whilst
complying with the constitutional imperatives, are rather profound
for present and future proceedings
under the Equality Act.
THE
COMPLAINANT’S CASE
[41] I revert to the
instant matter, having in mind all of the above approaches and
principles. The complainant’s case in
this matter, by its
nature, is limited to hate speech only as envisaged in the prohibited
grounds under s 1 of the Equality Act,
in the wake of the
respondents’ defences sketched above.
[42] In my view, in the
adjudication of matters such as the present, it is extremely
essential to observe that the Equality Act
employs distinct
categories of expression, which it explicitly forbid, and which
extend beyond the forms of hate speech which s
16 of the Constitution
place outside the confines of constitutional protection. Again, and
at the risk of over-elaboration, according
to
Van Wyk
,
supra
,
at para [5], the inquiry into whether expression constitutes hate
speech for which there is no constitutional protection under
s 16 of
the Constitution, involves two elements which should be present
before an expression will be regarded as amounting to advocacy
of
hatred or hate speech. These are that, the advocacy of hatred which
is based on race, ethnicity, gender or religion; and that
which
constitutes incitement to cause harm.  In
Afriforum and
Another v Malema and Others, supra
, Lamont J held the view that
the analysis whether speech constitutes hate speech, requires a
passionless and objective investigation
into the actual words of the
utterance under consideration, given their ordinary grammatical
meaning, a comparison thereof with
the internal limitations created
in terms of s 16(2)(c) of the Constitution, and if the utterances
fall foul of the internal limitations,
that that should signify the
end of the enquiry. I, respectfully, agree with this
dictum
.
THE
DEFENCES OF THE RESPONDENTS
[43] I have already dealt
with the offending statements. I turn briefly, and prior to
concluding based on the above principles,
to the defences raised.
The defence, as described above, and in essence, is that the
offending statements were true and constitute
fair comment on matters
of public interest. Indeed, it is trite that the defences are
recognised at our common law of defamation.
[44]
In
Independent
Newspapers Holdings Ltd v Suliman
,
[32]
the Court had to deal with a defamation case brought by the
respondent against the appellants pursuant to the appellants having

published newspaper reports to the effect that the respondent was the
main suspect in a bombing incident. The appellants pleaded
that the
reports or articles were not defamatory, and that the defence of
truth and public interest applied. The appellants also
relied on what
was referred to as the
Bogoshi
defence
(
National
Media Ltd and Others v Bogoshi
,)
[33]
and the constitutional right to freedom of expression, and the right
to impart information conferred by s 16 of the Constitution.
In the
opinion of the Court, the articles were defamatory. In regard to the
defence of public interest, the Court held that the
test for public
interest is objective, after drawing a distinction between public
interest and mere curiosity. See also
Times
Media Ltdv Niselow
,
[34]
where the Court held,
inter
alia
,
that in determining what meaning would be attributed to the article
by the ordinary reader, regard was to be had to the context
of the
article as a whole, including the heading of the article, and that
the requirement for justification of truth is substantial,
not the
absolute, truth (
Johnson
v Rand Daily Mail
[35]
followed).
[45]
In short, in our law of defamation, Masuku had to simply contend and
prove that the impugned statements are true; in the public
interest;
conveying to the public something of which they are ignorant, but in
their best interest to know; the utterances are
reasonable
publication; that he had reason to believe in the truth of the
impugned statements and took reasonable steps to verify
their
circumstances; that the impugned statements constitute a comment
(opinion) and that it should be understood as a comment
and that the
utterance thereof should be understood as a comment by a reasonable
hearer; the statements are fair and do not exceed
certain limits; the
impugned statements comment on the facts truly stated; and that the
utterance is of public interest. See Amler’s
Precedence
of Pleadings
,
8th ed, pages 162 to 163. And compare
The
Citizen
1978
(Pty) Ltd
v
McBride (Johnstone and Others, Amici Curiae)
.
[36]
[46] In the sphere of
foreign jurisdictions, and from which our courts often draw guidance,
these appear to support the above approach.
