Today, 27 August 2019, a long-running hate speech case which will impact significantly on South African law is being argued before the Constitutional Court.
The case has its origins in a complaint lodged on 26 March 2009 by the SA Jewish Board of Deputies (SAJBD) with the SA Human Rights Commission (SAHRC) against Bongani Masuku, International Relations Spokesperson for the Congress of SA Trade Unions (COSATU). The complaint was based on various threatening, inflammatory and derogatory statements made by Masuku against the South African Jewish community and its leadership.
On 4 December 2009, the SAHRC issued its ruling upholding the Board’s complaint. The ruling found that Masuku’s comments 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. A prima facie case of hate speech is clearly established as the statements and comments by Mr. Masuku are offensive and unpalatable to society.
The SAHRC directed Masuku to tender an apology to the SAJBD within 14 days. Masuku and Cosatu decided to contest the ruling. The matter was heard by the Equality Court, which in its judgment of 29 June 2017 unequivocally upheld the SAHRC ruling. Masuku and Cosatu took the matter to the Supreme Court of Appeal (SCA). In December 2018, the SCA overturned the judgment of the Equality Court.
At today’s hearing, the SAHRC and the SA Holocaust and Genocide Foundation, the Psychological Society of SA, the Rule of Law Project and the Nelson Mandela Foundation will argue that the SCA erred in its decision.
The SAJBD is resolute that any form of racism, including antisemitism, flouts the fundamental right to dignity and equality of all South Africans and as such is unconstitutional. In addition, the SAJBD believes that the threats made by Masuku, in the name of Cosatu, infringed the SAJBD’s right to freedom of association.
Issued by Wendy Kahn
27 August 2019
SAJBD National Director