“We can make sure that for that side it will be hell … something that may necessarily cause what is regarded as harm”.
These chilling words rang in my ears. As a young South African sitting in a university classroom, I never expected that my association with a group of people, a member of the South African Jewish community, would deem me a target for violence and unwelcome in my own country.
It was March 2009 and I was attending an Israel Apartheid Week talk co-hosted by COSATU and the Palestinian Solidarity Committee on the campus of the University of the Witwatersrand. COSATU International Relations Spokesperson Bongani Masuku’s vitriolic address that day would go on to become the subject of a decade old court case which has helped define our understanding of hate speech in South Africa.
During that speech, Masuku made other statements including that Jews who continued to stand up for Israel should “not just be encouraged but forced to leave South Africa”. He said that COSATU would do everything to ensure, whether at Wits University or ‘Orange Grove’ (a historically Jewish suburb) that those who did not support equality and dignity must face the consequences, even if it meant “something that may necessarily cause what is regarded as harm”. A month earlier, Masuku wrote in blog post, “As we struggle to liberate Palestine from the racists, fascists, and Zionists who belong to the era of their friend Hitler … We must not apologize, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine”. He also said, “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”.
The South African Jewish Board of Deputies (SAJBD) laid a complaint against Masuku with the South African Human Rights Commission (SAHRC), who found him guilty of hate speech in December 2009 and ordered that he apologize to the Jewish community. The SAHRC ruled that his remarks were “of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation”. However, Masuku refused and in 2017 the SAHRC took him to the Equality Court to enforce their judgement, which was upheld. Masuku appealed and the judgement was overturned by the Supreme Court of Appeal (SCA) in December 2018. The case then went back to the Constitutional Court the following year where the SAHRC, the South African Holocaust and Genocide Foundation, the Psychological Society of SA; the Rule of Law Project; and the Nelson Mandela Foundation argued that the SCA had erred in its decision.
The case became a question of what amounts to hate speech, with counsel for the SAHRC stating that the word Zionist “in the South African context means Jew because the vast majority of South African Jews are Zionist” and emphasizing that this means Masuku’s use of the word ‘Zionist’ was coded language for Jews. Masuku’s legal team argued that his comments referred to COSATU’s position that “the Israeli occupation of Palestine is unlawful and akin to apartheid and should be opposed in the same way as freedom fighters in South Africa, and allies abroad, fought against the oppression of apartheid”. The case exposed the tension between the fundamental constitutional rights of equality and dignity on the one hand and freedom of expression on the other. It probed whether Masuku’s words constituted hate speech directed towards Jews or protected political speech.
The Constitutional Court answered this question on February 16th 2022, upholding the ruling that Masuku was guilty of hate speech and must offer a formal apology to the Jewish community.
I still recall the shock of Masuku’s words that day, and the atmosphere thick with hostility. I have always respected COSATU, its rich and inspiring history of bringing together unions at the height of the struggle against apartheid and its powerful role in the creation of a democratic South Africa. Hearing one of its leader’s use such incendiary rhetoric towards fellow South Africans was unsettling. Israel is a state that, like all others across the globe, is not above criticism and beyond reproach. I too have a deep sympathy for the plight of the Palestinian people and hope for a peaceful, negotiated and just solution to the heart-breaking and intractable Middle East conflict. Yet, Masuku’s words that day did not serve the cause of peace and solidarity or help the Palestinian struggle, but only further sowed seeds of division, mistrust and hate.
Words matter. History has shown us time and again that oppression, violence and genocide do not begin with actions but with dehumanizing and hateful language. With rising levels of antisemitism around the globe, and a clear link between tension in Israel and Palestine and increased incidences of violence against Jews worldwide, we need to ensure that solidarity with the Palestinian cause and criticism of the State Israel or the Palestinian leadership does not descend into, or get hijacked by, hatred. In South Africa, we need to guard against all forms of hate as an epidemic of xenophobia, homophobia and other forms of discrimination and bigotry continues unabated.
Discussions on Israel and Palestine, like those around hate speech, are complex and highly emotive. Amidst the shouting of slurs, nuanced and reasoned conversations must take place. If we stop talking at and rather start listening to each other then we may be able to gain a greater understanding of perspectives and beliefs different than our own. By working to build bridges between communities we can return to the principle at the heart of our Freedom Charter - “South Africa belongs to all who live in it”.
Whilst freedom of speech must always be protected, we have a responsibility to ensure that our words do not infringe on the equality, dignity and human rights of others. I remain hopeful that in the South African spirit of reconciliation and diversity of opinion, Masuku will heed the court’s ruling and apologize to the Jewish community. Going forward, our focus should be on how best to use our own South African experience of dialogue and compromise to assist Palestinians and Israelis in bringing their conflict to an end, and in ensuring that our country is one where zero forms of hate are tolerated.