South African Human Rights Commission v Masuku and Another

• Jurisdiction: South Africa
• Citation: 2018 (3) SA 291 (GJ)

South African Human Rights Commission v Masuku and Another
2018 (3) SA 291 (GJ)

2018 (3) SA p291

Citation	2018 (3) SA 291 (GJ)
Case No	EQ 01/2012
Court	Gauteng Local Division, Johannesburg
Judge	Moshidi J
Heard	June 29, 2017
Judgment	June 29, 2017
Counsel	C Bester (with M Seape) for the applicant.; A de Kock SC for the respondent.

Flynote : Sleutelwoorde

Equality legislation — Hate speech — What constitutes — Anti-Zionist statements and threats — In context of present case, constituting hate speech targeting Jewish people — Not valid defence that offending statements were true or fair comment on matters of public interest — How statement C perceived relevant, not intention with which made — Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

Headnote : Kopnota

This case concerned an Equality Court inquiry into a complaint of hate speech, prohibited by s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The complaint, D instituted by the South African Human Rights Commission on behalf of the South African Jewish Board of Deputies, related to four statements made by the first respondent, Mr Masuku, which the Commission had found prima facie propagated hatred and violence towards Jewish people.

Mr Masuku, a functionary of the second respondent (Cosatu), made the first of E the offending statements by way of a website post, shortly before an anti-Zionist rally at the University of the Witwatersrand, where as a speaker he made the others. [*] He denied that his statements were aimed at Jews, insisting that the only group that he made specific reference to was Zionists, and that Zionism was a political ideology which included various religious groupings. He claimed that the offending statements were based on fact, were true, constituted fair comment on matters of public interest and F reflected bona fide beliefs on Zionism and the plight of Palestinians — that he was entitled to express in the exercise of the s 16 constitutional right to freedom of expression (quoted at [23]). The Commission argued that the context in which the statements were made undoubtedly referred to members of the Jewish community, and that the impugned statements constituted hate speech within the meaning of s 10(1) of the Equality Act G (quoted at [19]).

Held

The Equality Act did not define hate speech but it was clear, 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 H

2018 (3) SA p292

speech A were created: the advocacy of hatred which is based on race, ethnicity, gender or religion; and speech which constituted incitement to cause harm. (Paragraphs [39] and [42].)

The evidence showed that the impugned statements were offensive and targeted the Jewish community, present or not during those utterances. Masuku's statements did not traverse the internal limitations in s 16(2)(c) of the B Constitution; not only were they hurtful to the target group but also threatened them with harm while at the same time promoting and propagating hatred. This alone was more than sufficient to bring the statements within the purview of s 10(1) of the Equality Act. (Paragraphs [38], [48] – [53] and [55]).

Masuku's defence, that the offending statements were true and constituted fair C comment on matters of public interest, was not permissible under the Equality Act. The intention of Masuku when making the impugned statements was irrelevant; it was not for him (or for the court) to dictate how they should be perceived. It was reasonably conceivable that, in the context of the present matter, a reasonable person in the Jewish community, in particular a Jewish person associated with Wits University, would D probably be driven away through intimidation and fear for their security. It was irrelevant whether any actual attack became likely or ensued. When regard was had to persecution and discrimination inflicted on the Jewish community historically, it was also irrelevant whether the impugned statements, individually or cumulatively, were aimed at Zionism. The protection of their rights, especially to equality and religion, remained crucial. E The impugned statements were not protected by s 16 of the Constitution, and constituted hate speech under s 10(1) of the Equality Act. (Paragraphs [47], [54] and [60].)

Cases cited

Southern Africa

Afriforum F and Another v Malema and Others 2011 (6) SA 240 (EqC): dictum in para [43] applied

African National Congress v Harmse and Another: In re Harmse v Vawda (Afriforum and Another Intervening) 2011 (5) SA 460 (GSJ): dictum in para [50] applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) G (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051; [2000] ZACC 11): referred to

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Freedom H Front v The South African Human Rights Commission 2003 (11) BCLR 1283 (SAHRC): dictum at 1296 applied

Independent Newspapers Holdings Ltd and Others v Suliman [2004] 3 All SA 137 (SCA) (2005 (7) BCLR 641; [2004] ZASCA 57): dictum in para [47] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor I Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2009] ZACC 12): dictum in paras [22] – [23] applied

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dicta in J paras [28] and [33] applied

2018 (3) SA p293

Johnson v Rand Daily Mail 1928 AD 190: referred to A

Le Roux and Others v Dey 2010 (4) SA 210 (SCA) ([2010] ZASCA 41): dictum in para [7] applied

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347; [1998] ZASCA 94): referred to

P v P 2007 (5) SA 94 (SCA): referred to B

Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (3) SA 345 (CC) (2003 (1) SACR 425; 2003 (4) BCLR 357; [2003] ZACC 1): referred to

Price Waterhouse Coopers Inc and Others v National Potato Co-Operative Ltd 2004 (6) SA 66 (SCA) (2004 (9) BCLR 930; [2004] 3 All SA 20; [2004] ZASCA 64): referred to C

Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) (2002 (1) SACR 431; 2002 (3) BCLR 231; [2002] ZACC 1): referred to

Seven Eleven Corporation of SA (Pty) Ltd v Cancun Trading NO 150 CC 2005 (5) SA 186 (SCA) ([2005] 2 All SA 256): referred to

Shoot and Others v E-TV (2003) JOL 10918 (BCT SA): referred to

South African Human Rights Commission v Qwelane 2018 (2) SA 149 (GJ): D referred to

South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) ((1999) 20 ILJ 2265; 1999 (6) BCLR 615; [1999] ZACC 7): dictum in paras [7] – [8] applied

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A): dictum at 548A – C applied E

Stock v Stock 1981 (3) SA 1280 (A): referred to

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) (2011 (8) BCLR 816; [2011] ZACC 11): referred to

Times Media Ltd v Niselow [2005] 1 All SA 567 (SCA): referred to F

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) (2008 (11) BCLR 1123; [2008] ZACC 12): referred to.

Canada

Canada (Human Rights Commission) v Winnicki (FC) [2006] 3 FCR 446 ([2005] FCJ No 1493 (CanLII)): dictum in para [33] applied G

R v Andrews 43 CCC (3rd) 193: dictum at 211 applied

R v Keegstra (1990) 61 CCC (3d) 1 (SCC) ([1990] 3 SCR 697; 1 CR (4th) 129): considered.

European Union H

Vejdeland v Sweden [2012] ECHR 242: dictum in para [55] applied.

Legislation cited

Statutes

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1): see Juta's Statutes of South Africa 2016/17 vol 5 at 1-267. I

Case Information

C Bester (with M Seape) for the applicant.

A de Kock SC for the respondent.

An inquiry by the Equality Court to determine a hate-speech complaint. The order is at [65]. J

2018 (3) SA p294

Judgment

Moshidi J: A

Introduction

[1] This enquiry, which essentially proceeded on a trial basis (where evidence was led), concerns the delicate balancing exercise of the right to B 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 C 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 D Deputies (the SAJBD), in terms of the provisions of s 10(1) of the Promotion of Equality and Prevention of Unfair 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] E The Commission is one of the institutions established in terms of ch 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...