South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another is a 2022 decision of the Constitutional Court of South Africa on the statutory definition of hate speech. The court held that criticism of Israel and anti-Zionism may amount to anti-semitic hate speech but, in other contexts, may be distinguishable from the same. Its judgment, written by Justice Sisi Khampepe, was handed down unanimously on 28 June 2022.
Adding to public interest in the case was the fact that it was heard by Chief Justice Mogoeng Mogoeng, despite an application for his recusal. While the Constitutional Court's judgment was pending, Mogoeng made controversial extra-curial remarks in support of the State of Israel, leading to a complaint and sanction against him at the Judicial Service Commission.
Background
The case arose from four statements about the Israel–Palestine conflict made by Bongani Masuku, who at the time was the international relations secretary of the Congress of South African Trade Unions (COSATU). He made the statements in 2009 in the context of the Gaza War. The most contentious was published in a blog post in February 2009, in which Masuku wrote:
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.
On 29 June 2017, the Johannesburg High Court, sitting as an Equality Court, ruled against Masuku, finding that his statements constituted hate speech against Jewish people as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. Section 10(1) of that act prohibited the publication of any statement "that could reasonably be construed to demonstrate a clear intention to— be hurtful; be harmful or to incite harm; promote or propagate hatred" on any one of a number of prohibited grounds, including religion. Masuku was ordered to apologise unconditionally to the Jewish community.[1]
Masuku appealed to the Supreme Court of Appeal, where, on 4 December 2018, his appeal was upheld.[2][3] Writing for a unanimous bench, Judge of Appeal Nambitha Dambuza found that Masuku's statements did not constitute hate speech. Importantly, the Supreme Court of Appeal did not apply section 10(1) of the Equality Act, but instead measured the statements directly against section 16(2) of the Constitution, which set out limitations on the right to freedom of expression. Under section 16(2), "propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm" do not constitute protected expression.
Constitutional Court action
The Human Rights Commission approached the Constitutional Court of South Africa to appeal the Supreme Court of Appeal's finding on the hate speech question. In addition to opposing that appeal, Masuku and COSATU filed their own cross-appeal against the prevailing costs order. The Constitutional Court was therefore called to decide three issues on which the lower courts had disagreed: the legal basis on which hate speech claims should be adjudicated; whether Masuku's statements amounted to hate speech; and how costs should be distributed. During its hearing on 27 August 2019, the court invited submissions from six amici curiae: the South African Holocaust and Genocide Foundation, the Psychological Society of South Africa, the Freedom of Expression Institute, Media Monitoring Africa, the Rule of Law Project of the Free Market Foundation, and the Nelson Mandela Foundation.[4][5]
After the hearing, and while judgment was reserved, Chief Justice Mogoeng Mogoeng attracted public attention for comments he made during an extra-curial webinar hosted by the Jerusalem Post on 26 June 2020. In the course of an interview with Chief Rabbi Warren Goldstein and Yaakov Katz, Mogoeng was critical of South Africa's foreign policy on the Israeli occupation of Palestine and called, inter alia, for reconciliation between the parties.[6][7] Africa4Palestine laid a complaint against Mogoeng at the Judicial Service Commission,[8] which ordered Mogoeng to apologise, finding that his statements had been inappropriate.[9] Thus, in November 2021, Masuku and COSATU filed an interlocutory application for Mogoeng's recusal from the hate speech application, suggesting that Mogoeng had demonstrated unconditional support for the State of Israel and that his personal views would prejudice his impartiality.[10]
Judgment
On 16 February 2022, the court handed down its unanimous judgment.[11] It was the last judgment written by Justice Sisi Khampepe, who had since retired.[12] The court began by dispensing with the application for Chief Justice Mogoeng's recusal, finding that the respondents had not established that Mogoeng's conduct created a reasonable apprehension of bias. On the merits of the matter, the court upheld the appeal in part and upheld the cross-appeal. The court declared that Masuku's February 2009 statement amounted to hate speech and ordered him to tender an apology; however, in line with the cross-appeal, no order as to costs was made.