For example, and as
argued by the Commission, in
Canada (Human Rights Commission) v
Winnicki (FC)
, the matter concerned an injunction preventing hate
speech based on the Canadian equivalent of s 10 of the Equality Act,
the Court
held as follows:
‘
Another
factor to be taken into consideration is the fact that truth or fair
comment is not a defence in cases of hate messages.
It is now well
established that the focus of human rights inquiries is on the
effects and not on the intent (Ontario Human Rights
Commission and
O’Malley v Simpson Sears Ltd, et al
1985 CanLII 18 (SC)
; ,
[1985] 2 S.C.R. 536
;
Bhinder et al v Canadian National Railway Co. et al
[1985] 2 S.C.R.
561).
Accordingly, there is no exception for truthful
statements in the context of subsection 13(1) of the CHRA, as found
by Chief
Justice Dickson in Taylor (at p 935).  This is
obviously another factor to be taken into account in framing an
appropriate
test for granting an interim injunction to restrain hate
messages.’
[37]
[47]
The above approaches to cases of defamation, including foreign
jurisdictions referred to in the preceding paragraph, are rather

instructive in the circumstances of the instant matter. However, as
stated earlier in this judgment, this court is not called upon
to
adjudicate on the ongoing conflict in the Middle East. Neither will
it be appropriate to venture an opinion in regard thereto.
It remains
a matter of international debate for now. As a consequence, and for
limited purposes only, s 3 of the Equality Act,
ought to recede for
now in the process of determining the truth, but to assess whether
the utterance of the impugned statements
was fair and honest. (See in
this regard,
Shoot
and Others v E-TV
.
[38]
In my view, and elaborated on more below, based on the above
approaches and legal principles, the defences raised by Masuku,

namely that the impugned statements are true, fair comment, and in
the public interest, and based on Masuku’s beliefs, have
no
merit at all, and the defences are untenable, in the circumstances of
this matter. The defences are plainly not permissible
under the
Equality Act, and having regard to the provisions of s 16 of the
Constitution. In so doing, I am fully conscious that
this indeed
amounts to a rather profound finding in matters of this nature. It
may, or may not provide future guidance in respect
of complaints
broad under the Equality Act. It also appears to me that the
intention of Masuku when making the impugned statements,
remains
wholly irrelevant in this matter. It is not for the maker of the
expression or utterance, nor for this court, to dictate
how the maker
thereof should perceive it.
ELABORATION
ON FINDING
[48] I must elaborate
further on the above finding. The impugned statements clearly
constitute hate speech, in my view. The blog
posted by Masuku on 6
February 2009, was unequivocally a reference to the Jews and their
religion and/or origin.  The witnesses
called by both parties
confirmed in evidence that most Jewish people in South Africa, and
indeed worldover, regard themselves as
Zionists. The blog further
refers to Zionists as belonging to the era of their friend, Hitler.
It is undisputed that the Hitler
campaign had its main purpose the
extermination of the Jews whether Zionists or not. In the
circumstances of this matter, and viewed
in proper context, it is
hardly unreasonable that reference by Masuku to Hitler was intended
to call up an association with Jews,
as contended by the Commission.
[49] In addition, the
said blog can equally and reasonably be interpreted as to indicate a
plain aim to be hurtful, harmful or to
propagate hatred in the
particular circumstances of the matter. It is not disputed that at
the time of the blog in question, Israel
was involved in a war with
Palestinians in the Gaza Strip. In the utterance, contextually
considered, effectively and in essence,
Masuku calls for every
Zionist to be made ‘to drink the bitter medicine they are
feeding our brothers and sisters in Palestine’.
In my view, not
only does the utterance transgress the purview of s 10(1) of the
Equality Act, but it clearly makes reference to
the persecution and
harm that allegedly happened to the Palestinians during the Gaza war.
It can, with ease of construction amount
to direct incitement to
cause some harm to South African Jews. Masuku goes further when he
says that ‘the Zionists must be
targeted, exposed, and that all
must be achieved to subject Jews to perpetual suffering until they
withdraw from the land of others’.
