South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2022 (4) SA 1 (CC)

South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another
2022 (4) SA 1 (CC)

2022 (4) SA p1

Citation	2022 (4) SA 1 (CC)
Case No	CCT 14/19 [2022] ZACC 5
Court	Constitutional Court
Judge	Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ
Heard	February 16, 2022
Judgment	February 16, 2022
Counsel	C Bester (with M Seape, S Scott and J Chanza) for the applicant.; A de Kok SC (with A Hassim) for the respondents, Mr Masuku and the Congress of South African Trade Unions.; W Trengove SC (with C Steinberg) for the first amicus curiae, the South African Holocaust and Genocide Foundation.; K Hofmeyr (with D Smit, H Cassim and K van Heerden) for the second amicus curiae, the Psychological Society of South Africa.; MM Ka-Siboto for the third amicus curiae, the Freedom of Expression Institute.; G Marcus SC (with M Mbikiwa) for the fourth amicus curiae, Media Monitoring Africa.; M Oppenheiner (with SA Nakhjavani) for the fifth amicus curiae, the Rule of Law Project.; T Ngcukaitobi (with B Winks) for the sixth amicus curiae, the Nelson Mandela Foundation.

Flynote : Sleutelwoorde

Equality legislation — Hate speech — Anti-Zionist statement — Statement, properly interpreted, based on prohibited ground of ethnicity (Jewishness) — Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

Equality legislation — Hate speech — Determination of whether words hate speech — Approach to s 10(1)(a) – (c) — Objective test — Evidence as to context — Evidence as to impact — Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

Equality legislation — Hate speech — Interplay of Constitution and Act — Subsidiarity — Constitution, s 16; Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10.

Headnote : Kopnota

First respondent (Mr Masuku), while representing second respondent (COSATU), made certain comments on a website and at a rally referencing inter alia 'Zionists', which in turn caused the South African Jewish Board of Deputies to complain to the applicant (the Human Rights Commission) that they were hate speech (see [3] – [7]).

Concurring, the Commission instituted proceedings in the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), and obtained a ruling that the remarks were indeed hate speech as proscribed by s 10(1) of the Act, that they were not protected by s 16 of the Constitution, and that Mr Masuku and COSATU had to apologise therefor to the Jewish Community (see [8], [27] – [29]).

2022 (4) SA p2

Mr Masuku and Cosatu then appealed to the Supreme Court of Appeal, which set aside the Equality Court's order and replaced it with one dismissing the Commission's complaint (see [8]). In arriving at this conclusion, the court came at the matter by way of s 16 of the Constitution, rather than s 10(1) of the Act, and an examination of whether the utterances constituted hate speech under s 16(2) (see [30] – [32]). (The court disavowed reliance on s 10(1) on its understanding that the Commission had abandoned the s 10(1) point and that the section might be unconstitutional (see [30].) It reasoned that the dictionary distinguished Judaism and Zionism, that the statements implicated Zionism rather than Judaism, and as Zionism was neither something ethnic nor religious, the statements fell outside s 16(2), were accordingly not hate speech, and consequently protected by s 16(1) (see [31]).

The Commission applied for leave to appeal the Supreme Court of Appeal's judgment, and Mr Masuku and Cosatu sought leave to cross-appeal the Equality Court's costs order, which was that they pay the Commission's costs in that court (see [29], [47]).

Proceeding, the Constitutional Court turned first to an application by Mr Masuku and COSATU for Chief Justice Mogoeng's recusal. The facts grounding this were the hearing of the instant matter and later on the Chief Justice's participation in a webinar hosted by an Israeli newspaper, during which the Chief Justice professed his love of Israel (see [76], [78] – [79]).

Held, that viewed in their proper context, the statements did not prompt a reasonable apprehension of bias on the Chief Justice's part, and that the application should hence be dismissed (see [81], [91] – [92]). (For a survey of the test for recusal, see [63] – [69].)