The court held that the Supreme Court of Appeal had erred in applying section 16 of the Constitution directly in the present case. Parliament had enacted the Equality Act in order to give effect to section 16 of the Constitution, so, under the principle of subsidiarity, any claim of hate speech should be adjudicated under section 10(1) of the Equality Act rather than under section 16(2) of the Constitution. Conveniently for the court, judgment had recently been handed down in Qwelane v South African Human Rights Commission, another hate speech matter. In Qwelane, the court had severed the requirement of hurtfulness from section 10(1) of the Equality Act on constitutional grounds but had otherwise upheld the section as constitutional; it had also provided guidance on the interpretation of the section, confirming that it stipulated an objective test.
The Masuku court therefore proceeded to apply Qwelane's interpretation of section 10(1) to Masuku's statements. Much of its attention was focused on the question of whether anti-Zionism constituted anti-semitism. In this respect, it had regard to competing expert testimony proposing, on the one hand, that "Zionism forms a part of the core identity for many Jews", and, on the other hand, that "there was also a tendency to silence legitimate criticism of Israel as being anti-Semitic". The court concluded that a reasonable person would not have inferred that Masuku's remarks at Wits University were targeted at Jews, rather than at Zionists. However, read in context, Masuku's February 2009 blog post did license such an inference, especially because of its reference to Hitler. Moreover, the blog post could reasonably be construed to demonstrate a clear intent to incite harm and propagate hatred. Thus the blog post, but not Masuku's other statements, constituted hate speech under the Equality Act on the prohibited ground of religious identity.
Reception and aftermath
The Jewish Board of Deputies welcomed the judgment.[13] From a contrary perspective, some commentators welcomed the judgment insofar as the Constitutional Court had declined to subscribe to definitions (such as the International Holocaust Remembrance Alliance's) which conflated criticism of Israel with anti-semitism.[14]Pierre de Vos, who had been highly critical of the Supreme Court of Appeal's judgment in the matter,[15] was likewise disappointed by the Constitutional Court's judgment, arguing that it failed to provide legal certainty about the proper interpretation of the Equality Act.[16]
As required by the Constitutional Court, Masuku publicly apologised for his February 2009 statement.[17] A year later, the Judicial Service Commission dismissed Mogoeng's appeal against the 2021 misconduct finding against him, and Mogoeng apologised publicly for his own remarks about Israel, though noting that his appeal had failed "on the 666 day of the lockdown in our land".[18]
The Constitutional Court of South Africa is a supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction.
Dikgang Ernest Moseneke OLG is a South African jurist and former Deputy Chief Justice of South Africa.
The Judicial Service Commission is a body specially constituted by the South African Constitution to recommend persons for appointment to the judiciary of South Africa.
Tony Ehrenreich is a South African trade-unionist and regional secretary of the Western Cape region of COSATU.
Mogoeng Thomas Reetsang Mogoeng is a South African jurist who served as the Chief Justice of South Africa from 8 September 2011 until his retirement on 11 October 2021.
Christopher Nyaole Jafta is a retired South African judge who served in the Constitutional Court of South Africa from October 2009 to October 2021. Formerly an academic and practising advocate in the Transkei, he joined the bench in November 1999 as a judge of the Transkei Division. Thereafter he served in the Supreme Court of Appeal from November 2004 to October 2009.
South Africa is a secular state, with freedom of religion enshrined in the Constitution.
Mandisa Muriel Lindelwa Maya is the Deputy Chief Justice of South Africa. She was formerly the President of the Supreme Court of Appeal from 2017 to 2022. She joined the bench in May 2000 as a judge of the Transkei Division of the High Court of South Africa and was elevated to the Supreme Court of Appeal in 2006.
Jonathan Dubula Qwelane, known as Jon Qwelane, or by his initials JQ, was a South African journalist and radio talk show host who also served as the country's ambassador to Uganda in the 2010s. A pioneering and acclaimed black journalist, in his final years Qwelane was embroiled in a legal dispute as a result of a homophobic column that he wrote in 2008, that had important implications for the boundaries between hate speech and freedom of expression in South African law.