It is a clear manifestation
and expression of his beliefs that the Israeli occupation of
Palestinian territory is not in accordance
with the law, as the
Commission contends.  In my view, this is precisely the evil
which s 10(1) of the Equality Act aims to
prevent. There is nothing
to the contrary in the content or the context other than a clear
intention to perpetrate hate speech
as described in the persuasive
authorities enumerated above. In essence, the post was made to instil
detestation, enmity, ill-will
and malevolence towards Jews in South
Africa. It is distinct advocacy of hatred – nothing else. In my
view the above accords
in large measure with the evidence of the
Commission’s witnesses, in particular, Dr Hirsch and Dr
Stanton, who rendered evidence
as experts in their respective fields.
The utterances, individually or cumulatively considered, amount to
hate speech, and do not
add any value to the public discourse or
contribute to the greater debate in a meaningful manner, whatsoever.
[50] In my view, the
above, based on the legal principles and approaches, local or
foreign, set out above, this should not be countenanced
by our courts
when dealing with complaints brought under the auspices of the
Equality Act.  This, on the basis of a proper
balance and
interpretation of the evil targeted by the Equality Act, on the one
hand, and the right to freedom of expression protected
by s 16 of the
Constitution, on the other hand, particularly when having regard to
the extremely significant right to dignity.
[51] I have already dealt
with the evidence of the Commission’s witness, Shullman, who
was present at Wits University when
the impugned statements were
made. The evidence requires no extensive repetition. It suffices that
the credible evidence shows
that the only members in the audience,
who held a different view to Masuku would have been Jewish. Masuku’s
target group
was therefore clearly identified by him. Furthermore,
the reference by Masuku to ‘hell’ is particularly
worrisome.
For example,
Webster’s New World Dictionary
,
defines the word ‘hell’, as ‘… the state or
place of total and final separation from God and so of internal

misery and suffering, arrived at by those who die unrepentant in
grave sin’, whilst the
Concise Oxford Dictionary
defines
the word as
‘
a place regarded
in various religions as a spiritual realm of evil and suffering,
often depicted as a place of perpetual fire beneath
the earth to
which the wicked are consigned after death’.
[52]
From the above definitions, and in the context of the instant matter,
the reference to the word ‘hell’ by Masuku
demonstrates
an unequivocal threat whereby these persons on the other side, namely
Jews, would be subjected to treatment by COSATU
on the Wits campus in
a manner similar to anyone who goes to hell. Furthermore, even though
the worldover there may be people who
do not support the rights of
others, Masuku elected in this case to limit his remarks to two
geographical locations, namely Wits
campus and Orange Grove. In
particular, Wits was chosen as Masuku knew there were Jewish students
present there. On the other hand,
Orange Grove is traditionally a
Jewish location which would make a reasonable reader to interpret the
statement to have been a
reference to Jews. In this regard
Le
Roux v Dey
states:
[39]
‘
It may be accepted
that the reasonable person must be contextualised and that one is not
concerned with a purely abstract exercise.
One must have regard to
the nature of the audience.’
Additionally, and as
correctly argued by the Commission, the threat of harm is
self-evident. It is not to be understood as some
kind of metaphor for
the purposes of intellectual engagement, but must be accorded its
plain meaning- injury either physically
or psychologically or
deliberately inflicted. Once more, this conclusion is in accordance
with the views of Dr Hirsch called by
the Commission.
[53] In my view, the
statement by Masuku, containing the threat with reference to Jews, is
not only hurtful but also harmful in
that the target group is
threatened with harm, and at the same time promotes and propagates
hatred. This alone is in my view, more
than reasonably sufficient to
bring the statements within the purview of s 10(1) of the Equality
Act.