The next issue was whether leave should be granted. Held, that it should: the court's jurisdiction was engaged (the matter implicated the interaction of ss 9, 10 and 16 of the Constitution, the interpretation of constitutionally mandated legislation, and the subsidiarity principle), and it was in the interests of justice to hear the case (it implicated the important issue of the bounds of free expression) (see [94] – [96]).

The next point was subsidiarity: had the Supreme Court of Appeal erred in employing s 16(2) of the Constitution rather than s 10(1) of the Equality Act (see [98]). Held, that it had (see [118]). The Act was promulgated to elaborate s 16, thus subsidiarity applied (see [112]); and the appeal court had erroneously presupposed that s 16(2) prohibited hate speech (see [99]). (It delineated what was not protected by s 16(1), leaving it to the legislature to proscribe or not proscribe what s 16(2) deemed unprotected (see [100]).)

Moving then to evaluation of the statements, the court noted that relevant issues had recently been clarified: s 10(1) was an objective test (see [122]); the section's subsections (a) – (c) were conjunctive (see [124]); and (a) was impermissibly vague, thence unconstitutional, and had been severed, pending legislative remediation (see [131] – [132]).

This raised how words were to be determined to be hate speech. This required a court to consider whether the words, heard in their proper context by a reasonable person, would lead that person to conclude that they were based on a prohibited ground and intended to incite harm or propagate hatred (see [144]). In this exercise the court could hear the evidence of witnesses on context relevant to its deciding whether the words or their subtext were hate speech, but given that the test was objective, the speaker and listener's understanding of the meaning of the words was irrelevant (see [145] – [146],

2022 (4) SA p3

[154]). A caveat, though, was that testimony of a member of the targeted group on the impact of the statements was relevant to the determination of remedy (see [146]).

The matter thus resolved to whether the Equality Court had been correct to find that a reasonable person would regard Mr Masuku's remarks to be based on the prohibited ground of religion (Judaism) and intended to incite harm and propagate hatred (see [153]).

To this end the Constitutional Court was required to evaluate the Equality Court's factual findings (who the attendees at the rally were, whether the words had an anti-Semitic innuendo and so on), as well as its legal finding described above (see [153]).

The first finding, namely the one about the first of Mr Masuku's statements (see [3]), was that it referenced ethnicity (Judaism). The court agreed with this conclusion and the Equality Court's analysis (see [156] – [157]). So too, with its finding that a reasonable reader would have taken Mr Masuku to have clearly intended to incite harm and propagate hatred (see [158]). Consequently the Equality Court's finding of s 10(1)'s contravention was unimpeachable (see [160]).

But the same could not be concluded about its analysis of the second, third and fourth statements (see [4] – [6]). Correctly viewed they did not implicate Jewish ethnicity or religion, so rendering the findings of contravention insupportable (see [166]). (For the Constitutional Court's reasoning, see [161] – [165].)

This then left the cross-appeal of the Equality Court's award of costs against Mr Masuku and COSATU. It had to be upheld as they had raised a constitutional defence (the statements were political speech) and consequently the standard rule in constitutional litigation between the state and a private party applied: each party was to bear their own costs (see [169]).

Ordered therefore that the Supreme Court of Appeal's order was set aside and substituted to the effect that the appeal against the Equality Court's order was dismissed; and the Equality Court's order was amended such that it declared Mr Masuku's first statement alone to be a contravention of s 10(1) and ordered Mr Masuku and COSATU to apologise therefor. (The full order is at [172].)

Cases cited

Southern Africa

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dictum in para [138] applied

AfriForum and Another v Malema and Another 2011 (6) SA 240 (EqC): referred to

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (2) SACR 101; 2010 (5) BCLR 391; [2010] ZACC 4): considered

Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): referred to

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): referred to

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

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): referred to

BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A): referred to

2022 (4) SA p4

Competition Commission of South Africa v Media 24 (Pty) Ltd 2019 (5) SA 598 (CC) (2019 (9) BCLR 1049; [2019] ZACC 26): referred to

Dendy v University of the Witwatersrand and Others [2007] 3 All SA 1 (SCA) ([2007] ZASCA 30): referred to

Ex...