Dumisani Hamilton Zondi is a South African judge of the Supreme Court of Appeal. He was appointed as the chairperson of the Electoral Court in 2022. Before his elevation to the Supreme Court in June 2014, he served in the Western Cape High Court between 2007 and 2014, as well as in the Competition Appeal Court between 2011 and 2014. He entered legal practice as an attorney in 1986.
Petrus Arnolus Koen is South African judge who is currently serving in the KwaZulu-Natal Division of the High Court of South Africa. Before joining the bench in November 2006, he was Senior Counsel in Pietermaritzburg. He is best known for presiding in the corruption trial of former President Jacob Zuma from May 2021 until he recused himself in January 2023.
David Teeger is a South African cricketer who plays age-group cricket representing South Africa national under-19 cricket team. He made his debut in competitive top flight cricket during the 2023 CSA One-Day Cup.
Qwelane v South African Human Rights Commission and Another is a 2021 decision of the Constitutional Court of South Africa on the constitutionality of a statutory prohibition on hate speech. The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.
Phineas Mathale Deon Mojapelo is a South African retired judge of the High Court of South Africa. He was the Deputy Judge President of the South Gauteng Division from January 2005 to June 2020, and he joined the bench in January 2003 as a puisne judge of the North Gauteng Division. He was also an acting judge in the Constitutional Court of South Africa in 2017.
Economic Freedom Fighters and Others v Speaker of the National Assembly and Another is a 2017 decision of the Constitutional Court of South Africa on Parliament's constitutional obligation to hold the President accountable for his conduct. In a majority judgment written by Justice Chris Jafta, the court ordered the National Assembly to make rules regulating presidential impeachment under section 89 of the Constitution and to use those rules to determine whether President Jacob Zuma had committed impeachable conduct in failing to comply with a report by the Public Protector. Arising from the Nkandlagate scandal, the case was politically sensitive, and critics held that the court's order transgressed the separation of powers.
Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another is an important decision in South African competition law. It was decided by the Constitutional Court of South Africa on 15 October 2021 with a majority decision written by Chief Justice Mogoeng Mogoeng.
Paulsen and Another v Slip Knot Investments 777 (Pty) Limited is a decision of the Constitutional Court of South Africa. In a judgment delivered on 24 March 2015, a majority of the court overturned the Supreme Court of Appeal's decision in Standard Bank v Oneanate, which had established a pendente lite exception to the in duplum rule.
Freedom of expression in South Africa is guaranteed in section 16 of the Constitution of South Africa. This right to freedom of expression, which is regarded as being of fundamental importance to South African constitutional democracy, was first recognised in the Interim Constitution of 1993. The right is not unqualified — certain forms of expression fall outside of the ambit of section 16(1), and the right is capable of limitation in accordance with the general principles of South African constitutional jurisprudence. Application of the right to freedom of expression by the courts has had a considerable impact on, amongst other fields, South African criminal law, defamation law and trademark law.
In South African Transport and Allied Workers Union and Another v Garvas and Others, the Constitutional Court of South Africa dismissed a constitutional challenge to section 11 of the Regulation of Gatherings Act 205 of 1993. The relevant provisions of the act widen the circumstances in which persons can be held liable for riot damage incurred during public gatherings which they have organised. The Constitutional Court conceded that these provisions created a chilling effect, thereby limiting the constitutional right to freedom of assembly, but it held that this rights limitation is reasonable and justifiable.
Albutt v Centre for the Study of Violence and Reconciliation and Others is a 2010 decision of the Constitutional Court of South Africa which concerned a special presidential dispensation to pardon the perpetrators of politically motivated crimes committed during the apartheid era. The Constitutional Court held that the President of South Africa had contravened the Constitution in deciding not to consult the victims of those crimes before granting the pardons. The unanimous judgment was written by Chief Justice Sandile Ngcobo and delivered on 23 February 2010.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