THE
EXPERT OPINIONS AND FINDINGS
[54]
It is my finding that the content and context of the impugned
statements, when assessed properly, individually and collectively,

prove that Masuku overstepped the mark in the circumstances. It is
unnecessary to even traverse fully the individual statements
to the
effect that any South African family that sends its son or daughter
to be part of the Israeli Defence Force must not blame
COSATU and
Masuku and others of like mindedness, should something happen to such
families, with immediate effect.  It suffices
to observe that no
credible evidence was tendered by any other groups having joined the
Israeli Defence Force. The bottom line
is that the last-mentioned
statement, objectively assessed, based on the principles and
approaches mentioned above, must readily
be understood to be
concerning Jews. It too,
prima
facie
,
falls foul of the provisions of s 10(1) of the Equality Act. The
contentions of Masuku, as mirrored in the heads of argument,
and as
expanded on in closing argument, that the impugned statements are not
based on ethnicity or religion, but that if they do,
the words
‘consequences’ and ‘harm’ do not clearly
connote the propagation of hatred or incitement or violence,
are
without merit at all. I make the finding even though the Constitution
protects and recognises rather strenuously, freedom of
expression.
When properly viewed, interpreted contextually, and having due
consideration to all the relevant circumstances, the
statements
undoubtedly amount to hate speech. The statements clearly fall
outside the right to freedom of expression, and are consequently,
to
be separated from the protection of constitutional protection since
the statements infringe, negatively, on the right to dignity
of the
Jewish and Israeli community, and probably cause harm. To recall, the
content of the statements is rather profound, and
not merely
mundanely offensive. The statements were made to an extremely tense
audience and in a tense political climate. The statements
conveyed
more than ordinary detestation for the Jewish and Israeli community
and their origin and religion, and were accompanied
by threats of
potential violence, and aim to subject this minority targeted group
to probable mistreatment, based purely on their
religious and
ethnicity affiliation.  Indeed, the protection of minorities and
vulnerable members of our society has repeatedly
been endorsed and
promoted by the Constitutional Court. See for example,
Christian
Education South Africa v Minister of Education
[40]
and
Prince
v President Cape Law Society
[41]
.
See also
Afriforum
v Malema
,
supra
,
at paras [33] and [34]. The Appeal Committee in
Freedom
Front v The South African Human Rights Commission
[42]
held that:
‘
A relevant factor
in this determination is whether the speech advocating hatred is
directed at minorities or vulnerable groups in
society. The more
vulnerable the group, the more likely it is that it will be harmed by
the advocacy of hatred.’
In my view, this is
precisely what occurred in the matter before me. This, our Equality
Courts, in the fulfilment of the obligations
imposed on them by both
the Constitution and Equality Act, should not countenance in a
democratic society.  It is reasonably
conceivable that, in the
context of the present matter, a reasonable person in the Jewish
community, in particular a Wits University
student or associate, or
an ex-student, such as the witness, Shullman, would probably have
been driven out of sheer fear and intimidation
for their security. It
is irrelevant, in my view, whether any actual attack became likely or
ensued. It is equally irrelevant whether
the impugned statements,
individually or cumulatively, were aimed at Zionism when regard is
had to persecution and discrimination
inflicted on the Jewish
community historically.  The protection of their rights,
especially to equality and religion, remain
crucial.
[55] Based on the
entirety of the above findings, it is my view that, the impugned
statements historically, do not even persuasively
traverse the
internal limitations in s 16(2)
(c)
of the Constitution, which
makes it unnecessary, for present purposes, to consider the balancing
enquiry envisaged in s 36 of the
Constitution which provides,
inter
alia
, as follows:
‘
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 …’
[43]
In my view, it is further
unnecessary to consider the question in detail whether the hate
speech under discussion, resides in any
one or more of the prohibited
categories envisaged in s 10 of the Equality Act.  It is rather
difficult to perceive how it
does not in this case.  In any
event, I was unable to discern anything of significance in Masuku’s
heads of argument
dealing with the provisions of s 36 of the
Constitution.
THE
NATURE OF THE EXPERT TESTIMONY
[56] There is one more
issue I need to deal with prior to concluding.  This is the
nature of the expert evidence presented
by Dr Hirsch and Dr Stanton
on behalf of the Commission, on the one hand, and Professor Friedman
on behalf of Masuku, on the other
hand. The evidence is rather
extensive. It covered, as mentioned earlier in this judgment:
what is meant by the concept Zionism;
and what would, in the context
of this enquiry, constitute anti-Semitism. Dr Hirsch and Dr Stanton,
in particular, testified extensively,
and I must observe, on genocide
worldwide. Indeed, these are hefty local, national and international
aspects for proper and detailed
consideration in the matter of this
nature, and to adjudicate upon in these proceedings. As mentioned in
the heads of argument
of Masuku, the evidence of the experts, reveal
in large measure the contrasting debate between academics as to
precisely what the
topics ‘Zionism’ and ‘anti-Semitism’
factually entail.
[57] By way of example Dr
Hirsch for the Commission, expressed the view that while Zionism
historically referred to a political
or ideological movement for the
establishment of a Jewish state, it no longer has this meaning from
1948.
[58]
The evidence of the respondents’ expert witness, Friedman, is
of course, opposing that of the Commission’s witnesses.
I deal
with the contrasting views below. First, the trite approach to such
opposing views.  Expert witnesses are usually required
to assist
the Court, and not the party for whom he/she testifies. See
P
v P
.
[44]
It is equally so that an expert witness must be neutral and advance
opinions founded on logical reasoning. Partisanship of
an expert
witness will affect the credibility of such witness. See
Stock
v Stock
,
[45]
and
Price
Waterhouse Coopers Inc
v
National Potato Co-operative Ltd
.
[46]
Finally, Bryce Wray states:
‘
It
is safe to say that a judge in a civil or criminal trial cannot play
the role of an expert.  The parties to an action will
call an
expert whose function in a trial is to assist the court to reach a
conclusion on matters in which the court itself does
not have the
necessary knowledge to decide.  It is not the mere opinion of
the witness which is decisive but his ability to
satisfy the court
that, because of special skill, and training or experience, the
reasons for the opinion which he expresses are
acceptable.  It
is therefore for the court ultimately to decide whether an expert’s
opinion is to be relied on or not
and to determine what weight (if
any) has to be given to it.’
[47]
[59] Bearing in mind the
above approach, and without any comprehensive finding on the debate
between the expert witnesses, especially
on Zionism, and more so that
the Equality Act does not provide definitions of concepts like
‘Zionism’, I find on the
probabilities:  that it is
difficult, in the circumstances of this matter, to accept the
evidence of Friedman. I say this
for the following brief reasons:
the opinion does not demonstrate convincingly that Friedman is indeed
an expert on the issue
of anti-Semitism, and its proper
inter-relationship with anti-Zionism in the context of the broader
Israeli-Palestinian conflict.
Although the evidence shows that
Friedman has immense interest in these matters, these have not been
the focus of his academic
career. In addition, he somewhat showed
that he is partisan which on its own, offends the approach and
principles to expert testimony
described in the preceding paragraph
of this judgment.
CONCLUSION
[60] For all the above
reasons, I reiterate the finding made that the impugned statements
constitute hate speech since they fall
foul of the provisions of s 10
of the Equality Act. The statements are not protected by the
provisions of s 16 of the Constitution.
The statements are
therefore declared as such. The contrary argument advanced on behalf
of Masuku to the effect that the statements
have nothing to do with
Jewish people, and that they are based on a certain political or
ideological stance or conduct, is without
credence. The same applies
to the argument that the reference to Wits and Orange Grove, properly
and contextually construed, simply
mean that this is where the event
took place, and Orange Grove is probably the locality where COSATU
marched to and which houses
the head of the South African Zionism
Federation.
REMEDY
[61] Based on the above
finding, I turn to what would be an appropriate remedy in the
circumstances of the matter. Indeed, s 21
of the Equality Act, under:
‘Powers and functions of equality court’ enjoins the
Court, within its discretion, to impose
a variety of remedies,
commencing from imposing certain court orders (interim orders and
declaratory orders) and an order for an
apology. Section 21(2)
(f)
in particular, provides for: ‘An order that an unconditional
apology be made’. Significantly, s 21(3) provides that
an order
made by this court under the Equality Act, has the effect of an order
made in a civil action, where appropriate. This
is the kind of remedy
contended for by the Commission. There was no submission from Masuku
in this regard.
[62] It is equally
significant to observe that, s 21 of the Equality Act, expressly
gives a rather wide range of remedies and orders,
in a particularly
and relative piece of legislation – to accord properly with its
aims and objectives. This, in my view,
is befitting in our new
democratic dispensation.  Furthermore, in my view, an order for
an unconditional apology is by no
means lenient, and should not be
viewed in the light of the proverbial slap on the wrist. It remains
vital to the victims of hate
speech. Its effect should be
restorative. Even if it is so that such apology will plainly not
erase the contents of the impugned
statements here, it should, most
importantly, recognise the fact that the statements are found to be
hurtful and hate speech, and
for that reason, should constitute a
notable move towards compensating the target groups, in this case,
the Jewish community. In
my view, it is indeed extremely important
that, in the light of developing equality jurisprudence in our
country, the nature of
remedies imposed by the Equality Courts,
should be seen by both the victims, the offenders, and the broader
society as sufficiently
and appropriately effective, equitable and
just. I would go as far as suggesting that Equality Courts, in
appropriate circumstances,
should properly be used as a model on
which the effectiveness of the Equality Courts may be tested in
future. Proper and effective
mechanisms should be put in place in
effecting compliance with orders made by these courts. The orders
granted ought to properly,
and in suitable cases, change the mindset
of our society, and certain unrepenting people or groups of people,
that we are in a
new dispensation which should advocate actively for
fairness through equality. There is, as I see it, an obligation on
Equality
Courts to impose effective remedies which practically will
translate to equal enjoyment of all rights and freedoms as enshrined

in our law and the Constitution. There is no doubt in my mind that
the establishment of Equality Courts should breathe new life
into our
justice system and the protection of entrenched rights. In addition
to changing mindsets, the Equality Courts have a statutory
and
constitutional obligation to detect unfair discrimination and to
determine its legitimacy. The fact that complaints under the
Equality
Act are still streaming into our courts, and for such courts to
develop an appropriate jurisprudence for the future, that
fact alone,
in my view, should not mean that unfairness, especially of
discrimination, does not exist in our society.  The
Equality
Courts should obligatorily, create awareness, and indeed, in line
with the totality of the objectives of the Equality
Act, even though
presently it appears to be an insurmountable challenge.  The
consolidation of democracy in our society, as
suggested in some
circles, requires the eradication of social and economic
inequalities, especially those that are systemic in
nature, and which
were, or are, generated in our historical background by colonialism,
apartheid and patriarchy, and which concomitantly,
inflicted untold
pain and suffering on the majority of our society.
[63] For all the reasons
sketched above, and the fact that the impugned statements in this
case received wide publication, in a
tense atmosphere, and immense
response, I deem it fair, proper and equitable that an order for an
unconditional apology should
be issued.  The details of such
apology must be negotiated by the parties and agreed to.
THE
COSTS
[64]
I must deal with the issue of costs. It too, is a discretionary
matter. The issues raised are of great public interest. The

litigation and the trial involved extensive evidence, including that
of expert witnesses from overseas. The parties chose to litigate

luxuriously. The trial was of long duration, with the court
permitting it, in the interest of promoting the advancement of the

objectives of the Equality Act. However, in general, complainants who
approach the courts in constitutional matters, and of public

interest, should not readily be mulcted with costs, especially
meritorious litigation.  See
Biowatch
Trust v Registrar, Genetic Resources
.
[48]
In my considered view, and in the exercise of my discretion, the
respondents should pay the costs of this litigation.
ORDER
[65] In the result the
following order is made:
65.1 The impugned
statements are declared to be hurtful; harmful, incite harm, and
propagate hatred, and amount to hate speech as
envisaged in s 10 of
the Equality Act No 4 of 2000;
65.2 The complaint
against the respondents 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.
________________________________________
DSS MOSHIDI
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR THE
APPLICANT: C BESTER
ASSISTED BY: M SEAPE
INSTRUCTED BY: CLIFFE
DECKER HOFMEYR ATTORNEYS
COUNSEL FOR THE
RESPONDENTS: A DE KOCK SC
ASSISTED BY: UNKNOWN
INSTRUCTED BY: CHEADLE
THOMPSON AND HAYSOM INC
DATE OF HEARING: 6
FEBRUARY 2017 TO 14 FEBRUARY 2017
DATE OF JUDGMENT: 29 JUNE
2017
[1]
See
section 181 of Constitution.
[2]
See
section 184 of Constitution.
[3]
See
index to trial bundle – consolidated p 67.
[4]
See
index to trial bundle – consolidated p 68.
[5]
See
index to trial bundle – consolidated p 71.
[6]
See
index to Expert Notices and Summaries pp 79-83.
[7]
See
pp 26-167 of the transcript.
[8]
In
whole, section 9 of the Constitution provides as follows:
‘
(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 other 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 any one or more
grounds, including race, gender, 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 any one 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.’
[9]
See
section 1 of Equality Act under ‘prohibited grounds’.
[10]
See
section 2 of the Equality Act.
[11]
See
section 3 of the Equality Act in full.
[12]
See
section 16 of Constitution.
[13]
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras [22]-[23].
[14]
[2008] ZACC 12
;
2009
(1) SA 337
(CC) paras [46], [84] and [107].
[15]
2ed,
vol 5, Part 4, paras [107]-[209].
[16]
[1999] ZACC 7
;
1999
(4) SA 469
(CC) paras [7] and [8].
[17]
[2002] ZACC 3
;
2002
(4) SA 294
(CC) para [28].
[18]
[2003] ZACC 19
;
2004
(1) SA 406
(CC) para [48].
[19]
[2003] ZACC 1
;
2003
(3) SA 345
(CC) para [23].
[20]
2005
(5) SA 186
(SCA) paras [24]-[25].
[21]
See
annexure ‘LM1’ attached to the Commission’s
complaint affidavit – index pp 14-15.
[22]
See
Linda Daniel ‘Regulation of the Media: Hate Speech Essay’.
[23]
Para [33].
[24]
43
CCC (3rd) 193
at 211.
[25]
‘
Hate
Speech in South Africa’ XVIth Congress of the International
Academy of Comparative Law, Brisbane, 14-20 July 2002,
para 7.
[26]
2011
(5) SA 460
(GSJ) para [36].
[27]
App
No 1813/07 ECoHR 9 February 2012.
[28]
(1990)
3 SCR 697.
[29]
‘
The
Hate Speech Provisions of the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2004: The Good, the Bad
and the
Ugly’
(2003) 19
SAJHR
349
at 352.
[30]
1977
(3) SA 534
(A) at 548.
[31]
2011
(6) SA 240 (EqC).
[32]
[2004]
3 All SA 137
(SCA) para [47].
[33]
1999
(1) BCLR 1 (SCA).
[34]
[2005]
1 All SA 567 (SCA).
[35]
1928 AD 190.
[36]
2011
(4) SA 191 (CC).
[37]
[2006]
3 FCR 446
para [33]; [2005] F.C.J. No 1838 para [33].
[38]
(2003)
JOL 10918
(BCT SA) paras [6] and [7].
[39]
2010
(4) SA 210
(SCA) para [7].
[40]
2000
(4) SA 757 (CC).
[41]
2002
(2) SA 794 (CC).
[42]
2003
(11) BCLR 1283
at 1296.
[43]
Section
36 is quoted in para [28] above.
[44]
2007 (5) SA 94
(SCA) paras [18] and [21].
[45]
1981
(3) SA 1280
(A) at 1296E-F.
[46]
2004
(6) SA 66 (SCA).
[47]
‘
South
Africa: Expert Evidence’ 23 January 2012
http://www.mondaq.com/southafrica/x/155964/Trials+Appeals+Compensation/Expert+Evidence

(accessed 20 June 2017).
[48]
2009
(6) SA 232
(CC).